TITAN DEVELOPMENT INTERNATIONAL PTY LTD (ACN 107 620 057)
GENERAL TRADING TERMS & CONDITIONS
In these terms and conditions of sale:
Titan means Titan Development International Pty Ltd (ACN 107 620 057, trading as “Titan Packaging”);
Buyer means the entity or person(s) to whom any quotation is made, offering to contract, or purchases Goods from Titan;
Goods means goods and services supplied by Titan to the Buyer which are as described on the invoices, quotation or any other forms.
PPSA means the Personal Property Securities Act 2009 (Cth).
PPSR means the Personal Property Securities Register.
2.1 These terms and conditions shall:
(a) apply to every order or offer to supply of goods from Titan; and
(b) prevail over the Buyer’s terms of purchase (if any); and
(c) supersede and exclude all prior discussions, representations and arrangements relating to the supply of the Goods.
2.2 Titan may review these terms and conditions at any time. Any change following a review will take effect from the date on which Titan notifies the Buyer of such change.
2.3 If any provision of these terms and conditions shall be invalid, illegal or unenforceable, the remaining provisions shall not be affected, prejudiced or impaired.
2.4 Any contracts shall be governed by the laws of Victoria, and are subject to the jurisdiction of Victorian courts.
2.5 Titan may assign or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
2.6 Titan’s failure to enforce the timely performance of any terms shall not constitute a waiver of any subsequent default or a waiver of Titan’s right to demand timely performance of future obligations.
2.7 Owing to the difficulty of producing exact quantities, all orders are conditional upon a margin of up to 20% being allowed for overs or unders in quantity. The Buyer shall only be required to pay for the actual quantity of Goods delivered by Titan.
2.8 Titan accepts no responsibility for errors in artwork proofs, samples or goods where it has been approved by the Buyer.
2.9 Whilst all reasonable steps will be taken to try to match colour, this cannot be guaranteed and the contract shall be deemed to have been performed by delivery of goods of the general shade and density of colour stipulated.
2.10 Any description or sample of the Goods delivered is given by the way of identification only and the use of such description or sample shall not constitute a contract of sale by description or sample.
2.11 The Buyer acknowledges that it has not relied on any advice, recommendation or information provided by Titan in relation to the Goods or their use.
3.1 Unless otherwise agreed in writing the Price shall be one of the following:
(a) as indicated on invoices provided by Titan to the Buyer in respect of Goods supplied;
(b) the Price quoted provided that the Buyer accepts quotation in writing within thirty (30) days;
(c) the prevailing price on Titan’s price list at the date of delivery.
3.2 The price quoted or invoiced does not include any taxes or duties. GST and other applicable taxes and duties shall be added to the price unless they are expressly included. The Buyer shall indemnify Titan from and against any direct or indirect liability for such taxes or duties.
3.3 Prices are subject to change and in the event that the price of the Goods is increased, Titan will, before production, notify the Buyer of the increase in the price and the Buyer has the right to cancel the Goods to which the increase in price applies in writing.
3.4 Titan may require a non-refundable deposit, or full payment in advance at its sole discretion.
4. Payment & Default
4.1 Payments shall be made by cash, cheque, bank cheque, direct deposit, EFT transfer or any other methods directed by Titan.
4.2 Time for payment for the Goods is the essence and due dates are stated on the invoice or other forms. 50% deposit is required to process the order then balance shall be due before delivery.
4.3 If the Buyer defaults in any payments or is unable to pay its debts as they fall due, or Buyer commits any other material breach of these terms, or an insolvency event in respect of the Buyer arises or is reasonably suspected,
Titan may, without prejudice to any other action or remedy which Titan has or might otherwise have against the Buyer, do any or all of the following:
(a) charge the Buyer interest calculated on a daily basis, at the rate of 2.5% per calendar month or the maximum rate permitted by law, whichever is greater, until payment has been made in full;
(b) vary or terminate the Buyer’s credit limit or payment terms without notice;
c) suspend or terminate the supply of Goods to the Buyer and any of its other obligations, without being liable for any loss or damage the Buyer may suffer;
(d) cancel any rebate, discount or allowance due or payable by Titan as at the date of the event;
(e) enter (at any time) any premises in which Titan’s goods (including any merchandising materials) are stored, to enable Titan to inspect the goods and to reclaim possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Buyer whatsoever;
4.4 If the Buyer defaults in any payment when due, the Buyer shall indemnify Titan from and against all costs and disbursements incurred by Titan in pursuing the debt including but not limited to legal costs and collection agency costs.
4.5 If any account remains overdue after thirty (30) days then ten percent (10%) of the amount overdue (up to a maximum of five hundred dollars ($500.00)) shall be levied for administration fees which sum shall become immediately due and payable, the parties agreed that this constitutes reasonable costs incurred by Titan due to the overdue account.
4.6 The Buyer shall be liable for any dishonour fees incurred by Titan from Titan’s bank or financial facilities and shall indemnify Titan of the same.
4.7 If any part of an invoice is in dispute, the balance will remain payable and must be paid when due. The Buyer has no right to set-off any claim against Titan.
5. Warranty & Claims
5.1 Titan warrants that the Goods supplied are of merchantable quality. No warranty is given by Titan as to the suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Titan shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
5.2 It is the responsibility of the Buyer to promptly examine the goods upon delivery, and notify Titan in writing within (7) days of delivery, of any issues regarding product quality or claims of any type. If the Buyer fails to comply with this provision, the Goods shall be deemed to have been accepted satisfactorily by the Buyer, free from defect or damage.
5.3 Titan shall have the right to examine the Goods and the Buyer must either return the Goods concerned to Titan at the Buyer’s expense, or in case where redelivery is not possible, the Buyer must make them available for inspection by Titan and permit Titan to take samples.
5.4 Titan’s liability for breach of a condition or warranty contained in this Contract or implied into this Contract by the Statutory Provisions (other than a condition implied by Section 69 of the Trade Practices Act) is limited to any one of the following as determined by Titan:
(a) The replacement of the Goods or supply of equivalent Goods;
(b) The repair of the Goods or payment of the cost of having the Goods repaired;
(c) The refund of the price paid by the Buyer for the Goods.
5.5 Titan is not liable for any special, indirect, or consequential loss or damage including but not limited to loss of anticipated profits arising in any manner, directly, or indirectly, out of the Goods or the supply of the Goods to the Buyer.
5.6 The Buyer assumes all risk and liability for loss, damage or injury to persons or property of the Buyer, or to others arising out of the use or possession of any of the Goods sold to the Buyer, whether such Goods are used singularly, or in combination with other substances, or any process.
5.7 The Buyer warrants and undertakes that when it makes an order and / or trades with Titan it is/ will be solvent. Should the Buyer become insolvent it must immediately notify Titan.
6. Delivery & Risk
6.1 Titan will arrange delivery of the Goods to the Buyer at its sole discretion, including time, mode or route. If the Buyer requires special delivery, additional costs incurred in logistics as well as overtime incurred by Titan shall be reimbursed.
6.2 Upon request by the Buyer, express delivery of goods by International or Domestic courier can be arranged by Titan. The costs for such courier service shall be pre-paid by the Buyer.
6.3 The Buyer is responsible for off-loading and/or handling of a delivery made to the Buyer.
6.4 Unless otherwise agreed in writing, any goods which are not taken
by the Buyer within the period stipulated for delivery, are to be paid for in full within 30 days from the date of expiration of the period. Such goods are to remain at Buyer’s risk.
6.5 Titan may deliver the Goods by separate instalments. Each instalment shall be invoiced and paid in accordance with these terms and conditions.
6.6 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, Titan shall be entitled to receive all insurance proceeds payable for the Goods.
7. Retention of Title
7.1 Title to the goods supplied by Titan to the Buyer shall remain with Titan until the total amount due in respect of the goods and all monies owing to Titan have been paid by the Buyer to Titan in full ("Debts").
7.2 The Buyer shall have the right to resell goods, but only as fiduciary agent and trustee for Titan by way of bona fide sale at full market value and in the ordinary course of its business.
7.3 Until all the Debts have been paid for in full:
7.3.1 The Buyer shall take custody of the goods as trustee, fiduciary agent and bailee for Titan;
7.3.2 The Buyer shall keep Titan’s goods separate from any other goods and properly marked, stored, protected and insured.
7.3.3 The Buyer must hold all of the money it receives (`Proceeds’):
(a) From sale of any property into which goods supplied by Titan have been incorporated; or
(b) For the sale of goods or provision of services including the goods and services supplied by Titan
(c) As bailee, fiduciary agent and trustee for Titan, but the Buyer need not hold on trust any money exceeding the amount of the Debts at the time the money is received. Receipt by the Buyer of payment shall be treated as conclusive evidence that it has received Proceeds.
(d) The Buyer expressly acknowledges that it is bound by fiduciary obligation created in the preceding paragraph and acknowledges that:
(i) It must hold the Proceeds on trust for Titan.
(ii) It must place the whole of the Proceeds in an account separate from its own moneys (`the Proceeds Account’).
(iii) It must maintain the Proceeds Account separate from its own moneys at all times.
(iv) It must maintain proper records for the Proceeds Account.
(v) It must not assign or encumber any book debts arising from sales made in circumstances set out in clauses 13.3 and
(vi) or do any other acts in derogation of Titan’s legal or beneficial interests.
(vii) It must account to Titan on demand for all moneys standing to the credit of such account;
(viii) Titan may appropriate payments as it thinks fit, notwithstanding any contrary appropriation by the Buyer;
(ix) For the purposes of identification of different consignments of goods and services purchased from Titan and receipt of Proceeds, the Buyer agrees that the principle of “Last In, First Out” shall be applied to any items that cannot be distinguished.
(x) Titan may trace the Proceeds in equity.
7.3.4 On demand by Titan, the Buyer must assign to Titan all book debts not exceeding the amount of the Debt at the date of demand.
7.3.5 Titan may at any time, without notice to the Buyer and without prejudice to any other rights which it may have against the Buyer, terminate any contract connected with the goods and the bailment referred to in paragraph 1.3.3, and enter upon any premises owned or occupied by the Buyer where Titan reasonably believes the Goods may be stored, repossess the goods without liability for any damaged caused, and subsequently dispose of the goods at Titan's discretion if:
(a) The Debts are not paid in accordance with these Terms and Conditions and any other contract or arrangement between Titan and the Buyer
(b) Titan receives notice of or reasonably believes that:
(i) A third person may attempt to levy execution against the goods;
(ii) The Buyer is insolvent (within the meaning of the Corporations Law) or bankrupt;
(iii) The Buyer has entered into any arrangement or composition with its creditors, gone into liquidation, or has appointed a receiver, a receiver and manager or administrator.
7.3.6 If after repossession under this clause, Titan sells the goods, Titan shall account to Buyer for any excess of the proceeds of sale (less expenses of repossession and sale) over the costs of the goods.
7.3.7 If any goods belonging to Titan are disposed of by the Buyer or an insurance claim is made in respect of them, Titan shall be entitled to trace the sale or insurance proceeds, which proceeds shall be held by Buyer in a separate bank account on trust for Titan.
8. Delivery Delay & Force Majeure
8.1 Every effort will be made to carry out any contract, however Titan shall not be liable for any costs, expenses, losses, damages or demands made or suffered by any persons whomsoever that arising out of any failure to deliver or any delay in delivery caused or contributed to by any circumstances of whatever nature outside Titan’s control.
8.2 Failure by Titan to deliver the Goods by reason of any circumstances of whatever nature including but not limited to fire, flood, explosion, strike, lock-out or other industrial act or dispute, the breakdown of or accident to plant, unavailability or shortage of raw material, labour, power supplies or transport facilities, a shortage of product, an Act of God, or any order or direction of any local, state of federal government or governmental authority or instrumentality shall not constitute a breach of these terms and conditions or involve Titan in any liability.
9.1 All orders cannot be cancelled once placed without Titan’s consent in writing. Where Titan consents to cancellation of an order, any deposit paid for the order shall be forfeited; the Buyer shall also be liable to pay for all costs, expenses and losses incurred by Titan as a result of such cancellation (as reasonably determined by Titan).
9.2 Titan will make every effort to deliver any goods ordered, however Titan reserves the right to cancel a contract, or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Buyer. On giving such notice Titan shall repay to the Buyer any sums paid in respect of the Price. Titan shall not be liable for any loss or damage whatsoever arising from such cancellation.
10. Intellectual Property
10.1 The Buyer warrants that all designs or instructions provided to Titan will not infringe any patent, registered design or trademark. The Buyer shall indemnify Titan against any liabilities, damages, losses, costs and expenses arising out of any infringement of any third party intellectual property rights that Titan may print or reproduce upon the said goods at the Buyer’s request.
10.2 Where Titan has designed or drawn goods for the buyer, the intellectual properties in those designs or drawings remain the property of Titan. The buyer is only permitted to use such intellectual property with Titan’s consent, unless the buyer purchases such intellectual property from Titan and consideration has been paid.
11. General Lien
11.1 Titan shall be entitled to exercise a general lien over all items in its possession belonging to the Buyer until the Buyer has paid in full for all Goods supplied by Titan and items procured by Titan on behalf of the Buyer. Titan may in its sole discretion sell any item that is subject to the said lien, provided that Titan shall pay to the Buyer any surplus proceeds that are realised by it from a sale of said items after discharging in full all monies outstanding to Titan in respect of Goods that have being delivered by it to the Buyer.
12.1 Any notice required or permitted to be served or delivered pursuant to the Agreement may be served or delivered by hand delivering, posting, email, or facsimile transmission to the address, electronic address or number (as the case may be) specified in the Purchase Details. Any notice so served delivered on a day that is not a Business Day will be deemed served or delivered on the next Business Day.
13. Privacy Act 1988
13.1 The Buyer agrees and consents for Titan to obtain from a credit reporting agency a report containing personal credit information about the Buyer in relation to credit provided by Titan, and consent that Titan may give or exchange information about the Buyer with a credit reporting agency, or those credit providers named as trade referees by the Buyer or named in a consumer credit report issued by a credit reporting agency for any or all of the following purposes:
(a) to assess Buyer’s application;
(b) to notify other credit providers of a default by the Buyer;
(c) to exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers;
(d) to assess the credit worthiness of Buyer;
(e) to allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.
13.2 The Buyer consents to Titan being given a consumer credit report to collect overdue payment on commercial credit.
13.3 The Buyer agrees and consents that personal credit information provided may be used and retained by Titan for the purposes agreed between the Buyer and Titan or required by law from time to time, including but not limited to the following:
(a) provision and marketing of Goods;
(b) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to provision of Goods;
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Buyer;
(d) enabling the daily operation of the Buyer’s account and/or the collection of amounts outstanding in the Buyer’s account in relation to the Goods.
14. PERSONAL PROPERTY SECURITIES ACT 2009
14.1 The Buyer acknowledges that these Terms and Conditions constitute a security agreement for the purposes of section 20 of the Personal Property Securities Act 2009 (“PPSA”) and that a security interest exists in all goods (and their proceeds) previously supplied by Titan to the Buyer (if any) and in all in future goods (and their proceeds).
14.2 The Buyer will execute documents and do such further acts as may be required by Titan to register the security interest granted to Titan under these Terms and Conditions under the PPSA.
14.3 Until ownership of the goods passes, the Buyer waives its rights under the following provisions of Chapter 4 of the PPSA:
a) to receive a notice of intention of removal of an accession (section 95);
b) to receive a notice that Titan decides to enforce its security interest in accordance with land law (section 118);
c) to receive notice on enforcement of security in liquid assets (section 120),
d) to receive a notice on enforcement action against liquid assets (section 121(4),
e) to receive a notice to seize collateral (section 123),
f) to receive notice on enforcement of security interests in liquid assets (section 125),
g) to receive a notice of disposal of goods by Titan purchasing the goods (section 129);
h) to receive a notice to dispose of goods (section 130);
i) to receive a statement of account following disposal of goods (section 132(2))
j) to receive a statement of account if no disposal of goods for each 6 month period (section 132(4));
k) to receive notice of any proposal of Titan to retain goods (section 135(2));
l) to object to any proposal of Titan to either retain or dispose of goods (section 137(2));
m) to redeem the goods (section 142);
n) to reinstate the security agreement (section 143);
o) to receive a notice of any verification statement (see section 157(1) and section 157(3);
14.4 The Buyer further agrees that where Titan has rights in addition to those under Chapter 4 of the PPSA, those rights will continue to apply.
14.5 Until ownership of the goods passes, the Buyer must not give to Titan a written demand or allow any other person to give Titan a written demand requiring Titan to register a financing change statement under the PPSA or enter into or allow any other person to enter into the register of personal property securities a financing change statement under the PPSA.
14.6 The Buyer acknowledges that it has received value as at the date of first delivery of the goods and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to Titan under these Terms and Conditions.
14.7 The Buyer irrevocably grants to Titan the right to enter upon the Buyer’s property or premises, without notice, and without being in any way liable to the Buyer or to any third party, if Titan has cause to exercise any of Titan’s rights under section 123 and/or section 128 of the PPSA, and the Buyer shall indemnify Titan from any claims made by any third party as a result of such exercise.
15. SPECIAL CONDITIONS
The special conditions contained in the “Special Conditions Schedule” (as anmexed) form part of these trading terms and conditions.
PERSONAL / DIRECTORS GUARANTEE
IN CONSIDERATION of Titan Development International P/L and its successors and assigns (“the Seller”)
at the request of the Guarantor (as is now acknowledged) supplying and continuing to supply goods and/or services to THE BUYER,
I/WE UNCONDITIONALLY AND IRREVOCABLY:
1. GUARANTEE the due and punctual payment to the Seller of all moneys which are now owing to the Seller by the Buyer and all further sums of money from time to time owing to the Seller by the Buyer in respect of goods and services supplied or to be supplied by the Seller to the Buyer or any other liability of the Buyer to the Seller, and the due observance and performance by the Buyer of all its obligations contained or implied in any contract with the Seller. If for any reason the Buyer does not pay any amount owing to the Seller the Guarantor will immediately on demand pay the relevant amount to the Seller.
2. HOLD HARMLESS AND INDEMNIFY the Seller on demand as a separate obligation against any liability (including but not limited to damages costs losses and legal fees (as defined hereunder in paragraph b hereof)) incurred by or assessed against the Seller in connection with:
(a) the supply of goods and/or services to the Buyer; or
(b) the recovery of moneys owing to the Seller by the Buyer including the enforcement of this guarantee, and including but not limited to the Seller’s nominees costs of collection and legal costs calculated on a solicitor and own client basis; or
(c) moneys paid by the Seller with the Buyer’s consent in settlement of a dispute that arises or results from a dispute between, the Seller, the Buyer, and a third party or any combination thereof, over the supply of goods and/or services by the Seller to the Buyer.
I/WE FURTHER ACKNOWLEDGE AND AGREE THAT
3. This Guarantee and Indemnity shall constitute an unconditional and continuing guarantee and indemnity and accordingly shall be irrevocable and remain in full force and effect until the whole of moneys owing to the Seller by the Buyer and all obligations herein have been fully paid satisfied and performed.
4. No granting of credit, extension of further credit, or granting of time and no waiver, indulgence or neglect to sue on the Seller’s part (whether in respect of the Buyer or any one or more of any other guarantor(s) or otherwise) and no failure by any named guarantor to properly execute this Guarantee and Indemnity shall impair or limit the liability under this Guarantee and Indemnity of any guarantor. Without affecting the Buyer’s obligations to the Seller, each guarantor shall be a principal debtor and liable to the Seller accordingly.
5. If any payment received or recovered by the Seller is avoided by law such payment shall be deemed not to have discharged the liability of the Guarantor, and the Guarantor and the seller shall each be restored to the position in which they would have been had no such payment been made.
6. This Guarantee and Indemnity shall bind each of the signatories notwithstanding that one or more of the persons named as a “Guarantor” may never execute this Guarantee and Indemnity.
7. The term “Guarantor” whenever used in this Guarantee and Indemnity shall, if there is more than one person named as guarantor, mean and refer to each of them individually and both of them together unless the context otherwise requires, and the obligations and agreements on the part of the guarantor contained in this guarantee and Indemnity shall bind them jointly and severally.
8. I/We have been advised to obtain independent legal advice before executing this Guarantee but have either waived or declined to take independent legal advice. I/we understand that I/we am/are liable for all amounts owing (both now and in the future) by the Buyer to the Seller.
9. The above information is to be used by the Seller for all purposes in connection with the Seller considering this guarantee and the subsequent enforcement of the same.
10. I/we irrevocably authorise the Seller to obtain from any person or company any information which the Seller may require for credit reference purposes. I/We further irrevocably authorise the Seller to provide to any third party, in response to credit references and enquiries about me/us or by way of information exchange with credit reference agencies, details of this Guarantee and Indemnity and any subsequent dealings that I/we may have with the Seller as a result of this guarantee being actioned by the Seller.