1.1 The Agreement for the supply of goods by DIAMOND REPUBLIC to the Merchant comprises these terms and conditions, the credit application and statements and invoices issued by DIAMOND REPUBLIC to the Merchant in respect of the goods supplied.
1.2 By executing these terms and conditions DIAMOND REPUBLIC is notifying the Merchant that the Merchant’s credit application and offer has been approved and accepted and that a binding agreement has been entered into with the Merchant.
1.3 DIAMOND REPUBLIC will notify the Merchant upon approval of the credit application of the details of the credit limit applied to the Merchant’s account with DIAMOND REPUBLIC.
1.4 DIAMOND REPUBLIC maintains the right to determine without notice, the credit limit from time to time, such credit limit may be varied up, down or withdrawn at the discretion of DIAMOND REPUBLIC or its insurer(s).
1.5 The term for credit provided by DIAMOND REPUBLIC may vary from time to time at the sole discretion of DIAMOND REPUBLIC.
1.6 The Merchant must notify DIAMOND REPUBLIC in writing of any change in the information provided in the credit application.
1.7 DIAMOND REPUBLIC has no responsibility to the Merchant, to any Guarantor or any signatory for any unauthorised use of the credit facility by any person or persons who reasonably appear to be the Merchant or the agent or authorised representative of the Merchant.
1.8 The Merchant acknowledges that an event of default by the Merchant under this Agreement constitutes a breach under its Merchant Agreement.
2.Retention of Title
2.1 The risk in the goods passes to the Merchant on delivery to the Merchant or into custody on the Merchant’s behalf provided that if the Merchant fails to accept delivery or requests a delay in delivery, risks to the goods will be borne by the Merchant from the time of such failure or request (as the case may be) and the Merchant indemnifies DIAMOND REPUBLIC and the supplier from any claim, loss or expense whatsoever arising from the Merchant’s failure or request.
2.2 Property in and title to the goods supplied by DIAMOND REPUBLIC to the Merchant remains with DIAMOND REPUBLIC until the Merchant has paid DIAMOND REPUBLIC both the purchase price for the goods and any other money that the Merchant may owe to DIAMOND REPUBLIC at any time on any account.
2.3 The Merchant may sell or otherwise dispose of the goods supplied by DIAMOND REPUBLIC in the ordinary course of the Merchant’s business.
2.4 Where the Merchant disposes of the goods before payment to DIAMOND REPUBLIC, the sale proceeds of such disposal are the property of DIAMOND REPUBLIC and the Merchant holds the proceeds on trust for DIAMOND REPUBLIC. Further, the Merchant, in disposing of the goods before payment to DIAMOND REPUBLIC, does so as DIAMOND REPUBLIC’s fiduciary agent.
2.5 DIAMOND REPUBLIC may enter the Merchant’s premises or elsewhere within business hours and seize any goods which have not been paid for by the due date without DIAMOND REPUBLIC having to give notice to the Merchant and the Merchant waives the right to receive any statutory or PPSA notice.
2.6 While the goods remain property of DIAMOND REPUBLIC, the Merchantagrees:
(a) to store the goods separately at the Merchant’s premises so they can be easily identified;
(b) to only dispose of the goods in the ordinary course of the Merchant’s business.
(c) to not cause the goods to lose their identifiable character or be intermingled with other goods in any way by any process of its own or by a third party, except with DIAMOND REPUBLIC’s prior written consent;
(d) other than disposal of the goods in the ordinary course of the Merchant’s business, that it has no right or claim to any interest in the goods to secure any liquidated or unliquidated debt or obligation that DIAMOND REPUBLIC owes to the Merchant.
(e) that it cannot claim any lien over the goods.
(f) to not create any absolute or defeasible interest in the goods in relation to any third party except with DIAMOND REPUBLIC’s prior written consent.
(g) to provide DIAMOND REPUBLIC access to the premises where the goods are stored to enable DIAMOND REPUBLIC to inspect and/or seize the goods.
(i) not allow any person (other than DIAMOND REPUBLIC) to have or acquire any security interest in the goods;
(ii) insure the goods for their full insurable value or replacement value (whichever is higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Merchant carries on business;
(iii) not remove, deface or obliterate any identifying mark or number on any of the goods.
2.7 These conditions will apply to each offer, contract and any commercial transaction concerning the supply of any goods or services by the DIAMOND REPUBLIC to the Merchant.
3. INVOICE & PAYMENT
3.1 DIAMOND REPUBLIC will issue to the Merchant at times specified by DIAMOND REPUBLIC statements and invoices for the goods with payment terms as designated on the invoices. Each invoice will specify the goods and the total amounts payable by the Merchant to DIAMOND REPUBLIC.
3.2 The Merchant, by its acceptance of delivery of the goods adopts and accepts the trading terms set out in the invoice and these terms and conditions.
3.3 The Merchant must pay DIAMOND REPUBLIC the amount specified in each invoice for all goods delivered in absolute accord with the trading terms as specified in this Agreement.
3.4 Due payment date will be designated on weekly invoices.
3.5 The Merchant agrees that DIAMOND REPUBLIC’s records are, in the absence of manifest error, prima facie evidence of the goods and services supplied by DIAMOND REPUBLIC to the Merchant.
3.6 The Merchant is liable to pay DIAMOND REPUBLIC the amounts payable by the due date irrespective of whether the Merchant is able to collect payments from the Merchant’s customers.
3.7 Unless otherwise agreed to in writing by DIAMOND REPUBLIC, the Merchant is responsible for dispatching bills to customers and for collecting the amounts due.
3.8 The Merchant will pay DIAMOND REPUBLIC in any manner acceptable to DIAMOND REPUBLIC. If the Merchant elects to pay DIAMOND REPUBLIC by credit or debit card the Merchant authorises DIAMOND REPUBLIC to debit the amounts due to DIAMOND REPUBLIC from the supplied credit or debit card automatically.
3.9 The Merchant agrees that DIAMOND REPUBLIC will apply a charge for processing payment on a credit or debit card at a rate that may vary from time to time and will be based on the type of payment to be processed. The rates charged will be set out in the rate schedule as notified by DIAMOND REPUBLIC to the Merchant.
3.10 DIAMOND REPUBLIC is entitled to set the transaction rate as mentioned in Clause 3.8 at a level that is a reasonable reflection of its costs for providing this service.
3.11 From time to time DIAMOND REPUBLIC and/or a supplier will:
(a) make offers to Merchants to provide access to various deals made by suppliers to DIAMOND REPUBLIC and some or all of its Merchants (“Supplier Offers”); and
(b) enter into agreements which relate to the products and services to be offered by the Merchant to customers and the customers of the Merchant themselves (“Supplier Agreements”).
Such Supplier Offers and Supplier Agreements made by DIAMOND REPUBLIC and/or the supplier may have specific terms associated with them. The terms of the Supplier Offers and Supplier Agreements will be posted on the DIAMOND REPUBLIC intranet site, and available for inspection at DIAMOND REPUBLIC’s offices. DIAMOND REPUBLIC shall advise the Steering Committee of Supplier Offers or Supplier Agreements made to the members as a whole. The Merchant agrees that the Supplier Offer will be deemed to have been accepted if the Merchant purchases or utilises the goods and/or services pertaining to the Supplier Offer. The Merchant agrees to comply with those terms in the Supplier Offers (for those Supplier Offers accepted by the Merchant) and Supplier Agreements which apply to the Merchant.4 Late Payment
4.1 DIAMOND REPUBLIC may, in DIAMOND REPUBLIC’s absolute discretion, suspend the supply of all or part of one or more of the services provided to the Merchant and/or access to a supplier relationship if:
(a) the Merchant does not make a payment by its due date;
(b) the Merchant makes a payment by credit card and the card expires; or
(c) DIAMOND REPUBLIC is otherwise unable to debit the amounts due, to the Merchants’ credit card.
4.2 Fees in relation to a service to be provided by DIAMOND REPUBLIC will continue to accrue while the service is suspended and will be payable by the Merchant.
4.3 Without limiting any other right DIAMOND REPUBLIC may have, the Merchant must pay DIAMOND REPUBLIC interest on all overdue payments under this Agreement at the rate of 2% per month, compounded daily, from and including the due date to and including the date of payment.
4.4 The charging of interest by DIAMOND REPUBLIC on any amount outstanding after the due date is not an option for payment other than in accordance with these terms of trade and such interest is an agreed calculation of compensation to DIAMOND REPUBLIC for failure by the Merchant to pay on or before the due date.
4.5 Following the failure of the member to maintain the account in good order, DIAMOND REPUBLIC may request that the Merchant provide financial information, including profit and loss statements and full statement of financial affairs, in order for DIAMOND REPUBLIC to determine appropriate course of action.
5. Disputed Invoices
5.1 In the event the Merchant does not agree with an invoice received from DIAMOND REPUBLIC or intends on returning goods to the supplier, as acquired by the Merchant, the Merchant must:
(a) pay the non-disputed amount of the invoice by the due date;
(b) identify the reason for the disagreement or return of goods;
(c) locate any documentation substantiating the reasons (if applicable);
(d) fill in the “disputed invoice/goods return notice” (available from DIAMOND REPUBLIC); and
(e) e-mail the disputed invoice/goods return notice with supporting documentation to email@example.com, OR, fax the Disputed Invoice / Goods Return Notice and the supporting documentation to both DIAMOND REPUBLIC at (02) 8211 5117 or such other number as is notified by DIAMOND REPUBLIC to the Merchant during the Term, and, the original supplier at their nominated fax number; or
(f) if the Merchant does not have a fax, mail the documents to both DIAMOND REPUBLIC, PO Box 148, Pymble NSW 2073 or such other address as is notified by DIAMOND REPUBLIC to the Merchant during the Term, and to the original supplier at their nominated postal address; and
(g) follow up directly with the original supplier to arrange a goods return and associated credit note or other relevant issues.
5.2 The Merchant acknowledges that it is their responsibility to resolve the dispute within ninety (90) days of the invoice date. After that time the invoice must be paid by the Merchant, and it will incur overdue fees of 2% per month, compounded daily for each day that is overdue once the ninety (90) day amnesty has expired. The Merchant must notify DIAMOND REPUBLIC if a supplier dispute is likely to carry on for a period greater than 90 calendar days, and in extraordinary circumstances DIAMOND REPUBLIC may assist the Merchant in resolving the dispute.
5.3 Additionally the Merchant should notify DIAMOND REPUBLIC via fax, email or mail of the resolution of that issue with the original supplier to DIAMOND REPUBLIC.
5.4 A credit will not be issued by DIAMOND REPUBLIC without evidence of acceptance from the supplier.
5.5 The Merchant must pay the agreed portion of the disputed amount immediately on the dispute being resolved with the supplier.
6. Set Off
6.1 The Merchant must pay all monies due to DIAMOND REPUBLIC without deduction, set-off, withholding or counterclaim, as DIAMOND REPUBLIC directs.
6.2 The parties agree that payments by the Merchant to DIAMOND REPUBLIC shall be applied against the invoice specified by the Merchant with the payment.
7. TAXES AND CURRENCY
7.1 The Fees are exclusive of taxes, duties and charges, imposed or levied in Australia or overseas in connection with the supply of the services by DIAMOND REPUBLIC to the Merchant including, but not limited to, goods and services tax (GST) and withholding tax but excluding income taxes.
7.2 The Merchant must pay any taxes, duties or charges (including any new taxes, duties or charges imposed subsequent to the date of this Agreement) in respect of any goods or services supplied or payments made or to be made under this Agreement.
7.3 All payments made to DIAMOND REPUBLIC under this Agreement will be in Australian dollars, unless expressly agreed to in writing by DIAMOND REPUBLIC.
8.1 The Merchant must accept delivery of the goods ordered by the Merchant from preferred and/or nominated suppliers at the Merchant's Premises. DIAMOND REPUBLIC is not involved in any way with the dispatch, delivery or storage of goods to the Merchant, this must be arranged by the Merchant directly with the relevant supplier.
8.2 The Merchant will be responsible for all costs associated with delivery of the goods or as otherwise arranged with the preferred and/or nominated supplier.
8.3 The Merchant must provide reasonable and proper access to the Merchant’s Premises for delivery.
8.4 If a dispute arises (including as to the quality of the goods, though excluding a valid disputed invoice under Section 5), the Merchant must pay all monies shown on an invoice for the goods from DIAMOND REPUBLIC and settle any claim with the preferred and/or nominated supplier at a later date. If the Merchant rejects the goods for whatever reason, the Merchant will still be required to pay all monies shown on any outstanding invoices.
8.5 DIAMOND REPUBLIC will use its best endeavours to assist the Merchant in resolving a dispute with a preferred supplier which may arise under Clause 8.4.
8.6 The Merchant is responsible for checking the goods and to be satisfied as to the accuracy of the delivery.
8.7 To the extent permitted by law, DIAMOND REPUBLIC is not responsible for any problems, error or delay with delivery, or any defective or damaged products, and, subject to the supplier entering into a supply agreement with DIAMOND REPUBLIC which passes through the warranties in relation to the goods to the Merchant, the Merchant must take any such issue up with the relevant supplier.
9. EVENTS OF DEFAULT BY THE MEMBER
9.1 Each of the following is an event of default by the Merchant under this Agreement:
(a) the Merchant does not pay on time any amount payable under this Agreement or any other agreement with DIAMOND REPUBLIC in the manner required;
(b) the Merchant breaches the provisions of clause 2.6 of this Agreement;
(c) distress is levied or a judgment, order , encumbrance or security interest is enforced, or becomes enforceable against any property of the Merchant or the goods;
(d) the goods or any part thereof is seized, forfeited, confiscated or attached or is in the opinion of DIAMOND REPUBLIC in danger of being seized, forfeited, confiscated or attached;
(e) a representation or warranty made by the Merchant under or in connection with this Agreement is found to have been incorrect or misleading when made;
(f) the Merchant becomes Insolvent;
(g) the Merchant stops payment, ceases to carry on its business or a material part of it, or threatens to do either of those things except to reconstruct or amalgamate while solvent on terms approved by DIAMOND REPUBLIC;
(h) there is, in the reasonable opinion of DIAMOND REPUBLIC, a material adverse change in the business, assets or financial condition of the Merchant, or material change in the Merchant’s shareholding without the prior consent of DIAMOND REPUBLIC or the Merchant, being an individual, dies;
(i) any insurance required under this agreement is cancelled or any insurer disclaims liability or DIAMOND REPUBLIC receives notice that any such insurance will be cancelled or materially adversely modified and a fresh policy is not in effect before the expiration of the notice;
(j) the Merchant ceases to be lawfully able to carry on a business as a dealer in the goods;
(k) an event of default or any default (howsoever described) occurs under any other agreement the Merchant has with DIAMOND REPUBLIC.
9.2 Upon the occurrence of an event of default:
(a) DIAMOND REPUBLIC may terminate this Agreement immediately and declare any and all amounts owing by the Merchant to DIAMOND REPUBLIC, directly or contingently, immediately due and payable without notice or demand; and
(b) DIAMOND REPUBLIC can enter the premises where the goods are stored to inspect and/or seize the goods.
9.3 The Merchant agrees to pay all expenses of DIAMOND REPUBLIC relating to the seizure or attempted seizure of the goods (whether such attempt is successful or not) by repossession or otherwise, or any action at law or otherwise for recovery of any goods or any amounts owing to DIAMOND REPUBLIC including all DIAMOND REPUBLIC expenses of DIAMOND REPUBLIC upon a solicitor and client basis.
9.4 Where the PPSA applies to action taken by DIAMOND REPUBLIC in relation to the goods, the Merchant waives its right to receive any notices required under section 95, 118, 121, 130, 132 or 135 of the PPSA.
10.1 The Merchant and Guarantor authorise DIAMOND REPUBLIC to share information obtained in connection with the supply of any goods or services to the Merchant to; DIAMOND REPUBLIC's agents, Related Companies, dealers, and contractors and in particular where required for the provision of services to the Merchant and in the context of DIAMOND REPUBLIC 's ongoing relationships with Suppliers.
10.2 In certain other circumstances, DIAMOND REPUBLIC is permitted by law to disclose the Merchant’s and Guarantor’s names, addresses and other details. This disclosure may be made in circumstances including but not limited to:
(a) law enforcement agencies to assist in the recovery of lost or stolen equipment;
(b) by court order; or
(c) purposes relating to the enforcement of the criminal law.
10.3 In accordance with the Privacy Act 1988 (Cth), the Merchant and each Guarantor and each signatory agree that: DIAMOND REPUBLIC is authorised to obtain reports from a credit reporting agency containing information concerning the personal credit, the commercial activities and the credit worthiness of the Merchant and/or the Guarantor, in order to assess whether to approve the Merchant’s and/or Guarantor’s credit application.
10.4 DIAMOND REPUBLIC may give a credit reporting agency personal information about the Merchant’s and/or Guarantor’s credit application and any Guarantor’s guarantee. DIAMOND REPUBLIC may give and seek information about the Merchant’s, Merchant’s Directors and/or Guarantor’s credit arrangements from any credit providers named in their application or report issued by a credit reporting agency.
10.5 DIAMOND REPUBLIC may use any information provided by a credit reporting agency or any other credit provider for assessing the Merchant’s and/or Guarantor’s credit application.
10.6 DIAMOND REPUBLIC may disclose any information concerning or arising out of this application, any Guarantor’s guarantee and/or the credit facility to a credit reporting agency and/or to any other credit provider.
10.7 The information referred to above may include information about the credit worthiness, credit standing, credit history and credit capacity that credit providers are allowed to give or receive from each other under the law.
11. GOVERNING LAW
11.1 This Agreement is governed by the laws of New South Wales, Australia and the parties submit to the jurisdiction of the Courts of that State and Courts competent to hear appeals from those Courts.
11.2 The Merchant acknowledges and agrees this Agreement is a security agreement for the purposes of the PPSA and that DIAMOND REPUBLIC will register its security interest in the goods and their proceeds as a purchase money security interest on the register.
11.3 The Merchant waives its rights under section 157 of the PPSA to receive notice of a verification statement.
12.1 “Insolvent” means a receiver, manager, liquidator, interim liquidator, receiver manager, trustee, trustee in bankruptcy, administrator, statutory manager or similar officer is appointed in respect of the Merchant or any asset of the Merchant or any of the goods in the possession and control of the Merchant; or an application is made for an order or a meeting is convened or a resolution is passed for the purpose of appointing such a person to the Merchant, for winding up the Merchant or for proposing a compromise or scheme of arrangement, (except where such scheme of arrangement is implemented for the purpose of any corporate restructure); or the Merchant is insolvent or insolvent under administration pursuant to the Corporations Act 2001.
“DIAMOND REPUBLIC” is DIAMOND REPUBLIC ACN 093 019 213.
“Merchant” is the applicant described in the credit application.
“PPSA” is the Personal Property Securities Act (2009) and ‘register’, ‘purchase money security interest’. ‘security agreement’ ‘security interest’ and ‘verification statement’ will have the meanings for those terms as defined in the PPSA.
I/We declare that the information given above is true and correct By signing and submitting this application I/we warrant that I/we have read and understood all of the terms and conditions and acknowledge that these terms form part of this application and offer to enter into a binding agreement with DIAMOND REPUBLIC. I/We warrant that I'we are duly authorised to sign and submit this application and upon acceptance by DIAMOND REPUBLIC to bind the applicant to the agreement with DIAMOND REPUBLIC and provide the associated data on behalf of the applicant.