Terms & Conditions

1.0 Definitions

1.1 In these Terms:

“ABF” means Australia Border Force and its associated regulations and requirements;

“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended;

“ACS” means the Australian Chamber of Shipping and its associated regulations and standards;

“Agreement” means the agreement for the provision of Goods and/or Services by the Supplier to the Customer resulting from the Customer accepting these Terms;

“Customer” means the applicant in the attached Application for Credit and if more than one party means those applicants jointly and severally;

“DAWE” means the Department of Agriculture, Water and the Environment and its associated regulations and requirements;

“Goods” means any goods supplied by the Supplier to the Customer;

“GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended;

“PPSA” means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended;

“Services” means services supplied by the Supplier to the Customer;

“Supplier” means CTC Port Group Pty Ltd ABN 86 636 302 942 and its branches, including any “related entity” as that term is defined in the Corporations Act 2001; and

“Terms” means these Terms and Conditions.

2.0 Terms and Conditions

2.1 Any quotation provided by the Supplier to the Customer for the proposed supply of Goods or Services is:

(a) valid for 30 days;
(b) only valid if in writing; 

2.2 The Supplier’s quotation may include additional terms provided they are not inconsistent with these Terms.

2.3 An Agreement results from the acceptance by the Supplier, in writing or electronic means, of an application from the Customer or the Supplier provides the Customer with the Goods or Services.

2.4 The Supplier has discretion to refuse to accept any application.

2.5 The granting of credit terms for new or existing accounts is entirely at the discretion of the Supplier and the Supplier may withdraw or vary credit terms at any time with 7 days written notice.

2.6 The Supplier may vary or amend these Terms by 7 days written notice to the Customer at any time. Any variations or amendments will apply to orders placed after the notice date. If the Customer does not agree with the amendments, they must notify the Supplier within 14 days and the Agreement and the credit terms comprised in the application will be immediately cancelled.

2.7 If the Customer is or becomes a trustee for a trust (“the Trust”) during the currency of the Agreement then the following covenants shall have effect

(a) the Customer shall be liable for the performance of all covenants and obligations contained in or implied by these Terms and nothing contained in these Terms shall restrict or negative such personal liability;

(b) the Customer has full complete and valid authority pursuant to the Trust to enter into this Agreement and to grant security over any Trust property to which these Terms extend;

(c) the Customer hereby charges the performance of the obligations of the Customer under this Agreement with all rights of indemnity which the Customer has or will have from time to time against the Trust fund or Trust property and the interest of the Customer as trustee in the Trust fund or Trust property arising from such rights of indemnity and that the Customer will not release or otherwise prejudice such rights of indemnity;

(e) the Customer as trustee or trustees of the Trust shall not be altered (save upon the death of a trustee) without the prior written consent of the Supplier;

(f) none of the following powers shall be exercised by the Customer as trustee or any other person in relation to the Trust without the prior written consent of the Supplier:

(i) any power to alter or vary the trustee or trustees of the Trust whether by resignation removal appointment or otherwise;

(ii) any power to advance or distribute capital;

(iii) any power to vary the terms of the Trust;

(iv) any power to resettle the Trust property to which this Agreement or any equitable charge in this Agreement extends;

(v) any power to add any beneficiaries or class of beneficiaries to the Trust;

(g) any breach of Trust by the Customer as trustee shall entitle the Supplier to exercise all such rights and remedies upon default as are contained in this Agreement;

(h) all persons of full capacity whose consent or covenants would be necessary to ensure the effectiveness of the covenants of this clause are parties to this Agreement.

3.0 Pricing

3.1 Prices quoted for the supply of Goods and Services include GST and any other taxes or duties imposed on or in relation to the Goods and Services.

3.2 If the Customer requests any variation to the Agreement, the Supplier may increase the price to account for the variation with 48 hours’ written notice to the Customer.

3.3 Where there is any change in the costs incurred by the Supplier in relation to Goods or Services, the Supplier may vary its price to take account of any such change, with 48 hours’ notice to the Customer.

4.0 Payment

4.1 Unless otherwise agreed in writing:

(a) Subject to 4.1(b), the price inclusive of GST for any Goods or Services supplied to the Customer will be debited to the account of the Customer on the date of supply. Full payment for the Goods or Services must be made within 30 days of that date or such other date as is agreed in writing.

(b) the Supplier reserves the right to require payment in full on or before delivery of the Goods or completion of the Services and in such case, cleared funds must be received and verified by the Supplier prior to the Goods or Services being provided.

4.2 Payment terms may be revoked or amended by the Supplier upon giving the Customer 48 hours written notice. If the Customer disagrees with the amended payment terms, they must notify the Supplier within 48 hours of receiving the notice and this Agreement and the credit terms comprised in the application will be immediately closed.

4.3 The Supplier may set off against any amounts due by the Supplier to the Customer against any amounts due by the Customer to the Supplier under this Agreement.

5.0 Default

5.1 If the Customer defaults in payment by the due date of any amount payable to the Supplier, then all money owed by the Customer to the Supplier, will at the discretion of the Supplier, become immediately due and payable and the Supplier may:

(a) reverse the amount of any discounts allowed;

(b) charge the Customer interest on any amount due and unpaid at the rate of 10% per annum, payable from the due date until the date of payment in full;

(c) charge the Customer for all costs and expenses (including without limitation all legal costs and expenses) incurred by the Supplier resulting from the default or in taking action to enforce compliance with the Agreement (including any mercantile agent fees) or to recover any Goods;

(d) cease or suspend supply of any further Goods or Services to the Customer;

(e) by 48 hours’ written notice to the Customer, terminate any uncompleted contract with the Customer.

5.2 All money which is or may become payable by the Customer to the Supplier on any account, may at the discretion of the Supplier, become immediately due and payable and the Supplier immediately cancel or suspend the Agreement and the credit terms comprised in the application:

(a) where the Customer breaches any provision of these Terms other than as applies to clause 5.1;

(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors (other than as specified in the amendments to the Corporations Act 2001 (Cth) enacted by Part 2 of the Treasury Law Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth)); or

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

(d) where a Customer has an account with another branch of the Supplier or a related party (as that term is defined in the Corporations Act 2001) of the Customer has an account with the Supplier and the Customer breaches the terms of the other branch Agreement or the related party breaches the terms of its Agreement with the Supplier.

6.0 Title 

6.1 The Supplier and the Customer agree that ownership of the Goods and Services shall not pass until:

(a) the Customer has paid the Supplier all amounts owing to the Supplier; and

(b) the Customer has met all of its other obligations to the Supplier.

6.2 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.

6.3 It is further agreed that:

(a) until ownership of the Goods passes to the Customer in accordance with clause 6.1 that the Customer is only a bailee of the Goods and must return the Goods to the Supplier on request and the remainder of this clause 6.3 shall apply;

(b) the Customer holds the benefit of the Customer’s insurance of the Goods and Services on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods and Services being lost, damaged or destroyed;

(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand;

(d) the Customer should not convert or process the Goods or intermix them with other Goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs;

(e) the Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Goods are kept and recover possession of the Goods;

(f) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Supplier;

(g) the Supplier may recover possession of any Goods in transit whether or not delivery has occurred; and

(h) the Supplier may commence proceedings to recover the price of the Goods and Services sold notwithstanding that ownership of the Goods and Services has not passed to the Customer.

7.0 Security and Charge

7.1 In consideration of the Supplier agreeing to supply the Goods to the Customer or perform the Services, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or personal assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions including, but not limited to, the payment of any money.

7.2 The Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause 7.

7.3 The Customer irrevocably appoints the Supplier and each director of the Supplier as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 7 including, but not limited to, signing any document on the Customer’s behalf.

8 Personal Property Securities Act

8.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

8.2 Upon assenting to these terms and conditions in writing, the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by the Supplier to the Customer.

8.3 The Customer undertakes to:

(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to;

(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

(ii) register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause 8.3(a)(i) or 8.3(a)(ii);

(b) indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of the Supplier;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Supplier;

(e) immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

8.4 The Supplier and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

8.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

8.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

8.7 Unless otherwise agreed to in writing by the Supplier, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.

8.8 The Customer must unconditionally ratify any actions taken by the Supplier pursuant to this clause 8.

8.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.

9 Other relevant legislation

9.1 The Supplier warrants that it has complied with all relevant ABF importing requirements, ACS standards and DAWE Class 1 regulations.

9.2 The Supplier warrants that it holds the applicable licenses to import, export, hold, store, unpack, examine, and deliver the Goods and Services on behalf of the Customer under the Customs Act 1901 (Cth).

9.3 The Supplier warrants that its containers are cleaned and maintained in accordance with the ACS standards.

9.4 The Customer acknowledges that the Supplier has complied with all relevant ABF importing requirements, ACS Standards and DAWE Class 1 regulations.

9.5 The Customer indemnifies and keeps indemnified the Supplier against any loss, damage, cost or expense incurred by the Supplier in accordance with their obligations to comply with the ABF importing requirements, ACS Standards and DAWE Class 1 regulations.

10 Risk and Insurance

10.1 The risk in the Goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the Goods being delivered to the Customer or taken from the Supplier’s premises.

10.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the Goods (provided that full payment has not been made for the Goods by the Customer to the Supplier). To the extent that it is possible, the Supplier will make further enquires in relation to the Goods that are damaged or destroyed before requesting insurance proceeds from the Customer’s insurer. These Terms may be produced as sufficient evidence that the Supplier is entitled to receive insurance proceeds

10.3 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use, installation or possession of any of the Goods sold by the Supplier, unless recoverable from the Supplier on the failure of any statutory guarantee under the ACL.

11 Delivery

11.1 Any period or date for delivery of Goods or provision of Services stated by the Supplier is an estimate only and not a contractual commitment.

11.2 The Supplier will use its reasonable endeavours to meet any estimated dates for delivery of the Goods or performance of the Services but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.

11.3 If the Supplier cannot complete the Services or deliver the Goods by any estimated date, it will complete the Services or deliver the Goods within a reasonable time.

11.4 Delivery of the Goods shall take place, unless agreed in writing by the Supplier, when:

(a) the Customer takes possession of the Goods at the Supplier’s address; or

(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by the Supplier or the Supplier’s nominated carrier); or

(c) the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.

11.5 The costs of delivery are in addition to the stated price.

11.6 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Supplier shall be entitled to charge a reasonable fee for redelivery.

11.7 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of these Terms.

11.8 The Supplier may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of these Terms.

11.9 The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:

(a) such discrepancy in quantity shall not exceed five percent (5%);

(b) the price shall be adjusted pro rata to the discrepancy.

11.10 The Supplier shall not be liable for freight costs on any Goods returned to it by the Customer where a Return Authorisation Number (RA No.) has not been arranged with the Supplier prior to return.

11.11 The Supplier is not responsible to the Customer or for any loss or damage to Goods during transit caused by any event of any kind by any person (whether or not the Supplier is legally responsible for the person who caused or contributed to that loss or damage), except where the Customer is a consumer and the Supplier has not used due care and skill. The Supplier may provide the Customer with such assistance as may be necessary to press claims on carriers provided that the Customer:

(a) has notified the Supplier and the carriers in writing immediately after loss or damage is discovered on receipt of Goods; and

(b) lodges a claim for compensation on the carrier within three (3) days of the date of receipt of the Goods.

12 Liability

12.1 Under applicable State, Territory and Commonwealth Law (including, without limitation the ACL), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the ACL) may be implied into these Terms (Non-Excluded Guarantees).

12.2 The Supplier acknowledges that nothing in these Terms purports to modify or exclude the Non-Excluded Guarantees.

12.3 Except as expressly set out in these Terms or in respect of the Non-Excluded Guarantees, the Supplier makes no warranties or other representations under these Terms including but not limited to the quality or suitability of the Goods. The Supplier’s liability in respect of these warranties is limited to the fullest extent permitted by law.

12.4 If the Customer is a consumer within the meaning of the ACL, the Supplier’s liability is limited to the extent permitted by section 64A of Schedule 2.

12.5 If the Supplier is required to replace the Goods under this clause or the ACL, but is unable to do so, the Supplier may refund any money the Customer has paid for the Goods.

12.6 If the Customer is not a consumer within the meaning of the ACL, the Supplier’s liability for any defect or damage in the Goods is:

(a) limited to the value of any express warranty or warranty card provided to the Customer by the Supplier at the Supplier’s sole discretion;

(b) limited to any warranty to which the Supplier is entitled, if the Supplier did not manufacture the Goods;

(c) otherwise negated absolutely.

12.7 Notwithstanding clauses 12.1 to 12.6 but subject to the ACL, the Supplier shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(a) the Customer failing to properly maintain or store any Goods;

(b) the Customer using the Goods for any purpose other than that for which they were designed;

(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(d) the Customer failing to follow any instructions or guidelines provided by the Supplier;

(e) fair wear and tear, any accident, or act of God.

12.8 The Supplier is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.

12.9 The Customer acknowledges that:

(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by the Supplier in relation to the Goods or Services or their use or application.

(b) it has not made known, either expressly or by implication, to the Supplier any purpose for which it requires the Goods or Services and it has the sole responsibility of satisfying itself that the Goods or Services are suitable for the use of the Customer.

13 Cancellation

13.1 The following shall apply in relation to the cancellation of orders for Goods or Services:

(a) orders placed with the Supplier by the Customer for Goods shall not be cancelled without prior written approval of the Supplier;

(b) a request for cancellation will not be considered unless made in writing by the Customer to the Supplier and received by the Supplier within a reasonable time prior to the scheduled delivery date of Goods or performance of Services (reasonableness will be at the discretion of the Supplier);

(c) Goods that are Special Make-Up Orders and Custom Product Orders may not be cancelled, unless authorised in writing by the Supplier; and

(d) In the event that the Supplier accepts the cancellation of an order for Goods or Services, the Supplier shall be entitled to charge (and may charge) any reasonable fees for the cost of work and materials and/or any administration costs incurred by the Supplier in preparing the order or preparing to perform the Services.

14 Shortages, Exchanges and Other Claims

14.1 Unless otherwise provided by this clause, the Supplier will not be liable for any shortages, damage or non-compliance with the specifications in the Agreement unless the Customer notifies the Supplier with full details and description within fourteen (14) days (time to be of the essence) of delivery and allows the Supplier a reasonable opportunity to inspect the Goods within a reasonable time after delivery, otherwise the Customer is deemed to have accepted the Goods.

14.2 The Supplier reserves the right to forward Goods to their suppliers for assessment and approval of any claim. 14.3 Subject to clause 14.4, the following rules apply in order for any Customer returns or claims in respect of Goods to be accepted:

(a) the return of Goods will not be accepted without prior authorisation from the Supplier or its authorised representative and for this to occur the Supplier Return Authorisation Number (RANo.) must be obtained before returning any Goods (including faulty product) by contacting the Customer Service Department of the Supplier on any number advised from time to time;

(b) in the event that the Supplier authorises a return of Goods, no claim for the same shall be considered unless:

(i) the Goods are returned in the original packaging and in good order and condition;

(ii) all price stickers, security devices or other non-Supplier labelling must be removed otherwise returns will not be accepted or a charge for removal will apply;

(iii) the Goods are accompanied by documentation showing:

– the Customer’s name, address and account number/code;

– the respective Supplier invoice number;

– reason for return; and

– the Supplier Return Authorisation Number (RA No.);

– unauthorised or unacceptable returns may be returned to the Customer at the Customer’s expense;

– customers must return Goods only by the Supplier’s nominated carriers, otherwise freight will not be paid by the Supplier;

– all returned Goods shall be subject to an inspection by the Supplier or an authorised agent of the Supplier, before any claim will be considered;

– acceptance of the returned Goods by the Supplier shall not constitute any acceptance of any claim; and

– the Supplier reserves the right to (and may) raise credits at the lowest invoiced prices if original invoice details are not provided.

14.4 For any other claim in relation to Goods, no claim for the same shall be considered unless the following rules are followed by the Customer:

(a) short delivery claims (where product is short delivered within the carton/s to the invoiced quantity) must be fully documented quoting the respective Supplier invoice number and forwarded to the Supplier Customer Service Department within 14 days from the date of delivery of Goods to the Customer by the Supplier failing which all short delivery claims will not be accepted.

(b) non delivery claims (when a full or part consignment has not been delivered to the invoiced quantity) must be fully documented quoting the respective Supplier invoice number and forwarded to the Supplier Customer Service Department within 45 days from the date of invoice.

(c) incorrect pricing claims relating to either price, freight or administration charges, the Customer must advise the Supplier of any such claims within 45 days of the invoice date in order for these claims to be considered.

(d) all claims will be subject to investigation before a decision is made and any rejections by the Supplier will be communicated to the Customer as soon as possible and the reasons for rejection provided.

15 General

15.1 The Supplier is not liable to perform its obligations under the Agreement where it is prevented from doing so by events beyond its reasonable control including industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event beyond the Supplier’s reasonable control occurs, the Supplier may suspend or terminate the Agreement by 24 hours’ written notice to the Customer.

15.2 The Customer shall give written notice to the Supplier within seven (7) days of any change of ownership or control of the Customer. The Customer hereby agrees to indemnify and keep indemnified the Supplier against any loss, damage, cost or expense incurred by the Supplier as a result of the Customer’s failure to notify the Supplier of any such change of ownership and/or control. The Supplier reserves the right to vary any Customer order, hold or discount entitlements upon any change of ownership or control of the Customer.

15.3 A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received within 4 business days from the date of the notice. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.

15.4 If any provision of these Terms is held to be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

15.5 The expiry or termination of the Agreement does not affect the rights which have accrued before that expiry or termination or any rights and obligation of the parties which survive the expiry or termination.

15.6 The Supplier may licence, sub-contract or assign all or any part of its rights and obligations without the Customer’s consent and in so doing the Supplier is fully discharged from its obligations to the Customer.

15.7 This Agreement is personal to the Customer and the Customer may not assign its interest in or obligations under the Agreement without the Supplier’s written consent.

15.8 The Customer warrants that it has the power to enter into this Agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this Agreement creates binding and valid legal obligations on it.

15.9 The Supplier’s Privacy Policy forms part of these Terms and Conditions and is available at www.ctcportgroup.com.au