Terms & Conditions
Fork Force Australia Pty Ltd
(ABN 76 088 186 065)
Credit Account Terms and Conditions of Supply Effective 01 January 2014
“FFA” and/or the Owner shall mean Fork Force Australia Pty. Ltd. (ABN76 088 186 065). “The Customer” shall mean the person or company (including his or her assigns) whose name appears on the face of this application and will appear on our invoice as the purchaser of the goods and/or services from FFA.
In applying for and accepting on-going credit from FFA, the Customer acknowledges that FFA is a subscriber to the Veda Advantage credit bureau and that in accepting credit from FFA, the Customer acknowledges and accepts that the Customer’s credit history and on-going credit information will be obtained from credit providers and associations from time to time. The Customer also acknowledges and accepts that subject to written advice from FFA, payment defaults by the Customer may at the sole discretion of FFA, be listed with the credit bureau and that such default listing may impact the future provision of credit to the Customer by other credit providers. Refer to Clause 6 below for further credit information provisions.
Unless otherwise agreed in writing by FFA under separate contract, the following shall apply:-
1. Payment Terms
1.1 Payment of thirty (30) day accounts shall be due strictly by the end of the month following the date of invoice
1.2 Payment of seven (7) day accounts shall be due seven days after the date of invoice.
1.3 C.O.D. / Cash Sale accounts are payable at the time of supply or delivery.
2. Discontinuance of Credit
FFA may review, cancel or alter this credit facility without notice at any time and without liability to the Customer. Specifically:-
2.1 accounts will be automatically placed on STOP SUPPLY without additional notice if in the case of thirty day accounts they become overdue by 30 days and in the case of seven day accounts, overdue by 7 days. Where agreed credit limits have been reached, Customers will be requested to immediately bring the account within terms.
2.2 accounts may be closed if continually maintained outside the agreed terms or they are dormant for a period of twelve months or more.
2.3 Payment defaults may at the sole discretion of FFA and after written advice by FFA be listed with the credit bureau and shall not be removed until such time as the default has been settled in full or to such other kevel as advised in writing as satisfactory to FFA
2.4 accounts shall become immediately owing in their entirety and without demand if:-
2.4.1. a person commits an act of bankruptcy, assigns his estate for the benefit of creditors, becomes insane or dies
2.4.2. in the case of a company, becomes subject to external administration or has an application for winding up made against it
2.4.3. a judgement for more than $1000 is entered and remains unsatisfied after 14 days
2.4.4. any guarantor dies, becomes bankrupt, insane or revokes the guarantee
3. Return of Goods
Goods will not be accepted for credit beyond 30 days from supply and returns within thirty days will be subject to a handling charge of 10%.
Regardless, for an application for credit return to be considered:-
3.1 the original invoice or packing slip MUST accompany returned goods
3.2 the goods must be returned to the store from where they were purchased with freight prepaid
3.3 the goods must be in their original packaging and in good and merchantable condition
No Credit will be allowed where:-
• the goods were specially procured in at the Customer’s request
• the goods have been lost or damaged in transit by the Customer.
4. Delivery & Performance
By FFA is subject to the availability of the goods and FFA accepts no responsibility and the Customer agrees that FFA will not be liable in damages to it for delays or non-performance arising from the goods not being available or caused by force majure and/or any cause outside the control of FFA which prevents FFA from supplying the goods or services.
4.1. Whether or not the Company is required to deliver the goods, the goods shall be at the risk of the Customer as from the time that the goods leave FFA’ premises and thereafter FFA shall be under no liability to the Customer in damages or otherwise for any loss, damage, delay or any cause whatsoever.
4.2. The Customer shall bear all charges for the delivery of goods to the address at which the customer shall direct FFA to effect such delivery.
4.3. FFA delivery records shall be prima facie proof of delivery of the goods of the quality and description stated and the receipt thereof by the Customer notwithstanding the absence of any representative of the Customer at the site upon delivery.
4.4. Defects in the goods MUST be notified to FFA in writing within a period of twenty four (24) hours of delivery or of the defect becoming apparent. The defective goods must be returned freight prepaid to FFA with the original invoice or delivery docket. FFA’s decision will be final in terms of the granting of credit for the goods and the reimbursement of return freight charges.
4.5. Subject to Clause 10, the Customer acknowledges and agrees that FFA shall bear no responsibility to it or to any other third party for any consequential loss or damages associated with any defect in parts supplied to it by FFA.
5. Retention of Title
Notwithstanding any arrangement between the Customer and FFA regarding credit, the title to and property in goods at any time sold by FFA to the Customer shall not pass to the Customer and shall remain solely with FFA until all monies owing by the Customer to FFA have been paid in full to FFA. Pending payment of all monies due to FFA as aforesaid
the following shall apply:
5.1. The Customer shall hold the goods as trustee for FFA
5.2. The Customer shall not mortgage or pledge the goods to any person or company
5.3. The Customer acknowledges that FFA is entitled at anytime to take possession by force if necessary of the goods and authorises FFA to enter upon any property where the goods may be and indemnifies FFA against any damages, costs, losses or expenses arising from or in relation to such entry.
6. Disclosure of Credit Information under The Privacy Act 1990 (as amended)
6.1. The Customer and the guarantor agree and consent that FFA may obtain and use Credit Information from other credit providers if FFA thinks it relevant in assessing an application by the Customer for:-
6.1.1 personal credit provision – information held by a credit reporting agency concerning the Customer’s commercial activities or commercial credit worthiness.
6.1.2 commercial credit provision- personal and/or commercial information from a credit reporting agency.
6.1.3 either personal or commercial credit – information from any suppliers named in this credit application and/or any credit reporting agency which may lawfully be obtained about the Customer’s credit arrangements and which can include but not be limited to credit worthiness, credit standing, credit history and credit capacity
The Customer further consents and agrees that FFA may give to any suppliers named in this credit application and/or named in any consumer or commercial credit report issued by a credit reporting agency and to any credit reporting agency information of the type mentioned in clause 6.1.3.
6.2. The Customer understands that the information may be used for the following purposes:-
6.2.1 to assess an application by the Customer for credit
6.2.2 to notify other suppliers of a default by the Customer
6.2.3 to exchange information with other supplier as to the status of any consumer or commercial credit where the Customer is in default with their suppliers and to assess the Customer’s credit worthiness
6.3. The Customer further consents and agrees that FFA may if it considers it relevant in collecting overdue payments in respect of commercial credit provided to the Customer, obtain from a credit reporting agency a credit report containing personal information about the Customer in relation to the collecting of overdue payments
6.4. Further, FFA hereby notifies the Customer that it may give to a credit reporting agency personal information relating to the Customer and the credit application.
6.5 The Customer reaffirms that it is aware of and consents that at the sole discretion of FFA and after written advice by FFA “payment defaults” may be listed with the credit bureau and shall not be removed until such time as the default has been settled in full or to such lesser extent as advised in writing by FFA as satisfactory.
7. General Conditions – the Customer acknowledges that;
7.1 no contract for the supply of goods shall exist between the Customer and FFA except upon these terms and conditions.
7.2 any order placed by the Customer for goods embodying terms inconsistent with these terms and conditions shall only bind FFA if specifically accepted by FFA in writing.
7.3 in the event of FFA being required to take action for recovery of monies due under this credit facility, FFA shall be entitled and is authorized to add all costs including legal fees associated with such recovery to this account. FFA will be entitled to charge interest against the account on all overdue monies at the highest rate allowable by law. Queensland shall be taken as the applicable jurisdiction in all matters relating to this credit facility.
7.4. the Customer will pay any dishonor charges incurred by FFA in accepting cheques or other payments including direct deposits from the Customer in settlement of this credit facility.
7.5. The Customer is required to and agrees to notify FFA of any changes of ownership, to supply new names and addresses and/or any other information which may affect the trading terms and conditions
7.6. Any and all monies due and payable by the Customer are payable at Fork Force Australia P/L., 3 Perivale Street , Darra. Qld 4076
7.7 These Hire Contract Conditions may be changed from time to time by FFA to the customer. Notice is deemed given (whether or not actually received) when FFA does any of the following: a) sends notice of amendment to the Customer at any address (including the email address) supplied by the customer; b) publishes amended terms on its website www.forkforce.com.au; or c) displays the amended terms at premises from which FFA conducts operations.
8. PPS law
8.1 This clause applies to the extent that this credit account involves the hire of equipment by the Customer requiring registration by FFA of a “Security Interest‟ for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPS Law).
8.2 References to PPS Law in this Agreement include references to amended, replacement and successor provisions.
8.3 FFA may register its security interest as a PMSI. The Hirer must do anything (such as obtaining consents and signing documents) which the Owner requires for the purposes of:
(a) ensuring that the Owner’s security interest is enforceable, perfected and otherwise effective under the PPS Law;
(b) enabling the Owner to gain first priority (or any other priority agreed to be the Owner in writing) for its security interest; and
(c) enabling the Owner to exercise rights in connection with the security interest.
8.4 The Owner may recover from the Hirer the cost of doing anything under this clause, including but not limited to registration fees.
8.5 The rights of the Owner under this document are in addition to and not in substitution for the Owner’s rights under other law (including PPS Law) and the Owner may choose whether to exercise rights under this document, and/or under other law, as it sees fit.
8.6 To the extent that Chapter 4 of the PPS applies to the security interest under this agreement, the following provisions of the PPS Law do not apply and for the purposes of section 115 of the PPS Law are “contracted out” of this Agreement in respect of all goods to which that section can be applied: section 95 (notice of removal of accession to the extent it requires the Owner to give notice to the Hirer); section 96 (retention of accession); section 121(4) (notice to grantor); section 125 (obligations to dispose of or retain collateral); section 130 (notice of disposal to the extent it requires the Owner to give notice to the Hirer); section 129(2) and 129(3); section 132(3)(d) (contents of statement of account after disposal); section 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (re- instatement of security agreement).
8.7 The following provisions of the PPS Law confer rights on the Owner: section 123 (seizing collateral); section 126 (apparent possession); section 128 (secured party may dispose of collateral); section 129 (disposal by purchase); and section 134(1) (retention of collateral). The Hirer agrees that in addition to those rights, the Owner shall, if there is default by the Hirer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any goods, not only under those sections but also, as additional and independent rights, under this document and the Hirer agrees that the Owner may do so in any manner it sees fit, including (in respect of dealing and disposal) by private or public sale, lease or licence.
8.8 The Hirer waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPS Law.
8.9 The Owner and the Hirer agree not to disclose information of the kind that can be requested under section 275(1) of the PPS Law. The Hirer must do everything necessary on its part to ensure that section 275(6)(a) of the PPS Law continues to apply. The Agreement in this sub-clause is made solely for the purposes of allowing the Owner the benefit of section 275(6)(a) and the Owner shall not be liable to pay damages or any other compensation or be subject to injunction if the Owner breaches this sub-clause.
8.10 If FFA does not have at Commencement a PPS Law registration ensuring a perfected first priority security interest in the Equipment, the Hire Period, (including any extension of the Hire Period or the aggregate of consecutive Hire Periods during which the Customer has substantially uninterrupted possession) may not despite anything else in this document or any Hire Schedule be longer than 90 days.
9. Security interests and sub-hire
9.1 The Hirer/Customer must not create, purport to create or permit to be created any security interest (as defined in PPS Law) in the Equipment other than with the express written consent of FFA.
9.2 The Hirer/Customer must not lease, hire, bail or give possession (sub-hire) the Equipment to anyone else unless the Owner (in its absolute discretion) first consents in writing. Any such sub-hire must be in writing in a form acceptable to the Owner and must be expressed to be subject to the rights of the Owner under this Agreement.
9.3 The Hirer may not vary a sub-hire without the prior written consent of the Owner (in its absolute discretion).
9.4 The Hirer must ensure that the Owner is provided at all times with up-to-date information about the sub-hire including the identity of the sub-hirer, the terms of and state of accounts and payment under the sub-hire and the location and condition of the Equipment.
9.5 The Hirer must take all steps including registration under PPS Law as may be
(a) ensure that any security interest arising under or in respect of the sub-hire is
enforceable, perfected and otherwise effective under the PPS Law;
(b) enabling the Hirer to gain (subject always to the rights of the Owner) first
priority (or any other priority agreed to by the Owner in writing) for the security interest; and
(c) enabling the Owner and Hirer to exercise their respective rights in connection with the security interest.
9.6 The Owner may recover from the Hirer the cost of doing anything under this clause, including registration fees
9.7 FFA may charge or mortgage or grant a Security Interest in (a ‘Security’) its interest in this Agreement and/or the Hired Item in favour of a Security Holder without the Customer’s consent. The exercise of any rights by the Security Holder under a Security will not constitute a breach or default under this Agreement or otherwise entitle the Customer to terminate, rescind or revoke this Agreement; and
9.8 The Security Holder has a Security, including a purchase money security interest (as defined in the PPSA) in this Agreement and/or the Hired Item;
9.9 The exercise of any rights by the Security Holder under the agreement between the Security Holder and the Owner will not constitute a breach of default under this Agreement or otherwise entitle the Customer to terminate, rescind or revoke this Agreement;
9.10 The Customer’s rights in respect of Hired Item are expressly subject and subordinated to the rights of the Security Holder (whether arising under the Security, at law or otherwise). Nothing in this Agreement will in any way limit, reduce, vary or otherwise qualify the rights of a Security Holder under or in connection with any Security, any other document connected with any Security or any Hired Item and the Security Holder will be entitled to exercise all of its rights under or in respect of the Security to the same extent as if this Agreement had not been entered into;
9.11 If a security interest becomes enforceable:
a) the Owner may by notice to the Customer terminate this Agreement and upon such notice the Customer’s right to possess and use the Hired Item automatically ceases and the Customer must surrender possession and control of the Hired Item to the Security Holder or the Owner, notwithstanding that the Customer may not be in breach or default of its obligations under this Agreement; and
b) the Security Holder may enter any premises where any Hired Item is located to exercise any rights of the Owner or the Security Holder under any Security, this Agreement or at law including, if the need arises, the right to remove the Hired Item from the relevant premises. The Customer agrees to obtain all necessary consents from the owner, occupier and other interested persons (such as any mortgagee) of the relevant premises where the Hired Item is located to enable the Security Holder and Owner to do this.
9.12 If a repudiation or termination occurs under the agreement between the Security Holder and the Owner:
a) the Security Holder may by notice to the Customer terminate this Agreement (in accordance with the terms of this Agreement) and upon such notice the Customer’s right to possess and use the Hired Item automatically ceases and the Customer must surrender possession and control of the Hired Item to the Security Holder, notwithstanding that the Customer may not be in breach or default of its obligations under this Agreement;
b) the Security Holder may enter any premises where the Hired Item is located to exercise its rights under the agreement between the Security Holder and the Owner and the Owner’s rights under this Agreement, including, if the need arises, the right to remove the Hired Item from the relevant premises;
c) The Customer will obtain all necessary consents from the owner, occupier and other interested persons (such as any mortgagee) of the relevant premises where the Hired Item is located to enable the Security Holder to inspect or take possession of the Hire Item.
10. Limited Warranty and Liability of Seller:
10.1 To the extent that the Australian Consumer Law (ACL) allows for limitation of liability, Fork Force Australia Pty Ltd’s (FFA’s) liability is limited, at the option of FFA, by the repair or replacement of faulty goods or payment for such repairs or replacement and to the re-supply of services or payment for such re-supply. Our products and/or services come with guarantees that cannot be excluded under the ACL. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are entitled to have the goods repaired or replaced if goods fail to be of acceptable quality and the failure does not amount to a major failure.
10.2 Subject to products specifically excluded elsewhere within the Seller’sTerms and Conditions of Trade or specific contractual conditions, FFA will repair or replace any items sold which under normal use prove defective in material or workmanship within a period of ninety (90) days from the date of invoice or such other timeframe as may be reasonably expected given the nature of the goods including factors such as their age, engine hours and relative price in the case of used equipment supplied.
10.3 Upon discovery of any defect in the goods supplied by the Seller, the Buyer shall immediately notify the Seller in writing and upon receipt of approval, return the defective item, freight prepaid to the Seller at their nominated address with proof of purchase and a brief explanation of the defect. The Buyer shall not carry out any remedial work to allegedly defective goods without first obtaining the written consent referred to above.
By engaging FFA in services/products, making payment of invoices and dealing with FFA the Customer agrees to comply with all terms and conditions as detailed.