Terms and Conditions
These terms and conditions (“Terms”) plus any implied terms which cannot be excluded are the whole agreement between the applicant named in the Credit Account Application (if applicable) or the applicant named on the Customer Information Form (if there is no Credit Account Application) (‘Customer or you/your’) and Holland Forge Pty Ltd in its capacity as trustee for The Plummer Family Trust (ABN 26 371 237 667), (‘Holland Forge or we/us/our’). These Terms shall apply to the exclusion of all other contractual terms of the Customer (whether on the Customer's order form or otherwise) and if provided, such contractual terms don’t constitute a counteroffer. After you have received a copy of these Terms, if you sign these Terms or if you place an order for the supply of all or portion of goods and/or services supplied under these Terms (‘Goods’), you will be deemed to have accepted these Terms and they will apply to the exclusion of all other written agreements with us.
2.1. We may require payment before supply of the Goods, in which case payment is due once the Goods are ready for delivery but prior to the Goods being despatched. Otherwise, payment is due on or prior to thirty (30) days from the date of invoice unless we tell you in writing otherwise.
2.2. If we don’t receive payment on the due date, we may:
2.2.1. Charge interest (as liquidated damages) at the rate of two percent (2%) above the rate of interest fixed from time to time under Section 2 of the Penalty Interest Rates Act 1983; and
2.2.2. Suspend or discontinue supply of the Goods to you and/or cancel your account with us.
2.3. We may revoke our express or implied approval for giving you credit at any time.
2.4. We can set-off against any money owing to you amounts owed to us by you on any account whatsoever.
2.5. Any payments received from you on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs, and then to principal.
2.6. You are liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by us for enforcement of obligations and recovery of monies due from you to us.
2.7. All sums outstanding become immediately due and payable by you to us if you make default in paying any sums due to us, you become bankrupt or commit any act of bankruptcy, or have judgment entered against you in any court, notwithstanding the provisions of any other clause in these Terms.
3. Quotations and Pricing
3.1. Prices charged will be according to a current quotation or determined by us by reference to our standard prices in effect at the date of the order. Subject to clause 18, we reserve the right to increase the prices, however, we will not change any prices for an existing order that has been accepted by us; the prices that apply to the order are the prices that applied at the time you placed the order. A quotation shall not constitute an offer and will remain valid only for 30 days from the date of the quotation. A quotation is subject to variation without notice to you prior to your acceptance of the quotation. You are responsible for ensuring the accuracy of all specifications, details, sizes and quantities which form the basis of a quotation. We do not accept any responsibility for any errors in such specifications, details, sizes and quantities and shall fulfil the order in conformity with the information supplied by you.
3.2. Documents requiring signature may be signed in electronic form and are binding from the time a person affixes a signature on your behalf.
3.3. Prices in quotations don’t include (unless specified): (1) any statutory tax, including any GST, duty or impost levied in respect of the Goods and not allowed for by us in calculating the price; or (2) costs and charges in relation to insurance, packing (other than our standard packing), crating, delivery (whether by road, rail, ship or air) and export of the Goods.
3.4. You shall pay any variations in the invoice or contract price as a consequence of currency fluctuations.
3.5. This agreement shall not be affected by any impositions or alterations of customs duties or by decisions of the Customs Department with regard to either classification or value of duty or landing charges. Any such impositions shall be payable by you.
3.6. Subject to clause 3.3, we reserve the right to charge you for freight costs and unless otherwise agreed, we will ship by the least expensive route and carrier to all points. If you choose a route with a higher charge than the route of our choice for shipment, we will charge the difference to you
4. Delivery and Supply
4.1. We shall not be liable for delay in delivery/supply. If we quote a time for delivery/supply, it’s an estimate only. We can stop supply/delivery if you fail to comply with these Terms.
4.2. We may refuse to supply any order in our absolute discretion (except where these Terms constitute a small business contract for the purposes of the Australian Consumer Law (‘Small Business Contract') and may make acceptance of an order conditional upon receiving a satisfactory credit assessment of the Customer.
4.3. If you tell us to deliver the Goods over different times or to different addresses from those specified in the Credit Account Application or Customer Information Form, then you: (1) shall be liable for any additional cost, charge and expense incurred by us in complying with your direction; (2) shall pay for the whole of the invoiced value of the Goods pursuant notwithstanding the staggered deliveries; and (3) such action shall be deemed to be delivery to you.
4.4. You are deemed to accept delivery of the Goods where they are either delivered to your premises or when we notify you that the Goods are available for collection.
4.5. If you are unable or fail to accept delivery of the Goods, we may deliver them to a place of storage nominated by you and, failing such nomination, to a place determined by us. Such action shall be deemed to be delivery to you. You shall be liable for all cost, charge and expense incurred by us on account of storage, detention, double cartage/delivery or similar causes.
4.6. Subject to clause 4.1, you agree that you will be obliged to and shall pay for the Goods on the due date notwithstanding that delivery is made after the agreed delivery date, and notwithstanding that the Goods may not yet be delivered.
5. Returns, Cancellations and Claims
5.1. You shall not return any Goods to us without obtaining prior authorisation from us. Unauthorised returns will not be accepted. No returns will be accepted unless a copy of the relevant invoice is enclosed with the returned Goods. A list of the Goods returned including product descriptions, quantity, date of return and the Customer's name and address must also be enclosed. All Goods must be of merchantable and reasonable quality such that the Goods are complete in their original packaging, not shop soiled, are not price ticketed and are listed in the current price list. You shall be responsible for all damage incurred during return shipment. If we accept the return of any Goods that have been ordered, we may charge you ten per cent (10%) of the invoice price as a handling fee with freight costs and risk remaining your responsibility.
5.2. Change of mind - A request to return Goods for change of mind must be made within 7 days of delivery. Freight charges must be paid by you for all change of mind returns. We will issue a credit note/refund only after Goods returned are either collected by our authorised representative or agent or returned to us as set out above. You must not deduct the amount of any anticipated credit from any payment due to us. All Goods returned for change of mind must be of merchantable and reasonable quality such that the Goods are complete in their original packaging, not shop-soiled, are not price ticketed and are still listed in the current price list.
5.3. Cancellation - We will not accept cancellations or partial cancellation of an order unless we have first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by us, will indemnify us against direct loss, without limitation. Cancellation will not be accepted on Goods that are not regular stock which are in the process of manufacture or ready for shipment.
5.4. Complaints - All complaints, claims, or notification of lost Goods, incomplete Goods, Goods damaged in transit or Goods that do not comply with your purchase order must be submitted to us in writing within seven (7) business days of delivery of the Goods. We may issue a refund or credit note in respect of the Goods. Otherwise, you are deemed to have accepted the Goods and shall not refuse to pay for the Goods on the basis that they were lost, incomplete, damaged in transit, or do not comply with your purchase order.
6.1. No warranties except those implied and that by law cannot be excluded are given by us in respect of Goods supplied.
6.2. You acknowledge and warrant that you have relied on your own skill and judgment or, alternatively, on the skill and judgment of tradesmen and professional advisers retained by you to provide advice and assistance on the suitability of the Goods for specific purposes and procedures and, in this respect, you shall indemnify us from and against any suit, claim, demand or compensation which, but for these Terms, you may have had against us, except if you are a Consumer or these Terms are deemed to be a Small Business Contract.
6.3. You warrant to us that you are purchasing Goods as the principal and not as an agent.
You must notify us in writing within seven (7) days of: (1) any alteration of your name or ownership; (2) the issue of any legal proceedings against you; (3) the appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to you; and (4) any change in the ownership of your business name. You agree that you shall be liable to us for all Goods supplied to the new owner by us until notice of such change is received.
8. Equitable Charge
You as beneficial owner and/or registered proprietor now charge in favour of us all of your estate and interest in any real property (including but not limited to any applicable land owned by you or described as the Business Address or Postal Address in the Credit Account Application (if applicable) or the Customer Information Form) (‘Land') to secure payment of accounts rendered by us to you for the delivery and/or supply of the Goods including interest payable on these accounts and costs (including legal costs on a full indemnity basis) incurred by us and including the costs to prepare and lodge a Caveat against the Land and to remove the Caveat.
9. Title to Goods
9.1. Until we have received payment in full for all the Goods, and any other sums in any way outstanding from you from time to time:
9.1.1. Title to the Goods shall not pass to you and you shall hold the Goods as bailee for us (returning the same to us on request). The Goods shall nevertheless be at your risk from the time of delivery/supply and you must insure the Goods from the time of delivery/supply.
9.1.2. You are only authorised to sell the Goods (or any portion of them) to third parties as our fiduciary agent provided that there shall be no right to bind us to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by you for the Goods (or any portion of them) shall be held on trust for us pursuant to the fiduciary relationship, except where clause 10.6 applies.
9.1.3. If you incorporate or transform the Goods (or any portion of them) into any other goods or products produced by you (or a third party), then you must hold a proportion of any payment (‘relevant proportion') received by you for such goods or products on trust for us. You expressly acknowledge that the relevant proportion shall be equal to the dollar value of the Goods incorporated or transformed.
9.1.4. We are irrevocably authorised to enter any premises where the Goods are kept, and to use your name and to act on your behalf, if necessary, to recover possession of the Goods without liability for trespass or any resulting damage.
9.2. In addition to any lien to which we may, by statute or otherwise, be entitled, we shall in the event of your insolvency, bankruptcy or winding up, be entitled to a general lien over all property or goods belonging to you in our possession (although all or some of such property or goods may have been paid) for the unpaid price of any Goods sold or delivered to you under this or any other contract.
10. Personal Property Securities Interest
10.1. You grant a security interest in the Goods and the proceeds (as defined in the Personal Property Securities Act 2009 (‘PPSA’)) to secure the obligation to pay the purchase price of the Goods and other of your obligations to us under this agreement (together the “Indebtedness”). You warrant that the Goods are not purchased for personal, domestic or household purposes.
10.2. Where the Goods and/or proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the Indebtedness, the security interest shall also extend to all the goods present and after acquired by the Customer, of which the Goods form part, to the extent required to secure the Indebtedness.
10.3. You waive any right to receive notice in relation to any registration or amendment to a registration on the Personal Property Security Register (‘PPSR’). At your own expense, you will provide all reasonable assistance and relevant information to enable us to register on the PPSR and generally to obtain, maintain, register and enforce the security interests created by this agreement.
10.4. Any payments received from you shall be deemed to be made and applied by us in the following order (unless we otherwise determine): (1) to any obligation owed by you which is unsecured, in the order in which the obligations were incurred; (2) to any obligations that are secured, but not by a purchase money security interest (‘PMSI’), in the order in which those obligations were incurred (3) to obligations that are secured by a PMSI, in the order in which those obligations were incurred.
10.5. Until you have paid all money owing to us, you must at all times ensure that (1) all Goods, while in your possession, can be readily identified and distinguished, and/or (2) all proceeds (in whatever form) that you receive from the sale of any of the Goods are readily identifiable and traceable.
10.6. Subject to clause 9.1.2, if the Goods are held by you as inventory (as defined in the PPSA), then you may sell or lease the Goods in the ordinary course of business. Otherwise until you have paid all money owing to us you must not sell or grant a security interest in the Goods without our written consent.
10.7. To the extent permissible by law, you agree that the following provisions of the PPSA will not apply and you will have no rights under them: Section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notice to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142; section 143.
10.8. Section 115(7) of the PPSA allows for the contracting out of provisions of the PPSA. Pursuant to section 115(7) of the PPSA, the following provisions of the PPSA will not apply and the Customer will not have any rights under them: section 127; section 129(2),(3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137.
10.9. Unless otherwise agreed and to the extent permitted by the PPSA, the parties agree not to disclose any information of a kind referred to in section 275(1) of the PPSA to an interested person or any other person. You waive any right you may have, or but for this clause may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.
11. Privacy Act 1988 (‘Privacy Act’)
To enable us to assess your application for credit, you authorise us: (1) to obtain from a credit reporting agency/body a consumer or commercial credit report containing personal information about you and any guarantors; and (2) to obtain a report from a credit reporting agency/body and other information in relation to your and your guarantors commercial credit activities, and (3) to give to a credit reporting agency/body information including identity particulars and application details about you or your guarantors. 11.2.
You authorise us to give to and obtain from any credit provider named in the accompanying Credit Application and credit providers that may be named in a credit report issued by a credit reporting agency/body information about your credit arrangements. You also authorise us to give information about your credit arrangements to any credit provider to whom you have supplied our details as a trade reference. You understand that information about credit arrangements can include any information about your credit worthiness.11.3.
You understand that information can be used for the purposes of assessing your application for credit, assisting you to avoid defaulting on your credit obligations, assessing your credit worthiness and notifying other credit providers and credit reporting agencies of a default by you under these Terms. 11.5.
Our Privacy and Credit reporting Policy is available on our website at: www.hollandforge.com.au/privacy
You acknowledge and accept that we sell our Goods only through persons who have been authorised by us to sell specific product categories at specific locations and who comply with our Terms and Conditions. Subject to the provisions of the Competition and Consumer Act 2010: (1) you are prohibited from selling Goods on the international market without our express written consent; and (2) we do not grant to you the exclusive right to sell our Goods. We reserve the right to authorise and/or supply additional retailers in any market area that it deems necessary to adequately cover the market.
13. Minimum Order Value
For an order of less than $400.00 we reserve the right to not accept an order.
A Certificate signed by an officer of Holland Forge will be prima facie evidence of the Customer's liability to Holland Forge at the date of the Certificate.
We may terminate this Agreement if you do any of the following, which is not remedied within 7 days of written notice given by us:
15.1. Committing a material breach of these Terms which includes but is not limited to the failure to make payment for our Goods by the due date;
15.2. Becoming bankrupt, committing an act of bankruptcy or having judgment entered against you in any court.
16. Intellectual Property
16.1. All intellectual property rights (including all rights resulting from intellectual activity and includes copyright, inventions, patent rights, registered and unregistered trademarks, design rights, circuit layouts and all rights and interests of a like nature, including but not limited to methods and techniques, together with any documentation relating to such our rights and interests), including those developed during the supply of the Goods remain our sole property at all times.
16.2. If we terminate this agreement, we may immediately reclaim any material incorporating our intellectual property and you grant us an irrevocable licence to enter upon your premises to reclaim such material without incurring liability to you or any other person.
17. Force Majeure
We shall be released from our obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties renders provision of the Goods impossible, where all money due to us shall be paid immediately and, unless prohibited by law, we may elect to terminate the Agreement.
18.1. We may vary these Terms by providing written notice to you (by email, conventional mail or by posting the amended terms on our website).
18.2. If you are a Consumer, or this agreement is deemed to be a Small Business Contract, and you do not deem the variation acceptable, you may elect not to proceed with the purchase of the Goods ordered before the date of the variation but which are intended to be subject to the variation.
18.3. If you are not a Consumer and this agreement is not deemed to be a Small Business Contract, you agree that the variation applies from the date of receiving notice of the varied Terms.
19. Failure to Act
Our failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or our failure to exercise any right or remedy available under these Terms or at law, or our failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under these Terms shall not constitute a waiver of any subsequent default or a waiver of our right to demand timely payment of future obligations or strict compliance with the Terms.
20. Legal Construction
20.1. These Terms shall be governed by and interpreted according to the laws of the State of Victoria and the parties consent and submit to the jurisdiction of the Courts of Victoria.
20.2. Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.