When a Customer is a Small Business, clause 13 of the Credit Terms applies and a clause marked with ‘*’ is amended by that clause.
1. Purpose of credit
1.1 The Customer acknowledges and agrees that any credit to be provided to the Customer by the Supplier is to be used wholly or predominantly for business purposes.
2. Account approval
2.1 The Supplier may accept or reject an application by the Customer for a commercial credit account in its absolute discretion.
2.2 The Supplier's provision of a commercial credit account to the Customer is conditional on the provision of an executed Deed of Guarantee and Indemnity in the form attached (or as otherwise agreed in writing) (Deed of Guarantee) by the Guarantor(s) identified in the application, unless the Supplier waives this condition in writing.
3. Commercial credit terms
3.1 Where the Supplier grants the Customer a commercial credit account, invoices for Orders placed by the Customer with the Supplier are due and payable as set out in the relevant provision of the Terms and Conditions of Sale attached (or with such amendments to them as are allowed in those Terms and Conditions of Sale (as attached and/or as later amended, Terms of Sale)).
4. Personal Property Securities Act, Security and Charges
4.1 By agreeing to these Credit Terms, the Customer grants a security interest to the Supplier in all Goods (and their Proceeds) supplied by the Supplier to the Customer (or to its account) now or in the future. The security interest granted to the Supplier by the Customer constitutes a ‘purchase money security interest’ under the PPSA.
4.2 The Customer undertakes to do anything that is required by the Supplier:
(a) so that the Supplier can acquire and maintain one or more perfected security interests under the PPSA and has priority in respect of the Goods and their Proceeds;
(b) to register a financing statement or financing change statement; and
(c) to ensure that the Supplier's security position, and rights and obligations, are not adversely affected by the PPSA.
4.3 Unless the Customer has obtained the Supplier's prior written consent, the Customer undertakes not to:
(a) register a financing change statement in respect of a security interest contemplated or constituted by these Credit Terms; and
(b) create or purport to create any security interest in any Goods, nor register, or permit to be registered, a financing statement or a financing change statement in relation to any Goods in favour of a third party.
4.4 The Customer:
(a) waives its right under section 157 of the PPSA to receive a copy of the verification statement relating to a security interest created under these Credit Terms;
(b) agrees that to the extent permitted by the PPSA, the following provisions of the PPSA will not apply and are contracted out of: section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notices to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142 and section 143; and
(c) agrees that the following provisions of the PPSA will not apply and the Customer will have no rights under them: section 127; section 129(2) and (3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137.
4.5 The Customer agrees that it will, if requested by the Supplier, sign any documents, provide any information, or do anything else the Supplier reasonably requests, to ensure that any security interest created in the Supplier's favour by these Credit Terms is, to the fullest extent possible under the PPSA, perfected in accordance with Part 2.2 of the PPSA.
4.6 Notwithstanding section 275 of the PPSA, the parties agree to keep confidential all information of the kind referred to in section 275 of the PPSA, unless compelled by law to disclose such information.
4.7 The Customer irrevocably grants to the Supplier the right to enter upon the Customer's property or premises, with notice, and without being in any way liable to the Customer or to any third party, if the Supplier has cause to exercise any of its rights under sections 123 and/or 128 of the PPSA, and the Customer shall indemnify the Supplier from any claims made by any third party as a result of such exercise.
4.8 The Customer will be responsible for the Supplier's costs and expenses (including legal costs, on an indemnity basis) in exercising its rights under clause 4.7 where the Customer is otherwise in default of these Credit Terms or the Terms of Sale. Where the Supplier exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Customer against the Supplier, its employees, servants, or agents.
4.9 The Customer charges in favour of the Supplier all of its estate and interest in any real property the Customer owns, whether held in its own right, jointly or in its capacity as trustee, at present and in the future as security for payment of all monies which are now or in the future become owing to the Supplier whether pursuant to these Credit Terms, the Terms of Sale or otherwise until all such monies are paid in full by the Customer.
4.10 The Customer charges in favour of the Supplier all of its estate and interest in any personal property the Customer owns, whether held in its own right, jointly or in its capacity as trustee, at present and in the future as security for payment of all monies which are now or in the future become owing to the Supplier whether pursuant to these Credit Terms, the Terms of Sale or otherwise until all such monies are paid in full by the Customer.
4.11 As security for the payment of any amount of its indebtedness to the Supplier from time to time, the Customer irrevocably appoints as its duly constituted attorney the Supplier's company secretary from time to time to execute in the Customer's name and as the Customer's act and deed any real property mortgage, bill of sale or consent to any caveat the Supplier may choose to lodge against real property that the Customer may own in any Land Titles Office in any state or territory of Australia. The Supplier may exercise its rights under this 4.11, even though:
(a) the Customer may not have defaulted on payment of any amount due to the Supplier or on its obligations under any Contract; and/or
(b) the Supplier may not have suspended, withdrawn or terminated the Customer's commercial credit account in accordance with these Credit Terms. *
5. Suspension of commercial credit
5.1 Where the Customer has a commercial credit account with the Supplier, the Supplier may, without prejudice to any other rights that the Supplier may have, suspend the Customer's commercial credit account immediately and without prior notice if:
(a) the Customer fails to make payment of any invoice by the due date;
(b) the Customer or a Guarantor becomes Insolvent;
(c) in the reasonable opinion of the Supplier, there is, or has been, an adverse change in the creditworthiness of the Customer or a Guarantor; *
(d) a Guarantor revokes their guarantee without a suitable replacement Guarantor having provided a replacement guarantee acceptable to the Supplier prior to the revocation; or
(e) there is a change in ownership or control of the Customer without prior written consent of the Supplier. *
5.2 If the Supplier suspends an account under clause 5.1, it may:
(a) cease to accept any further Orders from the Customer on commercial credit account terms; and
(b) suspend, or cancel, any Orders placed by the Customer but not yet completed and/or delivered, or collected.
6. Cancellation of commercial credit
6.1 Where the Customer has a commercial credit account with the Supplier, the Supplier may withdraw or suspend commercial credit at any time. On a withdrawal of credit under this clause 6.1, the Supplier will cease to accept any further Orders from the Customer on commercial credit account terms, although the Supplier may accept Orders on a cash payment basis in accordance with the Terms of Sale. *
6.2 Notwithstanding clause 5 above, if:
(a) the Customer defaults in the payment of any amount due to the Supplier and does not cure such default within 7 days after being given written notice of such default; and/or *
(b) the Customer or a Guarantor becomes Insolvent; and/or
(c) the Customer's account has been suspended under clause 5 for 7 days or more and the issue giving rise to the suspension has not been resolved to the satisfaction of the Supplier; and /or *
(d) the Customer has defaulted in the payment of any amount due to the Supplier more than once in the preceding 12 months,
the Supplier may immediately terminate the commercial credit account and give written notice to the Customer.
6.3 On the termination of a commercial credit account in accordance with clause 6.2, all liabilities incurred by the Customer with the Supplier become immediately due and payable to the Supplier.
6.4 For the avoidance of doubt, withdrawal or termination of the commercial credit account will not affect:
(a) the right of any party to whom money is owed at the time of termination to receive that money according to these provisions or the provisions of a Contract; and
(b) the rights or obligations under these Credit Terms which by their nature are intended to survive termination of this agreement.
7. Provision of further information
7.1 The Customer undertakes to comply with any reasonable written requests by the Supplier to provide further information for the purpose of assessing the Customer's creditworthiness, including an updated credit application.
7.2 If the Customer is a corporation (with the exception of a public company listed on a recognised exchange), it must advise the Supplier of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). In the case of a change of directors or shareholders the Supplier may ask for its directors to sign a Deed of Guarantee.
8. Corporations
8.1 If the Customer is a corporation, the Customer warrants that all of its directors have read and understood these Credit Terms, the Deed of Guarantee and the Terms of Sale and acknowledges that any one or more of its directors may be required to enter into a Deed of Guarantee with the Supplier in relation to the Customer's obligations to the Supplier.
9. Partnerships
9.1 If the Customer enters into this agreement in its capacity as a partnership, the Customer warrants that all of the partners have read and understood these Credit Terms, the Deed of Guarantee and the Terms of Sale.
9.2 If the Customer is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Supplier.
10. Trustee capacity
10.1 If the Customer is the trustee of a trust (whether disclosed to the Supplier or not), the Customer warrants to the Supplier that:
(a) the Customer enters into these Credit Terms in both its capacity as trustee and in its personal capacity;
(b) the Customer has the right to be reasonably indemnified out of trust assets;
(c) the Customer has the power under the trust deed to sign these Credit Terms and the application for commercial credit; and
(d) the Customer will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier and having the new or additional trustee sign these Credit Terms.
10.2 The Customer must give the Supplier a copy of the trust deed upon request.
11. Supply of Goods
11.1 The Customer acknowledges and agrees that any supply of Goods by the Supplier to the Customer will be on the Terms of Sale, unless otherwise agreed by the parties in writing.
12. Privacy
12.1 For the purpose of this clause 12, the terms “personal information”, “credit eligibility information”, “credit information”, “commercial credit purpose”, “credit guarantee purpose”, “credit reporting body”, “credit provider”, “credit reporting information”, “credit reporting code” and “sensitive information” carry the same meaning as under the Privacy Act and the term “Information” means personal information, sensitive information, credit eligibility information, credit reporting information and credit information, both severally and collectively.
12.2 The Customer acknowledges and agrees that the Supplier may collect Information about the Customer and/or Guarantor(s) for the Supplier's primary purposes, which include assessing a commercial credit application, reviewing existing commercial credit terms, assessing credit worthiness, collecting overdue payments, assessing commercial credit guarantees (current and prospective), internal management purposes, financing, insurance, marketing, sales and business development purposes and direct marketing.
12.3 The Customer and/or Guarantor(s) consent to the Supplier collecting, using, and disclosing Information for both the primary purposes above and for purposes other than the primary purposes, including for the purpose of direct marketing.
12.4 The Customer acknowledges and agrees that:
(a) the Supplier may collect, and may already have collected, Information from the Customer and/or Guarantor(s), Related Entities, other credit providers, credit reporting bodies and other third parties for the purposes of its functions and activities including, but not limited to, credit, insurance, sales, marketing and administration; and
(b) if the Information was not collected by the Supplier, it may restrict or impede upon the Supplier trading with, extending credit to, continuing to extend credit to or extending further credit to the Customer and/or Guarantor(s) or their related bodies corporate.
12.5 The Customer consents to the Supplier obtaining and making disclosure of Information about the Customer and/or Guarantor(s) from and to a credit reporting body and/or another credit provider for a commercial credit related purpose and/or a commercial credit guarantee purpose and/or another related purpose. The Supplier notifies the Customer that it may use and/or disclose credit eligibility information under section 21G of the Privacy Act.
12.6 The Customer acknowledges and agrees that the Supplier may provide personal information about the Customer and/or Guarantor(s), and that the Supplier intends to disclose default information, to any or all of the following credit reporting bodies (or other credit reporting bodies with which the Supplier may contract from time to time), and consents to such disclosure.
Equifax Australia
Level 15, 100 Arthur St, North Sydney, NSW 2060
Tel: 1300 921 621
Creditor Watch
Level 13, 109 Pitt St, Sydney, NSW 2000
Tel: 1300 501 312
Experian
Level 6, 549 St Kilda Rd, Melbourne, VIC 3004
Tel: 03 9699 0100
NCI
Level 2, 165 Grenfell St, Adelaide, SA 5000
Tel: 1800 882 820
Illion
Level 2, 143 Coronation Dr, Milton, QLD 4064
Tel: 07 3360 0600
12.7 The Customer acknowledges and agrees that the Supplier's statement of notifiable matters, in accordance with s21C of the Privacy Act and items 4.1 and 4.2 of the Credit Reporting Code in respect of disclosure to credit reporting bodies, including what the information may be used for, what the Supplier may disclose and the Customer's and/or Guarantor(s)' right to request limitations to the use of their information, is on the Supplier's website or can be obtained by a request in writing to the Supplier's privacy officer.
12.8 The Customer consents to the Supplier disclosing Information about the Customer and/or Guarantor(s) to the Supplier's Related Entities and their and/or the Supplier's employees, agents and contractors, past, present or prospective credit providers of the Customer and/or Guarantor(s) or their related bodies corporate, including for the purpose of that person considering whether to offer to act as guarantor or offer security for that credit, and/or to overseas recipients and recipients who do not have an Australian link in countries including New Zealand, Singapore, India, and the United States of America.
12.9 By reason of the Customer's consent to the disclosure to overseas recipients above, Australian Privacy Principle 8.1 will not apply to the Supplier's dealing with the Customer's and/or Guarantor(s)' Information.
12.10 The Customer acknowledges that a full copy of the Supplier's privacy policy, which includes credit reporting provisions, can be obtained from the Supplier's website or by making a request in writing to the Supplier's privacy officer. The Supplier's privacy policy contains information about how to access and seek correction of Information, or how to complain about a breach of the Privacy Act, the Australian Privacy Principles, code(s) and how the Supplier will deal with any such complaint.
13. Small Business Customers
13.1 The provisions of this clause 13 will only apply to a Customer which is a Small Business (each an SB Customer). To the extent of any inconsistency between other provisions of these Credit Terms and this clause 13, the provisions of this clause 13 shall prevail in relation to a commercial credit account of an SB Customer.
13.2 The Supplier may not exercise its rights under clause 4.11 in relation to a CSB Customer.
13.3 Clause 5.1(c) of these Credit Terms is amended to read “in the reasonable opinion of the Supplier, there is, or has been, a material adverse change in the creditworthiness of the SB Customer or a Guarantor”.
13.4 Clause 5.1(e) of these Credit Terms is amended to read “there is a change in ownership or control of the SB Customer without prior written consent of the Supplier (consent not to be unreasonably withheld or delayed where the new owner or controller is at least as creditworthy as existing owner or controller).”
13.5 Clause 6.1 is amended so that if the Supplier suspends or withdraws an SB Customer's commercial credit account, the Supplier must provide no less than 5 Business Days' notice in writing that the commercial credit account is being suspended or withdrawn.
13.6 Clause 6.2(a) is amended so that the SB Customer has 14 days within which to cure a payment default after being given written notice.
13.7 Clause 6.2(c) is amended to read as follows: “the SB Customer's account has been suspended under clause 5 for 14 days or more and the issue giving rise to the suspension has not been resolved to the reasonable satisfaction of the Supplier”.
14. Definitions
14.1 A capitalised term used, but not defined, in these Credit Terms will have the meaning given to it in the Terms of Sale.