APPLICATION FOR CREDIT
TERMS AND CONDITIONS
1.1 “Grip Services” means any legal entity of Grip Services Pty. Ltd. ACN 104 127 997 trading as Grip Services ABN 59 104 127 997 and any current or future holding company, subsidiary, related company or successors and assigns of these companies or any person acting on behalf of and with the authority of the Grip Services Pty. Ltd..
1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or services supplied by Grip Services to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between ARV and the Customer in accordance with clause 5 below.
1.5 “Website” means www.gripservices.com.au including any subdomains therefore any other websites through which Grip Services makes its services available.
1.6 “Terms” means these Terms and Conditions for Credit which constitute the legally binding Agreement between Grip Services and the Customer for the provision of Grip Services’ Services.
2.1 The Customer is taken to have accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods from Grip Services.
3. Change in Control
3.1 The Customer shall give Grip Services fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by Grip Services as a result of the Customer’s failure to comply with this clause.
4. Price and Payment
4.1 At Grip Services’ sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Grip Services to the Customer;
(b) the Price as at the date of delivery of the Goods according to Grip Services’ current price list; or
(c) Grip Services’ quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 Grip Services reserves the right to change the Price if a variation to Grip Services’ quotation is requested.
4.3 Grip Services may, in its absolute discretion, require the Customer pay a non-refundable deposit.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Grip Services, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments/progress payments in accordance with Grip Services’ payment schedule;
(d) thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Grip Services.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking or by any other method as agreed to between the Customer and Grip Services from time to time.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Grip Services an amount equal to any GST Grip Services must pay for any supply by Grip Services under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
5.2 The Customer acknowledges and agree that Grip Services does not warrant, represent, authorise or endorse the reliability, accuracy or completeness of any advertised Goods.
5.3 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Grip Services is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Grip Services is sufficient evidence of Grip Services’ rights to receive the insurance proceeds without the need for any person dealing with Grip Services to make further enquiries.
5.4 If the Customer requests Grip Services to deliver the Goods and leave the Goods outside Grip Services’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
6. Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at Grip Services’ address; or
(b) Grip Services (or Grip Services’ nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
6.2 At Grip Services’ sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
6.3 The Customer must take delivery by receipt or collection 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 Grip Services shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.4 Grip Services may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.5 Any time or date given by Grip Services to the Customer is an estimate only, and Grip Services will not be liable for any disruptions to delivery due to unavoidable circumstances, including but not limited to, transport breakdowns, employee strikes and natural disasters. The Customer must still accept delivery of the Goods even if late and Grip Services will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
6.6 Due to Grip Services free delivery policy, Grip Services holds the right not to accept an order which is not of a substantial value to cover any associated freight costs.
7.1 Grip Services and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Grip Services all amounts owing to Grip Services; and
(b) the Customer has met all of its other obligations to Grip Services.
7.2 Receipt by Grip Services 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.
7.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 7.1 that the Customer is only a bailee of the Goods and must return the Goods to Grip Services on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Grip Services and must pay to Grip Services the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for Grip Services and must pay or deliver the proceeds to Grip Services on demand;
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Grip Services and must sell, dispose of or return the resulting product to Grip Services as it so directs;
(e) the Customer irrevocably authorises Grip Services to enter any premises where Grip Services believes the Goods are kept and recover possession of the Goods;
(f) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Grip Services;
(g) Grip Services may recover possession of any Goods in transit whether or not delivery has occurred; and
(h) Grip Services may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
8. Security and Charge
8.1 In consideration of Grip Services agreeing to supply the Goods to the Customer, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
8.2 The Customer indemnifies Grip Services from and against all Grip Services’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Grip Services’ rights under this clause.
8.3 The Customer irrevocably appoints Grip Services and each director of Grip Services as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 8 including, but not limited to, signing any document on the Customer’s behalf.
9. Personal Property Securities Act 2009 (“PPSA”)
9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
9.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by Grip Services to the Customer.
9.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Grip Services may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii);
(b) indemnify, and upon demand reimburse, Grip Services for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Grip Services;
(d) not 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 Grip Services;
(e) immediately advise Grip Services 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.
9.4 Grip Services and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
9.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by Grip Services, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 The Customer must unconditionally ratify any actions taken by Grip Services pursuant to this clause 10.
9.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
10. Intellectual Property
10.1 Where Grip Services has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Grip Services.
10.2 The Customer warrants that all designs, specifications or instructions given to Grip Services will not cause Grip Services to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Grip Services against any action taken by a third party against Grip Services in respect of any such infringement.
10.3 The Customer agrees that Grip Services may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Grip Services has created for the Customer.
11. Defects, Warranties and Returns, Competition and Consumer Act 2010 (“CCA”)
11.1 The Customer must inspect the Goods on delivery and must within three (3) business days of delivery notify Grip Services in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. Upon such notification the Customer must allow Grip Services to inspect the Goods.
11.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
11.3 Grip Services acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
11.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Grip Services makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Grip Services’ liability in respect of these warranties is limited to the fullest extent permitted by law.
11.5 If the Customer is a consumer within the meaning of the CCA, Grip Services’ liability is limited to the extent permitted by section 64A.
11.6 If Grip Services is required to replace the Goods under this clause or the CCA, but is unable to do so, Grip Services may refund any money the Customer has paid for the Goods.
11.7 If the Customer is not a consumer within the meaning of the CCA, Grip Services’ liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by Grip Services at Grip Services’ sole discretion;
(b) limited to any warranty to which Grip Services is entitled, if Grip Services did not manufacture the Goods;
(c) otherwise negated absolutely.
11.8 Subject to this clause 11.1, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 11.1; and
(b) Grip Services has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
11.9 Notwithstanding clauses 11.1 to 11.8 but subject to the CCA, Grip Services shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by Grip Services;
(e) fair wear and tear, any accident, or act of God.
11.10 In the case of second hand Goods, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by Grip Services as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that Grip Services has agreed to provide the Customer with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 11.10.
11.11 Grip Services may in its absolute discretion accept non-defective Goods for return in which case Grip Services may require the Customer to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
11.12 Notwithstanding anything contained in this clause if Grip Services is required by a law to accept a return then Grip Services will only accept a return on the conditions imposed by that law.
12. Default and Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of 10% per annum after as well as before any judgment.
12.2 If the Customer owes Grip Services any money the Customer shall indemnify Grip Services from and against all costs and disbursements incurred by Grip Services in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Grip Services’ collection agency costs, and bank dishonour fees).
12.3 Without prejudice to any other remedies Grip Services may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Grip Services may suspend or terminate the supply of Goods to the Customer. Grip Services will not be liable to the Customer for any loss or damage the Customer suffers because Grip Services has exercised its rights under this clause.
12.4 Without prejudice to Grip Services’ other remedies at law Grip Services shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Grip Services shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Grip Services becomes overdue, or in Grip Services’ opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors (other than as specified in the amendments to the Corporations Act 2001 (Cth) enacted by Part 2 of the Treasury Law Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth)); or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
13.1 Grip Services may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Grip Services shall repay to the Customer any money paid by the Customer for the Goods. Grip Services shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 If the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Grip Services as a direct result of the cancellation (including, but not limited to, any loss of profits).
13.3 Cancellation of orders for Goods made to the Customer’s specifications, or for items not contained on the stock list, will not be accepted once production has commenced, or an order has been placed.
15. Unpaid Seller’s Rights
15.1 Where the Customer has left any item with Grip Services for repair, modification, exchange or for Grip Services to perform any other service in relation to the item and Grip Services has not received or been tendered the whole of any moneys owing to it by the Customer, Grip Services shall have, until all moneys owing to Grip Services are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
15.2 The lien of Grip Services shall continue despite the commencement of proceedings, or judgment for any moneys owing to Grip Services having been obtained against the Customer.
16.1 These terms and conditions and any contract to which they apply shall be governed by the laws of the state New South Wales and each party submits to the non-exclusive jurisdiction of the courts in the State of New South Wales.
16.2 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
16.3 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
16.4 The Customer agrees that Grip Services may amend these terms and conditions at any time. If Grip Services makes a change to these terms and conditions, then that change will take effect from the date on which Grip Services notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for Grip Services to provide Goods to the Customer.
16.5 The failure by Grip Services to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Grip Services’ right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.6 Subject to clause 11, Grip Services shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Grip Services of these terms and conditions (alternatively Grip Services’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
16.7 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Grip Services nor to withhold payment of any invoice because part of that invoice is in dispute.
16.8 Grip Services may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
16.9 These terms and conditions shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Grip Services.