The following words have the following meanings in these terms and
conditions unless the contrary intention appears:
- “Company” means Rapid Spray Pty Limited (ACN 162
622 095) its successors, assigns, employees, servants and agents.
- “Consumer” means a consumer as defined by the
Competition and Consumer Act 2010.
- "Customer" means the entity to whom the Company
has supplied goods, either in its own right or as agent under these
- “Event of Termination” means when the Customer is
served with any originating process in any proceedings under the
Bankruptcy Act 1966 or the winding-up provisions of the
Corporations Act 2001 or similar or replacement legislation or
has an Administrator, Liquidator, Provisional Liquidator, Receiver or
Receiver and Manager appointed to it.
- "Goods" means all goods/products or services
agreed to be supplied by the Company to the Customer.
- "PPSA" means the Personal Property Securities
policy in relation to privacy.
- Except as expressly provided in these Terms of Trade, these Terms
of Trade constitute an exclusive statement of the agreement between the
Company and the Customer with respect to supply of the Goods, despite
any provisions to a contrary effect in any of the Customer's order
forms or other documents. These Terms of Trade supersede all prior
arrangements written or oral.
- The Company may change these Terms of Trade at any time in writing but not so as to
affect orders to the extent that delivery has been made.
- The Customer's acceptance of these Terms of Trade in relation to
the supply of the Goods is signified by the making of an order for the
Goods. In this respect, the Customer, by making the order, acknowledges
that the Customer has read these Terms of Trade as disclosed on our
website at www.rapidspray.net/terms. This
does not exclude acceptance by other means, including signing a credit
application or signing any like acknowledgement.
- The supply of the Goods pursuant to these Terms of Trade is to be
governed and construed in accordance with the law in effect in New
South Wales and the parties accept the non-exclusive jurisdiction of
the Courts of New South Wales in relation to any dispute between
- Unless otherwise agreed in writing, any Goods supplied by the
Company are part of an ongoing supply under these terms and
- The Company may vary the price without notice.
- Orders will be supplied at the price prevailing at the date of
- In addition to the price, the Customer shall pay the GST payable
thereon and the invoice total is inclusive of GST.
- Unless otherwise stated, all prices quoted are exclusive of freight
delivery costs, insurance and other charges in relation to the transfer
of the Goods from the premises of the Company to the location
designated by the Customer all of which charges shall be payable by the
- Unless express agreement in writing is otherwise made with the
Company and subject to clause 4(g), the price shall be paid on
acceptance of order by the Customer in cash, credit card, electronic
funds transfer (EFT) or by cheque.
- Credit terms will only be available, at the Company's absolute
discretion, upon approval of a written application for this purpose.
The application for credit will contain or annex such financial
information and documents as the Company may require. The Company will
treat this information in a confidential manner and in accordance with
require the provision of personal guarantees or other forms of
- If any payment in respect of the sale of Goods is not made in full
within the agreed period, the Company is entitled to:
- terminate any agreement arising under Terms of Trade and
any other contract for sale the Company may have with the
- refuse to make any further delivery of Goods including
refusing to deliver Goods ordered by the Customer;
- demand and receive immediate payment of any invoice in
respect of an agreement arising under these Terms of Trade
whether payment is then due or not; and
- recover possession of all Goods to which it has retained
title under clause 8.
- All losses, expenses and costs, including legal fees on an
indemnity basis, consequent upon the Customer's failure to pay on the
due date, are recoverable from the Customer by the Company.
- Interest will be charged on overdue accounts at a rate equivalent
to the interest rate prescribed by section 100 of the Civil
Procedure Act 2005 (NSW) or any replacement thereof, until payment
of the debt plus all costs, charges and expenses which may be incurred
by the Company are recovered.
- Payment of any amount by the Customer must be treated as being
received in the following order:
- First, in relation to obligations that are not secured
(“secured” in this clause means secured under the PPSA), in the
order in which those obligations were incurred;
- Second, in relation to obligations that are secured, but
not by purchase money security interests, in the order in which
those obligations were incurred; then,
- Third, in relation to obligations that are secured by
purchase money security interests, in the order in which those
obligations were incurred.
- In the event that the order is a custom item and the order is
accepted by the Company, a 50% non-refundable deposit is required on
placement of the order. The remaining 50% is to be paid prior to
dispatch of the custom item.
- If payment is made by cheque which is dishonoured, the Company
reserves the right to charge the Customer for accounting and bank
charges and other fees incurred by it in respect of such
SECURITY FOR PAYMENT
- Where the Customer is not a Consumer, the Customer as beneficial
owner (and where there is more than one person trading together as the
Customer, jointly and severally) hereby charges in favour of the
Company all freehold and leasehold interests in land which the Customer
now has or may acquire with the payment of all money which may become
owing to the Company by the Customer.
- The Customer, in such circumstance, further acknowledges that the
Company is entitled to register a caveat to protect its interest under
- In certain circumstances, the Company may, at its absolute
discretion, agree to accept a Credit Account Application from a
Customer. In the event of the Customer in any Credit Account
Application purports to be a corporation, each of the persons who have
signed the Credit Account Application as Directors/Secretary of and on
behalf of the corporation:
- warrants that the corporation has been incorporated;
- shall be personally liable under these Terms of Trade both
jointly and severally as if they had been named herein as the
- acknowledge that the Credit Account Application is for
business purposes solely;
- shall execute the Guarantee attached to the Credit Account
- acknowledge that unless and until sub-clause (c)(iv) has
been complied with, the Credit Account Application does not
bind the Company.
- In the event that the Customer in any Credit Account Application is
a corporation and, in the event that the corporation fails for any
reason to perform its obligations in accordance with these Terms of
Trade, the Directors/Secretary of that corporation who have signed the
Credit Account Application on behalf of the corporation do thereby
guarantee the due performance of the corporation in relation to its
obligations pursuant to these Terms of Trade hereof in every aspect as
if they had personally entered into the Credit Account Application
The Company shall be under no obligation to accept the whole or part of
any order, unless otherwise agreed by the Company.
- Unless otherwise agreed, the Customer will bear the costs of
delivery of the Goods at premises nominated by the Customer.
- Delivery may be made by the Company or its contractors or
- Delivery shall be deemed to have been made on receipt by the
Company's authorised carrier of a delivery note signed by a
representative of the Customer or loading onto the Customer’s nominated
- The Customer shall provide secure and suitable off-loading
facilities at the premises so as to facilitate the safe and timely
off-loading of the Goods.
- Where the Customer is not a Consumer, the Company shall not be
liable for any loss or damage, including consequential loss, suffered
by the Customer arising from or related to any late delivery or failure
to make delivery of an order whether in whole or in part and whether
there exists a breach of contract or negligence or breach of any other
- Every endeavour will be made by the Company to complete delivery
within the period, if any, stated but no liability can be accepted by
the Company for delay in delivery or non delivery.
RISK AND TITLE
- The Goods shall be at the Customer's risk from delivery by the
Company or its third party supplier.
- Without limiting the generality of clause 8 (a), all
transit/carriage of the Product shall be at the Customer’s risk whether
from the Company to the Customer or the third party to the Company or
the third party to the Customer and whether such transit/carriage is
arranged by the Company the third party or the Customer.
- The Customer, within 24 hours of request, shall give the Company
instructions as to delivery or collection of the Goods.
- Notwithstanding that the risk in the Goods may have passed to the
Customer, the Company and the Customer agree that, where the Customer
is not a Consumer, ownership of the Goods shall not pass until:
- the Customer has paid the Company all amounts owing for the
particular Goods; and
- the Customer has met all other obligations due by the
Customer to the Company in respect of all contracts between the
Company and the Customer.
- Receipt by the Company of any form of payment other than cash shall
not be deemed to be payment until that form of payment has been
honoured, cleared or recognised and until then the Company’s ownership
or rights in respect of the Goods shall continue.
- It is further agreed that, where the Customer is not a Consumer:
- the Goods shall be kept separate and identifiable until the
Company shall have received payment and all other obligations
of the Customer are met; and
- until such time as ownership of the Goods shall pass from
the Company to the Customer, the Company may give notice in
writing to the Customer to return the Goods or any of them to
the Company. Upon such notice, the rights of the Customer to
obtain ownership or any other interest in the Goods shall
- the Company shall have the right of stopping the Goods in
transit whether or not delivery has been made; and
- If the Customer fails to return the Goods to the Company
then the Company or the Company’s agent may (as the invitee of
the Customer) enter upon and into land and premises owned,
occupied or used by the Customer, or any premises where the
Goods are situated and take possession of the Goods; and
- the Customer is only a bailee of the Goods and, until such
time as the Company has received payment in full for the Goods,
then the Customer shall hold any proceeds from the sale or
disposal of the Goods, up to and including the amount the
Customer owes to the Company for the Goods, on trust for the
- the Customer shall not deal with the money of the Company
in any way which may be adverse to the Company; and
- the Customer shall not charge the Goods in any way nor
grant nor otherwise give any interest in the Goods while they
remain the property of the Company; and
- the Company can issue proceedings to recover the price of
the Goods sold notwithstanding that ownership of the Goods may
not have passed to the Customer; and
- until such time that ownership in the Goods passes to the
Customer, if the Goods are converted or incorporated into other
Goods, the parties agree that the Company’s security interest
will continue in accordance with the PPSA.
WARRANTIES, GUARANTEES AND CONDITIONS
- All implied guarantees, warranties and conditions are excluded to
the maximum extent permitted by law.
- To the maximum extent permitted by law, the Company is not liable
- any loss or damage to the Goods resulting from any action
or omission on the part of the Company, or the employees,
contractors or agents of the Company; or
- any special, consequential, direct or indirect loss and
damage incurred by the Customer.
- The Customer shall examine the Goods after delivery and
immediately inform the Company of any alleged defect in the
Goods. To the maximum extent permitted by law, the Company
shall have no liability to the Customer for any defect that
visual examination would ordinarily reveal unless the Company
receives written notification within two (2) business days from
the date of delivery.
- If a defect exists in the Goods and that defect occurred
before delivery, the Company will repair or replace those Goods
free of charge upon the Customer returning the defective
- To the maximum extent permitted by law, Clause 9(d)
constitutes the Customer's sole remedy in the respect of the
supply of defective Goods.
- Where the Customer buys the Goods as a Consumer, these
Terms of Trade shall be subject to any laws or legislation
governing the rights of Consumers and shall not affect the
Consumer’s statutory rights. The Company refers each such
Consumer to the Consumer Guarantee Guide at the following link:
and states that nothing in these Terms of Trade is to be taken
as seeking to contract out of the Consumer’s statutory
- In the event of a breach of an implied guarantee, condition
or warranty which cannot by law be excluded or modified,
including any guarantee, condition or warranty implied by the
Competition and Consumer Act 2010, the Company's
liability shall at the Company's option be limited to:
- the repair or replacement of the Goods or the
supply of equivalent Goods; or
- the cost of such repair, replacement or
- Nothing in these Terms of Trade is intended to have the effect of
contracting out of any applicable provisions of the Competition and
Consumer Act 2010 (“CCA”) or the Fair Trading Acts (“FTA”) in each of
the States or Territories of Australia (including any substitute to
those Acts or re-enactment thereof), except to the extent permitted by
those Acts where applicable.
- The Company shall not be responsible for damage or fault in
performance arising out of incorrect or inappropriate operation of the
Goods by the Customer. The Customer acknowledges that the Company gives
no warranty as to fitness of the Goods for its intended application of
the Customer and that the Customer has relied entirely upon its own
- The Customer warrants that it has not relied upon any
representations made by the Company which has not been stated expressly
in this agreement or upon descriptions or illustrations or
specifications contained in any document including any catalogues or
publicity material supplied by the Company.
- To the extent that the Goods or any component part thereof is
supplied to the Company by a third party, the warranty offered by the
Company in relation to the Goods or the component part thereof (as
applicable) shall be limited to the Company’s right of redress if any
against the third party supplier arising out of any alleged
fault/defect in the Goods or component part thereof.
- All Goods sold by the Company carrying a warranty period are
subject to the manufacturer’s terms and conditions of warranty.
- No Goods may be returned to the Company or credit allowed for such
return without the prior written approval of the Company.
- Any application by the Customer to return Goods and receive a
credit shall be in writing and shall state the reason for the return
and the action requested by the Customer on the part of the
- Goods wrongly ordered by the Customer and accepted for credit
return by the Company shall be subject to a 15% re-stocking fee.
USE OF LOGOS
- The use of any Company logos must be in accordance with the
Company’s brand guidelines.
- Where the Customer is not a Consumer, the Company may, in addition
to any other course of action available to it, elect to terminate any
agreement made pursuant to these terms and conditions by notice in
writing to the Customer if an Event of Termination occurs.
- On termination, all invoices rendered by the Company are payable
Where the Customer is not a Consumer, the Customer warrants that:
- the Customer is a party to any agreement with the Company as a
principal in its own right.
- any financial information the Company may require the Customer to
give is true and accurate and the Customer will keep the Company
informed of any material adverse change.
- the Customer will not make any representations or claims about the
Goods to persons to whom it sells the Goods which are false and
- the Customer shall advise the Company forthwith if it ceases
trading or if it commences to trade through a different entity of if
there is a material change in its ownership or control.
- The Customer acknowledges that, in making an order, the Goods may
come with a warning in relation to installation and/or use. The
Customer agrees to read and abide by any such warning. Specifically,
the Customer agrees not to remove any safety or protection devices that
were part of the Goods at the time of delivery and to ensure than any
after-sale modifications or installations carried out by the Customer
or the Customer’s servants or agents are only done after the Customer
has obtained expert engineering advice.
- In case of an electrical or any other fault in equipment or
machinery sold by the Company, operation must cease immediately and
electrical supply must be disconnected as electricity can kill.
Repairs must be undertaken by an authorised service centre or
person. The Customer agrees to accept all liability should
- When using chemicals sold by the Company, proper eye and clothing
protection must be worn as harmful bodily injury can occur.
- If the Customer is not a Consumer, it is the Customer’s
responsibility to ensure that any user understands and follows all
safety rules, precautions and instructions relating to the Goods.
PERSONAL PROPERTY SECURITIES ACT 2009
- This clause only has application where the Customer is not a
- In this clause:
- financing statement has the meaning given to it by the
- financing change statement has the meaning given to it by
- security agreement means the security agreement under the
PPSA created between the Customer and the Company
by these terms and conditions; and
- security interest has the meaning given to it by the
- Upon agreeing to these Terms of Trade, the Customer
acknowledges and agrees that these Terms of Trade:
- constitute a security agreement for the purpose of
the PPSA; and
- create a security interest in:
- all Goods previously supplied by Company to
the Customer (if any);
- all Goods that will be supplied in the
future by the Company to the Customer.
- The Customer undertakes to:
- promptly sign any further documents and/or provide
any further information (such information to be
complete, accurate and up-to-date in all respects)
which the Company may reasonably require to:
- register a financing statement or financing
change statement in relation to a security
interest on the Personal Property Securities
- register any other document required to be
registered by the PPSA; or
- correct a defect in a statement referred to
in clause 15(c)(i)i or 15(c)(i)ii;
- indemnify, and upon demand reimburse, the Company for
all expenses incurred in registering a financing statement
or financing change statement on the Personal Property
Securities Register established by the PPSA or releasing
any Goods charged thereby;
- not register, or permit to be registered, a financing
statement or a financing change statement in relation to
the Goods in favour of a third party without the prior
written consent of the Company; and
- immediately advise the Company of any material change
in its business practices of selling the Goods which would
result in a change in the nature of the proceeds derived
from such sales.
- The Goods are collateral for the purposes of the PPSA.
- The Company and the Customer agree that sections 96, 115
and 125 of the PPSA do not apply to the security agreement
created by these terms and conditions and that neither the
Company nor the Customer will disclose information of the kind
specified in section 275(1) of the PPSA.
- The Customer hereby waives its rights to receive notices
under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of
- The Customer waives its rights as a grantor and/or a debtor
under sections 142 and 143 of the PPSA.
- Unless otherwise agreed to in writing by the Company, the
Customer waives its right to receive a verification statement
in accordance with section 157 of the PPSA.
- The Customer shall unconditionally ratify any actions taken
by the Company under clauses 15(c) to 15(e).
Should any part of these terms and conditions be held to be void
or unlawful, these terms and conditions are to be read and enforced
as if the void or unlawful provisions had been deleted.