10
invoice for the supply shall be the date of the invoice.
Payment
14. (1) The purchase price in relation to the Goods and the cost of the service shall be payable
without deduction and or set off and payment thereof shall be made on or before the
thirteenth day of the month following the delivery of the Goods or performance of the
services unless other terms of payment are expressly stated in writing.
(2) A decreasing or increasing adjustment and or the issuing of an adjustment note, pursuant
to Division 21 and Division 29-C of the GST Act, shall not, in any way, constitute a release,
waiver, and or forgiveness of the debt incurred by the Purchaser.
Interest on overdue payments
15. If Goldacres is not paid for any Goods or services on the due date specified in this
agreement without prejudice to any other right or remedy, all outstanding money shall bear
interest at the rate set, pursuant to the Penalty Interest Rates Act, Victoria, 1986, as such
money, together with interest shall be recoverable forthwith from the Purchaser.
Rights in relation to Goods.
16. (1) At all times until the Debts have been paid in full the Purchaser shall be responsible
for any loss or damage occasioned to the supplied Goods howsoever occasioned on a
strict liability basis and shall indemnify Goldacres against any such loss or damage and
shall insure and keep insured the Goods in the name of both the purchaser and Goldacres
against such loss or damage to the full extent of the purchase price and shall provide a
copy of such Insurance Policy to Goldacres.
(2) The Purchaser shall have the right to resell Goods but only as fiduciary agent and trustee
for Goldacres by way of bona fide sale at full market value and in the ordinary course of its
business.
(3) Until all the Debts have been paid in full:
(a) the Purchaser shall take custody of the Goods as trustee, fiduciary agent and bailee for
Goldacres;
(b) the Purchaser shall keep the Goods separate from any other goods and properly marked,
stored, protected and insured;
(c) the Purchaser must hold all of the money it receives (“Proceeds”):
(i) from the sale of any property into which Goods supplied have been incorporated; and
(ii) from the sale of Goods or provision of services including the Goods supplied by the
Goldacres as bailee, fiduciary agent and trustee for Goldacres, but the Purchaser need
not hold on trust any money exceeding the amount of the Debts at the time the money is
received.
(d) The Purchaser expressly acknowledges that it is bound by the fiduciary obligation created
in the preceding paragraph and acknowledges that:
(i) it must hold the Proceeds on trust for Goldacres;
(ii) it must place the whole of the Proceeds in an account separate from its own moneys (the
“Proceeds Account”);
(iii) it must maintain the Proceeds Account separate from its own moneys at all times.
(iv) it must maintain proper records for the Proceeds Account.
(v) it must not assign or encumber any book debts arising from sales made in circumstances
set out in clauses 16(c)(i) and (ii) or do any other act in derogation of Goldacres’ legal or
beneficial interests; and
(vi) it must account to Goldacres on demand for all moneys standing to the credit of such
account.
(e) For the purposes of identification of different consignments of Goods purchased from
Goldacres and receipt of Proceeds, the Purchaser agrees that the principle of “Last In,
First Out” shall be applied to any items that cannot be distinguished.
(f) Goldacres may trace the Proceeds in equity.
(4) Goldacres may at any time, without notice to the Purchaser and without prejudice to any
other rights which it may have against the Purchaser, terminate any contract connected
with the Goods and the bailment referred to in clause 16(3) and enter upon any premises
owned or occupied by the Purchaser where Goldacres reasonably believes the Goods
may be stored, and repossess the Goods without liability for any damaged caused, and
subsequently dispose of the Goods at Goldacres’s discretion if:
(a) the Debts are not paid in accordance with these terms and conditions or any other
contract or arrangement between Goldacres and the Purchaser; or
(b) Goldacres receives notice of or reasonably believes that:
(i) a third person may attempt to levy execution against the Goods; or
(ii) the Purchaser is insolvent (within the meaning of the Corporations Act 2001) or bankrupt;
or
(iii) the Purchaser has entered into any arrangement or composition with its creditors, gone
into liquidation, or has appointed a receiver, a receiver and manager or administrator.
(5) If after repossession under clause 16(4) Goldacres sells the Goods, Goldacres shall
account to the Purchaser for any proceeds of sale (less expenses of repossession and
sale) that exceeds the amount of the outstanding Debts.
(6) If any Goods belonging to Goldacres are disposed of by the Purchaser or an insurance
claim is made in respect of them, Goldacres shall be entitled to trace the sale or insurance
proceeds, which proceeds shall be held by the Purchaser in a separate bank account on
trust for Goldacres.
(7) The Purchaser agrees and acknowledges that in the event it sells Goods to a third party
on account, it will include in its terms and conditions of sale a provision under which the
Purchaser retains title to the Goods until such time that the total amount due in respect
of the Goods and all monies owing to the Purchaser have been paid in full by that third
party debtor. The Purchaser also agrees and acknowledges that in these instances, it
will register its PMSI in accordance with the PPSA in respect of its security interest in the
Goods.
PPSA provisions
17. (1) The Purchaser acknowledges that these terms and conditions constitute a security
agreement for the purposes of section 20 of the PPSA and that a security interest exists in
all Goods (and any associated Proceeds from their sale) previously supplied by Goldacres
to the Purchaser (if any) and in all in future Goods (and any associated Proceeds from their
sale) that may be supplied to the Purchaser by Goldacres.
(2) The Purchaser acknowledges that Goldacres has a first ranking purchase money security
interest (“PMSI”) (as defined in section 14 of the PPSA) in the Goods and the Purchaser
must not jeopardise such ranking (whether by act or omission).
(3) The Purchaser acknowledges that it has received value as at the date of first delivery of the
Goods and has not agreed to postpone the time for attachment of the security interest (as
defined in the PPSA) granted to Goldacres under these terms and conditions.
(4) The Purchaser will execute documents and do such further acts as may be required by
Goldacres to register the security interest granted to Goldacres under these terms and
conditions under the PPSA.
(5) Until ownership of the Goods passes, the Purchaser must not give to Goldacres a written
demand or allow any other person to give Goldacres a written demand requiring Goldacres
to register a financing change statement under the PPSA in respect of Goldacres’s interest
in the Goods.
(6) The Purchaser must indemnify Goldacres and on demand reimburse Goldacres for all
costs and expenses incurred by Goldacres in respect of these terms and conditions
including but not limited to Goldacres registering its security interest in the Goods, lodging,
discharging or amending any financing statement or financing change statement, or
otherwise complying with the PPSA.
(7) The Purchaser agrees (other than as provided in these terms and conditions) not to sell,
lease, mortgage, deal with, dispose of or create or attempt to create any other security
interest in or affecting the Goods unless and until the Purchaser’s Debts have been
satisfied.
(8) The Purchaser waives its rights under the following provisions of Chapter 4 of the PPSA:
(a) to receive a notice on enforcement action against liquid assets (section 121(4),
(b) to receive a notice to seize collateral (section 123);
(c) to receive a notice of disposal of Goods by Goldacres purchasing the Goods (section 129);
(d) to receive a notice to dispose of Goods (section 130);
(e) to receive a statement of account following disposal of Goods (section 132(2));
(f) to receive a statement of account if no disposal of Goods for each 6 month period (section
132(4));
(g) to receive notice of any proposal of Goldacres to retain Goods (section 135(2));
(h) to object to any proposal of Goldacres to either retain or dispose of Goods (section 137(2));
(i) to redeem the Goods (section 142);
(j) to reinstate the security agreement (section 143);
(k) to receive a notice of any verification statement (section 157(1) and section 157(3);
(9) The rights Goldacres may have under the PPSA are supplementary and in addition to those
set out in these terms and conditions and do not derogate from the rights and remedies of
Goldacres under these terms and conditions or under any other statute or under general
law.
(10) The Purchaser must give 10 business days prior written notice of any proposed change in
the Purchaser’s name or other identifying characteristics and details.
Purchasers property
18. Any property of the Purchaser under Goldacres’s custody or control shall be entirely at the
Purchaser’s risk as regards loss or damage caused to the property or by it.
Storage
19. Goldacres reserves the right to make a reasonable charge for storage if delivery
instructions are not provided by the Purchaser within (14) fourteen days of a request by
Goldacres for such information.
Returned Goods
20. Goldacres shall not be under any obligation to accept Goods returned by the Purchaser
and will do so only on terms to be agreed in writing in each individual case.
Goods sold
21. All Goods to be supplied by Goldacres shall be described on the purchase order agreed
by Goldacres and the Purchaser and the description on such purchase order modified as
so agreed shall prevail over other descriptions including any Purchaser’s specification or
enquiry.
Cancellation
22. No order may be cancelled except with the consent in writing and on terms, which will
indemnify Goldacres against all losses.
No waiver
23. The failure of any party to enforce the provisions of these terms and conditions or to
exercise any rights expressed in these terms and conditions shall not be a waiver of such
provisions or rights and shall not affect the enforcement of this agreement. The exercise
by any party of any of its rights expressed in this agreement shall not preclude or prejudice
such party from exercising the same or any other rights it may have irrespective of any
previous action taken by that party.
Force Majeure
24. If by reason of any fact, circumstance, matter or thing beyond the reasonable control
of Goldacres is unable to perform in whole or in part any obligation under these terms
and conditions then Goldacres shall be relieved of that obligation under these terms and
conditions to the extent and for the period that it is so unable to perform and shall not be
liable to the Purchaser in respect of such inability.
Passing of risk
25. Risk in the Goods shall pass to the Purchaser upon delivery of the Goods to the Purchaser
or collection of the Goods by the Purchaser’s agent or carrier as the case may be.
Exclusion of liability
26. To the extent permitted by law Goldacres shall not be liable to the Purchaser in contract
or in tort arising out of, or in connection with, or relating to, the performance of the Goods
or any breach of these conditions or any fact, matter or thing relating to the Goods or
error (whether or not it is negligent or a breach of contract) in information supplied to
the Purchaser or a user before or after the date of the Purchaser’s or user’s use of the
Goods and Goldacres shall be under no liability for damages arising out of the use of any
chemicals, liquids, or mixtures in the Goods, nor for any application, not for the application
methods nor for the environmental effects, which may result therefrom or from the use of
the Goods.
Exclusion of representations and arrangements
27. To the extent permitted by law the terms and conditions supersede and exclude all prior
and other discussions, representations (contractual or otherwise) and arrangements
relating to the supply of the Goods or any part thereof including, but without limiting the
generality of the foregoing, those relating to the performance of the Goods or any part
thereof or the results that ought to be expected from using the Goods.
Place of contract
28. The contract for sale of the Goods and the provision of the services is made in the State
of Victoria and the Purchaser agrees to submit all disputes arising with Goldacres to the
courts of such State and any court competent to hear appeals therefrom.