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Terms and conditions of sale

1INTERPRETATION

a. In these terms and conditions of sale (“the Standard Terms”);

  • i) “we” or “us” or “the Company” means PGK Distributors Pty Ltd ATF PGK Distributors Unit Trust (ABN 86 493 535 058) or any business being carried on by the said company or by use of the assets of the Unit Trust’
  • ii) “you” means the Applicant/Customer stated in the Application and, where the identity of the Applicant/Customer is mis-stated in the Application (for example, where a company is named but does not exist), includes the entity which receives the benefit of any goods and services supplied by us, and each person signing the Application in their personal capacity and, where appropriate, any authorized employee, servant or agent of the Applicant/Customer;
  • iii) “Goods” means any goods supplied by us to you from time to time including, but not limited to, goods described in any invoice we issue to you;
  • iv) “Application” means the Application for Credit Account completed by or on behalf of the Applicant/Customer and includes Section A;
  • v) “Agreement” means the terms set out in Section A of the Application and the Standard as amended from time to time as accepted by us in writing or by the supply of Goods or services to you or any nominee.

2SUPPLY

a) You will purchase and we will supply Goods to you on the following terms and conditions of sale.  However, we are not obligated to supply goods to you when requested to do so and may refuse for any reason whatsoever in our sole and unfettered discretion.

b) You warrant that the Goods supplied to you under this Agreement will be for use in a commercial or business operation and not for personal, domestic or household use or consumption;

c) All additions and amendments to the Application, Section A or the Standard Terms must be in writing signed by us.

3QUOTATIONS AND ORDERS

a) Any Quotation or price list given by us does not constitute an offer to sell Goods to you.  We reserve the right to alter the quote or price list without notice to you.

b) By ordering Goods, you are making a binding offer to purchase the Goods.  We will notify you of our acceptance of your order in writing.  Alternatively, if we commence manufacture of Goods to your specification or deliver Goods pursuant to your order, such conduct shall for the purpose of this Agreement l be deemed to be acceptance of your offer to purchase the Goods.

c) We reserve the right to modify the design of Goods in our range, and cease to manufacture or supply certain Goods without notice.

4PRICES, GST, FREIGHT AND INSURANCE

a) Unless otherwise expressly agreed in writing, the price of the Goods shall be the price specified in our invoice plus goods and services tax and any other charges which may be levied by any government (Domestic or foreign).

b) You are responsible for all freight costs.  If you nominate a carrier, you must advise us in writing or we will nominate a carrier of our choice and you shall remain liable to pay the freight costs.

5PAYMENT

a) You agree that, until we confirm in writing to you that we will supply you with Goods on credit,  all Goods that you order and we supply after the date of the Application are supplied on a cash before delivery basis.

b) Unless otherwise agreed, where Goods are supplied to you on credit, the charges referable to those Goods shall be due and payable on such terms as are agreed between us and you from time to time but no more than 30 days from date of invoice;

c) You may pay by Visa and MasterCard.  However, we reserve the right to charge a credit card handling fee for allowing payment by this method at a rate to be advised by us from time to time.

d) You agree that, if you fail to pay strictly in accordance with this clause 5, we may:

  • i) Charge a late payment fee equal to two percent (2%) of the outstanding debt, plus GST in respect of all payments made after the due date for payment of any debt by Credit Card;
  • ii) Charge default interest on all outstanding debts at the rate of 12% per annum;
  • iii) Charge you any dishonour fee passed on by any Bank or other financial institution (“bank”), in addition to our reasonable administrative costs, where we are not able to obtain payment from your credit card or a cheque is not paid by your bank;
  • iv) Recover from you as a debt due and payable any and all legal or other costs incurred in attempting  to recover any outstanding debt, or in respect of any other default by you, or your employees, servants or agents under the Agreement, on a full indemnity basis, or solicitor/own client basis, whichever is the greater, and you expressly waive any entitlement that you may have, or would have but for this Agreement, to disclosure of such potential costs under any legal profession legislation in Australia;
  • v) Withhold supply of Goods;
  • vi) Commence legal action for any debt due and payable and you irrevocably agree that we will be entitled to recover any legal costs incurred in taking such legal action on a full indemnity basis, or solicitor/own client basis, whichever is the greater despite any provisions contained in Court Rules in respect of the recovery of legal costs;

e) Any forbearance by us in charging any of the fees, or

f) seeking to recover any or all of the costs, set out in clause 5 of the Standard Terms does not constitute a waiver of our right to do so in the future.

6DELIVERY

a) We reserve the right to deliver goods by installments.  Any delivery times notified to you are estimates only and you should not rely upon them.  If you request us to postpone delivery of Goods beyond the delivery date or dates specified in your order, we may agree to do so if you agree to pay an additional fee (to be calculated and nominated by us on each occasion that such a request is made) for such postponement.

b) If we do not receive delivery instructions sufficient to enable us to dispatch the Goods within fourteen (14) days of you being notified that the Goods are ready for delivery; you shall, from the fifteenth day after our notification:

  • i) Be deemed to have taken delivery of the Goods;
  • ii) Be liable for any storage charges incurred by us, or any administrative or other costs incurred by
  • iii) us in respect of such storage, payable monthly on demand;
  • iv) Assume risk in the Goods;

7CLAIMS AND LIABILITIES

a) Where you claim that we have, at any time and for whatever reason, breached this Agreement (other than where the alleged breach involves a defect in any Goods, in which case, notice must be received by us within seven (7) days of delivery of the relevant Goods in accordance with Paragraph 8 herein), you must make your complaint in writing within fourteen (14) days of delivery of the relevant Goods, for which time is of the essence.

b) If you do not notify us of any such complaint within fourteen (14) days of delivery of the relevant Goods, the Goods will be deemed to be delivered by us and accepted by you strictly in compliance with this Agreement and any Commonwealth or State Legislation, and you expressly waive (subject to subparagraph c) below) your right, or any right that you may have had but for this Agreement, to make claims under any such legislation in respect of the subject matter of the said complaint;

c) You have the benefit of any conditions, guarantees and/or warranties implied by the Competition and Consumer Act 2010 (Cth) (“the CCA”), and nothing in these Standard Terms is intended to exclude, restrict or modify such statutory obligations under this Act (or any related State legislation).  References to specific provisions of, and circumstances arising under, the CCA are intended to include references to any similar provisions of, and circumstances arising under, any State or Territory  enactment;

d) Notwithstanding subparagraph c) above, where you fail to comply with the terms of this Agreement in respect of any complaint, and we suffer loss and damage as a result of such failure, we shall be entitled to set off the value of such loss or damage against any compensation that you may be entitled to recover pursuant to the CCA;

 e) If we are found by a Court or Tribunal to be liable for  the breach of a condition, guarantee or warranty implied by Schedule 2 of the CCA, or we expressly agree in writing that we are so liable, our liability for the breach will, subject to Section 64A(3) of Schedule 2 of the CCA, be limited to one of the following as determined by us:

  • i) The replacement or repair of the Goods or the supply of equivalent Goods; or
  • ii) The payment of the cost of replacing the Goods or of acquiring equivalent Goods.

f) Subject to any legislation to the contrary:

  • i) This Agreement contains the full terms and Conditions of the ongoing agreement by us to supply Goods and you to pay for such supply and any other terms, whether express or implied, or any representations in respect of, or connected with, this Agreement or any supply of Goods are expressly excluded;
  • ii) To the fullest extent permitted by law, we are not liable for any injury to or death of any person or loss (including loss of property or consequential loss) or damage to property arising from any act or omission by you, us or any other person,  in connection with the terms of this Agreement (Including any loss or damage arising from our negligence);
  • iii) You indemnify us against:
  • (1) Any claims made against us by any third party in respect of any loss, death or injury or damage as is set out in clause 7e(ii); and
  • (2) All losses and expenses which we may suffer or incur due to your failure to observe fully your obligations under the Agreement; and
  • iv) We make no representation, warranty or undertaking about the compliance of the Goods with any statutory requirements relating to the marketing and/or sale of Goods.  You acknowledge that you alone are responsible for ensuring that any Goods comply with such legislation.

g) We will not be responsible for non-delivery or any delay in the delivery of any Goods due to any cause beyond our reasonable control, notwithstanding that the cause may be operative at the time of entering the contract of sale of the Goods.  Where such non-delivery or delay occurs, we may deliver the relevant Goods at any subsequent time and you must accept and pay for them.

h) When we provide you with a date of intended delivery, this will be subject to the Goods ordered being available and us being able to make the delivery on that date.

8RETURNED GOODS

When goods are returned to us, a credit will only be issued  by us to you (“a credit”) under the following conditions:

a) RETURN AUTHORISATION:

  • i) A Goods Return Credit (GRC) authority number must be obtained from the supply point of the Goods prior to the return of any Goods.  We may, by exercise of our sole and unfettered discretion.  refuse to give a GRC authority or accept the return of any Goods;
  • ii) You must provide the invoice number and date of purchase of the Goods before a GRC will be issued;
  • iii) The GRC authority number must be clearly marked on the packaging of Goods returned to us.  Failure to comply with this requirement could result in us refusing to accept delivery of the returned Goods.

b) CREDIT

A claim for a credit must be supported by:

  • i) Carrier consignment note or similar receipt of delivery of the Goods;
  • ii) Our relevant invoice number in respect of the Goods; and
  • iii) The GRC number issued by us;

c) UNACCEPTABLE RETURNS

Without in any way limiting our discretion to refuse to accept the return of Goods, the following Goods must not be returned, and their delivery to us will not be accepted:

  • i) Any Goods that have been held by you  for more than fourteen (14) days; or
  • ii) Any Goods which are not in their original condition; or
  • iii) Any Goods that are manufactured in accordance with your specifications or made to order (MTO) unless they are faulty.  Any manufacturing surcharge in respect of such Goods is non-refundable.

d) FAULTY GOODS

We will only accept claims for faulty Goods that are in writing received by us within seven (7) days of you receiving the Goods, for which time is of the essence. You agree that, where no claim is received by us within seven (7) days of delivery of the Goods, you have accepted that the Goods are in good and merchantable condition (to the extent allowed by law).

e) CARRIER

Goods must be returned by the carrier specified by us.

f) RESTOCKING FEE

You agree to pay us a restocking fee at the rate advised by us from time to time in exchange for the return of the Goods.

9OWNERSHIP & RISK

a) Subject to clause 6b of these Standard Terms, the risk of loss or damage to the Goods passes to you on the date and at the time that the Goods are delivered to your premises or any other site nominated by you or at the date and time the Goods are collected from the Company’s warehouse.

b) Ownership of any Goods supplied by us will not pass to you until all moneys due and payable by you to us in respect of those Goods and any other Goods sold and delivered to you, including default interest, administrative, legal or other costs, are paid in full ;

c) Until ownership passes to you, the Goods supplied are held by you for us as bailee and, if required, you will store the Goods so that it is clear that they belong to us;

d) If you wish to resell any goods before ownership passes to you, you may only do so by way of bona fide sale in the ordinary course of business and as our agent, but you must not represent to any other person that you are acting for, or have any authority to, bind us, and we are only agent to the extent that, until full payment in accordance with sub-clause b), we are entitled to the proceeds of the sale of those Goods.

e) You will hold the proceeds of sale of such Goods on trust for us and you must account to us for the proceeds of any sale of the Goods;

f) If the Goods are used to create a new product, or are otherwise co-mingled with any other goods, before Ownership passes under this sub-clause or at law, title in the new product or co-mingled goods will immediately pass to us and you will, until sale, hold the newly created Goods on trust for us and hold the proceeds of sale of such newly created Goods on Trust for us and account to us for the proceeds of those newly created Goods, if required by us to do so

10PERSONAL PROPERTY SECURITIES ACT 2009

a) You acknowledge that the Agreement constitutes a security agreement for the purpose of section 20 of the Personal Property Securities Act 2009 (PPSA) and that a security interest exists in all Goods (and their proceeds and including newly created Goods and co-mingled Goods) supplied by us to you

b) You will execute such documents and do such future acts as may be required by us to register the security interest granted to us under the Agreement pursuant to the PPSA

c) Until ownership of the Goods passes , you waive your rights under the following provisions of the PPSA:

  • i) To receive a notice of intention of removal of an accession (Section 95);
  • ii) To receive a notice that we decide to enforce our security  interest in accordance with land law (section 118);
  • iii) To receive a notice of enforcement action against liquid assets (section 121(a));
  • iv) Our obligation to dispose of or retain collateral (section 125)
  • v) To receive a notice of disposal of goods by us purchasing the Goods (section 129)
  • vi) To receive a notice to dispose of Goods (section 130);
  • vii) To receive a statement of account following disposal of Goods (Section 132(2));
  • viii) To reinstate the security agreement (Section 143);
  • ix) To receive a notice of any verification statement (Section 157(1) and section 157(3));
  • x) Any other provision of the Act requiring the provision of notice to you to perfect any secured interest or before taking action in respect of any secured interest;

d) You further agree that, where we have rights in addition to those under Part 4 of the PPSA, those rights will continue to apply.

e) Until ownership of the Goods possess, you must not give to us a written demand or allow any other person to give us a written demand requiring us to register a financing charge statement under the PPSA or enter into or allow any other person to enter into the Personal Property Securities Register a financing charge under the PPSA

f) You acknowledge that you have received value as at the date of first delivery of the Goods and have not agreed, in any way, to postpone the time for attachment of the security interest (as defined in the PPSA) granted to us under this Agreement.

11CHARGE

You hereby charge, as legal or beneficial owner, or, where applicable, in your capacity as Trustee, in favour of us:

a) Your interest in any Real Property that you own or may own at any time in the future as security for the payment of any and all moneys owing to us, including any default interest, administrative, legal or other costs pursuant to this Agreement, and you hereby authorise us to register a caveat over any such Real Property to secure such payment;

b) All of your personal property including, but not limited to, stock, motor vehicles, plant, equipment and debtors that you own (or acquire after the date hereof) as security for the payment of any and all moneys owing to us under this Agreement and you hereby authorize us to register, with any competent authority, including the Personal Property Securities Register pursuant to the PPSA, the charge over the property if you default in making payment of any amount due to us.

12SET OFF

You agree that:

a) We may set-off any credit amount that we may owe to you from time to time against any debt due to you by us;

b) You are not entitled to withhold payment of any money owing to us by reason of any set-off or claim you might have against us.

13WARRANTIES

a) Notwithstanding any other provisions contained in this Agreement, we warrant that any Goods sold by us will be free from defect under normal use for a period of twelve (12) months after delivery.  This warranty does not cover any Goods which are not manufactured by us or any co-mingled Goods.

b) For the purpose of making a claim under this Warranty, you must immediately, upon becoming aware of circumstances giving rise to a claim under this clause (and within seven days of delivery of the Goods), notify us in writing setting out full particulars of the claim;

c) If you fail to give immediate notice, and we suffer loss and damage, including the inclusion of legal costs, as a result, you agree to indemnify us against such loss or damage;

d) If you fail to give us notice of any defect in the Goods, and engage a third party to inspect the Goods or rectify such defect, this Warranty will be voided and:

  • i) Any claim that you may have had under this Warranty will be limited to compensation for the replacement cost of the defective Goods only; and/or
  • ii) You will not be entitled to recover from us the cost of inspection or re-installation of the Goods by the third party, as these are not costs that would be incurred by us if you had made a complaint or claim strictly in accordance with this Agreement;
  • iii) Where the cost of removal or reinstallation of any Goods becomes payable by us, you acknowledge that we are situated in only capital cities throughout Australia, and therefore agree that such removal or reinstallation costs will be limited to the reasonable cost of removing or reinstalling the Goods in a city where we are located.

14ACTS OF DEFAULT

If you:

a) Fail to pay for any Goods on or by the due date; or

b) Otherwise breach this Agreement and fail to rectify such breach after seven (7) days’ notice provided by us; or

c) Cancel delivery of the Goods; or

d) Commit an act of bankruptcy; or

e) Allow a trustee in bankruptcy or receiver and manager to be appointed to you or any of your property; or

f) Allow distress to be levied or a judgment, order or security to be enforced, or to become enforceable against your property; or

g) Are a company and:

  • i) Proceedings are commenced to wind you up or any of your subsidiaries or
  • ii) A controller, receiver, administrator, liquidator or similar officer is appointed to you in respect of any part of your property,

then we or our agents may enter upon your premises (doing all that is reasonably necessary to gain access ) where Goods supplied under this Agreement are situated at any time and retake possession of any or all of the Goods we have supplied to you and you expressly agree that such access to your premises shall not be a trespass; and

If you commit an act of default under this Agreement, we reserve the right to:

  • iii) Resell the Goods concerned; and
  • iv) Terminate the Agreement; and
  • v) Take legal action against you to recover any outstanding debt;
  • vi) Have regard to any security that we may possess to recover payment of any debt;
  • Vii) Recover any legal costs incurred as a result of the act of default on a full indemnity basis, or solicitor/own client basis, whichever is greater, and you waive any entitlement that you have, or may have had but for this Agreement, to disclosure of costs in accordance with any legal profession legislation.

15RESALES

a) If we conduct a re-sale pursuant to clause 14:

  • i) We may do so at our premises or any other place; and
  • ii) The re-sale may, at our discretion, be by public or private sale; and
  • iii) We may recover from you as a debt due and payable, the difference between the re-sale price and the unpaid price plus any legal or administrative costs payable under this Agreement and any default interest;
  • iv) We shall also be entitled to claim from you any loss and damage that we have incurred as a result of the re-sale and you agree to indemnify us against such loss and damage; ;

b) If applicable Goods cannot be sold within three (3) months of the first attempted sale, those Goods will be deemed to have a re-sale price of nil.

16GOVERNING LAW

This contract is governed by the Laws of Victoria.  You irrevocably submit to the exclusive jurisdiction of the Victorian courts and federal courts sitting in Victoria.

17WHOLE AGREEMENT

These Standard Terms, together with the Application and the terms contained in Section A embody the whole agreement between the parties and, subject to the express terms contained in any written order or written acceptance thereof, all previous dealings, representations and arrangements are hereby excluded and cancelled.

18CESSATION OF SUPPLY

Our agreement to continue to deliver or sell Goods to you is always conditional upon our being satisfied as to your ability to pay and comply with this Agreement.  If we cease to be so satisfied, we may suspend and/or terminate deliveries and shall not be liable in any way for any claim, damage, expense or cost suffered by you as a result.

19SEVERANCE

If any clause, term or provision of this Agreement, or part thereof, is found to be void or unenforceable, that clause, term or provision, or part thereof, shall be severed from this Agreement and the remaining terms of this Agreement shall remain enforceable by the parties hereto as far as is legally practicable..

20CONFIDENTIALITY

a) Except as required by law, and subject to this Agreement and the PPSA, we and you agree to treat the terms of this Agreement as confidential.

b) We and you acknowledge and agree that sub-clause 20a, 20c and sub-clause 20b constitute a confidentiality agreement pursuant to Section 275(6) of the PPSA.

c) Neither we nor you will disclose, send or make available any of the information referred to in Section 275(1) of the PPSA to any person except as required by law, this Agreement and subject to the PPSA.

21RESTRAINT

a) For the duration of this Agreement, and/or while you continue to place orders with us for the delivery of Goods, and for the period of:

  • (i) 1 year; or
  • (ii) 9 months; or
  • (iii) 6 months; or
  • (iv) 3 months,

b) after the end of this Agreement or the cessation of supply, whichever is the later, you must not:

  • (v) Procure any employee of, or contractor engaged by, us to cease their employment or engagement with us and commence paid work for you; or
  • (vi) Engage any of our employees or contractors in any business operated by you; or
  • (vii) Approach or solicit any of our employees or contractors for the purpose of procuring them to cease their employment or engagement with us and/or commence paid work for you. 

SCHEDULE OF FEES AND CHARGES

RESTOCKING FEE

A Return to Store (RTS) fee calculated at ten percent (10%) of the invoiced value of the goods, plus GST, shall be payable Goods are returned as a result of order errors made by the Customer. 

RETURNED CHEQUE FEE

Where a cheque issued for payment of goods of a credit account is dishonoured by a Customer’s bank, an administrative returned cheque fee in an amount to be reasonably determined by us from time to time (exclusive of GST) will be charged to the Customer in addition to any dishonour fee passed on by the Customer’s financial institution.

CREDIT CARD ADMINISTRATION FEE

A credit card administration fee of 1% of the face value of the transaction, plus GST, will apply where payment of accounts is made by credit card outside agreed trading terms.

LOGISTICS FEE

A logistics fee may be charged on some orders in an amount to be reasonably determined by us from time to time, with details of such a fee to be available from the branch where any order is made on dispatch.

PGK Distribution – Account information, Agreement and Terms and Conditions of Sale Credit Application