Terms and Conditions
The whole of the Agreement between Walker Filtration Pty Ltd ABN 27 066 425 125 (“Walker Filtration”) 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 Walker Filtration 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
2.1 Payment is due on or prior to thirty (30) days from the end of the month in which the invoice was rendered in respect of the supply of the Goods unless otherwise stated in writing by Walker Filtration. Walker Filtration may charge liquidated damages at a rate equivalent to two percent (2%) in excess of the rate of interest for the time being fixed under Section 2 of the Penalty Interest Rates Act 1983 if payment is not received by the due date.
2.2 Walker Filtration’s express or implied approval for extending credit to the Customer may be revoked or withdrawn by Walker Filtration at any time.
2.3 Walker Filtration is entitled to set-off against any money owing to the Customer amounts owed to Walker Filtration by the Customer on any account whatsoever.
2.4 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 2.5, and then to principal.
2.5 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 Walker Filtration for enforcement of obligations and recovery of monies due from the Customer to Walker Filtration.
3 Quotations and Pricing
3.1 Prices charged for Goods will be according to a current quotation for those Goods. Otherwise, they will be determined by Walker Filtration 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). Walker Filtration will use its best endeavours to notify the Customer of price changes but bears no liability in respect of this.
3.2 Any quotation by Walker Filtration shall not constitute an offer. Quotations will remain valid for thirty (30) days from the date of the quotation.
3.3 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 signature.
3.4 Unless otherwise specified by Walker Filtration, the prices exclude:
3.4.1 Any statutory tax, including any GST, duty or impost levied in respect of the Goods and which has not been allowed for by Walker Filtration in calculating the price.
3.4.2 Costs and charges in relation to insurance, packing (other than the standard packing of Walker Filtration), crating, delivery (whether by road, rail, ship or air) and export of the Goods.
4 Delivery and Supply
4.1 Any times quoted for delivery and/or supply are estimates only and Walker Filtration 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. Walker Filtration reserves the right to stop supply at any time if the Customer fails to comply with the Terms.
4.2 Walker Filtration 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 Customer.
4.3 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:
4.3.1 shall be liable for any additional cost, charge and expense incurred by Walker Filtration in complying with the Customer’s direction; and
4.3.2 shall pay for the whole of the invoiced value of the Goods notwithstanding the staggered deliveries.
4.3.3 Such action shall be deemed to be delivery to the Customer.
4.4 The Customer is deemed to accept delivery of the Goods where it is either delivered to the Customer’s premises or when Walker Filtration notifies the Customer that the Goods are available for collection.
4.5 If the Customer is unable or fails to accept delivery of the Goods, Walker Filtration may deliver it to a place of storage nominated by the Customer and, failing such nomination, to a place determined by Walker Filtration. Such action shall be deemed to be delivery to the Customer. The Customer shall be liable for all cost, charge and expense incurred by Walker Filtration on account of storage, detention, double cartage/delivery or similar causes.
In addition to any lien to which Walker Filtration may, by statute or otherwise, be entitled, Walker Filtration 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 Walker Filtration’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 contract.
6 Returns, Cancellations and Claims
6.1 The Customer shall not return any Goods to Walker Filtration without obtaining prior authorisation from Walker Filtration. 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. 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 Walker Filtration only after Goods returned are either collected by Walker Filtration’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 Walker Filtration but must await receipt of a credit note.
6.2 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 list.
6.3 If Walker Filtration accepts the return of any Goods that have been ordered, Walker Filtration 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 Customer.
6.4 No cancellations or partial cancellation of an order by the Customer shall be accepted by Walker Filtration 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 Walker Filtration, will indemnify Walker Filtration 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 shipment.
6.5 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 Walker Filtration 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 order.
7 Personal Property Security Interest
7.1 The Customer grants Walker Filtration a Security Interest in the goods supplied as Commercial Property, more particularly described as Other Goods (a relevant sub-classification of collateral described in the regulations pursuant to section 20(4) of the PPSA) 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 Walker Filtration 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 extent to all the Customers present and after acquired Walker Filtration, of which the goods form part, to the extent required to secured the Indebtedness.
7.2 As and when required by Walker Filtration the Customer shall, at its own expense, provide all reasonable assistance and relevant information to enable Walker Filtration to register a Financing Statement or a Financing Change Statement and generally to obtain, maintain, register and enforce Walker Filtration’s Security Interest in respect of the goods supplied, in accordance with the Personal Property Securities Act 2009 (“PPSA”).
7.3 The Customer shall not change its name without first notifying Walker Filtration of the new name not less than 7 days before the change takes effect.
7.4 The Customer warrants that the goods are not purchased for personal, domestic or household purposes.
7.5 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 Walker Filtration in the following order:
7.5.1 To any obligation owed by the Customer to Walker Filtration which is unsecured, in the order in which the obligations were incurred;
7.5.2 To any obligations that are secured, but not by a Purchase Money Security Interest, in the order in which those obligations were incurred;
7.5.3 To obligations that are secured by a Purchase Money Security Interest, in the order in which those obligations were incurred.
7.6 Until the Customer has paid all money owing to Walker Filtration the Customer shall at all times ensure that:
7.6.1 All goods supplied by Walker Filtration, while in the Customer’s possession, can be readily identified and distinguished, and/or
7.6.2 All Proceeds (in whatever form) that the Customer received from the sale of any of the goods are readily identifiable and traceable.
7.7 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 Walker Filtration the Customer shall not sell or grant a Security Interest in the goods without Walker Filtration’s written consent.
7.8 The parties agree to 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, Walker Filtration. The Customer waives its right to receive a Verification Statement in respect of any Financing Statement or Financing Change Statement registered by or on behalf of Walker Filtration in respect of the Security Interest created by these terms and conditions.
7.9 Walker Filtration 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 damage.
7.10 For the purpose of this clause words and phrases starting with a capital letter shall have the respective meanings given to them under, or in the context of the PPSA.
8 Privacy Act 1988 (“Privacy Act”)
To enable Walker Filtration to assess the Customer’s application for credit, the Customer authorises Walker Filtration:
8.1 To obtain from a credit reporting agency a consumer or commercial credit report containing personal information about the Customer and its guarantors pursuant to Section 18K(1) of the Privacy Act; and
8.2 To obtain a report from a credit reporting agency and other information in relation to the Customer’s commercial credit activities, and
8.3 To give to a credit reporting agency information including identity particulars and application details
AND in accordance with Section 18N(1) of the Privacy Act the Customer authorises Walker Filtration 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 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 (Section 18L(4) Privacy Act), assisting it to avoid defaulting on its credit obligations, assessing its credit worthiness and notifying other credit providers and credit reporting agencies of a default by it under these Terms.
The Customer must notify Walker Filtration in writing within seven (7) days of:-
9.1 Any alteration of the name or ownership of the Customer.
9.2 The issue of any legal proceedings against the Customer.
9.3 The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer.
9.4 Any change in the ownership of the business name of the Customer. The Customer agrees that it shall be liable to Walker Filtration for all Goods supplied to the new owner by Walker Filtration until notice of any such change is received.
10.1 No warranties except those implied and that by law cannot be excluded are given by Walker Filtration in respect of Goods supplied. Where it is lawful to do so, the liability of Walker Filtration 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 Walker Filtration.
10.2 The Customer acknowledges and warrants that it has relied on its own skill and judgment or, alternatively, on the skill and judgment of tradesmen and professional advisers retained by it to provide advice and assistance on the suitability of the Goods for specific purposes and procedures and, in this respect, shall indemnify Walker Filtration from and against any suit, claim, demand or compensation which, but for these Terms, the Customer may have had against Walker Filtration.
10.3 The Customer warrants to Walker Filtration that it is purchasing Goods as the principal and not as an agent.
10.4 The Customer acknowledges that the Goods contain disposable or replaceable parts including filter elements which will need replacing from time to time according to use. The life of any such parts and in particular any filter elements will depend on a large number of variable conditions and no guarantee can be given for their life.
10.5 Any Goods supplied by Walker Filtration are complete with instructions for installation and use. The Customer agrees that the Goods will be installed and used in accordance with those instructions by suitably trained personnel. Walker Filtration will assist the Customer or any ultimate user with further information relating to installation or use upon request.
11 Intellectual Property
11.1 All intellectual property rights in the Goods or any drawings, specifications, designs prepared by Walker Filtration shall at all times remain vested in Walker Filtration as Walker Filtration’s absolute property and the Customer shall not reproduce or use all or any of them without Walker Filtration’s prior written consent.
11.2 The Customer warrants that any instructions, plans or designs furnished or given by it shall not be such as will cause Walker Filtration to infringe any letters patent, copyright, registered design, right of confidence or trade mark in execution of the Customer’s order and agrees to indemnify Walker Filtration against all claims, costs or other expenses incurred by Walker Filtration in respect thereof.
11.3 Whilst Walker Filtration believes that all specifications, illustrations, performance data and other information contained in any drawings, catalogues, advertisements or other documents supplied by Walker Filtration are as accurate as reasonably possible, they do not constitute a description of the Goods and shall not be taken to be representations made by Walker Filtration and are not warranted to be accurate.
11.4 The Customer shall not copy or otherwise reproduce any drawings, advertisements, catalogues or other documents supplied by Walker Filtration without Walker Filtration’s prior written consent.
12 Force Majeure
Walker Filtration 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 Walker Filtration shall be paid immediately and, unless prohibited by law, Walker Filtration may elect to terminate the Agreement.
13 Equitable Charge
The Customer as beneficial owner and/or registered proprietor now charges in favour of Walker Filtration 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 Walker Filtration 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 Walker Filtration and including the costs to prepare and lodge a Caveat against the Land and to remove the Caveat.
14 Failure to Act
Walker Filtration’s failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or Walker Filtration’s failure to exercise any right or remedy available under these Terms or at law, or Walker Filtration’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 Walker Filtration’s right to demand timely payment of future obligations or strict compliance with the Terms.
15 Legal Construction
15.1 These Terms shall be governed by and interpreted according to the laws of Victoria and Walker Filtration and the Customer consent and submit to the jurisdiction of the Courts of Victoria.
15.2 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 effect.