1. Definitions
1.1 In this agreement: ‘we’ and ‘us’ means JKA BARTLETT PTY LTD ACN 678 201 360 ATF THE JKA BARTLETT UNIT TRUST TRADING AS COMPLETE ALIGNMENTS ABN 63 570 241 177; and ‘you’ means the company, sole trader or partnership purchasing the goods and services; and ‘goods and services’ means any item whatsoever supplied or services provided by us to you (including by not limited to motor vehicle parts and/or accessories).
2. Warranty of Correctness of Information
2.1 You warrant that all information supplied in this application is true and correct.
2.2 You also authorise us to contact your bank, accountant, and other people not listed in this application as references but whom we know or reasonably suspect that you have had dealings with in order to determine if we will give you credit. We do not have to tell you what they tell us.
2.3 If we require further information after we have made those enquiries: (a) you may agree to provide it within a reasonable time; or (b) you may refuse to provide it and withdraw your application.
2.4 If we agree to give you credit, we will write to you and inform you of that and your credit limit.
3. Applicability of Conditions
3.1 If we agree to give you credit, each transaction with us is to be on the following terms and conditions.
3.2 We may change the terms and conditions and upon written notice to you of the changes, you will be bound by the changed terms in respect of all subsequent transactions.
3.3 You agree that we may refuse credit to you without reason and cancel all credit facilities granted to you without notice and without giving a reason.
3.4 You must inform us in writing immediately of any change in the proprietors or directors of your business.
4. Privacy We comply with privacy principles imposed by law. You confirm that you agree with the consents and acknowledgement with respect to your private information being dealt with as detailed in the “Consent for Credit Searches and Acknowledgement of Privacy Policy” section of the Application for Trade Credit and Terms forming part of these Terms and Conditions of Trade.
5. Risk and Delivery
5.1 You are responsible for any loss, damage or deterioration to the goods once they leave our place of business that is: they will then be at your risk. You should get insurance to cover this.
5.2 Delivery will be at our place of business. You will be responsible to arrange and pay for freight from our place of business. We can help you to arrange freight if you wish. We will not do so unless you request it.
6. Payment for Goods and Services
6.1 When we sell goods or provide services to you, we will tell you the price which is inclusive of goods and services tax, if applicable.
6.2 Goods and services are not supplied on a sale or return basis. Subject to these terms, once we accept your order, you are obliged to take the goods although property in the goods is yet to pass to you.
6.3 Any agreement to accept any return of the goods must be in writing signed by us.
6.4 If we agree to accept any return, our current return conditions will apply. These are set out in clause 8 below of these terms and conditions.
6.5 You must pay for the goods and services supplied within 30 days from end of month of the date of supply. Goods or services are deemed supplied on the day that they are delivered to you at our business premises.
6.6 We will charge you a fee of $40 if your payment is dishonoured for any reason.
6.7 Payment becomes immediately due if: (a) you commit any act of bankruptcy; (b) a meeting of your creditors is called; (c) a mortgagee or mortgagee’s agent takes possession of any of your assets; (d) a receiver of any of your assets is appointed; (e) you go into voluntary administration; or (f) a petition to bankrupt or liquidate you is issued.
6.8 Until an overdue payment is paid, you have to pay interest on it at 12% per annum.
6.9 You must pay us any and all costs and expenses incurred or which will be incurred by us in respect of any action for recovery of monies or repossession of goods, including but not limited to debt collector’s fees, agent fees, solicitor fees (on a full indemnity basis) and fees of other parties acting on behalf of us.
7. Security
In consideration of us agreeing to sell goods or provide services to you and extend you credit, you charge in our favour all your estate and interests in any land which you now have or may later acquire and any other asset or trust asset with payment of all monies owed to us by you.
8. Returns Policy
8.1 The following goods are not ‘returnable’:
(a) Goods marked ‘non-returnable’;
(b) Parts procured Ex Supplier are not returnable unless
we give prior approval;
8.2 Electrical items will not be accepted for credit.
8.3 We may consider, but are not obliged to allow goods to be returned for credit which are not detailed in clauses 8.1 and 8.2
above, if:
(a) the goods are returned in good and reasonable condition;
(b) you first pay all freight and other charges to deliver the goods to us; and
(c) you first provide us with the original invoice number and date of supply;
8.4 We will not accept any return of goods unless our prior approval has been obtained in writing.
(a) We will not allow credits for any freight and delivery fees.
(b) We may issue a credit note after we have inspected the goods and found them satisfactory. If we decide not to issue a credit note, we will inform you and make the goods available at our premises for you to collect.
(c) Any claims for damaged goods or short deliveries must be made to us in writing within 24 hours of the goods being delivered to you.
9. Retention of Title & PPSA
9.1 For the purpose of this clause 9: ‘PPSA’ means the Personal Property Securities Act 2009 (Cth); ‘PPS register’ means the Personal Property Securities
Register; ‘Purchase money security interest’, ‘registration commencement time’ ‘security interest’; and ‘verification statement’ all have the meanings given by the PPSA.
9.2 Whilst the risk in the goods passes on delivery, legal and equitable title in the goods will not pass to you until payment in full for all debts accrued or owed by you to us for the goods or has been received by us in cleared funds.
9.3 Until we receive payment for the goods or services supplied in full, we reserve the following rights:
(a) the legal and equitable ownership of the goods;
(b) the right to enter upon your premises and retake possession of the goods;
(c) the right to keep or resell any goods repossessed
under clause 9.3(b); and
(d) any other rights we may have at law or under the
PPSA.
9.4 Until we receive payment for the goods and services in full, you acknowledge that we have a purchase money security interest which attaches over the goods and their proceeds and a security interest in relation to other amounts owed by you to us.
9.5 For the avoidance of doubt, after the registration commencement time, we may register our purchase money security interest and security interest on the PPS register established by the PPSA and where necessary amend the registration.
9.6 You undertake to do anything (such as obtaining consents, signing and producing documents, producing receipts and getting documents completed and signed) which we ask and consider necessary for the purposes of:
(a) ensuring that a security interest created under this agreement is enforceable, perfected and otherwise effective;
(b) enabling us to apply for any registration, or give any notification, in connection with a security interest created under this agreement so that the security interest has the priority required by us, including anything we ask you to do in connection with the PPSA.
9.7 You must not grant any other person a security interest over the goods or their proceeds.
9.8 To the extent permitted by law, if the PPSA applies, you irrevocably waive your rights you may have to:
(a) receive notices or statements under sections 95, 121(4), 125, 130, 132(3)(d), 132(4) and 135 of the PPSA;
(b) redeem the goods under section 142 of the PPSA;
(c) reinstate the agreement under section 143 of the PPSA;
(d) receive a verification statement as defined in the PPSA.
9.9 Nothing in this clause 9 prevents us from taking action against you for the purchase price of the goods or services.
9.10 Until the property in goods passes to you, and without prejudice to our rights under the PPSA:
(a) you may use them in other products or items on condition that the product or item (‘product’) will be our property as a security for full payment for
the goods;
(b) until you use or sell the goods or products, you must store them separately so that they are clearly identifiable as our property;
(c) you may fix the goods or products into the articles of any other person on condition that the resulting item is owned in common by us and that other person.
(d) you may sell the goods or the products in the ordinary course of your business on the following conditions:
(i) you make the sale as our agent and bailee;
(ii) any proceeds of sale received by you are held by you on trust for us to the extent that the proceeds of sale relate to our goods which are incorporated into the product or item;
(iii) you must keep our proportion of the proceeds of sale separately and so that they are clearly identifiable as ours;
(iv) if you have not received the proceeds of sale, you will, if we require, transfer to us your rights in respect of the sale price.
9.11 In addition to being liable to pay all our enforcement expenses as set out in clause 6.9 you agree to be liable for our costs of our registration of our purchase money security interest and security interest on the PPS register.
10. Trustees
10.1 If you are the trustee of a trust (whether disclosed to us or not), you warrant to us that: not, you warrant to us that:
(a) you enter into this agreement in both your capacity as trustee and in your personal capacity;
(b) you have the right to be indemnified out of trust assets;
(c) you have the power under the trust deed to sign this agreement; and
(d) you will not retire as trustee of the trust or appoint any new or additional trustee without advising us.
10.2 You must give us a copy of the trust deed upon request.
11. Heavy Vehicle Law
11.1 “Heavy Vehicle National Law” means the Heavy Vehicle National Law (South Australia) Act 2013.
11.2 “Property” means any plant, equipment and/or property provided by you to us for the purpose of the provision of services pursuant to these terms and conditions.
11.3 You acknowledge and accept that the supply of goods and/or parts for accepted orders is subject to our obligations pursuant to the Heavy Vehicle National Law and that we have the right to halt all services and/or retain possession of all goods, parts and/or property at any time if we reasonably consider that it is necessary to do so in order to comply with our obligations pursuant to the Heavy Vehicle National Law. We shall not be liable to you for any loss or damage the you suffer due to our exercising our rights under this clause.
11.4 In the event that we exercise our rights set out in the above
clause
11.3, and you request or demand the release of any of the goods, parts and/or property, we may elect to do so at our absolute discretion. Where we release any goods, parts and/or property pursuant to this clause, you acknowledge and accept that you provide a full indemnity to us for any and all costs (including legal costs and disbursements), damages, penalties, fines or any other monetary amount that we are liable to pay to any person or entity (including a Government body or Court or Tribunal) that may be incurred by us directly or indirectly relating to the release of the goods, parts and/or property into your possession and/or control.
12. General and Miscellaneous Terms
12.1 You agree these terms and conditions represent the entire agreement between us and supersedes all previous agreements. No term set out in your order forms or other documentation will affect these terms. You agree all conditions, warranties or other terms implied by statute or common law are expressly excluded to the fullest extent permitted by law.
12.2 You agree our liability to you for any breach of any implied terms not excluded by clause 12.1 will be limited (at our option) to the replacement or repair or payment of the cost of replacement or repair of the relevant goods or the re-supply of the services.
12.3 To the fullest extent permitted by law, you agree we will not be liable to you for loss of profit or other economic loss, direct or indirect or consequential loss, special, general or other damages or other expenses or costs arising out of a breach of contract or any common law duty (including negligence) by us, our agents or employees.
12.4 In these terms reference to a person includes a corporation, and the singular includes the plural and the other way around.
12.5 A reference to you (the customer) includes your servant, agent, partner, contractor or employer.
12.6 If there is more than one of you, all of you are jointly and severally bound* by these terms.
12.7 The law of South Australia governs these terms and any legal action relating to them must be brought in South Australian Courts.
12.8 You and us can give each other a written notice under this agreement at the addresses set out on the front page, by personal delivery, post, facsimile transmission or electronic mail.
12.9 In making the application for trade credit with us, you agree to be bound by the above terms and conditions. –
*Joint and several liability means that both of you and/or each one of you are liable for the full amount of any liability
