In these Terms and Conditions the following definitions apply:
“Agreement” means any agreement for the supply of Goods by PSC to the Applicant.
“Applicant” means the person set out in Section “A” and/or Section “B” of the Application for a Commercial Credit Account (which forms part of this document).
“Arrears” means when the Applicant has failed to pay any invoice rendered by PSC when due or when the Applicant has failed to pay PSC the amounts listed on a statement of account when due.
“Board” has the same meaning as defined in PSC’s Rules.
“CCA” means the Competition and Consumer Act 2010 (Cth) and similar state-based Fair Trading legislation as amended.
“Charged Property” means all of the rights, property, title, estate and interest of whatever kind and wherever situated and whether present or future in any freehold or leasehold property and/or real estate and in any Land which the Applicant now has or may hereafter have.
“Charged Co-op Shares” means all of the rights, property, title and interest in all shares in PSC which the Applicant(s) now has or may hereafter have.
“Credit Account” means commercial credit account opened by PSC in favour of the Applicant by which the Applicant is able to purchase Goods from PSC on credit.
“Default Event” means any event or circumstance specified as such in clause 6. “Financing change statement” has the same meaning given to it by the PPSA;
“Financing statement” has the same meaning given to it by the PPSA;
“Goods” means any goods and/or services supplied and/or where appropriate to be supplied to the Applicant by PSC.
“GST” means goods and services tax.
“Land” means land and includes but is not limited to Land as defined in the Real Property Act 1900 (NSW) and/or the Conveyancing Act 1919 (NSW) and/or where appropriate their equivalents in other States or Territories of the Commonwealth of Australia, as amended.
“Loss” includes any direct or indirect losses, consequential loss, claims, legal costs, demands, damages, consequential damage, liabilities, expenses, charges, suits, actions and/or penalties.
“Insolvency Event” means in respect of the Applicant, any act of bankruptcy, any formal or informal arrangement with creditors whether it be under the Bankruptcy Act 1966 (Cth) as amended or otherwise, any action taken to wind up the Applicant, to appoint an administrator, a receiver or a receiver and manager.
“Other Property” means all presently existing and after-acquired legal or equitable right, estate or interest of the Applicant in any personal property, licences, water rights, choses in action, goodwill, uncalled capital and called up capital but unpaid capital, wherever situated.
“PMSI” means purchase money security interest as defined in the PPSA.
“PPSA” means the Personal Property Securities Act 2009 (Cth) as amended and/or any successors.
“PSC” means the Plumbers’ Supplies Co-operative Limited A.R.B.N. 053 236 436 and/or, where appropriate, its employees, agents and authorised representatives.
“PSC’s Rules” means PSC’s Rules as adopted by PSC’s members at the 1998 annual general meeting and subsequent Board resolutions.
“Purchase money security interest” has the same meaning given to it by the PPSA.
“Receiver” means a receiver or receiver and manager appointed by PSC.
“Security agreement” has the same meaning given to it by the PPSA;
“Security interest” has the same meaning given to it by the PPSA;
“Special Order” means any order for Goods that are not ex-stock and have to be sourced from and/or manufactured by a third party by PSC for the Applicant, whether they be to specification provided by the Applicant or otherwise.
“Terms and Conditions” means these Trading Terms and Conditions.
2.1. In these Terms and Conditions, unless the context indicates otherwise, reference to:
One gender includes others;
The singular includes the plural and the plural includes the singular;
A person includes a natural person, firm, unincorporated association, corporation, partnership, joint venture and a government or statutory body or authority;
A statute, regulation or provision of a statute or regulation (Law) includes:
That Law as amended or re-enacted;
A statute, regulation or provision enacted in replacement of that Law;
Another regulation or statutory instrument made or issued under that Law; and/or
Any amendment made to a statute, regulation or provision as a consequence of another statute, regulation or provision;
A thing (including any amount) is a reference to the whole and each part of it;
Payment includes repayment, discharge or satisfaction.
2.2 If the Applicant comprises 2 or more persons:
A reference to the Applicant includes each and any 2 or more of them;
These Terms and Conditions binds each of them separately and any 2 or more of them jointly.
3.1. The Applicant acknowledges and agrees that these Terms and Conditions apply to and form part of every and any Agreement and that these Terms and Conditions shall prevail and take precedence over any other terms and conditions contained in any document provided by or to the Applicant at any time whatsoever.
3.2. The Applicant acknowledges and agrees that, for the avoidance of any doubt, any request and/or order by the Applicant to PSC for Goods shall constitute confirmation by the Applicant of its acceptance of these Terms and Conditions.
3.3. The Applicant warrants to PSC that the Credit Account and/or any Agreement and/or any Goods is/are for commercial purposes only.
3.4. The Applicant consents and authorises PSC to collect, use and/or disclose commercial and/or consumer information about the Applicant from/to any credit reporting agency and/or any other credit providers including credit bureaus for the purposes of assessing the Applicant’s credit worthiness and/or credit limit with PSC from time to time and the enforcing of PSC’s rights.
3.5. The Applicant acknowledges and agrees that PSC can, in its absolute discretion and for any reason whatsoever, vary the level of credit allowed to the Applicant at any time without giving any notice to the Applicant.
3.6. The Applicant shall provide written notification to PSC of any change in the Applicant’s constitution or structure or the sale of the business operated by the Applicant and agrees that it shall continue to be liable to PSC for any sums outstanding on any account opened for or on behalf of the Applicant until:
Written notice is received by PSC from the Applicant that it has changed the constitution or structure or the sale of the business; and
Full payment has been received by PSC.
4.1. The Applicant, in order to secure all monies payable by the Applicant to PSC:
hereby grants to PSC a charge over all of the Charged Property and/or the Other Property (the Charge);
hereby irrevocably authorises PSC to lodge a caveat over any or all of the Charged Property noting PSC’s interest so as to prevent any dealings on the title(s) of that Charged Property until all monies payable have been paid to PSC;
agrees that if more than one person comprises the Applicant, then each such person separately grants the Charge; and
hereby irrevocably consents to and requests PSC to appoint any such person which PSC deems fit to be the attorney of the Applicant for the execution of any document necessary to give effect to this charging clause.
4.2. Further to clause 4.1 and without limiting the effect of that clause in any way, the Applicant further, in order to secure all monies payable by the Applicant to PSC:
Hereby grants to PSC a charge over all of the Charged Co-op Shares (the Share Charge);
Agrees that if more than one person comprises the Applicant, then each such person separately grants the Share Charge;
hereby irrevocably consents to and requests PSC to appoint any such person which PSC deems fit to be the attorney of the Applicant for the execution of any document necessary to give effect to this charging clause; and
hereby irrevocably consents to PSC (including by its attorney) to deal with the Charged Co-op Shares in accordance with PSC’s Rules.
5.1. The Applicant authorises PSC:
To complete and/or amend at any time any blank, incomplete or inaccurate particulars and/or spaces in the Applicant’s Application for a Commercial Credit Account (which forms part of this document) with PSC; and
to otherwise complete at any time any formalities so as to render these Terms and Conditions and any Agreement complete and/or enforceable.
6.1. Each of the following events listed in this clause is a Default Event (whether or not it is in the control of the Applicant):
Obligations under any Agreement: The Applicant fails to:
pay or repay PSC in accordance with its obligations under any Agreement when due; or
comply with any provision under any Agreement or with any condition of any waiver or consent by PSC under or in connection with any Agreement;
Misrepresentation: any representation, warranty or statement by or on behalf of the Applicant under or in connection with any Agreement, which is not true or is misleading when made or repeated;
Insolvent: the Applicant becomes insolvent;
Enforcement against assets: a security interest becomes enforceable or is enforced, or a distress, attachment or other execution is levied or enforced over, all or any of the assets of the Applicant;
Reduction of capital: without the prior consent in writing of PSC, the Applicant reduces its capital or passes a resolution referred to in section 254N(1) of the Corporations Act 2001 (Cth) as amended;
Investigation: an investigation into all or part of the affairs of the Applicant commences under any law;
Credit Account used for different purpose: the Credit Account provided by PSC is used for a purpose other than the stated purpose;
Natural persons: if the Applicant is a natural person and they die, the Applicant no longer has full legal capacity or becomes incapable of managing their own affairs;
Partnerships: if the Applicant is a partnership and without the prior written consent of PSC:
The constitution of the partnership is changed; or
The partnership is dissolved;
Associations: if the Applicant is an association or cooperative and without the prior written consent of PSC:
An application is made, a resolution is passed or an order is made for the winding up of that Applicant; or
That Applicant becomes externally administered or a controller of a trustee for creditors is appointed in respect of its property.
7.1. In addition to any other rights provided by any law or under any Agreement, at any time after a Default Event has occurred:
each security interest and/or PMSI arising under this document becomes immediately enforceable; and/or
may, in the name of the Applicant or otherwise, at any time, do anything that the Applicant, or if the Applicant is a corporation or a trust, its directors or trustee (as the case may be), could do in relation to the Charged Property and/or Other Property;
has all other rights conferred by any law in relation to the Charged Property and/or Other Property; and
may appoint one or more receivers, and may do anything that a Receiver may do under clause 8.
8.1. Appointment of Receiver
In addition to the powers under clause 7 PSC may appoint any one or more persons as Receiver to any part of the Charged Property and/or the Other Property in addition to and without prejudice to any of its other rights:
if the Applicant requests PSC to do so;
at any time after a Default Event occurs; or
if PSC, in its sole discretion, believes that any of the Charged Property and/or the Other Property is at risk of being seized, becoming subject to a security interest or otherwise being dealt with in a manner inconsistent with the terms of this document.
In exercising the power to appoint a Receiver, PSC may:
appoint a Receiver under clause 8.1 either before or after it has taken possession of the Charged Property and/or the Other Property and either before or after any order has been made or a resolution passed for the winding up of the Applicant;
appoint a different Receiver for different parts of the Charged Property and/or the Other Property;
if more than one person is appointed as Receiver of any part of the Charged Property and/or the Other Property, empower them to act jointly or jointly and separately;
remove the Receiver, appoint another in substitution if the Receiver is removed, retires or dies, and reappoint a Receiver who has retired or been removed; and
fix the remuneration of the Receiver
PSC may appoint any person or any 2 or more persons jointly or jointly and separately as its agent to exercise any of its rights under this document, in which case the provisions of clause 8.1 apply as if the agent was a Receiver.
8.2. Receiver as agent
Subject to clauses 8.2(b) and 8.2(c), a Receiver will be the agent of the Applicant who alone will be responsible for the Receiver’s acts and omissions and remuneration.
PSC may appoint a Receiver as the agent of PSC and delegate to a Receiver any of PSC’s rights under this document.
To the extent that as a result of any order being made or a resolution being passed for the winding up of the Applicant, a Receiver ceases to be the agent of the Applicant, the Receiver will immediately become the agent of PSC.
8.3. Powers of Receiver
A Receiver will have the right in relation to any property in respect of which the Receiver is appointed to do everything that the Applicant may lawfully authorise an agent to do on behalf of the Applicant in relation to that property and, without limitation, a Receiver may in relation to that property exercise:
the rights capable of being conferred on receivers and receivers and managers by the Corporations Act 2001 (Cth) as amended, the PPSA as amended, any other legislation and the laws of any relevant jurisdiction;
the rights set out in clause 7;
the rights of the Applicant and the directors of the Applicant; and
any other rights PSC may by notice to a Receiver give to a Receiver.
PSC may by notice to a Receiver at the time of a Receiver’s appointment or any subsequent times give any rights to a Receiver that PSC determines.
9.1. PSC shall not be liable for any Loss arising in any way from any delay in delivery or any failure to deliver any Goods (either whole or in part), howsoever any such delay or failure arises.
9.2. Subject to clause 9.4 below, Goods shall be deemed to be delivered to the Applicant as soon as they are ready for delivery to or collection by the Applicant
Any Goods being the subject of a Special Order shall be deemed to have been delivered to the Applicant upon the acceptance of such Special Order by PSC, such acceptance not having to be notified to the Applicant by PSC and to be by PSC taking any step consistent with the acceptance of such Special Order
The Applicant agrees that PSC shall not be responsible for or under any duty to physically deliver or arrange for the delivery of any Goods to the Applicant but PSC may elect to arrange such delivery at its discretion and without liability and at the Applicant’s cost and risk in all respects.
The time for the delivery of any Goods shall not, in any circumstances, be of the essence notwithstanding any representations (oral and/or written) by PSC or the Applicant.
The Applicant shall pay PSC a delivery fee for the delivery of any Goods, such fees to be either the PSC Standard Delivery Fee (which may vary from time to time and which the Applicant is responsible to ascertain the amount of at any relevant time) or a Special Delivery Fee (which will be part of a written quotation given) or otherwise.
10.1. The Applicant acknowledges and agrees that:
these Terms and Conditions and/or any Agreement constitute a security agreement;
a security interest and/or a PMSI exists in PSC’s favour in:
All Goods previously supplied by PSC to the Applicant as well as their proceeds;
All Goods that may be supplied in the future by PSC to the Applicant as well as their proceeds;
The Other Property; and
The Charged Co-op Shares;
PSC has not authorised any disposal or dealing or agreement to deal with any:
Goods previously supplied by PSC to the Applicant as well as their proceeds;
Goods that may be supplied in the future by PSC to the Applicant as well as their proceeds;
The Other Property; or
The Charged Co-op Shares;
PSC has not agreed that any disposal or dealing or agreement to deal with any:
Goods previously supplied by PSC to the Applicant as well as their proceeds;
Goods that may be supplied in the future by PSC to the Applicant as well as their proceeds;
The Other Property; or
The Charged Co-op Shares
such security interests and/or PMSI’s shall continue despite any disposal or dealing or agreement to deal with any such Goods, Other Property or Charged Co-op Shares;
PSC has given value to the Applicant for its security interest and/or PMSI including by its promises under these Terms and Conditions or by providing or continuing to make available any financial accommodation (including but not limited to a Credit Account) to the Applicant;
Nothing in these Terms and Conditions is intended to be construed such that any security interest and/or PMSI under these Terms and Conditions attaches at a later time than the time specified in section 19(2) of the PPSA; and
It has not made any other document with PSC to vary the time of attachment of any security interest and/or PMSI.
10.2. The Applicant agrees:
To promptly sign any documents and/or provide any information (such information to be complete, accurate and up-to-date) which PSC may require in order to:
Register a financing statement or financing change statement in relation to any type of security interest on the Personal Property Securities register established under the PPSA;
Register any other document required to be registered by the PPSA; and/or
Correct any defect in a financing statement or financing change statement; and/or
Do anything else PSC may be required or entitled to do under the PPSA
And consents to PSC registering a financing statement or a financing change statement on the Personal Properties Securities register established under the PPSA.
To pay PSC for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities register established under the PPSA or releasing any Goods and/or Charged Co-op Shares charged and/or secured thereunder
Not to register or permit to be registered a financing change statement in respect of a security interest or a PMSI in relation to Goods (or the proceeds from their sale) and/or Charged Co-op Shares without the prior written consent of PSC.
Not to register or permit to be registered a financing change statement in respect of a security interest or a PMSI in relation to Goods (or the proceeds from their sale) and/or Charged Co-op Shares in favour of a third party without the prior written consent of PSC.
To immediately provide written notification to PSC of any material change in its business practices of selling or disposing of or dealing with Goods which might result in a change in the nature of proceeds from such sales
That until title in the Goods passes from PSC to the Applicant, the Applicant waives its rights under the following provisions of the PPSA:
to receive a notice of intention of removal of an accession (section 95);
to receive a notice that PSC decides to enforce its security interest in accordance with land law (section 118);
to receive notice on enforcement of security in liquid assets (section 120),
to receive a notice on enforcement action against liquid assets (section 121(4))
to receive a notice to seize collateral (section 123),
to receive a notice of disposal of collateral by PSC purchasing the collateral (section 129);
to receive a notice of disposal of collateral (section 130);
to receive a statement of account following disposal of collateral (section 132(3)(d));
to receive a statement of account if no disposal of collateral for each 6 month period (section 132(4));
to receive notice of any proposal of the Seller to retain goods (section 135);
to object to any proposal of PSC to either retain or dispose of goods (section 137(2));
to redeem the collateral (section 142);
to reinstate the security agreement (section 143); and/or
to receive a notice of any verification statement (see section 157(1) and section 157(3)
That sections 96, 117 and 125 of the PPSA shall not apply insofar as they confer any rights upon the Applicant.
That where PSC has rights in addition to those under Chapter 4 of the PPSA, those rights will continue to apply
Not to postpone the time for attachment of any security interest and/or PMSI granted to PSC under these Terms and Conditions
And irrevocably grants to PSC the right to enter upon the Applicant’s property or premises, without notice, and without being in any way liable to the Applicant or any third party, to exercise any of PSC’s rights under section 123 and/or 128 of the PPSA, and the Applicant shall indemnify and keep indemnified PSC against any and all Loss claimed by any third party or for any and all Loss which may be made or brought against or suffered or incurred by PSC as a result of PSC exercising any such rights.
11.1. The Applicant shall inspect the Goods upon delivery and will, within 48 hours, provide written notification to PSC of any defects, short deliveries or any failure to fulfil any quotation or order (the Defect Notice). Such Defect Notice shall not be effective unless it is addressed to PSC’s National Credit Manager and until such time as it has actually been received by PSC’s National Credit Manager
11.2. The Applicant will, within a reasonable time following receipt of a Defect Notice, grant PSC access to the Goods in order to inspect them for any alleged defects with the Goods.
11.3. Should the Applicant fail to provide a Defect Notice to PSC within the specified period of 48 hours then the Goods shall be deemed to be in compliance with the order and free from any defect whatsoever.
12.1. Notwithstanding any statutory provision to the contrary, Goods are taken to be sold by PSC to the Applicant when there has been delivery of the Goods, whether or not title or property in them has passed from PSC to the Applicant.
12.2. Notwithstanding the retention of title provisions in clause 14, the risk of loss or damage to Goods shall pass to the Applicant upon delivery of the Goods.
13.1. PSC may, in its sole discretion and subject to any conditions it deems appropriate, agree to accept the return of Goods which remain in good order and condition, however:
any restocking fee or surcharge levied by any third party supplier or manufacturer will be debited to the Applicant’s account with PSC and payable by the Applicant to PSC; and
any restocking fee or surcharge levied by PSC will be debited to the Applicant’s account with PSC and payable by the Applicant to PSC; and
any Goods being the subject of a Special Order shall not be returnable to the Applicant without the express written agreement of PSC’s National Credit Manager and the relevant third party supplier or manufacturer
14.1. Title in Goods, whether separate, processed, commingled or accessioned, shall remain vested in PSC and shall not pass to the Applicant until all monies owing to PSC by the Applicant have been paid to PSC in full. Until title in the Goods passes to the Applicant, the Applicant acknowledges that these Terms and Conditions create, in PSC’s favour, a security interest and/or a PMSI in the Goods and/or in the proceeds of their sale.
14.2. Until title in Goods, where such goods are processed, commingled or accessioned with any other goods, passes to the Applicant, then the Applicant agrees that the title in those other goods immediately passes to PSC and/or the proceeds of the sale of those other goods. To avoid any doubt regarding the ownership of those other goods, the Applicant agrees that title in those other goods passes to PSC at the beginning of the operation or event by which the Goods were processed, commingled or accessioned with the other goods.
14.3. If Goods (whether processed, commingled or accessioned with other goods) or those other goods are on-sold by the Applicant, then PSC shall have the right to trace any proceeds of their sale
14.4. Until payment has been received by PSC for the Goods, PSC shall be entitled to and retain all of the Applicant’s rights in respect of the sale price of Goods, including but not limited to, any chose of action accruing to the Applicant in relation to the purported sale of Goods by the Applicant to any third party and the Applicant agrees to provide all necessary assistance to PSC (including the provision of evidence) should PSC so require.
14.5. Until title in Goods has passed to the Applicant, PSC may demand at any time that the Applicant returns them to PSC in which case all costs incurred in returning them will be debited to the Applicant’s account with PSC and payable by the Applicant to PSC.
14.6. If the Applicant is at any time in Arrears or an Insolvency Event occurs or the Applicant defaults in the payment of any monies owing to PSC, then PSC may, without any notice and without prejudice to any of its other rights, enter upon the Applicant’s premises, or any other premises where Goods are known to be stored, to repossess Goods and for this purpose the Applicant shall grant reasonable access rights to PSC and PSC shall be entitled to do all things reasonably necessary to secure repossession of Goods.
14.7. Until title in Goods has passed to the Applicant, the Applicant shall store the Goods in a way that clearly manifests PSC’s title in them, shall store them in such a manner so as to be clearly identifiable as the property of PSC, shall keep separate records of any sales of such Goods and shall hold such goods as bailee and trustee of PSC.
14.8. If the Applicant sells any Goods (including Goods that have been processed, commingled or accessioned to other goods) whilst in Arrears then the Applicant shall undertake such sales as agent of and fiduciary for PSC and the Applicant shall disclose the agency relationship to its customer(s), hold the proceeds of such sales on trust for PSC and promptly account fully to PSC for the proceeds of such sales.
Except as may be expressly stated otherwise, the prices quoted by PSC for the supply of Goods do not include sales tax or stamp duty or any other tax or duty (including, but not limited to, any GST) and the cost of sales tax, stamp duty, GST or any other tax shall be borne by the Applicant
16.1. The Applicant must pay PSC for all Goods.
16.2. The amounts listed on statements of account issued by PSC are payable within 30 days of the date of the statement or such other timeframe as specified by PSC. Payment can be made by cash, cheque, electronic fund transfer or approved credit card (Visa, MasterCard or American Express), although payment by approved credit card may attract a surcharge calculated as a percentage of the payment amount (PSC suggest the Applicant enquires as to the amount of the surcharge prior to the time of making the payment). All such surcharges will be debited to the Applicant’s account with PSC and payable by the Applicant to PSC.
16.3. Applicants who are members of PSC may be entitled to a settlement discount if payment is made within the Payment Term. The amount, timing and method of provision of the discount, which shall be at PSC’s absolute discretion, may be adjusted by PSC at any time, and the settlement discount itself may be withdrawn completely by PSC at any time (although this will not affect any liability for settlement discounts accrued prior to and up to the date of such withdrawal).
16.4. Interest may be charged by PSC on overdue payments calculated at 18% per annum for so long as the overdue payment or part thereof is outstanding.
16.5. The Applicant shall not be entitled to set-off or deduct from any amount payable to PSC under any Agreement any amounts payable by PSC to the Applicant, including without limitation any damages, losses, costs and/or expenses alleged to be recoverable by the Applicant from PSC in consequence of any alleged breach of any Agreement or any credit claim by the Applicant.
Subject to clause 18, PSC warrants that Goods will, under proper use and/or installation, be free from any defects in construction or operation arising solely from faulty design, manufacture or workmanship on the part of PSC. Those parts and components which constitute Goods (or which form part of Goods) and which are not manufactured by PSC shall be warranted by PSC only to the extent that they are warranted by PSC’s relevant supplier or manufacturer and PSC is able to pass on the benefit of such warranty to the Applicant. The period of such warranty shall not, however, exceed 3 months from the date of delivery.
18.1. The warranty set out in clause 17 does not apply where:
a defect arises from ordinary wear and tear, excessive heating, neglect, misuse, accident, lack of care or incorrect installation;
the Applicant has in any way modified, serviced or repaired the Goods without PSC’s prior written consent; or
the Applicant has not complied with any written or oral instructions concerning the installation, use, operation or maintenance of the Goods.
19.1. Subject only to clause 20 and notwithstanding any other provision of any Agreement or otherwise:
PSC shall not be liable to the Applicant for any Loss which may be made or brought against or suffered or incurred by the Applicant or any other person arising out of or in any way connected with the supply of or purported supply of Goods by PSC and the Applicant shall indemnify and keep indemnified PSC in respect of any such Loss;
all representations, express or implied, relating to any quotations or orders prior to an Agreement being representations which might otherwise form part of an Agreement or form part of any collateral agreement are excluded to the extent that they conflict with these Terms and Conditions;
no dealing between PSC and the Applicant shall be or be deemed to be a sale by sample; and/or
the exemptions, limitations and Terms and Conditions in these Terms and Conditions shall apply whether or not the Loss or any loss or damage is caused by PSC’s negligence or actions constituting a breach of contract.
20.1. No provision of these Terms and Conditions purports to exclude, restrict or modify or have the effect of excluding, restricting or modifying:
the application, in relation to Goods, of any provision of the CCA; or
any liability of PSC for breach of a condition or warranty implied by any such provision.
20.2. If Goods under an Agreement constitutes a supply of goods and/or services to a consumer, as defined in the CCA:
nothing in that Agreement shall be construed as excluding, restricting or modifying any express or implied condition, warranty, right or remedy conferred by the CCA on the Applicant; and
the liability of PSC in respect of any breach of a condition or warranty implied by the CCA (other than any non excludable implied conditions or warranties contained in the CCA), shall be limited at PSC’s sole discretion to, in the case of goods, the resupply or repair of the goods, and in the case of services, the resupply of the services.
21.1. To the full extent permitted by law the Applicant acknowledges and agrees that:
it relies on its own skill and judgment in relation to Goods; and
PSC shall be under no liability for any unsuitability for any purpose of Goods irrespective of any knowledge it may possess as to the purpose for which Goods were required by the Applicant.
22.1. Subject to any condition, warranties and rights implied by statute which cannot by law be excluded by agreement:
PSC gives no warranties and the Applicant has no other right other than those expressly set out in these Terms and Conditions and in any other express warranties provided by PSC to the Applicant; and
all implied conditions, warranties and rights are excluded.
22.2. Where any condition, warranty or right is implied by law and cannot be excluded, the liability of PSC to the Applicant for breach of, or other act contrary to that implied condition, warranty or right in respect of any goods and/or services provided by or on behalf of or under any arrangement with PSC to the Applicant or any other person, subject to the qualifications set out in section 64A of Schedule 2 of the CCA or any other law, shall be limited as set out in clause 22.4 or, otherwise, to the extent permitted by law
22.3. PSC limits any other liability it may have in relation to any claim, demand or proceedings of any kind whatsoever in respect of any goods and/or services provided by or on behalf of or under any arrangement with PSC to the Applicant or any other person, whether in contract, in tort (including negligence), under any statute (to the extent permitted by law) or otherwise, as set out below in clause 22.4 below
22.4. Pursuant to clauses 22.2 and 22.3, PSC limits it liability:
In connection with any goods supplied by PSC, to any one or more of the following (as PSC may determine in its absolute discretion):
The replacement of the goods or supply of similar or equivalent goods;
The repair of the goods;
Payment of the costs of replacement or acquiring similar or equivalent goods; or
Payment of the costs of having the goods repaired.
In connection with any services supplied by PSC, to one of the following (as PSC may determine in its absolute discretion):
The supply of the services again; or
Payment of the cost of having the services supplied again.
23.1. The Applicant unconditionally and irrevocably indemnifies and must keep indemnified PSC from and against any and all Loss which may be made or brought against or suffered or incurred by PSC, the Applicant and/or any third party, including but not limited to:
(Property damage): for any and all Loss which may be made or brought by or suffered or incurred by any person (including but not limited to PSC, the Applicant and/or any third party) for any and all damage to that person’s property (whether real or personal) arising in any way whatsoever out of or in connection with the carriage, use, installation, storage or keeping of any Goods;
(Personal injury): for any and all Loss which may be made or brought by or suffered or incurred by any person (including but not limited to PSC, the Applicant and/or any third party) for any injury such person may sustain arising in any way whatsoever out of or in connection with the carriage, use, installation, storage or keeping of any Goods;
All expenses, costs, disbursements, legal costs, search fees and/or debt collection fees incurred by PSC:
in relation to the recovery of any monies owing by the Applicant to PSC;
in relation to the collection and/or repossession of any Goods; and/or
enforcing its rights against the Applicant whether under these Terms and Conditions or otherwise.
24.1. If a Default Event occurs or the Applicant is in breach of any Agreement or an Insolvency Event occurs to the Applicant then PSC may without notice:
Terminate the Agreement; and/or
Cease supplying any further Goods; and/or
Commence proceedings against the Applicant, including for any monies owing and/or the seeking of any available remedies or relief; and/or
Exercise any other rights.
25.1. Termination of an Agreement pursuant to clause 24 shall be without prejudice to the rights of PSC accruing up to the date of termination.
25.2. In the event of termination of an Agreement, the Applicant shall pay PSC:
all monies owing resulting from any Agreement up to and including the date of termination; and/or
for any Loss suffered by PSC, including without limitation PSC loss of profit on any Agreement; and/or
the legal costs of PSC (on an indemnity basis) incurred in relation to the termination or any prior breach and in PSC pursuing and/or exercising any consequential rights and remedies.
26.1. The Applicant shall not assign any of the Applicant’s rights in relation to any Agreement without the prior written consent of PSC.
26.2. The Applicant consents to PSC assigning any of PSC’s rights in relation to any Agreement.
26.3. PSC may assign any of its rights in relation to any Agreement without having to give any notice to the Applicant
Any waiver by PSC of strict compliance with these Terms and Conditions shall not be deemed a waiver unless it is in writing, it specifies the specific right which it waives, it is specifically referred to as a waiver and it is signed by an authorised officer of PSC. A single or partial exercise or waiver by PSC of a right will not prevent PSC from exercising that right or any other right.
28.1. The Applicant acknowledges and agrees that:
PSC will not be liable in any way whatsoever for any unauthorised use of the Applicant’s account with PSC; and
The Applicant will nevertheless be liable to PSC for payment of any goods and/or services ordered on the Applicant’s account with PSC even if such orders were made without the Applicant’s authority.
29.1. The Applicant acknowledges and agrees that these Terms and Conditions may be amended by PSC at any time by sending written notice of such amendment to the Applicant at their trading or postal address (whichever PSC in its absolute discretion chooses) by pre-paid ordinary post.
29.2. Any such amendments to these Terms and Conditions shall be effective two business days after PSC posts the notice in accordance with this clause and whether or not the Applicant receives such notice and shall apply to any orders for Goods (including the goods that are subject of a Special Order) from that time.
Should any of these Terms and Conditions or any part of these Terms and Conditions be illegal, invalid or unenforceable for any reason then they shall be severed from the other Terms and Conditions and shall not affect the remaining Terms and Conditions.
Service of any notice, demand proceedings, summonses, suits or action (collectively called “Process”) upon the applicant may be effected by PSC or its solicitors by sending same to the email, postal, trading or street address most recently advised by the Applicant to PSC or obtained by PSC. The choice of address and method of sending will be at the absolute discretion of PSC. The Process shall be deemed served one business day after sending by PSC whether or not it has been received by the Applicant..
Any legal proceedings between PSC and the Applicant will be governed by the laws of New South Wales and the Commonwealth of Australia as applicable;
PSC and the Applicant irrevocably submit to the exclusive jurisdiction of the courts of New South Wales for any legal proceedings between PSC and the Applicant;
Any legal proceedings between PSC and the Applicant shall be instituted in a court of competent jurisdiction in New South Wales (including the New South Wales Registries of the Federal Court of Australia or the Federal Magistrate’s Court of Australia should it be a matter where a State court of New South Wales lacks jurisdiction);
The Applicant shall not try to intervene or interfere in any way whatsoever with PSC’s choice of jurisdiction, such choice being the jurisdiction in which PSC commences any proceedings;
The Applicant shall not try to intervene with the jurisdiction of any court of New South Wales or the operation of this clause by seeking a stay (for example, under the Service and Execution of Process Act 1992 (Cth)) or a transfer of proceedings on the basis that they should be held in another jurisdiction; and/or
The Applicant hereby expressly waives any rights under section 20 of the Service and Execution of Process Act 1992 (Cth) as amended to apply for a stay of any proceedings in relation to any proceedings between the Applicant and PSC.