Terms and conditions of use
TERMS AND CONDITIONS OF TRADE AND CREDIT ACCOUNTS
- ABC or THE COMPANY means Cargills Pty Ltd (ACN 009 198 145) as trustee for Winter Family Trust (ABN 17 043 078 179) trading as ABC Distributors WA.
- Business Day means a day in which trading banks are open in Western Australia provided that day is not a Saturday, Sunday or Public Holiday and in regard to receipt of notices then in the place of receipt.
- Perth metropolitan area means the area around the Perth central business district that ABC deems to form part of the metropolitan area of Perth.
- Product means a good offered for sale by ABC to You.
- You means the person or entity ordering Product(s) or any person or entity acting with the actual or ostensible authority of You.
- ABC endeavours to maintain the information on their website (including but not limited to, pricing, and availability of Products), www.abcwa.com.au, and makes no warranties, representations or undertakings about:
- any of the content on the website, including but not limited to, quality, accuracy, completeness or fitness for purpose of any such Product; or
- any content of any website referred to or accessed by hypertext links or otherwise from the website.
- ABC reserves the right to amend features and specifications of a Product described or depicted on the website from time to time without further notice.
- ABC makes no warranties, representations or undertakings as to:
- the quality of the information downloaded from the website, and further assumes no responsibility for any loss or damage to Your computer and or network as a result of You accessing the website or downloading information from the website;
- any interruption or error that may occur in You accessing the website; and
- communications made through the website to ABC including, but not limited to, the placement of an order.
- ABC may require You to set up an online account via the ABC website. ABC may require You to provide some or all of the following information:
- Your name;
- Your address, including postal address;
- Your telephone number, including mobile phone;
- Your email address.
- ABC shall take all reasonable care with any information provided by You to them from time to time, including information communicated via the website. However, ABC does not warrant or, represent the safety of any information communicated to them via their website.
- ABC may receive some non-personal information when You visit ABC’s website. The information collected may include:
- the name of the domain form which You access the Internet from;
- the Internet protocol (IP) address of the computer You are using;
- the browser software You use and Your operating system;
- the date and time you access the ABC website;
- the geographic location from which you access the ABC website; and
- the Internet address of the website from which You linked directly to ABC’s website.
- ABC uses data collection devices such as “cookies “to deliver customised visitor experiences and to analyse website user metrics. “Cookies” are small files placed on your hard drive that assist ABC in providing its services. Most cookies are “session cookies”, which means they are automatically deleted from Your hard drive once You close Your browser.
- Any of Your information collected from ABC’s website and the creation of an account shall not be provided to a third party, unless required by law; You instruct us in writing to do so; or is passed to a debt collection agency for the purpose of collecting outstanding debt.
- You may place an order to purchase Products from ABC online, via ABC’s website, by placing an order with email@example.com, or by calling the office on (08) 9478 2201.
- All orders placed with ABC, regardless of where the order originated, are governed by these Terms and Conditions of Trade.
- ABC has the right to refuse or reject, for any reason, an order placed by You.
- ABC may fill an order in full or part, depending on the availability of supplies of the Products so ordered.
- All Product prices on ABC’s website are inclusive of GST.
- You may not cancel an order once accepted by ABC. ABC, at its discretion, may however allow for an order to be cancelled.
- If, for any reason, the price of a Product or the availability of a Product is incorrect on the website, and ABC accept an order for such a Product, ABC may cancel Your order and refund you such moneys that have been received in receipt of Your order.
- ABC may deliver products throughout Australia.
- For orders with a delivery address outside the Perth metropolitan area the delivery fee shall be the fee incurred by ABC from the third party courier provider to transport Your order from them to You.
- ABC shall provide an estimated delivery date, if applicable, of your order and will use its best endeavours to see that the Products are delivered on time. However ABC provides no warranties, representations or undertakings that an order will be delivered by the estimated delivery date and ABC shall not be liable for any loss or damage, whatsoever, caused by the order not being delivered by the estimated delivery date.
- ABC is not liable for any loss, or damage, whatsoever, caused to a Product whilst it is in transit to You.
- ABC may accept return of Products so long as the Product is in a new and resaleable condition.
- You must contact ABC within 24 hours to inform them that You wish to return a Product and the reason for the return.
- If ABC agree to the Product being returned, ABC shall provide You with a product return number that must be used in all future communications regarding the returned Product, and must be placed on the Product prior to delivery to ABC.
- ABC shall inspect any returned Product to assess resaleable condition and may at their discretion credit Your account for the value of the returned Product.
- ABC will not accept return of Products that were delivered to You more than twelve (12) months prior.
- You shall bear any and all delivery costs associated with returning a Product to ABC.
- Payment for products shall be by way of a cash account, seven (7) day credit account or credit account.
- Payment of a seven day credit account shall be due and payable within seven (7) days in which the goods were confirmed as available for collection or dispatched to the delivery address, as specified in the order instructions, or as provided by the You, the customer from time to time.
- Payment of a credit account, not being a seven day credit account, shall be due and payable within 30 days from end of the month in which the goods were confirmed as available for collection or dispatched to the delivery address, as specified in the order instructions, as provided by You from time to time.
- You will pay any collection, dishonour / representation charges, collection agency costs or legal fees incurred by ABC as a consequence of You breaching any agreement with the Company.
- ABC reserves the right to refuse or suspend an order and cancel the credit account facility if You are in breach of any agreement with ABC.
- You agree to ABC obtaining information about your consumer or commercial credit worthiness from a credit reporting agency or a commercial credit reporting business, for the purpose of assessing Your credit worthiness at any time. You acknowledge that information from this application or concerning the Company’s credit provider status may be disclosed.
- You also agree that ABC may give to, or receive from another credit provider, a report about Your consumer or commercial credit worthiness at any time.
- All Products are covered by the applicable manufacturer’s warranty. To the maximum extent permitted by law, all other warranties are excluded. If a Product is unfit or there is a delay in supply, ABC’s liability is limited to re-supply of the Product. ABC will not under any circumstances be liable for any consequential loss of any kind (including, but not limited to, loss of opportunity, loss of profits, loss of the use of money, or any other indirect, consequential or pure economic loss).
RETENTION OF TITLE AND PPSA
- You agree the title in the goods remains with ABC from the time of supply until such time as payment is made in accordance with these Terms and Conditions. You agree that ABC may protect its interest in the goods and any future acquired goods by registering its security interest on the Personal Property Securities Register on the terms detailed in subclauses 44(a) to 44(e), inclusive.
- You hereby grant to ABC a purchase money security interest (“ PMSI”) for each and every order you place on credit with ABC, which ABC may perfect by lodging an interest under the Personal Property Securities Act 2009 (“PPSA”) on the terms of clause 44(a) to 44(e), inclusive. For the absence of doubt a PMSI is granted for every individual order that is placed by You at the time of acceptance of that order.
- You further grant ABC a general security interest over all of your present and after acquired property, for all future supplies of products by ABC to You, which ABC may perfect by lodging an interest under the PPSA on the following terms:
- ABC (secured party) may protect its interest in the goods by registering one or more charges pursuant to the PPSA against the product, or against any deposit, promise to pay, card authority or other security granted pursuant to this Agreement
- To the extent permitted by law, the following sections in the PPSA will not apply to this Agreement and You hereby waive all rights arising under those sections: s92 (secured party must not damage goods when removing accession); s93 (reimbursement for damage); s94 (refusal of permission to remove accession); s95 (notice of removal of accession - to the extent that it requires ABC to give a notice to You); s97 (Court order about removal of accession); s118 (enforcing security interests in accordance with land law decisions); s121 (enforcement of liquid assets); s130 (notice of disposal to the extent that it requires ABC to give a notice to You); s132(3)(d) and (4); s134(1); s135 (notice of retention); s137; s140; s142 (redemption of collateral); s157 (Privacy Act notice).
- You hereby agree, at Your cost to do everything which ABC reasonably requires to be done, for the purpose of ensuring that in relation to each and every Security Interest granted by it to ABC:
- any such Security Interest is enforceable, perfected and effective and continues to be so;
- ABC may apply for any registration or give any notification which ABC may deem necessary to ensure that the Security Interest has priority as a first priority interest, or with such other priority as ABC agrees in writing;
- ABC is able to exercise all of its rights in relation to the Security Interest;
- promptly sign any further documents and provide any further information (such information to be complete, accurate and up to date in all respects) that ABC may reasonably require to register a Financing Statement, Financing Change Statement other document required under the PPSA;
- indemnify and upon demand reimburse ABC for all expenses incurred in registering a Financing Statement, Financing Change Statement or any other document required under the PPSA or for the purposes of releasing any charged property;
- give ABC at least 14 days prior written notice of any proposed change in Your name or any other change in Your details;
- Immediately advise ABC of any material change in its business practices of selling goods that would result in a change in the nature of proceeds derived from such sales.
- You hereby waive your right to receive a Verification Statement in accordance with s157 PPSA.
- You will not disclose any information of the kind described in s275(1) PPSA without the prior written consent of ABC.
GUARANTEE AND INDEMNITY
- General: -
- In consideration of ABC at the request of the Guarantor agreeing to supply and continuing the supply of the product to You and in further consideration any credit or credit facility given by ABC to You the Guarantor hereby guarantees to ABC the due and punctual payment by You of all moneys which are now or may from time to time hereafter be owing or remain unpaid by You to ABC and the due performance of Your obligations to ABC howsoever arising now and in the future and undertakes to pay all such moneys and fulfil all such obligations on demand;
- AND ALSO INDEMNIFY and keep indemnified ABC against all loss or damage that ABC may suffer by reason that the whole or any part of Your liability to ABC is not recoverable from the Guarantor by reason of any failure of liability of You for any reason. This indemnity will not be limited or affected in any way whatsoever by the fact that such moneys or obligations cannot be or could never be recovered from or enforced against You for any reason. Each Guarantor’s liability under this clause is unlimited;
- AND FURTHER the Guarantor hereby acknowledges that prior to the execution of this Agreement that the Guarantor has: consulted independent legal advisers who have explained the true purport and effect of this Guarantee and the nature and extent of the legal liability and obligations which this Guarantee places upon the Guarantor (or has had such opportunity and decided not to obtain such legal advice); and, understood the true purport and effect of this Guarantee and the nature and extent of the legal liability and obligations which this Guarantee places on the Guarantor.
- The Guarantor charges to the Company all of its present and future undertaking and assets (including any real property assets it has an interest in) as security for the due and punctual payment to the Company of all present and future amounts payable by You under or in connection with Your credit. The Guarantor acknowledges and agrees that the Company may at its discretion, register a caveat or other security interest over any real property owned by the Guarantor. The Guarantor must pay any tax or duty payable as a result of the creation of this charge.
- The Guarantor acknowledges that the Guarantor's obligations under this Guarantee will be principal obligations co-extensive with those of You to ABC.
- This Guarantee is a continuing guarantee to ABC for all debts of You to ABC in respect of the Product supplied or to be supplied to You and will not be prejudiced, abrogated or affected by:
- ABC providing any indulgence or concession to You or any Guarantor or by any variation in the terms upon which ABC supplies the Product or makes credit available to You or by ABC waiving any breach or default by You;
- any payment made to ABC which is thereafter avoided whether by statute as a preference or voidable transaction or for any other reason whatsoever and any said payment will not operate to discharge the Guarantor's liability under this Guarantee and in that event ABC, You and the Guarantor are to be restored to the rights which each respectively would have had if the payment had not been made;
- the Guarantor not having notice of any neglect or omission by You to pay for the Product ordered in accordance with the trade terms specified by ABC;
- any absolute or partial release of or compromise with You or any one or more Guarantor by ABC;
- any composition, compromise, release, discharge, arrangement, abandonment, waiver, variation, relinquishment or renewal of any security or right by ABC;
- any variation of the provisions of this Agreement by You;
- any assignment of this Agreement of the contract of supply;
- any release, failure to sue, any agreement not to sue, any exchange, variation, renewal or modification made or any other dealing, act or omission (whether constituting a waiver, election, estoppel or otherwise) by ABC with respect to any judgment, order for payment of moneys, specialty, instrument (negotiable or otherwise) or other security whatsoever held, recovered, or enforceable by ABC or any obligation or liability whatsoever in respect of all or any of the moneys reserved by these General Conditions for the obligations contained herein;
- any other act, omission or default on the part of ABC or the happening of any other matter or thing whereby the liability of the Guarantor would, but for this clause, have been discharged, reduced or otherwise affected or any other present or future legal disability of You or the Guarantor AND each of the above circumstances is to be construed separately and independently and so as not to limit the meaning or any other listed circumstances and is not to be limited by the provisions of any other clause in these General Conditions.
- ABC will not be required or obliged to give any notice to: the Guarantor of a default by You or any other Guarantor; or, give any notice to or obtain any consent from the Guarantor before the amount of moneys payable by You to ABC or the obligations and liabilities of You are increased or varied for any reason.
- Guarantor not to compete in insolvency. The Guarantor will not in competition with ABC enforce any security held by the Guarantor against any of the assets of You or claim payment of any moneys owing to the Guarantor by any other Guarantor or You in any manner which would have the effect of reducing the amount recoverable by ABC of the moneys hereby guaranteed. The Guarantor is not to prove or claim in any bankruptcy, liquidation, composition arrangement or assignment or in respect of the appointment of any liquidator or trustee until ABC has received one hundred cents in the dollar in respect of the moneys owing by You to ABC and the Guarantor is to hold on trust for ABC that proof and claim and any dividend received thereon.
- This Guarantee is valid and effective and binds any person who executes it despite the fact that another proposed or contemplated party has not executed it.
- This Guarantee will not be affected by the death, disability, lunacy, mental incapacity, bankruptcy, liquidation, insolvency, deed of arrangement, assignment or composition for the benefit of creditors, capital reconstruction or the appointment of a receiver and/or manager (whether by the court or under the powers contained in any instrument) or administrator of the of You or of any Guarantor or the property of any such party or notice of any of the preceding circumstances.
- In the event that this Agreement is transferred or assigned to any person or persons, the benefit of the Guarantee extends to the transferee or assignee and the benefit of the Guarantee continues to inure concurrently for the benefit of ABC despite any such transfer or assignment to the extent permissible by law.