TERMS & CONDITIONS OF SALE

The following Trading Terms supersede all previously terms and condition issued by Us.

1. Interpretation

In these Trading Terms and in any quotation, offer, current catalogue, website, price list produced by Us or other agreement with Us, the following definitions apply:

“Account Application Form” means the application form completed and provided by You for the purposes of opening a credit account with Us.

“Goods” means goods supplied by Us to You (and, where the context so permits, shall include any supply of Services) and described in any quotation, offer, current catalogue, website or price list produced by Us.

“Guarantor” means the guarantor(s) described in the Account Application Form, subject to acceptance by Us.

“GST” means the goods and services tax that applies in accordance with A New Tax System (Goods & Services) Act 1999 (Cth).

“Order” means any written, verbal or electronic purchase order made by You for Goods and/or Services.

“Prices” means the prices attributable to the Goods and Services as advised by Us in any quotation, offer, current catalogue, website or price list produced by Us and “Price” shall have a corresponding meaning.

“Services” means all services supplied by Us to You and includes any advice or recommendations (and where the context so permits shall include the supply and installation of any Goods).

“Trading Terms” means these terms and conditions of trade and includes any amendment or variation.

“We” and “Us” means F.S.M. [Food Service Machinery] Pty. Ltd. (ABN 9057185 4991) and includes any Related Bodies Corporate (as defined in the Corporations Act 2001 (Cth)) which supplies Goods and/or Services to You (whether or not the fact is disclosed to You) and “Our” means belonging or pertaining to Us.

“You” means the person, firm or company placing an order with Us for the Goods and “Your” means belonging or pertaining to You.

2. Application of Trading Terms

(a) These Trading Terms apply to every sale of Goods and/or supply of Services by Us to You.  Each Order made by You and accepted by Us will be an individual contract for those Goods and/or Services in accordance with these Trading Terms. 

(b) Subject to any special trading terms agreed to between You and Us and recorded in Your Account Application Form or separately in writing, these Trading Terms (together with any quotation, offer, current catalogue, or price list produced by Us) shall comprise in entirety Our terms and conditions of trade. 

(c) In the event of any inconsistency between these Trading Terms and any other document, these Trading Terms shall prevail and any trading terms nominated by You are expressly excluded.  Any warranty, representation or guarantee not included or provided for in these Trading Terms is of no effect.

(d) If any part of these Trading Terms, or the application of these Trading Terms to any person or circumstance, is or becomes invalid or enforceable, the remaining provisions of these Trading Terms are not affected and are valid and enforceable to the fullest extent permitted by law.

(e) We may amend these Trading Terms from time to time without notice to You and You will be deemed to have had knowledge of such amendments and have accepted these Trading Terms as amended if You continue to purchase Goods and/or Services from Us after such amendment. Each subsequent supply of Goods and/or Services by Us to You will be in accordance with these Trading Terms as amended.

3. Agreement

(a) Any quotation or offer produced by Us is subject to review, amendment or withdrawal at any time prior to acceptance by You or the expiry of the quotation or offer (whichever occurs first).

(b) Subject to (c) of this clause, Our quotation or offer will be deemed to have been accepted by You and a binding agreement entered into with You on the date We receive Your Order.  Any Order which has been accepted by Us may not be cancelled by You without Our written consent (which We may withhold in Our absolute discretion) and then only on the basis that You will indemnify Us in full against all loss (including loss of profit), costs (including the cost of labour and materials used), damages, charges and expenses (including legal costs on a full indemnity basis) incurred by Us as a result of such cancellation.  Cancellation of any Orders for Goods which are non-standard manufacture or non-stock items will not be accepted.

(c) We reserve the right to decline, in whole or in part, any Order received from You in Our absolute discretion.

(d) You are solely responsible for determining whether the Goods and Services are suitable for Your intended purposes and meet Your requirements and You acknowledge that no oral or written information, representation or advice given by Us (other than as contained in these Trading Terms) creates a warranty from Us or in any way increases the scope of these Trading Terms.

(e) You agree to notify Us in writing of any change in the ownership or control of Your business structure not less than 7 days prior to such change taking effect and You indemnify Us against any loss or damage We may incur as a result of Your failure to provide such notification.

4. Documents

Any clerical or typing errors, misprints or other similar errors in any document produced by Us in respect of Goods and/or Services are subject to correction by Us by either amending or re-issuing the affected document (as the case requires).  We shall not be liable for any cost, expense or damage incurred by You as a result of any correction of any document produced by Us.

5. Intellectual Property

You acknowledge and agree that:

(a) any intellectual property rights in respect of the Goods and Services (including, but not limited to, rights to design, copyright, patents or trademarks in respect of all drawings, designs, specifications and other information provided by Us in connection with any quotation, offer, current catalogue, website, price list produced by Us) remain Our sole and exclusive property and must remain confidential and You will not attempt to claim any such intellectual property rights in respect of  either the Goods and Services or any modification or improvement of the Goods and Services;

(b) You must not attempt to modify or reverse engineer the Goods and Services; and

(c) in all cases where You have provided the design for any Goods and Services, We will not accept any responsibility for any infringement of any design, copyright, patents or trademarks or other intellectual property in connection with the execution of Your Order and You agree to indemnify Us against claims for infringement or unauthorised use of such intellectual property arising out of the manufacture or use of such Goods and Services.

6. Prices and Charges

(a)  You agree to buy and We agree to sell the Goods and Services for the Prices.

(b)  All Prices and all amounts payable to Us are exclusive of GST or any other applicable government tax or duty, unless otherwise indicated.  You must pay all such taxes and duties in connection with those amounts.

(c)  The Prices include the cost of Our standard packaging for the Goods.  The cost of any special packaging materials or techniques requested by You in connection with the Goods must be paid for by You in addition to the Prices.

(d)  We reserve the right, from time to time but prior to issuing any invoice to You, to increase the Prices:

    (i)  to take account of increases in the cost of supplying the Goods and/or Services to You (which may include, but are not limited to, increases in the cost of energy, materials, labour, equipment or delivery) which are due to any factor beyond Our reasonable control or are due to Your failure to provide adequate information or instructions; or

    (ii)  to correct, without any liability on Our part, any errors or omissions quotation, offer, current catalogue, website or price list produced by Us.

7. Payment

(a) We reserve the right to pass on to You any additional costs (including merchant fees) incurred by Us where You pay Us by credit card (if applicable).

(b) If We have not provided credit terms to You, You must pay for the Goods prior to delivery.

(c) If We have provided credit terms to You, You must pay for any Goods and/or Services provided to You within the time period stated in Our invoice or statement for such Goods and/or Services.  If We have not stated a time period for payment, You must pay for the Goods and/or Services within 30 days of the end of the month in which we issued Our invoice or statement for the Goods and/or Services.

(d)  We may set, alter or withdraw credit limits and terms in Our absolute discretion and without giving prior notice to You or providing reasons.

(e)  Payments due to Us must be made without any deduction or set-off.  We may apply the amounts paid to Us in payment of any amount owed by You.  If You dispute Our invoice or statement, You must still pay the entire amount.  We will refund any agreed amount following resolution of the dispute.

(f)  If You fail to pay Our invoice or statement (whether in whole or in part) by the due date, without limiting any other provision in these Trading Terms, We may (in Our absolute discretion):

    (i)  suspend or cancel any further production and/or delivery of any Goods or supply of any Services (whether under an existing or new Order) until full payment of all outstanding amounts owed to Us (including accrued interest if applicable) has been made;

    (ii)  charge interest on any amount outstanding in respect of Our invoices, at the rate of 1.5% per month, such interest to be calculated daily and compounded monthly), until  full payment has been made (such interest rate to be subject to amendment from time to time by Us in Our absolute discretion;

    (iii)  exercise a general lien on any of Your property within Our possession  or control to cover the outstanding amount for the Goods and/or Services;

    (iv)  withdraw (in full or in part) any discount, concession, allowance or benefit which was previously offered to You; and

    (v)  recover from You, in addition to the outstanding amount, all costs incurred by Us arising out of or in connection with collecting the outstanding amount (including, but not limited to, expenses and fees associated with or paid to or on account of solicitors, legal advisers, mercantile agents and other agents acting on Our behalf) and the amount payable will be a debt due and payable without demand from the date on which We incur liability for the cost, expense or fee.

8. Security Interest and the Personal Property Securities Act 2009 (“PPSA”)

If you have a current credit facility in place with Us, You acknowledge and agree that the following terms apply:

(a)  We may require You to provide security for any Order placed by You as a condition of accepting Your Order and the terms of the Personal Property Securities Act 2009 (Cth) (“PPSA”) apply to all transactions made under these Trading Terms.

(b)  You acknowledge and agree that You will:

    (i)  grant a security interest in all present and after acquired Goods as security for all amounts owing now and in the future by You to Us;

    (ii)  do all things and sign all documents as are necessary and reasonably required to enable Us to acquire a perfected security interest in all Goods supplied;

    (iii)  provide such information as is required to enable registration of a ‘Purchase Money Security Interest’ (as that term is defined in the PPSA) (“PMSI”);

    (iv)  not, without obtaining Our prior written consent, change Your name or initiate any change to any registered documentation, or act in any manner which would impact on Our registered security interest; and

    (v)  waive or exclude the application of such sections of the PPSA as We may require, subject to those sections being capable of exclusion.

    (c)  You further acknowledge that a PMSI is granted by You, in priority to all other creditors, in favour of Us and in respect of all Goods We supply to You from time to time, as security for Your payment obligations to Us.  You agree to indemnify Us for any liability for all costs (including legal costs on a full indemnity basis) incurred by Us in relation to any security interest granted by You (including, but not limited to, registration, maintenance, enforcement or discharge of any security interest).

(d)  We reserve the right at any time to make such amendments, alterations to this ‘Security Interest’ clause as We may, in Our absolute discretion, determine are necessary to protect Our security interests.

9. Title and Risk

(a)  Title to and ownership of the Goods shall not pass to You until We have received full payment for the Goods and for any other amounts owing by You in relation to any other matter (including payments in respect of other goods or services provided to You from time to time) and You shall hold the Goods (including where such Goods have been converted or changed by any process) as fiduciary bailee and agent for Us. 

(b)  Risk in the Goods shall pass to You upon completion of delivery in accordance with these Trading Terms.

(c)  You acknowledge that We hold a PMSI (as defined in clause 8) in respect of any Goods supplied to You until We have received full payment in respect of such Goods.  You must not pledge, or in any way charge by way of security or indebtedness, any of the Goods until We have received full payment.

(d)  Upon taking delivery of the Goods and until We receive full payment for the Goods and for any other amounts owing by You in relation to any other matter, until the Goods are sold by You in the ordinary course of your business, You must:

    (i)  keep the Goods in Your control and custody and not permit any other person to have possession, custody or control of the Goods;

    (ii)  keep the Goods separate from any other items or goods in Your possession and mark the Goods to clearly show that the Goods belong to Us;

    (iii)  not pledge, or in any way charge by way of security or indebtedness, any of the Goods;

    (iv)  permit Our nominated representative to attend Your premises on prior notice to inspect the Goods; and

    (v)  deposit all proceeds from the sale of the Goods into a separate and identifiable account, not mix such sale proceeds with any other money and account to Us for such sale proceeds;

and We may trace all such sale proceeds received by You through the relevant account or any other account maintained by You.  In addition, You irrevocably appoint Us as Your attorney to recover any such sale proceeds from any purchaser to whom You have on-sold the Goods and to exercise Your rights under any agreement with such purchaser (including rights of repossession and resale of the Goods) provided that We undertake not to exercise such rights as Your attorney unless You have failed to comply with Your payment obligations to Us under these Trading Terms.

(e)  Without prejudice to any of Our other rights, if You fail to comply with these Trading Terms, if You cease to be able to pay Your debts as they become due or if You become subject to any form of insolvency administration:

    (i)  all amounts owing by You to Us shall immediately become due and payable;

    (ii)  We have the right to immediate possession of the Goods and You irrevocably authorise Us to enter any premises occupied by You at the time upon reasonable notice to You, without liability for trespass or any resulting damage, and take possession of the Goods.  You agree to indemnify Us and hold Us harmless from all claims arising out of or in connection with Us taking possession of the Goods in accordance with this clause;

    (iii)  We may retain all amounts paid to us on account of the Goods and suspend or cancel any further production and delivery of Goods for You;

    (iv)  We shall be entitled, but not obligated, to resell any Goods repossessed by Us in accordance with this clause; and

    (v)  We may recover from You all reasonable costs incurred by Us in connection with any Goods repossessed under this clause (including legal costs on a full indemnity basis) and the amount payable will be a debt due and payable without demand from the date on which We incur liability for the cost, expense or fee.

(f)  If, at the time We seek to take possession of the Goods in accordance with this clause, the Goods have been incorporated by You in any other item or goods, We will be treated as owners of such other items or goods together with You, as tenants in common in proportion to our respective contributions.

10. Delivery

(a) The delivery dates and completion times contained in any quotation, offer or price list provided to You are estimates only, unless expressly stated to be an essential term and may be varied at any time by Us depending upon the availability of Goods, materials, labour and other contingencies. All backorders will be delivered to You freight free as quickly as Goods become available. All Austream Goods are quoted ex-factory Melbourne or Perth.

(b) In circumstances where the Goods are being shipped to a region where You are arranging collection and unless expressly agreed otherwise in writing by Us, the following terms apply:
(i) the method and date of delivery of all Goods shall be on the terms stated in the quotation, offer or price list provided to You (as applicable) and shall be at Your cost and expense (ex Warehouse from Our Premises) and You agree that in the event that any freight or delivery charges are paid by Us, You must reimburse Us the full amount of such charges on demand;
(ii) delivery of such Goods by Us is complete when the Goods are collected by You or Your nominated agent or carrier; and

(iii) delivery of such Goods is at all time at Your risk.
(c) In circumstances where we have agreed to deliver the Goods to your nominated address for delivery, the following terms shall apply:
(i) If you have a current credit facility in place with Us, and your nominated address for delivery is located in Victoria, New South Wales, ACT, Queensland (excluding far north Queensland), or metropolitan areas of Adelaide or Perth, and Your Order is valued at $1,000 or more (excl. GST and delivery charges), the Prices quoted for your Order will include delivery costs (FIS);

(ii) all other Orders will be dispatched “freight collect” to your nominated freight account or otherwise by our choice of carrier and a minimum delivery fee of $30 (excl. GST) will apply where Orders are delivered by our choice of carrier ($40 (excl. GST) minimum delivery fee to NT and Tasmania), such delivery fees to be subject to amendment from time to time by Us in Our absolute discretion; and

(iii) deliveries will only be made at the ground floor level to a kerbside drop or goods receiving area where it then becomes Your responsibility and expense to supply such labour and equipment as may be necessary to unload Your Order.

11. Force Majeure

We will not be liable for any failure to perform, or delay in performance of, any obligation where such failure or delay is due to anything beyond Our reasonable control including, but not limited to, adverse weather or terrain, strikes, lockouts and other industrial action, material shortages, failure of any of Our suppliers to supply, accidents, power or data transmission failure, breakdowns of plant or machinery, war, changes of government, import or export regulations or embargoes.

12. Inspection and Return of Goods

(a)  You will be deemed to have accepted the Goods, free from any defect or other non-conformity, unless We receive a substantiated claim from You within 7 days from the date of delivery and/or installation of the Goods in accordance with these Trading Terms.

(b)  Except where Goods supplied by Us are defective and subject to any warranty:

    (i)  Goods will only be accepted for return if You have given prior written notice to Us (confirming Your reasons for returning the Goods and stating the applicable invoice number) of Your intention to return the Goods and We have notified You in writing with a completed GRN form that We will accept such return, and that a copy of the GRN Form supplied by us accompanies the goods being returned;

    (ii)  We may refuse to accept Goods where they are used, no longer in their original packaging or are returned more than 2 months after delivery to You;

    (iii)  We will refuse to accept the return of any Goods which are non-standard manufacture or non-stock items where such Goods have been correctly delivered by Us;

    (iv)  delivery of all Goods returned by You must be arranged with Your carrier and is at Your expense and risk; and

    (v)  in the event that We agree to accept the return of any Goods, You may be required to agree to pay a 15% restocking fee, such fee to be subject to amendment from time to time by Us in Our absolute discretion.

(c)  We will only accept the return of Goods from You if the Goods are in the same condition as when the Goods were originally delivered to You, provided that Our acceptance of Goods returned by You is not an acceptance of or granting of credit to You.

13. Limitation of Liability and Warranties

a) The Competition and Consumer Act 2010 (Cth) may imply certain conditions and warranties into these Trading Terms that cannot be excluded or modified. These Trading Terms do not exclude or modify any of those conditions if to do so would contravene that law or make any part of these Trading Terms void.
(b) Where our products are used in a Commercial environment, Subject to the provisions of this clause 13, We will repair or replace any Goods which are manufactured or imported by Us where We, in Our absolute discretion, determine that such Goods, having regard to the materials, workmanship and the reasonable and recommended conditions of use and maintenance, are defective within the period of Warranty (as specified below):
All products within 13 months (Parts & Labour), from the date of delivery to the original Purchaser with the exception of the following:
Asahi Rice Cookers â€“ Back to Base 13 months parts and 13 months labour warranty.
Atlas Shelving â€“ 15 year warranty against rust and corrosion (components only).
Bonn Ovens / Microwaves:
Bonn Models CM-1042T, CM-1051T – Back to Base 24 months parts and 13 months labour warranty.
Bonn Models CM-902T – Back to Base 13 months parts and 13 months labour warranty.
Bonn Models CM-2100G and CM-1401TG– On Site 24 months parts and 13 months labour.
Duke models â€“ On Site 24 months parts and labour
Dynamic Mixers â€“ All Back to Base 24 months parts and 24 months labour warranty except: GIGAMIX – on-site 24 months parts and 24 months labour warranty.
Edlund â€“ All models except Crown Punch machines.
General Microwaves – Back to Base 13 months parts and 13 months labour warranty.
Hatco â€“ Back to Base Warranty models: GR-FFB, GMFFL, TPT-230-4-10, RCTHW-1E.
Jetstream Tapware â€“ Five Year on-site warranty – excludes faulty installation, sensitivity adjustments on electronic models, failure to instal pressure limiting devices where required.
Vito â€“ Back to Base Warranty models: all EXCEPT Vito X Vacuum Filtration Systems.
Yellow Induction â€“ Back to Base Warranty models: All Countertop.
Subject to the following conditions:
(i) this warranty will cover parts and labour unless specified otherwise, subject to the following limitations:
(A) damage to cutting blades, toaster elements, light globes, infrared tubes, quartz tubes or any glass items;
(B) where FSM is not responsible for installation – damage caused by improper installation or improper connection to incorrect gas, voltage, incorrect pressure or poor quality water;
(C) damage caused during transit or by accident;
(D) damage caused by negligence, abuse, unauthorised repair or the use of unauthorised spare parts;
(E) damage caused by improper cleaning, maintenance or operation;
(F) damage caused by voltage or gas conversion, pilot light adjustments, thermostat calibrations or any unauthorized alteration or modification;
(G) FSM’s liability under this warranty is limited to the repair or replacement of defective Goods and all other costs (including, without limitation, any travel costs, labour costs, overtime rates, installation costs, freight and delivery costs to and from FSM premises to the premises of an authorised repairer, or similar surcharges, fees and costs arising out of a warranty claim are excluded;
(ii) all warranty repair work will be performed between the hours of 8.30 am and 4.30 pm on normal working days;
On site warranty services are limited to sites within 50km from the nearest FSM authorised service agent.
With respect to “Back to Base” warranties, FSM can sell or dispose of any goods:
(i) Not collected by customer or
(ii) Where customer refuses to accept delivery of those goods within 60 days of FSM notifying customer goods are available for collection and/or delivery.
(iii) the warranty period in respect of any spare parts or replacement parts provided under this warranty is limited to 3 months from the delivery of such spare parts or the installation of such replacement parts;
(iv) where the payment terms under these Trading Terms have not been complied with, warranty claims will not be accepted in respect of such Goods;
(v) Risk in any Goods shall remain with You while such Goods are in Our possession for the purposes of assessing a warranty claim and FSM, its servants and agents will not be responsible for any damage caused to the Goods while in Our possession.
(vi) To obtain the benefit of this warranty, You must notify Us in writing immediately upon becoming aware of the alleged defect and in any event within 13 months (or other period as stipulated under item 13) of delivery of the Goods to You (3 months from the delivery of any spare parts or the installation of replacement parts under this warranty).
To the extent that any Goods are not covered under the warranty described in this clause 13(b) but are subject to the original manufacturer’s or the original supplier’s warranty, FSM will pass on the benefit of such warranty to the extent permitted by law.
(c) Subject to (a) and (b) of this clause 13 and without limiting the terms of any written warranty given separately by Us, all warranties and conditions that may be implied into these Trading Terms are excluded and Our liability for breach of any implied condition or warranty that cannot be excluded is limited (at Our option) to:
(i) in respect of Goods: the repair or replacement of those Goods or reimbursement of the cost of having those Goods repaired or replaced or refunding to You any payments made in respect of the Goods; and
(ii) in respect of Services: the re-supply of the Services or reimbursement of the cost of supplying the Services again or refunding to You any payments made in respect of the Services.
(d) Despite any other provision of these Trading Terms, to the extent permitted by law, We have no liability to You nor will You be entitled to claim against Us in respect of:
(i) any loss or damage caused by delay in delivery of the Goods or supply of the Services;
(ii) any death or injury arising out of or in connection with the supply of the Goods and/or Services or otherwise at law or in equity;
(iii) any consequential loss or damage (including, but not limited to, loss of profit, loss of revenue, loss of expected savings and opportunity costs) arising out of or in connection with the supply of the Goods and/or Services or otherwise at law or in equity; and
(iv) (if applicable) any loss or damage to Your property or any premises occupied by You arising out of or in connection with Our reasonable installation of the Goods and it is Your responsibility to provide adequate facilities to Us during such installation and to arrange the removal of all waste and hazardous material in connection with the installation process.
(e) You acknowledge that You have not relied on any representation made by Us which is not expressly stated in these Trading Terms.
(f) You acknowledge that You must ensure that the Goods are used and installed (if applicable) in a prudent and professional manner and in accordance with any specifications or instructions which were supplied with the Goods. You indemnify Us against all loss, liability, cost (including legal costs on a full indemnity basis) and expense incurred by Us as a result of any claim made or action brought in connection with the Goods or their use, other than a claim or action brought by You under these Trading Terms or a condition or warranty implied by law which is not excluded by these Trading Terms.
(g) You acknowledge that the exclusions and limitations in this clause are customary for suppliers of goods and services equivalent to the Goods and Services and are fair and reasonable given the nature of the Goods and Services and the applicable Prices.
(h) This clause shall survive termination of these Trading Terms

14. Consent to credit check and Privacy Act

(a)  By signing the Account Application form, You acknowledge and agree that the Privacy Act 1988 (Cth) allows Us to give a credit reporting agency certain personal information about You at any time after signing such form for the purpose of assessing Your credit worthiness.

(b)  You further acknowledge and agree that We may contact any trade reference provided by You or any credit provider and We may acquire information from them or provide information to them in relation to Your credit worthiness.

15. Guarantee and Indemnity

(a)  The Guarantor hereby guarantees the due and punctual payment by signature of all monies that becomes due and payable by You to Us under these Trading Terms and also the due and punctual performance by You of Your obligations pursuant to these Trading Terms (the “Guarantee”).

(b)  In consideration for Us entering into these Trading Terms with You, the Guarantor hereby charges in Our favour the whole of the Guarantor’s estate and interest, legal and equitable, in the Guarantor’s personal and real property to secure the Guarantor’s obligations pursuant to these Trading Terms.

(c)  Without limiting Our rights under these Trading Terms, the Guarantor acknowledges and agrees that the charge on the Guarantor’s property shall provide a caveatable interest in Our favour and the Guarantor consents to Us registering Our interest in the Guarantor’s property, including by way of a caveat.

(d)  The Guarantee is a continuing guarantee and shall not be discharged in whole or in part by the payment at any time of any part of the money payable by You pursuant to these Trading Terms or by settlement of account, intervening payment, or other matter or thing whatsoever.

(e)  The Guarantee shall not be affected or prejudiced by any variation or modification at any time to these Trading Terms.

(f)  The Guarantee shall at all times be valid and enforceable against the Guarantor notwithstanding:

    (i)  that no demand for payment has been made to You; and

    (ii)  that You were prohibited (whether expressly or by implication) by law, contract or otherwise from entering into these Trading Terms or lacked capacity, power or authority to enter into these Trading Terms.

(g)  The Guarantee is irrevocable and shall not be affected by the death, bankruptcy or incapacity of any of the Guarantors.

(h)  If any payment made by You to Us is subsequently avoided or set aside by reason of any statutory provision or otherwise, such payment shall not prejudice or otherwise affect the Guarantee, or Our rights pursuant to this clause 15, to the intent that We shall, with respect to its rights recover pursuant to this clause 15 any monies secured, be restored to the same position in which We would have been had such payment not been made.
(i)  In addition, the Guarantor agrees to indemnify Us in respect of all costs, charges and expenses whatsoever, which We may incur by reason of any default by You under or in relation to these Trading Terms.

(j)  The Guarantor is liable to pay, and indemnify Us for, Our reasonable expenses incurred in enforcing the Guarantee.

(k)  If more than one party signs as Guarantor, in this clause 15 each reference to “Guarantor” is a reference to them jointly and each of the individually.

16. General

(a)  We may sub-contract the production, manufacture, supply or delivery of all or some of the Goods and Services.

(b)  Any failure by Us to insist on strict compliance with these Trading Terms or any delay by Us in exercising Our rights under these Trading Terms will not constitute a variation or waiver of any provision of these Trading Terms or of any right available to us.

(c)  If part of all of any provision of these Trading Terms or its application to any person or circumstance is held to be illegal or unenforceable, the provision will be interpreted so as to ensure it is not illegal or unenforceable.  If any provision or part of it cannot be so interpreted, the provision or relevant part of it will be severed from these Trading Terms and the remaining provisions of these Trading Terms will continue in force.

(d)  Where You are comprised of 2 or more persons, an agreement or obligation to be performed or observed by You binds those persons jointly and each of them severally.

(e)  Any notice or document required to be served under these Trading Terms will be sufficiently served if delivered or posted by pre-paid post to the address of that party as notified by that party from time to time in writing.  If the notice or document is posted, service will deemed to have been effected 3 days after the date on which the document or notice was posted.

17. Governing Law

These Trading Terms are governed by the laws of Victoria.  All parties submit to the non-exclusive jurisdiction of the Courts of Victoria, Australia.  All parties submit to the non-exclusive jurisdiction of the Courts of Victoria, Australia.

n these Trading Terms and in any quotation, offer, current catalogue, website, price list produced by Us or other agreement with Us, the following definitions apply:

“Account Application Form” means the application form completed and provided by You for the purposes of opening a credit account with Us.

“Goods” means goods supplied by Us to You (and, where the context so permits, shall include any supply of Services) and described in any quotation, offer, current catalogue, website or price list produced by Us.

“Guarantor” means the guarantor(s) described in the Account Application Form, subject to acceptance by Us.

“GST” means the goods and services tax that applies in accordance with A New Tax System (Goods & Services) Act 1999 (Cth).

“Order” means any written, verbal or electronic purchase order made by You for Goods and/or Services.

“Prices” means the prices attributable to the Goods and Services as advised by Us in any quotation, offer, current catalogue, website or price list produced by Us and “Price” shall have a corresponding meaning.

“Services” means all services supplied by Us to You and includes any advice or recommendations (and where the context so permits shall include the supply and installation of any Goods).

“Trading Terms” means these terms and conditions of trade and includes any amendment or variation.

“We” and “Us” means F.S.M. [Food Service Machinery] Pty. Ltd. (ABN 9057185 4991) and includes any Related Bodies Corporate (as defined in the Corporations Act 2001 (Cth)) which supplies Goods and/or Services to You (whether or not the fact is disclosed to You) and “Our” means belonging or pertaining to Us.

“You” means the person, firm or company placing an order with Us for the Goods and “Your” means belonging or pertaining to You.

2. Application of Trading Terms

(a) These Trading Terms apply to every sale of Goods and/or supply of Services by Us to You.  Each Order made by You and accepted by Us will be an individual contract for those Goods and/or Services in accordance with these Trading Terms. 

(b) Subject to any special trading terms agreed to between You and Us and recorded in Your Account Application Form or separately in writing, these Trading Terms (together with any quotation, offer, current catalogue, or price list produced by Us) shall comprise in entirety Our terms and conditions of trade. 

(c) In the event of any inconsistency between these Trading Terms and any other document, these Trading Terms shall prevail and any trading terms nominated by You are expressly excluded.  Any warranty, representation or guarantee not included or provided for in these Trading Terms is of no effect.

(d) If any part of these Trading Terms, or the application of these Trading Terms to any person or circumstance, is or becomes invalid or enforceable, the remaining provisions of these Trading Terms are not affected and are valid and enforceable to the fullest extent permitted by law.

(e) We may amend these Trading Terms from time to time without notice to You and You will be deemed to have had knowledge of such amendments and have accepted these Trading Terms as amended if You continue to purchase Goods and/or Services from Us after such amendment. Each subsequent supply of Goods and/or Services by Us to You will be in accordance with these Trading Terms as amended.

3. Agreement

(a) Any quotation or offer produced by Us is subject to review, amendment or withdrawal at any time prior to acceptance by You or the expiry of the quotation or offer (whichever occurs first).

(b) Subject to (c) of this clause, Our quotation or offer will be deemed to have been accepted by You and a binding agreement entered into with You on the date We receive Your Order.  Any Order which has been accepted by Us may not be cancelled by You without Our written consent (which We may withhold in Our absolute discretion) and then only on the basis that You will indemnify Us in full against all loss (including loss of profit), costs (including the cost of labour and materials used), damages, charges and expenses (including legal costs on a full indemnity basis) incurred by Us as a result of such cancellation.  Cancellation of any Orders for Goods which are non-standard manufacture or non-stock items will not be accepted.

(c) We reserve the right to decline, in whole or in part, any Order received from You in Our absolute discretion.

(d) You are solely responsible for determining whether the Goods and Services are suitable for Your intended purposes and meet Your requirements and You acknowledge that no oral or written information, representation or advice given by Us (other than as contained in these Trading Terms) creates a warranty from Us or in any way increases the scope of these Trading Terms.

(e) You agree to notify Us in writing of any change in the ownership or control of Your business structure not less than 7 days prior to such change taking effect and You indemnify Us against any loss or damage We may incur as a result of Your failure to provide such notification.

4. Documents

Any clerical or typing errors, misprints or other similar errors in any document produced by Us in respect of Goods and/or Services are subject to correction by Us by either amending or re-issuing the affected document (as the case requires).  We shall not be liable for any cost, expense or damage incurred by You as a result of any correction of any document produced by Us.

5. Intellectual Property

You acknowledge and agree that:

(a) any intellectual property rights in respect of the Goods and Services (including, but not limited to, rights to design, copyright, patents or trademarks in respect of all drawings, designs, specifications and other information provided by Us in connection with any quotation, offer, current catalogue, website, price list produced by Us) remain Our sole and exclusive property and must remain confidential and You will not attempt to claim any such intellectual property rights in respect of  either the Goods and Services or any modification or improvement of the Goods and Services;

(b) You must not attempt to modify or reverse engineer the Goods and Services; and

(c) in all cases where You have provided the design for any Goods and Services, We will not accept any responsibility for any infringement of any design, copyright, patents or trademarks or other intellectual property in connection with the execution of Your Order and You agree to indemnify Us against claims for infringement or unauthorised use of such intellectual property arising out of the manufacture or use of such Goods and Services.

6. Prices and Charges

(a)  You agree to buy and We agree to sell the Goods and Services for the Prices.

(b)  All Prices and all amounts payable to Us are exclusive of GST or any other applicable government tax or duty, unless otherwise indicated.  You must pay all such taxes and duties in connection with those amounts.

(c)  The Prices include the cost of Our standard packaging for the Goods.  The cost of any special packaging materials or techniques requested by You in connection with the Goods must be paid for by You in addition to the Prices.

(d)  We reserve the right, from time to time but prior to issuing any invoice to You, to increase the Prices:

    (i)  to take account of increases in the cost of supplying the Goods and/or Services to You (which may include, but are not limited to, increases in the cost of energy, materials, labour, equipment or delivery) which are due to any factor beyond Our reasonable control or are due to Your failure to provide adequate information or instructions; or

    (ii)  to correct, without any liability on Our part, any errors or omissions quotation, offer, current catalogue, website or price list produced by Us.

7. Payment

(a) We reserve the right to pass on to You any additional costs (including merchant fees) incurred by Us where You pay Us by credit card (if applicable).

(b) If We have not provided credit terms to You, You must pay for the Goods prior to delivery.

(c) If We have provided credit terms to You, You must pay for any Goods and/or Services provided to You within the time period stated in Our invoice or statement for such Goods and/or Services.  If We have not stated a time period for payment, You must pay for the Goods and/or Services within 30 days of the end of the month in which we issued Our invoice or statement for the Goods and/or Services.

(d)  We may set, alter or withdraw credit limits and terms in Our absolute discretion and without giving prior notice to You or providing reasons.

(e)  Payments due to Us must be made without any deduction or set-off.  We may apply the amounts paid to Us in payment of any amount owed by You.  If You dispute Our invoice or statement, You must still pay the entire amount.  We will refund any agreed amount following resolution of the dispute.

(f)  If You fail to pay Our invoice or statement (whether in whole or in part) by the due date, without limiting any other provision in these Trading Terms, We may (in Our absolute discretion):

    (i)  suspend or cancel any further production and/or delivery of any Goods or supply of any Services (whether under an existing or new Order) until full payment of all outstanding amounts owed to Us (including accrued interest if applicable) has been made;

    (ii)  charge interest on any amount outstanding in respect of Our invoices, at the rate of 1.5% per month, such interest to be calculated daily and compounded monthly), until  full payment has been made (such interest rate to be subject to amendment from time to time by Us in Our absolute discretion;

    (iii)  exercise a general lien on any of Your property within Our possession  or control to cover the outstanding amount for the Goods and/or Services;

    (iv)  withdraw (in full or in part) any discount, concession, allowance or benefit which was previously offered to You; and

    (v)  recover from You, in addition to the outstanding amount, all costs incurred by Us arising out of or in connection with collecting the outstanding amount (including, but not limited to, expenses and fees associated with or paid to or on account of solicitors, legal advisers, mercantile agents and other agents acting on Our behalf) and the amount payable will be a debt due and payable without demand from the date on which We incur liability for the cost, expense or fee.

8. Security Interest and the Personal Property Securities Act 2009 (“PPSA”)

If you have a current credit facility in place with Us, You acknowledge and agree that the following terms apply:

(a)  We may require You to provide security for any Order placed by You as a condition of accepting Your Order and the terms of the Personal Property Securities Act 2009 (Cth) (“PPSA”) apply to all transactions made under these Trading Terms.

(b)  You acknowledge and agree that You will:

    (i)  grant a security interest in all present and after acquired Goods as security for all amounts owing now and in the future by You to Us;

    (ii)  do all things and sign all documents as are necessary and reasonably required to enable Us to acquire a perfected security interest in all Goods supplied;

    (iii)  provide such information as is required to enable registration of a ‘Purchase Money Security Interest’ (as that term is defined in the PPSA) (“PMSI”);

    (iv)  not, without obtaining Our prior written consent, change Your name or initiate any change to any registered documentation, or act in any manner which would impact on Our registered security interest; and

    (v)  waive or exclude the application of such sections of the PPSA as We may require, subject to those sections being capable of exclusion.

    (c)  You further acknowledge that a PMSI is granted by You, in priority to all other creditors, in favour of Us and in respect of all Goods We supply to You from time to time, as security for Your payment obligations to Us.  You agree to indemnify Us for any liability for all costs (including legal costs on a full indemnity basis) incurred by Us in relation to any security interest granted by You (including, but not limited to, registration, maintenance, enforcement or discharge of any security interest).

(d)  We reserve the right at any time to make such amendments, alterations to this ‘Security Interest’ clause as We may, in Our absolute discretion, determine are necessary to protect Our security interests.

9. Title and Risk

(a)  Title to and ownership of the Goods shall not pass to You until We have received full payment for the Goods and for any other amounts owing by You in relation to any other matter (including payments in respect of other goods or services provided to You from time to time) and You shall hold the Goods (including where such Goods have been converted or changed by any process) as fiduciary bailee and agent for Us. 

(b)  Risk in the Goods shall pass to You upon completion of delivery in accordance with these Trading Terms.

(c)  You acknowledge that We hold a PMSI (as defined in clause 8) in respect of any Goods supplied to You until We have received full payment in respect of such Goods.  You must not pledge, or in any way charge by way of security or indebtedness, any of the Goods until We have received full payment.

(d)  Upon taking delivery of the Goods and until We receive full payment for the Goods and for any other amounts owing by You in relation to any other matter, until the Goods are sold by You in the ordinary course of your business, You must:

    (i)  keep the Goods in Your control and custody and not permit any other person to have possession, custody or control of the Goods;

    (ii)  keep the Goods separate from any other items or goods in Your possession and mark the Goods to clearly show that the Goods belong to Us;

    (iii)  not pledge, or in any way charge by way of security or indebtedness, any of the Goods;

    (iv)  permit Our nominated representative to attend Your premises on prior notice to inspect the Goods; and

    (v)  deposit all proceeds from the sale of the Goods into a separate and identifiable account, not mix such sale proceeds with any other money and account to Us for such sale proceeds;

and We may trace all such sale proceeds received by You through the relevant account or any other account maintained by You.  In addition, You irrevocably appoint Us as Your attorney to recover any such sale proceeds from any purchaser to whom You have on-sold the Goods and to exercise Your rights under any agreement with such purchaser (including rights of repossession and resale of the Goods) provided that We undertake not to exercise such rights as Your attorney unless You have failed to comply with Your payment obligations to Us under these Trading Terms.

(e)  Without prejudice to any of Our other rights, if You fail to comply with these Trading Terms, if You cease to be able to pay Your debts as they become due or if You become subject to any form of insolvency administration:

    (i)  all amounts owing by You to Us shall immediately become due and payable;

    (ii)  We have the right to immediate possession of the Goods and You irrevocably authorise Us to enter any premises occupied by You at the time upon reasonable notice to You, without liability for trespass or any resulting damage, and take possession of the Goods.  You agree to indemnify Us and hold Us harmless from all claims arising out of or in connection with Us taking possession of the Goods in accordance with this clause;

    (iii)  We may retain all amounts paid to us on account of the Goods and suspend or cancel any further production and delivery of Goods for You;

    (iv)  We shall be entitled, but not obligated, to resell any Goods repossessed by Us in accordance with this clause; and

    (v)  We may recover from You all reasonable costs incurred by Us in connection with any Goods repossessed under this clause (including legal costs on a full indemnity basis) and the amount payable will be a debt due and payable without demand from the date on which We incur liability for the cost, expense or fee.

(f)  If, at the time We seek to take possession of the Goods in accordance with this clause, the Goods have been incorporated by You in any other item or goods, We will be treated as owners of such other items or goods together with You, as tenants in common in proportion to our respective contributions.

10. Delivery

(a) The delivery dates and completion times contained in any quotation, offer or price list provided to You are estimates only, unless expressly stated to be an essential term and may be varied at any time by Us depending upon the availability of Goods, materials, labour and other contingencies. All backorders will be delivered to You freight free as quickly as Goods become available. All Austream Goods are quoted ex-factory Melbourne or Perth.

(b) In circumstances where the Goods are being shipped to a region where You are arranging collection and unless expressly agreed otherwise in writing by Us, the following terms apply:
(i) the method and date of delivery of all Goods shall be on the terms stated in the quotation, offer or price list provided to You (as applicable) and shall be at Your cost and expense (ex Warehouse from Our Premises) and You agree that in the event that any freight or delivery charges are paid by Us, You must reimburse Us the full amount of such charges on demand;
(ii) delivery of such Goods by Us is complete when the Goods are collected by You or Your nominated agent or carrier; and

(iii) delivery of such Goods is at all time at Your risk.
(c) In circumstances where we have agreed to deliver the Goods to your nominated address for delivery, the following terms shall apply:
(i) If you have a current credit facility in place with Us, and your nominated address for delivery is located in Victoria, New South Wales, ACT, Queensland (excluding far north Queensland), or metropolitan areas of Adelaide or Perth, and Your Order is valued at $1,000 or more (excl. GST and delivery charges), the Prices quoted for your Order will include delivery costs (FIS);

(ii) all other Orders will be dispatched “freight collect” to your nominated freight account or otherwise by our choice of carrier and a minimum delivery fee of $30 (excl. GST) will apply where Orders are delivered by our choice of carrier ($40 (excl. GST) minimum delivery fee to NT and Tasmania), such delivery fees to be subject to amendment from time to time by Us in Our absolute discretion; and

(iii) deliveries will only be made at the ground floor level to a kerbside drop or goods receiving area where it then becomes Your responsibility and expense to supply such labour and equipment as may be necessary to unload Your Order.

11. Force Majeure

We will not be liable for any failure to perform, or delay in performance of, any obligation where such failure or delay is due to anything beyond Our reasonable control including, but not limited to, adverse weather or terrain, strikes, lockouts and other industrial action, material shortages, failure of any of Our suppliers to supply, accidents, power or data transmission failure, breakdowns of plant or machinery, war, changes of government, import or export regulations or embargoes.

12. Inspection and Return of Goods

(a)  You will be deemed to have accepted the Goods, free from any defect or other non-conformity, unless We receive a substantiated claim from You within 7 days from the date of delivery and/or installation of the Goods in accordance with these Trading Terms.

(b)  Except where Goods supplied by Us are defective and subject to any warranty:

    (i)  Goods will only be accepted for return if You have given prior written notice to Us (confirming Your reasons for returning the Goods and stating the applicable invoice number) of Your intention to return the Goods and We have notified You in writing with a completed GRN form that We will accept such return, and that a copy of the GRN Form supplied by us accompanies the goods being returned;

    (ii)  We may refuse to accept Goods where they are used, no longer in their original packaging or are returned more than 2 months after delivery to You;

    (iii)  We will refuse to accept the return of any Goods which are non-standard manufacture or non-stock items where such Goods have been correctly delivered by Us;

    (iv)  delivery of all Goods returned by You must be arranged with Your carrier and is at Your expense and risk; and

    (v)  in the event that We agree to accept the return of any Goods, You may be required to agree to pay a 15% restocking fee, such fee to be subject to amendment from time to time by Us in Our absolute discretion.

(c)  We will only accept the return of Goods from You if the Goods are in the same condition as when the Goods were originally delivered to You, provided that Our acceptance of Goods returned by You is not an acceptance of or granting of credit to You.

13. Limitation of Liability and Warranties

a) The Competition and Consumer Act 2010 (Cth) may imply certain conditions and warranties into these Trading Terms that cannot be excluded or modified. These Trading Terms do not exclude or modify any of those conditions if to do so would contravene that law or make any part of these Trading Terms void.
(b) Where our products are used in a Commercial environment, Subject to the provisions of this clause 13, We will repair or replace any Goods which are manufactured or imported by Us where We, in Our absolute discretion, determine that such Goods, having regard to the materials, workmanship and the reasonable and recommended conditions of use and maintenance, are defective within the period of Warranty (as specified below):
All products within 13 months (Parts & Labour), from the date of delivery to the original Purchaser with the exception of the following:
Asahi Rice Cookers – Back to Base 13 months parts and 13 months labour warranty.
Atlas Shelving – 15 year warranty against rust and corrosion (components only).
Bonn Ovens / Microwaves:
Bonn Models CM-1042T, CM-1051T – Back to Base 24 months parts and 13 months labour warranty.
Bonn Models CM-902T – Back to Base 13 months parts and 13 months labour warranty.
Bonn Models CM-2100G and CM-1401TG– On Site 24 months parts and 13 months labour.
Duke models – On Site 24 months parts and labour
Dynamic Mixers – All Back to Base 24 months parts and 24 months labour warranty except: GIGAMIX – on-site 24 months parts and 24 months labour warranty.
Edlund – All models except Crown Punch machines.
General Microwaves – Back to Base 13 months parts and 13 months labour warranty.
Hatco – Back to Base Warranty models: GR-FFB, GMFFL, TPT-230-4-10, RCTHW-1E.
Jetstream Tapware – Five Year on-site warranty – excludes faulty installation, sensitivity adjustments on electronic models, failure to instal pressure limiting devices where required.
Vito – Back to Base Warranty models: all EXCEPT Vito X Vacuum Filtration Systems.
Yellow Induction – Back to Base Warranty models: All Countertop.
Subject to the following conditions:
(i) this warranty will cover parts and labour unless specified otherwise, subject to the following limitations:
(A) damage to cutting blades, toaster elements, light globes, infrared tubes, quartz tubes or any glass items;
(B) where FSM is not responsible for installation – damage caused by improper installation or improper connection to incorrect gas, voltage, incorrect pressure or poor quality water;
(C) damage caused during transit or by accident;
(D) damage caused by negligence, abuse, unauthorised repair or the use of unauthorised spare parts;
(E) damage caused by improper cleaning, maintenance or operation;
(F) damage caused by voltage or gas conversion, pilot light adjustments, thermostat calibrations or any unauthorized alteration or modification;
(G) FSM’s liability under this warranty is limited to the repair or replacement of defective Goods and all other costs (including, without limitation, any travel costs, labour costs, overtime rates, installation costs, freight and delivery costs to and from FSM premises to the premises of an authorised repairer, or similar surcharges, fees and costs arising out of a warranty claim are excluded;
(ii) all warranty repair work will be performed between the hours of 8.30 am and 4.30 pm on normal working days;
On site warranty services are limited to sites within 50km from the nearest FSM authorised service agent.
With respect to “Back to Base” warranties, FSM can sell or dispose of any goods:
(i) Not collected by customer or
(ii) Where customer refuses to accept delivery of those goods within 60 days of FSM notifying customer goods are available for collection and/or delivery.
(iii) the warranty period in respect of any spare parts or replacement parts provided under this warranty is limited to 3 months from the delivery of such spare parts or the installation of such replacement parts;
(iv) where the payment terms under these Trading Terms have not been complied with, warranty claims will not be accepted in respect of such Goods;
(v) Risk in any Goods shall remain with You while such Goods are in Our possession for the purposes of assessing a warranty claim and FSM, its servants and agents will not be responsible for any damage caused to the Goods while in Our possession.
(vi) To obtain the benefit of this warranty, You must notify Us in writing immediately upon becoming aware of the alleged defect and in any event within 13 months (or other period as stipulated under item 13) of delivery of the Goods to You (3 months from the delivery of any spare parts or the installation of replacement parts under this warranty).
To the extent that any Goods are not covered under the warranty described in this clause 13(b) but are subject to the original manufacturer’s or the original supplier’s warranty, FSM will pass on the benefit of such warranty to the extent permitted by law.
(c) Subject to (a) and (b) of this clause 13 and without limiting the terms of any written warranty given separately by Us, all warranties and conditions that may be implied into these Trading Terms are excluded and Our liability for breach of any implied condition or warranty that cannot be excluded is limited (at Our option) to:
(i) in respect of Goods: the repair or replacement of those Goods or reimbursement of the cost of having those Goods repaired or replaced or refunding to You any payments made in respect of the Goods; and
(ii) in respect of Services: the re-supply of the Services or reimbursement of the cost of supplying the Services again or refunding to You any payments made in respect of the Services.
(d) Despite any other provision of these Trading Terms, to the extent permitted by law, We have no liability to You nor will You be entitled to claim against Us in respect of:
(i) any loss or damage caused by delay in delivery of the Goods or supply of the Services;
(ii) any death or injury arising out of or in connection with the supply of the Goods and/or Services or otherwise at law or in equity;
(iii) any consequential loss or damage (including, but not limited to, loss of profit, loss of revenue, loss of expected savings and opportunity costs) arising out of or in connection with the supply of the Goods and/or Services or otherwise at law or in equity; and
(iv) (if applicable) any loss or damage to Your property or any premises occupied by You arising out of or in connection with Our reasonable installation of the Goods and it is Your responsibility to provide adequate facilities to Us during such installation and to arrange the removal of all waste and hazardous material in connection with the installation process.
(e) You acknowledge that You have not relied on any representation made by Us which is not expressly stated in these Trading Terms.
(f) You acknowledge that You must ensure that the Goods are used and installed (if applicable) in a prudent and professional manner and in accordance with any specifications or instructions which were supplied with the Goods. You indemnify Us against all loss, liability, cost (including legal costs on a full indemnity basis) and expense incurred by Us as a result of any claim made or action brought in connection with the Goods or their use, other than a claim or action brought by You under these Trading Terms or a condition or warranty implied by law which is not excluded by these Trading Terms.
(g) You acknowledge that the exclusions and limitations in this clause are customary for suppliers of goods and services equivalent to the Goods and Services and are fair and reasonable given the nature of the Goods and Services and the applicable Prices.
(h) This clause shall survive termination of these Trading Terms

14. Consent to credit check and Privacy Act

(a)  By signing the Account Application form, You acknowledge and agree that the Privacy Act 1988 (Cth) allows Us to give a credit reporting agency certain personal information about You at any time after signing such form for the purpose of assessing Your credit worthiness.

(b)  You further acknowledge and agree that We may contact any trade reference provided by You or any credit provider and We may acquire information from them or provide information to them in relation to Your credit worthiness.

15. Guarantee and Indemnity

(a)  The Guarantor hereby guarantees the due and punctual payment by signature of all monies that becomes due and payable by You to Us under these Trading Terms and also the due and punctual performance by You of Your obligations pursuant to these Trading Terms (the “Guarantee”).

(b)  In consideration for Us entering into these Trading Terms with You, the Guarantor hereby charges in Our favour the whole of the Guarantor’s estate and interest, legal and equitable, in the Guarantor’s personal and real property to secure the Guarantor’s obligations pursuant to these Trading Terms.

(c)  Without limiting Our rights under these Trading Terms, the Guarantor acknowledges and agrees that the charge on the Guarantor’s property shall provide a caveatable interest in Our favour and the Guarantor consents to Us registering Our interest in the Guarantor’s property, including by way of a caveat.

(d)  The Guarantee is a continuing guarantee and shall not be discharged in whole or in part by the payment at any time of any part of the money payable by You pursuant to these Trading Terms or by settlement of account, intervening payment, or other matter or thing whatsoever.

(e)  The Guarantee shall not be affected or prejudiced by any variation or modification at any time to these Trading Terms.

(f)  The Guarantee shall at all times be valid and enforceable against the Guarantor notwithstanding:

    (i)  that no demand for payment has been made to You; and

    (ii)  that You were prohibited (whether expressly or by implication) by law, contract or otherwise from entering into these Trading Terms or lacked capacity, power or authority to enter into these Trading Terms.

(g)  The Guarantee is irrevocable and shall not be affected by the death, bankruptcy or incapacity of any of the Guarantors.

(h)  If any payment made by You to Us is subsequently avoided or set aside by reason of any statutory provision or otherwise, such payment shall not prejudice or otherwise affect the Guarantee, or Our rights pursuant to this clause 15, to the intent that We shall, with respect to its rights recover pursuant to this clause 15 any monies secured, be restored to the same position in which We would have been had such payment not been made.
(i)  In addition, the Guarantor agrees to indemnify Us in respect of all costs, charges and expenses whatsoever, which We may incur by reason of any default by You under or in relation to these Trading Terms.

(j)  The Guarantor is liable to pay, and indemnify Us for, Our reasonable expenses incurred in enforcing the Guarantee.

(k)  If more than one party signs as Guarantor, in this clause 15 each reference to “Guarantor” is a reference to them jointly and each of the individually.

16. General

(a)  We may sub-contract the production, manufacture, supply or delivery of all or some of the Goods and Services.

(b)  Any failure by Us to insist on strict compliance with these Trading Terms or any delay by Us in exercising Our rights under these Trading Terms will not constitute a variation or waiver of any provision of these Trading Terms or of any right available to us.

(c)  If part of all of any provision of these Trading Terms or its application to any person or circumstance is held to be illegal or unenforceable, the provision will be interpreted so as to ensure it is not illegal or unenforceable.  If any provision or part of it cannot be so interpreted, the provision or relevant part of it will be severed from these Trading Terms and the remaining provisions of these Trading Terms will continue in force.

(d)  Where You are comprised of 2 or more persons, an agreement or obligation to be performed or observed by You binds those persons jointly and each of them severally.

(e)  Any notice or document required to be served under these Trading Terms will be sufficiently served if delivered or posted by pre-paid post to the address of that party as notified by that party from time to time in writing.  If the notice or document is posted, service will deemed to have been effected 3 days after the date on which the document or notice was posted.

17. Governing Law

These Trading Terms are governed by the laws of Victoria.  All parties submit to the non-exclusive jurisdiction of the Courts of Victoria, Australia.  All parties submit to the non-exclusive jurisdiction of the Courts of Victoria, Australia.