TERMS AND CONDITIONS
DEFINITIONS
“Account” means the credit facility provided by the Company to the Applicant.
“Agreement” means this Trading Terms Application & Agreement as amended from time to time.
“Applicant” means the natural person or company specified in Section A of this Agreement.
“Company” means WH Location Services Pty Ltd (ACN115817073) or Wickedly Enterprise (ACN 150 294 607) and any of its wholly owned subsidiaries that may be in existence from time to time (both now and in the future) as detailed in Section I.
“Default” means any one of the following events:
a) breach of any Terms and Conditions in this agreement;
b) change in the direct or indirect ownership or control of the Applicant without written notice: or
c) If the Applicant:
i. Becomes insolvent;
ii. Declares bankruptcy
iii. Dies
iv. Is placed into receivership or if a Receiver and Manager is appointed
v. Is placed in liquidation
vi. Is wound up or an application to wind up the Applicant is brought; and
vii. Attempts to assign its rights under this Agreement.
“Guarantee” refers to the Guarantee contained in Section G of this Agreement
“Guarantor(s)” means the person(s) specified in Section H of this Agreement.
“National Credit Code” means Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth) as amended from time to time.
“Notice” means notice from the Company in accordance with condition 2 of this Agreement.
“PPS Act” refers to the Personal Property Securities Act 2009 (Cth) as amended from time to time.
“Privacy Act” refers to the Privacy Act 1988 (Cth) as amended form time to time.
OPERATIVE TERMS AND CONDITIONS
1. All accounts are due and payable within (30) days of the date of the invoice unless otherwise arranged and confirmed in writing by the Company. Payment shall not be deemed to be complete unless paid by cash . Disputes and/or claims do not constitute grounds for non-payment of amounts other than those in dispute.
2. The Applicant agrees that the Applicant is not entitled to use the credit facility until it received notice in writing from the Company stating that the facility has been granted. Until the Applicant received Notice, any goods that are supplied by the Company to the Applicant shall be on a cash basis.
a) Interest shall accrue on overdue payments at a rate of 14% per annum, calculated daily from the due date until payment. The Company reserves the right to vary the interest rate with seven (7) days’ prior written notice to the Applicant.
b) Payments received will be applied in the following order:
i. Reduction of accrued interest.
ii. Reduction of all other outstanding balances until fully paid.
c) If at any time monies are overdue and owing upon any account then outstanding, the whole of the amount of all accounts then outstanding
3. The Company may, at its absolute discretion, withdraw the facility at any time without notice or the Company may, from time to time or at any time, increase or decrease the limit (if any) of the facility provided without notice to the Applicant or Guarantor (if any). The
Company shall not be liable for damages to the Applicant for the non-supply of goods or the non-provision of service as a result of the facility being withdrawn or the limit being altered.
4. Any legal costs, duties or any other expenses whatsoever incurred by the Company in respect of the Application, agreements, guarantees, securities or other documentation required by the Company or other costs reasonably incurred by the Company as a consequence of this Application and other expenses incurred in respect of opening and maintaining any Account in the name of the Applicant together with any collection costs, dishonored cheques, fees, legal cost,
whether charges on scale or any other basis incurred, shall be paid by the Applicant to the Company on demand.
5. If there is a Default by the Applicant, then the Company, without prejudice to any rights or remedies open to it, may:
a) treat as discharged all or any obligation arising from any agreement with the Applicant;
b) retain any security given or monies paid by the Applicant or available through the enforcement of any guarantee, security or bond and apply this in reduction of any sum which may be lawfully recovered by the Applicant.
6. The Company may deduct or set off any monies due to the Applicant under any contract or agreement against any debt and monies due from the Applicant under this Agreement or any other agreement.
7. Should there be any variation to any of the information supplied by the Applicant in this Application or in the structure of the Applicant (such as a conversion to or from a company or trust) the Company shall forthwith be notified in writing by the Applicant. Unless notification of such variation or charge is given and accepted in writing by the Company, the original Applicant and the Guarantors shall remain liable to the Company as though any goods or service supplied by the Company were supplied to the original Applicant.
8. No waiver, alteration, or amendment to these terms shall be effective unless expressly agreed in writing and signed by an authorized representative of the Company. Failure to enforce any clause shall not constitute a waiver of future rights.
9. Where there is any inconsistency between the terms and conditions of this Application and any subsequent agreement for the supply of goods, work or materials by the Company, any such subsequent agreement shall be read down to the extent necessary to give force and effect to the terms and conditions of this Application.
10. In this Application words in singular shall be construed so as to include the plural and words in the masculine gender shall be construed so as to include every other gender.
11. Where the Applicant is a trustee:
a) the Applicant agrees to produce a stamped copy of the trust deed (with all amendments) if and when requested by the Company;
b) the Applicant warrants that it has full power and authority for the benefit, purpose and objects of the trust to make this Application on behalf of the trust and that it shall be bound by the terms of this Application both personally and as a trustee; and
c) the Applicant confirms that the trustees shall be liable for the Account and that in addition the assets of the trust shall be available to meet payment of the account.
12. The Applicant thereby agrees that the facility hereby applied for does not extend to any transaction and the Applicant will not use the facility for any transaction which is or may be a “credit-contract” as defined in the National Credit Code.
13. The Applicant and Guarantor(s) (if any) do hereby agree that for the purposes of securing the liability and obligations hereunder of each of them, they do hereby charge with due and punctual payment and the due and punctual and complete performance by each item of all their liabilities, and obligations hereunder all their real property both present and future and each of the Applicant and the Guarantor do hereby consent to the Company lodging a caveat or caveats noting its interest hereunder. The continuing guarantee created herein shall remain in full force and effect and shall not be discharged until the expiry of not less than 7 months from the date of receipt of the last payment by the Company from the Applicant in satisfaction of monies due by the Applicant made by or on behalf of the Applicant.
14. As a separate independent agreement each Guarantor shall fully indemnify the Company against all loss and/or damages suffered by the Company as a result of the whole or part of any monies due by the Applicant to the Company not being recoverable from the Applicant or the Guarantor(s) as Guarantor(s) whether by reason of any legal limitation or any other fact or circumstances which are known to the Company or otherwise.
15. You agree to indemnify WH Location Services Pty Ltd, its officers, employees, and agents, against all losses, liabilities, damages, expenses, claims, actions, or proceedings arising in connection with:
a) Personal injury or death of any person;
b) Damage to or loss of property;
c)Consequential or indirect losses;
d) Any acts of negligence by WH Location Services related to works or services in the vicinity of underground plant facilities.
16. The Applicant and the Guarantor(s) (if any) agree that the certificate of the Company or any person authorized by the Company shall be conclusive evidence as to the amount owing to the Company by the Applicant and Guarantor.
17. Personal information of the Applicant(s), partner(s) of the Applicant, director(s) of the Applicant and/or Guarantor(s) will be used for credit assessment and marketing purposes only and may be divulged to credit reporting agencies, and in the event of Default to the Company debt collectors and or solicitors. Failure to provide any or all, of the personal information requested on this application may result in the application being declared invalid.
18. The Applicant(s) and the Guarantor(s) agree that this Application is governed by the laws of Western Australia. Each party to this Application submits to the non- exclusive jurisdiction of the courts of Western Australia and any courts that may hear appeals from those courts in respect of any proceedings in connection with this Application.
19. The Applicant(s) and/or Guarantor(s) hereby acknowledge that the Company recommends that independent legal advice be obtained regarding their rights and obligations under this Agreement prior to signing thereof.
20. Exclusion – Under no circumstances shall WH Location Services be responsible to you for any injurious act or default of WH Location Services nor shall WH Location Services be held responsible for any loss, injury or damage suffered by you in respect of:
a) Personal injury or death of any person;
b) Damage to or loss of property;
c) Consequential or indirect losses;
d) Any acts of negligence by WH Location Services related to works or services in the vicinity of underground plant facilities.
21. Abaxa Employees
You shall ensure, acknowledge and agree that if an employee of the Abaxa Group including Wickedly Enterprise (ACN 150 294 607) and/or WH Location Services (ACN115817073) is directly employed by the Applicant during the term of this Agreement, a placement fee of $15,000 plus GST per individual shall be payable. This fee covers recruitment, training, and associated personnel costs and will be invoiced immediately upon employment. This fee is applicable to all direct site works and associated introductions of the Abaxa Group including Wickedly Enterprise and/or WH Location Services personnel, to include the entire Operations and Service Employees.
SERVICE TERMS AND CONDITIONS
By signing this agreement, you confirm your review and acceptance of our Service Terms and Conditions, found at the following link – https://abaxa.com.au/service-terms-and-conditions/
