1. DEFINITIONS

KING TONY AUSTRALIA is distributed by Nogard Australia (ABN: 94628650546)

Contract means the contract for supply of Goods including any credit application, Purchase Contract and these terms and conditions.

Customer means the entity set out in the credit application form or the Purchase Contract or their agents and includes a bailee or consignee.

Default has the meaning set out in clause 6.

Goods mean all goods and equipment that KING TONY AUSTRALIA supplies to the Customer on a sale, bailment, consignment or any other basis.

Guarantor means the guarantor set out in the credit application or Contract.

Invoice Due Date means the latest date for which payment of an invoice can be made by a Customer, being 30 days from the end of the month the invoice is issued.

Purchase Contract means a purchase order for Goods entered into by the parties setting out the details of a purchase transaction.

Purchase Price means the aggregate price for the Goods set out in the Purchase Contract.

The word include is construed without limitation.

 

2. DELIVERY AND PAYMENT

2.1 KING TONY AUSTRALIA will not be liable for any delay or non delivery of any Goods ordered.

2.2 The Customer may be liable for freight costs for Goods.

2.3 The Customer will pay to KING TONY AUSTRALIA all of the Purchase Price, following delivery of the Goods, by the Invoice Due Date.

2.4 If KING TONY AUSTRALIA notifies the Customer in writing that it will provide a credit facility then the Customer must pay KING TONY AUSTRALIA for each Purchase Contract by the Invoice Due Date.

2.5 KING TONY AUSTRALIA may:

a) withdraw the facility at any time without notice; or

b) from time to time or at any time increase or decrease the limit of the facility provided without notice to the Customer.

2.6 If the Customer fails to pay in accordance with these terms then all outstanding amounts become immediately payable and KING TONY AUSTRALIA may:

a) immediately suspend all further credit;

b) Charge interest on all outstanding amounts at fifteen percent (15%) per annum calculated daily.

2.7 KING TONY AUSTRALIA may vary the interest rate charged on outstanding amounts by 1 week’s notice to the Customer.

2.8 Payment by cheque will be deemed to have occurred when the cheque has been honoured. Payment by credit card may incur a surcharge.

2.9 Any expenses, costs (including full legal and collection costs) or duties incurred by KING TONY AUSTRALIA in relation to the supply of Goods to the Customer in accordance with these terms and conditions or the enforcement of any rights contained in this Contract will be added to the amount outstanding and paid by the Customer.

2.10 KING TONY AUSTRALIA may apply any amounts received from a Customer to particular amounts outstanding at its sole discretion.

2.11 In the case of dispute regarding payment the Customer must pay all undisputed amounts without delay.

2.12 The Customer agrees that the statement provided by an authorised representative of KING TONY AUSTRALIA shall be conclusive evidence as to the amount owing to KING TONY AUSTRALIA by the Customer.

2.13 KING TONY AUSTRALIA reserves the right to change the Purchase Price at any time prior to acceptance of a Purchase Contract.

 

3. RETURNS

3.1 KING TONY AUSTRALIA will credit the Customer for, or replace, Goods returned on KING TONY AUSTRALIA’s prior approval if:

a) the Goods are returned in their original condition and packaging, and in full package quantities within 14 days of dispatch;

b) A copy of the corresponding tax invoice or delivery docket supplied with the Goods;

c) the Customer bears all freight charges incurred in returning the Goods (unless agreed otherwise).

3.2 Any credit granted by KING TONY AUSTRALIA to the Customer will expire twelve months after the date of the grant.

3.3 KING TONY AUSTRALIA Supply credit notes shall not be redeemable for cash.

 

4. TITLE, RISK AND INSURANCE

4.1 KING TONY AUSTRALIA retains ownership of the Goods until the full Purchase Price has been received by KING TONY AUSTRALIA in cleared funds.

4.2 All risk in the Goods and the responsibility to insure the Goods will pass from KING TONY AUSTRALIA to the Customer when the Goods leave KING TONY AUSTRALIA’s possession for delivery to the Customer.

4.3 The Customer must effect, maintain and provide evidence to KING TONY AUSTRALIA of:

a) sufficient insurance cover for loss or Damage to any Goods; and

b) where KING TONY AUSTRALIA has supplied Goods on hire or consignment, third party insurance which covers the public liability risk of KING TONY AUSTRALIA to a minimum amount of $20 million.

 

5. CONSIGNMENT AND BAILMENT

5.1 A consignment Customer must comply with the provisions of this clause in addition to all other terms and conditions.

5.2 KING TONY AUSTRALIA may by written agreement choose to supply Goods to Customer’s on consignment. KING TONY AUSTRALIA will use reasonable endeavours to supply all Goods ordered under a consignment agreement.

5.3 KING TONY AUSTRALIA may charge the Customer freight and shipping charges for Goods supplied on consignment, payable by the Invoice Due Date. .

5.4 As soon as practicable after the end of each calendar month KING TONY AUSTRALIA shall render a statement  to the Customer showing sales during the preceding month the amount of which is payable under clause 2.4.

5.5 KING TONY AUSTRALIA bears no liability whatsoever for the nature or operation of a consignment Customer’s business or employees.

5.6 A consignment Customer is solely responsible for all Goods supplied, mobilisation and demobilisation of Goods, damage to the Goods and all associated costs.

5.7 If KING TONY AUSTRALIA supplies Goods including containers or other items under a bailment type arrangement, the title to any such items will remain with KING TONY AUSTRALIA and clause 6 will apply. The Customer will not charge or allow any other party to use the bailed Goods.

 

6. DEFAULT AND TERMINATION

6.1 KING TONY AUSTRALIA may immediately terminate this Contract and treat as discharged all or any obligation arising from any agreement if the Customer:

a) has breached any of its obligations under this Contract and the breach remains unremedied for seven (7) days after being notified of the breach (Default); or

b) being a person, dies, commits an act of bankruptcy; or

c) being a company, takes or shall have taken against it any action for its winding up placement under management, administration or receivership; or

d) being a company, has a change in effective control not approved in writing by KING TONY AUSTRALIA.

6.2 Following termination KING TONY AUSTRALIA may:

a) retain any security given or monies paid by the Customer or available through the enforcement of any guarantee, security or bond and apply this in reduction of any sum which may be lawfully recovered by the Customer; and

b) enter with all lawful force upon the Customer’s premises or elsewhere to take possession of and remove the Goods.

6.3 If this Contract is validly terminated by KING TONY AUSTRALIA, the Customer must immediately return the Goods that remain unpaid for.

6.4 The Customer will indemnify and hold KING TONY AUSTRALIA harmless against all claims, costs loss or damage in connection with the Contract including for indirect or consequential damages.

 

7. SECURITY

7.1 If the Purchase Price is not paid in full on delivery then the Customer grants KING TONY AUSTRALIA a security interest and KING TONY AUSTRALIA may register a purchase money security interest over the Goods in accordance with the Personal Property Securities Act 2009 (PPSA) to secure all amounts owed to it.

7.2 The Customer will provide all information and do all things necessary to facilitate such registration. If any of the details of the Customer supplied to KING TONY AUSTRALIA change, the Customer will immediately notify KING TONY AUSTRALIA of these changes.

7.3 The Customer waives its rights to receive notices under clause 157 of the PPSA and confirms that sections 125, 130, 132(3)(d), 132(4), 135 and 143 of the PPSA are excluded.

7.4 If the Customer Defaults KING TONY AUSTRALIA may enforce its security interest and use all lawful means and enter any property without notice to recover the Goods.

7.5 Any contract or arrangement between the Customer and a financier to finance the acquisition of Goods from KING TONY AUSTRALIA shall not:

a) alter or affect the nature of the Contract as one of sale and purchase;

b) create any liability between KING TONY AUSTRALIA and the financier in relation to the Goods; or

c) affect, discharge or in any way limit or subordinate KING TONY AUSTRALIA’s security interest in or title to any unpaid Goods.

 

8. TRUST CUSTOMERS

8.1 Where the Customer is a Trust it must produce a stamped copy of the trust deed (with all amendments) if requested by KING TONY AUSTRALIA.

8.2 The Customer confirms that the trustees shall be liable for any amounts due to KING TONY AUSTRALIA and that the assets of the trust shall be available to meet payment.

 

9. GUARANTEE

9.1 The Guarantor (where relevant) personally guarantees payment of all amounts including interest and costs owing by the Customer to KING TONY AUSTRALIA from time to time and acknowledges that no indulgence, granting of time, waiver of forbearance to sue, winding-up or bankruptcy whereby the Guarantor would be released as a surety in any way, releases the Guarantor from liability under these terms and conditions.

9.2 The Guarantor must immediately pay such outstanding amounts to KING TONY AUSTRALIA upon demand regardless of whether Default has occurred.

 

10. GENERAL

10.1 The Customer signatory warrants that it has full power and authority to bind the Customer to the obligations under the Contract.

10.2 All notices required by this Contract may be given by direct communication, either by telephone, electronically, fax or post to the addresses and numbers included in this Contract. If sent by post, a Notice will be considered to have been received, unless the contrary is shown, at the time when the Notice would have been delivered in the ordinary course of the post.

10.3 Each clause in these Terms is severable and if any clause is held to be illegal, unenforceable, or in breach of any provision of Australian law, then that clause alone will be severed to the extent of the breach and all other clauses will remain effective.

10.4 KING TONY AUSTRALIA shall not be deemed to have waived any of the Customer’s obligations under these terms and conditions or agreed to any variation of them unless it has done so expressly in writing.

10.5 In case of dispute the parties shall use their best endeavours to negotiate an agreement and will enter formal mediation prior to bringing any Court proceedings. Any Customer claim is limited to the value of the Goods.

10.6 These Terms will be interpreted in accordance with and governed by the laws of Western Australia and the Western Australian courts will have non-exclusive jurisdiction in respect of all matters between KING TONY AUSTRALIA and Customer.

10.7 KING TONY AUSTRALIA will comply with the National Privacy Principles and the Privacy Act 1988. The Customer consents to KING TONY AUSTRALIA, at its discretion, obtaining, using and disclosing Customer personal information for the purpose of:

a) checking the Customer’s credit history; or

b) checking the Customer’s continued credit worthiness and history; or

c) using a third party to pursue or collect any amount outstanding.

10.8 In the case of inconsistency between these terms and conditions and any subsequent agreement for the supply of Goods by KING TONY AUSTRALIA including any Purchase Contract these terms and conditions shall take precedence unless expressly excluded.