1.1 “Shop Supplies” means MILLS STYROX PTY LIMITED Trading as Shop Supplies, its successors and assigns or any person acting on behalf of and with the authority of MILLS STYROX PTY LIMITED Trading as Shop Supplies.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by Shop Supplies 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 for the Goods as agreed between Shop Supplies and the Client in accordance with clause 4 below.
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 Shop Supplies’ consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Shop Supplies.
2.3 The Client acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, Shop Supplies reserves the right to vary the Price with alternative Goods as per clause 4.2.
2.4 Shop Supplies also reserves the right to halt all Services until such time as Shop Supplies and the Client agree to such changes.
3. Change in Control
3.1 The Client shall give Shop Supplies 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 Shop Supplies as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At Shop Supplies’ sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Shop Supplies to the Client; or
(b) the Price as at the date of delivery of the Goods according to Shop Supplies’ current price list; or
(c) Shop Supplies’ quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 Shop Supplies reserves the right to change the Price if a variation to Shop Supplies’ quotation is requested. Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to Shop Supplies in the cost of taxes, levies, materials and labour) will be charged for on the basis of Shop Supplies’ quotation and will be shown as variations on the invoice.
4.3 At Shop Supplies’ sole discretion a non-refundable deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Shop Supplies, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments/progress payments in accordance with Shop Supplies’ payment schedule;
(d) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Shop Supplies.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to three (3%) percent of the Price), or by any other method as agreed to between the Client and Shop Supplies.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Shop Supplies an amount equal to any GST Shop Supplies must pay for any supply by Shop Supplies 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 that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Delivery of Goods
5.1 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 Shop Supplies’ address; or
(b) Shop Supplies (or Shop Supplies’ nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
5.2 At Shop Supplies’ sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
5.3 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Shop Supplies shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.4 Shop Supplies may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 Any time or date given by Shop Supplies to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Shop Supplies will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
6.1 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.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Shop Supplies is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Shop Supplies is sufficient evidence of Shop Supplies’ rights to receive the insurance proceeds without the need for any person dealing with Shop Supplies to make further enquiries.
6.3 If the Client requests Shop Supplies to leave Goods outside Shop Supplies’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
6.4 The Client acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. Shop Supplies will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
6.5 Any advice, recommendation, information, assistance or service provided by Shop Supplies in relation to Goods or Services supplied is given in good faith, is based on Shop Supplies’ own knowledge and experience and shall be accepted without liability on the part of Shop Supplies 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.
7.1 Shop Supplies and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Shop Supplies all amounts owing to Shop Supplies; and
(b) the Client has met all of its other obligations to Shop Supplies.
7.2 Receipt by Shop Supplies 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.
7.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 7.1 that the Client is only a bailee of the Goods and must return the Goods to Shop Supplies on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Shop Supplies and must pay to Shop Supplies 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 Shop Supplies and must pay or deliver the proceeds to Shop Supplies 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 Shop Supplies and must sell, dispose of or return the resulting product to Shop Supplies as it so directs.
(e) the Client irrevocably authorises Shop Supplies to enter any premises where Shop Supplies believes the Goods are kept and recover possession of the Goods.
(f) Shop Supplies 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 Shop Supplies.
(h) Shop Supplies may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
8. Personal Property Securities Act 2009 (“PPSA”)
8.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
8.2 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 Shop Supplies to the Client.
8.3 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 Shop Supplies 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 8.3(a)(i) or 8.3(a)(ii);
(b) indemnify, and upon demand reimburse, Shop Supplies 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 Shop Supplies;
(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 Shop Supplies;
(e) immediately advise Shop Supplies 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.
8.4 Shop Supplies 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.
8.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
8.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
8.7 Unless otherwise agreed to in writing by Shop Supplies, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8.8 The Client must unconditionally ratify any actions taken by Shop Supplies under clauses 8.3 to 8.5.
8.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
9. Security and Charge
9.1 In consideration of Shop Supplies 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).
9.2 The Client indemnifies Shop Supplies from and against all Shop Supplies’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Shop Supplies’ rights under this clause.
9.3 The Client irrevocably appoints Shop Supplies and each director of Shop Supplies as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Client’s behalf.
10. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
10.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify Shop Supplies 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 Shop Supplies to inspect the Goods.
10.2 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).
10.3 Shop Supplies acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
10.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Shop Supplies makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Shop Supplies’ liability in respect of these warranties is limited to the fullest extent permitted by law.
10.5 If the Client is a consumer within the meaning of the CCA, Shop Supplies’ liability is limited to the extent permitted by section 64A of Schedule 2.
10.6 If Shop Supplies is required to replace the Goods under this clause or the CCA, but is unable to do so, Shop Supplies may refund any money the Client has paid for the Goods.
10.7 If the Client is not a consumer within the meaning of the CCA, Shop Supplies’ 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 Shop Supplies at Shop Supplies’ sole discretion;
(b) limited to any warranty to which Shop Supplies is entitled, if Shop Supplies did not manufacture the Goods;
(c) otherwise negated absolutely.
10.8 Subject to this clause 10, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 10.1; and
(b) Shop Supplies 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.
10.9 Notwithstanding clauses 10.1 to 10.8 but subject to the CCA, Shop Supplies 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 Shop Supplies;
(e) fair wear and tear, any accident, or act of God.
10.10 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by Shop Supplies as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that Shop Supplies has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 10.10.
10.11 Shop Supplies may in its absolute discretion accept non-defective Goods for return in which case Shop Supplies may require the Client to pay handling fees of up to thirty percent (30%) of the value of the returned Goods plus any freight costs.
10.12 Notwithstanding anything contained in this clause if Shop Supplies is required by a law to accept a return then Shop Supplies will only accept a return on the conditions imposed by that law.
11. Intellectual Property
11.1 Where Shop Supplies has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Shop Supplies.
11.2 The Client warrants that all designs, specifications or instructions given to Shop Supplies will not cause Shop Supplies to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Shop Supplies against any action taken by a third party against Shop Supplies in respect of any such infringement.
11.3 The Client agrees that Shop Supplies may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Shop Supplies has created for the Client.
12. Default and Consequences of Default
12.1 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 Shop Supplies’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 If the Client owes Shop Supplies any money the Client shall indemnify Shop Supplies from and against all costs and disbursements incurred by Shop Supplies in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Shop Supplies’ Contract default fees, and bank dishonour fees).
12.3 Without prejudice to any other remedies Shop Supplies may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Shop Supplies may suspend or terminate the supply of Goods to the Client. Shop Supplies will not be liable to the Client for any loss or damage the Client suffers because Shop Supplies has exercised its rights under this clause.
12.4 Without prejudice to Shop Supplies’ other remedies at law Shop Supplies shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Shop Supplies shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Shop Supplies becomes overdue, or in Shop Supplies’ opinion the Client will be unable to make a payment when it falls due;
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
13.1 Shop Supplies 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 Shop Supplies shall repay to the Client any money paid by the Client for the Goods. Shop Supplies shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 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 Shop Supplies as a direct result of the cancellation (including, but not limited to, any loss of profits).
13.3 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
14. Privacy Act 1988
14.1 The Client agrees for Shop Supplies to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Shop Supplies.
14.2 The Client agrees that Shop Supplies may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
14.3 The Client consents to Shop Supplies being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4 The Client agrees that personal credit information provided may be used and retained by Shop Supplies for the following purposes (and for other purposes as shall be agreed between the Client and Shop Supplies or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Shop Supplies, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
14.5 Shop Supplies may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
14.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Shop Supplies is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of Shop Supplies, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by Shop Supplies has been paid or otherwise discharged.
15. Unpaid Seller’s Rights
15.1 Where the Client has left any item with Shop Supplies for repair, modification, exchange or for Shop Supplies to perform any other service in relation to the item and Shop Supplies has not received or been tendered the whole of any monies owing to it by the Client, Shop Supplies shall have, until all monies owing to Shop Supplies are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
15.2 The lien of Shop Supplies shall continue despite the commencement of proceedings, or judgment for any monies owing to Shop Supplies having been obtained against the Client.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Shop Supplies’ sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
17.1 The failure by Shop Supplies to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Shop Supplies’ 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.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales in which Shop Supplies has its principal place of business, and are subject to the jurisdiction of the courts in New South Wales.
17.3 Subject to clause 10 Shop Supplies 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 Shop Supplies of these terms and conditions (alternatively Shop Supplies’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
17.4 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 Shop Supplies nor to withhold payment of any invoice because part of that invoice is in dispute.
17.5 Shop Supplies may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.6 The Client agrees that Shop Supplies may amend these terms and conditions at any time. If Shop Supplies makes a change to these terms and conditions, then that change will take effect from the date on which Shop Supplies notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Shop Supplies to provide Goods to the Client.
17.7 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.
17.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
MILLS STYROX PTY LIMITED Trading as Shop Supplies