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agreement without prejudice to any other right or remedy, all outstanding money
shall bear interest at the rate set, pursuant to the Penalty Interest Rates Act, Victoria,
1986, as such money, together with interest shall be recoverable forthwith from the
Purchaser�
Rights in relation to Goods.
16�
(1) At all times until the Debts have been paid in full the Purchaser shall be responsible
for any loss or damage occasioned to the supplied Goods howsoever occasioned on
a strict liability basis and shall indemnify Goldacres against any such loss or damage
and shall insure and keep insured the Goods in the name of both the purchaser and
Goldacres against such loss or damage to the full extent of the purchase price and
shall provide a copy of such Insurance Policy to Goldacres�
(2)
The Purchaser shall have the right to resell Goods but only as fiduciary agent and
trustee for Goldacres by way of bona fide sale at full market value and in the ordinary
course of its business�
(3)
Until all the Debts have been paid in full:
(a)
the Purchaser shall take custody of the Goods as trustee, fiduciary agent and bailee for
Goldacres;
(b)
the Purchaser shall keep the Goods separate from any other goods and properly
marked, stored, protected and insured;
(c)
the Purchaser must hold all of the money it receives ("Proceeds"):
(i)
from the sale of any property into which Goods supplied have been incorporated; and
(ii)
from the sale of Goods or provision of services including the Goods supplied by the
Goldacres as bailee, fiduciary agent and trustee for Goldacres, but the Purchaser need
not hold on trust any money exceeding the amount of the Debts at the time the money
is received�
(d)
The Purchaser expressly acknowledges that it is bound by the fiduciary obligation
created in the preceding paragraph and acknowledges that:
(i)
it must hold the Proceeds on trust for Goldacres;
(ii)
it must place the whole of the Proceeds in an account separate from its own moneys
(the "Proceeds Account");
(iii)
it must maintain the Proceeds Account separate from its own moneys at all times�
(iv)
it must maintain proper records for the Proceeds Account�
(v)
it must not assign or encumber any book debts arising from sales made in
circumstances set out in clauses 16(c)(i) and (ii) or do any other act in derogation of
Goldacres' legal or beneficial interests; and
(vi)
it must account to Goldacres on demand for all moneys standing to the credit of such
account�
(e)
For the purposes of identification of different consignments of Goods purchased from
Goldacres and receipt of Proceeds, the Purchaser agrees that the principle of "Last In,
First Out" shall be applied to any items that cannot be distinguished�
(f)
Goldacres may trace the Proceeds in equity�
(4)
Goldacres may at any time, without notice to the Purchaser and without prejudice to
any other rights which it may have against the Purchaser, terminate any contract con-
nected with the Goods and the bailment referred to in clause 16(3) and enter upon any
premises owned or occupied by the Purchaser where Goldacres reasonably believes
the Goods may be stored, and repossess the Goods without liability for any damaged
caused, and subsequently dispose of the Goods at Goldacres's discretion if:
(a)
the Debts are not paid in accordance with these terms and conditions or any other
contract or arrangement between Goldacres and the Purchaser; or
(b)
Goldacres receives notice of or reasonably believes that:
(i)
a third person may attempt to levy execution against the Goods; or
(ii)
the Purchaser is insolvent (within the meaning of the Corporations Act 2001) or
bankrupt; or
(iii)
the Purchaser has entered into any arrangement or composition with its creditors,
gone into liquidation, or has appointed a receiver, a receiver and manager or adminis-
trator�
(5)
If after repossession under clause 16(4) Goldacres sells the Goods, Goldacres shall
account to the Purchaser for any proceeds of sale (less expenses of repossession and
sale) that exceeds the amount of the outstanding Debts�
(6)
If any Goods belonging to Goldacres are disposed of by the Purchaser or an insurance
claim is made in respect of them, Goldacres shall be entitled to trace the sale or
insurance proceeds, which proceeds shall be held by the Purchaser in a separate bank
account on trust for Goldacres�
(7)
The Purchaser agrees and acknowledges that in the event it sells Goods to a third
party on account, it will include in its terms and conditions of sale a provision under
which the Purchaser retains title to the Goods until such time that the total amount
due in respect of the Goods and all monies owing to the Purchaser have been paid in
full by that third party debtor� The Purchaser also agrees and acknowledges that in
these instances, it will register its PMSI in accordance with the PPSA in respect of its
security interest in the Goods�
PPSA provisions
17�
(1) The Purchaser acknowledges that these terms and conditions constitute a security
agreement for the purposes of section 20 of the PPSA and that a security interest
exists in all Goods (and any associated Proceeds from their sale) previously supplied
by Goldacres to the Purchaser (if any) and in all in future Goods (and any associated
Proceeds from their sale) that may be supplied to the Purchaser by Goldacres�
(2)
The Purchaser acknowledges that Goldacres has a first ranking purchase money
security interest ("PMSI") (as defined in section 14 of the PPSA) in the Goods and the
Purchaser must not jeopardise such ranking (whether by act or omission)�
(3)
The Purchaser acknowledges that it has received value as at the date of first delivery
of the Goods and has not agreed to postpone the time for attachment of the security
interest (as defined in the PPSA) granted to Goldacres under these terms and condi-
tions�
(4)
The Purchaser will execute documents and do such further acts as may be required by
Goldacres to register the security interest granted to Goldacres under these terms and
conditions under the PPSA�
(5)
Until ownership of the Goods passes, the Purchaser must not give to Goldacres a
written demand or allow any other person to give Goldacres a written demand requir-
ing Goldacres to register a financing change statement under the PPSA in respect of
Goldacres's interest in the Goods�
(6)
The Purchaser must indemnify Goldacres and on demand reimburse Goldacres for all
costs and expenses incurred by Goldacres in respect of these terms and conditions
including but not limited to Goldacres registering its security interest in the Goods,
lodging, discharging or amending any financing statement or financing change state-
ment, or otherwise complying with the PPSA�
(7)
The Purchaser agrees (other than as provided in these terms and conditions) not to
sell, lease, mortgage, deal with, dispose of or create or attempt to create any other
security interest in or affecting the Goods unless and until the Purchaser's Debts have
been satisfied�
(8)
The Purchaser waives its rights under the following provisions of Chapter 4 of the
PPSA:
(a)
to receive a notice on enforcement action against liquid assets (section 121(4),
(b)
to receive a notice to seize collateral (section 123);
(c)
to receive a notice of disposal of Goods by Goldacres purchasing the Goods (section
129);
(d)
to receive a notice to dispose of Goods (section 130);
(e)
to receive a statement of account following disposal of Goods (section 132(2));
(f)
to receive a statement of account if no disposal of Goods for each 6 month period
(section 132(4));
(g)
to receive notice of any proposal of Goldacres to retain Goods (section 135(2));
(h)
to object to any proposal of Goldacres to either retain or dispose of Goods (section
137(2));
(i)
to redeem the Goods (section 142);
(j)
to reinstate the security agreement (section 143);
(k)
to receive a notice of any verification statement (section 157(1) and section 157(3);
(9)
The rights Goldacres may have under the PPSA are supplementary and in addition to
those set out in these terms and conditions and do not derogate from the rights and
remedies of Goldacres under these terms and conditions or under any other statute or
under general law�
(10)
The Purchaser must give 10 business days prior written notice of any proposed change
in the Purchaser's name or other identifying characteristics and details�
Purchasers property
18�
Any property of the Purchaser under Goldacres's custody or control shall be entirely at
the Purchaser's risk as regards loss or damage caused to the property or by it�
Storage
19�
Goldacres reserves the right to make a reasonable charge for storage if delivery
instructions are not provided by the Purchaser within (14) fourteen days of a request
by Goldacres for such information�
Returned Goods
20�
Goldacres shall not be under any obligation to accept Goods returned by the Purchaser
and will do so only on terms to be agreed in writing in each individual case�
Goods sold
21�
All Goods to be supplied by Goldacres shall be described on the purchase order agreed
by Goldacres and the Purchaser and the description on such purchase order modified
as so agreed shall prevail over other descriptions including any Purchaser's specifica-
tion or enquiry�
Cancellation
22�
No order may be cancelled except with the consent in writing and on terms, which will
indemnify Goldacres against all losses�
No waiver
23�
The failure of any party to enforce the provisions of these terms and conditions or
to exercise any rights expressed in these terms and conditions shall not be a waiver
of such provisions or rights and shall not affect the enforcement of this agreement�
The exercise by any party of any of its rights expressed in this agreement shall not
preclude or prejudice such party from exercising the same or any other rights it may
have irrespective of any previous action taken by that party�
Force Majeure
24�
If by reason of any fact, circumstance, matter or thing beyond the reasonable control
of Goldacres is unable to perform in whole or in part any obligation under these terms
and conditions then Goldacres shall be relieved of that obligation under these terms
and conditions to the extent and for the period that it is so unable to perform and shall
not be liable to the Purchaser in respect of such inability�
Passing of risk
25�
Risk in the Goods shall pass to the Purchaser upon delivery of the Goods to the
Purchaser or collection of the Goods by the Purchaser's agent or carrier as the case
may be�
Exclusion of liability
26�
To the extent permitted by law Goldacres shall not be liable to the Purchaser in
contract or in tort arising out of, or in connection with, or relating to, the performance
of the Goods or any breach of these conditions or any fact, matter or thing relating to
the Goods or error (whether or not it is negligent or a breach of contract) in informa-
tion supplied to the Purchaser or a user before or after the date of the Purchaser's or
user's use of the Goods and Goldacres shall be under no liability for damages arising
out of the use of any chemicals, liquids, or mixtures in the Goods, nor for any applica-
tion, not for the application methods nor for the environmental effects, which may
result therefrom or from the use of the Goods�
Exclusion of representations and arrangements
27�
To the extent permitted by law the terms and conditions supersede and exclude all
prior and other discussions, representations (contractual or otherwise) and arrange-
ments relating to the supply of the Goods or any part thereof including, but without
limiting the generality of the foregoing, those relating to the performance of the Goods
or any part thereof or the results that ought to be expected from using the Goods�
Place of contract
28�
The contract for sale of the Goods and the provision of the services is made in the
State of Victoria and the Purchaser agrees to submit all disputes arising with Golda-
cres to the courts of such State and any court competent to hear appeals therefrom�
25
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