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 the Terms and Conditions of this agreement;
b) upon change in the direct or indirect ownership or control of the Applicant: or
c) If the Applicant:
i. Becomes insolvent;
ii. Is declared bankrupt
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 the TERMS APPROVED in the credit application (or default 30 days date of invoice if not defined) in which the invoice is issued or as arranged and confirmed in writing by the Company. No Account shall be deemed to be paid unless paid by cash or until the Applicant’s cheque or bank cheque has been paid by the Applicant’s bank. Where the Applicant pays the Account, or any part thereof by a cheque, payment of the Account shall not have been affected until the Applicant’s cheque has been honoured. 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.
3. (a) Unless the Company agrees in writing to the postponement of payment of any monies owing to the Company by the Applicant,
interest shall be payable by the Applicant on the highest debit balance of each calendar month on monies owing by the Applicant to the Company, calculated daily from the date the monies become due until the actual date of payment at a rate of 14% per annum provided that, notwithstanding anything herein before contained, the Company may, at any time after the date hereof serve on the Applicant a notice varying as from the future date specified therein the interest rate, and the interest rate shall be varied as therein provided from the date therein specified, being a date not less than 7 days after the date of service of such notice.
(b) Payments received by the Company will be applied as follows:
(i) First in reduction of interest payable and accruing from month to month; and
(ii) Secondly in reduction of all other monies owing to the Company until such time as all monies owing to the Company have been paid in full.
(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 may, at the option of the Company, become immediately payable.
4. 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.
5. 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.
6. 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;
7. 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.
8. 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.
9. The Company shall not be deemed to have waived any of the terms or conditions of the Application or agreed to any variation thereof unless it has done so expressly in writing and is signed by the Company. Failure by the Company to insist upon strict performance of any term or condition herein shall not be deemed a waiver of any rights the Company may have and shall not be deemed a waiver of any subsequent breach of any term or condition.
10. 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.
11. 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.
12. 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.
13. The Applicant thereby agrees that the facility hereby applied for does not extend to any transact ion 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.
14. 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.
15. (a)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.
(b) You shall be liable for and shall hold harmless and indemnify WH Location Services, its officers, employees and agents against all losses, liabilities, damages, expenses, claims, actions or proceedings of whatsoever nature arising or under statute in respect of:
(i) The personal injury or death of you, any of your staff or any other person;
(ii) Damage to a loss or destruction of property;
(iii) Consequential losses,
(iv) arising out of or in connection with the works or services that you are performing or purporting to perform in the vicinity of the plant identified by WH Location Services pursuant to this location services request notwithstanding that the loss, liability, damage, expense, claim action or proceeding is caused by the negligence or other breach of WH Location Services, its offices, employees or agents.
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 property damage;
(b) Any consequential loss of profit, revenue, business or contracts; or
(c) Any other indirect consequential or special loss, injury damage of any nature,
(d) arising out of your work adjacent to and in the vicinity of underground plant identified by WH Location Services in accordance with this location service request whether that responsibility arises in contract, tort (including without limitation, negligence or breach of statutory duty) or otherwise.
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 employed directly by you during the term service under this credit agreement, you will pay a placement fee of $15,000 plus GST per person applicable to the Human Resource cost associated with recruitment, training of the personnel resource supplied. This fee will be invoiced as a Tax Invoice immediately on date of effect and payable within the terms of this agreement.
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/terms-and-conditions/
