JFC Australia Co Pty Ltd Terms and Conditions of Sale
1. Interpretation
In these terms, unless the context requires otherwise:
“Buyer” means the purchaser or proposed purchaser of Goods from the Seller; “Goods” means any products or things supplied or to be supplied by the Seller to the Buyer; “Order” means any order or request for Goods or Services; “PPSA” means the Personal Property Securities Act 2009 (Cth); “Seller” means JFC Australia Co Pty Ltd ACN 003 080 260 and its successors and assigns; and “Services” means anything other than Goods supplied or to be supplied by the Seller to the Buyer. b. In these terms, the singular includes the plural and vice versa. c. In the event that any provision of these terms is held to be void or otherwise invalid, that provision is to be severed from the remainder of these terms, which will otherwise remain of full force and effect. d. None of these terms are to be construed adversely against a party solely because the party was responsible for drafting the terms. e. The failure of the Seller to exercise any of its rights under these terms will not constitute a waiver of the right unless expressly stated so in writing.
2. Placement of Orders
a. Where the Buyer places an Order, it is an offer to acquire the Goods and Services the subject of the Order upon these terms, which offer the Seller may accept or reject at its absolute discretion. b. For the avoidance of doubt, the inclusion of any other proposed terms in any order or other document from the Buyer will not prevail over these terms unless the Seller expressly agrees so in writing. c. The Buyer warrants that all of its Orders are for business or investment purposes, and not personal, domestic or household use.
3. Delivery and Timing
a. The Seller will use reasonable endeavours to fulfil Orders (if accepted by the Seller) within the time requested by the Buyer or otherwise agreed, but unless expressly agreed in writing is not bound to deliver the Order (or all the Order) on such date. b. However, the Seller will not be liable for any loss, or otherwise pay any damages or compensation, in respect of the failure to deliver the Goods as due, unless the Seller was specifically notified in writing at the time of the Order being placed that the Goods were required by that due date, and the Seller then accepted the Order on that basis. c. The risk of any loss or damage in Goods will pass to the Buyer either upon delivery of the Goods to the Buyer, or upon their being given to any carrier or other person (other than the Seller) for transmission to the Buyer, whichever happens first.
4. Price and Payment
a. Unless otherwise stated, any prices stated by the Seller are exclusive of GST and delivery charges. b. Unless the Seller has agreed to grant credit to the Buyer, the Buyer must pay for any Order immediately before any Goods or Services are first due to be provided under it, or if there is no such time then immediately upon invoicing by the Seller. c. If the Seller has agreed to grant credit to the Buyer, then payment will be due in accordance with the terms of that credit as agreed in writing, or in the absence of such written agreement within 30 calendar days of the provision of the Goods or Services for which payment is to be made. d. Unless specifically agreed to the contrary in writing, any agreement by the Seller to grant credit to the Buyer may be withdrawn by the Seller at any time and at its absolute discretion in respect of Goods and Services not yet provided, in which case clause 4.b above will apply to them. e. Time is of the essence in respect of the Buyer’s payments. f. The Buyer must make payments to the Seller in full and without any set-off or deduction. However, the Seller may at its option set off amounts owed by the Buyer against any amounts that would otherwise be payable to the Buyer.
5. Retention of Title
a. Title and ownership to Goods remains with the Seller until the Buyer has paid all monies owed by it to the Seller on any account whatsoever. b. It is the responsibility of the Buyer to store its Goods in such a manner as to be able to ascertain for which it has made payment and which it has not. If it is at any time necessary to determine whether any such Goods have or have not been paid for, they are to be presumed not to have been paid for unless the Buyer can show otherwise. c. The Seller and its agents may enter onto any premises occupied by the Buyer to enforce or otherwise protect any rights the Seller has in respect of Goods, including any right of repossession that may arise. d. The Buyer may use or sell Goods in the ordinary course of its business, but not otherwise without the Seller’s written consent. e. The Seller’s rights in respect of the Goods will continue into any proceeds (as that term is used in the PPSA) of the Goods. Where any proceeds take the form of money, it is to be paid to the Seller. f. The Buyer waives its rights under sections 95, 118, 121(4), 123, 129(2), 129(3)(a), 130(1)(a), 132(3)(d), 135(1)(a), 142, and 143, and its right to receive notice of verification statements pursuant to section 157, of the PPSA.
6. Default
a. If the Buyer fails to make any payment to the Seller as due, the Seller may (in addition to any other rights it may have): i. Withhold any Goods or Services not yet provided to the Buyer while the failure remains unrectified (whether or not the failure to pay relates to those particular Goods or Services); ii. Take possession of any Goods that continue to be owned by the Seller (see clause 5 above); and iii. Unless the Buyer rectifies the non-payment within 2 business days of being required to do so, cancel any outstanding Orders of the Buyer, in which case the Buyer will be liable to the Seller for any loss caused by the cancellation. b. All amounts overdue to be paid to the Seller accrue interest at a rate of 2% per month, calculated daily and compounding on the first day of each calendar month. c. The Buyer is to indemnify the Seller in respect of all costs and expenses incurred (including collection agent costs, costs associated with repossessing Goods, and legal costs on a full indemnity basis) arising out of any failure to pay any amount due to the Seller as due, or otherwise arising out of any other breach of the Buyer’s obligations to the Seller or the enforcement of those obligations or the Seller’s rights in respect of them. d. By way of security for all obligations owed by it to the Seller, the Purchaser charges in favour of the Seller: i. all of its present and after-acquired property; and ii. all of its right, title and interest in any real property that it now or in the future owns, and consents to the Seller lodging a caveat or caveats in respect of this charge. e. A certificate signed by an authorised employee of the Seller as to an amount owed by the Buyer to the Seller, or that certain Goods have not been paid for, will be conclusive and binding in the absence of manifest error.
7. Warranties and Limitations on Liability
a. Each of the provisions of this clause 7 are to take effect to the maximum extent permitted by law, but for the avoidance of doubt do not limit or exclude any rights that cannot be limited or excluded by law, including any non-excludable rights under the Australian Consumer Law. b. The Seller makes no warranties as to the particular characteristics or fitness for any particular purpose of any Goods sold by it unless expressly agreed in writing otherwise. c. The Seller is not liable for any loss or damage suffered by the Buyer due to any breach of any obligation owed by the Seller to the Buyer resulting from any cause outside the reasonable control of the Seller (including, for example, due to the failure of third parties to supply to the Seller, or the imposition of governmental restrictions). d. Without limiting clause 7.c above, the Seller is not to be liable to the Buyer for any consequential loss or indirect loss, including loss of business or profits, resulting from any alleged breach of any obligation owed by the Seller to the Buyer however arising. e. Wherever permissible by law (including in the circumstances provided by section 64A of the Australian Consumer Law), the Seller’s liability for any breach of any guarantee or obligation is, at the Seller’s option, limited to the resupply of the relevant Goods (or equivalent goods) or Services or the payment of the cost of replacing the Goods or acquiring equivalent goods.
8. Governing Law and Courts
a. These terms, and any supply of Goods or Services, are to be governed and construed by the laws of the state of New South Wales. b. Any proceedings relating to or arising out of these terms or in any way connected to any dealings subject to these terms must be (if brought by the Buyer) or may be (if brought by the Seller) brought in: i. Either a federal court or a court of New South Wales (and the Buyer submits to jurisdiction accordingly); and ii. A registry of that court located within the Sydney metropolitan region (and the Buyer will not seek any transfer from such venue).
JFC Australia Co Pty Ltd – Guarantee and Indemnity
In consideration of JFC Australia Co Pty Ltd granting credit to the Buyer (as defined below) from time to time, each of the guarantors named below jointly and severally agree to the terms set out in this guarantee and indemnity.
1. In this guarantee and indemnity, unless the context requires otherwise: a. “Buyer” means the buyer identified above and, where this guarantee forms part of an application for credit, the applicant/s in that application – for the avoidance of doubt, if different persons are identified in those places, then this guarantee and indemnity is to operate in respect of all such identified persons. b. “Guarantors” means each of the persons identified below as guarantors. c. “Seller” means JFC Australia Co Pty Ltd ACN 003 080 260 and its successors and assigns. d. The singular includes the plural and vice versa.
2. The Guarantors guarantee to the Seller the due and punctual payment to it of all monies owed by the Buyer and the performance of all other obligations owed to the Seller by the Buyer on any account whatsoever.
3. The Guarantors indemnify the Seller against any losses or expenses it may incur due to: a. Any failure of the Buyer to comply with any of its obligations to the Seller, including as to the payment of money; b. The unenforceability against the Buyer of any obligation that would otherwise be owed by the Buyer in respect of an order placed by it, including by reason of any legal limitation, incapacity or disability, or any transaction or aspect of a transaction being void, voidable, or illegal; c. The avoidance of any payment to the Seller in connection with a liability owed by the Buyer to the Seller, regardless of the person by whom the payment was made or to whom the Seller is required to repay it – for the avoidance of doubt, this includes payments avoided as unfair preferences, and payments made by Guarantors whether under this guarantee and indemnity or otherwise.
4. To the greatest extent permissible by law, no fact, matter, or circumstance is to affect the enforceability of this guarantee and indemnity against the Guarantors. In particular, the obligations of the Guarantors are to be unaffected by: a. Any indulgence, leniency, extension of time, compromise, or release granted to the Buyer or another Guarantor; b. The release or impairment of any security; c. The increase, decrease, or disregarding of any credit limit requested by or granted to the Buyer; d. Any change of any nature in the terms upon which the Seller trades or deals with the Buyer; e. The enforceability or unenforceability of this guarantee against any other Guarantor or anticipated Guarantor (including by reason of the non-execution, or ineffective execution, of this guarantee and indemnity by that person, or the withdrawal or release of a Guarantor).
5. By way of security for all obligations owed by them to the Seller, the Guarantors charge in favour of the Seller all of their right, title and interest in any real property that they now or in the future own, and consent to the Seller lodging a caveat or caveats in respect of this charge.
6. A certificate signed by an authorised employee of the Seller as to an amount owed pursuant to this guarantee and indemnity will be conclusive and binding in the absence of manifest error.
7. Until the Seller is paid in full, the Guarantors will not exercise any right of subrogation to the Buyer or seek to exercise any rights in competition to the Seller.
8. The Guarantors will indemnify the Seller in respect of all costs and expenses incurred (including collection agent costs and legal costs on a full indemnity basis) arising out of any failure to pay any amount due to the Seller as due, or otherwise arising out of any other breach of the Guarantors’ obligations to the Seller or the enforcement or protection of the Seller’s rights in respect of such obligations.
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Definitions
Account means the account held at Your financial institution from which we are authorised to arrange for funds to be debited. Agreement means this Direct Debit Request Service Agreement between You and us. Banking day means a day other than a Saturday or a Sunday or a public holiday listed throughout Australia. Debit day means the day that payment by You to us is due. Debit payment means a particular transaction where a debit is made. Direct debit request means the Direct Debit Request between us and You. Us or we means JFC AUSTRALIA CO PTY LTD (the Debit User) You have authorised by requesting a Direct Debit Request. You means the customer who has signed or authorised by other means the Direct Debit Request. Your financial institution means the financial institution nominated by You on the DDR at which the account is maintained.