Terms & Conditions

Terms & Conditions
New accounts are on a Proforma basis.

1. Definitions In the Terms and Conditions, the following words have the following meanings: KA means Kawada Australia Pty Ltd. Customer means the entity entering into credit account agreement with KA. Goods means any goods used or supplied by KA. Terms and Conditions means these terms and conditions of this credit account.
2. Amount Payable by the Customer
   1. 2.1 Amounts Payable The Customer must pay any and all rates;
   2. 2.2 Payment Terms All amounts payable by the Customer to KA are payable within 14 days of the date of the invoice.
   3. 2.3 Sanctions for Late PaymentIf the Customer defaults in making payment to KA in accordance with these Terms and Conditions, KA may in its absolute discretion:
      1. 2.3.1 charge the Customer interest calculated on the portion of the Customer’s account overdue from time to time at the rate of 1.5% per month from the date on which such default arose; and
      2. 2.3.2 require the Customer to reimburse KA for all collection costs incurred by KA calculated on a solicitor and own client basis as a consequence of KA instructing its solicitor to provide advice to it in connection with each default and/or to institute such recovery process as shall in the absolute discretion of KA be appropriate in the circumstances.
   4. 2.4 Price ChangeThe prices shown in the KA rates list (as distributed by KA from time to time) and in the Schedule are subject to change.
   5. 2.5 GST
      1. 2.5.1 In this clause;
         1. (a) GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended) and any related tax legislation or regulation;
         2. (b) GST means goods and services tax within the meaning of the GST Act
         and, except where the contrary intention appears, expressions used in this clause have the meanings given to them in the GST Act.
      2. 2.5.2 If the party to these Terms and Conditions (Supplier) makes a taxable supply (Supply) under these Terms and Conditions, then the recipient of that Supply must also pay to the Supplier, at the same time as the consideration for the Supply is paid or otherwise given to the Supplier, an additional amount equal to any GST payable in connection with that Supply.
      3. 2.5.3 The Supplier warrants that it is registered for GST under the GST Act.
      4. 2.5.4 The Supplier’s right to payment under clause 2.5.2 is subject to a tax invoice being delivered to the recipient of that Supply to enable the recipient to claim input tax credits for the Supply.
      5. 2.5.5 If an adjustment due to an adjustment event results in the GST being different from that paid to the Supplier under clause 2.5.2 the Supplier:
         1. (a) must refund to the recipient any excess; and
         2. (b) may recover from the recipient any shortfall.
3. Representations and Warranties

1. 3.1.2 Corporate power: (if the Customer is a corporation) it has full power and authority under its constitution or other constituent documents to enter into these Terms and Conditions and to do all things required by these Terms and Conditions, and all necessary meetings have been held and all resolutions have been passed and any other action necessary to authorise the execution and performance of these Terms and Conditions has been taken and these Terms and Conditions will constitute the legal, valid, binding and enforceable obligations of the Customer in accordance with their terms;
2. 3.1.3 No breach: except as disclosed in writing to KA and dispensed with in writing by KA, neither the execution nor the performance of these Terms and Conditions will:
   1. 3.1.3.1 violate in any respect any statute, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Customer;
   2. 3.1.3.2 cause any limitation (whether imposed by statute, decree, rule or regulation) on any of the powers of the Customer or on the Customer’s right or ability to exercise such powers to be exceeded; or
   3. 3.1.3.3 conflict with or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Customer is a party or which is binding upon the Customer or any of the Customer’s assets; or
   4. 3.1.3.4 result in a mortgage, charge, lien or other encumbrance over any of the Customer’s assets; or
   5. 3.1.3.5 cause any limit on the powers of the Customer in respect of borrowing, guaranteeing, raising financial accommodation or otherwise as the case may be, to be exceeded;
3. 3.1.4 No existing default: except as disclosed in writing to KA and dispensed with in writing by KA, the Customer is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation (including obligations under guarantees or other contingent liabilities), which default or difficulty is reasonably likely to adversely affect the ability of the Customer to comply with its obligations under these Terms and Conditions;
4. 3.1.5 No default: no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default has occurred or, having occurred, is continuing to subsist;
5. 3.1.6 No litigation: except as disclosed in writing to KA and dispensed with in writing by KA, no litigation or administrative or other proceedings before or of any court or governmental authority or agency or other tribunal have, to the knowledge of the Customer, been initiated or threatened against the Customer or any of the Customer’s assets which would or might have a materially adverse effect upon the business, assets or financial condition of the Customer.

1. 4.1.1 arising out of or alleged to arise out of the delivery, selection, purchase, acceptance or rejection, ownership, possession, use (including by reason of the use or incorporation of any invention resulting in infringements of patents), repair, maintenance, storage, or operation of the Equipment, and by whomsoever used or operated (except where used by KA or any person on behalf of KA); or
2. 4.1.2 incurred by KA in respect of any loss of the Equipment by seizure, distress, execution or other legal process, confiscation or forfeiture of the Equipment; or
3. 4.1.3 arising out of any claim for patent, trademark or copyright infringement, for strict liability, or for any other reason being made against KA in connection with the Equipment or its operation.

1. 5.1.1 if the Customer fails to pay moneys payable under these Terms and Conditions on the due date for payment and such failure continues for more than five business day;
2. 5.1.2 if the Customer fails to perform or observe any of the provisions of these Terms and Conditions and (if capable of remedy) such default continues for more than five business days (or such longer period as KA in its absolute discretion permits) after notice from KA requiring the Customer to remedy the same;
3. 5.1.3 if KA ascertains that the Customer has made any false, inaccurate or misleading statement having a material effect in relation to entering into these Terms and Conditions or any related or collateral document;
4. 5.1.4 if an application for the winding up or bankruptcy of the Customer or any of its related body corporate is presented and the Customer or the related body corporate (as the case may be) cannot within 10 business days reasonably satisfy KA that the application is frivolous or vexatious;
5. 5.1.5 an order is made, or any resolution is passed, for the winding up of the Customer or any related body corporate, provided always that it will not be an event of default where the winding up of the Customer or the related body corporate (as the case may be) is for the purpose of reconstruction or amalgamation and has KA prior written consent (which consent will not be unreasonably withheld);
6. 5.1.6 if a receiver or receiver and manager or provisional liquidator of the undertaking or any part of the undertaking of the Customer or any related body corporate is appointed;
7. 5.1.7 if without KA prior written consent the Customer or any related body corporate suspends payment generally or ceases to carry on its business or is unable to pay its debts within the meaning of s 460 of the Corporations Act 2001;
8. 5.1.8 if without KA prior written consent the Customer or any related body corporate enters into any arrangement, reconstruction or composition with its creditors or any of them;

1. 5.1.9 if the Customer or any related body corporate appoints an administrator to the Customer or the related body corporate, or begins any process in order to do so;
2. 5.1.10 if without KA prior written consent (which consent will not be unreasonably withheld) the Customer or any related body corporate reduces its share capital or attempts to do so; or
3. 5.1.11 if, in the opinion of KA there is a material adverse change in the financial condition of the Customer.

1. 5.2 Consequences of default If an event of default occurs, KA may terminate these Terms and Conditions by notice in writing to the Customer. Upon service of such notice, all rights of the Customer to terminate and KA may, directly or by its agent, take possession goods supplied. Any damages reasonably occasioned by KA taking possession are expressly waived by the Customer. KA will, upon taking possession of the goods, possess and enjoy the goods free from any right of the Customer or its successors or assigns to use the goods for any purpose.
2. 5.3 Termination for convenienceWithout prejudice to any other remedies available to KA specified in these Terms and Conditions, KA may terminate these Terms and Conditions at any time by giving to the Customer formal notice. KA is not liable to the Customer for any loss or damage arising to the Customer as a result of termination in accordance with this clause.