Application For Credit Account

In consideration of Max Stocks Food Services (“the Company”) providing goods on credit (should this application be successful):

I/We apply to trade with the Company in accordance with the attached Terms and Conditions of Business and shall observe and perform those Terms and Conditions if this application is accepted.

I/We acknowledge that the Company has informed me/us, in accordance with the Privacy Act 1988, that certain items of personal information about me/us contained in this application and permitted to be kept on a credit information file might be disclosed to a credit reporting agency. This information includes among other things, particulars as to my/our identity, the fact that an application for credit was made and the amount of credit sought, details of current providers of credit and details of any credit at least 60 days overdue, cheques dishonoured and serious credit infringements.

To assist in the processing of this credit application, I/we hereby authorise the Company, its successors and/or assigns to:

• (a) Obtain information about my personal or commercial credit worthiness from my bank or any trade referee disclosed in this document and any other credit provider and credit reporting agency for the purpose of assessing the application for credit, or in connection with any guarantee.
• (b) Use, disclose, or exchange with other credit providers information about my personal or commercial credit arrangements in order to assess the application for credit (including whether to accept as Guarantor any person signing), monitor credit worthiness and collect overdue accounts.
• (c) Disclose the contents of the credit report by a credit reporting agency to the Company’s solicitors or mercantile agents.

To assist in the efficient distribution of products to me by the Company, I/we hereby authorise the Company, its successors and/or assigns to disclose any information, including personal, credit and sales and trading information about me, stored or held by the company.

I/We agree that if the company approves the application for credit, this agreement remains in force until the credit facility covered by the customer’s application ceases in accordance with the Privacy Act 1988.

Please sign below to confirm your written consent to the Agreement and Privacy Act consent above.

DEFINITIONS

1. In these Terms and Conditions:
   1. ‘The Company’ means Max Stocks Food Service and all its entities its successors and/or assigns.
   2. ‘Customer’ means the legal entity or entities named in the Company’s Application for Credit as applying to trade with the Company on a commercial credit basis.
   3. ‘Terms and Conditions’ means these Terms and Conditions of Business as well as any Letter of Acceptance sent by the Company to the Customer accepting an application for credit.
2. The sale of all goods and services by the Company is made upon these Terms and Conditions.
3. By taking delivery of goods supplied by the Company the Customer affirms that these Terms and Conditions are the Terms and Conditions on which the Customer has agreed to purchase from the Company. All purchases of goods from the Company are deemed to have been made by the legal entity which is designated as the Customer on the application for credit as well as its successors and assigns, and that the Customer contracts with the Company both in its individual capacity and as trustee for any trust. The customer agrees that the Company may have recourse against the assets of any trust of which the Customer is a trustee.
4. The Company may change these Terms and Conditions at any time by notice in writing to the Customer. At least 21 days’ notice of such change shall be given.
5. The customer must notify any proposed change of ownership of the Customer’s business in writing to the Company at least 21 days prior to such change. The Customer will remain liable for all purchases of goods and services from the Company made in the name of the business prior to the change of ownership of the Customer’s business.
6. Unless otherwise specified by the Company, either party may terminate the trading arrangements between the Company and the Customer at any time, by notice in writing. If such notice is given any monies owing by the Customer to the Company will become immediately due and payable and any guarantees given are not revoked until all outstanding indebtedness is paid in full.
7. You must not assign any rights or benefits under these terms and conditions unless you have obtained our prior written consent. Any assignment by you without our consent shall entitle us to avoid any liability we may have to you under these terms and conditions.

RESERVATION OF TITLE AND PASSING OF RISK

8. The Customer acknowledges that the title of goods delivered by the Company to the Customer (“the goods”) is only transferred to the Customer once all sums owing to the Company on any account whatsoever have been paid. Until all such sums have been paid, the Company has the right to call for or recover the goods (for which purpose employees or agents may enter the Customer’s premises) and the Customer is obliged to deliver up the goods if so, directed by the Company.
9. The Customer agrees to keep the goods and any proceeds of sale of the goods in a fiduciary capacity for the Company until such time as title is transferred to the Customer.
10. Notwithstanding the foregoing, the Customer may sell the goods to a third party in the ordinary course of business.
11. Notwithstanding the previous three provisions the Customer accepts all risk of loss and damage to the goods, whether caused by the Customer or not, following delivery or dispatch of the goods to the Customer.

PRICE & DESCRIPTION

12. The price and description of the product you may offer to purchase from us (“our product”) is described in our price list. All prices are expressed in Australian We may change the price list at any time without prior notice. Any description of our product is given by way of identification only and the use of that description does not constitute a sale by description.
13. The prices of our products listed in our price list are inclusive of GST. We will provide you with a tax invoice.

ORDERS

14. If a purchase order is required to be quoted on the tax invoice, it is to be provided to the Company at the time of placing the order.
15. No quote is binding on us unless we have prepared and accepted a written confirmation of order.

PAYMENT

16. Subject to the performance by the Customer of all its obligations under these Terms and Conditions, and of any of its obligations under any Supply Agreement with the Company, the Company agrees to supply products to the Customer on a credit basis within any credit terms approved by the Company from time to time. The Company shall have the sole right and discretion to establish credit limits for the Customer, and any such credit limits may be modified or terminated without notice in whole or in part by the Company from time to time in its sole and unilateral discretion with respect to all orders not accepted as of the date of such modification or termination. Any modifications or terminations of previously established credit limits for the Customer shall be applicable to all orders accepted by the Company on or after the date of such modification or termination and until such time as further modifications may be affected.
17. The Customer agrees to make all payments within the date specified by an invoice or statement of account supplied to it by the Company.
18. If the Customer fails to comply with clause 16, without prejudice to the other rights of the Company:
    1. The Customer will, if so, required by the Company, pay interest at the Commonwealth Bank overdraft rate (or its successor), as published from time to time, per month compounded on any amount overdue, such interest being computed from the date of supply of the subject goods or services.
    2. The Company may thereafter require the Customer to pay, by credit card or electronic funds transfer for any further orders placed by the Customer for goods or services prior to delivery of those goods or services.
    3. The Company may refuse to accept orders from and stop deliveries to the Customer.
    4. The Company may require the immediate payment of all monies then owing by the Customer to the Company.
    5. The Company may enter any premises owned, possessed, or controlled by the Customer where the product is stored and remove the product and re-sell all or any of it. The Company is not liable to you if we take such action.
    6. The Company may take such action as it deems appropriate for the recovery of all monies owing by the Customer to the Company, including the Company’s legal costs on a solicitor client basis and any costs involved in recovering the outstanding monies including debt collection costs.

ACCOUNT LIMIT

19. Normally, we allow you to purchase and continue to purchase our product if the total of your account does not exceed your pre-approved account limit and you have provided us with three (3) satisfactory written trade references and/or a satisfactory trade or status report from a credit rating agency acceptable to us.
20. We may require fresh references/reports from time to time and additional information if you apply to increase your account limit.
21. If we perform work or provide a service to you separate from your purchase of product, our fee for providing such work or service is added to your account.
22. You agree that you will, if we request, also provide us further supporting documentation which may include (but is not limited to) any or all the following:
    1. evidence that you have been incorporated for at least 12 months; and
    2. a copy of your audited Financial Statements (which must not be more than 12 months old).
23. In no circumstances are we obliged to accept any application for an increase in the limit of your account and we are not obliged to give you reasons for our decision.
24. If any account is not settled within our agreed trading terms, you agree that, in addition to any other right we may have, we may suspend all sales and delivery of our product to you or close your account with us.
25. You acknowledge that we may decline your application to purchase our products if we are advised by our insurers that they will not grant us appropriate cover in relation to you.

 

DELIVERY & RISK

26. Delivery takes place at the time our product passes into your or your agent’s exclusive physical control or when ownership of our products has passed to you, whichever is earlier.
27. Any date for delivery of our product indicated by us is an estimated date for delivery We will make all reasonable efforts to have the product delivered to you on the date agreed but we are under no liability for any loss or damage, however it arises if the product is not delivered by that date.
28. We reserve the right to deliver any products you order from us by instalment and each instalment is sold to you under a separate contract between you and Failure by us to deliver any instalment will not entitle you to cancel the balance of your order. In the event you are in default on these terms and conditions in respect of any instalment, we may elect to treat your default as a breach in respect of each other instalment.
29. If a delivery date is specified by the Customer, the Company will in no circumstances be liable for any loss or damage of any kind whatsoever suffered or incurred by the Customer consequently for part, or late delivery. Any delay in delivery will not constitute grounds for cancellation of the subject order or any other order by the customer.
30. At all times from the date of delivery, our product is at your risk of loss or damage, and you are responsible for its safe custody. It is up to you to arrange your own insurance.

 

CLAIMS AND ALLOWANCES

31. When we deliver our product to you, you must inspect it immediately. You must report to us in writing any damage or incorrect supply the same day of delivery otherwise we may refuse any claim you make.
32. If our product is damaged when we deliver it to you, we may accept its return and replace it with an equivalent product or credit you with the price paid, at our In all circumstances our product must be in its original packaging and proof of purchase must be supplied. If you have a dispute with us, you must notify our credit department in writing of your dispute prior to the due date of your payment for our product.
33. You agree that you shall make no claim against us for any delay in delivery or any product delivered to you damaged as a direct or indirect result of events beyond our control.

YOUR RELATIONSHIP WITH US

34. Nothing in these terms and conditions creates any relationship of employment, agency or partnership between you and us.

 

CHARGING CLAUSE

1. We hereby charge and grant a security interest in all my/our right, title and interest (whether existing or future) in any property of any nature whatsoever including but not limited to the goods delivered to the Customer pursuant to this or any other agreement, and whether real or personal (“Property”) to secure the payment of any money that I/ we become liable to pay to the Company (“Charge”).
2. To give further effect to the Charge I/we deliver to the Company within 7 days of written request by the Company, an executed mortgage or other form of security over any Property in registrable form that incorporates the Company’s standard covenants as prepared by the Company’s solicitors.
3. I/We irrevocably appoint the Company and any solicitor nominated by the Company as my/our attorney to execute, obtain and/or register a mortgage, caveat or other instrument or thing to support the Charge in respect of the Property. If the Charge created by this clause is or becomes void or unenforceable, it may be severed from these Terms and Conditions without any effect on its validity and I will not be exonerated from these Terms and Conditions in whole or part, nor will the Company’s rights, remedies or recourse against me in any way be prejudiced or adversely affected by such severance.

 

 

PERSONAL PROPERTY SECURITIES ACT

4. I / We agree and undertake to do anything the Company requires (such as obtaining consents and signing and producing documents) in connection with the registration of this document or any other document on any register established pursuant to the Personal Property Securities Act 2009 ( “PPSA”).
5. If I / we fail to deliver such document, I / we hereby appoint the Company to be its lawful attorney for the purpose of executing and registering such documents. I / We acknowledge and agree that these Terms and Conditions constitute a security agreement for the purposes of section 20 of the PPSA and that a security interest exists in all goods (and their proceeds) and all property charged by me/us to the Company and in all future such property (and their proceeds). I / We contract out of and waive our rights in the following provisions of the PPSA: sections 95,96,125,128,129,130,132 (3) (d),132 (4),134 (1),135,142 and 143.
6. Where the Company has rights in accordance with the PPSA, those rights will continue to apply.
7. I / We acknowledge that we have received value as at the date of first delivery of any goods from the Company to the Customer and have not agreed to postpone the attachment of the security interest granted to the Customer under these Terms and Conditions.
8. I / We irrevocably grant to the Company the right to enter upon our premises or property, without notice, and without in any way being liable to me/us or to any third party, if the Company has cause to exercise any of the Company’s rights under section 123 and/or 128 of the PPSA and I/We agree to indemnify the Company from any claims made by any third party as a result of the Company exercising such rights.

LIABILITY UNDER COMPETITION AND CONSUMER ACT

9. The Customer acknowledges that the Company’s liability for breach of any condition or warranty for breach of any condition or warranty which may be implied under the Competition and Consumer Act 2010 in connection with the supply of any products or services by the Company to the Customer shall be limited to any one of the following as determined by the Company:
   1. In the case of goods, any one or more of the following:
      1. the replacement of the goods or the supply of equivalent goods.
      2. the repair of the goods.

• the payment of the cost of replacing the goods or of acquiring equivalent goods.

1. the payment of the cost of having the goods repaired; or

1. In the case of services:
   1. the supplying of the services again; or
   2. the payment of the cost of having the services supplied again.

INSOLVENCY

10. If the Customer becomes bankrupt or makes any arrangements with or assignments for the benefit of its creditors, or being company, becomes the subject of any proceedings for, or makes arrangements or composition with its creditors, or if a receiver, or receiver or manager, administrator or liquidator is appointed to the Customer, or in respect of any of its assets, then, in addition to any other rights which the Company may have either by virtue of the foregoing Terms and Conditions or by law generally, the Company may:
    1. refuse to accept further orders from the Customer;
    2. refuse to supply goods or services pursuant to any existing order from the Customer;
    3. take such action as it thinks fit for recovery of all monies owing by the Customer to the Company including the Company’s legal costs on a solicitor client basis and any costs involved in recovering the outstanding monies including debt collection costs.

FORCE MAJEURE

11. If for any reason beyond the control of the Company (including without limitation as the result of any strike, trade dispute, fire, tempest, them or breakdown) orders cannot be filled at the time stipulated by the Customer, the Company shall be entitled to determine the contract and the Customer shall not have any claims for damages arising out of such cancellation, without prejudice to the rights of the Company to recover all sums owing to it in respect of deliveries made or services provided prior to the date of such determination.

GOVERNING LAW

12. All contracts arising between the Company and the Customer shall be governed by and constituted in accordance with the laws of the State or Territory in which each Agreement for the supply of products is made and the Customer and the Company will submit to the jurisdiction of the Courts of that State or Territory.

PRIVACY

13. All personal information gathered by the Company will be handled in accordance with the Privacy Act 1988.

CERTIFICATE

14. A certificate signed by an officer of the Company about any matter or sum payable to the Company is prima facie evidence of the matters stated within it.

In consideration of the Company its successors and/or assigns agreeing from the date hereof to supply goods and/or services on credit to the Customer. I/ We hereby jointly and severally Guarantee and agree to be responsible for the punctual payment of all monies owing to the Company and compliance with all obligations (including but not limited to the obligations set out in the Terms and Conditions) which the Customer owes now or may in the future owe to the Company for all goods and services that the Company may hereafter from time to time supply to the Customer on any account whatsoever, subject to the following provisions:

1. I/ We will indemnify the Company against any losses, costs, charges, expenses and/or damages of any nature, arising from any past, present and/or future dealing which it might incur as a result of any default by the Customer or arising under this Guarantee.
2. This Guarantee is a continuing security and will not be affected and shall remain enforceable notwithstanding:
   1. any failure of me to sign this Guarantee properly;
   2. the Customer incurring any obligations to the Company without the knowledge or consent of me;
   3. any monies being unrecoverable by the Company from the Customer for any reason at all;
   4. the Company not complying with any agreement with the Customer;
   5. the Company failing to take any step to perfect, protect or enforce any right it may have, or granting any extension of time, release or other indulgence to the Customer or tome:
   6. any change in status, ownership or membership of the Customer or of any of the Guarantors:
   7. the death, incapacity, administration, bankruptcy, liquidation, receivership or insolvency of the Customer or of one or more of the Guarantors:
   8. that I cease to be a director of, or to have any relationship with the Customer or there is a change in status or structure of the Customer;
   9. any variations to the terms of the credit provided by the Company to the Customer (even if this increases my liability under this Guarantee);
   10. the Company refusing further credit to the Customer; or
   11. by the release of any of the Guarantors or if this Guarantee is unenforceable against any one or more of the Guarantors.
3. I/ We warrant, where the Customer is a trust, that the Customer has full authority as trustee to enter into agreements for the supply to it of goods or services, or both, on credit.
4. I/ We irrevocably consent to service of any notices and/or court documents relating to this Guarantee by:
   1. posting it to or leaving it at my address as set out below; or
   2. posting it to or leaving it at another address as advised in writing by me to the Company at anytime.
5. I/ We confirm that I have read the Privacy Authority in this Application and I agree to be bound by its terms.
6. I/ We agree that any payment made to the Company and later avoided by the application of any statutory provisions shall be deemed not to discharge my liability hereunder and in any such event, the Company is to be restored the rights it would have had if the payment had not been made.
7. I/ We agree that the Company may apply any payment it receives in reduction of any indebtedness of the Customer in such manner and amount as the Company may decide irrespective of the age of the debt.
8. I/We hereby charge and grant a security interest in all my/our right, title and interest (whether existing or future) in any property of any nature whatsoever (“Property”) to secure the payment of any money that I/we become liable to pay to the Company (“Charge”). To give further effect to the Charge I/we deliver to the Company within seven (7) days of written request by the Company, an executed mortgage over any Property in registrable form that incorporates the Company’s standard covenants as prepared by the Company’s solicitors. I/we irrevocably appoint the Company and any solicitor nominated by the Company severally as my/our attorney to execute, obtain and/or register a mortgage, caveat or other instrument or thing to support the Charge in respect of the Property. If the Charge created by this clause is or becomes void or unenforceable, it may be severed from this Guarantee without any effect on its validity and I will not be exonerated from this Guarantee in whole or part, nor will the Company’s rights, remedies or recourse against me in any way be prejudiced or adversely affected by such severance.
9. This Guarantee may be withdrawn by the Guarantor (or in the case of my death, by my legal representative) only upon the expiry of thirty (30) days from the day on which written notice of withdrawal is actually received by the Company but will continue in force in respect of the liability incurred up to the time the withdrawal takes effect. Upon receipt of the notice, the Company may no longer provide credit or supply goods or services to the Customer.
10. If any provision of this Guarantee is unenforceable, the provision will be ineffective to the extent of the unenforceability, but will not invalidate the remainder of the Guarantee which will continue to have full force and effect.
11. I/ We submit to the jurisdiction of the Courts of the State in which the Company resides.
12. Subject to the provisions of this Guarantee, this Guarantee and the Terms and Conditions constitute the sole and entire agreement between the parties and any representation, warranty, Guarantee or other terms of any nature not contained in this Guarantee shall have no force or effect.
13. I/ We confirm that I/We understand the nature and effect of this Guarantee have had the opportunity of obtaining independent legal advice before signing this Guarantee.
14. in this Guarantee:
    2001. ‘Customer’ means the Customer named in this Application and any related entity to the Customer as defined in the Corporations Act 2001.
    2002. ‘Application’ shall mean this Credit Account.
    2003. ‘Guarantee’ means this Guarantee and indemnity.
    2004. ‘Guarantor’ means the person(s) identified below as ‘guarantor’ and if more than one jointly and severally and in any event (to the extent applicable) the joint and several successors and/or assigns of each.
15. The Guarantor and the Company agree that they contract out the following provisions under the Personal Property Securities Act 2009 (PPSA) in relation to the goods and that the following provisions under the PPSA will not apply to this agreement – Section 95,96,125,128,129,130,132 (3) (d),132 (4),134 (1),135,142 and 143.
16. Subject to section 275 (7) of PPSA, the Guarantor and the Company agree that neither the Company nor the Guarantor will disclose information of the kind mentioned in Section 275 (1) PPSA.