Conditions of Sale
(Invoice Terms & Conditions)
In these Conditions:
Accession means Goods which are installed in or affixed to other goods.
Buyer means the person, persons, company or business described or indicated as the intended recipient of an Invoice.
Conditions means these Conditions of Sale including without limitation any supplementary terms and conditions contained in an Invoice.
Credit Application means an application made by the Buyer that sets out the terms and conditions to which the Seller has agreed to provide credit to the Buyer.
Due Date means the due date for payment stated in the relevant Invoice, or if a due date is not stated 7 days from the date of the Invoice.
Equipment means any and all equipment which the Seller loans or hires to the Buyer, including without limitation equipment set out in an Invoice.
Goods means any and all goods supplied by the Seller to the Buyer including without limitation any goods set out in an Invoice.
Invoice means any invoice, sales order or similar document issued by the Seller to the Buyer in connection with the sale of any Goods or hire or loan of any Equipment, provision of services or rebate including any invoice attached to these Conditions.
Fuel Terms means the Fuel Card, Credit Account & Bulk Facility Terms And Conditions, which can be found on the Mogas website.
PPSA means the Personal Property Securities Act 2009 (Cth).
Processed Goods means any Goods which after their delivery become part of a product or mass by being manufactured, processed, assembled, commingled or otherwise dealt with in such a way that their identity is lost in the product or mass.
Security Interest means a security interest as defined in the PPSA.
Seller means the party supplying the Goods, Equipment or services as described in the relevant Invoice.
- Creation of Agreement
By accepting delivery of the Goods or Equipment from the Seller, the Buyer agrees to be bound by, and an agreement is formed between the Seller and the Buyer on:
- these Conditions; and
- if the Goods are Products or Services as defined in the Fuel Terms, the Fuel Terms (which will prevail to the extent of any inconsistency with these Conditions).
- Entire Contract
- The Buyer agrees that other than any Credit Application (including any other Seller terms and conditions expressly referenced by the Credit Application) and the Fuel Terms (where applicable), these Conditions:
- supersede all previous agreements about its subject matter and embodies the entire agreement between the parties and to the extent permitted by Law, any statement, representation or promise made in any negotiation or discussion has no effect except to the extent expressly set out or incorporated by reference in these Conditions;
- cancel and are in substitution for all or any conditions put forward by the Buyer in respect of the sale of the Goods or supply of Equipment and any ancillary services by the Seller to the Buyer;
- do not terminate or invalidate any Credit Application, and to the extent that these Conditions contains terms and conditions which are inconsistent with the Credit Application, the Credit Application prevails; and
- may be subject to change without notice by the Seller provide that such amended Conditions will apply to all purchases of Goods or services by the Buyer from the Seller on or after the date of such change, and by continuing to purchase Goods from the Seller, the Buyer agrees to be bound by such amended Conditions.
- All warranties and representations by the Seller are excluded provided that these Conditions shall not exclude, limit, restrict or modify the rights, entitlements and remedies conferred upon the Buyer or the liabilities imposed upon the Seller, by any condition or warranty implied by any Commonwealth, State or Territory legislation rendering void or prohibiting such exclusion, limitation restriction or modification.
- Subject to the Australian Consumer Law, where Goods supplied are not of a kind ordinarily acquired for personal, domestic and household use, the Seller’s liability to the Buyer is limited to (at the Seller’s option) refunding the price or replacing or repairing the relevant Goods.
- To the extent the Australian Consumer Law applies, the Seller’s liability to the Buyer is limited to:
- in the case of any services, a refund for the unused portion or compensation for its reduced value; and
- in the case of Goods, a refund or replacement for major failures, or where a failure does not amount to a major failure, rectification within a reasonable time.
- The Seller will not be liable to the Buyer for any consequential, indirect, exemplary or punitive loss or damage howsoever arising, including whether in contract, tort (including negligence), breach of law, breach of trust, breach of duty, in equity, under an indemnity or otherwise and whether or not such loss or damage was contemplated by the parties at the time of entering into this Agreement.
- Price & Payment
- The Buyer acknowledges and agrees that if the Goods are Processed Goods the price for the Goods will the price charged by the Seller for the Goods at the time of delivery and not at the time of order.
- The Buyer must pay the price, without deduction or set-off, for the Goods and Equipment any services (if any) set out in the Invoice by the Due Date.
The risk in the Goods and Equipment (as relevant) shall pass to the Buyer upon delivery to the Buyer or its agent or a carrier commissioned by the Buyer.
- Retention of Title – Goods
- Title in the Goods will remain with the Seller until the Buyer has made payment in full in cleared funds of the purchase price of the Goods and all other amounts owing to the Seller for the supply of the Goods.
- Until all moneys payable by the Buyer have been paid in full in accordance with clause 1:
- the Buyer shall hold the Goods as bailee for the Seller;
- unless otherwise notified in writing, the Buyer is authorised to sell the Goods in the ordinary course of the Buyer’s business;
- the Buyer must not allow any person to have or acquire any Security Interest in the Goods;
- on and from risk in the Goods passing to the Buyer, the Buyer will insure the Goods for full replacement value;
- after giving 48 hours’ prior notice to the Buyer, the Seller shall be entitled to enter the Buyer’s premises during normal trading hours to inspect the Goods or Equipment; and
- where possible, the Goods shall be stored separately so as to enable them to be identified and cross-referenced to particular Invoices.
- Despite clause 2, if the Buyer supplies or purports to supply any of the Goods to any person before all moneys payable by the Buyer to the Seller have been paid in full, the Buyer agrees that:
- the Buyer holds the proceeds of any Goods sold on trust for, and as agent of, the Seller immediately when such proceeds are receivable or received by the Buyer;
- the Buyer must pay such proceeds immediately when they are received either to the Seller or into a separate bank account as trustee for the Seller; and
- if the Goods are mixed with or incorporated into other items such that the Goods are no longer separately identifiable, the Buyer will hold such part of the proceeds as relates to the Seller’s Goods on trust for the Seller and such part shall be deemed to be equal in dollar terms to the amount owing by the Buyer to the Seller at the time of the receipt of such proceeds.
- Retention of Title — Equipment
Title in the Equipment will remain with the Seller at all times, and the Buyer holds such Equipment at all times as bailee for the Seller.
The Seller may charge, and the Buyer agrees to pay, interest on all amounts not paid by the Due Date calculated on a daily basis from the Due Date until the date the Seller receives payment at such rate as the Seller may at its discretion deem fit up to but not exceeding 3-month Bank Accepted Bills/Negotiable Certificates of Deposit (on a monthly average basis), as published from time to time by the Reserve Bank of Australia plus 2% per month.
- On the happening of any one or more of the following (Default):
- the Buyer fails pay the Seller by the Due Date;
- the circumstances set out in clause 3 arise;
- a receiver and manager, liquidator, provisional liquidator or official manager is appointed over all or any of the assets of the Buyer, or a scheme of arrangement is proposed or approved with respect to the Buyer or mortgagee enters into possession of any of the assets of the Buyer; or
- an application is made for the winding up of the Buyer,
the Seller may at its option and without prejudice to any other rights or remedies it may have, exercise all or any of the following rights (notwithstanding any prior failure to exercise such rights):
- suspend or refuse to extend further credit, and stop delivery of further Goods or Equipment to, the Buyer;
- supply further Goods or Equipment only on the condition that the Buyer pays cash on or prior to delivery;
- demand immediate payment of the whole of any moneys owing from the Buyer to the Seller;
- charge the Buyer an administrative fee of $50.00 for each Default;
- take possession of all Goods and Equipment in respect of which title has not passed to the Buyer, and for that purpose the Buyer expressly authorises the Seller and its employees, contractors or agents without notice to enter any premises where the Goods or Equipment may be situated without committing a trespass and to take possession and releases those parties from any claim in connection with such actions;
- with or without taking possession of the Goods or Equipment, sell the same by public auction or by private treaty or by retail or wholesale cash or on terms and generally as the Seller thinks fit and, after defraying expenses of sale and enforcement, apply the proceeds actually received by the Seller in or towards reduction of any debt owed by the Buyer to the Seller; or
- reverse any or all rebates given to the Buyer by the Seller in connection with any outstanding amounts due to the Seller by the Buyer.
- The Buyer hereby agrees to indemnify and hold harmless the Seller against, and release the Seller from, all claims, costs, liabilities and expenses howsoever arising in connection with the Seller taking any action under this clause 10, or any enforcement, recovery or attempted recovery of moneys owing by the Buyer to the Seller or possession of the Goods or Equipment (including without limitation any legal costs on an indemnity basis and the costs of any agents acting on the Seller’s behalf) except to the extent a court determines were caused by the Seller’s negligent act or omission.
- The Seller:
- will use reasonable efforts to have the Goods and Equipment (as relevant) delivered to the Buyer on the delivery date agreed between the parties, or if no date is agreed, within a reasonable time having regard to the nature of the Goods and Equipment, but the Seller shall be under no liability whatsoever to the Buyer should delivery not be made on any specific date;
- if delivery costs are not set out in an Invoice, may charge the Buyer for the costs incurred by the Seller in connection with delivery;
- reserves the right to supply any orders in full or in multiple parts;
- will not be liable for a failure or delay in delivering Goods or services, if that failure or delay is due to a strike or other industrial action, compliance with a government request, any actions taken by the Seller or its employees, agents or contractors in response to public health concerns (including health epidemics or pandemics), a shortage of supply, or any event beyond its reasonable control or the inability or refusal of a third party to supply Goods or services to the Buyer for any reason (Force Majeure Event).
- If the Seller is unable to supply any Goods or services as a result of Force Majeure Event:
- its obligations under these Conditions shall be deemed suspended for the period of inability;
- in the event of a shortage of any Goods, the Seller may, without being deemed to be in breach of these Conditions, ration or apportion its available supplies among such of its customers as it may, in its absolute direction, deem desirable during the period or periods of shortage.
- Cancellation Returns and Credits
- Except as required by any applicable law:
- returned Goods will not be accepted for credit without the Seller’s prior written agreement;
- requests for credits arising from incorrect invoicing must be made before the Due Date of the relevant Invoice;
- orders cannot be cancelled once placed and unless otherwise agreed by the Seller in writing, the Buyer shall be liable for the full purchase price of any ordered Goods delivered to or received by the Buyer notwithstanding any purported cancellation of any order by the Buyer.
- The Buyer must inspect all Goods and Equipment at the time of delivery and must promptly, but within 24 hours of delivery, notify the Seller of any defects or deficiencies in the Goods or Equipment.
- If the Buyer does not notify the Seller in accordance with clause 2 the Goods and Equipment (as relevant) shall be deemed to be accepted by the Buyer in full, and free from any defects or deficiencies.
- Authority to Vary Conditions
These Conditions may not be varied without the prior written agreement of the Seller’s directors.
- The Buyer acknowledges and agrees that:
- the Seller has delivered the Goods and Equipment to the Buyer on or around the date of the Invoice;
- these Conditions are a security agreement for the purposes of the PPSA;
- to secure all amounts owed by the Buyer to the Seller in connection with these Conditions and the Invoice, the Buyer grants the Seller:
- a purchase money security interest in the Goods and Equipment (which extends to and continues in all Accessions and Processed Goods); and
- and their respective proceeds; and
- a separate security interest in any and all book debts of the Buyer in connection with any sale of the Goods or Equipment (notwithstanding that title in the Equipment remains with the Seller) as collateral;
- the Buyer will do all things necessary and provide the Seller with all information that the Seller requires to register a financing statement or financing charge statement in respect of the security interests granted under clause 1(c) on the Personal Properties Securities Register (PPSR);
- the Buyer will not change any of its details (including its name) without first notifying the Seller;
- the Buyer will, if requested by the Seller, pay to the Seller the cost of registering and maintaining registration of the security interests granted under clause 1(c) on the PPSR, within 14 days of such a request; and
- the Buyer indemnifies the Seller against all loss or expense suffered by the Seller due to any breach by the Buyer of any of its obligations under this clause 14.
- To the extent permitted by law, in respect of any security interest created in connection with clause 14, the Buyer and Seller agree:
- to contract out of all provisions of the PPSA which the PPSA permits them to contract out of;
- they each waive any rights they would otherwise have under the PPSA to receive any notices from the other party;
- the Seller need not give any notice under the PPSA unless the notice is required by the PPSA and cannot be excluded, and without limitation the Buyer waives its right to receive any verification statements it would otherwise be entitled to receive in relation to any financing statement which is registered against it by the Seller on the PPSR.
- neither party will disclose information of the kind referred to in section 275(1) of the PPSA (except where required due to the operation of section 275(7) of the PPSA) and the Buyer must not authorise the disclosure of such information.
- Except as permitted under clauses 7 or 8 the Buyer must not:
- dispose or purport to dispose of, or create or permit to be created, any security interest in the Equipment or Goods; or
- lease, hire, bail or give possession of the Equipment or Goods to any third party.
- Unless otherwise defined in these Conditions, the terms and expressions used in this clause 14 have the meanings given to them in, or by virtue of, the PPSA.
- Where the Buyer is the trustee of a trust (Trust), the Buyer represents and warrants to the Seller at all times that:
- the Buyer is bound by these Conditions in its own capacity and in its capacity as trustee for the Trust;
- the Buyer has the capacity and authority to accept these Conditions as trustee of the Trust; and
- recourse to the assets of the Trust is available to satisfy any obligations under these Conditions.
- The Buyer indemnifies the Seller against all costs, loss or damage that the Seller suffers as a result of a breach of any of the warranties in this clause 15.
- The Buyer must provide the Seller on request a copy of the relevant trust deed.
Unless expressly stated otherwise in an Invoice all sales in connection with these Conditions are stated on a GST exclusive basis.
If any part of these Conditions is or becomes for any reason wholly or partly invalid, such part shall to the extent of the invalidity be severed without prejudice to the continuing force and validity of the remaining Conditions.
- No Contra Proferentem
No rule of construction or interpretation applies to the Seller’s disadvantage on the basis that the Seller prepared, or relies on, a provision of these Conditions.
Notwithstanding any implication of law to the contrary, all contracts between the Buyer and the Seller shall be deemed to be made construed and to be enforceable in and according to the laws of the State of South Australia and by mutual consent to be subject to the jurisdiction of the courts of that state.