COMMERCIAL CREDIT TERMS AND CONDITIONS & PRIVACY STATEMENT

Payment terms

1. The terms of payment are strictly thirty (30) days (or such other period as nominated by the supplier herein) from the date of invoice. MENTORED BUSINESS SALES SERVICES ABN 56 630 339 150) AND MENTORED BUSINESS SALES INTERNATIONAL PTY LTD ABN 22 630 390 475  and its related corporate entities (as that term is defined in the Corporations Act 2001) (Supplier) may, at any time, unilaterally vary the terms of trade in its absolute and unfettered discretion.

2. Should the Applicant not pay for the products or services supplied by the Supplier in accordance with the credit terms as provided herein, or as agreed in writing by the Supplier from time to time, the Supplier will be entitled to charge an administration fee of:

  • 10 per cent of the amount of the invoice payable; and

  • a further 10 per cent per annum payable per year, or part thereof, until payment by the Applicant.

3. The Supplier reserves its rights to pursue any unsatisfied payment claims rendered in accordance with statutory mechanisms.

Jurisdiction
4. The Applicant acknowledges and agrees that this agreement will be governed by the laws of New South Wales, and the laws of the Commonwealth of Australia which are in force in New South Wales.
5. The Applicant acknowledges and agrees that any contract for the supply of products or services between the Supplier and the Applicant is formed at the address of the Supplier.
6. The parties to this agreement submit to the non-exclusive jurisdiction of the courts of New South Wales and the relevant federal courts and courts competent to hear appeals from those courts.

Security/charges
7. The Applicant charges in favour of the Supplier all of its estate and interest in any real property that the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.
8. The Applicant charges in favour of the Supplier all of its estate and interest in any personal property that the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.
9. The Applicant appoints as its duly constituted attorney the Supplier’s company secretary from time to time to execute in the Applicant’s name and as the Applicant’s act and deed any real property mortgage, bill of sale or consent to any caveat the Supplier may choose to lodge against real property that the Applicant may own in any Land Titles Office in any state or territory of Australia, even though the Applicant may not have defaulted in carrying out its obligations hereunder.
10. Where the Applicant has previously entered into an agreement with the Supplier by which the Applicant has granted a charge, mortgage or other security interest (including a security interest as defined in the Personal Property Securities Act 2009 (PPSA)) over or in respect of real or personal property, those charges, mortgages or other security interests and the terms which directly or indirectly create rights, powers or obligations in respect thereto will continue and co-exist with the obligations and security interests created in this agreement and will secure all indebtedness and obligations of the Applicant under this agreement. The Supplier may, at its election, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.

Purpose of credit

11. The Applicant acknowledges and agrees that the credit to be provided to the Applicant by the Supplier is to be applied wholly or predominantly for commercial purposes.

Formation of contract

12. Quotations made by the Supplier will not be construed as an offer or obligation to supply in accordance with the quotation. The Supplier reserves the right to accept or reject, at its discretion, any offer to purchase received by it. Only written acceptance by the Supplier of the Applicant’s offer will complete a contract.

13. Placement of an order, either verbally or in writing, will imply acceptance of the Supplier’s offer and of these terms and conditions.

Account / Agreement

14. A continuing undertaking/obligation is placed on the Supplier to supply services to the Applicant as and when requested (subject to some limitations or exceptions such as availability).

Financial and Business Information

15. All descriptive business details such as employment records, cost of products, stock holdings, business agreements, debtors and creditors other than specifically included in audited financial accounts, will be treated as true and correct unless the Applicant states otherwise to the Supplier. Any information incorrectly provided to the Supplier does not form grounds for any claim against the Supplier.

16. The Applicant and the Supplier may jointly develop budgets with forward-looking cash flow and business performance statement, the Applicant agrees they will use their best endeavours in providing such information and will not mislead the Supplier.

17. Where the Applicant supplies business information to the Supplier and that information requires updating, the Applicant agrees there may be additional costs. The Supplier will provide any variation to the original quotation for approval prior to charging the Applicant any additional fees. Approval of a variation must be in writing that may include an email, SMS or similar.

Handover and Delivery
18. The Supplier is deemed to have provided the products or service as soon as the Applicant is notified they are ready, at which time 50% of the payment is due.
19. The Supplier is deemed to have delivered the products or services if it obtains written approval from the Applicant by email, SMS or other electronic measures, at which time the balance of the payment is due.
20. Upon completion of the service or delivery of products all liability for the information provided in the readiness package is deemed to have passed to the Applicant.
21. The Applicant agrees to check and verify all documentation complied by the Supplier and will not claim upon the Supplier
22. The Supplier may elect to supply products or services in instalments, and these conditions shall apply to each supply by instalments as if each instalment constituted supply under a separate agreement, and in particular, the Applicant will pay the Supplier for each instalment of products so supplied irrespective of any failure to delay in the supply of any other instalment of products.
23. The Supplier reserves its right to refuse to services if the Applicant has any monies outstanding beyond the date for payment on any account with the Supplier.

Credits for Services
24. The Supplier will not consider a claim in relation to the Services provided by the Supplier unless notified in writing within three (3) days of handover.
25. The Supplier may allow credits at its sole discretion, but in any event, it will not accept products or services for credit after thirty (30) days from the date of original handover.

Retention of title
26. Title of the products does not pass to the Applicant until the Applicant has made payment in full for the products and, further, until the Applicant has made payment in full of all the other money owing by the Applicant to the Supplier (whether in respect of money payable under a specific contract or on any other account whatsoever).
27. The Applicant’s indebtedness to the Supplier, whether in full or in part, will not be discharged until the funds held on trust are remitted to the Supplier.
28. The Applicant will be responsible for the Supplier’s costs and expenses in exercising its rights under this agreement
29. For the avoidance of doubt, the Supplier’s interest constitutes a ‘purchase money security interest’ pursuant to the PPSA.

Cancellation of terms of credit

30. The Supplier reserves the right to withdraw credit at any time, whether the Applicant is in default under the terms of this agreement or not.
31. Upon cancellation, with or without notice all liabilities incurred by the Applicant become immediately due and payable to the Supplier.

Indemnity
32. The Applicant agrees to indemnify the Supplier and keep the Supplier indemnified against any claim. This indemnity includes any legal fees and expenses the Supplier incurs in order to enforce its rights, on an indemnity basis.

Provision of further information

33. The Applicant undertakes to comply with any request by the Supplier to provide further information for the purpose of assessing the Applicant’s creditworthiness, including an updated credit application.
34. If the Applicant is a corporation (with the exception of a public listed company), it must advise the Supplier of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). In the case of a change of directors or shareholders, the Supplier may ask for new guarantors to sign a guarantee and indemnity.

Corporations
35. If the Applicant is a corporation, the Applicant warrants that all of its directors have signed this agreement and that all of its directors will enter into a guarantee and indemnity with the Supplier in relation to the Applicant's obligations to the Supplier.

Trustee capacity
36. If the Applicant is the trustee of a trust (whether disclosed to the Supplier or not), the Applicant warrants to the Supplier that:
the Applicant enters into this agreement in both its capacity as trustee and in its personal capacity;
the Applicant has the right to be indemnified out of trust assets;
the Applicant has the power under the trust deed to sign this agreement; and
the Applicant will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier.
37. The Applicant must give the Supplier a copy of the trust deed upon request.

Partnership
38. If the Applicant enters into this agreement as partners, the Applicant warrants that all of the partners have signed this agreement and that all of the partners will enter into a guarantee and indemnity with the Supplier in relation to the Applicant’s obligations to the Supplier.
39. If the Applicant is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Supplier. In the case of a change of partners, the Supplier may ask for new guarantors to sign a guarantee and indemnity.

Insolvency
40. If the Applicant becomes insolvent, the Applicant remains liable under this agreement for payment of all liabilities incurred hereunder. The Applicant remains liable under this agreement even if the Supplier receives a dividend or payment as a result of the Applicant being insolvent.

Waiver

41. A waiver of any provision or breach of this agreement by the Supplier must be made by an authorised officer of the Supplier in writing. A waiver of any provision or breach of this agreement by the Applicant must be made by the Applicant’s authorised officer in writing.

42. Until ownership of the products passes, the Applicant waives its rights it would otherwise have under the PPSA:

under section 95 to receive notice of intention to remove an accession;
under section 118 to receive notice that the Supplier intends to enforce its security interest in accordance with land law;
under section 121(4) to receive a notice of enforcement action against liquid assets;
under section 129 to receive a notice of disposal of products by the Supplier purchasing the products;
under section 130 to receive a notice to dispose of products;
under section 132(2) to receive a statement of account following the disposal of products;
under section 132(4) to receive a statement of account if no disposal of products for each 6 month period;
under section 135 to receive notice of any proposal of the Supplier to retain products;
under section 137(2) to object to any proposal of the Supplier to retain or dispose of products;
under section 142 to redeem the products;
under section 143 to reinstate the security agreement; and
under section 157(1) and 157(3) to receive notice of any verification statement.

Costs
43. The Applicant must pay for its own legal, accounting and business costs and all costs incurred by the Supplier relating to any default by the Applicant. The Applicant must also pay for all stamp duty and other taxes payable on this agreement (if any).
44. The Applicant will pay the Supplier’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Applicant, including collection costs, debt recovery fees and legal costs on an indemnity basis. Such costs and disbursements will be due and payable by the Applicant to the Supplier irrespective of whether the pursuit of the recovery action, claim or remedy is successful.
45. The Applicant acknowledges and agrees that payments by the Applicant will be applied by the Supplier as follows.

  • Firstly, in payment of any and all collection costs and legal costs in accordance with clause 44.

  • Secondly, in payment of any interest incurred in accordance with clause 50.

  • Thirdly, in payment of the outstanding invoice(s).

46. In circumstances where the Supplier seeks to enforce a purchase money security interest under the PPSA over collateral or proceeds (these terms being consistent with the terms defined in the PPSA), payments received from the Applicant will be allocated in a manner at the Suppliers absolute and unfettered discretion, so as to attribute, to the greatest extent possible, the unpaid balance of the debt to the purchase money obligation in respect of the collateral and/or proceeds over which the Supplier seeks to enforce its purchase money security interest.
47. To the extent that payments have been allocated to invoices by the Supplier in its business records, the Supplier may, at its sole and unfettered discretion, allocate and/or retrospectively reallocate payments in any manner whatsoever at the Supplier’s absolute discretion, including in a manner inconsistent with clause 46 herein.
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48. Payments allocated (and/or reallocated) under clause 46 and/or 47 will be treated as though they were allocated (and/or reallocated) in the manner determined by the Supplier on the date of receipt of payment.

Taxes and duty
49. The Applicant must pay GST on any taxable supply made by the Supplier to the Applicant under this agreement. The payment of GST is in addition to any other consideration payable by the Applicant for a taxable supply.

Interest rates
50. The interest rate on any outstanding debts is a fixed rate of 15 per cent per annum.

Attorney provision
51. The Applicant appoints as its duly constituted attorney the Supplier’s company secretary from time to time to execute in the Applicant’s name and as the Applicant’s act and deed any real property mortgage, bill of sale or consent to any caveat the Supplier may choose to lodge against real property that the Applicant may own in any Land Titles Office in any State or Territory of Australia, even though the Applicant may not have defaulted in carrying out its obligations hereunder.

Set-off
52. All payments required to be made by the Applicant under this agreement will be made free of any set-off, or counterclaim and without deduction or withholding.
53. Any amount due to the Supplier from time to time may be deducted from any monies which may be or may become payable to the Applicant by the Supplier.

Miscellaneous
54. In relation to the supply of the products, the Supplier’s liability is limited to the original invoice value of the product.
55. In relation to the supply of services, the Supplier’s liability is limited to:

  • supplying the service again; or

  • providing for the cost of having the services supplied again.

56. The Supplier is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Applicant.
57. The Applicant will, at the request of the Supplier, execute documents and do such further acts as may be required for the Supplier to register the security interest granted by the Applicant under the PPSA.
58. The Applicant agrees to accept service of any document required to be served, including any notice under this agreement or the PPSA or any originating process, by prepaid post at any address nominated in this application or any other address later notified to the Supplier by the Applicant or the Applicant’s authorised representative.
59. The Applicant further agrees that where we have rights in addition to those under part 4 of the PPSA, those rights will continue to apply.
60. Nothing in this Agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any products and/or services pursuant to this agreement of all or any of the provisions the Competition and Consumer Act 2010 or any relevant State or Federal legislation which by law cannot be excluded, restricted or modified.

Severance
61. If any provision of this agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are and continue to be, enforceable in accordance with their terms.
62. If any part of this agreement is invalid or unenforceable, that part is deleted and the remainder of the agreement remains effective.

Variation
63. The Applicant agrees that these terms and conditions may be varied, added to, or amended by an authorised officer of the Supplier at any time by written notice to the Applicant.
64. Any proposed variation to these terms and conditions by the Applicant must be requested in writing. The Supplier may refuse any such request without providing reasons either orally or in writing.
65. Variations requested by the Applicant will only be binding upon the Supplier if they are accepted in writing.

Consent to register
66. The Applicant hereby consents to the Supplier recording the details of this Agreement on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by the Supplier to effect such registration.
67. The Applicant waives any right or entitlement to receive notice of the registration of any security interest(s) created by this instrument on the Personal Property Securities Register.

Entire agreement
68. This agreement constitutes the entire agreement between the parties relating in any way to its subject matter. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this agreement are merged in this agreement and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.
69. Notwithstanding the preceding paragraph, in circumstances where there is a pre-existing written credit agreement (Original Agreement) between the Applicant and the Supplier, these terms and this agreement will constitute a variation of the Original Agreement whereby the terms of the Original Agreement are deleted and replaced with the terms herein, unless the terms of the Original Agreement are otherwise expressly or implicitly preserved by the terms herein in which case they will co-exist with the terms herein, and, to the extent of any inconsistency, these terms will prevail.

Privacy Act
70. The Applicant agrees to the terms of the Privacy Statement pursuant to the Privacy Act 1988 (as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 contained in this document.

PRIVACY STATEMENT
1. This privacy statement encompasses consents, notifications and disclosures under or in relation to the Privacy Act 1988 (as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012) (Act).
2. The terms of this statement operate concurrently with any pre-existing privacy statement, authorisation or notification, whether contained in our credit application, terms and conditions of trade or otherwise, save to the extent of any inconsistency in which case the terms of this privacy statement shall prevail.
3. For the purpose of this statement, the terms ‘personal information’, ‘sensitive information’, ‘credit eligibility information’, ‘credit information’, ‘commercial credit purpose’, ‘credit guarantee purpose’, ‘consumer credit purpose’, ‘credit reporting body’, ‘credit provider’, ‘credit reporting information’, ‘credit reporting code’ carry the same meaning as under the Act and the term ‘Information’ means personal information, sensitive information, credit eligibility information, credit reporting information and credit information, both severally and collectively.
4. The Supplier may collect personal information about the Applicant and/or Guarantor(s) for the Supplier’s primary purposes which include the assessment of a credit application, reviewing existing credit terms, assessing creditworthiness, collecting overdue payments, assessing credit guarantees (current and prospective), internal management purposes, marketing, sales and business development purposes and direct marketing.
5. The Applicant and/or Guarantor(s) consent to the Supplier collecting, using and disclosing personal information (including sensitive information) for both their primary purposes specified herein and purposes other than the primary purposes, including the purpose of direct marketing.
6. The Supplier may collect, and may already have collected, Information from the Applicant and/ or Guarantor(s), other credit providers, credit reporting bodies and other third parties for the purposes of its functions and activities including, but not limited to, credit, sales, marketing and administration. If the information was not collected by the Supplier it may restrict or impede upon the Supplier trading with, extending credit to, continuing to extend credit to or extending further credit to the Applicant and/or Guarantor(s)or their related bodies corporate.
7. The Applicant and/or Guarantor(s) consent to the Supplier obtaining and making disclosure of Information about the Applicant and/or Guarantor(s) from and to a credit reporting body and/ or another credit provider for a commercial credit related purpose and/or a credit guarantee purpose and/or a consumer credit purpose and/or another related purpose. The Supplier notifies the Applicant and/or Guarantor(s) that it may use and/or disclose credit eligibility information under section 21G of the Act.
8. The Supplier may provide personal information about the Applicant and/or Guarantor(s) to any or all of the credit reporting bodies nominated below. The Supplier intends to disclose default information to any or all of the credit reporting bodies listed below. The Applicant and/ or Guarantor(s) consent to such disclosure. The Supplier’s credit reporting policy contains a statement of notifiable matters in accordance with s21C of the Act and items 4.1 and 4.2 of the Credit Reporting Code in respect of disclosure to credit reporting bodies including what the information may be used for, what the Supplier may disclose and the Applicant’s and/or Guarantor(s)’ right to request limitations to the use of their information.

Veda Advantage Level 15, 100 Arthur Street  NORTH SYDNEY NSW 2060 Tel: 1300 921 621
Dun & Bradstreet Level 2, 143 Coronation Drive MILTON QLD 4064 Tel: 07 3360 0600
Creditor Watch Level 13, 109 Pitt Street SYDNEY NSW 2000 Tel: 1300 501 312
Experian Level 6, 549 St Kilda Road MELBOURNE VIC 3004 Tel: 03 9699 0100
NCI Level 2, 165 Grenfell St ADELAIDE SA 5000 Tel: 1800 882 820

9. The Supplier may disclose Information to, and about them and the Applicant and/or Guarantor(s) hereby acknowledge that they consent to the disclosure of such information to the Supplier’s employees, subsidiaries, employees, agents and related bodies corporate, past, present or prospective credit providers of the Applicant and/or Guarantor(s) or their related bodies corporate, including for the purpose of that person considering whether to offer to act as a guarantor or offer security for that credit and/or overseas recipients and recipients who do not have an Australian link. The Supplier does not disclose information to overseas recipients.
10. By reason of the Applicant’s and/or Guarantor(s)’ consent to the disclosure to overseas recipients hereunder, APP 8.1 will not apply to the Supplier’s dealing with the Applicant’s and/ or Guarantor(s)’ Information.
11. A full copy of the Supplier’s privacy policy and credit reporting policy can be obtained from the Supplier’s website (details above) or by making a request in writing directed to the Supplier’s privacy officer. The Supplier’s privacy policy and credit reporting policy contain information about how to access and seek correction of information, or how to complain about a breach of the Act, APP, code(s) and how the Supplier will deal with any such complaint.
12. The Applicant and/or Guarantor(s) will be deemed to have acknowledged and accepted the terms of this privacy statement by either signing and returning this statement, failing to provide written notification to the Supplier within 14 days of receipt of this statement that its terms are not accepted, continuing to trade with the Supplier after receipt of this Statement or, if the Applicant and/or Guarantor(s) are directors or guarantors of a customer, by not taking steps to prevent the customer from continuing to trade with the Supplier after receipt of this statement.