Credit Account Application and Terms of Trade - Form

TO BE COMPLETED BY APPLICANTS

Please complete all sections and read the Terms and Conditions of Trade.

ALL CUSTOMERS TO COMPLETE

DETAILS OF OWNER (If Sole Trader) PARTNERS (If Partnership) OR DIRECTORS (If Proprietary Company)

TRADE REFERENCES

I certify that the above information is true and correct and that I am authorised to make this application for credit. I authorise the use of my personal information as detailed in the Privacy Act clause. I have read and understand the TERMS AND CONDITIONS OF TRADE  of Civic Disability Services Limited which form part of, and are intended to be read in conjunction with this Credit Account Application and agree to be bound by these conditions. Where the applicant is a company, partnership or trust, no less than two Directors (except if a sole director), partners or trustees (except if a sole trustee) are required to sign this agreement.

Signature of Authorized Representative

Office use only:

Definitions

• “Seller” shall mean Civic Disability Services Limited its successors and assigns or any person acting on behalf of and with the authority of Civic Disability Services Limited.

• “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by the Seller to the Customer.

• “Goods” shall mean Goods supplied by the Seller to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Seller to the Customer.

• “Services” shall mean all services supplied by the Seller to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

• “Price” shall mean the price payable for the Services as agreed between the Seller and the Customer in accordance with clause 3 of this contract.

Acceptance

• Any instructions received by the Seller from the Customer for the supply of Services and/or the Customer’s acceptance of Services supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.

• Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.

• Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of the Seller.

• The Customer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change 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, or business practice).

• The Customer shall be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply with this clause.

Price and Payment

• At the Seller’s sole discretion the Price shall be either:

  • i. as indicated on invoices provided by the Seller to the Customer in respect of Services supplied; or

  • ii. the Seller’s quoted Price (subject to clause 3.2 which shall be binding upon the Seller provided that the Customer shall accept the Seller’s quotation in writing within thirty (30) days).

• The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation.

• At the Seller’s sole discretion a deposit may be required.

• At the Seller’s sole discretion:

  • i. payment shall be due on delivery of the Services; or

  • ii. payment shall be due before delivery of the Services.

• Time for payment for the Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due thirty (30) days following the date of the invoice.

• Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and the Seller.

• GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

Delivery of Services

• Delivery of the Services shall take place when the Customer takes possession of the Services at the Seller’s address. The Customer shall make all arrangements necessary to take delivery of the Services whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Services as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery.

• At the Seller’s sole discretion the costs of Delivery are:

  • i. included in the Price; or

  • ii. in addition to the Price; or

  • iii. for the Customer’s account.

• The Seller may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.

• The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.

• The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Services (or any of them) promptly or at all.

Risk

• If the Seller retains ownership of the Services nonetheless, all risk for the Services passes to the Customer on delivery.

Title

• The Seller and the Customer agree that ownership of the Services shall not pass until:

  • i. the Customer has paid the Seller all amounts owing for the particular Services; and

  • ii. the Customer has met all other obligations due by the Customer to the Seller in respect of all contracts between the Seller and the Customer.

• Receipt by the Seller 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 the Seller’s ownership or rights in respect of the Services shall continue.

• It is further agreed that:

  • i. until such time as ownership of the Services shall pass from the Seller to the Customer the Seller may give notice in writing to the Customer to return the Services or any of them to the Seller. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Services shall cease.

  • ii. if the Customer fails to return the Services to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Services are situated and take possession of the Services.

Customer’s Disclaimer

• The Customer hereby disclaims any right to rescind, or cancel the contract with the Seller or to sue for damages or to claim restitution arising out of any misrepresentation made to the Customer by the Seller and the Customer acknowledges that the Services are bought relying solely upon the Customer’s skill and judgement.

Errors and Omissions

• The Customer shall inspect the Services on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Services within a reasonable time following delivery if the Customer believes the Services are defective in any way. If the Customer shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.

• For defective Services, which the Seller has agreed in writing that the Customer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Services or repairing the Services provided that the Customer has complied with the provisions of clause 8.1. Where the Customer is a consumer as defined in the TPA then the client shall also be entitled to a refund.

The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)

• Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

Default & Consequences of Default

• 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 one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.

• If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.

• Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Services to the Customer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause.

• If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.

• Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:

  • i. any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to meet its payments as they fall due; or

  • ii. the Customer 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

  • iii. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

Cancellation

• The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Customer. On giving such notice the Seller shall repay to the Customer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.

• In the event that the Customer cancels delivery of Services the Customer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.

Privacy Act 1988

• The Customer agrees for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Seller.

• The Customer agrees that the Seller may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:

  • i. to assess an application by Customer; and/or

  • ii. to notify other credit providers of a default by the Customer; and/or

  • iii. to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or

  • iv. to assess the credit worthiness of the Customer.

• The Customer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

• The Customer agrees that personal credit information provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Customer and Seller or required by law from time to time:

  • i. provision of Services; and/or

  • ii. marketing of Services by the Seller, its agents or distributors in relation to the Services; and/or

  • iii. analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Services; and/or

  • iv. processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or

  • v. enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Services.

• The Seller may give information about the Customer to a credit reporting agency for the following purposes:

  • i. to obtain a consumer credit report about the Customer; and/or

  • ii. allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

General

• 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.

• These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.

• The Seller shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of these terms and conditions.

• In the event of any breach of this contract by the Seller the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Services.

• The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Seller.

• The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

• The Seller reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Customer of such change.

• 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 or other event beyond the reasonable control of either party.

• The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.