The whole of the Agreement between Multiform Industries Pty Ltd ABN 20 660 843 653 (“Multiform”) and the Applicant referred to in the Credit Application (“Customer”) are those set out in these Terms and Conditions as amended from time to time and those, if any, which are implied and which cannot be excluded by law (“Terms”). Any other contractual terms of the Customer (whether upon the Customer’s order or elsewhere) which are contrary to or inconsistent with these Terms shall not apply nor shall they constitute a counter-offer. By receiving
delivery and/or supply of all or a portion of the goods, materials and/or parts and/or labour and/or services supplied by Multiform under these Terms (“Goods”), the Customer shall be deemed to have accepted
these Terms and to have agreed that they shall apply to the exclusion
of all others.
2 Credit Terms
2.1 Payment is due as follows:
2.1.1 for credit account customers, on or prior to thirty (30) from the end of the month in which the invoice is rendered in respect of the supply of Goods;
2.1.2 for domestic or non-credit account customers, 50% deposit on placing the order and the balance upon or
prior to delivery of the Goods; unless otherwise stated in writing by Multiform. Multiform may charge interest at a rate equivalent to two percent (2%) in excess of the rate of interest for the time being fixed under Section 2 of
the Penalty Interest Rates Act 1983 if payment is not received by the due date
2.2 Multiform’s express or implied approval for extending credit to the Customer may be revoked or withdrawn by Multiform at any time.
2.3 Multiform is entitled to set-off against any money owing to the Customer amounts owed to Multiform by the Customer on any account whatsoever.
2.4 Any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs referred to in Clause 2.5, and then to principal.
2.5 The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by Multiform for enforcement of obligations and recovery of monies due from the Customer to Multiform.
3 Quotations and Pricing
3.1 Prices charged for Goods will be according to a current quotation for those Goods. Otherwise, they will be determined by Multiform by reference to its standard prices in effect at the date of delivery (whether notified to the Customer or not and regardless of any prices contained in the order). Multiform will use its best endeavours to notify the Customer of price changes but bears no liability in respect of this.
3.2 Any quotation by Multiform shall not constitute an offer. Quotations will remain valid for fourteen (14) days from the date of the quotation.
3.3 Any quotation, acceptance of quotation, purchase order or other document which requires signature may be signed in electronic form, and such signature shall be binding upon the person affixing that signature. No work will be commenced or Goods delivered unless there is a signed acceptance of quotation or purchase order confirming the request for Goods.
3.4 Upon written request by Multiform, the Customer shall pre-pay the cost of the stone at the time of making the order.
3.5 Unless otherwise specified by Multiform, the prices exclude:-
3.5.1 Any statutory tax, including any GST, duty or impost levied in respect of the Goods and which has not been
allowed for by Multiform in calculating the price.
3.5.2 Costs and charges in relation to insurance, packing (other than the standard packing of Multiform), crating, delivery (whether by road, rail, ship or air) and export of the Goods.
3.6 Any variations in the invoice or contract price as a consequence of currency fluctuations shall be payable by the Customer.
3.7 The contract between Multiform and the Customer shall not be affected by any impositions or alterations of customs duties or by decisions of the Customs Department with regard to either classification or value of duty or landing charges occasioned thereby. Any such impositions shall be to the account of the Customer.
3.8 For commercial clients, it is acknowledged that a 10% retention may be held and shall be held subject to the provisions of the principal contract.
3.9 This agreement is subject to the provisions of the Building and Constructions Industry Security of Payment Act 2002.
4 Delivery and Supply
4.1 Any times quoted for delivery and/or supply are estimates only and Multiform shall not be liable for failure to deliver/supply, or for delay in delivery/supply. The Customer shall not be relieved of any obligation to accept or pay for Goods, by reason of any delay in delivery/supply or dispatch. Multiform reserves the right to stop supply at any time if the Customer fails to comply with the Terms.
4.2 Multiform may refuse to supply any order by the Customer for Goods in its absolute discretion and may make acceptance of an order conditional upon it receiving a satisfactory credit assessment of the Customer.
4.3 The Customer is deemed to accept delivery of the Goods where it is either delivered to the Customer’s premises or to the address advised by the Customer or when Multiform notifies the Customer that the Goods are available for collection.
5.1 Until full payment has been made for all Goods, and any other sums in any way outstanding from the Customer to Multiform from time to time:-
5.1.1 All sums outstanding become immediately due and payable by the Customer to Multiform if the Customer makes default in paying any other sums due to Multiform, becomes bankrupt, or commits any act of bankruptcy,compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in these Terms.
5.1.2 The property in the Goods shall not pass to the Customer and the Customer shall hold the Goods as bailee for
Multiform (returning the same to Multiform on request). The Goods shall nevertheless be at the risk of the Customer from the time of delivery/supply and the Customer must insure the Goods from the time of delivery/supply.
5.1.3 The Customer is only authorised to sell the Goods (or any portion of them) to third parties as the fiduciary agent of Multiform provided that there shall be no right to bind Multiform to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by the Customer for the Goods (or any portion of them) shall be held on trust for Multiform pursuant to the fiduciary relationship.
5.1.4 In the event that the Customer incorporates or transforms the Goods (or any portion of them) into any other goods or products produced by the Customer (or a third party), then the Customer must hold a proportion of any payment (“relevant proportion”) received by the Customer for such goods or products on trust for Multiform. The Customer expressly acknowledges that the relevant proportion shall be equal to the dollar value of the Goods incorporated or transformed and the Customer further acknowledges that any part payment (not exceeding the relevant proportion) received by the Customer for such goods or products is received as payment first of the relevant proportion.
5.1.5 Multiform is irrevocably authorised to enter any premises where the Goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods without liability for trespass or any resulting damage.
5.2 In addition to any lien to which Multiform may, by statute or otherwise, be entitled, Multiform shall in the event of the Customer’s insolvency, bankruptcy or winding up, be entitled to a general lien over all property or goods belonging to the Customer in Multiform’s possession (although all or some of such property or goods may have been paid) for the unpaid price of any Goods sold or delivered to the Customer under this or any other contract.
6 Cancellations and Claims
6.1 No cancellations or partial cancellation of an order by the Customer shall be accepted by Multiform unless it has first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by Multiform, will indemnify Multiform against all loss, without limitation. Cancellation will not be accepted on goods that are not regular stock which are in the process of manufacture or
ready for shipment.
6.2 All complaints, claims, or notification of lost Goods, incomplete Goods, Goods damaged in transit or Goods that do not comply with the Customer’s purchase order must be submitted by the Customer to Multiform in writing within seven (7) business days of the date of the invoice rendered for the supply of the Goods. Otherwise, the Customer shall be deemed to have accepted the Goods and shall not refuse to pay for the Goods on the basis that they were lost, incomplete, damaged in transit, or do not comply with the Customer’s purchase order.
7 Personal Property Security Interest
7.1 The Customer grants Multiform a Security Interest in the goods supplied as Commercial Property, more particularly described as Building supplies [a relevant sub-classification of collateral described in the regulations pursuant to section 20(4) of the PPSA] and their Proceeds to secure the obligation of the Customer to pay the purchase price of the goods and any other obligations of the Customer to Multiform under this contract
(together the “Indebtedness”) and, where the goods and/or Proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the Indebtedness, the security interest shall also extent to all the Customers present and after acquired Multiform, of which the goods form part, to the extent required to secured the Indebtedness.
7.2 As and when required by Multiform the Customer shall, at its own expense, provide all reasonable assistance and relevant information to enable Multiform to register a Financing Statement or a Financing Change Statement and generally to obtain, maintain, register and enforce Multiform’s Security Interest in respect of the goods supplied, in accordance with the Personal Property Securities Act 2009 (“PPSA”).
7.3 The Customer shall not change its name without first notifying Multiform of the new name not less than 7 days before the change takes effect.
7.4 The Customer warrants that the goods are not purchased for personal, domestic or household purposes.
7.5 Notwithstanding any reference to a particular invoice/order, where any sum remains outstanding by the Customer on more than one invoice/order, any payments received from the Customer shall be deemed to be made by the Customer and applied by Multiform in the following order:
7.5.1 To any obligation owed by the Customer to Multiform which is unsecured, in the order in which the obligations
7.5.2 To any obligations that are secured, but not by a Purchase Money Security Interest, in the order in which
those obligations were incurred;
7.5.3 To obligations that are secured by a Purchase Money Security Interest, in the order in which those obligations were incurred.
7.6 Until the Customer has paid all money owing to Multiform the Customer shall at all times ensure that:
7.6.1 All goods supplied by Multiform, while in the Customer’s possession, can be readily identified and distinguished, and/or
7.6.2 All Proceeds (in whatever form) that the Customer received from the sale of any of the goods are readily
identifiable and traceable.
7.7 Where the goods are purchased by the Customer and held as Inventory, nothing in this clause shall prevent the Customer from selling or leasing and delivering the goods in the ordinary course of the Customer’s business. Otherwise until the Customer has paid all money owing to Multiform the Customer shall not sell or grant a Security Interest in the goods without Multiform’s written consent.
7.8 The parties agree to out of the PPSA in accordance with Section 115 of the PPSA to the extent that Section 115 applies for the benefit of, and does not impose a burden on, Multiform. The Customer waives its right to receive a Verification Statement in respect of any Financing Statement or Financing Change Statement registered by or on behalf of Multiform in respect of the Security Interest created by these terms and conditions.
7.9 For the purpose of this clause words and phrases starting with a capital letter shall have the respective meanings given to them under, or in the context of the PPSA.
8 Privacy Act 1988 (“Privacy Act”)
To enable Multiform to assess the Customer’s application for credit, the Customer authorises Multiform:-
8.1 To obtain from a credit reporting agency a consumer or commercial credit report containing personal information about the Customer and its guarantors pursuant to Section 18K(1) of the Privacy Act; and
8.2 To obtain a report from a credit reporting agency and other information in relation to the Customer’s commercial credit activities, and
8.3 To give to a credit reporting agency information including identity particulars and application details
AND in accordance with Section 18N(1) of the Privacy Act the Customer authorises Multiform to give to and obtain from any credit provider named in the accompanying credit application and credit providers that may be named in a credit report issued by a credit reporting agency information about the Customer’s credit arrangements. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act. The Customer understands that information can be used for the purposes of assessing its application for credit (Section 18L(4) Privacy Act), assisting it to avoid defaulting on its credit obligations, assessing its credit worthiness and notifying other credit providers and credit reporting agencies of a default by it under these Terms.
The Customer must notify Multiform in writing within seven (7) days of:-
9.1 Any alteration of the name or ownership of the Customer.
9.2 The issue of any legal proceedings against the Customer.
9.3 The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer.
9.4 Any change in the ownership of the business name of the Customer. The Customer agrees that it shall be liable to Multiform for all Goods supplied to the new owner by Multiform until notice of any such change is received.
10.1 No warranties except those implied and that by law cannot be excluded are given by Multiform in respect of Goods supplied. Where it is lawful to do so, the liability of Multiform for a breach of a condition or warranty is limited to the repair or replacement of the Goods, the supply of equivalent Goods, the payment of the cost of repairing or replacing the Goods or acquiring equivalent Goods, as determined by Multiform.
10.2 The Customer acknowledges and warrants that it has relied on its own skill and judgment or, alternatively, on the skill and judgment of tradesmen and professional advisers retained by it to provide advice and assistance on the suitability of the Goods for specific purposes and procedures and, in this respect, shall indemnify Multiform from and against any suit, claim, demand or compensation which, but for these Terms, the Customer may have had against Multiform.
10.3 The Customer warrants to Multiform that it is purchasing Goods as the principal and not as an agent.
11 Force Majeure
Multiform shall be released from its obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties renders provision of the Goods impossible, where all money due to Multiform shall be paid immediately and, unless prohibited by law, Multiform may elect to terminate the Agreement.
12 Equitable Charge
The Customer as beneficial owner and/or registered proprietor now charges in favour of Multiform all of the Customer’s estate and interest in any real property (including but not limited to any applicable land owned by the Customer named or described as the Customer’s Street Address in the Credit Application if applicable) (“Land”) to secure payment of accounts rendered by Multiform to the Customer for the delivery and/or supply of the Goods including interest payable on these accounts and costs (including legal costs on a full indemnity basis)
incurred by Multiform and including the costs to prepare and lodge a Caveat against the Land and to remove the Caveat.
13 Failure to Act
Multiform’s failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or Multiform’s failure to exercise any right or remedy available under these Terms or at law, or Multiform’s failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under these Terms shall not constitute a waiver of any subsequent default or a waiver of Multiform’s right to demand timely payment of future obligations or strict compliance with the Terms.
14 Legal Construction
14.1 These Terms shall be governed by and interpreted according to the laws of Victoria and Multiform and the Customer consent and submit to the jurisdiction of the Courts of Victoria.
14.2 Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and