This Application is to be signed by the Applicant. If the Applicant is a corporate entity, then all Directors should sign. If the Applicant is a partnership, then all partners should sign. If the Applicant is a proprietor, then all proprietors should sign.
The Applicant/s request that SWD AUST PTY LTD (SWD AUST) open a credit account and hereby further agree/s that the provision of goods and services and credit facilities to me/us are subject to the Terms and Conditions attached. The Applicant/s and the signatories to this Application acknowledge and warrant that the information provided in this Application is true and correct and further acknowledge having read, understood and accepted the Terms and Conditions and agree/s to abide by and be bound by the Terms and Conditions The Applicant acknowledges SWD AUST has relied upon the information provided herein to determine whether to grant the Applicant credit and that the signatories have full authority to complete this Application on behalf of the Applicant/s. I/we acknowledge that credit facilities may be withdrawn at any time without notice. The Applicant and the signatory to this Application acknowledge and warrant that the Terms and Conditions attached to this credit application form part of each and every order placed with SWD AUST or delivery made by SWD AUST.
All items listed in any Purchase Order received from the Applicant from the date of this document until it is terminated by either the Applicant or SWD AUST.
NOTE: All Purchase Orders MUST quote the Customer Account Number to be accepted by SWD AUST as valid.
Signed by the Applicant or on its behalf by its Directors/Partners/Proprietor:
By signing this contract, you agree to receive email notifications from SWD which can include important information about products & pricing.
TO: SWD AUST PTY LTD of 99-111 Monash Drive, Dandenong South VIC 3175 ("Supplier")
In consideration of the Supplier, at the request of the Guarantor/s (named in the Schedule below), agreeing to supply or continuing to supply goods or services to the Applicant (named in the Schedule below) referred to as the Purchaser herein ("Purchaser"); and/or providing credit to the Purchaser; or grant an indulgence outside the Supplier's agreed credit terms:
The Guarantor/s hereby jointly and severally irrevocably guarantee to the Supplier the due and punctual payment of all money presently owing or any money that may be owing in the future by the Purchaser to the Supplier, in respect of the goods sold or services supplied by the Supplier to the Purchaser pursuant to the Terms and Conditions of supply and further irrevocably guarantee to the Supplier the due and punctual payment of all other sums whether actual, contingent or otherwise sounding in damages arising out of or in relation to any breach of the Terms and Conditions of supply and/or in respect of the goods or services supplied to the Purchaser and/or the credit provided to the Purchaser (hereinafter collectively called "guaranteed money").
The Guarantor/s hereby jointly and severally covenant as a separate severable and additional covenant and obligation to unconditionally indemnify and keep indemnified the Supplier from and against all loss or damage, costs, charges and expenses whatsoever that the Supplier may suffer or incur in relation to the supply of goods or services to the Purchaser and/or the credit provided to the Purchaser and/or breach of the Terms and Conditions of supply and further covenants that each of the provisions hereinafter contained that applies or is capable of application to this Deed when it is construed as a guarantee will apply to the indemnity hereby given by the Guarantor.
The Guarantee hereby given is a continuing guarantee and the indemnity hereby given is a continuing indemnity and neither this Deed nor the said guarantee nor the said indemnity will be discharged in any way or be considered or deemed to be discharged in any way by any payment to the Supplier other than the payment to and acceptance by the Supplier of the whole of the guaranteed money.
Notwithstanding that as between the Guarantor and the Purchaser the position of the Guarantor is that of surety only nevertheless as between the Guarantor and the Supplier, the Guarantor is liable hereunder as a principal and as a primary debtor for the payment of the guaranteed money.
that no steps or proceedings have been taken against the Purchaser;
any indulgence or extension of time granted by the Supplier to the Purchaser;
the death or bankruptcy or winding up or composition, or company arrangement or Deed of Company Arrangement of the Purchaser;
that payment of the guaranteed money by the Purchaser cannot be legally enforced against the Purchaser;
that further credit or supply to the Purchaser is declined;
any variation, modification or novation of the Terms and Conditions of supply or the obligations of the Purchaser with the Supplier;
the Suppliers act, neglect, omission, delay or default by which the whole or part of the liability of any guarantee or any part of the liabilities guaranteed would but for this provision have been effected or discharged;
the release of the Purchaser or one or more of the Guarantors by operation of law or otherwise.
The Guarantor will not compete with the Supplier for any dividend or distribution in the event of the Purchaser being declared bankrupt, going into liquidation or being wound up or entering any deed or scheme of arrangement or assignment or composition in respect of its affairs or its assets and liabilities.
That any payment made to Supplier and later is avoided by the application of any law or legislation shall be deemed not to discharge the guarantor's liability and, that in such event, the parties hereto are to be restored to the rights which each respectively would have had if the payment had not been made.
The Guarantor hereby acknowledges having given its consent to the Supplier to obtain from a credit reporting agency a consumer credit report containing information about it for the purpose of the Supplier assessing whether to accept the Guarantor as a guarantor for credit that may be applied for by the Purchaser.
The term "Supplier" includes its successors and assigns, and the terms "Purchaser" and "Guarantor" include their respective executors, administrators and successors. “Terms and Conditions” means that terms and conditions of supply between the Supplier and Purchaser attached to the Application for Commercial Credit Account.
In this Deed the singular includes the plural and if there is more than one Guarantor to this Guarantee and Indemnity and Charge their obligations are joint and several.
The Guarantor hereby CHARGES (and where this guarantee is executed by more than one person jointly and severally charge) as legal and beneficial owner all freehold and leasehold in land which the Guarantor now has or may acquire whether solely, or as joint tenant or as tenant in common, with all monies which may become or are due and payable to the Supplier by the Purchaser pursuant to this Deed. The Guarantor irrevocably authorizes the lodgement of a caveat by the Supplier against any dealings in real property in any titles office and that the Supplier may rely upon any of the rights available to it pursuant to any statute or legislation in the State or Territory of Australia in which the land is situated. The Guarantor further agrees and undertakes not to object to the lodging of any caveat by the Supplier and agrees not to take any steps to remove the said caveat.
It is expressly declared that notwithstanding the fact that this Guarantee may be intended or expressed to be executed and given by more than one person the same shall in fact be a valid and effectual guarantee binding against such person or persons as shall execute the same forthwith upon their execution thereto and shall continue to be binding as against such person or persons notwithstanding the fact that any proposed or contemplated party shall not in fact subsequently execute the same.
This Guarantee and the construction and interpretation of it shall be governed by the laws of the State of Victoria in force for the time being and from time to time, and the parties to this Guarantee irrevocably submit generally and unconditionally to the jurisdiction of the Courts of Victoria in respect of all claims, proceedings and matters arising out of or in respect of this Guarantee.
General: These Terms and Conditions shall apply to the exclusion of all others including any terms and conditions of the Applicant (whether on the Applicant's order form or otherwise). No goods or services will be supplied by SWD AUST Pty Ltd ABN 35 611 990 142 (SWD AUST) on any terms or conditions other than those set out herein and by taking delivery of the goods the Applicant shall be deemed to agree to these Terms and Conditions. For the purposes of these Terms and Conditions SWD AUST shall mean and include the party named above and/or in whose name an Account is maintained by SWD AUST.
By cheque – By attaching your cheque made payable to us to a copy of invoice being paid and post to the address listed on the invoice.
By credit card – By telephoning, faxing or emailing your credit card number, expiry date and the invoice being paid to us. A 2% transactimy-2 on fee will be charged.
By direct deposit – By directly depositing funds into our account and then posting, faxing or emailing a copy of the remittance advice to us. Our account details can be found on SWD AUST invoices and statements.
Prices:All prices are ex-factory and subject to change without notice. A minimum line value on invoices is $5.00 excluding GST and a minimum invoice value is $20.00 excluding GST.
Stop Credit: In the event that the account becomes 60 days past due from end of the month of invoice, SWD AUST reserves the right to stop, suspend or cancel any credit facility that has been approved by SWD AUST to the Applicant. SWD AUST may send written advice to the Applicant by way of letter through the post, email or fax that all or some credit facilities have been stopped. Once SWD AUST notifies the Applicant that it has stopped credit, SWD AUST will not be required to supply any goods that have been ordered or deliver any goods which are in transit until the outstanding amount has been paid or a suitable arrangement reached between SWD AUST and the Applicant.
Claims: The Applicant will be deemed to have accepted the goods / services, as being in accordance with its order unless it notifies SWD AUST in writing of its claim within 7 days of delivery. No return of goods will be accepted by SWD AUST unless SWD AUST has given prior written authorisation for the return.
Force Majeure: If for any reason beyond the control of SWD AUST (including without limitation as a result of any strike, trade dispute, fire, tempest, theft or breakdown), orders cannot be filled or completed at the time stipulated by the Applicant, SWD AUST shall be entitled to determine the contract and the Applicant shall not have any claims for damages arising out of such cancellation, without prejudice to the rights of SWD AUST to recover all sums owing to it in respect of deliveries made or services provided prior to the date of such determination.
Warranty or Representation: All warranties whether expressed or implied and whether statutory or otherwise with regard to the goods / services supplied by SWD AUST as to quality, fitness for purpose or any other matter are hereby excluded except insofar as any such warranties are incapable of exclusion at law. The liability of SWD AUST for damages arising out of the contract shall be limited to the costs of replacement of any damaged goods and SWD AUST accepts no responsibility or liability whatsoever including liability for negligence or goods that do not correspond with the description on SWD AUST invoice and/or the packaging of the goods sold or any liability for consequential loss however arising. Any representation given by SWD AUST to the Applicant as to quality or performance of the products or their suitability for a particular purpose or otherwise in relation to the products is given in good faith and the liability of SWD AUST for any breach of warranty (whether express or implied) or misrepresentation is limited to the obligation to repair or replace defective products at its own cost during normal working hours and by its own employees or authorised representatives. The Supplier will not be liable to pay for any services or repairs carried out by others nor does it accept responsibility for any loss of production, profit or otherwise of the Applicant nor will it be liable for any indirect consequential loss or damage to persons or property of any nature due to any cause whatsoever arising from or in relation to the supply of products to the Applicant. The Applicant acknowledges that it will not rely upon nor be induced by any warranty or representation by SWD AUST not expressly set out herein, in its price list or otherwise in writing.
These conditions do not include, restrict or modify the application of any provisions of any Commonwealth, State or Territorial law which law cannot be excluded, restricted or modified.
The Supplier shall not be liable or responsible for any loss, damage or injury to property or persons (including but not limited to loss of profits, business or other direct, indirect, special, consequential or incidental damages) resulting from or in connection with the acquisition, delivery, re-supply, installation, use or possession of the products irrespective of whether such loss, damage or injury results from the negligence of the Supplier, its servants or agents or any other cause whatsoever; and
All terms, conditions and warranties that the product shall correspond with their description, shall correspond with any sample, shall be of merchantable quality or shall be reasonably fit for any purpose expressed or implied directly or indirectly, by common law or any Commonwealth, State or Territorial laws are hereby excluded to the fullest extent permitted by law.
Where an Applicant is taken to have acquired the products as a consumer within the meaning of the Competition and Consumer Act 2010 and/or Trade Practices Act 1974 or equivalent Commonwealth, State or Territorial legislation, the liability of the Supplier for a breach of any term, condition or warranty referred to in Clauses 6 or 8(b) herein shall be limited, at the absolute discretion of the Supplier, to the replacement of the products or the supply of equivalent products or the repair of the products.
Freight Costs: SWD AUST shall not be liable for freight costs on goods returned to it by the Applicant unless otherwise agreed.
Additional Fees: The Applicant agrees that in the event the Applicant breaches any of the terms of trade including a failure to make payment of any monies due to SWD AUST pursuant to these terms of trade, the Applicant shall pay to SWD AUST all collection costs, commissions, fees, charges and expenses including legal costs on a full indemnity basis incurred by SWD AUST of and incidental to this agreement or any matter arising out of or incidental to this agreement or the Applicant’s performance of or failure to perform any of the terms of trade. Interest may be charged at the rate of two percent (2.5%) per month on all additional fees.
Change of Ownership: The Applicant agrees to notify SWD AUST in writing of any change of ownership of the Applicant within 7 days from the date of such change and indemnifies SWD AUST against any loss or damage incurred by it as a result of the Applicant's failure to notify SWD AUST of any change.
Notices: Any notice to be given to you shall be deemed to be given upon its being posted or sent by facsimile or email to your address, facsimile number or email address set out in the Contract or posted to your registered office or last known address. By signing this contract, you agree to receive the monthly email newsletter & email notifications from SWD AUST. This mechanism is used by SWD AUST to inform customers of important information about products & pricing.
Deliveries and Cancellation: Deliveries may be totally or partially suspended by SWD AUST during any period in which SWD AUST may be prevented or hindered from affecting delivery by its normal means of supply or delivery by normal route by reason of any circumstances outside its reasonable control (including but not limited to strikes, lockouts, shortages of material, accidents or breakdowns of plant or machinery). In the event that because of short supply of any material or finished stock SWD AUST shall be unable to supply, it may in its sole and unfettered discretion supply a portion of available supply to the Applicant without being thereby in breach of contract. Orders placed with SWD AUST cannot be cancelled without the written approval of SWD AUST. In the event that SWD AUST accepts the cancellation of any order placed with it SWD AUST shall be entitled to charge a reasonable fee for any costs incurred to the date of the cancellation including a fee for the processing and acceptance of the Applicant's order and request for cancellation.
Lien: The Applicant hereby acknowledges that SWD AUST has a lien over all goods in its possession belonging to the Applicant to secure payment of any or all amounts outstanding from time to time.
Title to Goods/ & Monies: Risk in any product supplied by SWD AUST to the Applicant shall pass when such property is delivered to the Applicant or into custody on the Applicant’s behalf but ownership and property in the goods delivered to the Applicant shall not pass to the Applicant until such time as SWD AUST has received payment in full of all monies owing to SWD AUST including but not limited to monies owing in respect of the goods specified on any particular invoice to which these terms and conditions are annexed, together with any other monies outstanding. If the goods are delivered prior to payments being made by the Applicant to SWD AUST, the Applicant shall have possession of the goods by bailee only and such bailment shall be terminable by SWD AUST at any time. SWD AUST may terminate such bailment either by oral or written notice being given to the Applicant. Until the date of payment of all monies owing to SWD AUST the Applicant, if SWD AUST desires, is required to store the goods in such a way to show that they are clearly the property of SWD AUST. If the Applicant sells the goods to any third party the consideration the Applicant receives shall be held by it in a separate account on trust for SWD AUST. If the Applicant mixes the goods with any other goods or products or deals with the goods in such a way that they become a constituent of any other product or goods then ownership in any such new product or goods is to be transferred to SWD AUST as security for full payment of all monies owing to SWD AUST, including but not limited to monies owing in respect of the goods, and until such time as SWD AUST receives such payment the Applicant shall hold such products or goods in which the goods have been mixed or incorporated as fiduciary owner for SWD AUST. If the Applicant does not pay for any products on the due date specified herein SWD AUST is hereby irrevocably authorised by the Applicant to enter the Applicants premises (or any premises under the control of the Applicant as agent of the Applicant if the products are stored at such premises) and use reasonable force to take possession of the products without liability for the tort or trespass or negligence or payment of any compensation to the Applicant whatsoever. This licence endures so long as any monies whatsoever is owed by the Applicant to SWD AUST.
Power to Sell Goods: Nothing herein contained shall prevent the Applicant from selling the goods to any third party provided that the proceeds of any such sale shall be held in trust by the Applicant for SWD AUST until SWD AUST has received payment in full for the goods.
Certificate: A Certificate signed by an officer of SWD AUST will be prima facie evidence of the Applicant's liability to SWD AUST at the date of the Certificate.
Jurisdiction: The proper law of all contracts arising between SWD AUST Pty Ltd and the Applicant is the law of the State of Victoria and the parties agree that all claims and disputes relating to the goods sold shall be determined in a Court of competent jurisdiction in the State of Victoria.
Credit Information: The Applicant irrevocably authorises SWD AUST, its servants & agents to make such enquiries as they deem necessary to investigate the credit worthiness of the Applicant from time to time, including the making of enquiries with persons nominated as trade references, the bankers of the Applicant any credit provider or Credit Reporting Agency and including personal credit and consumer credit information (hereinafter called "the information sources"). The Applicant hereby authorises the information sources to disclose to SWD AUST such information concerning the Applicant which is within their possession. The Applicant agrees that the information provided on its Credit Application concerning the Applicant & any relevant trading information arising from any dealings between the Applicant & SWD AUST may be disclosed to a Credit Reporting Agency or any other interested person. All information gathered by SWD AUST may be used for purposes other than originally intended.
Charge: In consideration of the acceptance of the Application for Credit by SWD AUST, the Applicant hereby charges as legal and beneficial owner, all freehold in land it now has or may acquire whether solely, or as joint tenant or as tenant in common with all monies which may become or are due and payable by the Applicant to SWD AUST from time to time. The Applicant irrevocably authorises the lodgement of a caveat by SWD AUST against any dealings in real property in any titles office and SWD AUST may rely upon any of the rights available to it pursuant to any statute or legislation in the State or Territory of Australia in which the land is situated. The Applicant further agrees and undertakes not to object to the lodging of any caveat by SWD AUST and agrees not to take any steps to remove the said caveat. The Applicant shall, immediately upon demand being made upon the Applicant by SWD AUST, cause all documents to be signed and do all things that SWD AUST may reasonably require to be signed and done by the Applicant to further secure to SWD AUST the amount of is indebtedness to SWD AUST and the Applicant does hereby appoint SWD AUST as its duly constituted attorney to execute in its name any documents to further better secure the indebtedness to SWD AUST.
The Supplier reserves the right to refuse credit to the Applicant at any time without reason.
All words in this document importing the plural number include the singular and vice versa and if there is more than one applicant these conditions shall bind each of them jointly and severally.
To the fullest extent legally possible, all contracts made between SWD AUST and any Applicant relating to any products, services or transactions are subject to the Terms & Conditions of Sale as set out above unless otherwise agreed in writing.
Security in Goods (a) The Applicant grants to the SWD AUST a security interest in the Goods and their proceeds to secure the obligation of the Applicant to pay the price of the Goods and any other obligations of the Applicant to SWD AUST under these Terms and Conditions. . (b) If the Applicant sells the Goods or incorporates them into another product prior to payment of those Goods, the proceeds of sale of those Goods shall be held on trust for SWD AUST, until payment of all monies that the Applicant owes to are paid in full. (c) Applicant agrees: (i) that these Terms create a security interest in all present and after acquired Goods as security for all of the Applicant’s obligations to SWD AUST, and the Terms are a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA) which is registrable under the PPSA; (ii) to do all such things and at any time as SWD AUST requires to ensure that any security interest of SWD AUST is perfected under the PPSA that SWD AUST determines in its sole absolute discretion; (iii) will reimburse and indemnify SWD AUST for all expenses it incurs in registering its security interest on the PPSA register; (iv) to provide not less than 14 days’ notice in writing of any proposed change in its name, business practice, contact details and will immediately notify the SWD AUST of any material changes in business activities; (v) that it may (unless advised otherwise by SWD AUST or where it has breached these Terms) use or sell the Goods in the ordinary course of business and if it sells the Goods, it must hold the proceeds (separately and in an identifiable account) in trust for SWD AUST, and pay the same as directed by SWD AUST if and when requested; (vi) subject to clause 24(c)(v) herein, not to give anyone any interest in or security over the Goods; (vii) to waives its rights to receive any of the documents referred to in sections 95, 118, 121(4), 123, 130, 132(3)(d), 132(4), 135, 157 and Part 4.3 (other than those in Division 6 of Part 4.3) of the PPSA; and (viii) with SWD AUST to keep confidential the information and documents of the kind referred to in section 275(1) of the PPSA (except where section 275(7) of the PPSA applies) and both agree not to authorise the disclosure of such information at any time. (d) If the Applicant: (i) fails to make payment of monies owed to SWD AUST in accordance with these Terms; (ii) fails to comply with any of these Terms; or (iii) commits an act of bankruptcy or makes an arrangement with all or any number of its creditors, or has a receiver or liquidator appointed or an administrator appointed pursuant to the provisions of the Corporations Act, then SWD AUST may repossess and sell the Goods (subject to these Terms and in accordance with the PPSA) and the Applicant irrevocably authorises SWD AUST to enter any premises where the Goods are kept and to use the name of the Applicant and to act on its behalf to recover possession of the Goods. (e) Goods for the purpose of this clause means all goods that SWD AUST supply to the Applicant from time to time, and includes for the purposes of the PPSA, where the Goods supplied are inventory, all references to those Goods shall, in respect of those Goods, be read as references to inventory while they are held as inventory; and where the Goods supplied are not or are no longer held as inventory, then Goods shall, in respect of those Goods, includes the Goods described in any invoice of SWD AUST relating to those Goods, on the basis that each such invoice is deemed to include any resulting product which the Goods subsequently become part of.