WHAT THIS DOCUMENT DOES

This document sets out the terms and conditions of an agreement (“Terms”) with you the customer (”you”) in respect of all present and future supplies of goods by Bunbury Sea Containers Pty Ltd ABN 44 612 054 145 (“we” or “us”) to you, as purchaser. We may decline to supply goods to you in our discretion. 

1. Payment

You agree to pay the specified price and related charges (“Purchase Price”) of the goods (“Goods”) referred to in the quote, order confirmation or other document we present to you (collectively called “Order Confirmation”) to us before delivery or by the due date, as we determine. 

2. Late payments

If any amount is not paid on the due date, you will pay interest on the amount not paid under the Order Confirmation (“Overdue Amount”). Interest on any Overdue Amount will be calculated monthly, at the rate of eighteen (18%) percent per annum on the Overdue Amount, from and including the due date to and including the date we receive the Overdue Amount. 

3. Possession and Risk 

By taking possession of the Goods, you acknowledge delivery and acceptance of the Goods in good condition. Risk in the Goods passes to you on delivery to you, your agent or carrier. 

4. Retention of title

You acknowledge and agree that title to the Goods will only pass or be transferred to you when we receive payment in full of all money owing to us in relation to the Goods. Until we receive payment of such money you will hold the Goods, at our sole discretion, as bailee only. Prior to receipt by us of the full Purchase Price you must: 
(a) not intermingle the Goods with any other property
(b) not change the Goods in any way
(c) not change or obscure in any way any identification marking that we have placed on the Goods by lettering and numbering
(d) not sell the Goods except to a bona fide purchaser for full value
(e) keep all proceeds from the sale of the Goods in trust for, and on, our behalf in a separate trust account
(f) promptly pay the proceeds of any sale of the Goods to us.

The payment of the proceeds from the sale of the Goods by you does not relieve you of your obligation to pay to us the full Purchase Price.

5. Personal Property Securities Act 

5.1 You acknowledge and agree that the provisions of section 4 constitute the security agreement between us creating a security interest in all present and future supplies. This security interest in the Goods extends to the proceeds of any sale or insurance claim in respect of the Goods and monies held in a separate account arising from the sale of the Goods for the purposes of the Personal Property Securities Act 2009 (Cth) as amended (the “PPS Act”) and to the extent applicable the PPS Act applies. For the purposes of the PPS Act the collateral is described as containers and related goods and the collateral may be further described in an Order Confirmation. 

5.2 You acknowledge and warrant that any Goods or materials purchased from us are not purchased predominantly for personal, domestic or household purposes and you agree to indemnify us against any loss or damage arising from a breach of such warranty. 

5.3 You acknowledge that we may do anything reasonably necessary, including but not limited to registering any security interest which we have over the Goods on the Personal Property Securities Register established under section 147 of the PPS Act in order to perfect the security interest and comply with the requirement of the PPS Act. You agree without charge to provide all information and do all things reasonably necessary to assist us to undertake the matters set out above. You waive pursuant to s.157(3)(b) of the PPS Act the right to receive notice of a verification statement in relation to any registration event. 

5.4 You and we agree that, pursuant to section 115 of the PPS Act, the following provisions in the PPS Act do not apply in relation to a security interest in the Goods to the extent, if any, mentioned (words in this provision have the same meaning as in the PPS Act): 
(a) section 95 (notice of removal of accession), to the extent that it
(b) section 125 (obligation to dispose of or retain collateral) in that we may extend the time for delay as we consider appropriate
(c) section 129 (disposal by purchase)
(d) section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor before disposal
(e) paragraph 132(3)(d) (contents of statement of account after disposal)
(f) subsection 132(4) (statement of account if no disposal)
(g) section 135 (notice of retention)
(h) section 142 (redemption of collateral)
(i) section 143 (reinstatement of security agreement).

5.5 You and we agree not to disclose information of the kind that can be requested under section 275(1) of the PPS Act You must do everything necessary on your part to ensure that section 275(6)(a) continues to apply. However, we will not be liable to pay you compensation in respect of any disclosure in breach of this clause. 

6. What are our rights if you commit a breach? 

If you fail to pay any amount payable by you to us under these Terms on the due date or you cease doing business, have a liquidator, administrator, receiver and manager, controller or other like officer appointed over any or all of your assets, become insolvent, commit an act of bankruptcy or become the subject of a proceeding under any bankruptcy act, or its counterpart under the law of any territory outside of the jurisdiction of Australia, then without limiting our rights or remedies in any way we may (but are not obliged to) immediately without notice to you and without releasing you from any accrued obligations do one or more of the following: 
terminate this agreement for the sale of the Goods to you; 
declare the balance of the Purchase Price due and payable by you; 
retake possession of the goods; and 
remedy any default that you commit under these Terms and conditions (at your cost). 

7. Your rights to possession of the Goods cease 

Despite any provision in these Terms to the contrary, in the event that we terminate this agreement for the sale of the Goods to you, you will no longer be entitled to possession of the Goods and you must immediately return the Goods to us (at your cost) in accordance with these Terms . After we terminate this agreement, nothing in these Terms gives you any express or implied right or entitlement to, and you must not attempt or purport to, sell, hire, lease, encumber, grant any right or interest (of any nature) in or over the Goods. 

8. Right to recover Goods 

If and when this agreement for the sale of the Goods to you is terminated for breach by you, you hereby irrevocably authorise us to enter upon any premises where the Goods are located, and to use such reasonable force as may be necessary, for the purpose of removal of any Goods sold to you and to do so at your cost 

9. What happens to property attached to the Goods? 

In the event that we retake possession of all or any part of the Goods, you hereby irrevocably authorize us to take possession of any property in, on or attached to the Goods which is not our property, and you acknowledge and agree that we are not liable for its care or safekeeping. 

10. Exclusion of Warranties – Non-Consumer Goods 

The terms and conditions in this section 10 apply only where the amount payable for the Goods exceeds $40,000 or the Goods are not ordinarily acquired for personal, domestic or household use. 

10.1 State of the Goods 

You acknowledge and agree that you: 
(a) have inspected or had an opportunity to inspect the Goods prior to their delivery to you, and
(b) you accept them in their current state. 

10.2 Specific warranties excluded 

Without limiting paragraph 10.1 (b), we make no express or implied warranty in relation to: 
(a) the fitness of the Goods for any particular purpose
(b) the merchantability of the Goods, or
(c) the description, state, quality or condition of the Goods.

10.3 Not Liable 

To the full extent permitted by law, we exclude and are not liable for any condition or warranty (of any kind) which is not expressly set out in these Terms. 

10.4 Limitation of Liability 

You agree that if you suffer any loss (including economic loss), damage, cost, expense or claim howsoever arising as a result of the use or purchase of the Goods including without limitation any defect in the Goods, our liability to you is limited to the repair or replacement of the Goods. 

11. Consumer Guarantees 

11.1 The terms and conditions in this section 11 apply only where the amount payable for the Goods is $40,000 or less or the Goods are ordinarily acquired for personal, domestic or household use. 

11.2 Application of consumer guarantees under the Australian Consumer Law. 

Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and to compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure. 

11.3 Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the Goods. 

12. General 

12.1 Notices 

All notices under these Terms must be in writing and be given to the address shown in the Order Confirmation, or to such other address as may be designated in writing by either party to the other.

 
12.2 Binding 

These Terms are binding upon you and us, your and our successors and assigns and are governed by the laws of Western Australia. The parties consent to the non exclusive jurisdiction of the Courts of Western Australia. If you take possession of or retain any Goods , these Terms are valid and binding on you whether or not you have signed them. 

12.3 Override and variation 

These Terms override and exclude any terms and conditions provided by you. These Terms may only be modified or varied if agreed in writing by our duly authorised officer. These Terms may only be modified or varied by you if agreed in writing by our duly authorised officer. 

12.4 Waiver of rights 

A failure to exercise or delay in exercising any right, power or remedy by us does not operate as a waiver. 

12.5 Cumulative rights 

Our rights under these Terms are in addition to, and do not exclude, any rights at common law, equity or any other agreement between you and us. 

12.6 Further Assurances 

You agree to: 
(a) execute and deliver any instruments; and 
(b) do such other things, 
(c) as we may at any time request in connection with the enforcement of our rights under these Terms. 

12.7 Intellectual property 

At all times we own all intellectual property rights attributable to the Goods or anything we do in connection with these Terms including in any inventions, drawings, designs or other work. Drawings provided are our property and are conditionally loaned to you and you agree not to reproduce them in whole or in part, nor make any use of them that has not been approved in writing by us 

12.8 Consent 

You consent to us using and disclosing your personal information for the purposes of direct marketing. 

12.9 Consequential Loss 

To the full extent permitted by law, we are not liable for any indirect, economic, special or consequential loss or damage of any nature, including, without limitation, any loss of business or revenue, loss of profits, loss of opportunity, loss of goodwill, anticipated savings or expenses, in connection with or arising out of these Terms or an Order Confirmation or the supply of the Goods. Nothing in this clause does, or is intended to exclude or limit any rights you may have under the Australian Consumer Law. 

12.10 Expenses 

Should it be necessary for us to incur legal and/or other expenses (including commercial agent and private enquiry fees) in enforcement of our rights under these Terms or in obtaining or attempting to obtain payment of any amount due by you, you undertake to reimburse us on an indemnity basis the whole amount of such expenses and fees. 

13. Carriage Services 

(a) Where we or our subcontractors provide delivery, carriage, relocation or collection services for you, it is agreed that we and our subcontractors are not common carriers and accept no liability as such. All delivery, carriage, relocation and collection services are performed at your risk. You bear all risk of loss or damage to or arising out of the Goods or their contents. 
(b) You must not tender for carriage any explosive, flammable, hazardous or damaging goods without presenting a full description of those goods. 
(c) We and our subcontractors are not liable for failure to deliver, delay in delivery of, or misdelivery of the Goods or their contents, however caused.