Axalta Terms and Conditions of Sale
To the fullest extent legally possible all contracts made between Axalta Coating Systems Pty Ltd [ACN 158 497 655] (“Axalta”) and any customer (the "Customer") for the supply of any products or services are subject to the following Terms and Conditions of Sale ("Terms") as amended by Axalta from time to time.
(a) "Costs" includes Axalta's internal costs and the costs on the indemnity basis of any solicitor acting for Axalta.
(b) "Customer" is the entity making this application for credit
(c) "Default" under these Terms means:
i. Default in payment of any Money Owed as required by these Terms;
ii. A liquidator or provisional liquidator is appointed in respect of Customer;
iii. A manager, receiver or receiver and/or manager is appointed in respect of any or all of the assets of Customer;
iv. An administrator under Part 5.3A of the Corporations Act 2001 is appointed in respect of Customer or any or all of the assets of the Customer;
v. An application is made (whether by the Customer or a creditor) to wind up the customer or the Customer resolves to go into voluntary liquidation;
vi. If the Customer is an individual, she or he commits an act of bankruptcy, files a debtor's petition, has an application for a sequestration order filed or has her or his affairs dealt with under Parts IX or X of the Bankruptcy Act 1966;
vii. Any execution against any of Customer's assets remains unsatisfied for fourteen (14) days; or
viii. The Customer causes or allows any goods to be or become liable to be subject to any lien, destroyed, damaged, endangered, disassembled, removed (other than as part of products manufactured by the customer in the normal course of its business) or concealed from Axalta or if the customer sells or otherwise , disposes of the goods other than in the ordinary course of the customer's business.
i. means goods supplied by Axalta from it's product list from time to time to the Customer and as more particularly described on each invoice from Axalta to the Customer;
ii. Includes inventory; and
iii. (where the context permits) includes services.
(e) "Money Owed" means all money owed by the Customer to Axalta, nor or in the future, alone or together with any other person, and for any reason, including any one or more of the following:
i. The total price owed by the Customer to Axalta for Goods supplied;
ii. Any costs or losses Axalta incurs, including those incurred as a result of any breach by the Customer of any legal or equitable obligation owed to Axalta;
iii. Any Costs Axalta incurs in recovering or securing Money Owed by the Customer or any guarantor; and
iv. Any amount for which the Customer must indemnify Axalta.
(f) "PPSA retention of title property" has the same meaning as in s.51F of the Corporations Act 2001.
(g) "Property" where referring to the property of a corporation, includes PPSA retention of title property.
The total price set out on the invoice is due and payable by the Customer forthwith upon the date of the invoice.
3. PAYMENT TERMS
(a) If the total price is not paid in accordance with the agreed payment terms or as set out on the invoice Axalta may charge the customer interest from the invoice date until payment on the unpaid price at the rate of 5% per annum above the Index Rate calculated on daily balances.
(b) In this clause, the "Index Rate" means the Australia and New Zealand Banking Group Limited Index Rate as published in the Australian Financial Review.
(c) The Customer shall pay all and any import duties, levies or imposts and/or any sales, use, excise, gross receipts value added or other taxes, including but not limited to a goods and services tax or duties of any kind whatsoever assessed upon or relating in any way to the Goods ordered by the customer.
(d) Any amount payable by the Customer pursuant to sub clause (c) above shall be paid in the same manner and at the same time as the payment of this invoice.
4. SALE, SUPPLY AND DELIVERY
(a) Axalta hereby agrees to sell to the Customer the Goods for the total price.
(b) Axalta shall use its best endeavours to have the Goods delivered to the Customer by the delivery date set out on the invoice.
(c) If Axalta is unable (for any reason whatsoever) to supply all of the Goods to the Customer by the delivery date the Customer will accept delivery of the Goods at such time and in such installments as Axalta is able to deliver them.
(d) Axalta may charge the Customer for all costs and expenses incurred in delivering the Goods.
(e) In the event that the Customer claims that any of the Goods are defective or damaged the Customer shall so advise Axalta in writing within thirty days of the actual date of delivery of the Goods or, in the case of defects not reasonably discoverable during said thirty (30) days, within ninety (90) days after discovery.
5. FORCE MAJEURE
Axalta shall incur no liability whatsoever (including liability for any consequential financial loss suffered by the Customer) for inability to perform or delay in performance of its obligations in respect of the sale of the Goods if that inability or delay arises directly or indirectly from the happening of any event not within the reasonable control of Axalta.
6. EXPORT OF GOODS
Axalta and the Customer must not allow the goods to be exported to any place to which their export is prohibited by the laws of either Australia or the United States of America.
(a) To the fullest extent permitted by law all terms, conditions, warranties and representations with respect to the Goods are hereby excluded and in no event shall Axalta be liable for any claims or damages including; (i) any claims relating to the combination of the Goods with any other goods, (ii) special or consequential damages.
(b) Except as otherwise required by law the liability of Axalta in respect of the Goods shall be limited at the election of Axalta to (i) the repair or replacement of the Goods or supply of equivalent Goods; or (ii) payment of the cost of replacing the Goods where payment in full has been made.
In the case of Goods constituting services Axalta's liability in respect of the services shall be limited at the election of Axalta to (i) the cost of resupplying the services or (ii) the cost of obtaining equivalent services.
8. TITLE PROPERTY AND RISK
(a) The ownership of and all property in and title to the Goods shall whereupon title and property shall be vested in the Customer. The Customer shall store the Goods separately from the Customer's own goods and mark them to indicate they are the property of Axalta. Until the Goods are paid for in full the customer is only authorised to sell the Goods as agent for Axalta and shall pay the proceeds of sale into a separate ADI account in Axalta's name from which account the customer shall account to Axalta for the full price of the Goods. The Customer irrevocably appoints Axalta its attorney for the purpose of giving notice to any of the Customer's debtors requiring payment into the ADI account.
(b) If products are manufactured using the Goods the Customer shall hold such part of the proceeds of any sale as represents the total price of the Goods used in the manufacture of the products in a separate identifiable account as the beneficial property of Axalta and shall pay such amount to Axalta upon request.
(c) The Goods shall be at the risk of the Customer from the actual date of delivery.
(d) PAINT MIXES- due to paint carrying a labour content to mix and that once mixed can't be un-mixed, our policy is that there is no credit as clearly indicated at purchase.
9. WARRANTIES BY THE CUSTOMER
The Customer and each person completing this credit application unconditionally promise that -
(a) All personal information supplied is true and correct.
(b) All serial numbers supplied are accurate.
(c) Any change in any of the Customer's addresses, entity name or business name will be notified to Axalta within 5 business days of such change.
(d) They are authorised to provide the information and bind the Customer to these Terms.
(a) Service by Axalta of any notice will be treated as having been effected when sent to any of the addresses shown above in this credit application:
i. for the postal or business\street address, by pre-paid post;
ii. for the fax number, by facsimile transmission; or
iii. for the email address, by email.
(b) Postal service will be treated as having been effected on the business day next following the day on which the notice was placed in the post box and in the case of facsimile or email transmission, production by Axalta of a copy of a facsimile transmission or email message bearing the time and date of dispatch shall be conclusive evidence that the facsimile transmission or email message was sent on that date and time shown.
The failure by either party hereto at any time or times to require performance by the other party of any provision of this agreement shall not affect the right to enforce the same. The waiver by any party of any breach of any one or more of the provisions contained in this agreement shall not be construed to be a waiver of any succeeding breach of such provision or a waiver of the provision by such party.
12. AXALTA’S RIGHTS IF CUSTOMER DEFAULTS
(a) If the Customer defaults Axalta shall be entitled without prejudice to its other rights and remedies and subject to any applicable legislation, to repossess goods and to enter (if necessary by force) any premises, without notice, for that purpose.
(b) The Customer hereby irrevocably authorises Axalta's agents to enter the premises of the customer to locate and seize the goods and, if necessary, to use the customer's equipment to lift and transport the goods from where they are stored.
(c) The Customer will indemnify Axalta against any claim from any other party for damage caused during such entry or seizure and the customer has no claim whatsoever against Axalta for such damage.
(d) If the Customer defaults Axalta is entitled to exercise all its rights and remedies under PPSA Chapter 4.
13. GOVERNING LAW
This agreement shall be governed by construed and take effect in accordance with the laws of New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of New South Wales
14. ILLEGALITY OR INVALIDITY
If any provision of this agreement shall be determined by any statute or any Court having Jurisdiction in relation thereto to be illegal, invalid, void or voidable, the egality or validity of the remainder of this agreement shall not be affected and the illegal, invalid, void or voidable provision shall be deemed deleted here from to the same extent and effect as if never incorporated herein save that the remainder of this agreement shall continue in full force and effect.
(a) Sample: No contract between Axalta and the Customer shall be or be deemed to be a sale by sample.
(b) The Customer agrees to rely on its own knowledge and expertise in selecting any Goods for any purpose and that any advice or assistance given by or on behalf of Axalta shall be accepted by the Customer at its own risk and shall not be or be deemed to be given as an expert or adviser nor intended to have been relied upon by the Customer.
(a) To the extent permitted at law Axalta reserves the right to refuse to accept any returns.
(b) The Customer acknowledges its obligation to inspect all Goods within seven days of delivery.
(c) If Axalta for any reason elects to take back Goods it will be on terms agreed and a re-stocking fee may apply.
(d) No cash refund will be payable in any event.
(a) The Customer agrees, in the event of any dispute arising concerning any order (and including any telephone, facsimile or computer-generated order) that the internal records of Axalta will be conclusive evidence of what was ordered in all respects.
(b) The Customer agrees that each order it places shall be and be deemed to be a representation by it made at that time, that the Customer is solvent and able to pay all of its debts as and when they fall due.
(c) The Customer agrees that failure to pay Axalta in accordance with these Terms shall be and be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in clause 17(b) hereof.
18. RECOVERY COSTS
The Customer will pay indemnify and pay to Axalta all the costs and expenses incurred by it or Axalta's solicitors, mercantile agents or other parties acting on Axalta's behalf in respect of any action instituted or being considered against the Customer whether for recovery of any debt, granting, registration, stamping or enforcement of any security interest or otherwise. The Customer agrees that all of these costs are reasonable expenses for the purposes of PPSA, s.140(2).
19. WHOLE AGREEMENT
Subject to Clause 14 of these Terms:
(a) This agreement shall be binding upon the parties upon the date of the invoice.
(b) This agreement contains all of the terms between the parties relating to the sale and purchase of the Goods.
SECURITY AGREEMENT UNDER PPSA
CREATION OF SECURITY INTEREST UNDER PPSA
1.1.1 Words defined in the Terms and Conditions of Sale have the same meaning when used below.
1.1.2 "PPSA" means the Personal Property Securities Act 2009 (Cth) (as amended) and any other legislation and regulations in respect of it and the following words when used have the
respective meanings given to them in the PPS Act: ADI account, advance , collateral, financing change statement, financing statement, future advance, grantor, interested person,
purchase money security interest, register, registration, security agreement, security interest and verification statement.
1.2 GRANT OF PPSA SECURITY
(a) In addition to the rights Axalta has under Clause 6(a) of the Terms and Conditions of Sale, Axalta retains, and the Customer (as grantor) grants, a security interest in commercial property being Goods supplied and to be supplied as inventory (including Goods paid for) and their proceeds as security for the Money Owed by the Customer and all other obligations including future advances and Costs.
(b) The Customer also grants to Axalta a security interest in commercial property being all the Customer's present and after acquired property as security for the Money Owed by the Customer and all other obligations including future advances and costs.
(c) The Customer will execute documents and do such further acts as may be required by Axalta to register the security interest granted to Axalta under these Terms and under PPSA.
(d) The Customer agrees that:
i. the description of the Goods on any Axalta invoice will be a sufficient description of collateral for PPSA purposes
ii. where Axalta has rights in addition to those under PPSA Chapter 4, those rights will continue to apply.
iii. Axalta may register any security interest granted by it including a PMSI.
(e) To the extent permitted by PPSA the customer waives the right to receive a copy of the verification statement confirming registration of a financing statement relating to any security interest arising under these Terms and further waives all its rights, including any right to receive notice, under sections 95(1), 96, 117, 118(1), 120(2), 121(4), 123(2), 125, 128, 129,130, 132, 134, 135, 142 and 143 of the PPSA.
(f) Until ownership of the Goods passes, the Customer must not give to Axalta a written demand or allow any other person to give Axalta a written demand requiring Axalta to register a financing change statement under the PPSA or enter into or allow any other person to enter into the register of personal property securities a financing change statement under the PPSA.
(g) The Customer acknowledges that it has received value as at the date of first delivery of the Goods and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to Axalta under these Terms.
1.3 PMSI PAYMENT RULES
For the purpose of PPSA section 14(6) payments by or on behalf of the Customer are to be applied in the following order:
(a) to obligations that are not secured (including interest and Axalta's costs and expenses), in the order in which those obligations were incurred;
(b) to obligations that are secured, but not by purchase money security interests, in the order in which those obligations were incurred;
(c) to obligations that are secured by purchase money security interests, first to interest and Axalta's costs and expenses of the relevant PMSI, in the order in which those obligations were incurred.
(d) to other obligations that are secured by purchase money security interests, in the order in which those obligations were incurred.
1.4 CONFIDENTIALITY AGREEMENT
Axalta and the Customer agree that neither of them (and their employees) will disclose to a third party all or any of the information or documents which, but for this confidentiality agreement, they would be obliged to disclose under PPSA, s. 275(1).