In these terms of trade-"The Customer" means the person (which expression includes any body corporate) specified above, or if no such person is specified, the person to whom these terms are provided by Direct Hospitality."Direct Hospitality" means the persons or entity trading as Direct Hospitality, including any successors of those persons or entity."Goods" means any goods sold or provided to the Customer by Direct Hospitality."Special order" means any order for goods placed by the Customer with Direct Hospitality in circumstances where such goods are not normally stocked by Direct Hospitality.
These terms of trade shall apply to every provision of goods by Direct Hospitality to the Customer. They constitute a full and complete statement of the agreement between Direct Hospitality and the Customer and no modification or variation of any term of the agreement shall be binding unless it is made in writing and signed by Direct Hospitality. The agreement shall not be modified or varied by the acknowledgement, receipt or acceptance by Direct Hospitality of a purchase order form or other document containing Terms and Conditions put forward by the Customer. Nothing contained in these terms shall be read as excluding, restricting or modifying any conditions or warranties which are implied by legislation (including Schedule 2 of the Competition and Consumer Act 2010) or any other legislation and which cannot be lawfully excluded, restricted or modified by agreement.
The Customer agrees that in return for Direct Hospitality providing goods to the Customer from time to time it will pay Direct Hospitality’s fees and charges (including GST), such fees and charges to be calculated based on Direct Hospitality’s schedule of charges applicable at the time of order, such schedule being available upon request.
a. In respect of this clause 5, the term "the Customer" shall also means the “grantor” as defined under the Personal Property Securities Act 2009.
b. The Customer acknowledges it will grant Direct Hospitality a security interest (preferably, a Purchase Money Security Interest) in all present and after acquired Goods supplied by Direct Hospitality and their proceeds to secure all moneys owing to Direct Hospitality now and in the future in respect of the supply of Goods.
c. The Customer undertakes to provide any information that Direct Hospitality may reasonably require to enable Direct Hospitality to perfect and maintain the perfection of Direct Hospitality’s security interest (including by registration of a financing statement).
d. The Customer undertakes to immediately notify Direct Hospitality in writing of any changes in the Customer’s name and/or any other change in the Customer’s details (including, but not limited to, changes in the Customer’s address, facsimile number, trading name or business practice). The Customer will not have the right to transfer any Goods provided by Direct Hospitality to any potential purchaser or purchaser of the Customer’s business, unless the Goods are first paid for in full to Direct Hospitality.
e. The Customer waives (and provides an on-going waiver of) the Customer’s right to receive a verification statement in respect of any financing statement and agree to the extent permitted by law that where Direct Hospitality has rights in addition to, or existing separately from those in Chapter 4 of the PPSA, those rights will continue to apply and in particular, will not be limited by Part 4.3 in Chapter 4 and the rights of the Customer as debtor under Sections 130, 132, 135 and 137 shall not apply to these Terms of Trade.
f. The Customer waives the right to receive any notices dealing with the goods and default as far as the law allows.
g. The Customer agrees to waive any rights associated with Section 143 of the PPSA so long as sale of the Goods (collateral) by the Customer to a third party has not occurred.
h. The Customer will pay all costs, expenses and other charges incurred, expended or payable by Direct Hospitality in relation to the filing of a financing statement or financing change statement in connection with these Terms of Trade.
i. The Customer agrees that the Customer will not allow security interests to be created or registered over the goods in priority to the security interest(s) held by Direct Hospitality.
j. The Customer agrees to allow Direct Hospitality to register a security interest over the security interest that the Customer may have over third parties so far as the law allows.
k. The Customer agrees that in the event of external administration of the Customer, the Customer will disclose the quantity/volume of Direct Hospitality’s Goods which are in manufactured / commingled/mixed goods or otherwise which may be work in progress as at the date of appointment of the external administrator.
k.1 In respect of the PPSA, Goods means all goods Direct Hospitality supply to the Customer from time to time, provided that (but solely for the purpose of the application of the PPSA) where the goods supplied are the Customer’s inventory, then all references to Goods in these Terms of Trade shall in respect of those goods, be read as references to inventory for so long as they are held as inventory and
k.2 where the goods supplied are not, or are no longer held as, the Customer’s inventory, then all references to Goods in these Terms of Trade shall, in respect of those goods mean the goods described in any one or more of the relevant order form, packing slip or invoice (or its equivalent, whatever called) prepared by Direct Hospitality and relating to those goods, on the basis that each such order form, packing slip or invoice )or its equivalent) is deemed to be assented to by the Customer, incorporated in, and form part of these Terms of Trade, and
k.3 unless the context requires otherwise, includes all proceeds of such Goods and any product or mass which the Goods subsequently become part of.
l. As far as the Personal Property Securities Act 2009 allows, Property and ownership in the Goods will not pass to the Customer but will remain in Direct Hospitality until payment in full of the purchase price of the Goods and all other amounts owing is made to Direct Hospitality by the Customer.
m. Any risk in the Goods will pass at the time of delivery and the Customer must insure the Goods.
n. In the event that the Customer defaults under these Terms of Trade, Direct Hospitality may in accordance with clause 123 of the Personal Property Securities Act 2009 seize the Goods and in accordance with clause 125 of the Personal Property Securities Act 2009 retain or dispose of the Goods. Divisions 3 and 4 under Chapter 4 of the Personal Property Securities Act 2009, will provide the rights of Direct Hospitality in respect of retaining or disposing the Goods.
o. In so far as the Personal Property Securities Act 2009 allows, the Customer acknowledges that if it mixes the Goods with other products or items or that the Goods are no longer separately identifiable, the Customer and Company will be owners in common of the new product and thereafter each party will have a right to share in any proceeds of sale. The proceeds of sale will be divided between the Customer and Company in accordance with their own respective value of contributed product or ingredient.
p. The authority of the Customer to sell the Goods does not extend to the making of any warranties or conditions which exposes Direct Hospitality to liability to another person (except as to the price, the terms of payment and like provisions) and the Customer must ensure that to the full extent permitted by law all conditions, warranties implied or imposed by law are excluded and where such a condition cannot be excluded that Direct Hospitality's liability is limited to the full extent permitted by law.
q. In the event that the Customer is in default of payment for Goods, Direct Hospitality has the right to appoint a receiver, manager, administrator under the Corporations Act 2001.
r. The conditions of this clause 5 apply notwithstanding any arrangement between the parties under which Direct Hospitality grants the Customer credit.”
Direct Hospitality will endeavour to supply the goods in a timely manner however unless otherwise agreed in writing provides no guarantee as to the timing of delivery of the goods. In the absence of an express written guarantee as to the timing of delivery no liability whatsoever shall exist on Direct Hospitality’s part to the Customer in relation to any delay or failure to deliver the goods, (other than in the case of failure to deliver the goods at all, refund of any purchase price which may have been paid).
Any provision or part of these terms which is deemed to be unenforceable shall be severable in whole or in part and shall not affect the remaining terms of the agreement or the portion of the particular term from which the part has been severed.
The rights and obligations of Direct Hospitality and the Customer under these general terms shall be governed in all respect by the Laws of the State of Victoria.
CONSUMER ACT 2010 Where the Terms of Trade would otherwise be subject to the Competition
and Consumer Act 2010 (“Act”), the Customer agrees that the Customer is acquiring
the Goods for business purposes and that the Act does not apply to the supply
of the Goods to the Customer. If the Customer is a consumer as defined in section 4B of the
Competition and Consumer Act 2010, and the Customer has not contracted out of
the Act under clause 10(a) of these Terms of Trade, nothing in these Terms of
Trade will limit any rights the Customer may have under this Act.”
Where the Terms of Trade would otherwise be subject to the Competition and Consumer Act 2010 (“Act”), the Customer agrees that the Customer is acquiring the Goods for business purposes and that the Act does not apply to the supply of the Goods to the Customer.
If the Customer is a consumer as defined in section 4B of the Competition and Consumer Act 2010, and the Customer has not contracted out of the Act under clause 10(a) of these Terms of Trade, nothing in these Terms of Trade will limit any rights the Customer may have under this Act.”
PRIVACY ACT 1988
The Customer agrees that this information is being collected in accordance with the Privacy Act 1988 and that the Customer has rights of access to and correction of personal information held by Direct Hospitality. The Customer agrees and authorises Direct Hospitality to obtain or divulge any information about the Customer from or to any third party in the course of our business activities including credit assessment, debt collection and direct marketing activities.
The Customer and the Customer’s guarantor/s authorise Direct Hospitality to collect and hold personal information from any source Direct Hospitality considers appropriate for the purposes of considering your credit worthiness, marketing activities, debt collection purposes and any other purpose related to Direct Hospitality providing goods to the Customer. The Customer further authorise Direct Hospitality to disclose personal information held by Direct Hospitality to any third party for the purposes set out above. The Customer understands that the Customer has a right of access and may request correction of personal information held by Direct Hospitality about the Customer.