Terms and Conditions of sale

1. STANDARD TERMS AND CONDITIONS OF SALE

Silvan shall provide the Dealer with the Goods in accordance with the Standard Terms and Conditions of Sale (Schedule A) and the Goods Returned for Credit Policy (Schedule B). Essential terms include the payment of accounts on time and the principle of ownership of the Goods not passing to the Dealer until the Goods are paid for in full. The Dealer acknowledges that Silvan may impose a minimum order value in amounts advised by Silvan. If Silvan determines that an order does not meet the minimum order value, Silvan may impose a handling charge as advised by Silvan.

2. PRICING

The Goods shall be provided in accordance with the pricing referred to in Schedule C or such pricing as advised by Silvan from time to time including by posting on its website. Silvan may vary the pricing to take account of any change in costs incurred by Silvan such as but not limited to unforeseen event or circumstances that result in a change in the market conditions for the production, supply and delivery of Goods and fluctuation of the exchange rate of the Australian dollar which impacts the price of the Goods.

3. PAYMENT TERMS AND INTEREST

The term commences upon the date of the Silvan letter of account approval and may be terminated by either party upon giving the other party ninety (90) days written notice. Silvan may immediately terminate the account forthwith upon an Event of Default ( as detailed below in Clause 5 ) occurring.

4. TERMINATION OF ACCOUNT

Upon termination of account in the manner set out in the preceding clause, Silvan may give notice of the following matters, which in the absence of manifest error, be binding on the Dealer:

the treatment of outstanding orders and the terms of supply after termination;
the calculation, amount and terms of unpaid accounts; and
the treatment of warranty claims after termination.

5. EVENT OF DEFAULT

(a) Event of Default means that any of the following has occurred, the Dealer’s application for credit having been approved:

a breach of any of the terms and conditions of the approved account by the Dealer;
a provisional liquidator is appointed to the Dealer or a petition or an application is presented or an order is made or an effective resolution is passed or a meeting is summoned or convened for the purpose of considering a resolution for the winding up or dissolution without winding up of the Dealer or the Dealer is placed into liquidation;
a receiver or a receiver and manager or an administrator or controller is appointed over the Dealer or any assets of the Dealer;
an encumbrancer takes possession of any property of the Dealer or any part of such undertaking or property;
the Dealer ceases or threatens to cease to carry on its business or is unable to pay its respective debts or permits execution to be levied against any of its assets for an amount in excess of A$2,000.00 and such execution is not stayed or satisfied within fourteen (14) days;
the Dealer enters into any arrangement, reconstruction or composition with any of its creditors or proposes so to do;
the Dealer charges, mortgages or otherwise encumbers all or any of its assets or purports to charge, mortgage or otherwise encumber those assets;
in the sole opinion of Silvan exercised in its sole and absolute discretion, the Dealer is carrying on a business at a loss and further prosecution of such business will endanger the ability of the Dealer to repay any monies owing to Silvan;
pursuant to the provisions of the Corporations Act 2001 (Cth) the Dealer is placed under official management or a meeting is summoned or other steps taken for the purpose of placing the Dealer under Official Management or appointing an Official Manager pursuant to the Corporations Act or if any person is appointed or proposed to be appointed under the Corporations Act to investigate the affairs of the Dealer;
without limiting the operation of the events referred to in paragraphs (i) to (viii) above, the Dealer proposes or enters into some other form of insolvency or administration whether voluntary formal or informal;
an event or series of events whether related or not or whether as a result of the fault of the Dealer or not results in any material adverse change in the financial condition of the Dealer which has or is in the opinion of the Silvan is likely to have a material and adverse affect on the ability of the Dealer to repay any money that it owes to the Silvan;
the Dealer defaults in the performance of any of its obligations under the terms and conditions of the approved account; or
if the Dealer is an individual, any act of bankruptcy of the Dealer or if the Dealer dies or is permanently incapacitated.

(b) If any Event of Default occurs:

the whole of all moneys owed by the Dealer to Silvan on any account whatsoever whether under the terms and conditions of the approved account or otherwise, shall thereupon and without the necessity of any notice or demand by Silvan to the Dealer become immediately due and payable and recoverable;
The Dealer hereby licences Silvan to enter any premises where the Goods are located without prior notice and will use its best endeavours to assist Silvan to retake possession of the Goods and/or Mixed Goods which remain the property of Silvan;
The Dealer will not deal with the Goods or Mixed Goods ( as defined in clause 5(b)(v)) in any way without the prior written consent of Silvan; and
Silvan may, at its sole and absolute discretion, cancel its acceptance of any orders received from the Dealer and may refuse to supply any further orders.
Mixed Goods means any Goods supplied by Silvan to the Dealer in a state altered after Silvan has taken possession including by direct alteration or by incorporation of the Goods into another mechanism or device.

6. ASSIGNMENT

The account is personal to the Dealer and the Dealer must not, without the prior written consent of Silvan, assign or transfer its rights under the account to another party/entity including any associated entities/parties.

Any change of effective control of the Dealer or any change in the shareholding , unitholding or proprietorship of the Dealer is deemed to be an assignment or transfer requiring the consent of Silvan.

For the purposes of this clause “effective control” means the ability to control the composition of the board of directors having more than 50% of interest in the Dealer.

7. SEPARATE PARTIES

The Dealer must not, without Silvan’s prior written consent, enter any contractual relationships or undertakings on behalf of or in respect of Silvan or make any promise, warranty or representation on behalf of Silvan in respect of the Goods. The Dealer is solely responsible for discharging its obligations and liabilities to third parties and has no right to indemnity or contribution from Silvan whatsoever.

8. CONFIDENTIALITY

Both parties shall keep strictly confidential those matters including commercial and technical matters, technical specifications, trade secrets, and any other matters that have become known to either party through the operation of this account (but excluding public information which is public other than by a breach of confidentiality obligations). This obligation survives any termination or expiry of the account.

9. TRADEMARKS

During the term of the account the Dealer shall have a limited non-exclusive, non-transferable, non-sublicensable license to display Silvan’s trademarks for the sole purpose of the distribution of the Goods. The dealer’s licence lapses immediately upon termination of the account, and /or supply to the Dealer. On termination for any reason the Dealer must return to Silvan all copies of trademarks, copyrights, designs and patents and confidential information of Silvan and destroy upon request any form copies or replicas.in the Dealer’s possession.

The Dealer must undertake such actions as directed by Silvan in order to protect and otherwise enforce Silvan’s rights in respect of its trademarks, copyrights, designs and patents and confidential information.

10. NOTICES

Any notice required under the policies, terms and conditions of the account shall be in writing addressed to the party to whom it is to be sent at the address or facsimile number from time to time provided by that party in writing to the other party.

11. PRIVACY ACT

The Dealer agrees to Silvan:

obtaining information, including any credit report, record, personal information or an opinion that has any bearing on the commercial credit worthiness, commercial activities, credit standing, credit history or credit capacity of the Dealer its guarantors and relevant principals, and using that information for the purpose of assessing this application for credit or the credit worthiness of the Dealer at any time;
Dealer shall not unreasonably withhold consent or approval if required in relation to clause 11 (a);
exchanging information with other credit providers as to the status of the account; and
notifying other credit providers of a default by the Dealer.

12. GENERAL

Binding – Subject to any provision to the contrary, this Agreement is for the benefit of and is binding upon the parties and their successors, trustees, permitted assignees or receivers but is not for the benefit of any other persons.
Enforceability of Agreement – The invalidity or unenforceability of any part or provision of this agreement does not affect the enforceability of any other part or provision of this agreement and the invalid or unenforceable part is severable.
Further Assurances – The parties agree to do all acts, matters and things, including the execution of all documents required for the purposes of this agreement.
Amendments – This agreement shall not be amended except by an instrument in writing signed by the parties.
Waiver -No waiver by any party of a breach by the other parties shall be construed as a waiver of any subsequent breach.
Non Merger – The covenants, conditions, provisions and warranties contained in this agreement will not merge or terminate upon completion of the transactions contemplated by this agreement, but to the extent that they have not been fulfilled and satisfied or are capable of having effect will remain in full force and effect.
Governing law and Submission to Jurisdiction – This agreement is governed by the law in force in Victoria. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and any courts which may hear appeals from those courts in respect of any proceedings in connection with this agreement.
Severance – If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the Parties) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement.
Contra Proferentum -In interpreting this Agreement, no rules of construction shall apply to the disadvantage of Silvan on the basis that it prepared the Agreement or any part thereof.
Proprietary limited company – If the Dealer is a proprietary limited company or a trustee of a trust, the directors and shareholders of that company shall immediately execute a Deed of Guarantee and Indemnity of the aforesaid Agreement in the form annexed hereto – Schedule C.
Trust – If the Dealer is a trust, the appointor and unitholders shall immediately execute a Deed of Guarantee and Indemnity of the aforesaid Agreement in the form annexed hereto – Schedule C.
Independent Advice – The Dealer and Guarantor(s) acknowledges and agrees that it and/or they have been afforded the opportunity to seek independent legal advice on the terms of this Agreement.
Nature of obligation – (a) Any provision in this Agreement which binds more than one person binds all of them jointly and each of them individually (b) Each obligation imposed on a party by this Agreement in favour of another is a separate obligation.

SCHEDULE A

STANDARD TERMS AND CONDITIONS OF SALE

The following are the Standard Terms and Conditions of Sale for the Goods shown herein.

Should these Standard Terms and Conditions of Sale differ in any respect from the Dealer’s order, acceptance or confirmation then the terms and conditions listed first in the following list will prevail to the extent of any inconsistency:

(i) the terms and conditions posted on the Silvan website,

(ii) the terms provided by Silvan on its invoice;

(iii) these Terms and Conditions; and

(iv) the Dealer’s order, acceptance or confirmation.

Where the word “Silvan” appears in these Standard Terms and Conditions of Sale, it means in all cases Silvan Australia Pty Ltd.

Prices: All prices shown in Schedule C are recommended prices only.

Prices and product specifications are subject to alteration without notice.

Purchase discounts (if any) may be allowed at the rates agreed in writing between Silvan and the Dealer.

1. GOODS AND SERVICES TAX

All amounts shown in price lists and invoices are exclusive of GST unless otherwise specifically stated.
Unless an amount is expressed to be GST inclusive, all amounts will be increased by an amount equivalent to the GST payable in respect of such amount.
If Silvan makes a taxable supply in accordance with the GST law, the Dealer must pay to Silvan an amount equal to the amount Silvan must remit as GST in respect of that taxable supply so that when Silvan remits the GST payable on the taxable supply in accordance with its obligations under the GST law, the Seller will retain the GST exclusive price expressed in these terms. Subject to the receipt of a tax invoice, the GST amount must be paid by the Dealer to Silvan at the same time and in the same manner as any other payment under these terms.

2. DELIVERY

Prices shown are ex warehouse from Silvan’s nearest branch office unless otherwise stated, or where Silvan has agreed to supply Goods free into store.

The risk in the Goods pass to the Dealer on despatch from Silvan’s warehouse except where the goods are carried in the Company’s own vehicles or where a free in store contract has been agreed, when the risk in the Goods pass on delivery to the Dealer or their agent.

Silvan is not responsible for loss or damage of Goods in transit except where the Goods are carried in the Company’s own vehicles or where a free in store contract has been agreed.

Delivery dates are approximate only and Silvan is not liable for any delay from any cause whatsoever. Silvan may extend the time for delivery or if Silvan is unable to complete, the arrangement shall be voidable at Silvan’s option with no right to either party for any damage, loss, cost or expense or otherwise.

3. PAYMENT TERMS AND INTEREST

Unless otherwise stated, payment is strictly within thirty (30) days from the end of the month in which the Goods are purchased. Interest shall be payable (without the need of notice to be provided by Silvan to the Dealer) on all amounts outstanding more than 30 days from due date. Such interest shall be calculated at 4% per annum more than the rate prescribed from time to time under the Penalty Interest Rates Act 1983 on the outstanding balance from the expiration of 30 days after due date. Silvan can at its sole and unfettered discretion, without notice to the Dealer apply monies received from the Dealer towards any outstanding amounts (including interest accrued) owing to Silvan.

4. TITLE

Property in and title to Goods provided from time to time by Silvan to the Dealer remain with Silvan:

until Silvan has received in cleared funds all amounts payable to it; and
even if the Goods become affixed to or incorporated in or Comingled with other Goods and Silvan’s title and security extends to all proceeds received by the Dealer in respect of such Goods.

The Dealer must not grant a security interest in the Goods or encumber or charge the Goods in any way nor grant nor otherwise give any interest in the Goods.

The Dealer may sell the Goods onto any third party, however the Dealer may not bind or place an obligation on Silvan whatsoever in any agreement for the sale of such Goods.

The Goods delivered to the Dealer will be separately identified as property of Silvan and Silvan, its employees, servants or agents are at liberty to enter upon the Dealer’s premises and retrieve Goods which were provided by Silvan to the Dealer where the Dealer has not paid for the Goods or other Goods supplied by Silvan.

5. WARRANTY

Conditions of warranty are detailed on the forms accompanying Goods. Silvan’s warranty covers faulty workmanship and materials and only genuine claims from its servicing agents will be accepted for assessment. Travelling, communication and transportation costs are not covered by warranty and must be borne by the Dealer. Damage during transport is not covered by warranty. Claims should be made directly by the consignee to the carrier.

6. CLAIMS

Any claim against Silvan must be made in writing within fourteen (14) days of delivery (or non-delivery) of Goods. All claims must refer to the invoice number and date and state the reason for the claim.

Goods will only be accepted for credit if they returned undamaged and free into Silvan’s warehouse within fourteen (14) days. A restocking charge may be levied (refer Schedule B).

Goods procured or manufactured to Dealer’s specifications will not be accepted for credit.

No freight charges for Goods returned at the volition of the Dealer shall be acceptable by Silvan unless authorised by Silvan in writing prior to return of the Goods.

Nothing in this agreement shall be construed:

to be a waiver of any of the provisions herein by virtue of the failure on the part of either party hereto to enforce its rights or to exercise any option or discretion herein or to prejudice the later exercise of such rights, options or discretions; and
to extend the application of these Standard Terms and Conditions of Sale beyond that permitted by law. Where a right or remedy which is capable of exclusion, restriction or modification is granted to the Dealer by law, and that law allows Silvan to limit its liability with respect to that right or remedy, then the liability of Silvan is limited solely to, a liability to pay to the Dealer an amount equal to:

(i) the cost of replacing the Goods; or

(ii) the cost of obtaining equivalent Goods; or

(iii) the cost of having the Goods repaired,

whichever is the lowest amount.

7. PERSONAL PROPERTY SECURITIES ACT PROVISIONS

The Dealer acknowledges that these Standard Terms and Conditions of Sale constitute a security agreement which creates a Purchase Monies Security Interest in favour of Silvan over:

all Goods previously supplied by Silvan to the Dealer (if any);
all present and after-acquired Goods supplied by Silvan to the Dealer (or for the Dealer’s account) including products in which goods become processed or Comingled; and
all Proceeds,

as continuing security for payment of the price and all of the Dealer’s outstanding debts and obligations to Silvan.

The Dealer will execute all documents, provide all relevant information and fully cooperate with Silvan with respect to the registration and maintenance of Silvan’s Security Interests.

The Dealer must do anything directed by Silvan to register and/or better secure any Collateral in respect of Silvan’s Security Interest immediately at the Dealer’s cost.

Silvan may take whatever action it thinks is appropriate to ensure that it has first ranking priority in the Collateral.

The Dealer agrees to indemnify Silvan for any costs it incurs with respect to or in connection with Silvan’s Security interests and all amendments, discharge, Registration and exercise of Silvan’s rights.

The Dealer must immediately advise Silvan of any material change in the Dealer’s business practices of selling the Goods which would result in a change to the nature of the Proceeds derived from such sales.

The Dealer must not move the Goods outside Australia without Silvan’s prior written consent whilst the Security Interest remains in force.

The Dealer agrees that nothing in sections 117(3), 130(1)(a) and 143 of the PPSA applies to these Standard Terms and Conditions of Sale and waives its rights to receive a verification statement pursuant to the PPSA.

The provisions of this clause 7 survive termination of any agreement between Silvan and the Dealer.

8. DEFINITIONS

“Goods” means all goods supplied by Silvan to the Dealer (and where the context so permits shall include any supply of Services as hereinafter defined) and as described in the invoice or any other form provided by Silvan to the Dealer.
“PPSA” means the Personal Property Security Act 2009 (Cth), as amended from time to time.
“Services” means all Services provided by Silvan to the Dealer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
The following terms shall have the meaning given to them in the PPSA:
“Account”, “Collateral”, “Commingled Goods”, “Control”, “Financing Change Statement”, “Financing Statement”, “Proceeds”, “Purchase Money Security Interest”, and “Security Interest”.

SCHEDULE B

GOODS RETURNED FOR CREDIT POLICY

Before returning any product to Silvan, a Return Authorisation (RA) number and approval form must be obtained from Silvan Dealer Service by phoning 1300 745 826. Goods WILL NOT be accepted without an RA number and form.

1. CANCELLATIONS

Cancellations made on the same day the order was placed:

if the stock has not been dispatched, no handling fee will apply;
if the stock has been dispatched, a 15% restocking fee will apply;

Cancellations made after the day the order was placed, a 15% restocking fee will apply.

2. GOODS RETURN

All returns must be requested within fourteen (14) days of the invoice date.
Goods will only be accepted for credit if they are returned undamaged and in saleable condition.
Return freight will be paid by the Dealer if the Goods are returned at the Dealer’s volition, unless authorised by Silvan in writing prior to return of the Goods.
All written claims must reference Silvan invoice numbers, and must be dated and state the reason for the claim.
A 15% restocking fee will be applied if the Goods have been dispatched according to the order.
Return of Goods valued under $100.00 nett inc GST will not be accepted if they have been dispatched according to the order.

3. PRICING & FREIGHT CREDITS

Pricing and freight credit requests must be made within fourteen (14) days of the invoice date. Any credits after this period for pricing discrepancies will not be accepted.

Claims for freight damage must be made within fourteen (14) days of the invoice date. Please contact Silvan Dealer Service for a Transport Damage Form to complete. Claims received after this period will not be accepted.

All written claims must reference Silvan invoice numbers, and must be dated and state the reason for the claim.

SCHEDULE C

SCHEDULE OF DISCOUNTS

Goods may be supplied to the Dealer at the discounts shown on the attached Confidential Schedule of Discounts, and may be updated on an annual basis.