TERMS AND CONDITIONS OF THE PROVISION OF CREDIT AND OF TRADE

1.  Caesarstone^® Australia Pty Limited ABN 45 121 819 976  and their related bodies corporate (as that term is defined in the Corporations Act 2001) (Supplier) may, at any time, upon the provision of 48 hours’ written notice to Applicant, vary these terms and conditions of the provision of credit and of trade (“Terms of Trade“).

2.  If Applicant does not agree with the variations proposed by Supplier, they must notify Supplier in writing within fourteen (14) days from receipt of the written notice that the variations are not agreed to. Supplier and/or Applicant will then be at liberty to suspend/withdraw credit facilities if no agreement can be reached between the parties regarding the proposed variations. Absent notice from Applicant, the varied Terms of Trade may be deemed accepted. Clerical errors (such as spelling mistakes or grammatical errors) may be subject to correction without notification.

3.  Applicant must check all invoices and advise Supplier of any errors or omissions within seven (7) days of receipt. Failing advice from Applicant that the invoice contains any errors or omissions, the invoice may be deemed by Supplier as accepted.

4.  Should Applicant not pay for the goods or services supplied by Supplier in accordance with the credit terms as provided herein, or as agreed in writing by Supplier and Applicant from time to time, after issuing a written demand to Applicant demanding payment within fourteen (14) days, Supplier will be entitled to charge an administration fee of 10 percent of the amount of the invoice payable.

Ordering Procedures

5.  Goods may only be ordered using Supplier’s approved ordering procedures and forms, but Supplier may choose to accept a non-complying order.

6.  There is no agreement until Supplier accepts an order by notifying Applicant that it will supply and despatch the goods.

7.  Once placed, an order cannot be cancelled, or delivery deferred, by Applicant, without Supplier’s consent

8.  Applicant acknowledges and agrees that, unless confirmed in writing to the contrary by Supplier at the time of receiving an order, the supply of goods is a supply of an ingredient that will be used to manufacture or produce something else.

Price

9.  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, 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.

10. A statement of Applicant’s account by Supplier is prima facie evidence of its contents.

11. Where a quotation states that no monetary consideration is payable by Applicant for the goods, Applicant’s consideration is Applicant’s agreement not to unreasonably decline to enter a further contract with Supplier or its resellers for the further supply contemplated by the supplies.

Credit Facility – Payment Terms and Cancellation

12. If Applicant applies for a credit facility and Supplier approves it, then

(a) Supplier will invoice Applicant for each order; and

(b) Applicant must pay each invoice in full within 30 days from the date of invoice (or such other period as nominated by Supplier to Applicant).

13. Supplier reserves the right, at any time and in its absolute discretion, to withdraw credit facilities or impose conditions on them, whether or not Applicant is in default. Upon cancellation all liabilities incurred by Applicant become immediately due and must be paid in full to Supplier within seven (7) days of the date of notification of cancellation.

Payment Terms – COD

14. If Supplier has not approved a credit facility for Applicant or an approved credit facility is withdrawn or cancelled then, at Supplier’s election, Applicant shall pay in full the invoice for the goods prior to Supplier despatching or releasing the goods.

Jurisdiction

15. Applicant 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

16. Applicant acknowledges and agrees that any contract for the supply of goods or services between Supplier and Applicant is formed at the address of Supplier in New South Wales..

17. The parties to this agreement 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.

Security/charges

18. Applicant charges in favour of Supplier all of its estate and interest in any real property, whether held in its own right or as capacity as trustee, Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.

19. Applicant charges in favour of Supplier all of its estate and interest in any personal property, whether held in its own right or as capacity as trustee, Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.

20. Applicant appoints as its duly constituted attorney Supplier’s company secretary from time to time to execute in Applicant’s name and as Applicant’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 Applicant may own in any Land Titles Office in any state or territory of Australia, even though Applicant may not have defaulted in carrying out its obligations hereunder upon written notice and demand to Applicant (in the event that there is no default by Applicant in carrying out its obligations hereunder).

21. Where Applicant has previously entered into an agreement with Supplier by which Applicant 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 this agreement and will secure all indebtedness and obligations of Applicant under this agreement.  Supplier may, at its election and upon the provision of written notice, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.

Purpose of credit

22. Applicant acknowledges and agrees that the credit to be provided to Applicant by Supplier is to be applied wholly or predominantly for commercial purposes.

Formation of contract

23. 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. Only written acceptance by Supplier of Applicant’s offer will complete a contract.

24. Placement of an order, either verbally or in writing, will imply acceptance of Supplier’s offer and of these Terms of Trade.

Delivery

25. Applicant acknowledges and accepts that any estimated delivery or supply of goods provided by Supplier is an estimate only. Supplier will not be liable for any loss or damage suffered by Applicant as a result of any delay in the delivery, late delivery or non-delivery of goods.  

26. Delivery will be made within normal business hours between Monday to Friday, 8.00am to 5.00pm only (unless otherwise agreed to in writing).

27. Delivery is deemed to occur at the earlier of:

(a) the collection of goods from Supplier by Applicant or any third party on behalf of Applicant;

(b) the time of loading of goods at Supplier’s premises for the purpose of delivery to Applicant.

28. Supplier is entitled to charge a reasonable fee for storage and/or redelivery charges in the event Applicant does not, or is unable to, accept delivery of the goods.  

29. Applicant accepts that Supplier may deliver goods by instalments and require payment for each separate instalment in accordance with these Terms of Trade.  

30. If Applicant requests that goods are delivered either to an unattended location, left outside, or are left outside Supplier’s premises for collection, Applicant acknowledges that Supplier will deliver the goods as requested at Applicant’s risk.

31. Applicant acknowledges and accepts that it is not relieved from any obligation arising under these Terms of Trade by reason of any delay in delivery.

32. Applicant must inspect the goods immediately upon delivery and must within seven (7) days after the date of inspection give written notice to Supplier with particulars, of any claim that the goods are not in accordance with this agreement. If Applicant fails to give notice, then to the extent permitted by law, the goods must be treated as having been accepted by Applicant and Applicant must pay for the goods in accordance with these Terms of Trade.

Collection and Quality of Supplies

33. Applicant must arrange for collection, by its agent or carrier, of all goods supplied by Supplier and for which Supplier has not included and arranged delivery.

34. All goods shall, to the extent permitted by law, be deemed to have been received by Applicant in good order and condition and in accordance with the order as soon as the delivery docket (or similar documentation) has been signed by Applicant, their carrier or agent at which time risk in the goods transfers to Applicant.

Suitability of Supplies

35. Any description or sample of goods given by Supplier is for the purposes of identification only, and Applicant acknowledges that any sale of goods under these Terms of Trade is not a sale by description or by sample.

36. Applicant acknowledges that it relies entirely upon its own knowledge, skill and judgment and that of its agents and employees in selecting and ordering goods from Supplier. Supplier will not provide any advice, express or implied (including where a quotation is provided), as to whether particular goods are fit for any purpose, unless expressly provided in writing and signed on behalf of Supplier by the Chief Executive Officer.

Retention of title

37. Title in the goods does not pass to Applicant until Applicant has made payment in full for the goods and, further, until Applicant has made payment in full of all the other money owing by Applicant to Supplier (whether in respect of money payable under a specific contract or on any other account whatsoever).

38. Whilst Applicant has not paid for the goods supplied in full at any time, Applicant agrees that property and title in the goods will not pass to Applicant and Supplier retains the legal and equitable title in those goods supplied and not yet sold.

39. Until payment in full has been made to Supplier, Applicant will hold the goods in a fiduciary capacity for Supplier and agrees to store the goods in such a manner that they can be identified as the property of Supplier, and will not mix the goods with other similar goods.  

40. Applicant will be entitled to sell the goods in the ordinary course of its business, but until full payment for the goods has been made to Supplier, Applicant will sell as agent and bailee for Supplier and the proceeds of sale of the goods will be held by Applicant on trust for Supplier absolutely.

41. Applicant’s indebtedness to Supplier, whether in full or in part, will not be discharged by the operation of clause 40 hereof unless and until the funds held on trust are remitted to Supplier.

42. Applicant agrees that whilst property and title in the goods remains with Supplier, Supplier has the right, with prior notice to Applicant, to enter upon any premises occupied by Applicant (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of Applicant) to inspect the goods of Supplier and to repossess the goods which may be in Applicant’s possession, custody or control when payment is overdue.

43. Applicant will be responsible for Supplier’s reasonable costs and expenses in exercising its rights under clause 42. Where Supplier exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of Applicant against Supplier, its employees, servants or agents.

44. Applicant agrees that where the goods have been retaken into the possession of Supplier, Supplier has the absolute right to sell or deal with the goods, and if necessary, sell the goods with the trademark or name of Applicant on those goods, and Applicant hereby grants an irrevocable licence to Supplier to do all things necessary to sell the goods bearing the name or trademark of Applicant.

45. For the avoidance of doubt, Supplier’s interest constitutes a ‘purchase money security interest’ pursuant to the PPSA.

Returns

46. Applicant acknowledges and agrees that Applicant must, within fourteen (14) days of the date of delivery, request written approval for the return of any goods, which Supplier may at its discretion provide,

47. When approved for return, the goods must be returned, at the cost of Applicant, within sixty (60) days of the date of delivery in an unsoiled, undamaged and re-saleable condition, and where appropriate, in the original packaging.

48. Applicant acknowledges and agrees that any custom-made or specially produced goods are unable to be returned, subject, if applicable, to the Australian Consumer Law provisions.

49. Applicant is responsible for any costs associated with the return of goods pursuant to these terms.

50. Supplier will charge, in respect of all goods returned after fourteen (14) days from the date of delivery, handling and administration charges equivalent to one hundred (100) dollars per slab if returned up to thirty (30) days from date of delivery and three hundred (300) dollars beyond thirty (30) days, or such greater amount as is reasonably appropriate.

Resale of Goods

51. 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.

Indemnity

52. Applicant agrees to indemnify Supplier and keep Supplier indemnified against any claim that arises out of or is related to the goods and/or services supplied under this agreement  This indemnity includes any legal fees and expenses Supplier incurs in order to enforce its rights, on an indemnity basis.

Provision of further information

53. Applicant undertakes to comply with any reasonable written requests by Supplier to provide further information for the purpose of assessing Applicant’s creditworthiness, including an updated credit application.

54. If Applicant 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 ask for new guarantors to sign a guarantee and indemnity.

Corporations

55. If Applicant is a corporation, Applicant warrants that all of its directors have signed this agreement and that all of its directors may be required to enter into a guarantee and indemnity with Supplier in relation to Applicant’s obligations to Supplier.

Trustee capacity

56. If Applicant is the trustee of a trust (whether disclosed to Supplier or not), Applicant warrants to Supplier that:

(a) Applicant enters into this agreement in both its capacity as trustee and in its personal capacity;

(b) Applicant has the right to be reasonably indemnified out of trust assets;

(c) Applicant has the power under the trust deed to sign this agreement; and

(d) Applicant will not retire as trustee of the trust or appoint any new or additional trustee without advising Supplier.

57. Applicant must give Supplier a copy of the trust deed upon request.

Partnership

58. If Applicant enters into this agreement as partners, Applicant warrants that all of the partners have signed this agreement and that all of the partners may be required to enter into a guarantee and indemnity with Supplier in relation to Applicant’s obligations to Supplier.

59. If Applicant 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.

Insolvency

60. If Applicant becomes insolvent, Applicant remains liable under this agreement for payment of all liabilities incurred hereunder.  Applicant remains liable under this agreement even if Supplier receives a dividend or payment as a result of Applicant being insolvent.

Waiver

61. A waiver of any provision or breach of this agreement by Supplier must be made by an authorised officer of Supplier in writing.  A waiver of any provision or breach of this agreement by Applicant must be made by Applicant’s authorised officer in writing.

62. Until ownership of the goods passes, Applicant waives its rights it would otherwise have under the PPSA (unless otherwise agreed to in writing by Supplier and Applicant:

(a) under section 95 to receive notice of intention to remove an accession;

(b) under section 118 to receive notice that Supplier intends to enforce its security interest in accordance with land law;

(c) under section 121(4) to receive a notice of enforcement action against liquid assets;

(d) under section 129 to receive a notice of disposal of goods by Supplier purchasing the goods;

(e) under section 130 to receive a notice to dispose of goods;

(f) under section 132(2) to receive a statement of account following disposal of goods;

(g) under section 132(4) to receive a statement of account if no disposal of goods for each 6 month period;

(h) under section 135 to receive notice of any proposal of Supplier to retain goods;

(i) under section 137(2) to object to any proposal of Supplier to retain or dispose of goods;

(j) under section 142 to redeem the goods;

(k) under section 143 to reinstate the security agreement; and

(l) under section 157(1) and 157(3) to receive a notice of any verification statement.

Assignment and Novation

63. This Agreement cannot be assigned or novated by Applicant without Supplier’s prior written consent.

Intellectual property

64. Applicant acknowledges and accepts that all copyright in all plans and drawings (including but not limited to design ideas and custom made solutions) prepared and supplied by Supplier, shall remain the property of Supplier.

65. The purchase of goods under these terms does not confer on Applicant any licence or assignment of any copyright, patent, design, trade mark, trade name or product name, or any other intellectual property right (whether registered, registrable or not) that subsists in the goods.

Costs

66. Applicant must pay for its own legal, accounting and business costs and all costs incurred by Supplier relating to any default by Applicant under this agreement. Applicant must also pay for all stamp duty and other taxes payable on this agreement (if any).

67. Applicant will pay Supplier’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against Applicant, including collection costs, debt recovery fees and legal costs on an indemnity basis.  

68. Subject to clauses 69 and 70, payments by, or on behalf of, Applicant will be applied by Supplier as follows.

(a) Firstly, in payment of any and all collection costs and legal costs in accordance with clauses 43 and 66.

(b) Secondly, in payment of any interest incurred in accordance with clause 73.

(c) Thirdly, in payment of the outstanding invoice(s).

69. 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 Applicant 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. To the extent that payments have been allocated to invoices by Supplier in its 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 67 herein.

70. Payments allocated (and/or reallocated) under clause 68 and/or 69 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

71. Applicant must pay GST on any taxable supply made by Supplier to Applicant under this agreement.  The payment of GST is in addition to any other consideration payable by Applicant for a taxable supply.

72. If as a result of:

(a) any legislation becoming applicable to the subject matter of this agreement; 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 amounts received from Applicant, then Applicant must pay Supplier these additional amounts on 48 hours’ written demand.

Interest rates

73. The interest rate on any outstanding debts is a fixed rate of ten per cent per annum.

Set-off

74. All payments required to be made by Applicant under this agreement will be made free of any set-off, or counterclaim and without deduction or withholding, unless agreed to otherwise by Supplier and Applicant in writing.

75. Any amount due to Supplier from time to time may be deducted from any monies which may be or may become payable to Applicant by Supplier.

Claims

76. Applicant 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, Supplier’s carrier – within 14 days of receipt of the Supplies; and

(b) for non-delivery where 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 applicable, if Applicant does not advise Supplier as set out above, Supplier shall not be obliged to take any action in respect of that deficiency, loss or damage or non-delivery.

Miscellaneous

77. Supplier is not liable for any loss caused to Applicant by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God or any other activity beyond Supplier’s control.

78. 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.

79. 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.

80. Supplier is not liable 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 Applicant as a result of the goods and/or services supplied under this agreement.

81. Applicant 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 Applicant to Supplier under the PPSA.

82. Applicant 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 application or any other address later notified to Supplier by Applicant or Applicant’s authorised representative.

83. Applicant further agrees that where Supplier have rights in addition to those under part 4 of the PPSA, those rights will continue to apply.

84. Applicant irrevocably grants to Supplier the right to enter upon Applicant’s property or premises, with notice, and without being in any way liable to Applicant 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 Applicant shall reasonably indemnify Supplier from any claims made by any third party as a result of such exercise.

85. 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.

Customer Warranty

86. Applicant warrants that it has acted honestly, reasonably and in good faith to Supplier in disclosing to Supplier, prior to this agreement, all information which may have materially affected Supplier’s decision to supply the supplies to Applicant pursuant to a credit facility and on these Terms of Trade. Applicant also warrants that its purchase, unless otherwise agreed by Supplier, of the Supplies is not for Applicant’s own personal benefit, but for the benefit of a third party.

Reseller Specific Terms

87. Where Applicant is a reseller of Supplier the following additional terms apply.

(a) Applicant shall not resupply the goods to anyone other than the reseller’s the customer (Buyer).

(b) The terms on which Applicant shall resupply the goods to Buyer shall be, as far as commercially applicable, materially the same as these Terms of Trade (excluding this clause).

(c) Where Buyer seeks Applicant’s consent relating to the goods, Applicant shall not provide such consent without the prior written approval of Supplier.

(d) Applicant shall not engage anyone to assist in fulfilment of Applicant’s obligations to Buyer without Supplier’s prior written consent.

(e) If there is any claim or likely claim against Applicant or Supplier in respect of the goods, Applicant 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) Applicant will not give Buyer any warranties in respect of the goods which are in addition to those provided to Applicant by Supplier, without Supplier’s prior written consent.

(g) Where Supplier has any direct communications with Buyer for matters connected with these Terms of Trade, Supplier does so as agent for Applicant, and will endeavour to keep Applicant informed of all such communications.

Severance

88. 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.

89. If any part of this agreement is invalid or unenforceable, that part is deleted and the remainder of the agreement remains effective.

Variation

90. Applicant, subject to the provisions of clause 2, agrees that these Terms of Trade may be varied, added to, or amended by an authorised officer of Supplier at any time by written notice to Applicant.  Applicant will be provided with fourteen (14) days to accept the variation/s, failing which the variations may be deemed accepted by Supplier.

91. Any proposed variation to these Terms of Trade by Applicant must be requested in writing.  Supplier may refuse any such request without providing reasons either orally or in writing.

92. Variations requested by Applicant will only be binding upon Supplier if they are  accepted by Supplier in writing.

PPSA, Grant of security interest and consent to register

93. Applicant agrees that these Terms of Trade create a security interest in favour of Supplier for the purposes of the PPSA and Applicant has granted the interest to Supplier which it holds as a purchase money security interest. Applicant hereby consents to Supplier recording the details of this agreement on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by Supplier to effect and perfect such registration.

94. Applicant waives any right or entitlement to receive notice of the registration of any security interest(s) created by this instrument on the Personal Property Securities Register.

Entire agreement

95. This agreement constitutes the entire agreement between the parties relating in any way to its subject matter, unless agreed to otherwise by Supplier and Applicant in writing.  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.

96. Notwithstanding the preceding paragraph, in circumstances where there is a pre-existing written credit agreement (Original Agreement) between Applicant and Supplier, these terms and this agreement 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.

Privacy Act

97. Applicant agrees to the terms of the Privacy Statement pursuant to the Privacy Act 1988 (as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012  contained in this document.