In these standard terms and conditions of sale:
‘Account customers’ means customers of Bradnam’s who have applied for a credit account which Bradnam’s has accepted. ‘Agreement’ or “contract” means Bradnam’s agreement with you to supply goods and/or services either pursuant to Bradnam’s Commercial Credit Application Agreement including the Guarantee and Indemnity contained therein otherwise;
‘Bradnam’s’ means Bradnam’s Windows and Doors Pty Ltd ABN 78 010 409 819, Bradnam’s Windows & Doors Newcastle Pty Ltd ABN 71 159 727 241 and National Glass Pty Ltd ABN 34 010 908 102 their successors and assigns and any and all of their subsidiaries as defined in Section 9 of the Corporations Act;
‘Business Day’ means any day on which banks in the capital city of the State which governs the law of this Agreement are open;
“Collateral” has the same meaning as per section 10 PPS Act;
‘Corporations Act’ means the Corporations Act 2001;
‘Customer, you, them’ means the person(s), company or business entity, their successors and assigns who is a customer of Bradnam’s for the supply of goods and/or services and includes any Guarantors of the Customer;
‘Delivery’ means the loading of goods upon a transport vehicle for the purpose of delivery to the customer;
‘Goods’ means goods for sale, including property and/or services offered by Bradnam’s to Customers;
‘GST’ means the Goods and Services Tax levied on any supply made under this Agreement under the A New Tax System (Goods and Services Tax) Act 1999 or any similar tax resulting in an increase in the tax payable on the supply of goods by Bradnam’s to the Customer;
‘Guarantor(s)’ means the person(s), company or business entity, their successors and assigns names in the Guarantee and Indemnity;
“PMSI” means Purchase Money Security Interest;
“PPS Act” means Personal Property Securities Act 2009 (Cth);
“PPSR” means Personal Property Security Register;
“Property” has the same meaning as per section 10 of the PPS Act;
“Security Interest” has the same meaning as per section 12 of the PPS Act; and
Words importing the singular shall include the plural and vice versa. Words importing any gender shall include every gender.
2.1 Bradnam’s offers to supply goods and/or services to you only on the following terms which apply to account customers and other customers with the exception of clause 6 which applies to account customers only.
2.2 Please note that no Bradnam’s employee has any authority to accept any terms you may suggest that are different from the following terms.
2.3 If you accept a Bradnam’s quotation to supply goods and/or services both Bradnam’s and you are bound by this contract.
2.4 You acknowledge that you rely on these terms only and that you have not relied on any representations made to you prior to or at the time of entering this contract.
3. Bradnam’s Obligations to you
3.1 Bradnam’s agrees to supply the goods and/or services specified by you.
3.2 Bradnam’s agrees to use its best endeavours to supply the goods and/or services within the time specified by you but Bradnam’s will not be liable in any way if the goods and/or services are not supplied within that time.
3.3 Bradnam’s agrees that any goods delivered become your property when you have paid for them in full in cleared funds.
3.4 Bradnam’s promises that the goods and/or services are fit for the purpose that the goods and/or services are generally used for and any other special purpose you have specified in writing to Bradnam’s;
3.5 Bradnam’s promises that the goods and/or services are of merchantable quality.
3.6 You may ask Bradnam’s to cancel this contract at any time but not any order that you have already placed for goods and/or services. Bradnam’s will consider your request when you agree to pay for all monies due to Bradnam’s under the contract.
4. Your Obligations
4.1 You agree to pay for the goods and/or services and any GST immediately upon receipt of a quotation and acceptance of your order from Bradnam’s or as otherwise specified and agreed with Bradnam’s. If you are an account customer you agree to pay for the goods and/or services and any GST within 30 days from the month in which you receive a statement of account from Bradnam’s, whether or not the goods and/or services have been supplied within the time specified by you. Time is of the essence for the performance of your obligations including payment which means you must pay all tax invoices and statements of account received on time.
4.2 You agree to pay interest on all overdue monies at 2% per month until payment is received in full.
4.3 You agree to accept the goods and/or services supplied, whether or not the goods and/or services have been supplied within the time specified by you.
4.4 You agree that Bradnam’s retain title to any goods until you have paid Bradnam’s with cleared funds, GST inclusive for such goods.
4.5 You agree to store the goods which have not been paid for separately; keep separate records in relation to the proceeds of the sale of any goods which have not been paid for, bank the proceeds of any such sale into a separate account and immediately thereafter remit such funds to Bradnam’s and if any goods are used in the making of any new object or if the goods in any way whatsoever become incorporated into any other product, you will record the value. If the goods so used or incorporated in relation to each unit of finished product then upon sale of any unit of finished product you will immediately remit that amount from the proceeds of sale to Bradnam’s if you have not previously paid in full for the goods.
4.6 You agree to assign (and do so assign) to Bradnam’s any right of action against any third party purchaser arising under any sale of goods that have not been paid for, in circumstances where you have not been paid in full for all such goods delivered or incorporated into any other product.
4.7 You agree that if you have not paid for any goods in cleared funds at the time you agree to do so in addition to all other rights Bradnam’s has against you, you authorise Bradnam’s through its agents to enter the premises where the goods are stored and take possession of them. You agree to hold Bradnam’s harmless against any legal liability to any person arising from it exercising its right to take possession of the unpaid goods.
4.8 If you have breached this contract then you agree to pay all legal or other costs incurred by Bradnam’s in respect of the breach of this contract on an indemnity basis and you further agree to pay any legal or other costs incurred by Bradnam’s on an indemnity basis for the collection of monies which become overdue including the costs of lodging, enforcing and withdrawing any caveat or caveats against real property owned by you or any guarantor in any Land Titles Office in any State or Territory of Australia or New Zealand.
4.9 Upon Bradnam’s request, from time to time, you must provide to Bradnam’s, information in the form and for the period required by Bradnam’s, in relation to your financial position, including a balance sheet, profit and loss statement and cash flow statement and where the customer is a corporation, and information in relation to any guarantors.
5.1 If you want to make any claim for defective goods, incorrect charges, non-delivery of goods or damages for breach of contract you must:
(a) Make the claim in writing and notify Bradnam’s within seven (7) days of the date of supply of the goods and/or services.
(b) Make the claim before you have incorporated any goods delivered into any other goods or products.
You agree that if you do not make the claim as above then you accept that the goods and/or services supplied were of merchantable quality and fit for the purpose for which they were required and correctly charged and delivered. Bradnam’s liability will in any event be limited to exchanging any goods delivered or rendering the services again and in return for payment to Bradnam’s of the cost price for such delivery or for such services rendered.
5.2 Bradnam’s need not accept the return of goods or give credit where the goods are made to your specification.
5.3 Bradnam’s liability for damages for any breach of contract or damage howsoever arising (including, without limitation, negligence) is limited to the price of the goods and/or services that you agreed to pay under this contract, GST inclusive.
5.4 Bradnam’s will not be liable for the costs or damages incurred as a result of the removal of the goods after installation; water damage to floor coverings and walls; or theft where you have installed the goods incorrectly; or installed the goods and failed to give Bradnam’s seven (7) days’ written notice of any required work for rectification of any faults.
5.5 Except as provided above, Bradnam’s will not be liable(including but not limited to liability in negligence) to any person for any loss or damage consequential or otherwise howsoever suffered or incurred by any such person in relation to the Goods and/or services and without limiting the generality thereof in particular any loss or damage consequential or otherwise howsoever suffered or incurred by any such person caused by or resulting directly or indirectly from any failure, breakdown, defect or deficiency of whatsoever nature or kind of or in the goods and/or services.
5.6 Nothing herein affects any statutory rights that you have that cannot be excluded and, if there is an inconsistency between the above terms and your statutory rights which cannot legally be excluded, then those rights will prevail to the extent of the inconsistency. If any clause of this contract is void or otherwise invalid then that clause shall be severed from the contract without effect to the remaining clauses of the contract.
5.7 You agree that you will have no right to deduct or set-off any monies owed by you to Bradnam’s, unless you agree in writing to allow such a deduction or set-off.
6. Account customers
6.1 The terms in this clause apply to account customers in addition to the other terms of this contract.
6.2 You may obtain goods or services from Bradnam’s on credit up to the amount of your credit limit authorised by Bradnam’s upon acceptance by Bradnam’s of your application for credit. Bradnam’s reserves the right to refuse to supply goods and/or services on credit and may (in its discretion) suspend the provision of credit in the event of breach of any term of this Agreement or if you exceed the credit limit.
6.3 You remain liable to pay all amounts due to Bradnam’s regardless of whether you have exceeded your credit limit.
6.4 You must pay your account within Bradnam’s 30 days trading terms otherwise your credit facilities may be suspended or withdrawn without prior notice and upon any subsequent resumption of such facilities these terms and conditions shall apply to such further facilities.
6.5 You hereby charge in Bradnam’s favour all of your estate and interest in any real and personal property that you own either beneficially and/or as trustee of any trust at present and in the future with due payment to Bradnam’s of all monies that may become payable by you by virtue of this contract or otherwise arising from Bradnam’s providing credit to you and you irrevocably appoint Bradnam’s directors, secretaries, employees or solicitors as your duly constituted attorney to execute in your name, and as your act and deed, any real property mortgage, PMSI or consent to any caveat Bradnam’s may choose to lodge against real property that you may own in any Land Titles Office in any State or Territory of Australia even though you may not have defaulted in carrying out your obligations.
6.6 You hereby charge in Bradnam’s favour all monies due and payable to you under any head-contract held by you in respect of which you purchased goods from us and you hereby agree that Bradnam’s will be entitled to all rights, powers and remedies conferred upon sub-contractors under any legislation in any State or Territory in Australia as if all monies due and owing to you were monies due and owing under a sub-contract.
6.7 You (and in the case of a company each of your officers and sureties) give consent to Bradnam’s Windows and Doors:
(a) Disclosing and obtaining personal information to and/or from another credit provider or credit reporting agency including information relating to the commercial creditworthiness and personal creditworthiness of them;
(b) Using any information obtained for the purposes of assessing your credit, collecting payments due under this Agreement and notifying other credit providers; and
(c) Disclosing information where it has a duty to the public to disclose that information, and/or where it is required by law.
The credit reporting agencies to which Bradnam’s is likely to disclose the Customer’s repayment history information are:-
(a) Veda Advantage;
(b) Dunn & Bradstreet; and
(c) Building Industry Credit Bureau.
6.8 You (and in the case of a company each of your officers and sureties) may at any time gain access, upon request, to the information held about you.
6.9 Should you be advised by Bradnam’s in writing that you are entitled to a settlement discount, payment must be made by you to Bradnam’s not later than the last working day of the month following the month a statement of account is issued i.e. June statement invoices are due the last working day of July (whether or not the goods and/or services have been supplied within the time specified by you).
6.10 In practice, a settlement discount should be deducted by you at the time of payment, provided that payment is received by Bradnam’s in accordance with their settlement discount policy (which may be revised by Bradnam’s from time to time). For the avoidance of any doubt, a settlement discount cannot be applied retrospectively and can only be applied in the month that payment is made in accordance with Bradnam’s settlement discount policy.
7. Personal Property Security
7.1 You acknowledge that this Agreement is a Security Agreement for the purposes of the PPS Act that the goods referred to in this contract are commercial property for the purpose of the PPS Act.
7.2 You consent to Bradnam’s registering its security interest on the PPSR;
7.3 You consent to Bradnam’s applying any monies received, firstly, against Bradnam’s costs and disbursements in recovering such monies on a full indemnity basis, secondly against any interest accrued and finally, against any amount due and agree to the debiting of your account with Bradnam’s of the cost of registration of Bradnam’s security interest and all other associated costs with perfection and enforcement of such security interest on an indemnity basis.
7.4 So far as permitted by Section 107 of the PPS Act, you will have no rights under Sections 114, 120 and 113 of the PPS Act including the right to receive any notices.
7.5 You waive your rights to receive a verification statement in respect of any financing statement or financing change statement registered by Bradnam’s.
7.6 You agree to Bradnam’s exercising its rights under Sections 109 and 120 concurrently and to retaining any repossessed equipment immediately so that Bradnam’s rights under Section 123 of the PPS Act shall become effective immediately upon repossession.
7.7 You agree that repossession and retention of the goods under Sections 120-123 will only partially satisfy your debt to Bradnam’s at the date of repossession and the repossession and retention will immediately extinguish any rights and/or interest the Customer has in the goods.
7.8 For the avoidance of any doubt, the parties acknowledge and agree that it is their intention that the agreement between them is one continuing agreement and not separate agreements based on each purchase order. The security interest created by this agreement is in respect of all goods supplied.
8. Service of Process
8.1 You agree that service of legal process may be made by prepaid post to your address as provided to Bradnam’s or such other address as may be notified in writing by you and that service shall be deemed to have been effected 2 business days after the date of posting.
9. Electronic Communication
9.1 By visiting Bradnam’s website or sending e-mails to Bradnam’s, you are communicating with Bradnam’s electronically and you consent to receive communications from Bradnam’s electronically. You also agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing.
9.2 Bradnam’s has made all reasonable efforts to ensure that all information provided on Bradnam’s website is accurate at the time of inclusion but makes no representation or warranties, express or implied, except as imposed by law, regarding the information provided on the website, including any hypertext links or any other items used either directly or indirectly from the website and reserves the right to make changes and corrections at any time without notice.
9.3 Bradnam’s takes no responsibility for and does not endorse, sponsor or recommend the contents, accuracy or performance of any links attached to the website. Bradnam’s accepts no responsibility for any inaccuracies or omissions in the website and any decisions based on information contained in the website are solely your responsibility.
9.4 Bradnam’s accepts no liability for any direct, indirect, special, consequential or other losses or damages of whatsoever kind arising out of access to, or the use of the website or any information contained therein.
Where you are trustee of a trust, you warrant that all materials ordered from Bradnam’s are for the purposes of the trust; that the trustee is entitled to have resort to the trust assets to satisfy any debts owing to it; that the trustee’s right of indemnity against the trust or the trust fund is not excluded and that you will not release that right of indemnity without Bradnam’s prior written consent.
The contract for sale of any goods and/or services supplied is made in the State from which they are supplied and the parties agree to submit all disputes arising between them to the registry of any Court as is competent to hear the matter in the capital city of the State or Territory in which the supply was made by Bradnam’s.
If any provision of this contract is unenforceable in accordance with its terms, other provisions which are self sustaining are, and continue to be enforceable in accordance with their terms.