Credit Account Terms and Conditions

DEFINITIONS

1. In these terms and conditions:
   ‘Agreement’ means the application for commercial credit (being the above 2 pages), these terms and conditions and includes any Schedule attached hereto.
   ‘Corporations Act’ means the Corporations Act (Cth) 2001, as amended or varied from time to time.
   ‘Customer’ means the person, firm, organisation, partnership, corporation, trust or other entity (including its successors and permitted assigns) nominated on page 1 of this Agreement.
   ‘Guarantor/s’ means the person or persons listed as ‘guarantor’ on the cover page of this Agreement, jointly and severally.
   ‘Joinery Direct’ means Joinery Direct Pty Ltd ACN 640 941 966 and its related bodies corporate (as that term is defined in the Corporations Act).
   ‘Insolvency Event’ means:
   
   1. in the case of a Customer being an individual or partnership:
   1. the commission of an act of bankruptcy by a person under any law;
   2. the entering into of any arrangement, or the transfer of any assets, for the benefit of creditors;
   3. an admission that any debts cannot be repaid;
   4. a third party who holds a Security Interest in the assets of the Customer enters into the possession, or takes control of those assets, or attempts by any means to do the same;
   5. anything analogous or of substantially the same effect to any of the events described above; and
   2. in the case of the Customer being a body corporate:
      1. the entering into of any arrangement or composition with its creditors whether under the provisions of the Corporations Act or otherwise;
      2. appointing an administrator or a controller (within the meaning of those expressions in s.9 of the Corporations Act) over the whole or any part of its assets or undertaking;
      3. if a petition is presented for its winding up and it is not stayed, withdrawn or discharged within 21 days or a resolution is passed for its winding up;
      4. if execution, distress or other like process of any court or authority is levied upon any of its property for an amount exceeding $10,000 without it being paid, satisfied, withdrawn or discharged within 21 days; or
      5. the appointing of a provisional liquidator in respect of its undertaking.
      ‘PPSA Security Interest’ has the meaning given to the term ‘security interest’ in the PPSA.
      ‘PPSA’ means the Personal Property Securities Act 2009 (Cth).
      ‘Schedule’ means any schedule, annexure or attachment to this Agreement.
      ‘Security Interest’ means a PPSA Security Interest, right, interest, power or arrangement in relation to an asset which provides security for the payment or satisfaction of a debt, obligation, or liability.
      

   INTERPRETATION

   2. Unless the contrary intention appears, an expression which denotes:
   1. the singular, includes the plural and vice versa; and
   2. a person, includes the person’s successors, executors, administrators, substitutes and assigns.
   3. The Customer acknowledges and understands that:
   1. this Agreement applies to the supply of all goods and/or services by Joinery Direct to the Customer; and
   2. additional terms and conditions set out in the Schedule (if any) may amend this Agreement, in which case, such additional terms and conditions shall prevail to the extent of any inconsistency.

   PAYMENT TERMS

   4. Subject to clause 5, the terms of payment are strictly thirty (30) days from the end of the calendar month in which the goods and/or services are invoiced by Joinery Direct Act.
   5. Where the Customer does not have an approved commercial credit account with Joinery Direct, payment shall be, at Joinery Direct’s discretion, due and payable:
   1. on or prior to delivery of the goods; or
   2. by the date nominated by Joinery Direct’s invoice.
   3. The Customer must check all invoices and advise Joinery Direct of any errors or omissions within seven (7) days of receipt. Failing advice from the Customer that the invoice contains any errors or omissions, the invoice is deemed to be accepted by the Customer.
   4. Should the Customer not pay for the goods or services supplied in accordance with this Agreement, after issuing a written demand to the Customer demanding payment within fourteen (14) days, Joinery Direct is entitled to charge an administration fee of ten (10) percent of the amount of the invoice payable, which the Customer acknowledges and agrees is a genuine pre-estimate of Joinery Direct’s loss and damage suffered by reason of the breach and reflects Joinery Direct’s genuine commercial interests.
   5. The Customer acknowledges and agrees that Joinery Direct shall be at liberty to charge a surcharge for credit card transactions equal to the merchant fees incurred as a result.

   PURPOSE OF CREDIT

   9. The Customer acknowledges and agrees that any credit to be provided to the Customer by Joinery Direct is to be applied wholly or predominantly for commercial purposes and does not form a substantial part of Joinery Direct’s business.

   FORMATION OF CONTRACT

   10. Quotations remain valid for a period of thirty (30) days from the date of quotation, unless otherwise specified in writing.
   11. Quotations made by Joinery Direct will not be construed as an offer or obligation to supply in accordance with the quotation or this Agreement. Joinery Direct reserves the right to accept or reject, at its discretion, any offer to purchase received by it from the Customer. Only written acceptance by Joinery Direct of the Customer’s offer will constitute a contract at law.
   12. At Joinery Direct’s sole discretion, a deposit may be required to be paid by the Customer prior to this Agreement being entered into.

   VARIATIONS

   13. Where the Customer requests or directs that any goods and/or services be supplied that are not strictly in accordance with the quotation or purchase order, then such additional goods and/or services shall constitute a variation, unless otherwise agreed between the parties.
   14. The Customer acknowledges and agrees that:
   1. all variations (if any) must be agreed between the parties in writing prior to the goods and/or services being supplied; and
   2. all variations shall be, at Joinery Direct’s discretion, invoiced at the rate(s) specified in the quotation, as specifically quoted, or in accordance with Joinery Direct’s current prevailing rates (as amended from time to time).
   15. Joinery Direct may vary the quoted price if:
   1. there is any movement in the cost of supplying the goods and/or services specified in the Customer’s order;
   2. the goods and/or services specified in the Customer’s order are varied from the goods and/or services specified in Joinery Direct quotation; or
   3. otherwise in accordance with this Agreement.

   CANCELLATION OF ORDERS

   16. Unless otherwise agreed in writing between the parties, the Customer may not cancel an order (or any part of an order) unless the Customer pays to Joinery Direct any and all costs incurred by Joinery Direct in relation to the cancelled order (or cancelled part of an order) up until and including the date of cancellation.
   17. Notwithstanding any other rights Joinery Direct may have under this Agreement, Joinery Direct may cancel any order or delivery of any order, by providing written notice to the Customer if the Customer:
   1. defaults in payment of any invoice by the due date;
   2. suffers an Insolvency Event; or
   3. breaches any term of this Agreement.
   18. To the fullest extent permitted by law, Joinery Direct accepts no liability for any loss whatsoever incurred by the Customer or any third party as a result of Joinery Direct exercising its rights under this Agreement.

DELIVERY

19. The mode of transport which is used to deliver the goods to the Customer will be at the Joinery Direct’s discretion unless the Customer requests a particular method of transport.
20. Joinery Direct may:
1. make the goods available for collection at Joinery Direct’s premises;
2. deliver the goods to the Customer’s premises or a site nominated by the Customer; or
3. arrange for a contractor to deliver the goods.
21. The Customer shall be liable for all costs associated with delivery, including freight, insurance, handling and other charges, unless otherwise agreed in writing by the parties.
22. The Customer acknowledges and accepts that any estimated delivery or supply of goods provided by Joinery Direct is an estimate only and Joinery Direct will not be liable for any loss suffered by the Customer as a result of any delay in the delivery of goods or non-delivery of the goods.
23. Delivery will be made between Monday to Friday, 8.00am to 5.00pm only (unless otherwise agreed to in writing by the parties).
24. Delivery is deemed to occur at the earlier of:
1. the collection of goods from Joinery Direct by the Customer or any third party on behalf of the Customer; or
2. the time of loading of goods at Joinery Direct’s premises for the purpose of delivery to the Customer.
25. Joinery Direct is entitled to charge a reasonable fee for storage and/or redelivery charges in the event the Customer does not, or is unable to, accept delivery of the goods at the time agreed between the parties.
26. The Customer accepts that Joinery Direct may deliver goods by instalments and require payment for each separate instalment in accordance with this Agreement.
27. The Customer acknowledges and accepts that it is not relieved from any obligation arising under this Agreement by reason of any delay in delivery.

RETURNS

28. The Customer must inspect the goods immediately upon delivery and must within seven (7) days after the date of inspection give written notice to Joinery Direct with, of any claim that the goods are not in accordance with this Agreement. Further, the Customer must, upon request from Joinery Direct, allow Joinery Direct to enter upon any premises occupied by the Customer to inspect the goods that are subject of the claim. If the Customer fails to give notice or refuses to allow Joinery Direct to inspect the goods, then to the extent permitted by law, the goods are treated as having been accepted by the Customer and the Customer must pay for the goods in accordance with this Agreement,
29. The Customer cannot return goods to Joinery Direct unless in accordance with this Agreement or permitted by law.
30. The Customer acknowledges and agrees that any return, other than a return due to a default by Joinery Direct under this Agreement or as otherwise permitted by law, will incur a handling and administration charge of ten (10) percent of the purchase price of the returned goods, which the Customer acknowledges and agrees is a genuine pre-estimate of the costs incurred by Joinery Direct.
31. Unless otherwise agreed in writing between the parties, the Customer must pay all costs associated with the return of any including freight, insurance, handling and other charges. Goods to be returned to Joinery Direct must be packed and wrapped appropriately and must include all original packaging and documentation. Joinery Direct accepts no liability for any damage that occurs to any goods in return transit.

RISK AND TITLE

32. Risk and title to the goods pass to the Customer on delivery.
33. If the Customer requests that goods are delivered either to an unattended location, left outside, or are left outside Joinery Direct’s premises for collection, the Customer acknowledges that the same is at the Customer’s risk.

SECURITY INTEREST

34. Until such time as the Customer has made payment in full for the goods and until such time as the Customer has made payment in full of all other money owing by the Customer to Joinery Direct (whether in respect of money payable under a specific order or on any other account whatsoever) Joinery Direct may register a security interest over the goods or any other personal property of the Customer in accordance with the terms of this Agreement and to the fullest extent permitted by the PPSA.

CANCELLATION OF TERMS OF CREDIT

35. Joinery Direct reserves the right to withdraw credit at any time upon provision of 48 hours’ written notice to the Customer.
36. Notwithstanding clause 35, if the Customer defaults in the payment of any amount due to Joinery Direct pursuant to this Agreement and does not cure such default within seven (7) days after being given notice of such default, Joinery Direct may terminate this Agreement (to be effective immediately) upon written notice to the Customer.
37. Upon the withdrawal of credit in accordance with clause 35, or upon termination of this Agreement in accordance with clause 36, all liabilities incurred by the Customer in accordance with this Agreement become immediately due and payable to Joinery Direct.
38. For the avoidance of doubt, termination of this Agreement will not affect:
1. the right of any party to whom money is owed hereunder at the time of termination to receive that money according to the provisions hereof; and
2. the rights and/or obligations pursuant to this Agreement which by their nature are intended to survive termination of this Agreement.

INDEMNITY

39. The Customer and the Guarantor/s agree to jointly and severally indemnify Joinery Direct and keep Joinery Direct indemnified against any loss or damage that arises out of this Agreement to the extent that such loss and damage is a consequence of a default by the Customer under the terms of this Agreement or a breach by the Customer of this Agreement. This indemnity includes any legal fees and expenses Joinery Direct incurs in order to enforce its rights, on an indemnity basis.

PROVISION OF FURTHER INFORMATION

40. The Customer undertakes to comply with any reasonable written requests by Joinery Direct to provide further information for the purpose of assessing the Customer’s creditworthiness, including an updated credit application.
41. If the Customer is a corporation (with the exception of a public listed company), it must seek the prior written consent of
Joinery Direct 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 Joinery Direct may ask for its directors to sign a guarantee and indemnity and/or become a Guarantor under this Agreement.

CORPORATIONS

42. If the Customer is a corporation, the Customer warrants that all of its directors have signed this Agreement and acknowledges that all of its directors may be required to become a Guarantor/s under the terms of this Agreement.

TRUSTEE CAPACITY

43. If the Customer is the trustee of a trust, the Customer warrants that:
1. the Customer enters into this Agreement in both its capacity as trustee and in its personal capacity;
2. the Customer has the right to be indemnified out of trust assets;
3. the Customer has the power under the trust deed to sign this Agreement; and
4. the Customer will not retire as trustee of the trust or appoint any new or additional trustee without advising Joinery Direct and having the new or additional trustee sign an agreement on substantially the same terms as this Agreement.
44. The Customer must give Joinery Direct a copy of the trust deed upon request.

PARTNERSHIP

45. If the Customer enters into this Agreement in its capacity as a partnership, the Customer 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 Joinery Direct in relation to the Customer’s obligations to Joinery Direct.
46. If the Customer is a partnership, it must not alter its partnership structure (for example, adding or removing partners or altering its partnership agreement) without the prior written consent of Joinery Direct.

INSOLVENCY

47. If the Customer suffers an Insolvency Event, to the extent permitted by law:
1. Joinery Direct may terminate this Agreement; and
2. the Customer and Guarantor/s remain liable under this Agreement for payment of all liabilities incurred hereunder. The Customer and Guarantor/s remain liable under this Agreement even if Joinery Direct receives a dividend or payment as a result of the Insolvency Event.

WAIVER

48. A waiver of any provision or breach of this Agreement by Joinery Direct must be made by an authorised officer of Joinery Direct in writing. A waiver of any provision or breach of this Agreement by the Customer must be made by the Customer’s authorised officer in writing.
49. Until ownership of the goods passes, the Customer waives its rights it would otherwise have under the PPSA (unless otherwise agreed to in writing by Joinery Direct and the Customer:
1. under section 132(1) to receive a statement of account following disposal of goods;
2. under section 132(4) to receive a statement of account if no disposal of goods for each six (6 )month period;
3. under section 137(2) to object to any proposal of Joinery Direct to retain or dispose of goods;
4. under section 142 to redeem the goods;
5. under section 143 to reinstate the security agreement.

SECURITY/CHARGES

50. The Customer and the Guarantor/s jointly and severally charge in favour of Joinery Direct all of its estate and interest in any real property (whether identified as part of this Agreement or otherwise, whether held in its own right or as capacity as trustee), the Customer owns at present and in the future with the amount of its indebtedness hereunder until discharged.
51. The Customer and the Guarantor/s expressly acknowledge and agree that Joinery Direct can lodge a caveat over any real property of the Customer and/or the Guarantor, whether held in its own right or as capacity as trustee, including the real property identified on the first page of this Agreement.
52. The Customer and the Guarantors/ jointly and severally charge in favour of Joinery Direct all of its estate and interest in any personal property, whether held in its own right or as capacity as trustee, the Customer owns at present and in the future with the amount of its indebtedness hereunder until discharged.
53. As security for the payment of the amount of its indebtedness to Joinery Direct from time to time, the Customer and the Guarantor/s irrevocably appoints as its duly constituted attorney Joinery Direct company secretary from time to time to enforce any of its rights herein including executing a mortgage, Security Interest or caveat in the Customer and/or the Guarantor/s name.
54. Where the Customer has previously entered into an agreement with Joinery Direct by which the Customer has granted a charge, mortgage or other Security Interest 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 the Customer under this Agreement. Joinery Direct 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.

COSTS

55. The Customer must pay for its own legal, accounting and business costs and all costs incurred by Joinery Direct relating to any default by the Customer under this Agreement. The Customer must also pay for all stamp duty and other taxes payable on this Agreement (if any).
56. The Customer must pay Joinery Direct’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Customer, including collection costs, debt recovery fees and legal costs on an indemnity basis.
57. Subject to clauses 58 and 59, payments by, or on behalf of, the Customer will be applied by Joinery Direct as follows.
1. firstly, in payment of any and all collection costs and legal costs;
2. secondly, in payment of any interest; and
3. thirdly, in payment of the outstanding invoice(s), or part thereof in an order determined by Joinery Direct in its absolute discretion.
58. To the extent that payments have been allocated to invoices by Joinery Direct in its business records, Joinery Direct may, at its sole and unfettered discretion, allocate and/or retrospectively reallocate payments in any manner whatsoever at Joinery Direct’s absolute discretion.
59. Payments allocated (and/or reallocated) under clause 57 and/or 58 will be treated as though they were allocated (and/or reallocated) in the manner determined by Joinery Direct on the date of receipt of payment.

TAXES AND DUTY

60. The Customer must pay GST on any taxable supply made by Joinery Direct to the Customer under this Agreement. The payment of GST is in addition to any other consideration payable by the Customer for a taxable supply.
61. If as a result of:
1. any legislation becoming applicable to the subject matter of this Agreement; or
2. any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration,
   Joinery Direct becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Customer, then the Customer must pay Joinery Direct these additional amounts on 48 hours’ written demand.

INTEREST RATES

62. The interest rate on any outstanding debts is a fixed rate of six (6) percent per annum, which the Customer expressly acknowledges and agrees is a genuine pre-estimate of Joinery Direct’s loss and damage and/or reflects Joinery Direct’s genuine commercial interests.

SET-OFF

63. All payments required to be made by the Customer under this Agreement will be made free of any set-off, or counterclaim and without deduction or withholding, unless agreed to otherwise by the parties in writing or as required by law.
64. Any amount due to Joinery Direct from time to time may be deducted from any monies which may be or may become payable to the Customer by Joinery Direct.

LIMITATION OF LIABILITY

65. In relati0on to the supply of goods, to the extent permitted by law, Joinery Direct liability is limited to:
1. replacing the goods or supplying similar goods;
2. repairing the goods;
3. providing the cost for replacing the goods or for acquiring equivalent goods; and
4. providing the cost for having the goods repaired.
66. In relation to the supply of services, to the extent permitted by law, Joinery Direct’s liability is limited to:
1. supplying the service again; or
2. providing for the cost of having the services supplied again.
67. Joinery Direct 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 the Customer as a result of the goods and/or services supplied under this Agreement.
Subcontracting and assignment
68. The Customer acknowledges that Joinery Direct reserves the right to subcontractor assign any of its rights and/or obligations under this Agreement.
69. The Customer may not assign any rights, obligations or benefits created or conferred by this Agreement without the prior written consent of Joinery Direct.

MISCELLANEOUS

70. Joinery Direct is not liable for any delay in delivery of the goods in accordance with this Agreement by reason of strikes, lockouts, fires, floods, tempest, riots, war, embargoes, civil commotions, supplier shortages, material shortages, plant or mechanical breakdown, acts of God or any other activity beyond Joinery Direct’s control.
71. The Customer will, at the request of Joinery Direct execute documents and do such further acts as may be required for Joinery Direct to register pursuant to the PPSA the Security Interest granted by the Customer under the PPSA.
72. The 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.
73. The Customer further agrees that Joinery Direct has rights set out in the PPSA which are not excluded by this Agreement.
74. If the Customer is a corporation, it executes this Agreement in accordance with section 124 of the Corporations Act.

SEVERANCE

75. 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.
76. If any part of this Agreement is invalid or unenforceable, that part is deleted and the remainder of the Agreement remains effective.

VARIATION OF AGREEMENT

77. The Customer agrees that these terms and conditions may be varied, added to, or amended by an authorised officer of Joinery Direct at any time by written notice to the Customer.
78. Variations requested by the Customer will only be binding upon Joinery Direct if they are in writing signed by an authorised officer of Joinery Direct.

CONSENT TO REGISTER

79. The Customer hereby consents to Joinery Direct recording the details of this Agreement on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by Joinery Direct to effect such registration.
80. The 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.

LEGAL ADVICE

81. The Customer acknowledges that it has obtained independent legal advice (or has had the opportunity to obtain independent legal advice) with respect to entering into this Agreement, and the Customer, by entering into this Agreement, is doing so in full knowledge of the contents hereof, of its own free will and with full capacity and authority to do so.

JURISDICTION

82. The Customer acknowledges and agrees that this Agreement will be governed by the laws of Australian Capital Territory.
83. The parties to this Agreement submit to the non-exclusive jurisdiction of the courts of Australian Capital Territory and the relevant federal courts and courts competent to hear appeals from those courts.

ENTIRE AGREEMENT

84. This Agreement constitutes the entire agreement between the parties relating in any way to its subject matter and supersedes, all previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this Agreement. 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.
85. Notwithstanding clause 84, in circumstances where there is a pre-existing written credit agreement (Original Agreement) between the Customer and Joinery Direct 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

86. The Customer acknowledges that they have been provided with a copy of Joinery Direct’s Privacy Policy, which can be accessed at the following website: www.joinerydirect.com.au/privacy