Terms & Conditions
General Terms & Conditions of Sale and Security Agreement
ARA MANUFACTURE PTY LTD:
ABN: 61 096 667 588
The Commercial Credit Application and Security Act agreement constitutes a security agreement pursuant to
the Personal Property Security Act (PPSA).
The Company reserves the right to refuse credit, suspend or withdraw credit facilities at any time without explanation or notice.
In consideration of the Company providing the facilities of a commercial credit trading account (and not for private use or purpose) the Customer agrees to be bound by and adhere to the General Terms and Conditions of Sale and Security Agreement (the receipt of a copy of which is hereby acknowledged) and the Customer full understands that those terms and conditions include:
- Retention of title provisions;
- The right to require immediate payment of any amount owing, notwithstanding any previous indulgences;
- Rights to recover interest, and collection and other expenses, in default of payment;
- Terms limiting the liability of the Company for damages, and giving the Company the right to nominate the Court in which any legal proceedings may be instituted and prosecuted; and
- The grant of a security in all and any sale of Goods under this agreement which the Company may register on the Personal Property Securities Register.
‘Company’ means ARA Manufacture Pty Ltd ACN 096 667 588 trading as Sealeck Doors and Windows, Monarch & Renlita Overhead Doors
‘Customer’ means the customer identified in the Commercial Credit Account Application & Security Agreement.
‘Contract’ means all contract entered into between ARA Manufacture Pty Ltd ACN 096 667 588 and the Customer.
‘Collateral’ and/or ‘Goods’ means goods and/or services supplied by the Company to the Customer or ordered by the Customer but not yet supplied and includes goods described in this contract and on any quotation, invoice, purchase order or any other document including any recommendations and advice and over which the Company may intent to register a security interest.
‘Price’ means either:
- the cost of Goods as specifically agreed between the Company and the Customer; or
- In the absence of any prior agreement, as set by the Company and shall be subject to change from time to time without notice.
2.1 The Terms and Conditions of Sale and Security Agreement shall apply in relation to all sales of Goods by the Company to the Customer and to all orders placed with the Company.
2.2 The Customer acknowledges and agrees that these General Terms and Conditions of Sale and Security Agreement take precedence over any Terms and Conditions which may be contained in any document provided by the Customer.
2.3 No person acting or purporting to act on the Company’s behalf has the authority to make any promise, representation or undertaking or to add to or change in any way these General Terms and Conditions of Sale and Security Agreement except expressly in writing.
2.4 These Terms and Conditions are in addition to and in no way are intended to limit, vary or exclude any rights conferred by the conditions and warranties implied by the Competition and Consumer Act 2010 or by any similar legislation of a State or Territory in Australia which prohibits such limitation, variation or exclusion.
2.5 The Company may vary these Terms and Conditions, including any Credit Limits set by the Company, may be amended or superseded from time to time by notice given to the Company by any means. Unless or except specifically excluded herein, the Company retains any rights and remedies available in any prior or pre-existing agreement.
2.6 Prices are subject to change without notice.
2.7 Any request from the Customer to the Company for the supply of Goods shall constitute acceptance of these General Terms and Conditions of Sale and Security Agreement.
2.8 The Customer acknowledges that where the Customer consists of more than one party or entity, liability shall be joint and several.
2.9 Unless or except specifically excluded herein, the Company and the Customer retain any rights and remedies available to them in any prior or pre-existing Agreement.
2.10 The Customer hereby charges in favour of the Company all its estate and interest in any lands and in any other assets, whether tangible or intangible, freehold or leasehold, in which it now has any legal or beneficial interest or in which it later acquires any such interest with payment of all monies owed by the Customer and consents to the lodging by the Company of a caveat or caveats which note its interest in or over any such land or other caveatable property.
2.11 Clerical errors are subject to correction and do not bind the Company.
2.12 The Customer’s rights under these General Terms and Conditions of Sale and Security Agreement are not assignable or transferrable.
Trade prices do not include GST. The Company will charge GST at the rate set by the Government in respect of any supply made to the customer.
Any quotations provided by the Company remain open for acceptance for a period of 30 days from the date of quotation. After this time this quotation is voidable at the option of the Company which may in its absolute discretion determine this quotation and subsequently revise the price or any other of the conditions so quoted.
5.0 Personal Property Securities Act 2009 (PPSA)
5.1 Where a Commercial Credit Account has been approved, the Customer grants that the Company may register, on the Personal Property security Register, a security interest in all and any sale of goods and/or services under this agreement including all present and after-acquired property.
5.2 The Customer warrants that all purchases under this agreement are for commercial purposes only and accordingly the Consumer Credit Act will not apply.
5.3 The Customer and the company agree to contract-out of the PPSA in accordance with section 115 to the extent that the section applies for the benefit of, and does not impose a burden on, the Company. The customer waives its right to receive a copy of any Financing statement or any financing Charge Statement registered by the Company in respect of the security interest crated by these Terms and Conditions.
5.4 The Customer agrees to execute any documents, provide all relevant information and co-operate fully with the Company to ensure that the Company has a perfect security interest in the personal property charged and, if applicable, a Purchase Money Security Interest (PMSI).
5.5 The Customer waives its right to receive a notice of a verification statement in relation to a registration by the Company on the register.
5.6 If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising in connection with these terms, the Customer agrees that the following provisions of the PPSA will not apply to the enforcement of these terms:
5.6.1. section 95: Notice of removal of accession – to the extent that it requires the Company to give notice to the Customer;
5.6.2. section 96: When a person with an interest in the whole may retain an accession;
5.6.3 section 121(4): Enforcement of liquid assets – notice to grantor;
5.6.4. section 125: Obligation not dispose of or retain collateral;
5.6.5. section 130: Notice of disposal to the extent that it requires the Company to give notice to the Customer;
5.6.6. section 132(3)(d): Contents of statement of account after disposal;
5.6.7. section 132(4): Statement of account if no disposal;
5.6.8. section 134(1): Retention of collateral;
5.6.9. section 135: Notice of retention;
5.6.10. section 142: Redemption of collateral; and
5.6.11. section 143: Reinstatement of security agreement.
5.7 The Company agrees with the Customer not to disclose information of the kind mentioned in s275(1) of the PPSA except in circumstances required by s275(b)-(e).
5.8 The Customer agrees that, until all monies owing to the Company are paid in full, it shall not sell or grant any other security interest in the collateral.
5.9 You agree to reimburse the Company, upon demand, for all costs and/or expenses incurred or payable by us in relation to registering or maintaining any financing statement, releasing in whole or in part the Company’s security interest of any other document in respect of any security interest.
6.1 Payment shall be made by the Customer within 30 days from invoice.
6.2 Interest will be charged on overdue amounts at the rate of 2% per month or part thereof.
6.3 Legal and/or collection agency costs of recovery of any overdue amounts shall be recoverable by the Company as a debt due by the Customer.
6.4 The Customer shall be liable for, and expressly undertakes to pay all fees (including an Administration Fee in an amount to be set from time to time by the Company) for all costs incurred as a result of any cheque or electronic banking transaction being dishonoured for whatever reason.
6.5 Any Legal action taken for enforcement of recovery of monies may be taken out under the jurisdiction of a court in the State of South Australia.
7.0 Delivery and Risk
7.1 Delivery shall be made by the Company at the Customer’s expense to the Customer’s premises or in accordance with the Customer’s instruction by such transport at the Company’s discretion.
7.2 Risk shall pass to the Customer on delivery of the Goods not withstanding that property shall remain with the Company until those goods are paid for.
7.3 Insurance against all risks whatsoever shall be maintained by the Customer from the time of delivery.
7.4 The Company shall not be liable for any loss or damage, including consequential loss or damage, arising from delay in delivery or failure to deliver goods, either whole or in part.
8.1 Where the Company agrees to install Goods at any premises (the ‘premises’) the following conditions shall apply:
8.1.1 The Customer will provide reasonable access for the Company, its servants, agents and subcontractors to the premises during the period of installation as may be agreed by the parties to enable the Company to carry out its obligations. The Customer will also provide at its own expense, connection for electricity and any other similar services required by the Company for the installation of the Goods.
8.1.2 the Company will be under no liability or responsibility for any loss, damage or expense howsoever incurred by the Customer
As a result of:
(i) any failure or delay by the Company in performing any of its obligations under the contract due to any reason
(ii) any prohibitions or restrictions under any applicable statutes, bylaws or regulations.
8.1.3 Any existing defect discovered by the Company in the course of installation shall be the responsibility of the Customer and the company shall be the sole judge in respect of determining what remedial action is required. The Company may terminate any contract if the remedial action is not completed or taken as instructed, and within the time specified, by the Company without prejudice to its existing rights. Any additional expense incurred by the Company with be the responsibility of the Customer.
9.0 Fitness for Purpose
9.1 The Customer agrees that the Company shall not be liable for any:
9.1.1 Representation, promise or undertaking regarding the fitness or otherwise of Goods supplied by the Company unless it is made in writing or implied by law.
9.1.2 failure by the Customer to fix, install, erect, or maintain the Goods in accordance with any advice, recommendation, specification, information, assistance or service provided by the Company in relation to Goods sold or manufactured by it.
10.0 Material Supply
10.1 Where the Customer orders a particular brand of product, the Company may in its absolute discretion supply another product with identical or similar properties to that which was ordered (‘’the Equivalent’’) and the Customer will be obliged to accept and pay for the Equivalent as if the ordered brand of product had been supplied, the Company will not be under any obligation to notify the purchaser or such occurrence, and purchasers should note that the use of colour names in any Company document indicate no more than the colour or product supplied or its equivalency. This term will not apply if, and only if, the Customer has given notice in writing to the Company stating that the Customer is only prepared to accept products bearing the brands or trademarks specified in its orders.
11.1 The Customer shall inspect the goods upon delivery and will, within 48 hours, notify the Company or any defects, short delivery or any failure to fulfil any order.
11.2 The Customer will, within a reasonable time following delivery, grant the Company access to the goods in order to inspect for any alleged defects.
11.3 Should the Customer fail to notify the Company within the specified period then the goods shall be deemed to be in compliance with the order and free from any defect whatsoever.
12.0 Default of the Customer
12.1 If the Customer makes a default in any payment, commits any act of bankruptcy, has liens placed on a project or assets frozen or restrained, or becomes subject to any form of external administration or an application for any form of external administration is made, the Company may at its option withhold further deliveries or cancel the contract without prejudice to its rights thereunder. Where such a default occurs this shall not in any way prejudice the right of the Company to recover any amounts due for materials previously supplied, or manufactured to the Customer’s Requirements.
13.1 Any Legal action taken for enforcement of recovery of monies may be taken out under the jurisdiction of a court in the State of South Australia.
14.1 No claim by the Customer for poor workmanship or failure to supply products conforming to the Customer’s orders shall be recognised by the company unless made in writing to the Company within 14 days after delivery of the Goods to the Customer. No claim involving labour charges or product replacement will be recognised by the Company unless the Company’s agreement to the value of such claim is obtained immediately such a problem becomes evident and the Customer has demonstrated that he has taken all the possible action to minimise the effect of such a claim and the Company has been given sufficient time to investigate and take such action it feels necessary to resolve the problem. No claims will be recognised by the Company relating to materials which have been fixed unless in the Company’s view the problem could not have been detected during the fixing process. Claims for lost time or waiting time will not be approved by the Company. No claim will be recognised by the Company for any loss, damage or injury of any kind whatsoever, arising directly or indirectly from the Customer’s failure to obtain independent professional and/or tradesman’s advice in relation to the suitability of the Goods for any specific purpose. The Company shall not be liable to the Customer for any loss of profits or consequential, indirect or special loss, damage or injury of any kind whatsoever, arising directly or indirectly from any defect in the Goods or their installation (regardless of any express or implied terms, or by reason of the Company’s negligent act or omission or otherwise at common law).
15.0 Returned Goods
15.1 Stock items only may be returned for credit within 30 days from date of delivery if they are in prime condition, and will be subject to a handling fee of 15%. The invoice number and delivery date must be quoted upon return. Goods will not be accepted for credit after 30 days from date of delivery. If specifically manufactured to the Customer’s requirements, Goods may not be returned for credit.
16.1 The Company reserves the right to sub-contract the manufacture and/or supply of any part of the Goods quoted or of any materials or services to be supplied.
17.0 Property in Goods
17.1 The legal and equitable title to and property in Goods will not pass to the Customer until payment in full has been made by the Customer to the Company for all Goods delivered to the Customer by the Company.
Until payment has been made in full and property passes in accordance with 17.1:
17.2 The Customer shall hold all Goods as bailee and as fiduciary of the Company and shall securely shore same separately from the Customers other goods so as to clearly identify the Goods as the Company’s.
17.3 The Customer is authorised to sell the Goods but shall hold the book debt and the proceeds of sale on trust for the Company and shall account to the Company for any overdue amount from the proceeds thereof, and the customer, acknowledges that the Company may collect the book debt arising from such sale as the Company remains the beneficial owner of the book debt at all times.
17.4 The customer’s right to possession of the Goods shall cease if the Customer:
17.4.1 fails to make payments of any outstanding amount due to the Company;
17.4.2 commits an act of bankruptcy or is declared insolvent or if a Company, the Customer does or omits to do anything which entitles the Customer or any person to appoint an external administrator pursuant to any Part of Chapter 5 of the Corporation Law; or
17.4.3 enters into some arrangement or assignment for the benefit or creditors; The Company shall be entitled to require the Customer to return all unpaid Goods failing which the Company is irrevocably authorised to enter the Customer’s premises to repossess the Goods without notice.
The company is entitled to claim a general Lien on all goods belonging to the customer for all amounts owing to the Company by the Customer.
19.0 Warranty and Damages
19.1 Standard Warranty imposed by statue law only applies with all other conditions, warranties and representation on the part of the Company expressly excluded.
19.2 Damages for the breach of any warranty shall be limited to replacement or repair of the Goods of the cost of same only, at the Company’s discretion, and shall not extend to any consequential damages whatsoever.
19.3 The Company’s products are manufactured from steel or other materials which have been purchased to appropriate specification and which are expected to display the mechanical and chemical properties embodied in the material specification. The Company accepts no liability for its products which are proven to be defective by virtue of the steel or other materials which have been purchased failing to contain the mechanical and chemical properties embodied in the material specification.
20.0 Privacy Statement and Policy
21.0 Personal Information Collected by ARA Manufacture
21.1 The Company collects and holds personal information principally to provide individuals with the Company’s products and services. Information Collected could include an individual’s name, contact and e-mail address, telephone and facsimile numbers, date of birth, licence details and other Information necessary to establish a trading relationship. This can include opinions and/or references.
22.0 Purpose of Collection
22.1 The Company collects personal information in order to provide its products and services as well as managing and administering the products and services provided. The information collected is to identify the individual, the products and services that the Company is to provide, and where Requested to assess an application for credit and to monitor any such credit facility provided, and where necessary to assist in the recovery of any Debt. The Company may also collect information relating to promotions or other offers which become available. For these and related purposes, The Company may disclose personal information to trade insurers, other suppliers, credit reporting agencies, debt collecting agencies, cheque Guarantee providers, other organisations involved in the Company’s business practices, and individual’s representative, and as required by law. If You do not consent to the Company using and disclosing personal information in this manner, then please contact the Company.
23.0 Failure to Provide Information
23.1 If you choose not to provide the Company with the personal information as requested, we will not be able to provide you with the full range of our Products and services.
24.1 If you have any complaints about our privacy practices, or wish to make a complaint about how your personal information is managed, please Contact the Company.
25.1 We will:
25.1.1 take all reasonable steps to protect the security of the personal information that we hold. This includes appropriate measures to protect electronic materials and materials stored and generated in hard copy;
25.1.2 generally not contract out data storage or processing functions. If we do, we will take measures to protect the information;
25.1.3 retain personal information for as long as is reasonably necessary, having regard to the purposes for which it was collected but Will destroy or permanently de-identify it if it is no longer needed.