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Unless otherwise agreed in writing with Total Office Products Pty Ltd, these Terms & Conditions apply to the sale of Goods to the Customer by Total Office Products Pty Ltd. These Terms & Conditions are effective as of 1 November 2017.
In the following Terms & Conditions of Sale (Terms):
(a) TON means Total Office Products Pty Ltd as Trustee for Total Office Products Trust (ABN 84 407 858 352) trading as Total Office National;
(b) Contract or Security Agreement means this Contract for the sale of Goods or as otherwise as defined by the PPSA;
(c) Customer means the person, firm or corporation, jointly and severally if there is more than one, acquiring Goods from TON;
(d) Goods means the Goods and services provided by TON to the Customer including any inventory;
(e) PPSA means the Personal Property Securities Act 2009 (Cth).
2.1 These Conditions are binding on the Customer (being the purchaser) with respect to all Goods ordered by it, Goods supplied or agreed to be supplied by TON, the provision of credit by TON in relation to such Goods and each Contract between TON and the Customer.
2.2. The Customer may order Goods by submitting an order. All orders made by the Customer must specify the type and quantity of the Goods required. By placing an order with TON, the order is deemed to be an offer by the Customer to TON to purchase the Goods ordered in accordance with these Terms.
2.3 TON may, for any reason in its absolute discretion, decline to accept an offer made by the Customer to purchase any Goods.
2.4 TON will, prior to or upon supplying the Goods to the Customer, provide the Customer with an invoice in respect of the Goods supplied.
2.5 A quotation does not constitute an offer to sell Goods to the Customer. Any quotation provided by TON to the Customer for the proposed supply of Goods is:
(a) valid for 30 days;
(b) an invitation to treat only; and
(c) only valid if in writing.
2.6 No Contract will exist between TON and the Customer until a Customer’s order for Goods ("Order") has been accepted by TON (such acceptance may be made and communicated by TON in writing or by overt act of acceptance).
2.7 TON may accept or refuse any Order in its absolute discretion and may make its acceptance of an Order conditional upon receiving a satisfactory credit assessment of the Customer.
2.8 If there is any variation to any of the information supplied by the Customer to TON (including as to the structure or nature of the Customer’s business) the Customer must notify TON in writing as soon as practicable.
2.9 Any terms and conditions specified by the Customer are expressly rejected and the Customer acknowledges that these Terms will govern all Contracts between the parties.
2.10 TON may vary these Terms from time to time. Any orders placed after the notice date will be deemed an acceptance of such varied Terms.
3. PRICING & PAYMENT
3.1 The price for Goods under a Contract is the price specified in the invoice.
3.2 TON may change the price for Goods at any time without prior notice.
3.3 The prices specified for Goods may at TON’s option be altered to reflect additional charges in effect at the time of delivery.
3.4 Any variations to the price as a consequence of currency fluctuations, GST, taxes, customs duty or other imposts, will be to the Customer’s account.
3.5 TON may vary the purchase price for the Goods if:
(a) the Customer requests any variation to the Contract; or
(b) there are any changes in the costs incurred by TON in relation to the Goods.
3.6 TON will be entitled to set off against any money owing to the Customer by amounts owed to TON.
3.7 In the event and to the extent of any inconsistency between the Terms issued by TON and terms provided by a customer, these Terms will prevail.
4. ACCOUNT TERMS
4.1 The Customer acknowledges that time for payment to TON is of the essence.
4.2 The Customer agrees to pay for all Goods delivered in any calendar month on or before the last trading day in the following month.
4.3 Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
4.4 Credit extended to the Customer for all Goods sold will be made in accordance with the credit terms as agreed by TON at the time the Customer’s account is established or as subsequently altered by TON.
4.5 TON may withdraw the Customer’s credit facilities at any time or vary the Customer’s credit limit, without notice to the Customer.
4.6 In the event of TON instructing its solicitors to collect an overdue amount, all legal fees, collection charges and tracing agents fees as between solicitor and client will be borne by the Customer and all payments made will first be allocated towards such fees and charges thereafter to interest and finally to capital.
4.7 TON may allow the Customer to purchase and continue to purchase Goods as long as the total of the Customer’s account does not exceed its pre-approved account limit.
4.8 The Customer must provide TON with satisfactory written trade references and/or a satisfactory trade or status report from a credit rating agency acceptable to TON.
4.9 TON may require additional references/reports from time to time and additional information if the Customer applies to increase the Customer’s account limit.
4.10 The Customer acknowledges that TON may revoke any credit granted to the Customer at any time.
5.1 If the Customer defaults in payment by the due date of any amount payable to TON, then all money which would become payable by the Customer to TON at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and TON may, without prejudice to any of its other accrued or contingent rights:
(a) charge the Customer interest at the annual rate of 3% above the Reserve Bank of Australia’s Cash Rate, calculating daily and compounded weekly from the due date until the date of payment in full.
(b) charge the Customer for, and the Customer must indemnify TON from, all costs and expenses (including without limitation all legal costs and expenses, collection costs, dishonour fees and stamp duty) incurred by it resulting from the default or in taking action to enforce compliance with the Contract;
(c) withhold for such period as TON thinks fit, any further deliveries of Goods to the Customer; and
(d) by written notice to the Customer, terminate any uncompleted Contract with the Customer.
5.2 This clause may also be relied upon, at TON's option, where the Customer becomes bankrupt or insolvent or enters into any scheme of arrangement or has a liquidator, administrator or similar functionary appointed in respect of its assets.
6.1 Any times quoted for delivery are estimates only and TON will not be liable for any loss or damage suffered by the Customer or any third party for failure to deliver or for delay in delivery of Goods. The Customer will not be relieved of any obligation to accept or pay for Goods by reason of any delay in delivery.
6.2 TON will deliver the Goods “Free Into Store” unless otherwise stated by TON.
6.3 Any date for supply or delivery of Goods by TON specified in a Contract, invoice or written or oral representations is an estimate only and is not a contractual commitment.
6.4 A signed receipt will be conclusive evidence of the Customer’s acceptance of the Goods delivered.
6.5 TON reserves the right to deliver Goods by installments and TON may invoice the Customer for the Goods provided.
6.6 The Customer indemnifies TON against any loss or damage suffered by TON, its sub-contractors or employees as a result of delivery, except where excluded by law.
6.7 Free delivery for all orders over $100 inc gst. Some exception may apply - Eg Furniture & other bulky items.
8. PROPERTY AND RISK
8.1 The Goods will be at the sole risk of the Customer as soon as they are delivered or deemed to be delivered.
8.2 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties, arising out of the use or possession of the Goods sold by TON, unless recoverable from TON on the failure of any statutory guarantee under the Australian Consumer Law (ACL).
8.3 Until TON receives full payment in cleared funds for all Goods supplied by it to the Customer, as well as all other amounts owing to TON by the Customer:
(a) Property in and title to the Goods remain vested in TON and will not pass to the Customer;
(b) The Customer holds the Goods as fiduciary bailee for TON;
(c) the Customer must store the Goods separately from its own Goods and retain TON's labelling and packaging;
(d) the Customer must hold the proceeds of sale of the Goods on trust for TON, however failure to do so will not affect the Customer's obligation to deal with the proceeds as trustee;
(e) TON may, without notice, enter any premises where it suspects the Goods are and remove them, and for this purpose the Customer irrevocably licenses TON to enter such premises and also indemnifies TON from and against all costs, claims, demands or actions by any party arising from such action.
9. PERSONAL PROPERTY SECURITIES ACT
9.1 The Customer acknowledges and agrees that the following provisions will apply to these Terms as the accepted and adopted Security Agreement between TON and the Customer. for the purposes of the PPSA.
9.2 To secure payment of the secured money and performance of the Customer's obligations to TON, the Customer and Guarantors charge all of their legal and equitable interest (including as beneficial owner, both present and future) of whatsoever nature held in any and all real property in favour of TON.
9.3 The Customer acknowledges, agrees and grants to TON, a security interest in:
(a) all Goods and any proceeds previously supplied by TON to the Customer;
(b) all Goods and any proceeds that will be supplied in the future by TON to the Customer; and
(b) this security interest secures all moneys owing by the Customer to TON under these Terms or otherwise.
9.4 The Customer acknowledges and agrees the security interest is a continuing and subsisting interest in the Goods with priority over any registered or unregistered general (or other) security interest and any unsecured creditor.
9.5 The Customer acknowledges that the security interest over Goods or their proceeds arising under these Terms as and where applicable will be a purchase money security interest (PMSI) and deemed to be inventory to the extent that it secures payment of amounts owing in relation to the Goods.
9.6 The Customer will do everything reasonably required of it by TON to enable TON to register its security interests with the priority TON requires and to maintain those registrations including:
(a) signing any documents and/or providing any information which TON may reasonably require to register a financing statement or a financing change statement in relation to a security interest; or
(b) to correct a defect in a financing statement.
9.7 The security interests arising under this clause 10 will be perfected by TON prior to the Customer obtaining possession on delivery of the Goods and the parties confirm they have not agreed that any security interest arising under this clause 9 attaches at any later time.
9.8 TON does not need to give the Customer any notice under the PPSA (including notice of the financing statement or verification statement) unless required by the PPSA.
8.9 Any time the Customer makes a payment to TON, irrespective of whether the payment is made under or in connection with this Agreement, TON may apply that payment:
(a) first to satisfy and obligation that is not secured;
(b) second, to satisfy an obligation that is secured, but not by a PMSI; and
(c) third, to satisfy an obligation that is secured by a PMSI for that obligation and using proceeds from the sale of the collateral subject to that PMSI; and
(d) fourth, to satisfy an obligation that is secured by a PMSI using funds or proceeds from any source; or
(e) despite the foregoing, any manner TON as the secured party sees fit.
9.10 For the avoidance of doubt and without prejudice to TON's rights under the PPSA, the Customer:
(a) may process the Goods supplied by TON to the Customer and accession or commingle them with other property in which case TON will have a security interest in any processed, accession and commingled Goods;
(b) may sell the Goods to its customers and if it does so, then TON will have a security interest in the proceeds of sale; and
(c) will, where and when applicable and instructed by TON, implement, maintain and comply in all material respects with, procedures for the perfection of security interests, including taking all steps under the PPSA to perfect continuously any such security interest.
9.11 If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interests created under these Terms, the Customer agrees that sections 95, 120, 121(4), 125, 128, 129, 130, 132, 134, 135, 142, 143 and 157 of the PPSA will not apply to the enforcement of those security interests.
9.12 The Customer agrees not to disclose to an 'Interested person' (as defined in section 275(9) of the PPSA) or any other person, any Information of the kind described in section 275(1) of the PPSA including these Terms as the security agreement between the Customer and TON.
9.13 The Customer will notify TON immediately in writing if the Customer changes its name / address for service, contact details or if there are any changes required under the PPSA in respect of these Terms.
9.14 The Customer agrees to keep and maintain all Goods free of any charge, lien, or security interest except as created under these Terms and not otherwise to deal with Goods in a way that will, or may, prejudice the rights of TON under these Terms or the PPSA.
9.15 The Customer irrevocably grants to TON the right to enter any premises or property of the Customer without notice, and without being in any way liable to the Customer or any other person, if TON has cause to exercise any of its rights under the PPSA, and in particular under section 123, and the Customer agrees to indemnify TON against any such liability whatsoever.
9.16 The Customer’s right to possession of Goods still owned by TON under these Terms will cease if:
(a) the Customer being an individual, commits an act of bankruptcy, or,
(b) the Customer being a TON, circumstances arise where a receiver, manager, administrator or controller becomes entitled to take possession of any of the Customer’s assets, any proceedings are instituted for winding up, or the Customer enter into a Deed of TON Arrangement; or
(c) the Customer ceases or threatens to cease conducting business in the normal manner or apply for deregistration or receive a deregistration notice; or
(d) any cheque the Customer provides to TON is dishonoured for payment; or
(e) the Customer fails to comply with any demand for payment issued by TON; or
(f) he Customer is in breach any of these Terms or is in default of any other agreement with TON.
9.17 The Customer agrees that TON is entitled to enter any premises where the Goods supplied by TON are still unpaid for, repossess and sell such Goods. The Customer agrees to indemnify and keep TON indemnified in respect of any claims, actions and costs that may arise against TON in relation to the removal, repossession and sale of the Goods pursuant to these Terms including any claims brought by third parties.
9.18 The Customer agrees that repossession and retention of the Goods pursuant to the PPSA will only satisfy so much of the monies which may become payable to TON by the Customer, as is equivalent to TON’s estimation of the market value of the Goods as it is at the date of repossession and the repossession and retention will immediately extinguish any rights for interest the Customer has in relation to the Goods.
9.19 Until any obligations owed to TON by the Customer are discharged in full, the Customer must not give TON a written demand or allow any other person to give TON a written demand requiring TON to register a financing change statement under the PPSA or enter into or allow any other person to enter into the PPSR, a financing change statement.
10. RETURN OF GOODS
10.1 TON will not be liable for any shortages, damage or non-compliance with the specifications of the Contract.
(a) Where a return of Goods may be accepted by TON, TON may, at its option, repair or replace the Goods.
(b) Return of Goods may incur a 20% restocking fee. (c) Where return is facilitated by pick up of Goods from Customer, a pick up fee may apply.
10.2 The original invoice number and authorised credit paperwork must accompany all Goods returned to TON.
10.3 Unless prohibited by law, TON will not accept Goods for return that:
(a) have been specifically produced to fulfil any Contract;
(b) have been altered in any way;
(c) are not in their original condition and packaging; or
(d) have not been used, stored, handled or installed in accordance with TON's instructions.
11. CLAIMS UPON SUPPLIER
11.1 Except as specifically set out in these Terms, or as contained in any express warranty provided in relation to the Goods, the Contract between TON and the Customer does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or any contractual remedy for their failure.
11.2 If the Customer is a consumer as defined in the ACL, nothing in these Terms restricts, limits or modifies the Customer's rights under the ACL.
11.3 If the Customer on-supplies the Goods to a person who is a consumer:
(a) if the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in the ACL is the absolute limit of TON's liability to the Customer;
(b) otherwise, payment of any amount required under the ACL is the absolute limit of TON's liability to the Customer;
howsoever arising under or in connection with the sale, use of, storage or any other dealings with the Goods by the Customer or any third party.
11.4 If clause 13.2 or 13.3 do not apply, then other than as stated in the Terms or any written warranty statement, TON is not liable to the Customer in any way arising under or in connection with the sale, use of, storage or any other dealings with the Goods by the Customer or any third party.
11.5 TON is not liable to the Customer or any third party in respect of any indirect or consequential loss or damage suffered or incurred by the Customer or any third party except to the extent of any liability imposed by the ACL.
11.6 These Terms do not exclude or limit the application of any provision of law which cannot be so excluded or limited.
12.1 The Customer agrees that it does not rely on the skill or judgement of TON in relation to the Goods or their use or application.
12.2 The Customer acknowledges that it has not made known either expressly or by implication to TON any purpose for which it requires the Goods and it has the sole responsibility of satisfying itself that the Goods are suitable for the Customer's use.
13.1 The law of Victoria from time to time governs these Terms.
13.2 TON's failure to enforce any of these Terms will not be construed as a waiver of any of TON's rights
13.3 If any of these Terms are unenforceable, it will be read down to be enforceable or, if it cannot be read down, the term will be severed from these Terms without affecting the enforceability of the remaining Terms.
13.4 A notice must be in writing and handed personally or sent by fax, email or prepaid mail to the addressee. Notices sent by mail are deemed to be received 3 days after posting. Notices sent by fax or email are deemed received on confirmation of transmission.
13.5 These Terms override the Customer’s Terms. To the extent of any discrepancy between these Terms and any third party (including the Customer’s own) Terms, these Terms prevail.
13.6 These Terms constitute the entire Agreement (including Security Agreement) between the parties and no amendment or variation will be of any force and effect unless in writing and signed by both TON and the Customer.
13.7 The Signatory/ies binds himself/herself/themselves jointly and severally as surety and co-principal debtor/s in with the Customer in favour of TON, its order or assigns, for the payment of any amount which is now due or owing by the Customer to TON.
13.8 The Customer and guarantors have requested that TON supply Goods to the Customer and TON has agreed to do so in consideration of the guarantee and indemnity provided by TON.
13.9 The guarantors jointly and severally, unconditionally and irrevocably guarantee to TON the due and punctual payment by the Customer of the Secured Money and the performance of all other obligations of the Customer to TON under these Conditions.
13.10 The Guarantors jointly and severally, unconditionally and irrevocably indemnify TON against, and must pay TON on demand the amount of, all liability, loss or damage arising directly or indirectly from, and any costs, charges or expenses incurred in connection with, a failure by the Customer to pay the Secured Money when due, or any other breach of an obligation owed by the Customer to TON under these Conditions. It is not necessary for TON to incur expenses or make payment before enforcing this right of indemnity.
13.11 The guarantee and indemnity are continuing and is not discharged by any one payment.
13.12 No relaxation or indulgence granted by TON to the Customer will be deemed as a waiver of any rights of TON in these Terms and such relaxation or indulgence will not be deemed a novation of any of these Terms.
13.13 TON will not be responsible for any loss or damage howsoever caused to the property or person of the Customer or any third party as a result of any defect in the Goods whether patent or latent, and the Customer indemnifies TON against any claims made against it by any third party arising out of any such defects.
13.14 Where a director/partner or proprietor of a Customer uses or authorises the use of his or her signature in whatever form, including approving an authorised person including any employee to apply his or her signature to the TON Credit Application or any other agreement, or leaving an authorised person with his or her email address and password in order to provide authorisation to TON, the director/partner or proprietor acknowledges and agrees that he/she:
(a) has full knowledge of the Terms and all material circumstances related to or as stated in the Credit Application or any other agreement between the parties;
(b) has provided the requisite authority in whatever form for the use of his or her signature for the express purposes of agreement between the parties;
(c) acknowledges that TON has relied upon that signature as having been duly signed with full and complete authority (express, implied or ostensible) by the director/partner or proprietor; and
(d) understands the nature and effect of the Credit Application, Terms and any other agreement between the parties, and has had the opportunity of obtaining independent legal advice.
13.15 The rights and obligations of TON and the Customer under these Conditions will be binding on, and will be of benefit to, each of the parties successors, permitted assigns, heirs, executors and administrators.
13.16 This clause applies if the Customer is a Trustee and whether or not TON has notice of the Trust.
13.17 Where the Customer comprises 2 or more persons and any of those persons is a Trustee this clause applies to such Trustee.
13.18 The Customer agrees that even though it enters into these Conditions as Trustee of the Trust, the Customer shall also be liable personally for the performance and observance of every covenant to be observed and performed by the Customer expressed or implied in these Conditions.
13.19 The Customer warrants that it has complete, valid and unfettered power to enter into these Conditions pursuant to the provisions of the Trust and warrants that the Customer's entry into these Conditions is in the due administration of the Trust.
13.20 The Customer covenants it has an unrestricted and unlimited right of indemnity against the property of the Trust.
13.21 The Customer shall not, without TON's prior written consent:
(a) resign or be removed as Trustee of the Trust or appoint or allow the appointment of a new or additional Trustee of the Trust;
(b) amend or revoke any of the terms of the Trust;
(c) vest or distribute the property of the Trust or advance or distribute any capital of the Trust to a beneficiary or resettle any of the property of the Trust;
(d) permit a beneficiary to have the use, occupation, employment or possession of the property of the Trust;
(e) do or permit or omit to do an act or thing in breach of the Trust or which would permit the Trustee to be removed as Trustee of the Trust;
(f) exercise or permit or allow to be exercised a power to change the vesting date of the Trust or provide for an early determination of the Trust;
(g) lend any money, give any guarantee or incur any debt other than in the ordinary course of business of the Trust; or
(h) pay any of the income of the Trust to any beneficiary of the Trust if such payment will prejudice or affect the Customer's ability to pay all moneys due to TON.
TON respects the privacy of its Customers and is committed to the protection of personal information in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs).
TON may collect personal information to assist in providing the Customer with services as well as information on either Goods offered by TON to the Customer.
TON collects personal information from Customers in a number of ways including:
(a) directly, such as when a Customer applies for credit, places an order, becomes involved in any TON activities, entering personal details on TON’s website, including but not limited to, during registration or application for Credit), when a Customer provides information by phone, or in documents such as a Credit Application form or Deed of Guarantee and Indemnity etc;
(b) from affiliated companies;
(c) from the Customer’s representative;
(d) from publicly available sources of information;
(e) from credit-reporting and fraud-checking agencies and credit providers for credit related purposes such as credit worthiness, credit rating, credit provision and financing;
(f) from TON’s own records of the Customer dealings; or
(g) when legally required to do so.
In order to obtain a credit report to enable TON to provide the Goods, the Customer, agrees that TON’s will collect certain information and provide it to a credit reporting agency who may in turn create and maintain a credit information file about the Customer. This information is limited to:
(a) identity particulars such as name, address (and the previous two addresses), date of birth, name of employer, and drivers licence number;
(a) Application for Credit- including the amount;
(b) loan repayments which are overdue by more than 60 days, and for which debt collection action has started;
(c) advise that loan repayments are no longer overdue in respect of any default that has been listed;
(d) information that, in the opinion of TON, the Customer may have committed a serious credit infringement (that is acted fraudulently or shown an intention not to comply with your credit obligations); and
(e) dishonoured cheques - cheques drawn by you for $100 or more which have been dishonoured more than once.
The Customer acknowledges that this requirement applies for as long as an account is held with TON. This information may be given before, during or after the provision of credit to the Customer.
Customer’s details including previous orders will be added to TON’s databases, and will be used by TON:
(a) to identify the Customer;
(b) in providing services including but not limited to the processing of a Credit Application, Deed of Guarantee and Indemnity, and the administration and management of any Contracts or Agreements between TON and the Customer;
(c) to provide the Customer with information on Goods and services offered by TON;
(d) in undertaking risk assessment and management;
(e) for the purposes of the PPSA; and
(f) in gathering data and disclosing data to third parties such as:
i. insurance brokers and insurers;
ii. credit reporting agencies;
iii. financial institutions including TON’s bankers;
iv. service providers; and
v. industry groups,
all of whom have a legitimate reason to receive such information so that TON can provide its Goods to the Customer.
If the Customer provides TON with personally identifiable information, the Customer may receive from time to time, phone calls, emails or direct marketing containing promotional material. The Customer may receive promotional material, following submission of information to TON. The Customer agrees to receiving e-mails and other such communication from TON including information or news about TON Goods. If the Customer does not want to receive such communication, please contact TON.
The Customer agrees and acknowledges that TON may employ other companies or individuals to provide certain services such as analysing customer lists, providing marketing assistance or consulting services. These third parties may have access to information needed to perform their function but cannot use that information for other purposes. TON does not provide any personal information provided by the Customer to any third parties other than to our affiliated companies or where required by law or as set out in this Privacy Statement. TON will not sell, trade or rent a Customer’s personal information to others.
TON co-operates with law enforcement agencies as required by law under the Privacy legislation.
All reasonable steps are taken to correct the information TON holds where that information is not accurate, up-to-date and complete. Further, all reasonable steps are taken to ensure that all information is treated confidentially, kept secure and protected against unauthorised use and is maintained only for the purpose for which it is intended.
The Customer has the right to access its personal information. For further information or to correct personal information held by TON please contact: Privacy Officer, Total Office National Products Pty Ltd, 341-345 Sydney Road, Coburg, VIC 3058, Tel: (03) 9384 7777.
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