Terms and Conditions OGRDA GROUP PTY LTD 2023
TERMS AND CONDITIONS OF TRADE
To the fullest extent legally permissible all dealings between OGRADA GROUP PTY LTD and any customer relating to any products (‘’Products’’) and/or services are subject to the following terms and conditions of trade (‘’thee terms’’) unless otherwise agreed in writing:
Payments - to be by cash, credit card or EFT without deduction within our trading terms set out in the quotation unless otherwise agreed. If OGRADA GROUP PTY LTD receives or recovers money in respect of debts of the customer or anyone else, OGRADA GROUP PTY LTD may use it to pay off whichever of those debts it chooses.
Interest - will be charged on overdue accounts at the rate prescribed by the Penalty Interest Rates Act 1983 (Vic) plus 4%.
Property - Even if OGRADA GROUP PTY LTD grants any credit facility and/or time to pay:
a) property in Products shall not pass to the Customer until payment in full and of all monies owed to OGRADA GROUP PTY LTD and OGRADA GROUP PTY LTD reserves the right to take possession and dispose of Products as it sees fit at any time until full payment.
b) the Customer grants permission to OGRADA GROUP PTY LTD to enter any property to recover the Products and with such force as is necessary.
c) the customer agrees that a certificate purporting to be signed by an officer of OGRADA GROUP PTY LTD identifying Products as unpaid for shall be conclusive evidence that Products have not been paid for and of OGRADA GROUP PTY LTD title to those Products.
d) upon sale or disposition of any Products prior to full payment the Customer agrees to deposit all proceeds in a separate bank account, not mix such proceeds with any other monies and account to OGRADA GROUP PTY LTD for the same as fiduciary and bailee.
e) without derogating from OGRADA GROUP PTY LTD rights as a creditor of the Customer or arising under these terms if Products are used in any construction, building, fabrication and/or manufacturing process (‘’the Process’’) which results in an entitlement of the Customer to
receive money from any other person the Customer agrees to hold such part of any monies received buy the Customer (or the corresponding book debt owed to the Customer in respect of those monies) as is equivalent to the value of any Products used in the Process as invoiced
to the Customer by OGRADA GROUP PTY LTD UPON TRUST for OGRADA GROUP PTY LTD until payment in full for those Products and all monies owed to OGRADA PTY LTD.
f) Products shall in all instances, be deemed to be dealt with by the Customer on a ‘’first on first out’’ basis.
Limitation of Liability: The customer agrees:
a) to limit any claim, it makes to the cost of replacement of Products or of acquiring equivalent Products.
b) that OGRADA GROUP PTY LTD shall not be liable for any loss or expense arising after seven days from delivery (or at all once Products have been unpacked, affixed and/or otherwise used or applied) after which there shall be deemed to be unqualified acceptance.
c) that to the fullest extent legally permissible OGRADA GROUP PTY LTD shall not be liable for any damages for personal injury, any damage to property and/or any contingent, consequential, direct, indirect, special, or punitive damages whether due to negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly, and incorrect installation of any product purchased from OGRADA GROUP PTY LTD.
d) that to the fullest extent legally permissible no other term, condition, agreement, warranty, representation and/or understanding whether express or implied, in any way extending to, otherwise rotating to or binding upon OGRADA GROUP PTY LTD other than these Terms is made or given by or on behalf of OGRADA GROUP PTY LTD other than by these Terms save and except to the extent otherwise required by law.
Exclusions: The Customer agrees that:
a) no dealing between OGRADA GROUP PTY LTD and the Customer shall be or be deemed to be a sale by sample.
b) the Customer shall rely on its own knowledge and expertise in selecting Products for any purpose and any advice or assistance given by or on behalf of OGRADA GROUP PTY LTD shall be accepted at the Customer’s risk and shall not be deemed to have been given as expert or adviser nor to have been relied upon.
c) Products are sold subject to each and every manufacturer’s trading terms and conditions and are protected by each and every manufacturer’s warranty and OGRADA GROUP PTY LTD shall not be liable to the extent that any manufacturer is liable under a manufacturer’s warranty unless otherwise required by law; and
d) OGRADA GROUP PTY LTD shall not be liable nor responsible for any failure to comply with any requirements of the Customer or any other person (whether relating to manufacture, design, fabrication, installation and/or any other particular intended use of any Products and/or otherwise) which are not precisely and accurately communicated in writing directly to the appropriate personnel at OGRADA GROUP PTY LTD prior to the entry by OGRADA into any relevant sale contract.
Cancellations and Returns: The customer agrees that:
a) the Customer shall at no time cancel the whole or part of any order placed without OGRADA GROUP PTY LTD prior written approval; and
b) the Customer shall not be entitled to return Products without OGRADA GROUP PTY LTD prior written approval which approval can be withheld at OGRADA GROUP PTY LTD absolute discretion.
Orders: The Customer agrees that:
a) each order it places shall be deemed to include a representation that it is solvent and able to pay all of its debts as and when they fall due; and
b) when any order is placed the Customer shall inform OGRADA GROUP PTY LTD of any facts which might reasonably affect any decision to accept the order and/or grant credit and that any failure to do so shall be deemed to create and constitute an inequality of bargaining position, the taking of an unfair advantage of OGRADA GROUP PTY LTD and to be unconscionable, misleading and deceptive.
Delivery:
a) OGRADA GROUP PTY LTD shall not be liable for delay or any failure or inability to deliver.
b) OGRADA GROUP PTY LTD may charge for frustrated delivery to cover OGRADA GROUP PTY LTD reasonable expenses.
Other Terms and Conditions - No terms and conditions sought to be by the Customer upon OGRADA GROUP PTY LTD shall apply and the parties agree that these terms and conditions shall prevail over any other document.
Recovery Costs - The Customer shall pay all costs and expenses (including legal costs on an indemnity basis) incurred by OGRADA GROUP PTY LTD and/or its agents in respect of the Customer whether relating to any debt, possession of Products and/or otherwise.
Customer Restructure - The Customer shall notify OGRADA GROUP PTY LTD in writing of any change in its structure and/or management including any change in director, shareholder and/or management and any change in partnership or trusteeship within seven days of the date of any such change.
Jurisdiction - The Customer agrees that all contracts made with OGRADA GROUP PTY shall be deemed to be made in the State of Victoria by OGRADA and the Customer agrees to submit to the jurisdiction of Victoria.
Credit Limit - The grant of any credit facility or nomination of any credit limit is an indication only of OGRADA GROUP PTY LTD intention at the time. OGRADA GROUP PTY LTD may vary and/or withdraw any credit facility at any time at its discretion and without liability to the Customer or any other party.
Security for Payment - As security for payment to OGRADA GROUP PTY LTD of all monies payable by the customer, the customer does hereby charge in favour of OGRADA GROUP PTY all of the customer’s interest in freehold and leasehold property both current and later acquired. To protect OGRADA GROUP PTY LTD security interest in the goods until payment, OGRADA may choose to register the agreement with you under the Personal Property Security Act 2009. You agree to do all things necessary to facilitate such registration.
Forward Orders: The Customer agrees; to pay for so much of any forward order as is from time to time invoiced by OGRADA GROUP PTY LTD; that no delay or failure to fulfil any part of such order shall entitle any cancellation or variation of any order or delay or reduce any payment; and to pay any demurrage and/or other costs and expenses of OGRADA GROUP PTY LTD in handling and/or holding products once ready for delivery
Force Majeure: OGRADA GROUP PTY LTD shall not be or be deemed to be in default or breach of any contract as a result of Force Majeure. Force Majeure shall include any cause beyond the reasonable control of OGRADA including strikes and lockouts.
Attornment - For the purpose of giving effect to the Customer’s obligations under these Terms (in particular clause 15 of these terms) the Customer hereby irrevocably appoints the Credit Manager (or like equivalent) for the time being of OGRADA GROUP PTY LTD as the Customer’s attorney in all things.
Notification of Defects:
a) The Customer must notify OGRADA GROUP PTY LTD in writing of any deficiency or defect in the product or workmanship within 48 (forty-eight) hours of the date of the relevant invoice.
b) Upon receipt of the notification in accordance with Condition 19 a) OGRADA GROUP PTY LTD shall within a reasonable period of time send a representative to view the alleged deficiency or defect and if no such deficiency or defect is identified by OGRADA GROUP PTY LTD then the Customer shall be liable to pay to OGRADA GROUP PTY LTD its current callout charge.
Progress Invoicing – OGRADA GROUP PTY LTD reserves the right to render invoices from time to time throughout the course of any particular job at its absolute discretion. The Customer shall not be entitled to refuse to pay all or part of that invoice on the basis that goods and services to that value have not been supplied by OGRADA GROUP PTY LTD. OGRADA GROUP PTY LTD shall not be obliged to complete nay job whilst and so long as any monies are owed to it by the Customer whether in respect of that particular job or otherwise.
Quotations:
a) The Customer must provide a Purchase Order and/or must sign, date, complete and return each and every written quotation to OGRADA GROUP PTY LTD by way of acceptance.
b) It shall be the sole responsibility of the Customer to ensure that each and every detail on the quote is accurate.
c) Each quotation is valid for 14 (fourteen) days only.
d) All quotations are based on information supplied to OGRADA GROUP PTY LTD by the Customer.
e) If a price rise occurs prior to acceptance to any quotation OGRADA GROUP PTY LTD will issue the Customer with a new quotation.
f) All quotations are subject to cost variation, which will be adjusted after completion of work, positive or negative.
h) This quotation is subject to all standard terms & conditions.
Disputes: The customer agrees to pay into an account in the name of OGRADA GROUP PTY LTD and the Customer any amount claimed by OGRADA GROUP PTY LTD as a condition precedent to any dispute by the Customer of any such claim on the basis that upon resolution of the dispute the trust fund and any interest will be dispersed according to the resolution. This clause shall operate as a bar to any defence or claim by the Customer until fully complied with.
Abnormal Payments - The Customer agrees to pay an administration fee of 2% (calculated on the amount paid) on any payment which is made other than as provided in Clause 1 of these Terms which fee is agreed as the liquidated cost of processing such abnormal payments.
Defaults - Upon default or breach of these Terms by the Customer OGRADA GROUP PTY LTD may inter alia retain all monies paid, cease further deliveries, recover from the Customer any loss of profits arising and/or at OGRADA GROUP PTY LTD election take immediate possession of Products not paid for without prejudice to any other rights OGRADA GROUP PTY LTD may have and without OGRADA being liable in any way to any person.
Severability: Any part of these terms being a whole or part of a clause shall be capable of severance without affecting any other part of these terms.
Goods and Services Tax [GST]: All monies payable to OGRADA GROUP PTY LTD and any other consideration for any other ‘’taxable supply’’ (within the meaning of A New Tax System (Goods and Services Tax) Act 1999 and associated legislation as amended from time to time) shall unless OGRADA GROUP PTY LTD otherwise directs be deemed at all times to be exclusive of GST and/or any other applicable taxes, government charges, levies and/or imposts of any kind whatsoever – any and all of which must be paid by the Customer to OGRADA GROUP PTY LTD as and when and in such manner as OGRADA GROUP PTY LTD reasonably requires
Warranty Policy: Save and except as required by law no warranty is given where OGRADA GROUP PRY LTD is not the manufacturer of Products other than the warranty offered by the manufacturer and to the fullest extent legally permissible OGRADA GROUP PTY LTD liability shall in all cases be strictly limited in accordance with clauses 4 & 5 of these Terms. Where OGRADA GROUP PTY LTD is or might be deemed to be a manufacturer then the OGRADA GROUP PTY LTD Standard Warranty applies for the period applicable to specific Products. Details of the OGRADA GROUP PTY LTD Standard Warranty and the schedule of periods applicable are available upon request from OGRADA GROUP PTY LTD Head Office at 9/8-10 Norton Drive, Melton 3337.
Credit Information - The Customer irrevocably authorises OGRADA GROUP PTY LTD and its servants and agents to make such enquiries from time to time as OGRADA GROUP PTY LTD may deem necessary to obtain information and/or to investigate the creditworthiness of the Customer including enquiries with persons nominated as trade references, bankers of the Customer, any other credit provider, any credit reporting agency, any land titles office, the AISC, ITSA and/or any similar body and/or related information service (‘’The Sources’’) and including personal credit and consumer credit information and any property, business and/or solvency information. The Customer by this clause irrevocably authorises the Sources to disclose anything about the Customer to any interested person (subject only to any obligations OGRADA GROUP PTY LTD may have under the Privacy Act 1988 (Cth)
Notice - The Customer agrees that it shall be deemed to have notice of any change to these Terms immediately any change is adopted by OGRADA GROUP PTY LTD and whether or not the Customer has actual notice thereof. The Customer shall be bound by any terms and conditions of trade which may be adopted by OGRADA GROUP PTY LTD immediately they are so adopted and notwithstanding any other purported or pre-existing terms and conditions which might otherwise have applied. These terms as updated are available at www.ograda.com.au
PPSA
31.1Defined Terms in clause 5.0 have the same meaning as given to them in the PPSA.
a) The seller and the Buyer acknowledge that this agreement constitutes a Security Agreement and gives rise to a Purchase Money security (PMSI) in favour of the Seller over the goods supplied or to be supplied to the buyer, as Grantor, pursuant to this Agreement.
b) The Goods supplied or to be supplied under this Agreement fall within the PPSA classification of “Other Goods” acquired by the Buyer pursuant to these Terms of Trade.
c) The Seller and the Buyer acknowledge that the Seller, as Secured Party, is entitled to register its interest in the Goods supplied or to be supplied to the Buyer, as Grantor, under this Agreement on the PPSA Register as Collateral.
31.2. The Buyer waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Charge Statement relating to a Security Interest granted by the Buyer, as Grantor, to the Seller.
31.3. The Buyer agrees to indemnify the Seller on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;
a) Registration or amendment or discharge of any Financing Statement registered by or on behalf of the Seller; and
b) Enforcement or attempted enforcement of any Security Interest granted to the Seller by the Buyer
31.4. The Buyer Agrees;
a) that, to the extent permitted at Law, nothing in sections 130 to 143 of the PPSA will apply to these Terms of Trade;
b) to waive its right to do any of the following under the PPSA:
1. receive notice of removal of an Accession under section 95;
2. receive notice of an intention to seize Collateral under section 123;
3.receive notice of disposal of Collateral under section 130;
4. receive a Statement of Account if there is no disposal under section 130(4);
5. receive notice of retention of Collateral under section 135;
6. redeem the Collateral under section 142;
7. reinstate the Security Agreement under section 143;
8. object to the purchase of the Collateral by the secured party under section 129; and
9. receive a Statement of Account under section 132(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.