Business with Swann Communications Pty Ltd

Business with Swann Communications Pty Ltd (Australia)

Trading Terms & Conditions

1. General

Swann Communications Pty Ltd (ACN 006 786 072) ("Swann") will only supply goods to you ("Customer") on the following terms and conditions unless Swann agrees, in writing, to vary these terms and conditions. Any other terms and conditions are excluded unless implied by law and which can not be excluded. By accepting delivery of all or a portion of the goods ordered from Swann, the Customer shall be deemed to have accepted these terms to the exclusion of all others.

2. Credit Terms

Payment is due on or prior to 30 days from the date of invoice unless otherwise stated. Swann may charge liquidated damages at a rate equivalent to two percent (2%) charged monthly, calculated daily. The Customer is liable for all reasonable expenses (including contingent expenses) and legal costs incurred by Swann for enforcement of obligations and recovery of moneys due from the Customer to Swann.

3. Delivery & Supply

Any times quoted for delivery are estimates only and Swann shall not be liable for failure to deliver, or for delay in delivery. All quoted prices exclude freight costs. If the Customer nominates a freight carrier for delivery of Goods, Swann is not liable for any loss or damage to those Goods and the Customer must arrange and pay for insurance of those Goods prior to shipping. The Customer shall not be relieved of any obligation to accept or pay for goods, by reason of any delay in delivery or dispatch. Swann reserves the right to stop supply at any time if the Customer Fails to comply with the Terms or Swann's credit department in its sole discretion withdraws its approval of the Customer.

4. Reservation of Title

Notwithstanding delivery of the Goods to the Customer, until the Customer pays for the Goods in full and any other Goods previously supplied by Swann:

4.1 Ownership of the Goods is only transferred to the Customer when it has paid all sums owing on any account whatsoever, and until such time Swann has the right to call for or recover the Goods at its option (for which purposes Swann employees or agents may enter the Customer's premises) and the Customer is obliged to deliver up the Goods if so directed by Swann.

4.2 The Customer agrees to keep the Goods in a fiduciary capacity for Swann until such time as ownership is transferred to Swann.

4.3 Notwithstanding the foregoing, the Customer may sell the Goods to a third party in the ordinary course of business.

4.4 The Customer must insure the Goods and must account to Swann for all proceeds of the Goods including any insurance proceeds.

5. PPSA

5.1 Unless otherwise defined in these terms of sale, capitalised terms and expressions used in this clause have the meanings given to them in the Personal Property Securities Act 2009 (Cth) (PPSA). The Customer acknowledges and agrees that it grants Swann a Security Interest in the Goods and their Proceeds, including any Accounts, Accessions and Commingled Goods, by virtue of clause 4 of these terms and conditions of sale.

5.2 Any purchase on credit terms from Swann, or any retention of title supply pursuant to these terms of sale, attaches on delivery of the relevant goods and constitutes a Purchase Money Security Interest.

5.3 The Customer agrees that:

(a) these terms of sale or, subject to Swann giving at least 30 days notice, such other terms and conditions as we may adopt from time to time, apply to the supply of Goods by Swann to the Customer to the exclusion of all other terms and conditions of sale or purchase to the extent permitted by law and constitute a Security Agreement pursuant to the PPSA.

(b) no variation to these terms and conditions of sale will be of any effect unless agreed to by Swann in writing;

(c) the Customer will do all the things necessary, including providing all information Swann may require, to enable Swann to register a Financing Statement or Financing Change Statement on the Register as a Security Interest and/or a Purchase Money Security Interest;

(d) the Customer will not change its name or ABN or other details required in respect of registration, or maintenance of registration, of each Security Interest on the Register, without first notifying Swann in writing;

(e) the Customer waives the right to receive a verification statement in respect of any Financing Statement or Financing Change Statement in respect of any Security Interest created pursuant to these terms of sale; and

(f) the Customer must pay Swann's costs of any discharge or necessary amendment of any Registration.

5.4 If the provisions of Chapter 4 of the PPSA would otherwise apply, to the maximum extent permitted by law, the Customer agrees that Sections 129(3), 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA will not apply.

5.5 To the maximum extent permitted by law, the Customer waives any rights it may have pursuant to Sections 95 and 96, and if the provisions of Chapter 4 of the PPSA would otherwise apply, Sections 117, 118, 121(4), 123, 129(2) and 130 of the PPSA.

5.6 In addition to any other rights under these terms of sale, Swann may exercise any and all remedies set out in the PPSA including, without limitation, entry into any building or premises owned, occupied or used by the Customer, to search for and seize, dispose of or retain those goods in respect to which Swann has a Security Interest. In this regard, the Customer acknowledges that Sections 126, 128, and 129(1) of the PPSA relating to seizure of goods and disposal of seized goods apply.

5.7 The Customer appoints and authorises Swann as its attorney to sign in the Customer's name all documents which Swann reasonably considers necessary to enforce or protect its rights and powers under these terms of sale and to protect, preserve and enforce its rights under the PPSA.

6. Cancellations & Returns

No cancellations or partial cancellation of an order by the Customer shall be accepted by Swann unless it has first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by Swann, will indemnify Swann against all loss, without limitation. Cancellation will not be accepted on goods that are not regular stock which are in the process of manufacture or ready for shipment.

No claim arising from a discrepancy, unreceived Goods or return of Goods will be accepted unless the Goods are undamaged and returned within fourteen (14) days of the invoice date. No Goods are to be returned to Swann without prior written from Swann. Agreed returns must be accompanied by the appropriate authority to return Goods for credit (with a Return Authority Number provided by Swann). Any Goods which have been opened will be subject to a twenty percent (20%) re-stocking fee to be paid to Swann upon return of the Goods.

7. Privacy Act 1988

To enable Swann to assess the Customer's application for credit, the Customer and each person providing a personal guarantee and indemnity authorises Swann:-

7.1 To obtain from a credit reporting agency a credit report containing personal information about the Customer and its guarantors pursuant to Section 18K(1)(b) of the Privacy Act;

7.2 To obtain from a report from a credit reporting agency and other information in relation to the Customer's commercial credit activities. And in accordance with Section 18N(1)(b) of the Privacy Act the Customer authorises Swann to give to and obtain from any credit provider named in the accompanying credit application and credit providers that many be named in a credit report issued by a credit reporting agency information about the customer's credit arrangements. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other, under the Privacy Act 1988.

The Customer understands the information can be used for the following purposes:-

7.3 To assess its application for credit (Section 18L(4) Privacy Act)..

7.4 To assist it to avoid defaulting on its credit obligations.

7.5 To notify other credit providers of a default by it.

7.6 To assess its credit worthiness.

8. Competition and Consumer Act

8.1 The terms in these conditions of sale that exclude or limit the owner's liability will apply only to the extent permitted by law. Provisions of the Competition and Consumer Act 2010 (Cth) (as amended) and other statutes from time to time in force cannot be excluded, restricted or modified or can only be restricted or modified to a limited extent. These conditions of sale must be read and construed subject to any such statutory provisions. If any such statutory provisions apply, then to the extent to which the owner is entitled to do so, its liability under those statutory provisions will be limited at its option to:

(a) the replacement of the goods or the supply of equivalent goods; or (b) the repair of the goods; or (c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (d) the payment of the cost of having the goods repaired.

9. Legal Construction

These Terms shall be governed and interpreted according to the laws of Victoria and Swann and the Customer consent and submit to the jurisdiction of the Courts of Victoria. Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.