Terms and Conditions of Supply of Goods and Services for All Commercial Transactions
PACPLUS WHOLESALERS PTY LTD
ACN 088 995 162
These terms and conditions of sale of sale (‘Sale Terms’) comprise the whole of the terms and conditions of sale upon which goods or services (‘Products’) are sold by PacPlus Wholesalers Pty Ltd ACN 088 995 162 (PacPlus) to you (‘the Purchaser’), subject only to such statutory terms and conditions as are not excluded expressly or by implication.
The following conditions supersede all previously issued terms and conditions of PacPlus and operate in all respects subject to the provisions of the Competition and Consumer Act 2010 (Cth) as amended (‘the Act’) and the other legislation imposing non-excludable obligations on PacPlus.
1. Consumers have the benefit of conditions and warranties implied into consumer transactions by the Act. References to the Act include references to equivalent provisions of and circumstances arising under any State or Territory enactment.
2. Subject to clause 3, all express or implied warranties, representations, statements, terms and conditions relating to these Sale Terms that are not contained in these Sale Terms, are excluded to the maximum extent permitted by law.
3. Nothing in these Sale Terms excludes, restricts or modifies any term, condition, warranty, right or remedy implied or imposed by any statute or regulation which cannot lawfully be excluded, restricted or modified, which may include the Act and corresponding Australian state or territory legislation, which contain provisions including implied conditions and warranties which operate to protect the purchasers of goods and services in various circumstances (‘Implied Terms’).
4. If there are any Implied Terms in these Sale Terms and PacPlus can limit the Purchaser’s remedy for a breach of such a term, condition or warranty, then PacPlus liability for breach of the term, condition or warranty is limited to one or more of the following at PacPlus’ option:
(a) the replacement (or the cost of replacement) of the Products;
(b) the supply (or the cost of supply) of products equivalent to the Products;
(c) the repair (or the cost of repair) of the Products; or
(d) refunding a proportionate amount of the price payable for the Products in compensation for non-performance.
5. Subject to PacPlus’ obligations with respect to Implied Terms, to the maximum extent permitted by law, PacPlus’ maximum aggregate liability for all claims under or relating to these Sale Terms, whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on breach or on any other basis, is limited to the price payable for the Products.
6. Subject to PacPlus’ obligations with respect to Implied Terms, and to the maximum extent permitted by law, PacPlus is not liable (under any circumstances) for:
(a) special, indirect, consequential, incidental or punitive damages; or
(b) damages for loss of profits, revenue, goodwill, bargain, anticipated savings or loss, personal injury, death, the costs arising from the loss of use of the Products and the costs of any substitute Products which the Purchaser obtains.
7. In no event will PacPlus be liable for:
(a) any loss or damage which the Purchaser suffers arising from, or caused or contributed to by, PacPlus negligence or the negligence of PacPlus agents or servants; or
(b) special, indirect or consequential loss or damage as a result of a breach by PacPlus of these Sale Terms including, without limitation, loss of profits or revenue, personal injury, death, the costs arising from the loss of use of the Products and the costs of any substitute Products which the Purchaser obtains.
Terms of Payment
8. Terms are thirty (30) days net. Payment must be received for each month’s purchases on or before the expiration of the succeeding month in which delivery is made. If these Sale Terms are breached due to payment not being made by the due date then PacPlus reserves the right to charge interest on all amounts due to PacPlus at the interest rate of 6% per annum compounded monthly and that incurred by PacPlus in the process of collecting the overdue account and where payments are overdue PacPlus may at its option either cancel incomplete orders forthwith or suspend delivery of Products yet to be delivered in the ordinary course of business.
Retention of Title
9. Ownership, title and property in Products shall not pass to the Purchaser until the Purchaser has paid all monies owing to PacPlus under all sales of Products contracts entered into. Until payment in full for all monies outstanding has been received and until such time the Purchaser shall hold the Products as bailee for PacPlus in a fiduciary capacity, and by separate storage or some other means, ensure that the Products are readily identifiable as the property of PacPlus and the onus of identifying Products belonging to PacPlus is on the Purchaser.
10. If payment is not made within seven (7) days of final demand in writing made by us, PacPlus shall, without prejudice to any other remedies and without notice to the Purchaser, be entitled to enter the Purchaser’s premises owned, leased or otherwise occupied by reasonable force with no liability to PacPlus for trespass or any damage caused as a result of entering the premises to retake possession of such Products.
11. The Purchaser shall obtain all risk insurance to cover any Products in his possession which remain the property of PacPlus. Notwithstanding the above, before PacPlus has received full payment for the Products, the Purchaser shall be entitled to offer for sale and sell the Products in the ordinary course of business as principal, not agent, at the best obtainable price and PacPlus shall be legally and beneficially entitled to the proceeds of sale to the extent of and payment due to PacPlus and the Purchaser shall keep the proceeds of any such sale separate from its own money and account to PacPlus for such proceeds.
12. PacPlus shall have the right to trace the proceeds according to the rules of common law; a like right shall apply where the Purchaser uses the Products in any way so as to be entitled to payment from third party.
13. Notwithstanding any change in the Purchaser’s trading structure or any advice by the Purchaser to PacPlus of such change in writing, the Purchaser as set out on the credit application will remain personally liable for all Products requested by the Purchaser or their agents until the Purchaser has received written confirmation from PacPlus that their account has been closed and full payment received and a new account has been operated in the name of the new entity.
Cancellation of Orders
14. Once lodged with PacPlus an order may not be cancelled or delivery in respect thereof delayed without PacPlus’s prior agreement.
15. The date for delivery (if any) is the estimated date for delivery only and PacPlus shall be under no liability for any loss or damage howsoever arising if the Products are not delivered by that date. Where PacPlus is unable to deliver the Products because of matters beyond the control of PacPlus, then the estimated date for delivery shall be extended until the cessation of the effect of such matter or matters.
16. Any recommended price list published by PacPlus is subject to change without notice and does not constitute an offer to sell or supply. PacPlus reserves the right to supply any order or orders in part or full. All accepted orders will be invoiced at prices current at date of supply.
Consignment of Products
17. When Products are consigned to a Purchaser, by carriers or another person and whether by land, sea or air, the Purchaser shall be deemed to be in possession of the Products and the Products to be at the Purchaser’s risk when the Products have been handed over to such carrier or other person who shall be deemed to be the agent of the Purchaser, whether or not PacPlus pays the freight charges.
GST and Taxes
18. Any GST payable on a supply made by PacPlus to the Purchaser will be paid by the Purchaser. In these Sale Terms, “GST” has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999.
19. The consideration payable by the Purchaser has been fixed without regard to the impact of GST and is exclusive of GST.
20. Products returned for credit will be accepted provided prior arrangements have been made i.e. the Purchaser should apply for a Returns Authorisation number before returning the Products.
21. Claims for short delivery or damaged Products can only be recognised when the Returns Authorisation number is sought and notification is received within 48 hours of the Purchaser’s receipt of the Products or 7 days from our dispatch date, whichever is the least.
22. Once a claim has been made and a Returns Authorisation number assigned any arrangements to return Products should be made within 30 days of receipt. PacPlus will not be bound to consider claims beyond 30 days of receipt of Products and the Purchaser acknowledges that this is a reasonable time.
23. Products ordered incorrectly, provided they are returned within 30 days, will be accepted for return with 10% handling surcharge applying. Only unbroken cartons or packs will be accepted.
24. Subject to PacPlus’ obligations under the Act, Products sold as ‘Clearance Stock’ or specially brought in, will not be accepted for return under any circumstance.
25. Subject to If any condition of these Sale Terms or its application to a person or circumstances is unenforceable, the remaining Sale Terms shall not be affected and each other condition of these Sale Terms shall be enforceable.
26. Subject to The Purchaser agrees that PacPlus has the right to make any inquiries from Credit Reporting Agency to ascertain the credit and financial responsibility of the Purchaser from time to time.
Personal property securities Act
27. In this section, all terms that are capitalised and not defined in these Sale Terms take their meaning under the Personal Property Securities Act 2009 (Cth) (PPS Act).
28. These Sale Terms constitute a Security Agreement for the purposes of the PPS Act and create a Security Interest (which is a Purchase Money Security Interest) in the Products currently provided by PacPlus to the Purchaser and all further Products provided by PacPlus to the Purchaser.
29. The Purchaser must do all things necessary to assist PacPlus to implement, maintain and continuously perfect any Security Interest arising under these Sale Terms, including signing any documents or providing any information that PacPlus reasonably requests for the purposes of protecting its interest under the PPS Act.
30. Until title passes from PacPlus to the Purchaser, the Purchaser will not or will not permit any Security Interest to be created in the Products without PacPlus’ consent.
31. If any Products supplied by PacPlus to the Purchaser are Commingled, PacPlus will have a Security Interest in those Products.
32. The Purchaser waives the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to any Security Interest under these Sale Terms.
33. Everything which the Purchaser is required to do under this section is to be done at the Purchaser’s expense and the Purchaser agrees to reimburse PacPlus for the costs, including any expenses incurred by PacPlus in registering or removing a financing statement or financing change statement on the Personal Property Securities Register.
34. The Purchaser must not lodge or permit anything that may constitute a Financing Change Statement or an Amendment Demand in respect of the Products without PacPlus’ consent.
35. The Purchaser must immediately notify PacPlus in writing of any change in the Purchaser’s name or in the description of the Products.
36. To the maximum extent permitted by the PPS Act:
(a) PacPlus does not have to give a notice to the Purchaser of any action it takes in accordance with sections 95 and 121(4) of the PPS Act;
(b) PacPlus does not have to give a notice under section 130 of the PPS Act;
(c) PacPlus does not have to give the details required under section 132(3)(d) of the PPS Act;
(d) PacPlus does not have to give a written statement of account under section 132(4) of the PPS Act;
(e) PacPlus does not have to give a notice required under section 135 of the PPS Act;
(f) no person can redeem a Security Interest in the Products under section 142 of the PPS Act without PacPlus’ consent; and
(g) no person may reinstate the Security Agreement under section 143 of the PPS Act without PacPlus’ consent.
37. For the purposes of section 275(6) of the PPS Act, the Purchaser must keep confidential any information relating to those terms which is in the nature of information which an interested person could access under section 275(1) of the PPS Act.
38. The Purchaser acknowledges and agrees that payments by the Purchaser will be applied by us as follows:
(a) Firstly, in payment of any and all collection costs and legal costs in accordance with these Sale Terms;
(b) Secondly, in payment of any interest incurred in accordance with clause 8; and
(c) Thirdly, in payment of outstanding invoices.
Acceleration and Insolvency
39. Regardless of any other provision of these Sale Terms, if any amount due and payable by the Purchaser under these Sale Terms is not paid on time, all amounts actually or contingently owing under the Sale Terms, whether or not due and payable, become immediately due and payable.
40. If the Purchaser becomes insolvent, the Purchaser remains liable under these Sale Terms for payment of all liabilities incurred under these Sale Terms. The Purchaser remains liable under these Sale Terms even if PacPlus receives a dividend or payment as a result of the Purchaser being insolvent.
Applicability of Sale Terms
41. The Purchaser acknowledges that these Sale Terms are the only terms governing the supply of Products by PacPlus to the Purchaser, unless expressly stated otherwise by PacPlus.
42. These Sale Terms shall apply to account orders for Products placed by the exclusion of all other terms or conditions. If the terms of the Purchaser’s order are inconsistent with these Sale Terms then the taking delivery of PacPlus’ goods or acceptance of PacPlus’ services shall be deemed to be acceptance of the foregoing conditions.
43. No representative employee or agent of PacPlus has any authority to vary these Sale Terms or any part of them.
44. PacPlus reserves the right to alter its Sale Terms from time to time. These Sale Terms may not be varied except in writing signed by PacPlus.
45. The Purchaser agrees that it has read and agreed to these Sale Terms and warrants that all information provided by the Purchaser to PacPlus is true, complete and correct.
46. No right under these Sale Terms will be deemed to be waived except by notice in writing signed by each party and such a waiver by a party will not prejudice its rights in respect of any subsequent breach of these Sale Terms by the other party. Any failure by a party to enforce any clause of the Sale Terms, or any forbearance, delay or indulgence granted by a party to the other party, will not be construed as a waiver of that party’s rights under these Sale Terms.
47. If any provision of these Sale Terms or its application to any person or circumstance is or becomes invalid, illegal or unenforceable, the provision shall so far as possible, be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down, the provision or part of it shall be deemed to be void and severable and the remaining provisions of these Sale Terms shall not in any way be affected or impaired.
We at PacPlus are committed to protecting the privacy of your personal and credit information.
The primary purpose we collect personal information from you is to provide you with the services you have requested from us. The primary purpose we collect your credit information is to provide you with credit. We may also use or disclose your personal information for other purposes such as to keep records of transactions, to provide you with an enhanced customer service, to inform you of new services and events or for delivery purposes.
If you do not provide us with the requested information, we may not be able to provide you with the products or services or provide you with credit. It may be possible for you to provide us with some but not other personal information. You should contact us if this is of concern.
Your personal information might be disclosed to other entities, such as government bodies, or our suppliers and contractors, if it is necessary in our business dealings with you.
We will not disclose your credit or personal information to an entity that does not have an Australian link.