TERMS AND CONDITIONS
The whole of the Agreement between LePets Pty Ltd ATF LePets Unit Trust T/A Envon Pet Supplies ABN 28 836 385 636 (“Envon”) and the Applicant referred to in the Credit Application (“Customer”) are those set out in these Terms and Conditions as amended from time to time and those, if any, which are implied and which cannot be excluded by law (“Terms”). Any other contractual terms of the Customer (whether upon the Customer’s order or elsewhere) which are contrary to or inconsistent with these Terms shall not apply nor shall they constitute a counter-offer. By receiving delivery and/or supply of all or a portion of the goods, materials and/or parts and/or labour and/or services supplied by Envon under these Terms (“Goods”), the Customer shall be deemed to have accepted these Terms and to have agreed that they shall apply to the exclusion of all others.
2 Credit Terms
- Payment is due on or prior to thirty (30) days from the date of invoice rendered in respect of the supply of the Goods unless otherwise stated in writing by Envon. Envon may charge interest at a rate equivalent to four percent (4%) in excess of the rate of interest carried by court judgments made by the NSW
- Any payments received from the Customer by way of credit card will be subject to a credit card surcharge fee in force at the date of
- Envon’s express or implied approval for extending credit to the Customer may be revoked or withdrawn by Envon at any
- Envon is entitled to set-off against any money owing to the Customer amounts owed to Envon by the Customer on any account
- Any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs referred to in Clause 2.6, and then to principal.
- The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by Envon for enforcement of obligations and recovery of monies due from the Customer to
3 Quotations and Pricing
- Prices charged for Goods will be according to a current quotation for those Goods. Otherwise, they will be determined by Envon by reference to its standard prices in effect at the date of delivery (whether notified to the Customer or not and regardless of any prices contained in the order). Envon will use its best endeavours to notify the Customer of price changes but bears no liability in respect of
- Any quotation by Envon shall not constitute an offer. Quotations will remain valid for seven (7) days from the date of the
- Any quotation, acceptance of quotation, purchase order or other document which requires signature may be signed in electronic form, and such signature shall be binding upon the person affixing that
- Unless otherwise specified by Envon, the prices exclude:-
- Any statutory tax, including any GST, duty or impost levied in respect of the Goods and which has not been allowed for by Envon in calculating the
- Costs and charges in relation to insurance, packing (other than the standard packing of Envon), crating, delivery (whether by road, rail, ship or air) and export of the
4 Delivery and Supply
- Any times quoted for delivery and/or supply are estimates only and Envon shall not be liable for failure to deliver/supply, or for delay in delivery/supply. The Customer shall not be relieved of any obligation to accept or pay for Goods, by reason of any delay in delivery/supply or dispatch. Envon reserves the right to stop supply at any time if the Customer fails to comply with the
- Envon may refuse to supply any order by the Customer for Goods in its absolute discretion and may make acceptance of an order conditional upon it receiving a satisfactory credit assessment of the
- If the Customer directs that delivery of the Goods be staggered over different times or to different addresses from those specified in the Credit Application, then the Customer:
- shall be liable for any additional cost, charge and expense incurred by Envon in complying with the Customer’s direction; and
- shall pay for the whole of the invoiced value of the Goods notwithstanding the staggered
- Such action shall be deemed to be delivery to the
- The Customer is deemed to accept delivery of the Goods where it is either delivered to the Customer’s premises or when Envon notifies the Customer that the Goods are available for
- If the Customer is unable or fails to accept delivery of the Goods, Envon may deliver it to a place of storage nominated by the Customer and, failing such nomination, to a place determined by Envon. Such action shall be deemed to be delivery to the Customer. The Customer shall be liable for all cost, charge and expense incurred by Envon on account of storage, detention, double cartage/delivery or similar
- Until full payment has been made for all Goods, and any other sums in any way outstanding from the Customer to Envon from time to time:
- All sums outstanding become immediately due and payable by the Customer to Envon if the Customer makes default in paying any other sums due to Envon, becomes bankrupt, or commits any act of bankruptcy, compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in these
- The property in the Goods shall not pass to the Customer and the Customer shall hold the Goods as bailee for Envon (returning the same to Envon on request). The Goods shall nevertheless be at the risk of the Customer from the time of delivery/supply and the Customer must insure the Goods from the time of delivery/supply.
- The Customer is only authorised to sell the Goods (or any portion of them) to third parties as the fiduciary agent of Envon provided that there shall be no right to bind Envon to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by the Customer for the Goods (or any portion of them) shall be held on trust for Envon pursuant to the fiduciary
- In the event that the Customer incorporates or transforms the Goods (or any portion of them) into any other goods or products produced by the Customer (or a third party), then the Customer must hold a proportion of any payment (“relevant proportion”) received by the Customer for such goods or products on trust for Envon. The Customer expressly acknowledges that the relevant proportion shall be equal to the dollar value of the Goods incorporated or transformed and the Customer further acknowledges that any part payment (not exceeding the relevant proportion) received by the Customer for such goods or products is received as payment first of the relevant
- Envon is irrevocably authorised to enter any premises where the Goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods without liability for trespass or any resulting
- In addition to any lien to which Envon may, by statute or otherwise, be entitled, Envon shall in the event of the Customer’s insolvency, bankruptcy or winding up, be entitled to a general lien over all property or goods belonging to the Customer in Envon’s possession (although all or some of such property or goods may have been paid) for the unpaid price of any Goods sold or delivered to the Customer under this or any other
6 Availability of Stock
Any order that cannot be fulfilled on its receipt will automatically be back ordered and processed when stock becomes available unless it is the Customer’s stated standard policy not to accept back orders or the Customer specifically marks its order, “Do Not Back Order”. Deliveries at any time are subject to availability of stock and Envon will not be liable for any charges due to product unavailability.
Unless otherwise agreed, Envon will ship by its nominated carrier.
8 Returns, Cancellations and Claims
- The Customer shall not return any Goods to Envon without obtaining prior authorisation from Envon. No returns will be accepted unless a copy of the relevant invoice is enclosed with the returned Goods. A list of the Goods returned including product descriptions, quantity, date of return and the Customer’s name and address must also be enclosed. Freight charges must be paid by the Customer and the Goods returned through Envon’s approved carrier. All Goods must be returned in the original packaging and the Customer shall be responsible for all damage incurred during return shipment. A credit note will be issued by Envon only after Goods returned are either collected by Envon’s authorised representative or agent or returned to it by the Customer as set out above. The Customer shall not deduct the amount of any anticipated credit from any payment due to Envon but must await receipt of a credit
- All goods returned must be of merchantable and reasonable quality such that the goods are complete in their original packaging, not shop-soiled, are not price ticketed and are still listed in the current price
- If Envon accepts the return of any Goods that have been ordered, Envon may charge the Customer fifteen per cent (15%) of the invoice price as a handling fee with freight costs and risk remaining the responsibility of the
- No cancellations or partial cancellation of an order by the Customer shall be accepted by Envon unless it has first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by Envon, will indemnify Envon against all loss, without limitation. Cancellation will not be accepted on goods that are not regular stock which are in the process of manufacture or ready for
- All complaints, claims, or notification of lost Goods, incomplete Goods, Goods damaged in transit or Goods that do not comply with the Customer’s purchase order must be submitted by the Customer to Envon in writing within seven (7) business days of the date of the invoice rendered for the supply of the Goods. Otherwise, the Customer shall be deemed to have accepted the Goods and shall not refuse to pay for the Goods on the basis that they were lost, incomplete, damaged in transit, or do not comply with the Customer’s purchase
9 Personal Property Security Interest
- The Customer grants Envon a Security Interest in the Goods (supplied as Commercial Property, more particularly described as Other Goods) and their Proceeds to secure the obligation of the Customer to pay the purchase price of the Goods and any other obligations of the Customer to Envon under this contract (together the “Indebtedness”) and, where the Goods and/or Proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the Indebtedness, the security interest shall also extend to all the Goods present and after acquired by the Customer, of which the Goods form part, to the extent required to secured the
- As and when required by Envon the Customer shall, at its own expense, provide all reasonable assistance and relevant information to enable Envon to register a Financing Statement or a Financing Change Statement and generally to obtain, maintain, register and enforce Envon’s Security Interest in respect of the Goods and their Proceeds in accordance with the Personal Property Securities Act 2009 (“PPSA”).
- Envon may at any time register a financing statement or financing change statement in respect of a Security Interest (including any Purchase Money Security Interest). The Customer waives any right to receive notice in relation to any registration on the register of a Security Interest in respect of the Goods.
- The Customer shall not change its name or details without first notifying Envon of the new name or details at least 7 days before the change takes effect.
- The Customer warrants that the Goods are not purchased for personal, domestic or household
- Notwithstanding any reference to a particular invoice/order, where any sum remains outstanding by the Customer on more than one invoice/order, any payments received from the Customer shall be deemed to be made by the Customer and applied by Envon in the following order (unless Envon otherwise determines):
- To any obligation owed by the Customer to Envon which is unsecured, in the order in which the obligations were incurred;
- To any obligations that are secured, but not by a Purchase Money Security Interest, in the order in which those obligations were incurred;
- To obligations that are secured by a Purchase Money Security Interest, in the order in which those obligations were
- Until the Customer has paid all money owing to Envon, the Customer shall at all times ensure that:
- All Goods, while in the Customer’s possession, can be readily identified and distinguished, and/or
- All Proceeds (in whatever form) that the Customer received from the sale of any of the goods are readily identifiable and
- Where the Goods are purchased by the Customer and held as Inventory, nothing in this clause shall prevent the Customer from selling or leasing and delivering the Goods in the ordinary course of the Customer’s business. Otherwise until the Customer has paid all money owing to Envon the Customer shall not sell or grant a Security Interest in the Goods without Envon’s written
- The parties agree to contract out of the PPSA in accordance with Section 115 of the PPSA to the extent that Section 115 applies for the benefit of, and does not impose a burden on, Envon. Specifically, the following provisions of the PPSA will not apply and the Customer will have no rights under them:
- Section 95 (to the extent that it requires the Secured Party to give notices to the Grantor); section 96; section 118 (to the extent that it allows a Secured Party to give notice to the Grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142; section
- Section 115(7) of the PPSA allows for the contracting out of provision of the PPS Act, the following provisions of the PPS Act will not apply and the Customer will not have any rights under them: section 127; section 129(2),(3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section
- Unless otherwise agreed and to the extent permitted by the PPSA, the Customer and Envon agree not to disclose any information of a kind referred to in section 275(1) of the PPSA to an interested person or any other person. The Customer waives any rights which it may have, or but for this clause it may have had had, under section 275(7)(c) of the PPSA to authorise the disclosure of the above
- Envon is irrevocably authorised to enter any premises where the goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods and seize the Goods in accordance with the Act without liability for trespass or any resulting
10 Privacy Act 1988 (“Privacy Act”)
To enable Envon to assess the Customer’s application for credit, the Customer authorises Envon:
- To obtain from a credit reporting agency/body a consumer or commercial credit report containing personal information about the Customer and its guarantors; and
- To obtain a report from a credit reporting agency/body and other information in relation to the Customer’s commercial credit activities, and
- To give to a credit reporting agency/body information including identity particulars and application details
AND the Customer authorises Envon to give to and obtain from any credit provider named in the accompanying credit application and credit providers that may be
named in a credit report issued by a credit reporting agency/body information about the Customer’s credit arrangements. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act.
The Customer understands that information can be used for the purposes of assessing its application for credit, assisting it to avoid defaulting on its credit obligations, assessing its credit worthiness and notifying other credit providers and credit reporting agencies/bodies of a default by it under these Terms.
The Customer must notify Envon in writing within seven (7) days of:
- Any alteration of the name or ownership of the
- The issue of any legal proceedings against the
- The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the
- Any change in the ownership of the business name of the Customer. The Customer agrees that it shall be liable to Envon for all Goods supplied to the new owner by Envon until notice of any such change is
- No warranties except those implied and that by law cannot be excluded are given by Envon in respect of Goods supplied. Where it is lawful to do so, the liability of Envon for a breach of a condition or warranty is limited to the repair or replacement of the Goods, the supply of equivalent Goods, the payment of the cost of repairing or replacing the Goods or acquiring equivalent Goods, as determined by
- The Customer warrants to Envon that it is purchasing Goods as the principal and not as an
13 Force Majeure
Envon shall be released from its obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties renders provision of the Goods impossible, where all money due to Envon shall be paid immediately and, unless prohibited by law, Envon may elect to terminate the Agreement.
14 Equitable Charge
The Customer as beneficial owner and/or registered proprietor now charges in favour of Envon all of the Customer’s estate and interest in any real property (including but not limited to any applicable land owned by the Customer named or described as the Customer’s Street Address in the Credit Application if applicable) (“Land”) to secure payment of accounts rendered by Envon to the Customer for the delivery and/or supply of the Goods including interest payable on these accounts and costs (including legal costs on a full indemnity basis) incurred by Envon and including the costs to prepare and lodge a Caveat against the Land and to remove the Caveat.
15 Failure to Act
Envon’s failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or Envon’s failure to exercise any right or remedy available under these Terms or at law, or Envon’s failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under these Terms shall not constitute a waiver of any subsequent default or a waiver of Envon’s right to demand timely payment of future obligations or strict compliance with the Terms.
16 Legal Construction
- These Terms shall be governed by and interpreted according to the laws of Western Australia and Envon and the Customer consent and submit to the jurisdiction of the Courts of Western
- Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and