Credit Terms
CREDIT TERMS AND CONDITIONS
1. GENERAL
These terms and conditions (“Terms”) shall apply to the exclusion of all other terms and conditions including any terms and conditions of the Customer (whether on the Customer’s order form or otherwise). The Customer acknowledges that these Terms embody the whole agreement between the parties and agrees to be bound by them in its own capacity and in its capacity as a trustee (if applicable). These Terms shall apply to all supplies by Jefferson Ford Pty Ltd (ABN 27 005 620 897), trading as Jefferson Ford and Jefferson Ford Auto Parts (ABN 27 005 620 897), Jefferson Ford Pty Ltd ATF City Ford Trading Trust trading as Jefferson Paint Supplies & City Parts (ABN 82 581 124 801) , Melshore Pty Ltd ATF Brighton Nissan Trading Trust trading as Jefferson Hyundai (ABN 57 582 924 325), Pamsim Pty Ltd trading as Nunawading Toyota (ABN 34 083 219 318), Eastside Dealership Investments Pty Ltd as trustee for Eastside Mitsubishi Trading Trust and as trustee for Eastside Dealership Trading Trust trading as Eastside Mitsubishi & Eastside Auto Parts (ABN 41 391 506 581) and Eastside Skoda (ABN 81 309 193 275), Peninsula Dealership Investments Pty Ltd ATF Peninsula Dealership Trading Trust trading as Frankston Hyundai (ABN 25 719 606 945) and Frankston Subaru (ABN 25 719 606 945) and such other entities as may be nominated by Jefferson Ford Pty Ltd from time to time (“Company”) to the Customer.
2. PRICE
2.1 The price of goods and/or services will be specified on an invoice provided by the Company to the Customer for an order. Otherwise, the price of goods and/or services will be the price disclosed in the Company’s current price list as varied by the Company from time to time.
2.2 The Company reserves the right to change the price if
- a variation to the Customer’s order for the goods and/or services is requested by the Customer; or
- the Company notifies the Customer of a change in price including by issuing a new price list at the time an order is received.
2.3 In respect of variations to price under clause 2.2(a), the Company will issue a new or amended invoice.
3. PAYMENT
Payment must be made by the Customer to the Company for all goods supplied, work and labour done and services rendered within 30 days from the end of the month in which the goods/services are purchased. The Customer acknowledges that time is of the essence with regard to payment and that any breach of this term will enable the Company to exercise all of its rights contained herein including (but without in any way limiting its rights) the right to cancel further credit and to take legal action for the recovery of all sums outstanding.
4. INTEREST
Should payment remain outstanding beyond the Company’s payment terms as outlined in clause 3 above, the Customer must pay interest on all amounts outstanding from the due date until the date of payment at a rate equal to the rate fixed under the Penalty Interest Rates Act (Vic) 1983.
5. COSTS
Should payment remain outstanding beyond the Company’s payment terms as outlined in clause 3, the Customer:
5.1 is liable for all costs including legal costs (on a solicitor/own client basis) and expenses incurred by the Company in recovering the amount outstanding; and
5.2 As a separate and primary undertaking, the Customer unconditionally and irrevocably indemnifies and keeps indemnified the Company against all claims, liabilities, costs and expenses (including reasonable legal expenses) which the Company may incur as a result of a breach by the Customer of its obligations (express or implied) under these Terms and guarantees the due and punctual payment by the Customer of all monies owing under these Terms.
6. DELIVERY
6.1 Goods shall be delivered to the address specified in the credit application as the address for delivery unless otherwise agreed to in writing between the parties.
6.2 In the event that a delivery date is specified by the Customer, the Company shall use its best endeavours to comply with the Customer’s requests, however any time specified by the Company for delivery of the goods should be regarded as an estimate only. In no circumstances will the Company be liable for any loss or damage of any kind whatsoever in the event that it is not able to comply with the Customer’s request for a delivery at a certain time. The Customer acknowledges and agrees that it will not make any claim against the Company for any loss or damage incurred as a result of late delivery.
6.3 The risk in the goods and all insurance and responsibility for theft, damage or otherwise will pass to the Customer immediately on the goods being delivered to the Customer or collected by or on behalf of the Customer from the Company's premises.
6.4 Costs of delivery (if any) will be charged to the Customer and disclosed on the invoice for such order.
6.5 The Company may at its discretion, deliver the goods in respect of one order in separate deliveries.
6.6 Where the Company is unable to deliver the Goods as agreed solely due to any action or inaction by the Customer, the Company may at its option charge a reasonable fee for re-delivery at a later date and/or reasonable storage fees for storage of the goods.
7. CLAIMS
7.1 The Customer will be deemed to have accepted the goods as being in accordance with its order unless it notifies the Company in writing of its claim (including the relevant invoice number) together with reasons for rejecting the goods within 14 days of delivery of the goods.
7.2 No return of allegedly defective goods which have been modified, fitted, painted or altered in any way after delivery will be accepted by the Company unless it has given prior written authorisation for the return.
7.3 Goods cut to length, goods specially made and goods procured to Customer’s instruction are not eligible for return, unless such goods are faulty or were damaged prior to delivery.
7.4 No freight charges for return of goods arranged by the Customer will be accepted by the Company unless authorised by the Company.
7.5 Acceptance of delivery of goods returned for credit does not signify an agreement to issue a credit note.
7.6 A credit note will be issued only after the goods have been inspected and found to be in satisfactory condition in the reasonable opinion of the Company. In the event a credit note is not issued the Customer will be advised and the goods made available to the Customer for collection or delivery at the Customer’s cost and expense.
8. WARRANTY AND THE COMPETITION AND CONSUMER ACT 2010
8.2 Under applicable State, Territory and Commonwealth Law, including without limitation the Competition and Consumer Act 2010 (Cth) Schedule 2 'Australian Consumer Law' (“ACL”), certain statutory implied guarantees and warranties applicable to the goods the Customer acquires from the Company (including, without limitation the statutory guarantees under the ACL) may be implied into these Terms and cannot lawfully be excluded or limited (“Non-Excluded Guarantees”).
8.3 The Company acknowledges that nothing in these terms and conditions purports to modify, restrict or exclude any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by the Non-Excluded Guarantees.
8.4 Except as expressly set out in these Terms or in respect of the Non-Excluded Guarantees, the Company makes no warranties or other representations under these Terms including but not limited to the quality or suitability of the goods.
8.5 If the Customer is a consumer within the meaning of the ACL, the Company’s liability is limited to:
- replacement of the goods or the supply of equivalent goods;
- repair of the goods;
- payment of the cost of replacing the goods or of acquiring equivalent goods; or
- payment of the cost of having the goods repaired;
8.6 If the Customer is not a consumer within the meaning of the ACL, the Company’s liability for any defect or damage in the goods is:
- limited to the value of any express warranty or warranty card provided to the Customer by the Company at the Company’s sole discretion;
- limited to any warranty to which the Company is entitled, if the Company did not manufacture the goods; or
- otherwise negated absolutely, except to the extent caused or contributed to by the Company’s negligent, reckless or willful acts or omissions.
8.7 Notwithstanding clause 8.1 but subject to the ACL, the Company shall not be liable for any defect or damage to the extent that the defect or damage arises from:
- the Customer failing to properly maintain or store the goods;
- the Customer using the goods for any purpose other than that for which they were designed;
- the Customer continuing to use the goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
- the Customer failing to follow any instructions or guidelines provided by the Company; or
- fair wear and tear.
9. CHANGE OF OWNERSHIP
9.1 The Customer must notify the Company in writing of any change of control or ownership of the Customer within seven (7) days from the date of such change and it indemnifies the Company against any loss or damage incurred by it in connection with the Customer’s failure to notify the Company of any change.
9.2 A change in control or ownership of the Customer will be deemed to have occurred where:
- a sale of all or substantially all of the Customer’s assets has occurred; or
- a change in the shareholding of the Customer (provided that the Customer is not listed on a recognised securities exchange) that results in a different person or group of person having control or composition of the board of directors or more than 50% of the shares giving a right to vote at a general meeting.
10. CANCELLATION
10.1 Orders placed with the Company cannot be cancelled without the written approval of the Company. In the event that the Company accepts the cancellation of any order placed with it, it shall be entitled to charge a reasonable fee for any work done on behalf of the Customer to the date of the cancellation including a fee for the processing and acceptance of the Customer’s order and request for cancellation.
10.2 Without prejudice to any other remedies the Company may have, if at any time a Customer is in breach of any material obligations of these Terms (including those relating to payment), the Company may suspend the supply of goods immediately upon providing notice to the Customer and/or reduce the credit limit on the Customer’s trading account. If the Customer does not remedy the breach within 10 business days, the Company may terminate the Customer’s credit by notice. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.
11. LIEN and Set off
11.1 The Company maintains a lien over all goods in the Customer’s possession that were purchased from the Company to secure payment of any or all amounts due and payable to the Company from time to time.
11.2 The Company may at any time withhold, deduct or set-off from any monies payable to the Customer under these Terms any amount payable by the Customer or any amount for which the Customer may become liable to pay in connection with these Terms.
12. JURISDICTION
The proper law of all contracts arising between the Company and the Customer is the law of the State of Victoria and the parties agree to submit to the jurisdiction of the Courts of that State.
13. PASSING OF PROPERTY
13.1 Until the Company receives full payment in cleared funds (and all cheques and other negotiable instruments have been cleared) for all goods supplied by it to the Customer, as well as all other amounts owing to the Company by the Customer:
(a) title and property in all goods remains vested in the Company and does not pass to the Customer;
(b) the Customer must hold the goods as fiduciary bailee and agent for the Company;
(c) the Customer must keep the goods separate from its own goods and maintain the Company’s labelling and packaging;
(d) the Customer must hold the proceeds of sale of the goods on trust for the Company in a separate account with a bank to whom the Customer has not given security however failure to do so will not affect the Customer's obligation as bailee or trustee;
(e) the Customer should not convert or process the goods or intermix them with other goods but if the Customer does, then the Customer holds the resulting product on trust for the Company and must sell, dispose of or return the resulting product to the Company as it directs;
(f) in addition to its rights under the PPSA, the Company may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods not the property of the Company, and for this purpose the Customer irrevocably licences the Company to enter such premises and also indemnifies the Company from and against all costs, claims, demands or actions by any party arising from such action.
13.2 If any payment for any goods sold by the Company is overdue or if the Customer pays the Company by cheque (in full or in part) and such cheque is not met on presentation by the Company, the Company reserves the rights to retake physical possession of the goods in full or partial satisfaction of the debt and for this purpose the Customer hereby consents to the Company or its agents or servants entering upon the Customer's property.
13.3 Monies owed by the Customer to the Company shall become due immediately upon the commencement of any act or proceeding in which the Customer's solvency is involved.
14. POWER TO SELL GOODS
Until such time as the goods have been paid for in full the Company is at liberty to sell the goods in the ordinary course of business to any third party.
15. PERSONAL PROPERTY SECURITIES ACT
15.1 Notwithstanding anything to the contrary contained in these Terms, the Personal Property Securities Act 2009 (Cth) ("PPSA") applies to these Terms.
15.2 For the purposes of the PPSA:
(a) terms used in this clause 14 that are defined in the PPSA have the same meaning as in the PPSA;
(b) these Terms are a security agreement and the Company has a Purchase Money Security Interest in all present and future goods supplied by the Company to the Customer and the proceeds of the goods.
(c) The security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
(d) the Customer must do whatever is necessary in order to give a valid security interest over the goods and their proceeds which is able to be registered by the Company on the Personal Property Securities Register.
15.3 The security interest arising under this clause 14 attaches to the goods when the goods are collected or despatched from the Company's premises and not at any later time.
15.4 Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3) (d), 132(4), 135 and 157 of the PPSA.
15.5 The Company and the Customer agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Terms.
15.6 To the extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on the Company will apply only to the extent that they are mandatory or the Company agrees to their application in writing; and
(b) where the Company has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
15.7 The Customer must immediately upon the Company's request:
(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
(b) procure from any person considered by the Company to be relevant to its security position such agreements and waivers (including as equivalent to those above) as the Company may at any time require.
15.8 The Company may allocate amounts received from the Customer in any manner the Company determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by the Company.
16. CHARGE OVER PROPERTY AS SECURITY FOR CUSTOMER’S OBLIGATIONS
16.1 In consideration of Company supplying the goods to the Customer under credit and in order to better secure its obligations hereunder, the Customer hereby:
- charges all of its present and future right, title and interest (whether joint or several) in any land, realty or other asset capable of being charged, owned by the Customer either now or in the future (“Property”);
- consents to the Company lodging and registering a caveat in respect of the Property to secure all monies due to it under these Terms; and
- agrees to provide such further information and sign such further documents as necessary for the Company to effect registration of the caveat and or enforce the charge granted under this clause 16 within two (2) business days of a written request by the Company.
16.2 Should the Company lodge and register a caveat in accordance with this clause 16, the Customer must pay the Company’s reasonable legal costs and expenses for the lodging and removal of the caveat on an indemnity basis.
16.3 The Customer irrevocably appoints the Company and each director of the Company as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions in this clause 16, including but not limited to, signing any document on the Customer’s behalf.
17. CAPACITY OF THE CUSTOMER
17.1 If the Customer is a company, the Customer accepts these Terms and enters into the supply arrangement contemplated by the Terms in its capacity as a company and where applicable, in its capacity as trustee of the trust named in the application form and:
- warrants that it has the power and authority to accept these Terms in both capacities;
- warrants that it has an enforceable right of indemnity against the trust and its assets; and
- acknowledges and accepts that it is liable for all debts, obligations and liabilities of the of the Customer arising under or in connection with these Terms in both its corporate and trustee capacities.
17.2 In respect of the Customer acting in the capacity of trustee of any trust (“Trust”) then whether or not the Company may have notice of the Trust, the Customer covenants as follows:
- the Terms extend to all right of indemnity which the Customer now has or may subsequently have against the Trust and the Trust fund;
- the Customer has full and complete power and authority under the Trust to enter into these Terms and the provisions of the Trust do not purport to exclude or take away any right of indemnity of the Customer against the Trust. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
- the Customer will not, without the consent of the Company in writing (which shall not be unreasonably withheld) cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation to the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the Trust property,
17.3 If the Customer is a partnership, all partners are jointly and severally liable for all debits, obligations and liabilities of the Customer arising under or in connection with these Terms.
18. FORCE MAJEURE
18.1 Neither party has any liability under or may be deemed to be in breach of these Terms for any delays or failure in performance under these Terms which result from forces of nature, natural disasters, acts of terrorism, riots, revolution, civil commotion, epidemic, industrial action and action or inaction by a government agency (a “Force Majeure Event”).
18.2 The party affected by a Force Majeure Event must promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
19. NOTICES
A notice or other communication connected with these Terms has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in the credit application, or sent by email to the email address of the addressee.
19.1 No failure or delay by the Company in exercising any right, power or privilege under these Terms will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
19.2 The rights and remedies provided in these Terms are cumulative and not exclusive of any rights and remedies provided by law.
20. ASSIGNMENT
20.1 The Customer may not assign, delegate, novate or otherwise transfer all or any of its rights and obligations under these Terms without the prior consent of the Company.
20.2 A change in control of the Customer (as contemplated by clause 9) will be deemed to be an assignment by the Customer.
21. VARIATION
These Terms may be amended from time to time by the Company and will be made available on Our Credit terms page
22. GST
The abbreviation GST means the Goods and Services Tax. Prices shown and all references to prices, amounts, allowances, refunds, costs, pay-out values and other like words made within this contract are inclusive of the Goods and Services Tax, unless amounts are specifically exempted by legislation. A separate tax invoice will be issued in accordance with the Goods and Services Tax legislation.