Credit Account Application - Specialised Pipe & Fittings Australia

Specialised Pipe and Fittings Australia Pty Ltd, ABN 52 604 573 480, trading as Specialised Pipe and Fittings Australia (“SPFA”), agrees to provide the Customer with the Products ordered subject to the following Conditions of Sale. These Credit Account Terms & Conditions (“Conditions”) apply to all offers to sell, quotations, and other commercial transactions for the supply of Products by SPFA and its Agents.

1. Interpretation
In these conditions:
1.1. “Attachment” has the same meaning as it is given in section 19 of the Personal Property Securities Act 2009;
1.2. “Contract” means the contract for the sale and purchase of the Products comprising the sales contract, invoice, quotation and these Conditions;
1.3. “Customer” means the party making this application for credit;
1.4. “Directors” means any director(s) of the Customer, jointly and severally;
1.5. “GST” has the same meaning it doesin Section 195-1 of the GST Act;
1.6. “GST Act” means A New Tax System (Products and Services Tax) Act 1999 (as amended);
1.7. “Products” means all products supplied by SPFA to the Customer as described on the sales contract, invoice or quotation or any other forms as provided by SPFA to the Customer.

2. Acceptance
2.1. Any instructions received by SPFA from the Customer for the supply of Products and/or the Customer’s acceptance of Products supplied by SPFA shall constitute acceptance of the Conditions contained herein.
2.2. Upon acceptance of these Conditions by the Customer the Conditions are binding and can only be amended with the written consent of SPFA.
2.3. The Customer shall give SPFA not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice).
2.4. Products are supplied by SPFA only on the Conditions herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these Conditions.

3. Price of Products
3.1. The price ofthe Productsshall be the price appearing on the sales contract, invoice or quotation provided by SPFA. All prices quoted are valid for 7 days only or until earlier acceptance by the Customer, after which time they may be altered by SPFA without notice to the Customer.
3.2. SPFA reserves the right, by notice to the Customer at any time before delivery, to increase the price of Products to reflect any reasonable increase in costs to SPFA due to any factor beyond the reasonable control of SPFA or including, but not limited to:
3.2.1. any change in delivery dates, quantities or specifications for the Products which is requested by the Customer, or any delay caused by instructions of the Customer or failure of the Customer to give SPFA adequate information or instructions; or
3.2.2. material price fluctuations; or
3.2.3. labour costs.
3.3. If the Customer requires any variation to the Contract, then SPFA shall be entitled to increase the price of the Products in order to perform the variation, provided that all such variations to the Contract have been agreed to in writing by both parties. Also, SPFA may charge the Customer an additional administration fee in respect of the variations for an amount equal to 10% of the variation costs (up to a maximum of $150).
3.4. If due to any change to any statute, law or due to any lawful direction or due to circumstances that could not reasonably have been foreseen by SPFA at the time the Contract was entered into, SPFA incurs any additional cost in the performance of the Contract then SPFA shall be entitled to vary the price of the Products by a reasonable amount having regard to the additional costs to be incurred by SPFA provided that before increasing the price and/or carrying out the works relating to the variation, SPFA provides the Customer a written statement setting out the reason for, and additional costs incurred on account of the variation.
3.5. Unless otherwise stated, the price of the Products as shown on the sale contract, invoice or quotation is exclusive of GST.

Terms of Payment
4.1. Unless otherwise stated on the sales contract, invoice or quotation or agreed between SPFA and the Customer, the Customer is required to pay SPFA for the Products in full no later than 30 days following the end of the month in which the sales contract, invoice or quotation was provided to the Customer, or at the time of Delivery.
4.2. If SPFA grants the Customer a credit facility in relation to payment for the Products, then the following terms shall apply instead of the standard payment terms referred to in clause 4.1 above:
4.2.1. The Customer is required to pay SPFA for the Products in full no later than 30 days following the end of the month in which SPFA provides the Customer with the credit facility;
4.2.2. If the Contract or credit facility is terminated by either party in accordance with clause 9.1, then the Customer is required to pay SPFA immediately an amount equal to the total value of Products supplied up until the date of termination;
4.2.3. SPFA may at any stage during the life of the Contract impose as a condition precedent to the granting of further credit that the Customer gives security or additional security as SPFA shall, acting reasonably and in accordance with SPFA’s commercial interests, think fit, and SPFA shall be entitled to withhold supply of any Products or credit facility until such security or additional security shall be obtained.
4.3. If the Customer fails to make any payment on the due date in accordance with this clause, then without prejudice to any other rights or remedies available to SPFA, SPFA may:
4.3.1. cancel the Contract and suspend any further deliveries to the Customer;
4.3.2. all monies due to SPFA shall immediately become due and payable and shall be paid by the Customer within 7 days of the date of demand;
4.3.3. appropriate any payment made by the Customer to such of the Products as SPFA may think; and
4.3.4. charge the Customer interest on the unpaid amount at a rate of 10% above the Reserve Bank of Australia Cash Rate.
4.4. The Customer shall indemnify SPFA in relation to any reasonable expenses, costs or disbursements incurred by SPFA in recovering any outstanding monies due by the Customer to SPFA including, but not limited to, debt collection agency fees, commission and any other fees paid to SPFA’s solicitors.
4.5. Time is of the essence with respect to the payment obligations under this clause 4.

Delivery
5.1. Any dates quoted for delivery of the Products by SPFA are approximate only and SPFA shall not be liable for any delay in delivery of the Products however caused.
5.2. SPFA shall notify the Customer when the Products are available for Delivery. Delivery of the Products shall occur when the Customer or the Customer’s agents or courier takes possession of the Products at SPFA’s premises.
5.3. The failure of SPFA to deliver shall not amount to a breach of this Contract.
5.4. The Customer shall give SPFA written notice of any claims of damage, incorrect or short quantity of the Products within 7 days of delivery.

Return of Products
6.1. Returned Products will not be accepted for credit without prior written approval by SPFA.
6.2. Returned Products arriving without prior written approval will not be accepted for credit and will be returned to the Customer at the Customer’s cost.
6.3. Any returned Products accepted for credit may be subject to a restocking fee which will be payable upon return of the Products to SPFA’s premises.
6.4. Subject to clause 6.1, any requests for credit from the Customer must be provided to SPFA within seven (7) days of returning the Products to SPFA’s premises.

7. Title and Risk
7.1. Risk of damage to or loss of the Products shall pass to the Customer upon delivery in accordance with clause 5.
7.2. Title and ownership to the Products shall not pass to the Customer until:
7.2.1. SPFA has received in cleared funds, payment in full for all indebtedness including the price of the Products delivered and any other sums which are or may become outstanding under the Contract or otherwise; and
7.2.2. the Customer has met all other obligations due by the Customer to SPFA in respect of all other contracts between SPFA and the Customer.
7.3. The Customer shall insure the Products for the period between delivery and prior to ownership passing to the Customer and note SPFA’s interest under the policy of insurance.
7.4. Until such time as full title and ownership to the Products passes to the Customer in accordance with clause 7.2:
7.4.1. the Customer must hold the Products as SPFA’s fiduciary agent and bailee and must keep the Products separate from all other Products except as is expressly consented to by SPFA in writing from time to time;
7.4.2. where practicable, the Customer must keep the Products properly stored, protected and identified as SPFA’s property;
7.4.3. SPFA may at any time after payment of the Products is due in accordance with clause 4, require the Customer to deliver up the Products to SPFA and, if the Customer fails to do so immediately, to enter the premises of the Customer or any third party where the Products are stored and repossess the Products;
7.4.4. If the Customer fails to deliver up the Products, SPFA or SPFA’s agent may enter any premises where the Products are located and re-take possession of the Products and the Customer shall indemnify SPFA against all claims, damages or other losses of whatever nature suffered as a consequence of SPFA recovering or attempting to recover the Products;
7.4.5. the Customer shall not charge the Products in any way nor grant nor otherwise give any interest in the Products;
7.4.6. if the Products are converted into other products, the parties agree that SPFA will be the owner of the end products; and
7.4.7. the Customer shall hold any proceeds from the sale or disposal of the Products, up to and including the amount the Customer owes to SPFA for the Products, on trust for SPFA.

8. Limitations and Warranty
8.1. SPFA makes no express warranties or representations to the Customer in relation to the Products, except those expressly set out in these Conditions.
8.2. The Customer acknowledges that the Products supplied by SPFA are manufactured by third parties, and as such, SPFA is not liable for any defects attributable to their manufacture.
8.3. The Customer shall be entitled to any benefit of any manufacturer’s warranty in respect of such Products. SPFA shall use reasonable endeavours to assist the Customer in obtaining the benefit of any such manufacturer’s warranty. However, SPFA accepts no responsibility for any manufacturer’s warranty or claim arising from the use of the Products, whether singularly or in combination with other Products.
8.4. Except as set out in this clause or elsewhere in this Contract, SPFA does not make any warranties or representations regarding the Products. All warranties, conditions, rights and guarantees implied by any statute or other law are expressly excluded. Where SPFA’s liability cannot be excluded by operation of any statute including the Competition and Consumer Act 2010 (as amended) and the Australian Consumer Law, SPFA’s liability shall be limited to the cost of replacing the defective Product or the cost of repairing the Products, at SPFA’s discretion, provided that in all such cases freight costs and costs of dismantling and reassembly shall be borne by the Customer (if any) and which shall not exceed the price of the Products.
8.5. This warranty does not apply if in SPFA’s reasonable opinion the defects in the Products have been caused by any fair wear and tear or the Products have been used, serviced or maintained in any way that is contrary to SPFA’s or the manufacturer’s recommendations from time to time.
8.6. SPFA is not liable for any loss or damage howsoever arising.
8.7. Neither party is liable to each other for any consequential losses including without limitation loss of revenue, lost profits, damage to goodwill, property damage, lost opportunities or loss of anticipated savings.
8.8. This clause survives the termination and/or expiration of the Contract.

9. Termination
9.1. Either party may terminate this Contract or credit facility at any time by written notice to the other party.
9.2. However, termination of orders for Products made to the Customer’s specifications or non-stocklist items will not be accepted once production has commenced.

11. Privacy Act
11.1. For the purposes of the credit facility, the Customer and/or the Guarantor/s (herein referred to as the Customer) agree for SPFA to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by SPFA.
11.2. The Customer agrees that SPFA may exchange information about the Customer with those credit providers either named as ”Trade References” by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
11.2.1. to assess an application by the Customer; and/or
11.2.2. to notify other credit providers of a default by the Customer; and/or
11.2.3. to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
11.2.4. to assess the creditworthiness of the Customer.
11.3. The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
11.4. The Customer consents to SPFA being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
11.5. The Customer agrees that personal credit information provided may be used and retained by SPFA for the following purposes (and for other purposes as shall be agreed between the Customer and Contractor or required by law from time to time):
11.5.1. the provision of Products; and/or
11.5.2. the marketing of Products by SPFA, its agents or distributors; and/or
11.5.3. analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Products; and/or
11.5.4. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
11.5.5. enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Products.
11.6. SPFA may give information about the Customer to a credit reporting agency for the following purposes:
11.6.1. to obtain a consumer credit report about the Customer;
11.6.2. allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
11.7. The information given to the credit reporting agency may include:
11.7.1. personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
11.7.2. details concerning the Customer’s application for credit or commercial credit and the amount requested;
11.7.3. advice that SPFA is a current credit provider to the Customer;
11.7.4. advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
11.7.5. that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
11.7.6. information that, in the opinion of SPFA, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);
11.7.7. advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
11.7.8. that credit provided to the Customer by SPFA has been paid or otherwise discharged.

12. Disputes
12.1. If a dispute arises out of or relates to the Contract, or the breach, termination, validity or subject matter thereof, or as to any claim in tort, in equity or pursuant to any domestic or international statute or law, the parties to the Contract and the dispute shall endeavour in good faith to settle the dispute by mediation before having recourse to arbitration or litigation.
12.2. A party claiming that a dispute has arisen must give written notice to the other party or parties specifying the nature of the dispute (“Dispute Notice”).
12.3. On receipt of the Dispute Notice, the parties shall within 7 days of receipt of the Dispute Notice convene (by electronic means if required) to resolve the dispute in good faith (without being required to make concessions against their interest or act uncommercially) with a view to resolving the dispute as quickly as possible.
12.4. If the dispute is not resolved within 30 days or within such further period as the parties agree then the parties shall refer the dispute to mediation in accordance with the Mediation Rules of the Resolution Institute (WA Chapter) with the mediation to be held in Perth.
12.5. If the dispute is not resolved at mediation, either party may refer the dispute to be finally resolved by arbitration under the Arbitration Rules of the Resolution Institute (WA Chapter) with the arbitration to be held in Perth.
12.6. Subject to the rights of Parties under this Contract, the Parties shall otherwise continue to perform their respective obligations under this Contract pending the resolution of the dispute.

13. Trustee Companies
13.1. If the Customer at any time upon or subsequent to entering into this agreement is acting in the capacity of trustee of any trust (“Trust”) then whether or not SPFA may have notice of the Trust, the Customer covenants with SPFA as follows:
13.1.1. The agreement extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
13.1.2. The trustee is bound by the terms and conditions of this agreement and charges its freehold property which it holds as trustee, as trustee for the trust;
13.1.3. The trustee warrants that the trustee has authority and power to enter into this agreement with SPFA and to charge its land in accordance with the terms and conditions under the trust instrument and by operation of law;
13.1.4. The Customer will not without consent in writing of SPFA (with such consent not to be unreasonably withheld), cause, permit or suffer to happen any of the following events:
13.1.5. The removal, replacement or retirement of the Customer as trustee of the Trust;
13.1.6. Any alteration to or variation of the terms of the Trust;
13.1.7. Any advancement or distribution of capital of the Trust; or
13.1.8. Any resettlement of the trust property.

14. General
14.1. The Contract is the entire agreement between the parties about its subject matter and supersedes all other contracts, arrangements and understandings relating to the supply delivery of the Products.
14.1.1. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lockout, COVID-19, pandemic, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
14.1.2. The parties shall execute such further documents and do any and all such further things as may be reasonably necessary to implement and carry out the intent of this Contract.
14.2. 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.
14.3. If any provisions of these conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
14.3.1. The parties agree that the abovementioned terms and conditions shall be governed and construed in accordance with the laws of the State of Western Australia and the Customer and SPFA submit to the nonexclusive jurisdiction of the courts of that State.

Perth

Sydney

MELBOURNE

BRISBANE