1. Definitions
“Agreement” means any sales agreement or contract entered into for the provision of Products and/or Services by Imtrade Australia and the Customer;
“Collateral” has the meaning given under the PPSA and in particular for the purposes of this agreement or contract, the personal property that is not used predominantly for personal, domestic or household purposes as identified in Clause 7 hereof to which the Security Interest has attached;
“PPSA” means the Personal Property Securities Act 2009 as amended;
“PPSA Register” means the personal property securities register established under section 146 of the PPSA;
“Customer” means a person, firm or corporation, jointly and severally if there is more than one, acquiring Products or Services;
supplied by Imtrade Australia;
“GST” means the Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time;
“Imtrade” means Imtrade Australia Pty Ltd ABN 13 090 151 134 of Suite 22, 11 Preston Street, Como, Western Australia 6152 and its permitted successors and assignees.
“Price” means the price stated in Imtrade Australia’s tender, quote, price schedule or letter attached to these Terms which is subject to Clause 3;
“Products” means any Products ordered by the Customer, and
“Security Interest” has the meaning given under the PPSA;
“Services” mean any Services supplied by Imtrade Australia to the Customer in connection with the Products;
“Terms” means these Terms and Conditions of Trade;
2. Basis of Agreement
2.1 The terms apply exclusively to every contract for the sale of Products and/or the supply of Services by Imtrade to the Customer and cannot be varied or supplanted by any other conditions without the prior written consent of Imtrade.
2.2 Any written quotation provided by Imtrade to the Customer concerning the proposed supply of Products or Services is:
(a) an invitation to treat only;
(b) remains valid until otherwise advised by Imtrade Australia; and
(c) subject to the Customer offering to enter into an Agreement and accepting these Terms.
2.3 The Agreement is accepted by Imtrade where it confirms its acceptance of an offer from the Customer in writing, or provides the Customer with the Product or Service
2.4 Imtrade in its absolute discretion may refuse to accept any offer.
2.5 It is the Customer’s responsibility to provide Imtrade with its specific requirements in relation to the Products and Services.
2.6 Details contained in any written quotation, tender or letter from Imtrade Australia form part of this Agreement, and where inconsistent with the Agreement, the details will prevail.
2.7 Imtrade may vary or amend these Terms by notice in writing to the Customer at any time. Any variations or amendments will apply to orders made by the Customer after the date of the notice.
3. Pricing
3.1 Prices quoted for the supply of Products and Services excludes GST and in addition to payment of the Price for Products, the Customer must pay GST.
3.2 Prices charged and payable by the Customer will be pricing per Imtrade Australia’s sales order confirmation at time of placement and acceptance of order.
3.3 If the delivery of Products is delayed or prevented by circumstances caused by the Customer, including that the Customer is not able to accept delivery, the Customer will pay all costs associated with delivery, storage of the Products, insurance, and any costs incurred while making further attempts to deliver the Products.
4. Payment
4.1 If credit is provided by Imtrade, payment must be made within 30 days from the end of the month in which the invoice is dated.
4.2 Credit terms may be revoked or amended at the sole discretion of Imtrade immediately upon giving written notice to the Customer.
4.3 If a Customer’s account has not been used for 15 months then that account will be closed without notice. The Customer will be required to open a new account and provide credit credentials.
4.4 Imtrade will provide a tax invoice for GST purposes.
4.5 Any other payment terms must be agreed in writing by Imtrade Australia.
5. Payment Default
5.1 If the Customer defaults in payment by the due date of any amount payable to Imtrade , then all monies which would become payable without the requirement of any notice to the Customer, and Imtrade may without prejudice to any other remedy available to it: –
(a) charge the Customer interest on any sum due at the prevailing overdraft interest incurred by Imtrade plus 5 percent for the period from the due date until the date of payment in full;
(b) charge the Customer for all expenses and costs (including legal costs and disbursements on an indemnity basis) incurred by it resulting from the default and in taking whatever action it deems appropriate to recover any sum due;
(c) cease or suspend for such period as Imtrade thinks fit, the supply of any further Products or Services to the Customer;
6. Passing of Property
6.1 Until full payment in cleared funds is received by Imtrade for all Products supplied by it to the Customer, as well as all other amounts owing to Imtrade by the Customer: –
(a) title and property in all Products remains vested in Imtrade Australia and does not pass to the Customer;
(b) the Customer must hold the Products as fiduciary bailee and agent for Imtrade;
(c) where practicable the Customer must keep the Products separate from its Products and maintain the labelling and packaging of Imtrade;
(d) the Customer is required to hold the proceeds of any sale of the Products on trust for Imtrade and if the Customer uses the Products for itself or a third party in some manufacturing or other processing, the Customer shall hold such part of the proceeds of such manufacturing or other processing as relates to the Products, on trust for Imtrade, and pay such monies to Imtrade on demand;
(e) Imtrade may, without notice, enter any premises where it suspects the Products may be and remove them, and for this purpose the Customer irrevocably licenses Imtrade Australia to enter such premises and also indemnifies Imtrade Australia from and against
7. Personal Property Securities Act 2009
7.1 The terms “Collateral”, “Debtor”, “ Financing Change Statement”’ “Financing Statement”, “Grantor” “Proceeds”, “Secured Party”, “Security Agreement” and “Security Interest” have the
meanings given in the PPSA.
7.2 The Customer acknowledges and agrees that by accepting these terms and conditions which form part of the Contract and constitute a Security Agreement that covers the Collateral for the purposes of the PPSA;
7.2.1 Imtrade holds ( as Secured Party) a Security Interest over all of the present and after acquired goods supplied by Imtrade to the Customer and any Proceeds of the sale of those goods (“Collateral”);
7.2.2 That any purchase by the Customer on credit terms from Imtrade or retention of title supply pursuant to clause 6 hereof will constitute a purchase money security interest as defined under Section 14 of the PPSA (“PMSI”);
7.2.3 The PMSI granted herein will continue to apply to any goods coming into existence or proceeds of sale of goods coming into existence;
7.2.4 Imtrade will continue to hold a security interest in the goods in accordance with and subject to the PPSA, notwithstanding that the goods may be processed, comingled or become an accession with other goods.
7.2.5 Any Imtrade Security Interest will be continuing and subsisting interest in the Collateral with priority to the fullest extent permitted by law over all registered or unregistered Security Interest;
7.2.6 Until title in the goods pass to the Customer, it will keep all goods supplied by Imtrade free and ensure all such goods are kept free of any charge, lien or Security Interest and not otherwise deal with the goods in a way that will or may prejudice any rights of Imtrade under the Contract or the PPSA; and
7.2.7 In addition to any other rights under these terms and conditions or otherwise arising, Imtrade may exercise any and all remedies afforded to it as a Secured Party under Chapter 4 of the PPSA including, without limitation, entry into any building or premises owned, occupied or used by the Customer, to search for an seize, dispose of or retain those goods in respect to which the Customer has granted a Security Interest to Imtrade.
7.3 The Customer acknowledges and undertakes to:
7.3.1 Sign any further documents and provide such information with Imtrade may reasonably require to register, amend or update a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPS Register;
7.3.2 Indemnify and upon demand reimburse Imtrade all expenses incurred in registering a Financing Change Statement on the PPS Register or releasing any Security Interests;
7.3.3 Not register or permit to be registered a Financing Change Statement in the Collateral without the prior written consent of Imtrade; and
7.3.4 Provide Imtrade not less than 7 days prior written notice of any proposed change in the Customer’s name, address, contact numbers, business practice or such other change in the Customer’s details registered on the PPS Register to enable Imtrade to register a Financing Change Statement if required.
7.4 Imtrade and the Customer agree that sections 96, 125 and 132(3) (d) and 132 (4) of the PPSA do not apply to the Security Agreement created under this Contract.
7.5 The Customer hereby waives its rights as Grantor and or a Debtor under sections 142 and 143 of the PPSA. 7.6 Unless otherwise agreed in writing by Imtrade, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
7.7 The Customer shall unconditionally ratify any actions taken by Imtrade under this clause 7.
7.8 This Clause 7 will survive the termination of this Contract to the extend permitted by law.
8. Risk and Insurance
8.1 The risk in the Products and all insurance responsibility for theft, damage or otherwise in respect of the Products will pass to the Customer immediately upon delivery of the Products to the Customer.
8.2 If as a result of default by the Customer, the Goods are unable to be delivered the risk in the Products and all insurance for theft, damage or otherwise in respect of the Products will pass to the
Customer, from the time of attempted delivery.
9. Performance of Agreement
9.1 Any period or date for availability or delivery of Products or provision of Services stated by Imtrade is intended as an estimate only and is not a contractual commitment. Imtrade will use its best reasonable endeavours to meet any estimated dates for availability or delivery of the Products or completion of the Services.
9.2 The Customer may not cancel the Agreement and/or claim damages other than liquidated damages expressly agreed upon in the written quotation, as a result of late delivery or supply.
10. Delivery
10.1 The Customer is responsible for organising delivery of the Products from Imtrade unless otherwise agreed.
10.2 The Customer is responsible for checking all Products to ensure that the correct volume, concentration levels and type of Products have been received. Any shortage, excess or inaccuracy of
any of the Products must be reported to Imtrade within 7 days of receipt of the Products by the Customer, Imtrade will not be responsible for any claim for shortages or failure to meet
specifications after this time.
10.3 The Customer must provide suitable access to on site tanks, or other suitable receptacles, to allow the unloading of the Products.
10.4 The Customer indemnifies Imtrade against any loss or damage suffered by Imtrade, its sub-contractors or employees as a result of delivery, except where caused by the negligence of Imtrade .
10.5 Late delivery or supply shall not entitle the Customer to vary or cancel the Agreement, or claim damages as a result.
11. Re-stocking
It is not Imtrade’s policy to accept re-stocking of sold products. In instances where Imtrade agrees to re-stock goods, Imtrade may impose a re-stocking fee of 25% on the invoiced price of the products. The customer will be responsible for transport costs for returning the products to Imtrade’s site at 17 Ocean St., Kwinana Beach WA and ensure the products are returned in good condition. The customer will also be charged for any costs relating to the inspection and testing of products returned.
12. Container
a. Imtrade’s Container Policy prevailing at time of sale will apply once order is delivered. Imtrade reserves the right to change the terms of the Container Policy by informing the Customer in writing.
13. Liability
a. Except as specifically contained in this Agreement and in any warranty statement provided with the Products, any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Products, whether implied by statute, common law, trade usage, custom or otherwise, is expressly excluded.
b. Liability arising under or in connection with the description, quality, condition, performance, assembly,
manufacture, design, merchantability or fitness for purpose of the Products or Services or alternatively the sale, use of, storage or any other dealings with the Products by the Customer or any third party is limited to one of the following as determined by Imtrade in its sole discretion:
(a) the replacement of the Products or the supply of the equivalent Products or re-supply of the Services; or
(b) the payment of the cost of replacing the Products or acquiring equivalent Products.
c. Imtrade is not liable for any direct or indirect or consequential losses or expenses suffered by the Customer or any third party, as a result of the provision of the Products, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
d. Imtrade will not be liable for any loss or damage suffered by the Customer where Imtrade has failed to meet any delivery or availability date or cancels or suspends the supply of Products or Services.
14. Cancellation
a. If, through circumstances beyond its control, Imtrade is unable to effect delivery or provision of Products or Services, then Imtrade may cancel the Customer’s order (even if it has already been accepted) by notice in writing to the Customer.
b. Where delivery is delayed due to circumstances beyond the control of Imtrade, including but not limited to acts of God, terrorism, strikes, blackouts, fires, storms, or accidents, Imtrade may suspend the delivery of the Products until such time as he circumstances preventing delivery cease, and the Customer must allow a reasonable time for delivery following the cessation of the circumstances.
c. No purported cancellation or suspension of an order or any part thereof by the Customer is binding on Imtrade, after that order has been accepted by Imtrade.
d. If cancellation occurs under clause 12.1, or if cancellation is accepted by Imtrade, the Customer remains liable to Imtrade Australia for any costs incurred by Imtrade prior to the cancellation of the Agreement.
15. Warranty
a. Imtrade will replace if it deems necessary in its reasonable discretion, any Product that does not meet thee standard specified in the product description, provided that the product may have an acceptable variance.
b. Provision of the Warranty is subject to:
(a) payment in full in accordance with this agreement; and
(b) written notice from the Customer within 7 days of delivery of any Product that it believes does not meet specifications.
(c) independent evidence supplied by the Customer that the Products do not meet specifications; or
(d) the provision of a sample of the Products to Imtrade for testing.
(e) Correct storage of the Product in accordance with instructions.
(f) decontamination of storage receptacles in accordance with statutory regulations and best practice prior to placing any Product in the receptacle.
(g) using Products in accordance with their intended purpose.
c. The Warranty excludes damage or alteration to Products arising from circumstances outside the control of Imtrade, including, without limitation, mixing of other chemicals or products, or where Products are not used for their intended purpose.
d. The Customer warrants to use the Products in accordance with;
(a) any instructions provided to it by Imtrade from time to time; and
(b) all government and local regulations governing the storage, use and maintenance of the Products.
16. Miscellaneous
a. The law of Western Australia from time to time governs this Agreement and the parties agree to the exclusive jurisdiction of the courts and tribunals of Western Australia, the Federal Court of Australia, and of courts entitled to hear appeals from those courts and tribunals.
17. Privacy
15.1 Imtrade is bound by the Privacy Act and takes steps to ensure that all personal information obtained in connection with the Customer will be appropriately collected, stored, used, disclosed and transferred in accordance with the National Privacy Principles. Such information may be accessed by request to Imtrade in accordance with the Privacy Act.