Holloway Group Terms & Conditions of Trade V1.1
1.1 “HG” means A Plus Plastics & Tooling Pty Ltd trading as Holloway Group and its successors and assigns or any person acting on behalf of and with the authority of HG Plastics & Tooling Pty Ltd.
1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting HG to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Client’s executors, administrators, successors and permitted assigns.
1.3 “Goods” means all Goods or Services supplied by HG to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between HG and the Client in accordance with clause 6 below.
1.5 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or contract between the Client and HG.
3. Electronic Transactions Act 2000
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Errors and Omissions
4.1 The Client acknowledges and accepts that HG shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by HG in the formation and/or administration of this contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by HG in respect of the Services.
4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of HG; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
5. Change in Control
5.1 The Client shall give HG not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by HG as a result of the Client’s failure to comply with this clause.
6. Price and Payment
6.1 At HG’ sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by HG to the Client; or
(b) HG’ quoted price (subject to clause 6.1) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. All quotations supplied by HG for imported Goods will be quoted in $USD only.
6.2 HG reserves the right to change the Price in the event of a variation to HG’ quotation. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation due to fluctuations in the currency exchange rates and/or international freight and insurance charges for foreign sourced components or as a result of increases to HG in the cost of taxes, levies, materials and labour) will be charged for on the basis of HG’ quotation and will be shown as variations on the invoice. The Client shall be required to respond to any variation submitted by HG within ten (10) working days. Failure to do so will entitle HG to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
6.3 At HG’ sole discretion, a deposit may be required.
6.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by HG, which may be:
(a) on delivery of the Goods;
(b) by way of instalments/progress payments in accordance with HG’ payment schedule;
(c) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by HG.
6.5 Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction) or by any other method as agreed to between the Client and HG.
6.6 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by HG nor to withhold payment of any invoice because part of that invoice is in dispute.
6.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to HG an amount equal to any GST HG must pay for any supply by HG under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties (including customs clearance fees and import duties) that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Delivery of Goods
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at HG’ address; or
(b) HG (or HG’ nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
7.2 At HG’ sole discretion, the cost of delivery is either in addition to the Price or for the Client’s account.
7.3 Any time specified by HG for delivery of the Goods is an estimate only. The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. HG will not be liable for any loss or damage incurred by the Client as a result of delivery being late. In the event that the Client is unable to take delivery of the Goods as arranged then HG shall be entitled to charge a reasonable fee for redelivery and/or storage.
8.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, HG is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by HG is sufficient evidence of HG’ rights to receive the insurance proceeds without the need for any person dealing with HG to make further enquiries.
8.3 If the Client requests HG to leave Goods outside HG’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
8.4 Any advice, recommendation, information, assistance or service provided by HG in relation to Goods or Services supplied is given in good faith, is based on HG’ own knowledge and experience and shall be accepted without liability on the part of HG and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods or Services.
9. Specifications of the Goods
9.1 Where HG gives advice or recommendations to the Client, or the Client’s agent, with specific instructions regarding the use of the Goods and such advice or recommendations are not acted upon then HG shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent purchase of the Goods.
9.2 The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
10. Accuracy of Customer’s Plans and Measurements
10.1 HG shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, HG accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
10.2 In the event the Client gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or HG places an order based on these measurements and quantities. HG accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
11.1 HG and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid HG all amounts owing to HG; and
(b) the Client has met all of its other obligations to HG.
11.2 Receipt by HG of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
11.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 11.1 that the Client is only a bailee of the Goods and must return the Goods to HG on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for HG and must pay to HG the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for HG and must pay or deliver the proceeds to HG on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of HG and must sell, dispose of or return the resulting product to HG as it so directs.
(e) the Client irrevocably authorises HG to enter any premises where HG believes the Goods are kept and recover possession of the Goods.
(f) HG may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of HG.
(h) HG may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
12. Personal Property Securities Act 2009 (“PPSA”)
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by HG to the Client.
12.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which HG may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 12.3(a)(i) or 12.3(a)(ii);
(b) indemnify, and upon demand reimburse, HG for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of HG;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of HG;
(e) immediately advise HG of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
12.4 HG and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
12.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
12.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by HG, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
12.8 The Client must unconditionally ratify any actions taken by HG under clauses 12.3 to 12.5.
12.9 Subject to any express provisions to the contrary (including those contained in this clause 12) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
13. Security and Charge
13.1 In consideration of HG agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
13.2 The Client indemnifies HG from and against all HG’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising HG’ rights under this clause.
13.3 The Client irrevocably appoints HG and each director of HG as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Client’s behalf.
14. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
14.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify HG in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Client must allow HG to inspect the Goods.
14.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
14.3 HG acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
14.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, HG makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. HG’ liability in respect of these warranties is limited to the fullest extent permitted by law.
14.5 If the Client is a consumer within the meaning of the CCA, HG’ liability is limited to the extent permitted by section 64A of Schedule 2.
14.6 If HG is required to replace the Goods under this clause or the CCA, but is unable to do so, HG may refund any money the Client has paid for the Goods.
14.7 If the Client is not a consumer within the meaning of the CCA, HG’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by HG at HG’ sole discretion;
(b) limited to any warranty to which HG is entitled, if HG did not manufacture the Goods;
(c) otherwise negated absolutely.
14.8 Subject to this clause 14, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 14.1; and
(b) HG has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible, and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
14.9 Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, HG shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by HG;
(e) fair wear and tear, any accident, or act of God.
14.10 HG may in its absolute discretion accept non-defective Goods for return in which case HG may require the Client to pay handling fees of up to fifteen percent (15%) of the value of the returned Goods plus any freight costs.
14.11 Notwithstanding anything contained in this clause if HG is required by a law to accept a return then HG will only accept a return on the conditions imposed by that law.
15. Intellectual Property
15.1 Where HG has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of HG. Under no circumstances may such designs, drawings and documents be used without the express written approval of HG.
15.2 The Client warrants that all designs, specifications or instructions given to HG will not cause HG to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify HG against any action taken by a third party against HG in respect of any such infringement.
16. Default and Consequences of Default
16.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at HG’S sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Client owes HG any money the Client shall indemnify HG from and against all costs and disbursements incurred by HG in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, HG’S contract default fees, and bank dishonour fees).
16.3 Without prejudice to any other remedies HG may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions HG may suspend or terminate the supply of Goods to the Client. HG will not be liable to the Client for any loss or damage the Client suffers because HG has exercised its rights under this clause.
16.4 Without prejudice to HG’s other remedies at law HG shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to HG shall, whether or not due for payment, become immediately payable if:
(a) any money payable to HG becomes overdue, or in HG’S opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by HG;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
17.1 Without prejudice to any other remedies HG may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions HG may suspend or terminate the supply of Goods to the Client. HG will not be liable to the Client for any loss or damage the Client suffers because HG has exercised its rights under this clause.
17.2 HG may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice HG shall repay to the Client any money paid by the Client for the Goods. HG shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.3 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by HG as a direct result of the cancellation (including, but not limited to, any loss of profits).
18. Privacy Act 1988
18.1 The Client agrees for HG to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by HG.
18.2 The Client agrees that HG may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
18.3 The Client consents to HG being given a consumer credit report to collect overdue payment on commercial credit.
18.4 The Client agrees that personal credit information provided may be used and retained by HG for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
18.5 HG may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
18.6 The information given to the CRB may include:
(a) personal information as outlined in 18.1 above;
(b) name of the credit provider and that HG is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and HG has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of HG, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
18.7 The Client shall have the right to request (by e-mail) from HG:
(a) a copy of the information about the Client retained by HG and the right to request that HG correct any incorrect information; and
(b) that HG does not disclose any personal information about the Client for the purpose of direct marketing.
18.8 HG will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
18.9 The Client can make a privacy complaint by contacting HG via e-mail. HG will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
19. Service of Notices
19.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
19.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
20.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not HG may have notice of the Trust, the Client covenants with HG as follows:
(a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client 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.
(c) The Client will not without consent in writing of HG (HG will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
21.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales in which HG has its principal place of business, and are subject to the jurisdiction of the Campbelltown Courts in New South Wales.
21.3 Subject to clause 14 HG shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by HG of these terms and conditions (alternatively HG’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
21.4 HG may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
21.5 The Client cannot licence or assign without the written approval of HG.
21.6 HG may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of HG’ sub-contractors without the authority of HG.
21.7 The Client agrees that HG may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for HG to provide Goods to the Client.
21.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
21.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.