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Jands Pty Ltd – Terms & Conditions of Trade

P6013

Procedures & Policies\Accounts\Terms & Conditions of

Trade ext

Date: 1 October 2012

Version 2

12.5 In the event that:

(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will

be unable to meet its payments as they fall due; or

(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters

into an arrangement with creditors, or makes an assignment for the benet of its creditors;

respect of the Buyer or any asset of the Buyer; then without prejudice to the Seller’s other

remedies at law

(i) the Seller shall be entitled to cancel all or any part of any order of the Buyer which

remains unperformed in addition to and without prejudice to any other remedies;

and

(ii) all amounts owing to the Seller shall, whether or not due for payment, immediately

become payable in addition to the interest payable under clause 12.1 hereof.

13. Seller’s Security Interest

13.1 The Buyer grants to the Seller a purchase money security interest, in accordance with the meaning

given to that expression in the PPSA, in the Goods as security for all amounts owing and unpaid by

the Buyer to the Seller in respect of those Goods.

13.2 The Seller may (at the Seller’s cost), without further notice to the Buyer, apply to register a nancing

statement, or a nancing change statement from time to time, with respect to the purchase money

security interest referred to in these terms and conditions.

13.3 The Buyer shall ensure that it, and any other person who seeks to identify the Goods, is always able

to identify the Goods from any other goods that may be in the Buyer’s possession and identify the

particular Goods to which any invoice from the Seller relates.

13.4 Full ownership of, and title to, those Goods in respect of which the Buyer owes and has not paid to

the Seller any amount shall remain with the Seller until the date:

(a) there are no longer any amounts owing to The Seller for those Goods;

(b) the Seller registers a nancing statement in respect of those Goods; or

is the earlier.

13.5 Until and unless the Buyer has paid the Seller in full for the Goods, the Buyer shall:

(a) hold those Goods as the Seller’s bailee;

(b) return those Goods to the Seller on demand; and

of the sale of those Goods on trust for the Seller in a separate account and not mixed with

the Buyer’s other money, debts or property and payable immediately without demand.

13.6 The Buyer agrees that the Buyer shall only sell Goods in respect of which the Buyer has not made

full payment to the Seller on the conditions that any such sale is conducted at arm’s length and is

for the full market value of those Goods and the Seller has not demanded the return of those Goods.

13.7 All risk in the Goods shall, unless otherwise agreed in writing, pass to the Buyer upon delivery

(whether by delivery to the Buyer or by delivery to another person on the Buyer’s instructions) and

the Buyer shall insure and maintain insurance for the Goods for their full replacement value. The

Buyer shall provide evidence of such insurance if required by the Seller.

13.8 Until payment in full has been received by the Seller from the Buyer in accordance with these

terms and conditions the Buyer authorises, and grants an irrevocable licence to, the Seller and the

Seller’s authorised representatives to enter any premises where Goods for which payment in full

has not been received by the Seller are kept to re-take possession of those Goods and to use all

reasonable force in doing so without any liability for any resulting damage. The Buyer agrees and

acknowledges that, in addition to any other rights under these terms and conditions or otherwise

arising, the Seller or its authorised representative may exercise any and all remedies afforded to a

secured party under Chapter 4 of the PPSA including, without limitation, entry into any building or

premises owned, occupied, or used by the Buyer, to search for and seize, dispose of or retain those

Goods in respect to which the Buyer has granted to the Seller a purchase money security interest.

13.9 The parties agree that the following provisions of the PPSA, to the extent referred to below, shall

not apply and shall not place any obligations on The Seller in the Buyer’s favour:

(a) sections 95 and 130 of the PPSA, to the extent that the Seller is required to give a notice to

the Buyer; and

(b) sections 96, 125, s129(2), 132(3)(d), 132(4) and 135 of the PPSA.

13.10 The Buyer acknowledges receipt of a copy of these terms and conditions and, to the extent

permitted under the PPSA, waives any right to receive from the Seller a copy of any nancing

statement, nancing change statement or verication statement that is registered, issued, or

received at any time in relation to these terms and conditions.

13.11 In these terms and conditions, PPSA means the Personal Properties Securities Act 2009 as

amended or replaced from time to time.

14. Security and Charge

14.1 Despite anything to the contrary contained herein and in addition to any other rights which the

Seller may have:

(a) Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset

capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or

charge all of their joint and/or several interest in the said land, realty or any other asset to

the Seller or the Seller’s nominee to secure all amounts and other monetary obligations

payable under the terms and conditions. The Buyer and/or the Guarantor acknowledge

and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where

appropriate a caveat, which caveat shall be released once all payments and other monetary

obligations payable hereunder have been met.

(b) Should the Seller elect to proceed in any manner in accordance with this clause and/or its

sub-clauses, the Buyer and/or Guarantor shall indemnify the seller from and against all the

Seller’s costs and disbursements including legal costs on a solicitor and own client basis.

or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller

or the Seller’s nominee as the Buyer’s and or Guarantor’s true and lawful attorney to execute

mortgages and charges (whether registerable or not) including such other terms and

conditions as the Seller and/or the Seller’s nominee shall think t in his/her/its/their

absolute discretion against the joint and/or several interest of the Buyer and/or the Guarantor

in any land, realty or asset in favour of the Seller and in the Buyer’s and/or Guarantor’s name

as may be necessary to secure the said Buyer’s and/or Guarantor’s obligations and

indebtedness to the Seller and further to do and perform all necessary and other acts

including instituting any necessary legal proceedings, and further to execute all or any

documents in the Seller’s absolute discretion which may be necessary or advantageous to

give effect to the provisions of this clause.

15. Cancellation

15.1 The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before

the Goods are delivered by giving written notice. Subject to clause 10.1, The Seller shall not be

liable for any loss or damage whatever arising from such cancellation.

16. Privacy Act 1988

16.1 The Buyer and/or the Guarantor/s agree for the Seller to obtain from a credit reporting agency a

credit report containing personal credit information about the Buyer and Guarantor/s in relation to

credit provided by the Seller.

16.2 The Buyer and/or the Guarantor/s agree that the Seller may exchange information about Buyer and

Guarantor/s with those credit providers named in the Application for Credit account or named in a

consumer credit report issued by a reporting agency for the following purposes:

(a) To assess an application by Buyer;

(b) To notify other credit providers of a default by the Buyer;

where the Buyer is in default with other credit providers; and

(d) To assess the credit worthiness of Buyer and/or Guarantor/s.

16.3 The Buyer consents to the Seller being given a consumer credit report to collect overdue payment

on commercial credit (Section 18K(1)(h) Privacy Act 1988).

16.4 The Buyer agrees that Personal Data provided may be used and retained by the Seller for the

following purposes and for other purposes as shall be agreed between the Buyer and Seller or

required by law from time to time:

(a) provision of Services & Goods;

(b) marketing of Services and/or Goods by the Seller, its agents or distributors in relation to the

Services and Goods;

provision of Services/Goods;

(d) processing of any payment instructions, direct debit facilities and/or credit facilities

requested by Buyer; and

(e) enabling the daily operation of Buyer’s account and/or the collection of amounts

outstanding in the Buyer’s account in relation to the Services and Goods.

16.5 The Seller may give, information about the Buyer to a credit reporting agency for the following

purposes:

(a) to obtain a consumer credit report about the Buyer; and or

(b) allow the credit reporting agency to create or maintain a credit information le containing

information about the Buyer.

17. Unpaid Seller’s Rights To Dispose Of Goods

17.1 In addition to rights that the Seller may have under clause 13 and to the fullest extent permitted by

law, in the event that:

(a) the Seller retains possession or control of the Goods; and

(b) payment of the Price is due to the Seller; and

contract; and

(d) the Seller has not received the Price of the Goods, then, whether the property in the Goods

has passed to the Buyer or has remained with the Seller, the Seller may dispose of the

Goods and may claim from the Buyer the loss to the Seller on such disposal.

18. General

18.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the

validity, existence, legality and enforceability of the remaining provisions shall not be affected,

prejudiced or impaired.

18.2 All Goods supplied by the Seller are subject to the laws of New South Wales.

18.3 Subject to clause 10.1, the Seller shall be under no liability whatever to the Buyer for any indirect

loss and/or expense (including loss of prot) suffered by the Buyer arising out of a breach by the

Seller of these terms and conditions.

18.4 Subject to clause 10.1, in the event of any breach of this contract by the Seller the remedies of the

Buyer shall be limited to damages and the liability of the Seller shall not exceed the Price of the

Goods.

18.5 The Buyer shall not set off against the Price amounts due from the Seller.

18.6 The Seller may license or sub-contract all or any part of its rights and obligations without the

Buyer’s consent.

18.7 The Seller reserves the right to review these terms and conditions at any time and from time to time.

If, following any such review, there is to be any change in such terms and conditions, that change

will take effect from the date on which the seller noties the Buyer of such change provided that

such changes .

18.8 Neither party shall be liable for any default (other than the payment of money) due to any act of

God, war, terrorism, strike, lock out, industrial action, re, ood, drought, storm or other event

beyond the reasonable control of either party.

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