LONGWALL HYDRAULICS PTY LTD
TRADING TERMS & CONDITIONS
a) In these Trading Terms and Conditions:
"Australian Consumer Law" and “ACL” means Schedule 2 of the Competition and Consumer Act 2010 (Cth):
"CCA" means the Competition and Consumer Act 2010 (Cth);
"Company" means Longwall Hydraulics Pty Ltd (ACN 057 344 215).
”Consumer" means a person acquiring Goods:
i. of a kind ordinarily acquired for personal, domestic or household use or consumption; or
ii. at a price not exceeding $40,000; or
iii. of a kind ordinarily acquired for personal, domestic or household use or consumption; or
iv. that consist of a vehicle or trailer acquired for use principally in the transport of goods on public roads,
v. but excludes a person acquiring the Goods, or holding himself or herself out as acquiring the Goods for the purpose of:
vi. re-supply; or
vii. using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or in the course of repairing or treating other goods or fixtures on land.
"Consumer Goods" means ‘goods of a kind ordinarily acquired for personal, household or domestic use or consumption’, as that expression is used in section 3 of the ACL.
"Consumer Guarantee" means a consumer guarantee applicable to these Trading Terms under the ACL , including any Express Warranty.
"Consumer Services" means 'services of a kind ordinarily acquired for personal, household or domestic use or consumption’, as that expression is used in section 3 of the ACL.
“Contract” means any agreement that the Company enters into with the Customer for the supply of Goods and Services and shall include these Trading Terms and any Special Conditions that the parties may agree upon on which shall be incorporated in and form part of such agreement.
"Customer" means the person described in a credit account application as the person in whose name an account is maintained by the Company and/or the person or entity that purchases Goods and Services from the Company.
"Express Warranty" has the same meaning as in section 2(1) of the ACL.
"Fair or Reasonable" means 'fair or reasonable' for the purposes of section 64A of the ACL.
"Force Majeure Event" is defined in clause 16.
"Financing Statement" and "Financing change statement" means a "financing statement" and a "financing change statement" within the meaning of section 10 of the PPSA.
"Goods" means any goods, equipment, materials, accessories and parts that the Company supplies to the Customer under these Trading Terms.
"GST" means "GST" within the meaning of the GST Act.
"GST Act" means the A New Tax System (Goods and Services Tax) Act 1999 (as amended) and the following expressions bear the same meaning as in the GST Act: "tax invoice", "taxable supply" and "value".
"Insolvency Event" means, in relation to a party, that one of the events specified in clause 15 has occurred in relation to that party.
"Intellectual Property" means any intellectual property including without limitation patents, trademarks, copyright, designs, layouts, circuit boards, knowhow, software, object codes, source codes, and confidential information.
"PMSI" means a purchase money security interest as defined in section 14 of the PPSA.
"PPSA" means the Personal Property Securities Act 2009 (Cth).
"Proceeds" means "proceeds" within the meaning of section 31 of the PPSA.
"Register" means the Personal Property Securities Register established under the PPSA.
"Security Agreement" means a "security agreement" within the meaning of section10 of the PPSA.
"Security Interest" means a "security interest" within the meaning of section 12 of the PPSA.
“Schedule of Rates” is the pricing schedule published by the Company detailing the rates and charges for Goods and services that it supplies to its Customers from time to time.
“Trading Terms” means these Trading Terms and Conditions.
b) Terms and expression defined in or for the purposes of the CCA, ACL or the PPSA have the same meaning when used in these Trading Terms.
c) Words importing the singular shall include the plural (and vice versa).
a) These Trading Terms apply to:
i. The establishment, operation and use of the account of the Customer with the Company;
ii. All transactions effected by the Customer with the Company for the supply of Goods or Services on its account or on a cash basis unless otherwise expressly agreed in relation to any particular supply of Goods; and
iii. The exclusion of all others including any terms and conditions of the Customer.
b) These Trading Terms shall apply as if incorporated into each order placed by the Customer with the Company.
c) These Trading Terms may be varied only with the written agreement of the Company.
All additions or alterations to these Trading Terms shall be in writing and attached as Special Conditions to the Purchase Order and the applicable Contract. In the event of any inconsistency between these Trading Terms and any Special Conditions, the latter shall prevail.
d) The Company may at any time and from time to time by written notice to the Customer, alter these Trading Terms.
a) The Customer may place and the Company may accept or reject orders in part or full for the supply of Goods and Services upon these Trading Terms by:
i. A communication in writing (including by e-mail); or
ii. Any other means that the parties agree including by telephone and by internet ordering.
b) The Company reserves the right to specify a minimum order value which it will accept from time to time and to impose a surcharge should the Customer require delivery of Goods having a value less than the minimum order value.
c) Orders accepted by the Company cannot be cancelled or altered in whole or in part without the Company's written consent.
04 Pricing & Delivery
a) The Company’s pricing is based on the Schedule of Rates. For repair items or new items falling outside the Schedule of Rates, these shall be quoted on a case by case basis and issued with separate order numbers. Pricing shall include; packaging, marking, handling. Freight and insurance is the responsibility of the Customer.
b) All prices quoted or agreed are on a tax exclusive basis. The applicable amount of GST or other taxes will be disclosed on invoices.
c) Unless otherwise agreed in advance, the Company reserves the right to:
I. Charge the Customer for the cost of freight.
II. Charge for re-scheduling and delivery for all variations to the original contract.
III. Adjust prices if and when necessary prior to acceptance of any offer from the Customer.
d) The Company shall arrange delivery of the Goods and provide the Services at the time and place specified in the Purchase Order or in the applicable Contract. The Company shall ensure that the Goods and Services comply with these Trading Terms and any Special Conditions.
e) Variations to the Purchase Order and Contract must be in writing.
f) Whilst the Company shall use all reasonable endeavors to comply with the Customer's particular delivery requirements and order specifications, the Customer will not be entitled to claim compensation by reason of failure to comply with their delivery requirements or minor variations to the Goods.
g) Delivery shall be deemed to have taken place when the Company or its agent delivers the Goods to or leaves the Goods at the address shown on the Tax Invoice for the delivery of such Goods.
05 Withholding Supply
The Company reserves the right, irrespective of whether or not an order has been accepted and without notice to the Customer, to withhold supply to the Customer and/or to cancel any obligation it may have to the Customer and the Company will not be liable for loss of damage resulting directly or indirectly from such action where:
a) The Company has insufficient Goods to fulfill the order;
b) The Goods ordered are no longer available for any reason;
c) The Customer has failed to observe these Trading Terms or the Company’s payment terms or
d) The Company has determined, in its absolute discretion that credit should no longer be extended to the Customer.
06 Terms of Payment
Unless otherwise agreed, the Company's terms of payment require payment to be made by no later than 30 days from the date that the tax invoice for the goods is rendered by the Company to the Customer.
a) All payments shall be made free of any deductions, withholding or set-off unless otherwise agreed in writing with the Company
b) If the Customer does not make payment as required by the Company’s Terms of Payment, they must pay (in the Company’s discretion) interest on any amount overdue calculated on a daily basis from the date that the unpaid amount became due until the date that it is paid in full at the rate of 12% per annum on any outstanding amount calculated on a daily basis from the due date until actual payment is received in full
c) If the Customer fails to pay for any goods or services supplied by the Company when due, then by notice to the Customer the Company may declare any amounts actually or contingently owing by the Customer to the Company to be immediately due and payable.
d) Where the Customer is overdue with any payment or the Company is in receipt of credit references that it regards as unsatisfactory, the Company reserves the right to change the Customer to Cash on Delivery (COD) account and all Goods on a COD account shall be paid for before they are supplied.
e) The Company shall not be responsible and/or liable on removal of Goods and/or materials and/or services from the Customer’s premises due to non -payment of moneys outstanding.
f) Credit facilities may be suspended or withdrawn at the discretion of the Company at any time.
g) Where payment is to be made by cash the amount owing is due and payable immediately.
07 Credit Card Payments
a) If the Customer pays its outstanding account by a credit card, at the time the transaction is processed the Company reserves the right to charge the Customer a fee of 3% or such other amount that the Company reasonably determines in its discretion to be equal to the merchant service fee or any similar fee payable by the Company to its transaction acquirer in connection with the transaction.
b) The Company may add any amount payable by the Customer under paragraph 7(a) to the sale price of the relevant goods or services supplied or to be supplied by the Company to the Customer.
a) To the extent that a party makes a taxable supply in connection with these Trading Terms, the consideration payable by a party under these Trading Terms represents the value of the taxable supply for which payment is to be made, unless otherwise expressly agreed.
b) Subject to clause 8(c), if a party makes a taxable supply pursuant to these Trading Terms for a consideration which, under clause 8(a), represents its value, then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
c) A party's obligation to make payment under clause 8(b) is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.
09 Default Arrangements & Enforcement Expenses
If the Customer fails to pay any amounts when due, then in addition to any other amount payable under these Trading Terms, the Customer must pay to the Company upon demand (in the Company’s discretion) any costs incurred in connection with enforcement of any of the Company's rights in connection with the supply of goods on these Trading Terms including without limitation:
a) Any legal costs (on a solicitor and own client basis) incurred by the Company;
b) Any mercantile agents fees incurred by the Company in recovering or attempting to recover any amount payable by the Customer under these Trading Terms; and
c) Any dishonour or bank fees incurred by the Company in connection with payments or remittances that are made or which should have been made by the Customer.
10 Warranties, Limitations of Liability and Changes of Ownership
i. Subject to the limitations specified in clause 10 B hereof, all Goods shall be new or repaired and comply with the highest relevant commercially accepted standards and be fit for purpose unless varied by a Special Condition.
ii. The Customer may reject, within a reasonable time, Goods that are faulty or do not fully comply with this Purchase Order and Contract. The Company shall make good or replace these Goods at no additional cost, within a reasonable timeframe.
iii. The Company warrants that it will render the Services with due skill and care, and that materials supplied in connection with the Services will be fit for purpose. If there is a defect in performance of the Services or they are incomplete, the Customer may, by notice, require the Company to remedy the defect in performance, complete the Services, or re-do the Services at no additional cost to the Customer. The Company shall comply with the notice within 30 days of its receipt.
iv. The Company does not warrant against damages or defects arising out of improper or abnormal use of handling of the Goods against defects or damages arising from improper installation (where installation is by persons other than the Company), against defects in products or components not manufactured by the Company, or against damages resulting from such non-Company made products or components.
v. The Company passes on to the Customer the warranty it received (if any) from the maker thereof of such non-Company made products or components. This warranty also does not apply to Goods upon which repairs have been affected or attempted by persons other than pursuant to written authorization by the Company.
B. Limitations of Liability
a) The Company acknowledges that the Australian Consumer Law and similar legislation provides:
i. Certain rights for Consumers that cannot be excluded; and
ii. In relation to the supply of Goods, that in some circumstances the Customer may be a Consumer.
b) Subject to paragraph (c), the Company excludes any and all conditions, warranties, terms and consumer guarantees implied by statute, general law or custom (including without limitation the Australian Consumer Law) applicable to any supply of Goods.
c) The Consumer Guarantees apply to any supply of Goods where the Customer is a Consumer, and the liability of the Company in connection with the Consumer Guarantees is not limited except as stated in paragraph (d).
d) If the Customer is a Consumer in relation to the supply of Goods, and those goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the liability of the Company in connection with the Consumer Guarantees is limited to one of the following (as selected by the Company):
i. The replacement of the Goods or the supply of equivalent Goods or
ii. The payment of the cost of replacing the Goods or of acquiring Goods equivalent to the Goods.
e) The Company:
i. Excludes any liability in contract, tort (including negligence) or otherwise, in connection with any supply of Goods, for any indirect damages or losses, or for any special, punitive or exemplary damages;
ii. Limits its liability in contract, tort (including negligence) or otherwise, in connection with any supply of Goods, to the price payable by the Customer for the Goods; and
iii. Excludes any liability for or in connection a claim that the Goods are not fit for a particular purpose or function, except where the Company has a liability as contemplated by paragraph (a) or (d).
C. Changes of Ownership
The Customer agrees to notify the Company in writing of any change in ownership or shareholding of the Customer within seven (7) days from the date such change or immediately if an Insolvency Event as specified in clause 15 hereof occurs and the Customer shall indemnify the Company against any loss or damage incurred by it as a result of its failure to notify the Company of such change or Insolvency Event.
11 Claims and Returns
a) A Customer will be responsible for immediate examination of the goods upon arrival at their destination and will be taken to have accepted Goods received by it as being in accordance with its order unless it notifies the Company in writing of its claim, including invoicing shortages, within 24 hours from the date of receipt of the Goods.
b) No return of Goods that are allegedly defective or faulty will be accepted by the Company unless either:
i. The Customer is a Consumer in relation to those Goods and is entitled to return them because a Consumer Guarantee applies; or
ii. The Company has given prior written authorization for the return of the Goods.
c) All Goods for return must be inspected by a representative of the Company prior to the Company accepting any obligation for the return of the Goods.
d) If the Company consents under paragraph (11 (b)(ii) for the return of any Goods, the Customer must:
i. Provide to the Company a written statement setting out the reasons for return of the Goods;
ii. Give the Company details of the original invoice number and the date of delivery of the Goods;
iii. Provide to the Company a copy of the receipt or delivery docket relating to the Goods;
iv. Pay the Company a handling charge equivalent to 20% of the purchase price of the Goods.
e) In the event of the Company agreeing to accept a return of Goods, these shall be returned to the Company at the expense of the Customer, and the Company shall credit the Customer's account with an amount equal to the invoiced sum less the sum payable under clause (d) (iv) hereof.
12 Cancellations and Variations
a) The Customer may not cancel or vary an order unless the Company in its absolute discretion consents in writing to the cancellation or variation.
b) The Company may charge the Customer for any reasonable costs incurred in preparation of any order that has been varied or cancelled.
c) The Company reserves the right to immediately cancel any contract for the supply of Goods or suspend any such supply without incurring any liability to the Customer in any of the following circumstances:
i. The Customer is overdue with any payment due under these Trading terms or is otherwise in breach of these Trading Terms or
ii. An Insolvency Event has occurred.
d) Cancellation by the Company under this clause shall be without prejudice to the Company’s right to recover payment from the Customer for Goods previously supplied.
13 Retention of Title Arrangements
a) Property in and title to any Goods remains with the Company until the Customer has paid in full (and in cleared funds) all amounts owing by the Customer to the Company in connection with the Goods.
b) Until such time as title to the Goods passes to the Customer, the Customer will hold them on trust and as bailee for the Company.
c) Despite clause 13 a), risk in the Goods passes to the Customer upon delivery to the Customer or to the Customer’s nominated transport (as the case may be).
d) In the case where the Company is overhauling/repairing the Customer’s goods, title to such goods remains with the Customer at all times.
e) Unless otherwise agreed by the Company, the Customer must identify and store the Goods in a manner that clearly shows that they are the property of the Company.
f) Notwithstanding any of the matters set forth in this paragraph 13, the Customer may sell the Goods to a third party in the ordinary course of their business.
g) The Customer must insure the Goods until sold to a third party.
14 Personal Property Securities Act arrangements
a) Acknowledgement of security agreement and security interest
The Customer acknowledges and agrees that:
i. The Trading Terms are a security agreement for the purposes of the PPSA;
ii. The Company has a security interest in the Goods and in any present or after acquired property that represents Proceeds of the Goods and/or in which the Goods have been attached or incorporated, including co-mingled goods; and
iii. The security interest secures the due and punctual payment of all moneys payable by the Customer to the Company under these Trading Terms.
b) Acknowledgment of arrangements for financing statements
The Customer acknowledges and agrees as follows:
i. Financing statements and financing change statements
The Company may at any time register a financing statement (or, if relevant, a financing change statement) on the Register in relation to its security interest in the Goods that may include terms that:
describe the Company as the "secured party" and the Customer as the "grantor'';
describe the Goods supplied by the Company to the Customer from time to time pursuant to these Trading Terms as collateral in the class of "other goods" (or in such other class as the Company may reasonably determine is applicable to the Goods);
specifies that the security interest that the Company holds in the collateral is a PMSI in accordance with item 7 of the table in section 153(1) of the PPSA to the extent that it secures payment of the amounts owing in connection with that collateral; and
specifies that the security interest affects Proceeds and, in particular, all present and after acquired property that represents Proceeds of the Goods.
ii. Period of registration
The Company may register a financing statement or financing change statement on the PPSA Register for any period that the Company determines (in its discretion).
iii. Payment of fees and costs
Upon request made by the Company, the Customer must pay to the Company all fees, charges and expenses that the Company may reasonably incur in:
preparing, lodging or registering any financing statement or financing change statement in relation to any security interest that is granted to the Company under the Trading Terms;
maintaining any such registration; or
enforcing any security interest granted to the Company under the Trading Terms.
These fees, charges and expenses may be incurred by or with an agent that acts on behalf of the Company.
iv. When registration to be effected
The Company may register its security interest on the Register at any time so long as the Company believes on reasonable grounds that it will become a secured party in relation to the Goods including without limitation when the Customer signs or otherwise adopts or accepts the Contract Terms in a manner proposed by the Company.
A security interest in Goods created according to the Trading Terms will attach to the Goods at the time that the Customer obtains possession of them and not at any later time.
vi. Do all things necessary
The Customer must do anything reasonably required by the Company to enable the Company to register the security interest as a PMSI and to maintain that registration.
vii. Separate financing statement may be registered if required.
If the Company considers that it has or may have a security interest that is not a PMSI in relation to any Goods, it may register a financing statement in respect of that security interest (and that financing statement may be in addition to a financing statement registered by the Company in relation to a PMSI in the same Goods).
c) Confidential Information
i. The Company and the Customer agree that neither party will disclose to an interested person or to any other person, any information of the kind described in section 275 (1) of the PPSA except that the Company may disclose that information to an interested person where section 275(7) of the PPSA applies.
ii. The Customer agrees that it will not authorize the disclosure of any information of the kind described in section 275 (1) of the PPSA.
If the Customer fails to pay an amount owing when due or if it fails to perform any of its obligations in connection with the supply of Goods, the Customer agrees that the Company shall be entitled to exercise its enforcement rights and remedies as a secured party in accordance with the provisions of the PPSA including (without limitation) the rights contained in section 123 of the PPSA to seize the Goods by any method permitted by law. For these purposes, and without limiting any other rights of the Company under the PPSA as a secured party, the Customer further agrees:
i. upon demand made by the Company, to immediately deliver up the Goods to the Company;
ii. to irrevocably authorize the Company to enter any premises occupied by the Customer in order to search for, retrieve and remove those Goods to which the Company has title and which are the subject of a security interest as provided for by these Trading Terms;
iii. to do all things necessary to immediately facilitate the Company's access to the Customer's premises and to assist the Company to locate and identify the Goods;
iv. to authorize the Company to resell the Goods seized and apply the proceeds of sale in payment of any monies that the Customer owes it;
v. that in the event of any inconsistency with the provisions contained in section 123 of the PPSA and the provisions contained in this paragraph (d), the provisions of this paragraph (d) shall prevail.
e) Application of certain PPSA provisions
To the extent they apply, the following provisions of the PPSA confer rights on the Company: section 123 (seizing collateral); section 126 (apparent possession); section 128 (secured party may dispose of collateral); section 129 (disposal by purchase); and section 134 (1) (retention of collateral). The Customer agrees that in addition to those rights, the Company shall, if there is default by the Customer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any Goods, not only under those sections but also, as additional and independent rights, under this document and the Customer agrees that the Company may do so in any manner it sees fit including (in respect of dealing or disposing) by private or public sale, lease or licence.
f) Contracting out provisions
To the extent that Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest under or in connection with these Trading Terms, the following provisions of the PPSA do not apply and for the purposes of section 115 of the PPSA and are “contracted out” of these Trading Terms in respect of all Goods to which that section can be applied: section 95 (notice of removal of accession to the extent it requires the Company to give a notice to the grantor); section 96 (retention of accession); section 125 (obligation to dispose of or retain collateral);section 121(4)(enforcement of liquid assets- notice of grantor); section 130 (notice of disposal to the extent it requires the Company to give notice to the Customer );section 129 (2) & (3) (d) (contents of statement of account after disposal); section 132 (4) (statement of account if no disposal);section 135 (notice of retention);section 142 (redemption of collateral);and section 143 (re-instatement of security agreement).
g) PPSA Notices
i. The Customer agrees that the Company does not need to give the Customer any notice under the PPSA (including without limitation a notice of a verification statement received from the Registrar) unless the notice is required by the PPSA and that requirement cannot be excluded.
ii. In the event of a default by the Customer in performing of any of its obligations in connection with a supply of Goods under the Trading Terms, the Customer agrees that (as between the parties to the Trading Terms) the Company is not obliged to give notice to any other secured party with interests in the same collateral or to any other third party of any enforcement or recovery action that it takes or which it may take with respect to its security interest in any of the Goods.
15 Insolvency Events
If the Customer:
a) becomes insolvent or bankrupt;
b) is the subject of an application to wind up, or if a Liquidator, Provisional Liquidator, Receiver, a Receiver and Manager, or an Administrator is appointed with respect to the Customer or any of the Customer's assets;
c) makes an arrangement or composition with the creditors of the Customer or attempts to make such an arrangement or composition;
d) is unable to pay their debts as they fall due;
e) fails to comply with a statutory demand made under the Corporations Act 2001 (Cth) for payment of a debt;
f) ceases business;
g) has execution levied against any of their assets; or
h) has a mortgagee Liquidator, Provisional Liquidator, Receiver, Receiver and manager or Administrator enter or seek to enter into possession of any of its assets,
then any monies actually or contingently owing to the Company at that time under any contract formed on these Trading Terms (including any amounts which would not otherwise be payable until a later date or dates) are immediately due and payable (without the need for any demand by the Company).
16 Force Majeure
a) The Company may suspend any or all of its obligations to the Customer that are affected by any contingency beyond its reasonable control including without limitation an act of God, fire, flood, storm, earthquake, strike, lockout, trade/labor dispute, breakdown, theft, crime, delays in shipping, embargo or the inability of the Company to procure necessary materials or articles preventing or retarding performance of the contract or any other cause not reasonably within the control of the Company (each a “Force Majeure Event”) and the Company is not responsible for any delay, default, loss or damage due to any Force Majeure Event.
b) When a Force Majeure Event ceases to affect the performance of any of the Company's obligations, the Company must lift any suspension of those obligations that it makes under paragraph 16 a).
17 Goods supplied shall not become fixtures
a) The Customer acknowledges and agrees that it is the intention of the parties that:
i. Where Goods that is supplied to the Customer by the Company is or might be characterized as fixtures to land; or
ii. Where the Goods rests by their own weight on the land or
iii. Where the Goods have been or are intended to be used for purposes associated with building and construction works, then the following provisions are to apply.
b) The Goods shall be taken to be personal property of the Company and not a fixture despite having been connected to land or some other item, appliance or property and despite the Goods and any associated pumps, pipes, booms and brackets having been bolted to or affixed to any concrete footings, walls and/or columns
c) In the event of a default by the Customer under these Terms , that in addition to any other enforcement provisions set out herein, if the Goods can be removed without causing significant damage to the works, appliances, premises, or property on which it is located, the Customer consents to the Company and any authorized contractor acting on behalf of the Company entering upon the property of the Customer or any premises where the Goods are located or has been installed for the purposes of disconnecting and removing and retrieving them.
d) In the event of the Company exercising its rights under sub paragraph 17 (c) the Customer:
i. Must not make any claim against the Company; and
ii. Must indemnify the Company against any claim by any third party (including without limitation the Company of the relevant property), in contract, tort (including negligence) or otherwise arising from or in connection with the exercise of those rights including without limitation for the cost of making good the works, appliances, premises or property to which the Goods are attached and/or for any loss or damage (whether direct or indirect) suffered by the Customer or any third party.
18 Quality Assurance
For the period of the Contract the Company agrees to maintain an accredited Quality System that meets the requirements of AS/NZS ISO 9001:2000 and shall hold all applicable quality records relevant to the Customer’s Goods for a period of 5 years.
19 Assignment/ Sub-contracting
a) The Customer may not assign or sub-contract any of its rights or obligations under these Trading Terms, Purchase Order or Contract without the prior written consent of the Company.
b) In the event that such approval is obtained under paragraph 19 (a) , approval to assign or subcontract shall not relieve the Customer from any of its obligations under these Trading Terms, or any Purchase Order or Contract.
A certificate of the Customer's liability under any contract or contracts formed on these Trading Terms, signed by an officer of the Company, is prima facie evidence of the Customer's liability to the Company under these Trading Terms as at the date of the certificate.
a) Either party may terminate the arrangements under these Trading Terms by not less than 30 days notice to the other or immediately by notice to the other party if:
i. if the party fails to remedy a breach within the time specified in the notice of breach or
ii. if the other party is subject to an Insolvency Event.
b) Upon termination all amounts actually or contingently owing by the Customer to the Company are immediately due and payable and the Customer shall immediately on demand deliver up to the Company all Goods purchased from the Company for which it has not paid.
Time is of the essence for payment of any monies owed by the Customer to the Company pursuant to the provisions specified in these Trading Terms.
a) These Trading Terms (including any applicable Purchase Order and Contract) are governed by the laws of the State of New South Wales
b) The parties submit to the non-exclusive jurisdiction of the Courts of New South Wales in relation to any dispute or claim arising under or in connection with the supply of Goods and Services or otherwise concerning these Trading Terms, Purchase Order and Contract.
a) Any notice required by or contemplated by these Trading Terms must be in writing in the English language.
b) Any notice by one party to the other shall be sufficiently served if served:
ii. by facsimile transmission to the number specified in the application made to the Company by the Customer to establish the arrangements under these Trading Terms or as notified to the other party to the address specified in the Purchase Order and Contract, with a transmission confirmation receipt marked "OK";
iii. by e-mail to the address specified in the application made to the Company by the Customer to establish the arrangements under these Trading Terms or as notified to the other party to the email address specified in the Purchase Order and Contract; or as otherwise notified or
iv. by pre-paid post to the party to be served at the registered office of the party or to the address specified in the application made to the Company by the Customer to establish the arrangements under these Trading Terms or as notified to the other party to the address specified in the Purchase Order and Contract or as otherwise notified, (in which case it is taken to be received 3 days after the date of posting).
a) No employee of the Company is authorized to bind the Company unless the Company has given the Customer express written notice to that effect.
b) The invalidity or unenforceability of any provisions of these Trading Terms shall not affect the validity or enforceability of the remaining provisions.
c) Failure by either party to enforce any of the provisions contained in these Trading Terms, a Purchase Order and a Contract shall not be construed as in any way affecting the enforceability in any other instance, or the enforceability of the Trading Terms, the Purchase Order and the Contract as a whole. No delay or failure to act is a waiver of any of the provisions herein contained. No waiver is effective unless in writing.
d) These Trading Terms shall bind the Company and the Customer and their respective successors and permitted assigns.