PP Wholesale and Major Dog Australia Terms and Conditions
ABN 21 121 480 047
Effective January 2013
1.1 In these terms and conditions:-
“Application” means an application submitted by a Buyer for an account with the Supplier.
“Buyer” means a business, company or customer who submits an Order for the purchase of Goods.
“Company” means an entity registered in accordance with the Corporations Act 2001 (Cth).
“Customer” shall mean the Company or any person acting on behalf of and with the authority of the Company for the purchase of Goods or general public purchasing goods.
“Goods” means the goods to be sold and delivered by the Supplier to the Buyer.
“Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Buyer on a principal debtor basis.
“Order” means a request by the Buyer to the Supplier for the supply of Goods.
“Perfection” has the meaning prescribed to it in section 21 of the PPSA.
“PPSA” shall mean Personal Property Security Act 2009 (Cth).
“PPSR” shall mean Personal Property Security Register.
“Price” shall mean the cost of the Goods as agreed between the Supplier and the Customer.
“Purchase money security interest” has the meaning prescribed to it in section 14 of the PPSA.
“Security Interest” has the meaning prescribed to it in section 12 of the PPSA.
“Security Agreement”, “Commingled Goods”, “Financing Statement”, “Financing Change Statement”, “Verification Statement”, “Collateral” and “Registration” have the meanings prescribed to them in section 10 of the PPSA.
“Statement” means the statement of invoices rendered by the Supplier to the Buyer during the preceding calendar month.
“Supplier” shall mean Walker Holdings (WA) Pty Ltd ATF the Walker Family Trust (ABN 21 121 480 047) T/A PP Wholesale and its successors and assigns.
“Website” means the website and all web pages located at www.majordog.com.au.
1.2 Any reference to “we”, “our”, “us”, “PP” and so on, in the provisions of these Terms and Conditions refers explicitly to PP Wholesale (ABN 21 121 480 047) except where expressly stated.
1.3 Any references to “you”, “your”, “customer”, “buyer” and so on, in the provisions of these Terms and Conditions refers to the Company submitting the Order except where expressly stated.
1.4 Memberships to the online store are automatically set to ‘subscriber’, those requesting a business membership are register as ‘business’ upon approval. All other memberships and unapproved business memberships are set to ‘customer’ membership.
1.5 Major Dog Australia is imported and distributed in Australia by PP Wholesale.
1.5.1 Major Dog Australia and PP Wholesale are a Major Dog international Seller.
2.1 These Terms and Conditions are a legal agreement (“Agreement”) that govern your purchase of Goods from the Supplier. In order to become a Buyer of Major Dog Australia, you must irrevocably agree to be bound by these Terms and Conditions.
2.2 These Terms and Conditions and any other document referenced herein govern the sale of all Goods by Supplier to the Buyer.
2.3 Waiver of any part of this document or documents referenced herein will only be effective in writing and signed by the Supplier.
2.4 To the extent of any inconsistency, this Agreement shall prevail over any previous agreements, terms and conditions between you and the Supplier.
2.5 No term of condition contained in the Buyer’s acceptance or order shall add to, amend or delete any part of this Agreement, unless expressly agreed in writing by a duly authorised officer of the Supplier.
2.6 Any quotation or tender by the Supplier shall be deemed to be subject to these terms and conditions.
2.7 We reserve the right to revise, amend or otherwise alter these terms and conditions without prior notice and at our complete discretion. It is your obligation to review this document for any amendments.
2.8 You are taken to have agreed to any amendments irrevocably unless you expressly revoke your agreement with the Supplier, and with the consent of an authorised officer of the Supplier.
2.9 Orders cannot be cancelled without the consent of the Supplier which may be withheld in its discretion.
2.10 We reserve the right to refuse Credit or supply of Goods to a Buyer based on the discretion of PP Wholesale and its authorised officers.
2.11 Any instructions received by the Supplier from the Buyer for the supply of Goods and/or the Buyer’s acceptance of Goods supplied by the Supplier shall constitute acceptance of the terms and conditions contained herein.
The Goods are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Supplier to the Buyer.
- Price And Payment
4.1 The Prices for the Goods and all other products sold by the Supplier are the prices quoted to the Buyer by the Supplier at the time the Buyer submits an Order.
4.1.1 Prices for ‘business’ memberships are wholesale prices set by PP Wholesale.
4.1.2 Prices for ‘customer’ and ‘subscriber’ memberships are the recommended retail price set by PP Wholesale.
4.2 Prices quoted are exclusive of Goods and Services Tax (GST). GST imposed on the sale of the Goods are the responsibility of the Buyer and will be made payable to the Supplier when applicable.
4.3 Prices quoted are based on the full quantities specified and do not operate pro rata for any greater or lesser quantities.
4.4 If the Buyer does not elect a Credit option, the Supplier may withhold delivery of the Goods until the Buyer has paid for them in full, in which event payment shall be made before the delivery date.
4.5 At the Supplier’s sole discretion, payment for approved Credit Customers shall be made by installments in accordance with the Supplier’s delivery/payment schedule.
4.6 At the Supplier’s sole discretion, for approved Credit Customers payment will be due thirty (30) days following the date of the invoice.
4.7 Payment of approved Credit Accounts can be made by cheque, or direct deposit; any payments made by Mastercard or Visa will incur a 3% surcharge.
4.8 Should the Buyer default in payment of any monies due under this Agreement then all monies due to the Supplier shall immediately become due and payable by the Buyer within seven (7) days of the date of demand and the Supplier shall be entitled to charge interest at the rate charged by Commonwealth Bank on overdrawn current accounts of the amount of the monies due plus two (2) per cent per annum on all monies due until the date of actual payment.
4.9 Any expenses, costs or disbursements incurred by the Supplier in recovering any outstanding monies including debt collection agency fees and solicitor’s costs shall be paid by the Buyer providing that these fees do not exceed the proper scale charges applicable to the debt collection agency solicitor.
4.10 We reserve the right to revise fees without prior notice and at our complete discretion.
- Delivery of Goods
5.1 The Buyer shall take delivery of the Goods supplied at the Buyer’s nominated delivery address and Risk in respect of the Goods supplied shall pass on such delivery.
5.2 The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or Goods may be redirected to the Supplier’s address for collection by the Buyer.
5.3 Any delivery by way of courier, either named by the Buyer or Supplier for the purposes of transmission is deemed to be a delivery of the Goods to the Buyer.
5.4 Delivery to an address nominated by the Buyer other than the Buyer’s Registered Business Address is deemed to be delivery to the Buyer for the purposes of this Agreement.
5.5 The Supplier shall not be liable for any failure or delay to supply goods during any period in which the Supplier may be prevented or hindered from delivering by the Supplier’s normal means of supply or delivering by normal route through any circumstances outside it’s reasonable control, including but not limited to any act or neglect of any carrier, sub-contractor, industrial disturbances, raw material shortages, acts of God or accidents.
5.6 Any failure in delivery shall not entitle either party to repudiate or void this Agreement.
5.7 The Supplier shall not be liable for any loss or damage whatever due to failure by the Supplier to deliver the Goods.
6.1 If the Supplier retains Title in the Goods nonetheless, all Risk for the Goods passes to the Buyer upon delivery.
6.2 If the Buyer nominates a preferred courier, the Buyer assumes all Risk involved in the transfer of the Goods from the Supplier to the Buyer’s nominated courier. Upon the nominated courier acknowledging receipt of the Goods delivery on part of the Supplier is complete and we no longer carry any Risk associated with the Goods.
6.3 If any of the Goods are damaged or destroyed prior to them passing to the Buyer, the Supplier is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under this Agreement. The production of these Terms and Conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
7.1 Any alleged defect, missing items, or failure to comply with the description in the Goods upon delivery shall be communicated to the Supplier within seven (7) days. This communication shall include the invoice number and the date of purchase of the Goods.
7.2 The Supplier has the right and shall be given the opportunity to inspect the Goods within a reasonable time following notification of any alleged defect, missing items, or failure to comply with the description of the Goods.
7.3 If no notification is received or the Buyer fails to act in accordance with these provisions it is accepted that the Goods are in accordance with the terms and conditions and free from any alleged defect, missing items or provided in a way that does not match the description upon making the Order.
7.4 If any Goods are found to be defective, not as a result of delivery or incorrect use, the Supplier may agree in writing to the defect and at our discretion replace the Goods or repair the returned Goods.
7.5 Clause 7.4 is only effective if the Goods are returned within (7) days of the delivery date and are returned in the condition in which they were delivered.
7.6 After thirty (30) days from the date of invoice, a 15% restocking fee applies to all Goods returned plus any freight costs to be incurred by the Buyer.
7.7 The Supplier is under no obligation or duty to accept refunds, provide a credit or reimbursement for Goods returned by the Buyer and will only do so at its discretion and under the terms set out in this Agreement.
- The Competition and Consumer Act 2010 (Cth) and Fair Trading Acts
8.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
- Buyer Obligations
9.1 The Buyer affirms that all information and data provided to the Supplier in support of their Order is accurate, complete and current. The Buyer accepts the obligation to promptly inform the Supplier if there is any change to this data or information.
9.2 The Buyer undertakes to notify the Supplier in writing, not less than seven (7) days prior, of any proposed change in the Buyer’s Registered Business Names, Address, Phone and Fax numbers, change of ownership, management or shareholders, or the business practice of the Buyer’s Company.
9.3 The Buyer may not assign nor transfer any of its obligations under this Agreement without prior written consent of the Supplier. If such does occur with or without consent of the Supplier, the Buyer guarantees the performance of this agreement in its entirety by the third party or new company controllers, including but not limited to the payment of all invoices rendered by the Supplier to the Buyer or the Buyer’s transferred party after the date of assigning such authority.
9.4 Any outstanding disbursement, legal costs or other expenses incurred by the Supplier in the recovery of moneys outstanding under this Agreement shall be paid by the Buyer on a solicitor client basis.
9.5 Each company director of the Buyer must guarantee the Buyer’s obligations in accordance with this provision and the entirety of this Agreement.
9.6 The Buyer must at all times indemnify the Supplier, its directors, officers, employees and agents from and against any claims, losses, damages, costs, judgements, expenses and liabilities of any kind arising out of or in connection with the Buyer’s purchase.
10.1 Legal ownership in the Goods supplied does not pass to the Buyer until the Buyer has discharged all outstanding indebtedness, including any taxes, duties and delivery charges, whether in respect of the Goods supplied or otherwise, to the Supplier.
10.2 The Buyer shall be deemed to accept all liability of debts incurred until the Supplier has confirmed the change in ownership.
10.3 It is the intention of the Supplier and agreed by the Buyer that property in the Goods shall not pass until:
10.3.1 The Buyer has paid all amounts owing for the particular Goods, and
10.3.2 The Buyer has met all other obligations due by the Buyer to the Supplier in respect of all contracts between the Supplier and the Buyer, and that the Goods shall be kept separate until the Supplier has received payment and all other obligations of the Buyer are met.
10.4 Until such time as ownership of the Goods shall pass from the Supplier to the Buyer the Supplier may give notice in writing to the Buyer to return the Goods or any of them to the Supplier. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
10.5 If the Buyer fails to return the Goods to the Supplier then the Supplier or the Supplier’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
10.6 The Buyer is only a bailee of the Goods and until such time as the Supplier has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of the Goods in trust for the Supplier.
10.7 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Supplier’s ownership of rights in respect of the Goods shall continue.
10.8 The Supplier may require payment of the Price or the balance of the Price due together with any other amounts due from the Buyer to the Supplier arising out of these Terms and Conditions, and the Supplier may take any lawful steps to require payment of the amounts due and the Price.
10.9 The Supplier can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.
10.10 Until such time the Buyer has the Supplier’s authority to convert the Goods into other products and if the goods are so converted, the parties agree that the Supplier will be the owner of the end products.
- Security And Charge
11.1 Despite anything to the contrary contained herein or any other rights which the Supplier may have howsoever:
11.1.1 Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Supplier or the Supplier’s nominee to secure all amounts and other monetary obligations payable under these Terms and Conditions. The Buyer and/or the Guarantor acknowledge and agree that the Supplier (or the Supplier’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable here under have been met.
11.1.2 Should the Supplier elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis.
12.1 The Buyer and/or the Guarantor hereby acknowledges that these Terms and Conditions constitute a Security Agreement which creates a Security Interest in favour of the Supplier and in all Goods including services previously supplied by the Supplier to the Buyer (if any) and all after acquired Goods including services supplied to the Buyer from the Supplier (or for the Buyer’s account) to secure the payment from time to time and at a time, including future advances. The Buyer agrees to grant to the Supplier a Purchase Money Security Interest.
12.2 The Buyer gives the Supplier a Security Interest in all of the Buyer’s present and after-acquired property in which Goods including services supplied or financed by the Supplier have been attached or incorporated, including any Commingled goods.
12.3 The Buyer acknowledges and agrees that by agreeing to these Terms and Conditions, the Buyer grants a Security Interest (by virtue of the Title clause in these Terms and Conditions) to the Supplier and in all Goods including services previously supplied by the Supplier to the Buyer (or for the Buyer’s account) and these Terms and Conditions shall apply notwithstanding anything express or implied to the contrary contained in The Buyer purchase Order. The Buyer additionally agrees that the Supplier can without notice to the Buyer seek Registration of its Security Interest as a purchase money security interest on the PPSR and under the PPSA.
12.4 The Buyer acknowledges, agrees and undertakes to:
12.4.1 Sign any further documents and/or provide any further information (which information the Buyer warrants to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to enable Perfection of its Security Interest or registration of a financing statement or financing change statement on the PPSR;
12.4.2 Not register a financing change statement as defined in section 10 of the PPSA or make a demand to alter the financing statement pursuant to section 178 of the PPSA in respect of the Goods including any services without the prior written consent of The Supplier;
12.4.3 Pay all costs incurred by the Supplier in the Registration and maintenance of its Financing Statement to enable Registration of its Security Interest (including registering a Financing Change Statement) on the PPSR such costs shall not exceed the regulated cost for registering or maintaining (updating) a Security Interest, as amended from time to time, together with an administrative charge of $10.00 per Registration and/or amendment to, a Security Interest, as a genuine pre-estimate of the Supplier costs, and/or enforcing or attempting to enforce the Security Interest created by these Terms and Conditions including but not limited to, executing subordination agreements;
12.4.4 Be responsible for the full costs incurred by the Supplier (including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 182 of the PPSA;
12.4.5 The Buyer acknowledges and agrees to waive any rights that the Buyer may have had under section 115 of the PPSA upon enforcement;
12.4.6 Pursuant to section 157 of the PPSA, unless otherwise agreed in writing by the Supplier, the Buyer agrees to waive the right to receive the Verification Statement in respect of any Financing Statement or Financing interest statement relating to the Security Interest;
12.4.7 The Buyer agrees that immediately on request by the Supplier, the Buyer will procure from any persons considered by the Supplier to be relevant to its security position, such agreement and waivers as the Supplier may at any time require.
12.4.8 Release and hold harmless the Supplier from any liability whatsoever in the event of any dispute between the Supplier and the Buyer as to whether any interest registered on the PPSR constitutes a valid Security Interest.
12.4.9 Indemnify the Supplier from any cost reasonably incurred by the Supplier in amending or withdrawing any Security Interest registered by the Supplier over any Goods sold to the Buyer, even if the registration has occurred through error or mistake on behalf of the Supplier.
- Privacy Act 1988
13.1 The Buyer and/or the Guarantor/s agree for the Supplier to obtain from a credit-reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relation to credit provided by the Supplier.
13.2 The Buyer and/or the Guarantor/s agree that the Supplier may exchange information about Buyer and Guarantor/s with those credit providers named in the Credit Application or named in a consumer credit report issued by a reporting agency for the following purposes:
13.2.1 To assess an application by Buyer;
13.2.2 To notify other Credit providers of a default by the Buyer;
13.2.3 To exchange information with other Credit providers as to the status of this Credit account, where the Buyer is in default with other credit providers; and
13.2.4 To assess the Credit worthiness of Buyer and/or Guarantor/s.
13.3 The Buyer consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
13.4 The Buyer agrees that Personal Data provided may be used and retained by the Supplier for the following purposes and for other purposes as shall be agreed between the Buyer and Supplier or required by law from time to time:
13.4.1 provision of Services & Goods;
13.4.2 marketing of Services and/or Goods by the Supplier, its agents or distributors in relation to the Services and Goods;
13.4.3 analysing, verifying and/or checking the Buyer’s Credit, payment and/or status in relation to provision of Services/Goods;
13.4.4 processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer; and
13.4.5 enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the Buyer’s account in relation to the Services and Goods.
13.5 The Supplier may give, information about the Buyer to a credit reporting agency for the following purposes:
13.5.1 to obtain a consumer credit report about the Buyer; and/or
13.5.2 allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.
14.1 The Supplier at its discretion may suspend Credit to the buyer with notice.
14.2 In the event money payable falls due to the Supplier and in the Supplier’s opinion the Buyer is unable to provide payment and meet its obligations under this Agreement, or the Buyer becomes insolvent or makes an assignment for the benefit of its creditors, or a liquidator or similar person is appointed to disperse the assets of the Buyer’s company, then the Supplier shall be entitled to cancel all or any part of any Order made by the Buyer which remains unperformed to and without prejudice to any other remedies; and all amounts owing to the Supplier whether or not due and payable, may immediately become payable to the Supplier.
14.3 No waiver by the Supplier of any default shall be deemed a waiver of any prior or subsequent default.
15.1 The Supplier may cancel these Terms and Conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Supplier shall not be liable for any loss or damage whatever arising from such cancellation.
16.1 Each of the rights and obligations in these Terms and Conditions are severable and independent.
16.2 If any clause or part thereof contained in this document shall be judged to be invalid for any reason whatsoever such invalidity shall not affect the validity or operation of the remainder of this document and such invalid clause or part thereof shall be deemed to have been deleted from this document.
17.1 All contracts made between the Buyer and the Supplier shall be governed by and construed in accordance with the laws of Western Australia.
17.2 In the event of any dispute(s) or claims(s) which arise against us, you will submit to the proceedings taking place in Perth, Western Australia.
17.3 You agree to be held responsible for all costs incurred and related to the proceedings.
17.4 If you fail to comply with your obligations under these Terms and Conditions and/or bring a claim outside of the jurisdiction specified in this Agreement, then you shall indemnify us on a full indemnity (solicitor-client) basis for any costs we incur.