1. Payment Terms
1.1. The terms of payment are requested by the applicant and are reviewed and either approved/agreed or rejected and determined by AHT Group Pty Ltd. The agreed terms are from date of invoice and payment is due and payable on that date. AHT Group Pty Ltd ABN 73 625 191 746 and its related bodies corporate (as that term is defined in the Corporations Act (Cth) 2001 (Act)) (Supplier) may, at any time, unilaterally vary the terms of trade in its absolute and unfettered discretion.
1.2. Should the Applicant not pay for the goods or services supplied by the Supplier in accordance with these credit terms as provided herein, or as agreed in writing by the Supplier from time to time, the Supplier shall be entitled to charge an administration fee of 10% of the amount of the invoice payable per year, or part thereof from the date the goods or services were supplied (and not the day when the Supplier’s invoice was payable) until payment by the Applicant.
2. Jurisdiction
2.1. The Applicant acknowledges and agrees that this agreement shall be governed by the laws of South Australia and the laws of the Commonwealth of Australia which are in force in South Australia.
2.2. The Applicant acknowledges and agrees that any contract for the supply of goods or services between the Supplier and the Applicant is formed at the address of the Supplier.
2.3. The parties to this agreement submit to the non-exclusive jurisdiction of the courts of South Australia and the relevant federal courts and courts competent to hear appeals from those courts.
3. Security/charges
3.1. The Applicant charges in favour of the Supplier all its estate and interest in any real property that the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged and hereby authorises the Supplier to register a caveat over any real property owned by the Applicant to register its interest.
3.2. The Applicant appoints as its duly constituted attorney the Supplier’s company secretary from time to time to execute in the Applicant’s name and as the Applicant’s act and deed any real property mortgage, bill of sale or consent to any caveat the Supplier may choose to lodge against real property that the Applicant may own in any Land Titles Office in any state or territory of Australia, even though the Applicant may not have defaulted in carrying out its obligations hereunder.
4. Indemnity
4.1. Should the Supplier elect to proceed in any manner to enforce its security interest against the Applicant, the applicant shall indemnify the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a full indemnity basis or a solicitor client basis whichever is the highest.
5. Personal Property Securities Register
5.1. Upon assenting to these terms and conditions in writing the Applicant acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the Personal Property Securities Act 2009 (PPSA) and creates a security interest in all present and after acquired property of the Applicant.
5.2. Upon assenting to these terms and conditions in writing the Applicant acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the Personal Property Securities Act 2009 (PPSA) and creates a purchase money security interest in the goods supplied to the Applicant by the Supplier.
5.3. The Applicant undertakes to: a) Promptly sign any further documents and/or provide any further information (and such further information to be complete, accurate and up to date in all respects) which the Supplier may reasonably require to register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register (PPSR) or register any other document required to be registered by virtue of the PPSA.
b) Indemnify and upon demand reimburse the Supplier for all expenses incurred in registering a financial statement on the PPSR established by the PPSA or releasing any Goods charged pursuant to these terms and conditions;
c) Not register any financing statement or financing change statement in relation to the goods in favour of a third party without the prior written consent of the Supplier;
d) Immediately advise the Supplier of any material changes in its business practices of selling the goods which would result in a change to the nature of the proceeds derived from such sales.
5.4. The Supplier and the Applicant agree that sections 96 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
5.5. The Applicant waives its rights to receive notices under sections 95, 118, 121(4), 130 and 132(4) of the PPSA.
5.6. The Applicant waives its right as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
5.7. Unless otherwise agreed in writing by the Supplier, the Applicant waives their right to receive a verification statement in accordance with section 157 of the PPSA.
5.8. The Applicant must unconditionally ratify any actions taken by the Supplier under this Clause 2.2.
5.9. Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
5.10. The Applicant must not: a) Create any security interest or lien over any of the Supplier’s personal property whatsoever (other than security
interests granted in favour of the Applicant);
b) Sell, lease or dispose of its interest in the Supplier’s personal property;
c) Give possession of the Supplier’s personal property to another person except where the Supplier expressly authorises it to do so
d) Permit any of the Supplier’s personal property to become an accession to or co-mingled with any asset that is not part of the Goods.
6. Consent to register
6.1. The Applicant hereby consents to the Supplier recording the details of this Agreement on the PPSR.
7. Purpose of credit and Assignment
7.1. The Applicant acknowledges and agrees that the credit to be provided to the Applicant by the Supplier is to be applied wholly or predominantly for commercial purposes.
7.2. The credit facilities provided by the Supplier are not transferable by the Applicant without the prior written consent of the Supplier. The Supplier may assign this agreement to another party without prior notice to the Applicant. The Supplier will give the Applicant notice when the assignment has been effected.
8. Formation of contract
8.1. Quotations made by the Supplier shall not be construed as an offer or obligation to supply in accordance with the quotation. The Supplier reserves the right to accept or reject any orders from the Applicant in its absolute discretion. Only written acceptance by the Supplier of the Applicant’s purchase order shall complete a contract.
8.2. Any purchase orders submitted by the Applicant, and accepted by the Supplier, will be governed by these terms and conditions. To the extent of any inconsistency the parties acknowledge and agree that these terms and conditions will prevail.
8.3. Placement of an order, either verbally or in writing, shall imply acceptance of these terms and conditions by the Applicant.
9. Quantity
9.1. The quantity of Goods ordered by the Applicant will be supplied as near as practicable by the Supplier and the Supplier shall deliver to the Applicant the actual quantity of Goods delivered against these terms and conditions up to a margin of 10% more or 10% less or to the nearest pack lot whichever is larger.
10. Cancellation of terms of credit
10.1. The Supplier reserves the right to withdraw credit at any time, whether the Applicant is in default under the terms of this agreement or not.
10.2. Upon cancellation with or without notice, all liabilities incurred by the Applicant become immediately due and payable to the Supplier.
11. Provision of further information
11.1. The Applicant undertakes to comply with any request by the Supplier to provide further information for assessing the Applicant’s creditworthiness, including an updated credit application or personal guarantee. 11.2. If the Applicant is a corporation (except for a public listed company), it must advise the Supplier of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). ln the case of a change of directors or shareholders the Supplier may ask for new guarantors to sign a guarantee and indemnity.
12. Corporations
12.1. If the Applicant is a corporation, the Applicant warrants that all its directors have signed this agreement and that all its directors will enter a guarantee and indemnity with the Supplier in relation to the Applicant’s obligations to the Supplier.
13. Trustee capacity
13.1. If the Applicant is the trustee of a trust (whether disclosed to the Supplier or not), the Applicant warrants to the Supplier that: a) The Applicant enters into this agreement in both its capacity as trustee and in its personal capacity;
b) The Applicant has the right to be indemnified from the trust assets;
c) The Applicant has the power under the trust deed to sign this agreement; and
d) The Applicant will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier in writing.
13.2. The Applicant must give the Supplier a copy of the trust deed upon request.
14. Partnership
14.1. If the Applicant enters into this agreement as partners, the Applicant warrants that all of the partners have signed this agreement and that all of the partners will enter into a guarantee and indemnity with the Supplier in relation to the Applicant’s obligations to the Supplier.
14.2. If the Applicant is a partnership it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Supplier in writing. In the case of a change of partners, the Supplier may ask for new guarantors to sign a guarantee and indemnity.
15. Insolvency
15.1. If the Applicant becomes insolvent, the Applicant remains liable under this agreement for payment of all liabilities incurred hereunder. The Applicant remains liable under this agreement even if the Supplier receives a dividend or payment because of the Applicant being insolvent.
16. Waiver
16.1. A waiver of any provision or breach of these terms and conditions by the Supplier must be made by an authorised officer of the Supplier in writing. A waiver of any provision or breach of these terms and conditions by the Applicant must be made by the Applicant’s authorised officer in writing.
17. Costs
17.1. The Applicant must pay for its own legal, accounting and business costs and all costs incurred by the Supplier relating to any default by the Applicant. The Applicant must also pay for all stamp duty and other taxes payable on this agreement (if any).
17.2. The Applicant will pay the Supplier’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Applicant, including debt recovery fees and legal costs on an indemnity basis. Such costs and disbursements will be due and payable by the Applicant to the Supplier irrespective of whether pursuit of the recovery action, claim or remedy is successful.
18. Taxes and duty
18.1. The Applicant must pay GST on any taxable supply made by the Supplier to the Applicant under this agreement. The payment of GST is in addition to any other consideration payable by the Applicant for a taxable supply.
18.2. If as a result of: a) Any legislation becoming applicable to the subject matter of this agreement or
b) Any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration;
c) the Supplier becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Applicant, then the Applicant must pay the Supplier these additional amounts on demand.
19. Interest rates
The Supplier may impose interest charges on amounts owed by the Applicant that are outstanding and over the agreed payment terms at the rate of 2% per month accrued daily and compounded monthly from the date payment is due to the date on which payment is received by us.
20. Set-off
20.1. All payments required to be made by the Applicant under this agreement will be made free of any set off, or counterclaim and without deduction or withholding.
20.2. Any amount due to the Supplier from time to time may be deducted from any monies which may be or may become payable to the Applicant by the Supplier.
21. Privacy Act
The Applicant agrees to the terms of the Privacy Act 1988 authorisation contained in this document.
22. Miscellaneous
22.1. The Supplier is not liable for any loss caused to the Applicant by reason of strikes, lockouts, fires, riots. War, embargoes, civil com motions, acts of God or any other activity beyond the Supplier’s control.
22.2. In relation to the supply of goods, the Supplier’s liability is limited to: a) Replacing the goods or supplying similar goods
b) Repairing the goods
c) Providing the cost for replacing the goods or for acquiring equivalent goods; and
d) Providing the cost for having the goods repaired.
22.3. In relation to the supply of services, the Supplier’s liability is limited to: a) Supplying the service again; or
b) Providing for the cost of having the services supplied again.
22.4. Supplier is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Applicant.
23. Severance
23.1. If any provision of this agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.
23.2. If any part of this agreement is invalid or unenforceable, that part is deleted, and the remainder of the agreement remains effective.
24. Variation
24.1. The Applicant agrees that these terms and conditions may be varied, added to, or amended by an authorised officer of the Supplier at any time by written notice to the Applicant.
24.2. Any proposed variation to these terms and conditions by the Applicant must be requested in writing. The Supplier may refuse any such request without providing reasons either orally or in writing.
25. Entire agreement
53. These terms and conditions constitute the entire agreement between the parties relating in any way to its subject matter. All previous negotiations, understandings, representations, warranties, memoranda, or commitments about the subject matter of this agreement are merged in this agreement and are of no further effect. No other explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.