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TERMS AND CONDITIONS
The Applicant acknowledge that Wagma Engineering Pty Ltd (ACN 005 653 654) ATF Wagma Unit Trust (“Wagma”) is only prepared to supply the Applicant as described in the credit application on the following conditions (unless agreed in writing signed by a director of Wagma).
Wagma and its related bodies corporate (as that term is defined in the Corporations Act 2001 (C’th) are referred to in these terms and conditions as the Supplier.
Any company or natural person wishing to purchase goods from the Supplier under these terms and conditions is referred to in these terms and conditions as the Applicant.
TRUSTS AND PARTNERSHIPS
If the Applicant is a partnership, the Applicant warrants that it will not alter its partnership without first advising the Supplier and all partners whether or not named as parties, shall be jointly and severally liable with the Applicant.
If the Applicant is the trustee of a trust then the trustee shall be jointly and severally liable with the Applicant both in their capacity as trustee and in their personal capacity.
Deliveries of goods unless agreed otherwise in writing by the Supplier, must be paid for within 30 days of the date of invoice. The Supplier may at any time and in its absolute discretion, vary the terms of trade.
Where credit has not been granted or when a stop is placed on an existing account then terms are strictly
cash on delivery (“COD”).
Should the Applicant not pay for the goods or services supplied by the Supplier in accordance with these
terms and conditions or as agreed in writing with the Supplier then the Supplier will be entitled to charge an administration fee of 10% per annum of the invoiced amount or part thereof from the date that the goods were delivered or the services were supplied until payment in full has been received from the Applicant.
These terms and conditions are subject to the laws of the State of Victoria and to the exclusive jurisdiction of the Courts of that State. Notwithstanding the location of the Applicant, the parties acknowledge and agree that this contract arises in Boronia, in the State of Victoria.
The Applicant charges in favour of the Supplier all estate and interest in any real property that the Applicant owns at present and in the future with the amount of indebtedness hereunder until discharged.
The Applicant charges in favour of the Supplier all estate and interest in any personal property that the Applicant owns at present and in the future with the amount of indebtedness hereunder until discharged.
The Applicant appoints as its duly constituted attorney the Suppliers company secretary from time to time to execute in the Applicant’s name and real property mortgage, bill of sale or consent to caveat which the Supplier may choose to lodge against real property owned by the Applicant in any State or Territory of Australia even if the Applicant has not defaulted in carrying out its obligations under these terms and conditions.
Any charge, mortgage or security over real or personal property interest which the Applicant has previously entered into in favour of the Supplier will continue and co-exist with the obligations and security interests created under these terms and conditions. The Supplier in its absolute and sole discretion may vary the terms of any previous charges, mortgages or other securities to reflect the terms contained within these terms and conditions.
11. The Supplier is under no continuing obligation to provide goods on credit.
The Applicant authorises the Supplier to contact any trade reference and or credit agency and or banker and direct any such person to provide the Supplier with all information held by them concerning the Applicants finances.
The Applicant acknowledges and agrees that any credit provided by the Supplier to the Applicant is for commercial purposes only.
The Supplier may issue a certificate concerning the amount owing by the Applicant and when payment is or was due and that certificate shall be prima facie evidence of its contents.
The Supplier reserves the right to withdraw credit at any time regardless as to whether the Applicant is in default under these terms and conditions.
Upon cancellation with or without notice, all liabilities incurred by the Applicant become immediately due and payable to the Supplier.
The Applicant will provide the Supplier with further information for the purpose of assessing the Applicant’s creditworthiness at any time if requested to do so by the Supplier.
When the Applicant places an order with the Supplier, the Applicant is making an offer to the Supplier. The offer may be accepted by the Supplier by the Supplier sending the Applicant a written confirmation of acceptance of the order or by sending the Applicant part or all of the ordered stock or products (whichever is the earlier).
The Supplier reserves the right to refuse to accept any order for any reason.
Until payment of the entire sum payable by the Applicant, the Applicant shall have no ownership of or property or title in the goods and shall hold the goods as bailee for the Supplier. The Applicant must keep the goods subject to this clause 20 separate from other goods received by the Applicant and mark the products as being the property of the Supplier until title passes. Any monies received from the sale of products subject to this clause 20 must be held separate from other monies and must be held for the Supplier’s benefit and paid to the Supplier until the debt is paid in full. The Applicant acknowledges and agree that if they fail to make complete and timely payment for the goods, the Supplier or its representatives can enter the premises where the products are located without prior notice and at the Supplier’s absolute discretion take possession of those goods without liabilities for conversion, trespass or otherwise.
The Applicant further agrees that the Supplier will have a lien over all of the Applicant’s goods or materials or other property that belong or are owned by the Applicant but that are in the Suppliers possession and that the Supplier shall be entitled, upon the expiration of 14 days’ notice to the Applicant, to dispose of such goods or materials or property and apply the proceeds in satisfaction of the unpaid debts.
The Applicant will be responsible for the Supplier’s costs and expenses in exercising its rights under clause 20.
The Applicant acknowledges and agrees that the Supplier’s interest under clause 18 constitutes a “purchase money security interest” for the purposes of the Personal Property Securities Act 2009” (“PPSA”).
The Applicant acknowledges and agrees that they expressly waiver any rights that they may have under the PPSA until ownership of the goods has passed to the Applicant. These rights under the PPSA include; (a) under section 95 to receive notice of removal of accession;
(b) under section 118 to receive notice that the Supplier intends to enforce its security interest in accordance with land law decisions;
(c) under section 121(4) to receive a notice of enforcement action against liquid assets;
(d) under section 129 to receive a notice of disposal of goods by the Supplier purchasing the goods;
(e) under section 130 to receive a notice of disposal of goods;
(f) under section 132(2) to receive a statement of account following disposal of goods;
(g) under section132(4) to receive a statement of account every 6 months if the goods have not been disposed of;
(h) under section135 to receive notice of any proposal by the Supplier to retain the goods;
(i) under section 137(2) to object to any proposal of the Suppliers to retain or dispose of the goods;
(j) under section 142 to redeem the goods;
(k) under section 143 to reinstate the security agreement;
(l) under section 157(1) and 157(3) to receive a notice of any verification statement.
At the Supplier’s request, the Applicant will execute all documents and do all things necessary for the Supplier to register the security interest granted by the Applicant under the PPSA.
The Applicant agrees to accept service of any documents required to be served and including any documents required to be served under the PPSA or originating processes by prepaid post to the address the Applicant has nominated in its Credit Application Form or any address the Applicant subsequently notifies the Supplier of.
The Applicant agrees that any and all rights that the Supplier has, which are in addition to the Supplier’s rights under Part 4 of the PPSA, will continue to apply.
The Applicant agrees that should the Supplier exercise its rights under sections 13 and or 128 of the PPSA, the Applicant will indemnify the Supplier against any and all claims made by any third party as a result of the Supplier exercising such rights.
The Applicant consents to the Supplier recording the details of this agreement on the Personal Property Security Register and the Applicant agrees to do all things necessary for the Supplier to effect such registration.
The Applicant waives all rights and entitlement to receive notification of the registration of any security interest or interests created by any agreement it enters into with the Supplier for the supply of goods to the Applicant on the Personal Property Security Register.
Notwithstanding that title in the goods may not have passed, risk passes to the Applicant immediately upon delivery.
The Suppliers liability for any loss, injury or damage attributable thereto is limited to making good by exchange or repair, any defects which appear therein under proper use provided that such defective parts be returned free into the Suppliers premises, or by issue of a full credit of the purchase price at the Suppliers discretion.
The Applicant agrees to indemnify the Supplier for all losses and claims for, or in respect of, injury or damage to any person or in connection with, the Suppliers goods or the use of those goods or any defects in or failure of the goods to function.
The Supplier shall not be liable for any loss of profits or consequential loss, injury or damage suffered by the Applicant as a consequence of any defect in the goods supplied to the Applicant by the Supplier.
Any complaint concerning damage, short delivery, loss in transit or defect must be made to the Supplier within ten working days of the Applicant’s receipt of the invoice for that delivery or the receipt of the goods which ever occurs later. If the complaint is not made within that time then the Applicant loses any right which the Applicant may have had in respect of that complaint.
Any goods which are returned to the Supplier for any reason shall be returned at the Applicant’s cost.
The Supplier has the discretion to repair or replace any goods the subject of a complaint or to refund or
credit the purchase price.
The Applicant acknowledges and agrees that it will accept any and all short orders delivered by the Supplier.
The Applicant acknowledges and agrees that it will accept deliveries from the Supplier of goods that are
substantially similar to those which have been ordered.
The Suppliers liability for a breach of a condition or warranty (including as implied by the Competition and
Consumer Act 2010 (C’th)) is limited to:
the replacement of the Goods or the supply of equivalent Goods;
the repair of the Goods;
the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
the payment of the cost of having the Goods repaired.
In no event will the Suppliers liability exceed $500.00
The Applicant, if it is a corporation other than a publically listed corporation, must advise the Supplier of any alteration to its corporate structure.
A waiver or breach of any provision of these terms and conditions by the Supplier must be made in writing by an authorised officer of the Supplier. A waiver or breach of any provision of these terms and conditions by the Applicant must be made in writing by an authorised officer of the Applicant.
The Applicant must pay all costs on an “indemnity” basis incurred by the Supplier as a result of any default by the Applicant.
Any costs incurred by the Supplier in pursuing any recovery action or other claim or remedy against the Applicant including collection costs, debt recovery fees and legal costs must be borne by the Applicant on a full indemnity basis. These costs will be due and payable by the Applicant to the Supplier regardless of the outcome of any recovery action, claim or remedy.
It is acknowledged and agreed by the Applicant that payments by the Applicant will be applied by the Supplier in the following order
in payment of any and all costs and legal costs;
in payment of any interest; and
in payment of outstanding invoices.
TAXES AND DUTIES
The Applicant will pay GST on any taxable supply made by the Supplier under these terms and conditions. This payment of GST is in addition to any other consideration payable by the Applicant for a taxable supply.
Should the Supplier, as a result of any legislative changes or legislation becoming applicable to this agreement, become liable to pay any tax, duty, excise or levy in respect of the amounts received by the Applicant, then the Applicant must pay to the Supplier these additional amounts upon demand by the
The applicable interest rate on any outstanding debt is 4% above the rate approved from time to time
pursuant to section 2 of the Penalty Interest Rates Act 1983 (Vic) calculated daily from the date of delivery of the goods.
Any and all payments required to be made by the Applicant under these terms and conditions must be made free from any set off or counterclaim and without deduction or withholding.
The Supplier reserves the right to set off any monies which it may owe to the Applicant from monies owed by the Applicant to the Supplier.
If for any reason beyond the Suppliers control (including without limitation as a result of any strike, war, terrorist attack, trade dispute, fire, tempest, theft or breakdown), goods cannot be delivered to the Applicant as agreed in these terms and conditions, then the Supplier shall be entitled to cancel the order and the Applicant shall not have any claim against the Supplier for loss, damages, costs or expenses arising out of such cancellation. The cancellation of an order is without prejudice to the Suppliers rights to recover all sums owing to the Supplier in respect of deliveries made or goods provided prior to the date of such cancellation.
Nothing in these terms and conditions shall be read or implied to exclude restrict or modify or have the effect or excluding restricting or modifying the application of in relation to the supply of goods pursuant to this agreement any provisions of the Competition and Consumer Act 2010 (C’th) or any relevant State or Federal legislation which by law cannot be excluded restricted or modified.
To the extent permitted by law, all warranties whether expressed or implied and whether statutory or otherwise with regard to the goods supplied by the Supplier as to quality, fitness for purpose or any other matter are hereby excluded.
If any part of these terms and conditions is invalid or unenforceable then that part is to be severed and the remainder of the terms and conditions remain.
56. The Applicant agrees that these terms and conditions may be varied from time to time by an authorised officer of the Supplier.