These Terms and Conditions constitute the terms of credit and/or the terms of supply for contracts between Caesarstone Australia Pty Limited ABN 45 121 819 976 and its related bodies corporate (as that term is defined in the Corporations Act 2001) (Supplier) and Applicant (Customer) for the supply of goods, services and/or supplies (Goods). Supplier may, at any time, unilaterally vary the Terms and Conditionsin its absolute and unfettered discretion.
1. Goods may only be ordered using Supplier's approved ordering procedures and forms, but Supplier may choose to accept a non-complying order.
2. There is no agreement until Supplier accepts an order by notifying Customer that it will supply and despatch the Goods.
3. Once placed, an order cannot be cancelled, or delivery deferred, by Customer, without the Supplier's consent.
4. Unless otherwise agreed in writing, the price payable for the Goods shall be the price set out in the quotation or, if no price is set out or there has not been a quotation given, the Supplier's current list price at the date of acceptance of the order plus, if applicable, transportation, packaging and any other expense incurred in respect of the Goods. For the avoidance of doubt, the price payable does not include GST, which is payable in addition to the price payable.
5. A statement of Customer's account by Supplier is prima facie evidence of its contents.
6. Where a quotation states that no monetary consideration is payable by Customer for the Goods, Customer's consideration is Customer's agreement not to unreasonably decline to enter a further contract with Supplier or its resellers for the further supply contemplated by the supplies
7. The terms of payment are strictly thirty (30) days (or such other period as nominated by Supplier to Customer) from the date of invoice. Should Customer not pay for the Goods supplied by Supplier in accordance with the terms of credit as provided herein, or as agreed in writing by Supplier from time to time, Supplier will be entitled to charge an administration fee of:
(a) 10 percent of the amount of each unpaid overdue invoice; and
(b) where any invoice remains unpaid for 120 or more days from the date of invoice, a further administration fee of 10 percent of the amount of each unpaid overdue invoice.
Payment Terms – Credit Facility
8. If Customer applies for a credit facility and Supplier approves it, then
(a) Supplier will invoice Customer for each order; and
(b) Customer must pay each invoice in full within 30 days from the date of invoice.
9. Supplier reserves the right, at any time and in its absolute discretion, to withdraw credit facilities or impose conditions on them, whether or not Customer is in default
Payment Terms – COD
10. If Supplier has not approved a credit facility for Customer or an approved credit facility is withdrawn or cancelled then, at Supplier's election, Customer shall pay in full the invoice for the Goods prior to Supplier despatching or releasing the Goods.
Purpose of credit
11. Customer acknowledges and agrees that the credit to be provided to Customer by Supplier is to be applied wholly or predominantly for commercial purposes.
Formation of contract - Quotation
12. Quotations made by Supplier will not be construed as an offer or obligation to supply in accordance with the quotation. Supplier reserves the right to accept or reject, at its discretion, any offer to purchase received by it. Either written acceptance or fulfilment of order by Supplier of Customer’s offer will complete a contract.
13. Placement of an order, either verbally or in writing, will imply acceptance of Supplier’s offer and of these Terms and Conditions.
14. Customer acknowledges and agrees that this agreement will be governed by the laws of New South Wales, and the laws of the Commonwealth of Australia which are in force in New South Wales.
15. Customer acknowledges and agrees that any contract for the supply of goods or services between Supplier and Customer is formed at the New South Wales address of Supplier.
16. Supplier and Customer submit to the non-exclusive jurisdiction of the courts of New South Wales and the relevant federal courts and courts competent to hear appeals from those courts.
17. Customer charges in favour of Supplier all of its estate and interest in any real property that Customer owns at present and in the future with the amount of its indebtedness hereunder until discharged.
18. Customer charges in favour of Supplier all of its estate and interest in any personal property that Customer owns at present and in the future with the amount of its indebtedness hereunder until discharged.
19. Customer appoints as its duly constituted attorney Supplier's company secretary from time to time to execute in Customer's name, and as Customer's act and deed, any real property mortgage, bill of sale or consent to any caveat Supplier may choose to lodge against real property that Customer may own, in any Land Titles Office in any state or territory of Australia, even though Customer may not have defaulted in carrying out its obligations hereunder.
20. Where Customer has previously entered into an agreement with Supplier by which Customer has granted a charge, mortgage or other security interest (including a security interest as defined in the Personal Property Securities Act 2009 (PPSA)) over or in respect of real or personal property, those charges, mortgages or other security interests and the terms which directly or indirectly create rights, powers or obligations in respect thereto will continue and co-exist with the obligations and security interests created in these Terms and Conditionsand will secure all indebtedness and obligations of Customer under these Terms and Conditions. Supplier may, at its election, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.
Retention of title
21. Property and title in any Goods provided by Supplier under these Terms and Conditions (Supplies) passes to Customer when Customer pays Supplier in full for those Supplies and until that time the Supplies remain the property of Supplier and must be stored separately by Customer to enable them to be readily identified as the property of Supplier and able to be crossed referenced to particular invoices.
22. Risk in the Supplies passes to Customer on delivery.
23. If Customer sells or otherwise disposes of any Supplies prior to the date on which title passes from Supplier to Customer under clause 21:
(a) that part of the proceeds of any sale or dealing as is equal to the amount payable by Customer to Supplier for those Supplies (Supplier’s Entitlement) must be held by the Customer in a separate identifiable account on trust for Supplier
(b) Customer must account to Supplier for the Supplier’s Entitlement.
24. To the extent permitted by law Customer and Supplier agree that:
(a) these Terms and Conditions create a security interest in favour of Supplier for the purposes of the PPSA; and
(b) Supplier may register its security interest as a purchase money security interest (as defined in accordance with the PPSA) on an indefinite basis on the Personal Property Securities Register (PPSR) in accordance with the PPSA.
25. Customer agrees to supply information, execute such documents and take whatever action is reasonably required by Supplier to protect its security interest and ensure it has the priority required by Supplier. This may include assisting Supplier to register, maintain and update its security interest on the PPSR, give any notification in connection with the security interest and exercise its rights in connection with the security interest.
26. Customer and Supplier agree to contract out of sections 95,96,117,118,121(4),125,129,
130,132(2),132(3)(d),132(4),135,142,143 and sections 157(1) and 157(3) of the PPSA. [Explanations of the application of each of those sections can be provided, upon request to Supplier.] For avoidance of doubt, Customer and Supplier contract out of Customer’s rights to (and Customer waives its rights to):
(a) not have goods damaged when Supplier (or any person on its behalf) removes an accession under Part 3.3 of the PPSA;
(b) refuse permission to remove an accession under section 94 of the PPSA;
(c) receive notice of the removal of an accession under section 95 of the PPSA;
(d) apply to the court for an order concerning the removal of an accession under section 97 of the PPSA;
(e) receive notice of Supplier’s proposal to retain charged property under section 134(2) of the PPSA; and
(f) object to Supplier’s proposal to dispose of or retain any charged property under section 137 of the PPSA; and
where Supplier has rights in addition to, or existing separately from those in Chapter 4 of the PPSA, those rights will continue to apply and are not limited or excluded (or otherwise adversely affected) by any right provided by clauses 24,25 and 26 or by law.
27. For the avoidance of doubt, Customer has no right to use or otherwise deal with the Supplies if:
(a) Customer becomes, threatens or resolves to become, or is in jeopardy of becoming subject to any form of insolvency administration;
(b) Customer breaches these Terms and Conditions and fails to remedy within 5 business days after receiving notice from Supplier requiring the breach to be remedied; or
(c) the credit terms and/or terms of supply constituted by these Terms and Conditions are terminated for any reason.
28. If Customer for any reason loses its right to use or otherwise deal with the Supplies then Customer must return the Supplies to Supplier on written demand. If Customer does not return the Supplies to Supplier within 24 hours after receipt of the demand, then without limiting any other rights or remedies Supplier may have:
(a) Supplier may, as agent of the Customer, enter the premises where the Supplies are located and do all things necessary to retake possession of the Supplies, without liability for trespass or any resulting damage;
(b) Supplier may keep or resell any of the Supplies repossessed.
(c) Customer is liable for all costs associated with the exercise by Supplier of its rights under clauses 21 to 28, which costs are payable to Supplier on demand; and
(d) Customer indemnifies and must keep indemnified Supplier against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be bought against Supplier or which Supplier may pay, sustain or incur as a direct or indirect result of the exercise by Supplier of its rights under these clauses 21 to 28.
(e) Customer irrevocably grants to Supplier the right to enter upon Customer’s property or premises, without notice, and without being in any way liable to Customer or to any third party, if Supplier has cause to exercise any of their rights under sections 123 and/or 128 of the PPSA, and Customer shall indemnify Supplier from any claims made by any third party as a result of such exercise.
Cancellation of terms of credit
29. Upon cancellation of any credit facility granted, with or without notice, all liabilities incurred by Customer become immediately due and payable to Supplier without further demand.
30. Customer agrees to indemnify Supplier and keep Supplier indemnified against any claim or demand of any type made under theseTerms and Conditions. This indemnity includes any legal fees and expenses Supplier incurs in order to enforce its rights, on an indemnity basis.
Provision of further information
31. Customer undertakes to comply with any request by Supplier to provide further information, at any time, for the purpose of assessing or reassessing Customer’s creditworthiness, including an updated credit application.
32. If Customer is a corporation (with the exception of a public listed company), it must advise Supplier of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). In the case of a change of directors or shareholders Supplier may require new guarantors to sign a guarantee and indemnity.
33. If Customer is a corporation, the Customer warrants that all of its directors have signed this Application for Commercial Credit (Agreement) and that all of its directors, and any officers nominated by Supplier, will enter into a guarantee and indemnity with Supplier in relation to Customer’s obligations to the Supplier.
34. If Customer is the trustee of a trust (whether disclosed to Supplier or not), Customer warrants to Supplier that:
(a) Customer enters into this Agreement in both its capacity as trustee and in its personal capacity;
(b) Customer has the right to be indemnified out of trust assets;
(c) Customer has the power under the trust deed to sign this Agreement; and
(d) Customer will not retire as trustee of the trust or appoint any new or additional trustee without first advising Supplier.
35. Customer must give Supplier a copy of the trust deed upon request.
36. If Customer enters into this Agreement as partners, Customer warrants that all of the partners have signed this Agreement and that all of the partners will enter into a guarantee and indemnity with Supplier in relation to Customer’s obligations to Supplier.
37. If Customer is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising Supplier. In the case of a change of partners, Supplier may ask for new guarantors to sign a guarantee and indemnity.
38. If Customer becomes insolvent, Customer remains liable under this Agreement for payment of all liabilities incurred hereunder, including if Supplier receives a dividend or payment as a result of Customer being insolvent.
39. Customer must pay for its own legal, accounting and business costs and all costs incurred by Supplier relating to any default by Customer. Customer must also pay for all stamp duty and other taxes payable (if any) in relation to this document or related to or arising from arrangements established by it.
40. Customer will pay Supplier’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against Customer, including collection costs, debt recovery fees and legal costs on an indemnity basis. Such costs and disbursements will be due and payable by Customer to Supplier irrespective of whether pursuit of the recovery action, claim or remedy is successful.
41. Customer acknowledges and agrees that payments by Customer will be applied by Supplier as follows.
(a) Firstly, in payment of any and all collection costs and legal costs in accordance with clauses 28, 39 and 40.
(b) Secondly, in payment of any interest incurred in accordance with clause 47.
(c) Thirdly, in payment of the outstanding invoice(s).
42. In circumstances where Supplier seeks to enforce a purchase money security interest under the PPSA over collateral or proceeds (these terms being consistent with the terms defined in the PPSA), payments received from Customer will be allocated in a manner at Suppliers absolute and unfettered discretion, so as to attribute, to the greatest extent possible, the unpaid balance of the debt to the purchase money obligation in respect of the collateral and/or proceeds over which Supplier seeks to enforce its purchase money security interest.
43. To the extent that payments have been allocated to invoices by Supplier in it’s business records, Supplier may, at its sole and unfettered discretion, allocate and/or retrospectively reallocate payments in any manner whatsoever at Supplier’s absolute discretion, including in a manner inconsistent with clause 42 herein.
44. Payments allocated (and/or reallocated) under clause 42 and/or 43 will be treated as though they were allocated (and/or reallocated) in the manner determined by Supplier on the date of receipt of payment.
Taxes and duty
45. Customer must pay GST on any taxable supply made by Supplier to Customer. The payment of GST is in addition to any other consideration payable by Customer for a taxable supply.
46. If as a result of:
(a) any legislation becoming applicable to the subject matter of this Agreement including any supply by Supplier; or
(b) any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration;
Supplier becomes liable to pay any tax, duty, excise or levy in respect of the Supplies or the amounts received from Customer, then Customer must pay Supplier these additional amounts on demand.
47. The interest rate payable in respect of any invoices not paid within agreed payment terms or in respect of any other amounts owed to Supplier beyond the agreed payment date, is the greater of ten per cent per annum (10% pa) or a rate which is three per cent per annum (3% pa) above the rate fixed, as at the date of default, under Section 2 of the Penalty Interest Rate Act 1983 (NSW). Interest shall be calculated on a daily basis from and including the date of default until and including the date of payment in full.
48. All payments required to be made by Customer under this Agreement will be made free of any set-off, or counterclaim and without deduction or withholding.
49. Any amount due to Supplier from Customer from time to time may be deducted from any monies which may be or may become payable to Customer by Supplier.
Collection and Quality of Supplies
50. Customer must arrange for collection, by its agent or carrier, of all Supplies supplied by Supplier.
51. All Supplies shall, to the extent permitted by law, be deemed to have been received by Customer in good order and condition and in accordance with the order as soon as the delivery docket (or similar documentation) has been signed by Customer, their carrier or agent at which time risk in the Goods transfers to Customer.
52. Under no circumstances shall Supplier be liable for any loss or damage suffered by Customer as a result of delivery, late delivery or non- delivery of any Supplies.
Suitability of Supplies
53. Any description or sample of Supplies given by Supplier is for the purposes of identification only, and Customer acknowledges that any sale of Supplies under these Terms and Conditions is not a sale by description or by sample.
54. Customer acknowledges that it relies entirely upon its own knowledge, skill and judgment and that of its agents and employees in selecting and ordering Supplies from Supplier. Supplier will not provide any advice, express or implied (including where a quotation is provided), as to whether particular Supplies are fit for any purpose, unless expressly provided in writing and signed on behalf of Supplier by the Chief Executive Officer.
55. Customer shall advise Supplier in writing of any claims:
(a) in respect of deficiency or in respect of loss or damage that has occurred to the Supplies while they are in the custody of Supplier or, if applicable, the Supplier's carrier - within 14 days of receipt of the Supplies; and
(b) for non-delivery where the Supplier's carrier was to deliver the Supplies - within 14 days of the agreed delivery time (or if there was no agreed delivery time within 14 days of the reasonable delivery time).
(c) Subject to the Australian Consumer Law, if Customer does not advise the Supplier as set out above, the Supplier shall not be obliged to take any action in respect of that deficiency, loss or damage or non-delivery.
56. Supplier is not liable for any loss caused to Customer by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God or any other activity beyond Supplier's control.
57. In relation to the supply of goods, Supplier’s liability is limited to:
(a) replacing the goods or supplying similar goods;
(b) repairing the goods;
(c) providing the cost for replacing the goods or for acquiring equivalent goods; and
(d) providing the cost for having the goods repaired.
58. In relation to the supply of services, Supplier’s liability is limited to:
(a) supplying the service again; or
(b) providing for the cost of having the services supplied again.
59. Supplier is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by Customer.
60. Customer will, at the request of Supplier, execute documents and do such further acts as may be required for Supplier to register the security interest granted by Customer under the PPSA.
61. Customer agrees to accept service of any document required to be served, including any notice under this Agreement or the PPSA or any originating process, by prepaid post at any address nominated in this Agreement or any other address later notified to Supplier by Customer or Customer’s authorised representative.
62. Nothing in this Agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any goods and/or services pursuant to this Agreement of all or any of the provisions the Competition and Consumer Act 2010 or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified.
63. To the maximum extent permitted by law, Customer is liable to Supplier for:
(a) any loss or damage of any kind to the extent caused by or resulting from any act or omission of Customer or any of its employees, agents or contractors;
(b) any personal injury, death or loss of or damage to real or personal property to the extent caused or contributed to by Customer or any of its personnel, contractors or agents; and
(c) any loss of profits or anticipated profits, economic loss, loss of business opportunity, loss or damage resulting from wasted management time or any special, incidental indirect or other consequential loss or damage, even if notified of the possibility of that potential loss or damage.
64. Any guarantee, representation, warranty, condition or undertaking that would be implied in this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law.
65. Customer acknowledges and agrees that unless specifically notified to the contrary, at the time of placing an order, every supply of Goods by Supplier is the supply of an ingredient that will be used to manufacture or produce something else.
66. Nothing in this Agreement excludes, restricts or modifies any guarantee, condition, warranty, right or remedy conferred on Customer by the Australian Consumer Law or any other applicable law that cannot be excluded, restricted or modified by agreement.
67. Supplier may terminate the agreement constituted by these Terms and Conditions ("Agreement") immediately by notice in writing if:
(a) Customer is in breach of any term of this Agreement and such breach is not remedied to Supplier’s satisfaction within 14 days of written notice by the Supplier;
(b) Customer becomes, threatens or resolves to become, or is in jeopardy of becoming subject to any form of insolvency administration;
(c) Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
(d) Customer ceases or threatens to cease conducting its business in the normal manner; or
(e) Supplier decides to do so for convenience.
68. If such notice is given to Customer, Supplier may in addition to terminating this Agreement:
(a) repossess the Supplies from Customer;
(b) retain any monies paid by Customer, including any deposit;
(c) be regarded as discharged from any further obligations under this Agreement; and
(d) pursue any additional or alternative remedies provided by law.
69. Customer may terminate this Agreement immediately by notice in writing if:
(a) the Supplier is in breach of any material term of this Agreement and such breach is not remedied within 30 days of written notice by Customer; or
(b) the Supplier becomes, threatens or resolves to become subject to any form of insolvency administration.
70. Supplier shall not be obliged to accept the return of any Supplies, but may, in its absolute discretion, subject to mandatory legislative requirements, accept the return of particular Supplies on whatever conditions it thinks fit.
71. Supplier may set out or refer to a recommended retail price for Goods. In such a case, the price set out or referred to is a recommended price only and there is no obligation for anyone to comply with the recommendation.
72. Waiver of any provision, or failure by the Supplier to enforce any of these Terms and Conditions in respect of any breach by Customer, shall not be construed as a waiver of any of the Supplier's rights or a waiver of the Supplier's right to enforce the term in respect of that breach in the future. The only persons authorised to waive a breach by Customer is the Chief Executive Officer. Customer shall not seek to rely upon, nor will they be permitted to rely upon, a waiver purportedly given on behalf of the Supplier by any other person.
Assignment and Novation
73. This Agreement cannot be assigned by Customer without the Supplier's prior written consent. Customer shall consent to such assignment or novation of this Agreement as the Supplier requests.
74. Customer shall treat all information disclosed to it by or on behalf of Supplier, or acquired by Customer concerning the Supplier or the supplies as the Supplier's confidential information and shall not use or disclose the same except:
(a) to the extent necessary in order to make effective use of the Supplies;
(b) to obtain professional advice concerning this Agreement;
(c) to the extent disclosure is required by law; or
(d) to the extent any relevant information shall become public knowledge other than through Customer's act or omission.
75. All intellectual property (including copyright) in all plans, drawings, designs and text (including Specifications) which are made available to Customer or customer shall be solely owned by Caesarstone Australia Pty Ltd ABN 45 121 819 976 and shall be delivered up to that company immediately on that company's request. Customer acknowledges that no intellectual property licence is granted by this Agreement, other than to the extent necessary to enable Customer to resell to their customer for the customer's own purpose and not for further resale.
76. Customer warrants that it has acted honestly, reasonably and in good faith to the Supplier in disclosing to the Supplier, prior to this Agreement, all information which may have materially affected the Supplier's decision to supply the supplies to Customer pursuant to a credit facility and on these Terms and Conditions. Customer also warrants that its purchase, unless otherwise agreed by Supplier, of the Supplies is not for Customer's own personal benefit, but for the benefit of a third party.
77. Where Customer is a reseller of Caesarstone Australia Pty Ltd ACN 121 819 976 or any of that company's related bodies corporate (collectively "Caesarstone"), the following additional terms apply:
(a) Customer shall not resupply the Goods to anyone other than reseller’s customer (Buyer);
(b) The terms on which Customer shall resupply the Goods to Buyer shall be, as far as commercially applicable, materially the same as these Terms and Conditions (excluding this clause).
(c) Where Buyer seeks Customer's consent relating to the Goods, Customer shall not provide such consent without the prior written approval of Supplier.
(d) Customer shall not engage anyone to assist in fulfilment of Customer's obligations to Buyer without Supplier's prior written consent.
(e) If there is any claim or likely claim against Customer or Supplier in respect of the Goods, Customer will immediately inform Supplier, providing full details, and thereafter act in accordance with Supplier's directions in the management and settlement of the claim.
(f) Customer will not give Buyer any warranties in respect of the Goods which are in addition to those provided to Customer by Supplier, without Supplier's prior written consent.
(g) Where Supplier has any direct communications with Buyer for matters connected with these Terms and Conditions, Supplier does so as agent for Customer, and will endeavour to keep Customer informed of all such communications.
78. If any provision of this Agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.
79. If any part of this Agreement is invalid or unenforceable, that part is deleted and the remainder of the Agreement remains effective.
80. Customer agrees that these Terms and Conditions may be varied, added to, or amended by an authorised officer of the Supplier at any time by written notice to Customer and/or by publication on the Supplier’s website.
81. Any proposed variation to these Terms and Conditions by Customer must be requested in writing. Supplier may refuse any such request without providing reasons either orally or in writing.
82. Variations requested by Customer will only be binding upon Supplier if they are accepted in writing by an officer permitted to grant a waiver in clause 72.
Consent to register
83. Customer hereby consents to Supplier recording the details of this Agreement and any subsequent contract related to or arising from it on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by Supplier to effect such registration.
84. Customer waives any right or entitlement to receive notice of the registration of any security interest(s) created by this Agreement on the Personal Property Securities Register.
85. This Agreement constitutes the entire agreement between the parties relating in any way to its subject matter. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this Agreement are merged in this Agreement and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.
86. Notwithstanding the preceding paragraph, in circumstances where there is a pre-existing written credit agreement (Original Agreement) between Customer and Supplier, these Terms and Conditions will constitute a variation of the Original Agreement whereby the terms of the Original Agreement are deleted and replaced with the terms herein, unless the terms of the Original Agreement are otherwise expressly or implicitly preserved by the terms herein in which case they will co-exist with the terms herein, and, to the extent of any inconsistency, these terms will prevail.
87. Customer agrees to the terms of the Privacy Act 1988 authorisation contained in this document.
Additional Supply Terms and Conditions
88. Notwithstanding clause 80, Supplier may prepare and publish (including on its website) separate Supply Terms and Conditions which may incorporate some or all of these Terms and Conditions. Unless the Supply Terms and Conditions state otherwise, to the extent of any conflict or inconsistency between the Supply Terms and Conditions and these Terms and Conditions, these Terms and Conditions shall prevail.