- 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 Pty Ltd ABN 35 611 990 142 (SWD)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 shall mean and include the party named above and/or in whose name an Account is maintained by SWDAUST.
- Payment: payment shall be made by either of the following methods:
The Applicant agrees to comply with the trading terms of SWD and shall pay for goods or services purchased by the Applicant to SWD thirty days (30) days from the end of the month in which the invoice is rendered. The customer shall pay SWD all other monies including interest due and owing, costs and expenses of SWD within thirty days of the end of the month in which such are incurred. If payment is not made when due, SWD may charge interest on moneys outstanding at a rate of two percent (2.5%) per month on all monies due and owing to SWD and any commercial agents expenses incurred, or to be incurred, by us up to 17.5% of any amount entrusted to an agent to collect.
- 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 reserves the right to stop, suspend or cancel any credit facility that has been approved by SWD to the Applicant. SWD 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 notifies the Applicant that it has stopped credit, SWD 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 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 in writing of its claim within 2 business days of delivery. No return of goods will be accepted by SWD Aust, unless SWD Aust has given prior written authorisation for the return.
- Refunds & Return Policy: Refer to the Refunds & Return Policy as listed on the website https://trade.swd.com.au/refunds-and-return-policy.
- Force Majeure: If for any reason beyond the control of SWD (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 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 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 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 for damages arising out of the contract shall be limited to the costs of replacement of any damaged goods and SWD accepts no responsibility or liability whatsoever including liability for negligence or goods that do not correspond with the description on SWD invoice and/or the packaging of the goods sold or any liability for consequential loss however arising. Any representation given by SWD 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 for any breach of warranty (whether expressor 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 not expresslyset 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.
- Except where an Applicant shall be taken to have acquired the products as a consumer within the meaning of the Competition and Consumer Act 2010 and/or the Trade Practices Act 1974 or equivalent Commonwealth, State or Territorial legislation:
- 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 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 pursuant to these terms of trade, the Applicant shall pay to SWD all collection costs, commissions, fees, charges and expenses including legal costs on a full indemnity basis incurred by SWD 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 in writing of any change of ownership of the Applicant within 7 days from the date of such change and indemnifies SWD against any loss or damage incurred by it as a result of the Applicant's failure to notify SWD 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. This mechanism is used by SWD to inform customers of important information about products & pricing.
- Deliveries and Cancellation: Deliveries may be totally or partially suspended by SWD during any period in which SWD 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 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 cannot be cancelled without the written approval of SWD. In the event that SWD accepts the cancellation of any order placed with it SWD 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 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 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 has received payment in full of all monies owing to SWD 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, the Applicant shall have possession of the goods by bailee only and such bailment shall be terminable by SWD at any time. SWD 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 the Applicant, if SWD desires, is required to store the goods in such a way to show that they are clearly the property of SWD. 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. 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, including but not limited to monies owing in respect of the goods, and until such time as SWD 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. If the Applicant does not pay for any products on the due date specified herein SWD 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.
- 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 until SWD has received payment in full for the goods.
- Jurisdiction: The proper law of all contracts arising between SWD Aust Pty Ltd and the Applicant is the law of the State of Queensland 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 Queensland.
- Credit Information: The Applicant irrevocably authorises SWD, 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 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 may be disclosed to a CreditReporting Agency or any other interested person. All information gathered by SWD may be used for purposes other than originally intended.
- Charge: In consideration of the acceptance of the Application for Credit by SWD, 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 from time to time. The Applicant irrevocably authorises the lodgement of a caveat by SWD against any dealings in real property in any title’s office and SWD 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 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, cause all documents to be signed and do all things that SWD may reasonably require to be signed and done by the Applicant to further secure to SWD the amount of is indebtedness to SWD and the Applicant does hereby appoint SWD as its duly constituted attorney to execute in its name any documents to further better secure the indebtedness to SWD.
- 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 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 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 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, 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, 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 requires to ensure that any security interest of SWD is perfected under the PPSA that SWD determines in its sole absolute discretion; (iii) will reimburse and indemnify SWD 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 of any material changes in business activities; (v) that it may (unless advised otherwise by SWD 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, and pay the same as directed by SWD 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 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 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 may repossess and sell the Goods (subject to these Terms and in accordance with the PPSA) and the Applicant irrevocably authorises SWD 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 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 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.