Payment terms
1. The terms of payment are strictly thirty (30) days (or such other period as nominated by the supplier herein) from the date of the invoice. MerCs Pty Ltd ACN:168442386 and their related bodies corporate (as that term is defined in the Corporations Act 2001) (Supplier) may, at any time vary the terms and conditions of trade in its absolute and unfettered discretion.
2. The varied terms and conditions of trade will be deemed accepted by the Applicant if no written notice has been received by the Supplier, or the Applicant places an order with the supplier or continues to use the credit facilities after any changes.
3. The Supplier will endeavour to notify the Applicant of any changes however it is the responsibility of the Applicant to regularly check our website for any updated or altered Terms. Clerical errors (such as spelling mistakes or grammatical errors) may be subject to correction without notification.
4. The Applicant must check all invoices and advise the Supplier of any errors or omissions within seven (7) days of receipt. Failing advice from the Applicant that the invoice contains any errors or omissions, the invoice may be deemed accepted by the Supplier.
5. Should the Applicant not pay for the goods or services supplied by the Supplier in accordance with the credit terms as provided herein, or as agreed in writing by the Supplier and Applicant from time to time, after issuing a written demand to the Applicant demanding payment within fourteen (14) days, the Supplier will be entitled to charge an administration fee of 10 percent of the amount of the invoice payable.
Prices
6. Unless otherwise agreed in writing between the parties the prices are subject to variation with notice and goods and services will be invoiced at prices current at the time of their provision.
7. GST, Sales tax and any other taxes or duty on or in respect of goods sold by the Supplier imposed by any state or federal government law shall be payable by the Applicant but if those taxes or duties by law are or become payable by the Supplier the prices in respect of the goods shall be increased by the amount necessary to ensure that the net amount actually received by the Supplier is as if those taxes or duties were not payable.
Delivery
8. Unless otherwise agreed between the parties all goods are sold f.o.b. and the Supplier shall deliver the goods on board the means of transport.
9. Risk in the goods shall pass to the Applicant on delivery.
10. Where goods are to be delivered by instalments, each instalment shall be deemed to be sold under a separate contract.
11. If the Supplier fails to deliver an instalment within the agreed time or at all, the Applicant shall not be entitled to repudiate the contract with regard to any other instalments remaining to be delivered. Contracts for goods backordered are firm and shall not be rescinded unless agreed in writing by the Supplier.
12. All goods sold as listed on any invoice shall be deemed to have been received in good order and condition without shortage unless notified in writing to the contrary within ten (10) days of delivery.
Return of goods
13. Goods returned for credit will only be accepted subject to the Supplier’s prior agreement with all freight charges prepaid by the Applicant (buyer). Returned goods if accepted by the seller are subject to a re-stocking fee of 15 per cent of the invoice price.
Delay
14. The Supplier will use its reasonable endeavours to perform its obligations under any contract for the sale of goods entered into, but failure to do so by reason of, but not limited to, the inability of the Supplier to obtain supplies from its usual sources, strikes, combination of workmen, lockout, riot, revolution, war, mobilisation, pandemic, epidemic, fire, act of God or any other cause of like or different character whatsoever beyond the control of the Supplier, shall not constitute a breach of contract, nor shall the Supplier be under any liability to the Applicant, but the contract shall be deemed to be suspended with liberty to the Supplier at any time to rescind the contract or any unfulfilled part or to renew the contract upon the cessation of the cause preventing performance.
Jurisdiction
15. The Applicant acknowledges and agrees that this agreement will be governed by the laws of New South Wales, and the laws of the Commonwealth of Australia which are in force in New South Wales.
16. The Applicant acknowledges and agrees that any contract for the supply of goods or services between the Supplier and the Applicant is formed at the address of the Supplier.
17. The parties to this agreement submit to the non-exclusive jurisdiction of the courts of New South Wales and the relevant federal courts and courts competent to hear appeals from those courts.
Security/charges
18. The Applicant charges in favour of the Supplier all of its estate and interest in any real property, whether held in its own right or as capacity as trustee, the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.
19. The Applicant charges in favour of the Supplier all of its estate and interest in any personal property, whether held in its own right or as capacity as trustee, the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.
20. The Applicant appoints as its duly constituted attorney the Supplier’s company secretary or such other person as the Supplier may appoint in writing from time to time, to execute in the Applicant’s name and as the Applicant’s act and deed any real property mortgage, bill of sale or consent to any caveat the Supplier may choose to lodge against real property that the Applicant may own in any Land Titles Office in any state or territory of Australia, even though the Applicant may not have defaulted in carrying out its obligations hereunder upon written notice and demand to the Applicant (in the event that there is no default by the Applicant in carrying out its obligations hereunder).
21. Where the Applicant has previously entered into an agreement with the Supplier by which the Applicant has granted a charge, mortgage or other security interest (including a security interest as defined in the Personal Property Securities Act 2009 (PPSA)) over or in respect of real or personal property, those charges, mortgages or other security interests and the terms which directly or indirectly create rights, powers or obligations in respect thereto will continue and co-exist with the obligations and security interests created in this agreement and will secure all indebtedness and obligations of the Applicant under this agreement. The Supplier may, at its election and upon the provision of written notice, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.
Purpose of credit
22. The Applicant acknowledges and agrees that the credit to be provided to the Applicant by the Supplier is to be applied wholly or predominantly for commercial purposes.
Formation of contract
23. Quotations made by the Supplier will not be construed as an offer or obligation to supply in accordance with the quotation. The Supplier reserves the right to accept or reject, at its discretion, any offer to purchase received by it and is not obliged to provide written reasons to the Applicant. Supply of goods and services by the Supplier or written acceptance by the Supplier of the Applicant’s offer will complete a contract.
24. Placement of an order, either verbally or in writing, will imply acceptance of the Supplier’s offer and of these terms and conditions.
Retention of title
25. Title in the goods does not pass to the Applicant until the Applicant has made payment in full for the goods and, further, until the Applicant has made payment in full of all the other money owing by the Applicant to the Supplier whether in respect of money payable under a specific contract or on any other account whatsoever.
26. Whilst the Applicant has not paid for the goods supplied in full at any time, the Applicant agrees that property and title in the goods will not pass to the Applicant and the Supplier retains the legal and equitable title in those goods supplied and not yet sold.
27. Until payment in full has been made to the Supplier, the Applicant will hold the goods in a fiduciary capacity for the Supplier and agrees to store the goods in such a manner that they can be identified as the property of the Supplier, and will not mix the goods with other similar goods.
28. The Applicant will be entitled to sell the goods in the ordinary course of its business, but until full payment for the goods has been made to the Supplier, the Applicant will sell as agent and bailee for the Supplier and the proceeds of sale of the goods will be held by the Applicant on trust for the Supplier absolutely.
29. The Applicant’s indebtedness to the Supplier, whether in full or in part, will not be discharged by the operation of clause 28 hereof unless and until the funds held on trust are remitted to the Supplier.
30. The Applicant agrees that whilst property and title in the goods remains with the Supplier, the Supplier has the right, with prior notice to the Applicant, to enter upon any premises occupied by the Applicant (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the Applicant) to inspect the goods of the Supplier and to repossess the goods which may be in the Applicant’s possession, custody or control when payment is overdue.
31. The Applicant will be responsible for the Supplier’s reasonable costs and expenses in exercising its rights under clause 30. Where the Supplier exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Applicant against the Supplier, its employees, servants or agents.
32. The Applicant agrees that where the goods have been retaken into the possession of the Supplier, the Supplier has the absolute right to sell or deal with the goods, and if necessary, sell the goods with the trademark or name of the Applicant on those goods, and the Applicant hereby grants an irrevocable license to the Supplier to do all things necessary to sell the goods bearing the name or trademark of the Applicant.
33. For the avoidance of doubt, the Supplier’s interest constitutes a ‘purchase money security interest’ pursuant to the PPSA.
Warranty
34. All warranties conditions and representations whether express or implied other than any express warranty stated by the Supplier in writing are hereby expressly negated and excluded except in circumstances where the Supplier is by law unable to exclude or limit its liability. Provided that where the Applicant is a consumer for the purpose of the Competition and Consumer Act 2010 but the goods or services are not of a kind ordinarily required for personal domestic or household use or consumption the liability of the Supplier shall be limited as determined by the Supplier to anyone or more of the following:
(a) the replacement of the goods or the supply of equivalent goods; and
(b) the payment of the costs of replacing the goods or of acquiring equivalent goods.
35. No claim of any nature whatsoever (other than relating to the warranty) will be recognized unless made within ten (10) days of delivery. All freight costs involved in returning goods must be paid by the Applicant. A copy of the invoice evidencing sale to the Applicant is to be included with the goods.
36. Nothing in this agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any goods and/or services pursuant to this agreement of all or any of the provisions the Competition and Consumer Act 2010 or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified.
Cancellation of terms of credit
37. The Supplier reserves the right to withdraw credit at any time, whether the Applicant is in default under the terms of this agreement or not.
38. Upon cancellation with or without notice all liabilities incurred by the Applicant become due and payable to the Supplier within seven (7) days.
Indemnity
39. The Applicant agrees to indemnify the Supplier and keep the Supplier indemnified against any claim that arises out of the goods and services supplied under this agreement. This indemnity includes any legal fees and expenses the Supplier incurs in order to enforce its rights, on an indemnity basis.
Provision of further information
40. The Applicant undertakes to comply with any reasonable written requests by the Supplier to provide further information for the purpose of assessing the Applicant’s creditworthiness, including an updated credit application.
41. If the Applicant is a corporation (with the exception of a public listed company), it must advise the Supplier of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). In the case of a change of directors or shareholders the Supplier may ask for new guarantors to sign a guarantee and indemnity.
Corporations
42. If the Applicant is a corporation, the Applicant warrants that all of its directors have signed this agreement and that all of its directors may be required to enter into a guarantee and indemnity with the Supplier in relation to the Applicant’s obligations to the Supplier.
Trustee capacity
43. If the Applicant is the trustee of a trust (whether disclosed to the Supplier or not), the Applicant warrants to the Supplier that:
(a) the Applicant enters into this agreement in both its capacity as trustee and in its personal capacity;
(b) the Applicant has the right to be reasonably indemnified out of trust assets;
(c) the Applicant has the power under the trust deed to sign this agreement; and
(d) the Applicant will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier in writing.
44. The Applicant must give the Supplier a copy of the trust deed upon request.
Partnership
45. If the Applicant enters into this agreement as partners, the Applicant warrants that all of the partners have signed this agreement and that all of the partners may be required to enter into a guarantee and indemnity with the Supplier in relation to the Applicant’s obligations to the Supplier.
46. If the Applicant is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Supplier in writing. In the case of a change of partners, the Supplier may ask for new guarantors to sign a guarantee and indemnity.
Insolvency
47. If the Applicant becomes insolvent, the Applicant remains liable under this agreement for payment of all liabilities incurred hereunder. The Applicant remains liable under this agreement even if the Supplier receives a dividend or payment as a result of the Applicant being insolvent.
Waiver
48. A waiver of any provision or breach of this agreement by the Supplier must be made by an authorised officer of the Supplier in writing. A waiver of any provision or breach of this agreement by the Applicant must be made by the Applicant’s authorised officer in writing.
49. Until ownership of the goods passes, the Applicant waives its rights it would otherwise have under the PPSA (unless otherwise agreed to in writing by the Supplier and the Applicant):
(a) under section 95 to receive notice of intention to remove an accession;
(b) under section 118 to receive notice that the Supplier intends to enforce its security interest in accordance with land law;
(c) under section 121(4) to receive a notice of enforcement action against liquid assets;
(d) under section 129 to receive a notice of disposal of goods by the Supplier purchasing the goods;
(e) under section 130 to receive a notice to dispose of goods;
(f) under section 132(2) to receive a statement of account following disposal of goods;
(g) under section 132(4) to receive a statement of account if no disposal of goods for each 6 month period;
(h) under section 135 to receive notice of any proposal of the Supplier to retain goods;
(i) under section 137(2) to object to any proposal of the Supplier to retain or dispose of goods;
(j) under section 142 to redeem the goods;
(k) under section 143 to reinstate the security agreement; and
(l) under section 157(1) and 157(3) to receive a notice of any verification statement.
Costs
50. The Applicant must pay for its own legal, accounting and business costs and all costs incurred by the Supplier relating to any default by the Applicant under this agreement. The Applicant must also pay for all stamp duty and other taxes payable on this agreement (if any).
51. The Applicant will pay the Supplier’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Applicant, including collection costs, debt recovery fees and legal costs on an indemnity basis.
52. Subject to clauses 50 and 51, payments by or on behalf of the Applicant will be applied by the Supplier as follows.
(a) Firstly, in payment of any and all collection costs and legal costs in accordance with clauses 31 and 50.
(b) Secondly, in payment of any interest incurred in accordance with clause 58.
(c) Thirdly, in payment of the outstanding invoice(s).
53. In circumstances where the Supplier seeks to enforce a purchase money security interest under the PPSA over collateral or proceeds (these terms being consistent with the terms defined in the PPSA), payments received from the Applicant will be allocated in a manner at the Suppliers absolute and unfettered discretion, so as to attribute, to the greatest extent possible, the unpaid balance of the debt to the purchase money obligation in respect of the collateral and/or proceeds over which the Supplier seeks to enforce its purchase money security interest.
54. To the extent that payments have been allocated to invoices by the Supplier in its business records, the Supplier may, at its sole and unfettered discretion, allocate and/or retrospectively reallocate payments in any manner whatsoever at the Supplier’s absolute discretion, including in a manner inconsistent with any other clause in this agreement.
55. Payments allocated (and/or reallocated) under clause 52 and/or 54 will be treated as though they were allocated (and/or reallocated) in the manner determined by the Supplier on the date of receipt of payment.
Taxes and duty
56. The Applicant must pay GST on any taxable supply made by the Supplier to the Applicant under this agreement. The payment of GST is in addition to any other consideration payable by the Applicant for a taxable supply.
57. If as a result of:
(a) any legislation becoming applicable to the subject matter of this agreement; or
(b) any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration;
(c) the Supplier becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Applicant, then the Applicant must pay the Supplier these additional amounts on 48 hours’ written demand.
Interest rates
58. The interest rate on any outstanding debts is a fixed rate of 10 percent per annum.
Set-off
59. All payments required to be made by the Applicant under this agreement will be made free of any set-off, or counterclaim and without deduction or withholding unless agreed to otherwise by the Supplier and the Applicant in writing.
60. Any amount due to the Supplier from time to time may be deducted from any monies which may be or may become payable to the Applicant by the Supplier.
Miscellaneous
61. The Supplier is not liable for any loss caused to the Applicant by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God or any other activity beyond the Supplier’s control.
62. In relation to the supply of goods, the Supplier’s liability is limited to:
(a) replacing the goods or supplying similar goods;
(b) repairing the goods;
(c) providing the cost for replacing the goods or for acquiring equivalent goods; and
(d) providing the cost for having the goods repaired.
63. In relation to the supply of services, the Supplier’s liability is limited to:
(a) supplying the service again; or
(b) providing for the cost of having the services supplied again.
64. The Supplier is not liable for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Applicant as a result of the goods and/or services supplied under this agreement.
65. The Applicant will, at the request of the Supplier, execute documents and do such further acts as may be required for the Supplier to register the security interest granted by the Applicant under the PPSA.
66. The Applicant agrees to accept service of any document required to be served, including any notice under this agreement or the PPSA or any originating process, by prepaid post at any address nominated in this application or any other address later notified to the Supplier by the Applicant or the Applicant’s authorised representative.
67. The Applicant further agrees that where the Supplier has rights in addition to those under Part 4 of the PPSA, those rights will continue to apply.
68. The Applicant irrevocably grants to the Supplier the right to enter upon the Applicant’s property or premises, with notice, and without being in any way liable to the Applicant or to any third party, if the Supplier has cause to exercise any of their rights under sections 123 and/or 128 of the PPSA, and the Applicant shall reasonably indemnify the Supplier from any claims made by any third party as a result of such exercise.
Severance
69. If any provision of this agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.
70. If any part of this agreement is invalid or unenforceable, that part is deleted and the remainder of the agreement remains effective.
Variation
71. The Applicant agrees that these terms and conditions may be varied, added to, or amended by the Supplier at any time. Written notice will be provided to the Applicant that amendments have been made to the Terms and Conditions and that the amended Terms and Conditions can be found on the Suppliers Website. The Applicant will be provided with fourteen (14) days to accept the variation/s, failing which the variations may be deemed accepted by the Supplier.
72. Any proposed variation to these terms and conditions by the Applicant must be requested in writing. The Supplier may refuse any such request without providing reasons either orally or in writing.
73. Variations requested by the Applicant will only be binding upon the Supplier if they are accepted in writing.
Consent to register
74. The Applicant hereby consents to the Supplier recording the details of this Agreement on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by the Supplier to effect such registration.
75. The Applicant waives any right or entitlement to receive notice of the registration of any security interest(s) created by this instrument on the Personal Property Securities Register.
Entire agreement
76. This agreement constitutes the entire agreement between the parties relating in any way to its subject matter unless agreed to otherwise by the Supplier and the Applicant in writing. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this agreement are merged in this agreement and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.
77. Notwithstanding the preceding paragraph, in circumstances where there is a pre-existing written credit agreement (Original Agreement) between the Applicant and the Supplier, these terms and this agreement will constitute a variation of the Original Agreement whereby the terms of the Original Agreement are deleted and replaced with the terms herein, unless the terms of the Original Agreement are otherwise expressly or implicitly preserved by the terms herein in which case they will co-exist with the terms herein, and, to the extent of any inconsistency, these terms will prevail.
Privacy Act
78. The Applicant agrees to the terms of the Privacy Statement pursuant to the Privacy Act 1988 (as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 contained in this document.
Privacy Statement
Privacy Laws
We are committed to complying with the Privacy Act 1998 (Cth) (“the Act”), the Australian Privacy Principles (“the APPs”) and the Credit Reporting Code as amended from time to time. In this document, these statutes and codes are collectively referred to as “the Privacy Laws”.
Our Privacy Statement – We Respect Your Privacy
We are committed to your privacy. Our policy on handling Personal Information (any information that identifies you or could reasonably identify you) and credit information (your repayment and default history, amount and type of credit provided and any default information) is to comply with the Privacy Laws as amended from time to time for the fair handling of Personal Information. Our Privacy Policy is outlined in this document and you can obtain a copy of it on Our website at www.mercs.com.au.
We may collect types of Personal Information from you during Our relationship and We will advise you of this (and other matters about the collection of Personal Information) before, at or as soon as possible after the time of collection. We use the Personal Information collected for several purposes, including:
1. Providing you with Our products and services and/or information about Our products and services;
2. Assessing applications for commercial credit and guarantee documents;
3. Assessing applications for employment (where applicable);
4. Administering Our business activities;
5. Communicating with you by telephone, email, SMS or mail;
6. Managing, researching and developing Our products and services;
7. Managing, servicing and reviewing accounts, including overdue accounts;
8. Managing client payment information, including credit card information and bank account details;
9. Distributing articles or publications to you;
10. Investigating any complaints; and
11. Insurance and debt collection purposes.
This information may be disclosed to Our related or associated entities, parties related to your employment (e.g. referees and others as set out in Our Privacy Policy), parties related to your services including contractors, other credit providers whether or not your account is overdue, credit reporting bodies including Creditor Watch Pty Ltd, Equifax Pty Ltd, Experian Australia Pty Ltd, Illion Australia Pty Ltd their related entities and others, and, if necessary, Our professional advisors including risk insurers, solicitors and financial institutions.
You have a right not to provide information that can identify you. However, if all or part of the Personal Information that We request from you is not provided, then We may not be able to do certain things (including supply you with goods, consider any application for goods made by you, or process your request for a commercial credit account).
In accordance with the Privacy Laws and Our Privacy Policy, you will be given access to your Personal Information on request. If you have any questions or concerns about Our Privacy Policy, the types of Personal Information We may hold about you, or for corrections or complaints about a breach of your privacy, please direct your requests in writing to Our Privacy Officer at PO Box 687 CARDIFF NSW 2285 or e-mail ap@mercs.com.au.