APPLICATION FOR CREDIT
TERMS AND CONDITIONS
1.1 “Linen and Towels” means any legal entity of Grip Services Pty. Ltd. ACN 104 127 997 trading as Linen and Towels ABN 59 104 127 997 and any current or future holding company, subsidiary, related company or successors and assigns of these companies or any person acting on behalf of and with the authority of the Linen and Towels Pty. Ltd.
1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or services supplied by Linen and Towels to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between ARV and the Customer in accordance with clause 5 below.
1.5 “Website” means www.linenandtowels.com.au including any subdomains therefore any other websites through which Linen and Towels makes its services available.
1.6 “Terms” means these Terms and Conditions for Credit which constitute the legally binding Agreement between Linen and Towels and the Customer for the provision of Linen and Towels’ Services.
2.1 The Customer is taken to have accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods from Linen and Towels.
3. Change in Control
3.1 The Customer shall give Linen and Towels fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by Linen and Towels as a result of the Customer’s failure to comply with this clause.
4. Price and Payment
4.1 At Linen and Towels’ sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Linen and Towels to the Customer;
(b) the Price as at the date of delivery of the Goods according to Linen and Towels’ current price list; or
(c) Linen and Towels’ quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 Linen and Towels reserves the right to change the Price if a variation to Linen and Towels’ quotation is requested.
4.3 Linen and Towels may, in its absolute discretion, require the Customer pay a non-refundable deposit.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Linen and Towels, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments/progress payments in accordance with Linen and Towels’ payment schedule;
(d) thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Linen and Towels.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking or by any other method as agreed to between the Customer and Linen and Towels from time to time.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Linen and Towels an amount equal to any GST Linen and Towels must pay for any supply by Linen and Towels under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
5.2 The Customer acknowledges and agree that Linen and Towels does not warrant, represent, authorise or endorse the reliability, accuracy or completeness of any advertised Goods.
5.3 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Linen and Towels is entitled to receive all insurance proceeds payable for the Goods. The production of these
terms and conditions by Linen and Towels is sufficient evidence of Linen and Towels’ rights to receive the insurance proceeds without the need for any person dealing with Linen and Towels to make further enquiries.
5.4 If the Customer requests Linen and Towels to deliver the Goods and leave the Goods outside Linen and Towels’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
6. Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at Linen and Towels’ address; or
(b) Linen and Towels (or Linen and Towels’ nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
6.2 At Linen and Towels’ sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
6.3 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Linen and Towels shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.4 Linen and Towels may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.5 Any time or date given by Linen and Towels to the Customer is an estimate only, and Linen and Towels will not be liable for any disruptions to delivery due to unavoidable circumstances, including but not limited to, transport breakdowns, employee strikes and natural disasters. The Customer must still accept delivery of the Goods even if late and Linen and Towels will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
6.6 Due to Linen and Towels free delivery policy, Linen and Towels holds the right not to accept an order which is not of a substantial value to cover any associated freight costs.
7.1 Linen and Towels and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Linen and Towels all amounts owing to Linen and Towels; and
(b) the Customer has met all of its other obligations to Linen and Towels.
7.2 Receipt by Linen and Towels 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.
7.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 7.1 that the Customer is only a bailee of the Goods and must return the Goods to Linen and Towels on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Linen and Towels and must pay to Linen and Towels the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for Linen and Towels and must pay or deliver the proceeds to Linen and Towels on demand;
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Linen and Towels and must sell, dispose of or return the resulting product to Linen and Towels as it so directs;
(e) the Customer irrevocably authorises Linen and Towels to enter any premises where Linen and Towels believes the Goods are kept and recover possession of the Goods;
(f) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Linen and Towels;
(g) Linen and Towels may recover possession of any Goods in transit whether or not delivery has occurred; and
(h) Linen and Towels may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
8. Security and Charge
8.1 In consideration of Linen and Towels agreeing to supply the Goods to the Customer, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
8.2 The Customer indemnifies Linen and Towels from and against all Linen and Towels’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Linen and Towels’ rights under this clause.
8.3 The Customer irrevocably appoints Linen and Towels and each director of Linen and Towels as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 8 including, but not limited to, signing any document on the Customer’s behalf.
9. Personal Property Securities Act 2009 (“PPSA”)
9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
9.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by Linen and Towels to the Customer.
9.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Linen and Towels may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii);
(b) indemnify, and upon demand reimburse, Linen and Towels for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Linen and Towels;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Linen and Towels;
(e) immediately advise Linen and Towels of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
9.4 Linen and Towels and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
9.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by Linen and Towels, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 The Customer must unconditionally ratify any actions taken by Linen and Towels pursuant to this clause 10.
9.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
10. Intellectual Property
10.1 Where Linen and Towels has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Linen and Towels.
10.2 The Customer warrants that all designs, specifications or instructions given to Linen and Towels will not cause Linen and Towels to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Linen and Towels against any action taken by a third party against Linen and Towels in respect of any such infringement.
10.3 The Customer agrees that Linen and Towels may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Linen and Towels has created for the Customer.
11. Defects, Warranties and Returns, Competition and Consumer Act 2010 (“CCA”)
11.1 The Customer must inspect the Goods on delivery and must within three (3) business days of delivery notify Linen and Towels in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. Upon such notification the Customer must allow Linen and Towels to inspect the Goods.
11.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
11.3 Linen and Towels acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
11.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Linen and Towels makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Linen and Towels’ liability in respect of these warranties is limited to the fullest extent permitted by law.
11.5 If the Customer is a consumer within the meaning of the CCA, Linen and Towels’ liability is limited to the extent permitted by section 64A.
11.6 If Linen and Towels is required to replace the Goods under this clause or the CCA, but is unable to do so, Linen and Towels may refund any money the Customer has paid for the Goods.
11.7 If the Customer is not a consumer within the meaning of the CCA, Linen and Towels’ liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by Linen and Towels at Linen and Towels’ sole discretion;
(b) limited to any warranty to which Linen and Towels is entitled, if Linen and Towels did not manufacture the Goods;
(c) otherwise negated absolutely.
11.8 Subject to this clause 11.1, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 11.1; and
(b) Linen and Towels has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
11.9 Notwithstanding clauses 11.1 to 11.8 but subject to the CCA, Linen and Towels shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by Linen and Towels;
(e) fair wear and tear, any accident, or act of God.
11.10 In the case of second hand Goods, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by Linen and Towels as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that Linen and Towels has agreed to provide the Customer with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 11.10.
11.11 Linen and Towels may in its absolute discretion accept non-defective Goods for return in which case Linen and Towels may require the Customer to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
11.12 Notwithstanding anything contained in this clause if Linen and Towels is required by a law to accept a return then Linen and Towels will only accept a return on the conditions imposed by that law.
12. Default and Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of 10% per annum after as well as before any judgment.
12.2 If the Customer owes Linen and Towels any money the Customer shall indemnify Linen and Towels from and against all costs and disbursements incurred by Linen and Towels in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Linen and Towels’ collection agency costs, and bank dishonour fees).
12.3 Without prejudice to any other remedies Linen and Towels may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Linen and Towels may suspend or terminate the supply of Goods to the Customer. Linen and Towels will not be liable to the Customer for any loss or damage the Customer suffers because Linen and Towels has exercised its rights under this clause.
12.4 Without prejudice to Linen and Towels’ other remedies at law Linen and Towels shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Linen and Towels shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Linen and Towels becomes overdue, or in Linen and Towels’ opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors (other than as specified in the amendments to the Corporations Act 2001 (Cth) enacted by Part 2 of the Treasury Law Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth)); or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
13.1 Linen and Towels may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Linen and Towels shall repay to the Customer any money paid by the Customer for the Goods. Linen and Towels shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 If the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Linen and Towels as a direct result of the cancellation (including, but not limited to, any loss of profits).
13.3 Cancellation of orders for Goods made to the Customer’s specifications, or for items not contained on the stock list, will not be accepted once production has commenced, or an order has been placed.
15. Unpaid Seller’s Rights
15.1 Where the Customer has left any item with Linen and Towels for repair, modification, exchange or for Linen and Towels to perform any other service in relation to the item and Linen and Towels has not received or been tendered the whole of any moneys owing to it by the Customer, Linen and Towels shall have, until all moneys owing to Linen and Towels are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
15.2 The lien of Linen and Towels shall continue despite the commencement of proceedings, or judgment for any moneys owing to Linen and Towels having been obtained against the Customer.
16.1 These terms and conditions and any contract to which they apply shall be governed by the laws of the state New South Wales and each party submits to the non-exclusive jurisdiction of the courts in the State of New South Wales.
16.2 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
16.3 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
16.4 The Customer agrees that Linen and Towels may amend these terms and conditions at any time. If Linen and Towels makes a change to these terms and conditions, then that change will take effect from the date on which Linen and Towels notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for Linen and Towels to provide Goods to the Customer.
16.5 The failure by Linen and Towels to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Linen and Towels’ right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.6 Subject to clause 11, Linen and Towels shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Linen and Towels of these terms and conditions (alternatively Linen and Towels’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
16.7 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Linen and Towels nor to withhold payment of any invoice because part of that invoice is in dispute.
16.8 Linen and Towels may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
16.9 These terms and conditions shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Linen and Towels.