Emroy Creative Group

ACN 603 143 326 | ABN  42 603 143 326

Standard Contract Terms and Conditions

Updated 1 January 2018

1. Definitions

a. Customer means a Customer and/or any agent or assignors of the Customer;
b. Company means Emroy Creative Group and/or employees, authorised agents and permitted assigns;
c. Commencement Date is the date entered as the commencement date in the application.
d. Default means failure to comply with the terms and conditions of this Agreement.
e. Goods includes a variety of food items, catering and hospitality equipment and includes Services incidental to the supply of Goods. The Goods shall be
described on the invoices/quotation/order form as provided by the Company to the Customer;
f. Guarantor means a person who agrees to be liable for the debts of the Customer;
g. Monthly service fee means the amount agreed between the parties and recorded on the Application Form to be paid monthly for the duration of the Term of the Agreement;
h. PPSA means the Personal Properties Security Act 2009 (Cth)
i. PPSA Property means all of the Grantor’s present and after-acquired property
in which the Grantor can be a grantor of a PPSA Security Interest including property
in which the Grantor has, or may in the future have, rights or the power to transfer rights;
i. Proceeds; and
ii. PPSA retention of title property
j. PPSR means the Personal Properties Security Register;
k. Price means the costs of the good as at the date of this Agreement;
l. Services includes any incidental supply of Goods and any advice or recommendations incidental to the Goods.

2. Acceptance of Terms and Conditions

a. By entering into this Agreement, the Company has agreed to provide and be responsible for the provision of Goods and Services, as requested by the Customer.
b. Receipt of instructions by the Company from the Customer for the supply of and/or acceptance of Goods/Services is deemed acceptance of the terms and conditions herein on the part of the Customer.
c. Customers to this Agreement shall be jointly and severally liable for all payments of the Price.
d. The Customer shall give the Company not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or details including changes to:
i. The Customers Address;
ii. The Customers facsimile number;
iii. The Customers Business Practice; or
iv. The incorporated status of the company;
The Customer shall be liable for any loss incurred by the Company due to the failure of the Customer to comply with this Clause.
e. These terms and conditions, having been accepted, cannot be rescinded other than as provided for within these terms and conditions and are irrevocable unless by written Agreement between the Customer and the Company.
f. The failure of the Company to enforce its rights against the Customer under this Agreement shall not be considered a waiver of their rights nor shall it affect any subsequent rights of enforcement.

3. Authority

The Customer hereby acknowledges that the Company’s agents, representatives or employees are NOT authorised to make any representations, statements, assertions or Agreements not expressed by the Company’s Managing Director in writing. The Company is not bound by any such unauthorised statements.

4. Price and Payment

a. The price will be the price agreed upon and current as at the time that the Customer places the order with the Company.
b. The Company may alter its prices at any time throughout the period of the Agreement and is not required to provide notice to the Customer.
c. Time for payment of any invoices shall be of the essence and must be paid pursuant to the terms stated on the invoice or to the Credit Terms designated on the Application Form and current at the date of issue. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.
d. Payment may be made by way of cheque, or by credit card (Visa or Mastercard) or by direct credit to the Bank Account designated on the Invoice or by any other mean as agreed to between the Customer and the Company.
e. The Company may provide to the Customer at the sole discretion of the Company a volume discount on the Price. The volume discount will apply to a Customer dependant on the trade volume base and will be at the rate determined solely by the Company. The volume discount may be reviewed, varied or removed at any time by the Company without notice to the Customer.
f. The company may provide to the Customer a discount rate on the Price in circumstances where the Customer makes payment of the Price within the payment terms pursuant to the terms stated on the invoice. The Company will provide the discount rate in writing to the Customer and the Customer does not have any entitlement to the discount rate until receiving written notice from the Company. For a Customer to be eligible for consideration for the discount rate the Price must be paid by way of direct deposit. The discount rate may be reviewed, varied or removed at any time by the Company without notice to the Customer.
g. GST and all other taxes and duties that may be applicable shall be stated on the invoice and added to the Price except when they are expressly included
in the Price.

5. Interest

The Company reserves its rights to charge the Customer interest and administration fees on overdue payments that shall accrue where invoices become due and payable. Interest shall be calculated at 2% per calendar month or part thereof.

6. Personal Property Securities Act

a. In this clause all terms have the meaning given to them in the PPSA.
b. In this clause Property includes a variety of food items, catering and hospitality, equipment and includes Services relating thereto.
c. This clause considers Property be to PPSA Retention of Title Property in accordance with s51F of the Corporations Act 2001 (Cth);
d. If the Company grants credit terms to the Customer, then to secure the punctual payment of all amounts owed by the Customer to the Company, the Customer grants to the Company:
i. A Security Interest over all present and after-acquired property of the Customer in relation to which the Customer can be grantor of a security interest under the PPSA; and
ii. a Security Interest over all Property (including any proceeds of that Property) supplied on retention of title terms to the Customer by the Company pursuant to the terms of this Agreement.
e. The Customer acknowledges that this Agreement: i. Constitutes a security agreement;
ii. Creates a security interest in all Goods previously supplied by the Company to the Customer; and
iii. Creates a security interest in all Goods that will be supplied in the future by the Company to the Customer.
f. The Customer agrees to promptly sign any further documents and/ or provide any further information which the Company may reasonable require to:
i. register a financing statement or financing change statement in relation to a security interest on the PPSR;
ii. register any other document required to be registered by the PPSA; or
iii. correct a defect in a statement referred to in this clause.
g. The Customer agrees to indemnify, and upon demand reimburse the Company for all expenses incurred in registering a statement referred to in clause 6 of this Agreement on the PPSR or releasing any Goods charged thereby;
h. The Customer agrees not to register a financing change statement in respect of a security interest without the prior written consent of the Company.
i. The Customer agrees not to register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Company.
j. The Customer agrees to immediately advise the Company of any material change in its business practices of selling the Goods which would result in a
change in the nature of proceeds derived from such sales.
k. The Company and the Customer agree to expressly exclude the operation of the following provisions of the PPSA from this Agreement:
i. Section 96;
ii. Section 115; and
iii. Section 125 of the PPSA.
l. The Customer waives its rights to receive notices under:
i. Section 95;
ii. Section 118:
iii. Section 121(4);
iv. Section 130;
v. Section 132(3)(d); and
vi. Section 132(4) of the PPSA.
m. The Customer waives its right to receive a verification statement under section 157 of the PPSA.
n. The Customer waives its rights as a grantor/ debtor under:
i. Section 142; and
ii. Section 143 of the PPSA.
o. The Customer agrees to unconditionally ratify an action taken by the Company under this section.

7. Risk

a. All risk shall pass to the Customer upon receipt of the Goods by the delivery carrier, or upon receipt of the Goods by the Customer, whichever is earlier.
b. Risk shall pass at the time identified in Clause 7(a), notwithstanding where the Company retains title to the Goods.

8. Title

a. Ownership of the Goods shall not pass from the Company to the Customer until:
i. Full and complete payment has been received; and
ii. Any other obligations under this Agreement have been fulfilled by the Customer.
b. Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Company’s’ ownership or rights in respect of the Goods shall continue.
c. It is further agreed that:
i. where practicable the Goods shall be kept separate and identifiable until the Company shall have received payment and all other obligations of the Customer are met; and
ii. until such time as ownership of the Goods shall pass from the Company to the Customer the Company may give notice in writing to the Customer to return the Goods or any of them to the Company. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
d. The Company shall have the right of stopping the Goods in transit whether or not delivery has been made; and
e. If the Customer fails to return the Goods to the Company then the Company or the Companys’ agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
f. the Customer is only a bailee of the Goods and until such time as the Company has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to the Company for the Goods, on trust for the Company; and
g. the Customer shall not deal with the money of the Company in any way which may be adverse to the Company; and
h. the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Company; and
i. The Company can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the
Customer; and
j. Until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that the Company will be the owner of the end products.

9. Delivery of Goods

a. The Company shall give the Customer an estimation of the delivery times only.
b. At the Companys’ sole discretion, the costs of delivery are in addition to the Price or for the Customer’s account.
c. The delivery times made known to the Customer are estimates only and the Company will not be liable for late delivery or non-delivery of the Goods.
d. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Company shall be entitled to charge a reasonable fee for re-delivery.
e. The Customer must examine the Goods delivered at the time of delivery and sign the delivery docket to accept the Goods delivered. The Company will not be liable to the Customer for Goods that have been examined and accepted by the Customer or for shortages of Goods.
f. Despite any negligence on the part of the Company, or its agents, the Company will not be liable for any loss, damage, delay, cost or expense occasioned to the Customer or any third parties arising from late or non-delivery or late installation of the Goods or Services caused by the delivery carrier, or its agents.

10. Customer’s Warranties and Indemnities

a. The Customer authorises the Company:
i. To the extent permitted by law, to collect, retain and use any information about the Customer; and
ii. To disclose any information obtained by any person for the purposes of delivering Goods and/or Services.
b. The Customer indemnifies the Company:
i. Against any penalty or liability incurred by the Company for any breach by the Customer of these terms and conditions;
ii. Against any claim from the Customer’s sale or use of the Goods and the Customer releases and holds the Company harmless in all respects relating to sale or use of the Goods; and
iii. Against all actions, claims, demands, losses, damages, costs and expenses which the Company may sustain or incur or for which the Company may become liable whether during or after the term of this Agreement, by reason of any act or omission or negligence by the Company and its respective employees or any other authorised person.

11. Defective Goods/Services

a. The Customer will, within 24 hours of delivery of the Goods, notify the Company, in writing, of any defects.
b. Upon it notifying the Company of such defect, the Customer, within a reasonable time, will afford the Company an opportunity to inquire in regards to the defect.
c. Subsequent to the Company’s inspection of the alleged defective Goods/Services, the Company will notify the Customer in writing whether the Customer is entitled to reject the Goods as delivered. This does not constitute cancellation of the Agreement.
d. In the event that the Customer fails to comply with Clauses 11(a), 11(b) and 11(c) of this Agreement , the Goods shall be deemed free from any defect
or damage.
e. In the event that the Company agrees, in writing, that the Customer is entitled to reject the Goods provided, the Company’s liability is limited to either replacing or rectifying the Goods or Services provided that the Customer has complied with Clauses 11(a) and 11(b) of this Agreement.
f. For the purposes of clarity the Company will not accept the return of Goods by the Customer and the Customer acknowledges that the Company is not
required to accept the return of Goods.

12. Company’s Warranty

a. The Company warrants that the Goods provided will be fit and proper for the purposes intended.
b. The Company shall not be liable for any defect or damage in circumstances where the defect or damage is caused by storage under unsuitable
circumstances for the nature of the Goods.
c. The Company is not liable to compensate the Customer for any losses incurred as a result of delay in repairing the defect or damage or in assessing the Customer’s claim.

13. Default

a. The Customer agrees to pay any and all costs, including but not limited to legal costs, administration fees, disbursements and collection commissions,
incurred by the Company, on an indemnity basis, for any action taken by the Company for the default of the Customer of payment of any invoice or
for any of the terms and conditions of this Agreement.
b. The Company reserves the right to withhold all action on the Customer’s behalf or the supply of Goods to the Customer if, at any time, the Customer
is in breach of any obligation contained herein, including those relating to payment. The Company will not be liable to the Customer for any loss or
damage suffered as a result of the Company exercising its rights pursuant to this clause 13.
c. Upon the occurrence of any of the following:
i. The Customer failing to satisfy any payment owing to the Company; or
ii. In the Company’s opinion, the Customer will be unable to make payments when they fall due; or
iii. The Customer becomes insolvent; or
iv. The Customer proposes or enters into an arrangement with creditors or makes an assignment for the benefit of its creditors; or
v. In respect of the Customer, a receiver, manager, liquidator or other is appointed; then the Company may suspend the Customer’s supply of Goods and all outstanding payments will become immediately payable.

14. Security

Despite anything to the contrary contained herein or any other rights which the Company may have howsoever:
a. where the Customer is the owner of land, realty or any other asset capable of being charged, the Customer agrees to mortgage and/or charge all of its
interest in the said land, realty or any other asset to the Company or the Companys’ nominee to secure all amounts and other monetary obligations
payable under these terms and conditions. The Customer acknowledges and agrees that the Company (or the Companys’ nominee) shall be entitled
to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been
met.
b. should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer shall indemnify the
Company from and against all of the Companys’ costs and disbursements including legal costs on a solicitor and own client basis.
c. the Customer agrees to irrevocably nominate constitute and appoint the Company or the Companys’ nominee as the Customer’s true and lawful
attorney to perform all necessary acts to give effect to the provisions of this clause.

15. Miscellaneous

a. If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force.
b. The Company may alter the terms and conditions contained herein at any time by giving reasonable notice to the Customer of the change.
c. The Customer may not claim any set-off or counter claim against any payments due by it to the Company.
d. Any notice required to be provided to the Company under these terms and conditions will not have been taken to be served unless mailed to the
Company’s registered address by registered post.
e. The Company’s interests and rights in respect of this Agreement are transferable.
f. This Agreement is governed by the laws of the State of New South Wales and the parties submit to the jurisdiction of the Courts of that State.
g. Neither party shall be liable for any act of war, strike, industrial action, fire, flood, drought, storm or other act of natural cause beyond the reasonable
control.
h. The company reserves the right to display all designed artwork and/or printed products for sales and marketing purposes.
i. Copyright does not transfer to the client for any designed artwork and/or printed material until full payment is received by the company.