The Terms and Conditions apply to each invoice and for the sake of clarity, each provision of Goods to the Consumer by Top Hill.
Title and Risk
- Top Hill will retain property in and ownership of any goods supplied to the Customer until the whole amount payable for the Goods has been received by Top Hill, and then property and ownership pass to the Customer. Top Hill will give title to the Customer free from all encumbrances and third party interests.
- Risk in the Goods shall pass from Top Hill to the Customer either:
- When the Goods are collected by the Customer or its nominated agent from the Top Hill Premises in accordance with clause 3(a); or
- When the Goods are removed from the Top Hill Premises for Delivery to the Customer’s nominated premises in accordance with clause 3(b).
- Risk in the Goods shall pass from Top Hill to the Customer either:
- Unless otherwise agreed by Top Hill, the Customer will collect, or procure the collection of, the Goods from the Top Hill Premises in the quantities ordered by the Customer and at such times as may be agreed between the parties. The Customer will be responsible for the cost of carriage and insurance in relation to the transport of the Goods from the Top Hill Premises.
- Where Top Hill has agreed to Deliver the Goods to another location nominated by the Customer, Delivery shall take place at that other location. The Customer will be responsible for the cost of carriage and insurance in relation to the transport of the Goods from the Top Hill Premises to the Customer’s nominated premises.
- A Date for Delivery provided by Top Hill to the Customers is an estimate only of the date on which the Goods will be Delivered. The Customer acknowledges that many of the Goods supplied by Top Hill are imported and are subject to delays which are outside of the control of Top Hill. Top Hill gives no promise, warranty or undertaking that it will Deliver the Goods by the Date for Delivery.
- Where the Customer has a pre-approved account limit with Top Hill, the terms are strictly payment 30 days from the end of the month of delivery, unless otherwise agreed by Top Hill in writing.
- Where the Customer does not have an approved account limit the Customer shall pay Top Hill the whole of the Contract Sum on or before the Due Date. The Customer acknowledges that Delivery in accordance with this Agreement will not occur until payment of the whole of the Contract Sum has been made. However, Delivery does not waive or vary in any way the Customer’s obligations to make payment.
- Where Top Hill has accepted the Customers application for credit and granted Credit to the Customer and the Customer fails to pay the Contract sum on or before the Due Date then the credit terms granted by Top Hill to the Customer shall terminate immediately.
Warranties and Exclusions
- It is the responsibility of the Customer to satisfy itself that the Goods are of a description quality and character suitable for the purpose for which they are purchased by the Customer or for any other purpose and Top Hill shall not be liable for loss or damage whatsoever in Contract, Tort for negligence, Equity or otherwise and whether direct or indirect and howsoever arising, suffered by the Customer as a result of the Goods not being satisfactory for their intended purpose.
- Top Hill gives no warranties whatsoever in connection with the Goods other than as may be provided expressly in writing by Top Hill or as otherwise implied by any applicable law.
- If the Customer validly claims there has been a breach of the conditions or warranties implied under any law of Queensland or the Competition and Consumer Act 2010 (Cth), Top Hill’s liability will be limited to any one or more of the following as determined by Top Hill:
- The cost of replacing the Goods;
- The cost of obtaining equivalent Goods; or
- The cost of having Goods repaired.
- Top Hill shall not in any circumstances be liable for any claim, liability, expense or cost arising directly or indirectly from the non-delivery of Goods or delay in the delivery of Goods caused by weather, industrial action, unavailability of raw material for any reason, or from any unexpected cause beyond Top Hill’s reasonable control directly or indirectly affecting the Goods or the availability of the Goods.
- Subject to this clause 5, Top Hill shall not in any circumstances be liable for any claim, liability, damage, expense, cost or loss including any consequential loss or damage, arising directly or indirectly from the Goods or in connection with the Goods and whether in Contract, Tort for negligence, Equity or otherwise.
Acceptance of the Terms and Conditions
The acceptance of a manifest, invoice (including this invoice) or delivery docket for Goods received, notwithstanding anything that may be stated to the contrary by the Customer, shall constitute acceptance of these Terms and Conditions.
Variations of Terms and Conditions
Top Hill reserves the right to vary the Terms and Conditions without notice. The Terms and Conditions are to be subject to the provision of any relevant legislation, including but not limited to the Competition and Consumer Act 2010 (Cth).
All conversations, representations and statements not embodied in any quotation or invoicing or not confirmed in writing by Top Hill are expressly excluded and shall not be deemed to be part of any quotation, invoice (including this Invoice), order or contract, or to have induced the order or to have any legal effect whatsoever.
The Terms and Conditions shall be subject to the laws of Queensland and the Courts of Queensland.
Any account which is overdue will attract interest at the rate of interest (however described) equivalent to 14% per annum. Nothing in this clause imposes an obligation on Top Hill to extend the payment term to the Customer for any period at all.
Top Hill may elect (in its absolute discretion) to neither dispatch any product nor accept any further orders from the Customer with Top Hill if the Customer’s account is overdue.
The Customer agrees that any discounts, rebates or other concessions are lost if payment is not made in time. Where the Customer is in breach of any of the terms and conditions, including if the Customer’s account is overdue, the Customer agrees that they are responsible for all of Top Hill’s expenses of any kind, including its legal costs on a solicitor client basis and any commission or other expense incurred by any debt collection agency that Top Hill retain to recover the monies the Customer owes Top Hill. Top Hill may elect (in its absolute discretion) to commence legal proceedings against the Customer for the recovery of any account which is overdue.
Personal Property Securities Law
By obtaining Goods supplied by Top Hill or signing the Application for Commercial Credit, the Customer acknowledges that these terms and conditions and the transactions contemplated by them, constitute a security interest for the purposes of the PPS Law in Top Hill’s goods supplied to the Customer by Top Hill under these terms and conditions (the “Security Interest”).
The Customer must do anything (including amending these terms and conditions or amending, executing or completing any document, obtaining consents and supplying information) that Top Hill considers necessary for the purposes of:
- Ensuring that the Security Interest is enforceable, perfected or otherwise effective and has the highest priority possible under the PPS Law; and
- Enabling Top Hill to apply for any registration, give any notification and exercise rights in connection with the Security Interest.
In this clause 11:
- “PPS Act” means the Personal Property Securities Act 2009 (Cth);
- “PPS Law” means the PPS Act, and other associated legislation and regulations, as amended from time to time;
- Terms defined in the PPS Act and used herein having the meaning ascribed to them in that Act.
To the extent that Chapter 4 of the PPS Act applies to the enforcement of the Security Interest, the Customer agrees that sections 95, 96, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPS Act will not apply to such enforcement.
The Customer acknowledges and agrees that until the Customer pays Top Hill in full for the goods, the security interest under these terms and conditions relates to the products and all proceeds of sale in respect of those Goods and the Customer must not allow any third party to acquire a security interest in those Goods.
If the Customer makes a payment to Top Hill at any time Top Hill may, in its absolute discretion, apply that payment to first satisfy obligations that are not secured, then obligations that are secured, but not by a purchase money security interest (“PMSI”), in the order in which those obligations were incurred, and then obligations that are secured by a PMSI in the order in which those obligations were incurred. The Customer agrees:
- To the maximum extent permitted by law, to waive any right to receive a verification statement or financing change statement in respect of the Security Interest;
- To indemnify, and on demand reimburse Top Hill for all expenses incurred in registering a financing statement or financing change statement on the Personal Properties Securities Register or releasing any Goods the subject of the Security Interest;
- Not register a financing change statement without Top Hill’s prior written consent;
- To give 14 days prior written notice of any proposed change in the Customer’s name, details (including contact details or business practices) and immediately advise Top Hill of any material change in the Customers practices of selling any of the Goods subject to the Security Interest which would result in a change in the nature of the proceeds derived from such sales; and
- That these terms and conditions constitute a “confidentiality agreement” for the purposes of section 275 of the PPS Act and neither the Customer nor Top Hill disclose any information of the kind mentioned in section 275(1) of the PPS Act, unless required to do so under the PPS Law.
Top Hill’s prices are exclusive of GST and all other applicable taxes, levies, duties and government charges, but if GST or other existing or new tax, levy, duty or government charge is payable, it is to the Customer’s account and must be paid at the same time as the Customer pays for the Goods.
The Customer must not assign, novate, transfer, sub-contract, sub-licence or otherwise dispose of any or all of the Customer’s rights or benefits under these terms and conditions, unless the Customer has obtained Top Hill’s prior written consent (which Top Hill may withhold in its absolute discretion). Any assignment, etc by the Customer without Top Hill’s consent shall entitle Top Hill to avoid any liability Top Hill may have to the Customer under these terms and conditions. Top Hill may assign, novate, transfer, sub-contract, sub-licence or otherwise dispose of any or all of its rights and/or obligations under these terms and conditions to any person without the Customer’s consent and, in the case of novation, the Customer and Top Hill and the relevant third party must each execute a novation agreement in a form prescribed by Top Hill.
The Customer agrees that they must accept delayed delivery and/or cancellation of an order and make no claim against Top Hill for any delay in delivery, cancellation or any damaged product delivered to the Customer or for any breach of these terms and conditions or any other failure by Top Hill arising as a direct or indirect result of events beyond Top Hill’s control, including, natural occurrences, industrial disputes, failure of Top Hill’s equipment or machinery or failure of any of Top Hill’s employees or sub-contractors.
Intellectual Property and Confidentiality
These terms and conditions do not give the Customer any intellectual property rights in Top Hill’s Goods or in any promotional literature, technical documents or other information provided or made available to the Customer.
The Customer’s details and information that is provided to Top Hill may be retained by Top Hill on its database. The Customer has no rights in that database. Top Hill may use such database in the conduct of its business, subject to privacy and other relevant laws.
Top Hill is not liable for any infringement or unauthorised use of any intellectual property rights arising from these terms and conditions. If any dispute or claim is made in respect of any infringement or unauthorised use of intellectual property Top Hill may terminate these terms and conditions by written notice to the Customer and without liability to the Customer or any other person.
The Customer must indemnify and hold Top Hill (and its affiliates, employees and sub-contractors) harmless against all losses, liabilities and costs (including legal expenses) sustained, incurred or suffered by Top Hill (or its affiliates, Top Hill or sub- contractors) as a result of any claim, action or proceeding that the use, possession or receipt by Top Hill (or its affiliates, Top Hill or sub-contractors) of any data, information or materials (in whatever form, including in electronic format) provided or made available by the Customer infringes the intellectual property rights of any third party.
In these terms and conditions, “intellectual property rights” includes the full benefit of any rights in any copyright, trademark, registered design, patent, trade and business names, inventions, know-how, improvements, discoveries, confidential processes and information, and includes artistic works, images, designs, motifs and photographs and any adaptation or concept relating to it.
If the Customer receives any confidential or proprietary information from Top Hill the Customer must not use or disclose such information to any person, unless the Customer has first obtained Top Hill’s prior written consent (which it may withhold in its absolute discretion), such information has entered the public domain (other than through a breach of confidentiality owed by any person) or the use or disclosure of such information is required by law.