Credit Terms

THE PARTIES AGREE:

1. Definitions

In these Credit Terms, unless inconsistent with the context or subject matter:

“Applicant” means applicant identified in the Credit Application;

“Credit Application” means the credit application annexed to these Credit Terms;

“Credit Limit” means the credit limit stated in Credit Application such other credit limit approved by the Supplier in writing;

“Credit Provider” has the meaning given in section 6G of the Privacy Act 1988 (Cth);

“Credit Terms” means these Credit Terms;  

“Supplier” means AUSTRAL FISHERIES PTY LTD (ACN 008 989 982);

“PPSA” means the Personal Property Securities Act 2009 (Cth) and its regulations as amended and in force from time to time;

“Products” means the products supplied by the Supplier in connection with this Agreement; and

“PPS Register” means the Personal Property Securities Register established under the PPSA.

Unless otherwise agreed by the parties:

1. the Supplier will issue a Tax Invoice for the fees for Products (as indicated in the Purchase Order) to the Applicant on dispatch of the Products to the Applicant or upon collection of the Products by the Applicant; and
2. the Applicant will pay the Supplier the amount stated on the Tax Invoice for the Products within 30 days of the date of the Tax Invoice.

3. Credit Limit

The Supplier is not obliged to provide any further Products under Purchase Orders to the Applicant once the Credit Limit has been reached. 

The Supplier may, at its option, provide further Products to the Applicant, where to do so will result in the Credit Limit being exceeded and the Applicant agrees that the Supplier is expressly authorised to provide those Products, and the Credit Application and Credit Terms will continue to apply in full to all monies owing.

The Supplier is under no obligation to advise the Applicant when the Credit Limit has been reached or exceeded. 

4. Right to refuse further credit or vary the credit limit

The Supplier may at any time, for any reason whatsoever:

1. vary the Credit Limit of the Applicant to increase or decrease the Credit Limit; or
2. refuse further credit to the Applicant, without any liability to the Applicant whatsoever.
3. The supplier shall inform the applicant or a credit variation and obtain acknowledgment of the variation from the applicant before it is applied.

5. Warranties

The Applicant warrants to the Supplier that as at the date of the Credit Application and for the duration of the Agreement:

1. the information contained in the Credit Application is true and correct and it has disclosed all relevant information to the Supplier to assess the credit-worthiness of the Applicant;
2. it has the legal right and power to enter into the Credit Application and Credit Terms;
3. the execution, delivery and performance of the Credit Application by the Applicant has been duly and validly authorised by all necessary corporate action on its part;
4. the Credit Application is a valid and binding Agreement on the Applicant, enforceable in accordance with these Credit Terms; and
5. it has the capacity to make payment in accordance with the Credit Application.

6. Personal Information

The Supplier is bound by the Australian Privacy Principles prescribed in the Privacy Act 1988 (Cth) in dealing with Personal Information provided by the Applicant.

7. No Assignment

The Applicant must not transfer or assign its rights under the Credit Application or the Credit Terms to anyone else, without the prior written consent of the Supplier, which may be granted or withheld by the Supplier in its sole discretion. The Applicant must provide any information the Supplier reasonably requires to consider whether to grant its consent to such assignment.

Any change in 50% or more of the shareholding of the Applicant will constitute a deemed assignment which requires the Supplier’s prior written consent in accordance with clause 7.1 (above).

The Applicant acknowledges and agrees that the Supplier may transfer, assign or otherwise dispose of its interest in the Credit Application upon giving written notice to the Applicant.

8. Personal Property Securities

The Applicant acknowledges and agrees that notwithstanding any other provision of the Credit Application or these Credit Terms:

1. the PPSA applies to any supply of Products by the Supplier to the Applicant;
2. the Products are used by the Applicant only for commercial purposes and are not used by the Applicant for personal, domestic or household purposes;
3. by agreeing to and/or accepting or adopting the Credit Application the Applicant grants to the Supplier:
   1. a purchase money security interest in the Products (on the basis that the Products are sold on retention of title terms); and
   2. a security interest over all present and after-acquired property of the Applicant (“Applicant’s Property”), to secure the Supplier’s interest in the Products and all monies owing or payable by the Applicant under the Credit Application and any other moneys payable by the Applicant to the Supplier from time to time on any account whatsoever. The Applicant agrees that the Supplier may apply any payments received from the Applicant as the Supplier sees fit, and notwithstanding any prior application, the Supplier may apply amounts received at the Supplier’s discretion.

4. if a purchase money security interest is not able to be claimed by the Supplier in respect of the Products for any reason, the Supplier will have a security interest in the Products;
5. the Applicant agrees that the Supplier’s security interest in Products and the Applicant’s Property covered by the Credit Application may be registered on the PPS Register and the Applicant agrees to do all things necessary and required by the Supplier to effect registration of the Supplier’s security interest on the PPS Register in order to give the Supplier’s security interest the best priority possible and anything else the Supplier requests the Applicant to do in connection with the PPSA without delay;
6. the Applicant warrants that all information provided by the Applicant to the Supplier, including but not limited to the Applicant’s details, including the entity, name, ACN or ABN and address set out in the Credit Application is correct in all respects. The Applicant must not change its name, address or other details set out in the Credit Application without providing the Supplier with at least 20 business days prior written notice;
7. the Applicant agrees that it will not grant a security interest or other encumbrance in the Products whether under the PPSA or any other law to a third party unless it has obtained the prior written consent of the Supplier, which the Supplier may refuse to provide or grant in its absolute and unfettered discretion. The Supplier may request, and the Applicant must provide any information that the Supplier requires, acting reasonably, in order to fully consider whether to grant its consent;
8. the Supplier’s security interest in the Products and the Applicant’s Property extends to any proceeds in all present and after acquired property including without limitation book debts and accounts receivable arising from the selling or hiring of the Products and/or the Applicant’s Property by the Applicant;
9. it has received value as at the date of first delivery of the Products and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to the Applicant under the Credit Application;
10. neither the Supplier nor the Applicant will disclose any information to any interested person unless required to do so under the PPSA;
11. the Applicant waives its right under the PPSA:
    1. to receive a copy of any verification statement, financing change statement, or any notice that the Supplier intends to sell the Products and/or the Applicant’s Property or to retain the Products and/or the Applicant’s Property on enforcement of the security interest granted to the Supplier under this Agreement or any other notice under the PPSA, unless the notice is required to be given by the PPSA and cannot be contracted out of;
    2. to object to a proposal by the Supplier to dispose of,purchase or retain the Products and/or the Applicant’s Property in satisfaction of any obligation owed by the Applicant to the Supplier;
    3. to receive a statement of account following the sale of the Products and/or the Applicant’s Property; or
    4. to redeem the Products and/or the Applicant’s Property.
12. it will not give (or allow any person to give) to the Supplier a written demand requiring the Supplier to register a financing change statement under the PPSA or enter into (or allow any other person to enter into) the PPS Register a financing change statement under the PPSA; and
13. a default under any other security agreement under which it has granted a security interest to any other party in respect of the Products is deemed to be a breach of this Agreement.

The parties agree that the Supplier is not required to respond to a request made under Section 275 of the PPSA and that neither party will disclose information of the kind set out in Section 275(1) of the PPSA. 

Further Supplies

The parties acknowledge and agree that any supply of Products of any kind by the Supplier to the Applicant which is not specifically set out in the Credit Application but for which the Supplier has or later issues a Tax Invoice or any other documentation to the Applicant is deemed to form part of the Agreement and Credit Application and is subject to the these Credit Terms.  

Enforcement

The enforcement provisions contained in the Credit Application and these Credit Terms are in addition to any rights available to the Supplier under the PPSA and apply to the maximum extent permitted by law.

Without limitation to clause 8.4(a) (above) and any other provision of this Agreement, section 125, 129(2), 142 and 143 of the PPSA are contracted out of. 

Power of Attorney

The Applicant irrevocably nominates constitutes and appoints the Supplier and/or its officers and/or its nominees severally to be the true and lawful attorneys of the Applicant on behalf of and in the name of the Applicant to do all things necessary and sign all such documents as may be necessary to deal with the Products in accordance with the enforcement provisions of the Credit Application, the PPSA or otherwise, if the Applicant is in default of the Credit Application or the Agreement.

Interpretation

A term used in this clause 8 is taken to have the meaning defined under the PPSA.

9. Termination

The Supplier may in its absolute discretion at any time, by written notice to the Applicant, immediately terminate the Credit Application upon giving written notice to the Applicant:

1. if the Applicant breaches the Agreement, the Credit Application and/ or the Credit Terms;
2. if the Applicant becomes insolvent;
3. if the Applicant commits an act of bankruptcy or is made bankrupt;
4. if the Applicant makes a composition or other arrangement with creditors;
5. if the Applicant assigns assets for the benefit of creditors generally;
6. being a company, if the Applicant enters into a deed of company arrangement or has a controller, administrator, receiver or receiver and manager appointed;
7. being a company, if the Applicant goes into liquidation; or
8. being a partnership, if the Applicant has a receiver or a receiver and manager appointed; or
9. if the Supplier, in its absolute discretion, suspects that one of the above events may occur in the future in respect of the Applicant.

Upon termination of the Credit Application and Credit Terms, all amounts payable by the Applicant to the Supplier in respect of any Purchase Order shall become immediately due and payable.

10. General

The Supplier may vary the terms of the Credit Application and Credit Terms at any time and will notify the Applicant of the variation by providing 30 days written notice to the Applicant at the Applicant’s Address for Service. The variation will not apply retrospectively to any existing Purchase Orders already placed.

Any notice required to be given in accordance with the Credit Application and Credit Terms is deemed to be sufficiently given if provided to the Applicant’s Address for Service or the Supplier’s Address for Service (as the case may be) and, if it is:

1. delivered by hand, upon which the time of giving notice will be the time of delivery;
2. sent by pre-paid post, upon which the time of giving notice will be two (2) business days after the date of postage;
3. sent by email, upon which the time of giving notice will be the time shown on the email generated by the sending machine identifying proof of transmission to the designated email address.

The following will constitute proof of receipt:

1. if sent by registered post, proof of posting by registered post;
2. if sent by email, proof of sending.

The Credit Application and Credit Terms are governed by the laws of Western Australia and the Commonwealth of Australia which are in force in Western Australia.

The parties submit to the jurisdiction of the Courts of Western Australia, relevant Federal Courts and Courts competent to hear appeals from them.

Subject to the terms of the Agreement, the Credit Application and Credit Terms contain the entire understanding and agreement between the parties as to the subject matter of the Credit Application and Credit Terms.

No oral explanation or information provided by a party to another affects the meaning or interpretation of the Credit Application and Credit Terms or constitutes any collateral agreement, warranty or understanding.

No waiver or amendment of a provision of the Credit Application and Credit Terms is binding unless made in writing and signed by both parties.

The parties must execute and deliver all documents and must do all things as are necessary for the complete performance of their respective obligations under the Credit Application and Credit Terms.

If a provision of the Credit Application and Credit Terms is void or unenforceable it must be severed from the Credit Application and Credit Terms and the provisions that are not void or unenforceable are unaffected by the severance.

The rights and remedies of a party to the Credit Application and Credit Terms are in addition to the rights or remedies conferred on the party at law or in equity.

The Credit Application and Credit Terms may be executed in any number of counterparts and when executed communication of the fact of execution to the other parties may be made by sending evidence of execution by electronic communications including email.

Where the Credit Application and Credit Terms are executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.

The contra proferentem rule and other rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.

Time is in all cases and in every respect of the essence of this Credit Application and Credit Terms.

11. Guarantee & Indemnity

In consideration of the Supplier, at the request of the Guarantor, entering into this Credit Application with the Applicant, the Guarantor covenants and agrees with the Supplier that:

1. Notwithstanding that as between the Guarantor and the Applicant the Guarantor may be a surety only, as between the Guarantor and the Supplier the Guarantor is a principal debtor.
2. The Guarantor will be liable jointly and severally with the Applicant (and with each other Guarantor if there is more than one Guarantor) for the due and punctual payment of all moneys to be paid by the Applicant under this Credit Application and the Agreement and for the due performance and observance by the Applicant of the Credit Terms and the Agreement and such liability will not be reduced or affected by the death insolvency liquidation or dissolution of the Applicant or the Guarantor or any of them.
3. The Guarantor indemnifies the Supplier from and against all loss, damage costs (including all costs payable by the Supplier to a solicitor on a solicitor and own client basis) and expenses which the Supplier may suffer or incur in consequence of any breach or non-observance of the Credit Terms or the Agreement by the Applicant and the Guarantor agrees that the Guarantor will remain liable to the Supplier under this indemnity notwithstanding as a consequence of any breach or non-observance the Supplier has exercised any of its rights under this Credit Application or the Agreement.
4. On any default or failure by the Applicant to observe and perform any of the Credit Terms or the terms of the Agreement the Guarantor will immediately (without the need for any demand to be made) pay all moneys and make good to the Supplier all damages costs (including all costs payable by the Supplier to a solicitor on a solicitor and own client basis) and expenses sustained or incurred by the Supplier by reason of or in consequence of any breach or non-observance by the Applicant and the Guarantor will also pay to the Supplier interest at the rate of 15% per annum accrued daily from the due date for payment until the date of payment.
5. The liability of the Guarantor under this guarantee and indemnity will not be affected by the granting of time or any other indulgence to the Applicant or by any compromise abandonment waiver variation or by any other thing which under the law relating to sureties would or might but for this provision release the Guarantor in whole or in part from its obligations under this guarantee and indemnity.
6. To the fullest extent permitted by law the Guarantor hereby waives such of its rights as surety or indemnifier (legal equitable statutory or otherwise) as may at any time be inconsistent with any of the provisions of this guarantee and indemnity.
7. The Guarantor hereby:
   1. charges all of its legal and beneficial interest in all of its property, including but not limited to its real property and personal property (as that term is defined in the PPSA), including property acquired after the date of this Agreement, in favour of the Supplier, whether or not demand has been made on the Applicant by the Supplier;
   2. agrees to execute all documents and do all things necessary, upon request by the Supplier, to register the Supplier’s interest in the Guarantor’s property as granted by this clause 11, whether by a mortgage over the Guarantor’s real property or by registration of a security interest on the PPS Register or otherwise;
   3. irrevocably appoints the Supplier and/or its officers and/or its nominees severally to be the true and lawful attorneys of the Guarantor on behalf of and in the name of the Guarantor to do all things necessary to register the Supplier’s security over the Guarantor’s property granted by this clause 11.
8. If the charges created by sub-clause 11.1(g)(i) are or become void or unenforceable, sub-clause 11.1(g)(i) may be severed from this Agreement and the Agreement shall continue in full force and effect and the severance shall not effect on its validity and the Guarantor will not be released from its obligations in whole or in part and the Supplier’s rights and remedies against the Guarantor shall not be effected by such severance.
9. The parties agree that clauses 8.1(k)(i), 8.1(k)(ii) and 8.2 apply to the security granted by the Guarantor to the Supplier under this clause 11, however any reference to the Applicant is deemed to be a reference to the Guarantor and the Applicant’s Property is deemed to be a reference to the Guarantor’s property secured under this clause 11.
10. The enforceability of this guarantee and indemnity against the Guarantor is not conditional, contingent or dependent in any way upon the validity or enforceability of this guarantee and indemnity against any other person or execution of this Agreement or this guarantee and indemnity by any other person.
11. The Guarantor does not execute this guarantee and indemnity as a result of, or, by reason of any promise, representation, statement, information or inducement of any nature or kind given or offered to the Guarantor by the Supplier, or, on the Supplier’s behalf, whether in answer to any enquiry by, or, on behalf of the Guarantor or not. The Supplier was not prior to the execution of this guarantee and indemnity by the Guarantor, and is not subsequently, under any duty to disclose to the Guarantor, or, to do or execute any act matter or thing, relating to the affairs of the Applicant or its transactions with the Supplier.
12. In the event of the invalidity of any part or provision of this guarantee and indemnity that invalidity will not affect the validity or the enforceability of any other part or provision of this guarantee and indemnity. If a provision of this guarantee and indemnity is void or unenforceable, it must be severed from the guarantee and indemnity and the provisions that are not void or unenforceable are unaffected by the severance.
13. All notices or demands to be given to, made or served upon the Guarantor will be deemed to be duly given to, made or served on the Guarantor if:
    • i) it is signed by any officer, authorised employee, agent or solicitor of the Supplier; and
    • ii) it is delivered:
      • A. to any Guarantor personally; or
      • B. left at the last known place of business or abode of any Guarantor; or
      • C. if an address is noted in the schedule, left at or sent to the Guarantor through the post in an ordinary prepaid envelope addressed to that Guarantor at the address. A notice or demand which is posted will be deemed to have been served on the Guarantor on the second business day following the date of posting.
14. If there is more than one Guarantor, any notice or demand given to, made or served upon a Guarantor is deemed to be served on each of them.
15. The Guarantor agrees that its liability to the Supplier is unlimited notwithstanding that the Supplier supplies the Applicant with credit in excess of the Credit Limit.
16. The Guarantor acknowledges and agrees that the Guarantor may receive Personal Information of another person in the course of business with the Supplier and agrees that any such Personal Information must only be used, disclosed or otherwise dealt with in accordance with the Australian Privacy Principles.

For any questions and notices, please contact us at:

Austral Fisheries Pty Ltd

PO Box 42
Mt Hawthorn
Western Australia 6915

Phone: 08 9217 0100

Email: austral@australfisheries.com.au