1.1 “Mawsons” shall mean EB Mawson & Sons Pty Ltd ABN: 14 004 519 617, and its successors and assigns and trading businesses including: Milbrae Concrete, Quarries and Mining Services; Country Concrete; Mildura Mini Mix and Bendigo Minicretes.
1.2 “You” or any derivative thereof shall mean the person(s), business, company or Trustee(s) who applied for Commercial Credit with Mawsons pursuant to this Commercial Credit Application, or any person acting on behalf of and with the authority of You.
1.3 “Guarantor” means that person (or persons), who agrees herein to be liable for the debts of You on a principal debtor basis or any Administrator or assign thereof.
1.4 “Agreement” shall mean the Agreement formed between Mawsons and You by submitting Your completed Application to Mawsons for Commercial Credit and includes these Terms and Conditions of Trade, and Mawsons acceptance of Your completed application, which is confirmed by You either expressly or by Your conduct.
1.5 “Goods” shall mean any Products or Pre-mixed concrete supplied by Mawsons to You (and where the context so permits shall include any supply of Services as hereinafter defined).
1.6 “Services” shall mean all services supplied by Mawsons to You and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.7 “Price” shall mean the cost of the Goods as determined by Mawsons subject to clause 4 of this Agreement.
1.8 “GST” has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
1.9 “Pre-mixed concrete” means concrete of any specification delivered in a state that is ready to pour, subject to Your additional specifications (if any) and the addition of water (if any).
1.10 “Products” means all Goods supplied by Mawsons to You of any type whatsoever and includes but is not limited to, rocks, aggregates and additives used in the manufacture of concrete, other than Pre-mixed concrete.
1.11 “PPSA” means the Personal Property Securities Act 2009 (Cth).
1.12 “PPSR” means the Personal Property Securities Register.
1.13 “Security Interest” has the meaning prescribed to it in section 12 of the PPSA.
1.14 “Purchase money security interest” has the meaning prescribed to it in section 14 of the PPSA.
1.15 “Security Agreement”, “Commingled Goods”, “Financing Statement”, “Financing Change Statement”, “Verification Statement”, “Collateral” and “Registration” have the meanings prescribed to them in section 10 of the PPSA.
1.16 “Terms and Conditions” shall mean Mawsons Terms & Conditions of Trade;
1.17 “Perfection” has the meaning prescribed to it in section 21 of the PPSA.
2.1 Any instructions received by Mawsons from You for the supply of Goods and/or Your acceptance of Goods supplied by Mawsons shall constitute acceptance of the Terms and Conditions contained herein.
2.2 Upon acceptance of these Terms and Conditions by You the Terms and Conditions are irrevocable and can only be rescinded in accordance with these Terms and Conditions or with the written consent of Mawsons.
2.3 None of Mawsons agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Mawsons in writing nor
is Mawsons bound by any such unauthorised statement unless made by a Mawsons Manager in writing.
2.4 You undertake to give Mawsons not less than fourteen (14) days prior written notice of any proposed change in Your name and/or any other change in Your details (including but not limited to, changes in Your address, facsimile number, or business practice). You agree to submit a new Commercial Credit Application to Mawsons should Your name, ABN, or person(s) or entity responsible for payment to Mawsons change. In the absence of a new Commercial Credit Application being submitted to and accepted by Mawsons, those persons or entities (including Guarantor(s)) originally liable to Mawsons pursuant to the initial Application for Commercial Credit, will remain liable.
2.5 You acknowledge that Mawsons has no way of knowing to what use and when, that you may use any Goods purchased from Mawsons.
3.1 The Goods are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by Mawsons to You.
4. Price And Payment
4.1 At Mawsons sole discretion the Price shall be either;
(a) as indicated on invoices provided by Mawsons to You in respect of Goods supplied; or
(b) Mawsons quoted Price which (subject to 4.2) shall be binding upon You upon acceptance of the Goods.
4.2 The Price in respect of Pre-mixed concrete Goods is quoted as nett per cubic metre delivered on the basis of a three (3) cubic metre minimum load supplied during normal working hours. For delivery on Public Holidays, weekends and before 6.30am or after 4.30pm, a surcharge applies. For loads less than 3m3, a minimum cartage charge on the shortfall from 3m3 applies. Details of the surcharge or the cartage charge are available upon request.
4.3 The Price in respect of Quarry Materials is based on:
(a) Current costs of transport, labour & materials, and in the event of any variation to any of these costs prior to delivery, Mawsons may adjust the Price accordingly without notice to You;
(b) Mawsons ruling minimum load, and in the event of deliveries being required of less than the minimum load, an additional cartage charge will be payable in accordance with Mawsons ruling rates;
(c) Delivery being made by the shortest access route available, and in the event of roads being closed and preventing delivery by the shortest access route, Mawsons shall have the right to charge for any additional cost incurred by it in making delivery; and
(d) Delivery being made during normal working hours and in the event of delivery being required outside such hours, and additional cartage charge will be payable in accordance with the Mawsons ruling rates. If stated on a volumetric basis, the Price will be based on a loose uncompacted volume as measured in the truck body at the place of loading.
4.4 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods.
4.5 Unless Mawsons receive a written request from You to receive hard copy or paper invoices, all invoices will be sent to You electronically and to the email address for receiving invoices nominated by You on page 1 of the Application for Commercial Credit. You are solely responsible to advise Mawsons within 24 hours in writing of any change to Your email address. You accept all risk and liability from any failure to notify Mawsons of any change to Your email address.
4.6 At Mawsons sole discretion, payment for approved customers shall be made by instalments in accordance with Mawsons delivery/payment schedule.
4.7 Mawsons standard payment terms are thirty (30) days following the date of invoice.
4.8 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed between Mawsons and You.
4.9 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by Mawsons.
4.10 Where You make payment of the Price by credit card or by direct credit, any and all merchant fees in facilitating the payment of the Price will also be payable by You. 2.5% of Your payment amount is a genuine pre-estimate of Mawsons costs of providing credit card facilities (ie the merchant fees). For example, if Your payment amount was $100.00, then the merchant fees applicable would be $2.50 being 2.5%.
5. Delivery Of Goods / Services
5.1 Delivery of the Goods shall be made to Your address or to a place nominated by You. You shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to You at Mawsons address.
5.2 Unless prior agreement is reached Mawsons undertakes to deliver and You agree to receive the Goods at the kerb alignment. The delivery vehicle will only enter the job area to facilitate unloading at Your sole risk and responsibility and at the absolute discretion of the truck driver.
5.3 Delivery of the Goods to a carrier, either named by You or failing such naming to a carrier at the discretion of Mawsons for the purpose of transmission to You, is deemed to be a delivery of the Goods to You.
5.4 The costs of carriage and any insurance which You reasonably direct Mawsons to incur, shall be reimbursed by You (without any set-off or other withholding whatsoever) and shall be due on the date for payment of the Goods. The carrier shall be deemed to be Your agent.
5.5 Where there is no agreement that Mawsons shall send the Goods to You, delivery to a carrier at limited carrier’s risk at the expense of You is deemed to be delivery to You.
5.6 Delivery of the Goods to a third party nominated by You is deemed to be delivery to You for the purposes of this Agreement.
5.7 Mawsons will not be responsible to You in any way for loss, damage or delay arising from strikes, lockouts, cessation of labour, fire, transport delays, shortened hours of labour, accidents of any kind, war or the like, acts of God, non-delivery of material or parts or any other cause or contingency whatsoever beyond the control of Mawsons. The failure of Mawsons to deliver Goods to You at an agreed time or at all through exceptional circumstances entitles Mawsons at its sole discretion to either extend the time for delivery for such reasonable period as it thinks fit or to cancel and terminate the Agreement insofar as it is incomplete without prejudice to Mawsons rights to recover all sums owing to it in respect of Goods previously provided or services performed prior to the date of such termination.
6.1 Mawsons retains the property in the Products until such time as the Price is paid in full. Upon delivery, a bailment is created where Mawsons is the bailor and You are the bailee. As bailee, all risk for the Products passes to You on delivery.
6.2 If any of the Products are damaged or destroyed prior to the property in them passing to You, Mawsons is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Products), to receive all insurance proceeds payable for the Products. This applies whether or not the Price has become payable under the Agreement. The production of these terms and conditions by Mawsons is sufficient evidence of Mawsons rights to receive the insurance proceeds without the need for any person dealing with Mawsons to make further enquiries.
7. Your Disclaimer
7.1 You hereby disclaim any right to rescind, or cancel the Agreement or to sue for damages or to claim restitution arising out of any misrepresentation made to You by any servant or agent of Mawsons and You acknowledge that You buy the Goods relying solely upon Your own skill and judgement.
8. Premixed Concrete Goods
8.1 The Premixed Concrete supplied is according to order under AS 1379 – 1997 and AS 3600 – 1994 or the latest revision of such standards. Mawsons accepts no responsibility in respect of any defect which may develop in any concrete supplied if additional water is added to the concrete either before or after discharge from the delivery unit without the sanction of Mawsons Engineer or representative, or if an admixture has been used in the concrete at Your request or specifications.
8.2 The mix specification will be detailed on the face of the delivery docket and You must check same with concrete specifications supplied to Mawsons. Mawsons will accept no responsibility for error if this check is not made at the time of delivery.
8.3 It should be expressly understood that Mawsons is not responsible for the quantity or strength of concrete in cases where You specify Your own mix design.
9. Quarry Material Goods
9.1 Testing of materials supplied will not automatically be carried out. If the results are to be used in any dispute with Mawsons, testing shall be carried out in accordance with the relevant Australian Standard Test Procedure by a testing laboratory approved by the National Association of Testing Authorities and the results shall be furnished forthwith after testing to Mawsons. Any testing shall be at Your expense.
9.2 In the event of any materials supplied by Mawsons in pursuance hereof fail to meet the agreed standards, the liability of Mawsons (if any) shall be limited to the replacement of such defective materials. To the extent permitted by law all other guarantees, warranties, undertakings, or representations expressed or implied and whether arising by statute or otherwise are hereby expressly excluded.
10 The Competition and Consumer Act 2010 (Cth) and Fair Trading Acts
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
11 Unpaid Seller’s Rights To Dispose Of Products
11.1 In the event that:
(a) Mawsons retains or regains possession or control of the Products; and
(b) payment of the Price is due to Mawsons; and
(c) Mawsons has made demand in writing of the You for payment of the Price in terms of this Agreement; and
(d) Mawsons has not received the Price of the Products, then, Mawsons may dispose of the Products and may claim from You the loss to Mawsons on such disposal.
11.2 In accordance with clause 6.1 hereof, Title in the Products does not pass to You upon delivery of the Products.
12 Default & Consequences Of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at the rate(s) as prescribed pursuant to the Penalty Interest Rates Act 1983 (Vic).
12.2 If You default in payment of any invoice when due, You shall indemnify Mawsons from and against all Mawsons costs and disbursements including on a solicitor and own client basis.
12.3 Without prejudice to any other remedies Mawsons may have, if at any time You are in breach of any obligation (including those relating to payment), Mawsons may suspend or terminate the supply of Goods to You and any of Mawsons other obligations under the terms and conditions of Trade. Mawsons will not be liable to You for any loss or damage whatsoever or howsoever arising that You suffer because Mawsons exercises its rights.
12.4 If any account remains unpaid at the end of the second month after supply of the Goods an immediate amount of the greater of $20.00 or 10.00% of the amount overdue being a genuine pre-estimate of Mawsons Cost shall be levied for administration fees which sum shall become immediately due and payable by You.
12.5 In the event that:
(a) any money payable to Mawsons becomes overdue, or in Mawsons opinion You will be unable to meet Your payments as and when they fall due; or
(b) You become insolvent, convene a meeting with Your creditors or propose 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 You or any asset of You, then without prejudice to Mawsons other remedies at law:
(i) Mawsons shall be entitled to cancel all or any part of Your order(s) for Goods which remains unperformed in addition to and without prejudice to any other remedies; and © Copyright – Jones King Lawyers Pty Ltd 2011
(ii) all amounts owing to Mawsons shall, whether or not due for payment, immediately become due and payable in addition to the interest payable under clause 12.1 hereof.
13.1 It is the intention of Mawsons and agreed by You that the property in the Products shall not pass until:
(a) You have paid all amounts owing for the Products, and
(b) You have met all other obligations due by You to Mawsons in respect of any Agreement between Mawsons and You, and that where practicable, the Products shall be kept separate until Mawsons shall have received payment and all other obligations of You are met.
13.2 Receipt by Mawsons 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 and until then Mawsons ownership of rights in respect of the Products shall continue.
13.3 It is further accepted, acknowledged and agreed that:
(a) The retention of title clause herein constitutes a Security Agreement pursuant to the PPSA which creates a Security Interest in all Goods and Services supplied by Mawsons to You including any Commingled Goods. It is the intention of Mawsons and You that upon registration of Mawsons Security Interest on the PPSR, a purchase money security interest will result.
(b) Until such time as ownership of the Products shall pass from Mawsons to You Mawsons may give notice in writing to You to return the Products or any of them to Mawsons. Upon such notice Your rights to obtain ownership or any other interest in the Products shall cease.
(c) Mawsons shall have the right of stopping the Products in transit whether or not delivery has been made; and
(d) If You fail to return the Products to Mawsons then Mawsons or any agent thereof may enter upon and into land and premises owned, occupied or used by You, or any premises as the invitee of You, where the Products are situated and take possession of the said Products.
(e) You are only a bailee of the Products and until such time Mawsons has received payment in full for the Products then You shall hold any proceeds from the sale or disposal of the Products on trust for Mawsons.
(f) You shall not deal with the money of Mawsons in any way which may be adverse to the Mawsons.
(g) You shall not charge the Products in any way nor grant nor otherwise give any interest in the Products while they remain the property of Mawsons.
(h) Mawsons may require payment of the Price or the balance of the Price due together with any other amounts due from You to Mawsons arising out of these terms and conditions, and Mawsons may take any lawful steps to require payment of the amounts due and the Price.
(i) Mawsons can issue legal proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Products may not have passed to You.
(j) Until such time that ownership in the Products passes to You, if the Products are so converted, the parties agree that Mawsons will be the owner of the end products.
14 Personal Property Securities Act 2009 (Cth)
14.1 You hereby acknowledge that these Terms and Conditions of Trade constitute a Security Agreement which creates a Security Interest in favour of Mawsons and in all Goods including services previously supplied by Mawsons to You (if any) and all after acquired Goods including services supplied to You by Mawsons (or for Your account) to secure the payment from time to time and at a time, including future advances. You agree to grant to Mawsons a Purchase Money Security Interest.
14.2 You give Mawsons a Security Interest in all of Your present and after-acquired property in which Goods including services supplied or financed by Mawsons have been attached or incorporated, including any Commingled goods.
14.3 You acknowledge and agree that by agreeing to these Terms and Conditions of Trade, You grant a Security Interest (by virtue of the retention of title clause in these Terms and Conditions of Trade) to Mawsons and in all Goods including services previously supplied by Mawsons to You (or for Your account) and these Terms and Conditions of Trade shall apply notwithstanding anything express or implied to the contrary contained in Your purchase order. You additionally agree that Mawsons can without notice to You seek Registration of its Security Interest as a purchase money security interest on the PPSR and under the PPSA.
14.4 You acknowledge, agree and undertake to:-
(a) Sign any further documents and/or provide any further information (which information You warrant to be complete, accurate and up-to-date in all respects) which Mawsons may reasonably require to enable perfection of its Security Interest or registration of a financing statement or financing change statement on the PPSR;
(b) Not register a financing change statement as defined in section 10 of the PPSA or make a demand to alter the financing statement pursuant to section 178 of the PPSA in respect of the Goods including any services without the prior written consent of Mawsons;
(c) Give Mawsons not less than 14 days written notice of any proposed change in Your name and/or any other changes in Your details (including but not limited to, changes in Your address, facsimile number, email address, trading name or business practice);
(d) Pay all costs incurred by Mawsons in the Registration and maintenance of its Financing Statement to enable Registration of its Security Interest (including registering a Financing Change Statement) on the PPSR such costs shall not exceed the regulated cost for registering or maintaining (updating) a Security Interest, as amended from time to time, together with an administrative charge of $10.00 per Registration and/or amendment to, a Security Interest, as a genuine pre-estimate of Mawsons costs, and/or enforcing or attempting to enforce the Security Interest created by these Terms and Conditions of Trade including but not limited to, executing subordination agreements;
(e) Be responsible for the full costs incurred by Mawsons (including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 182 of the PPSA;
(f) You acknowledge and agree to waive any rights that You may have had under section 115 of the PPSA upon enforcement;
(g) Pursuant to section 157 of the PPSA, unless otherwise agreed in writing by Mawsons, You agree to waive the right to receive the Verification Statement in respect of any Financing Statement or Financing interest statement relating to the Security Interest;
(h) You agree that immediately on request by Mawsons You will procure from any persons considered by Mawsons to be relevant to its security position, such agreement and waivers as Mawsons may at any time require.
(i) Release and hold harmless Mawsons from any liability whatsoever in the event of any dispute between Mawsons and You as to whether any interest registered on the PPSR constitutes a valid Security Interest.
(k) Indemnify Mawsons from any cost reasonably incurred by Mawsons in amending or withdrawing any Security Interest registered by Mawsons over any Goods sold to You, even if the registration has occurred through error or mistake on behalf of Mawsons.
15 Security And Charge
15.1 Despite anything to the contrary contained herein or any other rights which Mawsons may have:
(a) Where You and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both You and/or the Guarantor agree to mortgage and/or charge all of Your/ their joint and/or several interest in the said land, realty or any other asset to Mawsons or Mawsons nominee to secure all amounts and other monetary obligations payable under the Terms and Conditions of Trade. You and/or the Guarantor acknowledge and agree that Mawsons (or Mawsons nominee) shall be entitled to lodge where appropriate, a caveat to secure Mawsons interest, such caveat which shall be withdrawn once all payments and other monetary obligations payable including the cost of registering the said caveat hereunder have been met.
(b) Should Mawsons elect to proceed in any manner in accordance with this clause and/or its sub-clauses, You and/or Guarantor shall indemnify Mawsons from and against all of Mawsons costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof You and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint Mawsons or Mawsons nominee as Your and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as Mawsons and/or the Mawsons nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of You and/or the Guarantor in any land, realty or asset in favour of Mawsons and in Your and/or Guarantor’s name as may be necessary to secure Your and/or the Guarantor’s obligations and indebtedness to Mawsons and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in Mawsons absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
16.1 Mawsons may cancel these Terms and Conditions of Trade or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. Mawsons shall not be liable for any loss or damage whatever arising from any such cancellation.
16.2 At Mawsons sole discretion You may cancel delivery of Goods. In the event that You cancel delivery of Goods You shall be liable for any costs incurred by Mawsons up to the time of cancellation.
17. Privacy Act 1988 (Cth)
17.1 You and/or the Guarantor/s agree for Mawsons to obtain from a credit-reporting agency a credit report containing personal credit information about You and any Guarantor/s in relation to credit provided by Mawsons.
17.2 You and/or the Guarantor/s agree that Mawsons may exchange information about You and any Guarantor/s with another credit provider or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by You;
(b) To notify other credit providers of a default by You;
(c) To exchange information with other credit providers as to the status of this credit account, where You are in default with other credit providers; and
(d) To assess the credit worthiness of You and/or Guarantor/s.
17.3 You consent to Mawsons being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988 (Cth).
17.4 You agree that Personal Data provided may be used and retained by Mawsons for the following purposes and for other purposes as shall be agreed between You and Mawsons or required by law from time to time:
(a) provision of Services & Goods;
(b) marketing of Services and/or Goods by Mawsons, its agents or distributors in relation to the Services and Goods;
(c) analysing, verifying and/or checking Your credit, payment and/or status in relation to provision of Services/Goods;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by You; and
(e) enabling the daily operation of Your account and/or the collection of amounts outstanding in Your account in relation to the Services and Goods;
(f) Providing information to another credit provider as requested by the other credit provider in order to access Your creditworthiness, including but not limited to, the length of time you have traded with Mawsons, the average amount of Goods purchased by You with Mawsons per month, what Mawsons trading terms are, whether You make payments according to Mawsons trading terms.
17.5 Mawsons may give, information about You to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about You; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about You.
18.1 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.
18.2 All Goods supplied by Mawsons are subject to the laws of Victoria and Mawsons takes no responsibility for changes in the law which affect the Goods supplied. Mawsons and You agree that these Terms and Conditions of Trade, and every sale of Goods and/or services by Mawsons to You thereunder, shall be governed by the laws of the State of Victoria, and Mawsons and You agree to submit to the exclusive jurisdiction of the Courts of the State of Victoria.
18.3 Mawsons shall be under no liability whatsoever to You for any indirect loss and/or expense (including loss of profit) suffered by You arising out of a breach by Mawsons of these Terms and Conditions of Trade.
18.4 In the event of any breach of this Agreement by Mawsons Your remedies shall be limited to damages. Under no circumstances shall the liability of Mawsons exceed the Price of the Goods.
18.5 You shall not set off against the Price amounts due from Mawsons.
18.6 Mawsons may license or sub-contract all or any part of its rights and obligations without Your consent.
18.7 Mawsons reserves the right to review these Terms and Conditions of Trade at any time and from time to time. If, following any such review, there is to be any change to these Terms and Conditions of Trade then any changes will take effect seven (7) days after the date on which Mawsons notifies You of any such change.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm, inability on the part of Mawsons to obtain raw materials from any anticipated source or any other event beyond the reasonable control of either party.
18.9 If there is any inconsistency between these Terms and Conditions of Trade, a quotation or a purchase order, then these Terms and Conditions of Trade shall prevail, then the quotation, then the purchase order.
© Copyright – Jones King Lawyers Pty Ltd 2011