Dawborn Steels Trading Pty Ltd (Dawborn Steels) Terms of Trade (Terms)
Terms Version: 31/05/19
The Customer has read, understood and agrees to these Terms. The parties agree, these Terms apply to all transactions between Dawborn Steels and the Customer and these Terms, together with any terms set out in any Sales Contract, form the agreement between the parties (Agreement) under which Dawborn Steels agrees to provide and the Customer agrees to accept and pay for the Goods. To the extent of any inconsistency, the terms of the Sales Contract prevails over these Terms.
Terms not defined below have the same meaning as in the Sales Contract as appropriate. Dawborn Steels and the Customer agree:
Orders and Acceptance of Orders
1. On receipt of a request to supply Goods from the Customer, Dawborn Steels will provide a Quote in writing which may be in the form of a Sales Contract to the Customer.
2. Unless the Customer confirms within one Business Day of the Quote being received it wishes to proceed with the purchase of the Goods and enters into a Sales Contract within 24 hours of acceptance of receipt of the Quote , Dawborn Steels’ reserves the right to review and update the Pricing in the Quote and/or Sales Contract as appropriate.
3. To accept or enter into a Sales Contract, it must be accepted or signed by an authorised representative of the Customer. The Customer represents, acknowledges and agrees it is the Customer’s responsibility to ensure that only its’ authorised representative place and accept orders for Goods with Dawborn Steels and that Dawborn Steels is entering into these Terms in reliance on this representation.
4. On the Customer’s written acceptance of the Quote and/or Sales Contract and payment of any deposit required under the Sales Contract, Dawborn Steel will order the Goods from its supplier where those Goods are not already in stock.
5. As most orders of Goods are specific to meet an individual Customer’s needs, once Dawborn Steels has placed an order for Goods with its supplier, the Sales Contract cannot be terminated by the Customer without the prior written consent of Dawborn Steels.
6. Where Dawborn Steels agrees in writing to end a Sales Contract, the Customer indemnifies Dawborn Steels against any Losses Dawborn Steels suffers or incurs as a result of the cancellation of the Sales Contract including without limitation, any out of pocket expenses, consequential loss and loss of profit.
7. The Customer acknowledges and agrees:
a. these Terms and the terms in the Sale Contract set out the only contractual terms governing the supply of Goods by Dawborn Steels to the Customer;
b. if the Customer has standard terms and conditions of trade, those terms to not apply to the supply of Goods by Dawborn Steels to the Customer; and
c. these Terms apply to each Sales Contract entered into by the parties.
Customer’s Obligations
8. In its order, the Customer must either nominate a delivery address or, advise the Customer will arrange to collect the Goods from Dawborn Steels premises.
9. Where the Goods are to be delivered to the Customer, Dawborn Steels will confirm the Customer’s delivery address and estimated date for delivery in the Sales Contract. Where the Customer is collecting the Goods from Dawborn Steels, Dawborn Steels will nominate the estimated delivery date and confirm the Goods are to be collected from its premises.
10. Any costs incurred by Dawborn Steels in reliance on incorrect or inadequate information contained in a request for a Quote or Sales Contract may result in the imposition of additional charges being added to the Pricing payable by the Customer under the Sales Contract.
11. The Customer acknowledges and agrees the estimated delivery date is an estimate only and it will not bring a Claim for any Loss suffered or incurred by it or any third party as a result of the estimated delivery date not being met.
12. Dawborn Steels will notify the Customer as soon as practicable of its actual delivery date once known (Actual Delivery Date). If the Goods are being delivered to the Customer’s delivery address, the Customer must ensure it has adequate staff available at the delivery premises to accept the delivery of Goods and to unload the Goods on the Actual Delivery Date. If the Goods are being collected from Dawborn Steels’, the Customer must collect the Goods on the Actual Delivery Date unless another date is agreed to in writing.
13. The Customer will ensure any contractors, employees or agents it sends to collect Goods from Dawborn Steels’ will comply with Dawborn Steels policies and all lawful directions received from Dawborn Steels’ officers, employees, agents or contractors including those relating to workplace safety and occupational health and safety.
14. The Customer must pay Dawborn Steels the Pricing in full for the Goods within 30 days of the end of the month that the invoice is dated, unless different Payment Terms are set out in the applicable Sales Contract, in which case, the Payment Terms in the applicable Sales Contract prevail but only for that Sales Contract.
15. The Customer acknowledges Dawborn Steels may change these Terms from time to time. Any changes will be published on Dawborn Steels’ website and will take effect 14 days after the date published. The Customer agrees to check Dawborn Steels’ website regularly for changes to the Terms and before it enters into any Sales Contract, to ensure it is aware of any changes to the Terms before accepting the Sales Contract. If the Customer does not agree to the changed Terms it must not accept the Sales Contract. If the Sales Contract is accepted, then the Customer acknowledges and agrees it is providing its consent to the changed Terms.
Customer Insolvency Event
16. The Customer undertakes to notify Dawborn Steels of any step or proposed step taken by any creditor or financier of the Customer of which the Customer becomes aware, which is reasonably likely to result in the occurrence of an Insolvency Event as soon as reasonably practicable and in any event within 24 hours of the Customer becoming aware of the step or proposed step being taken.
17. On the Customer suffering an Event of Insolvency, the Customer is in default of these Terms.
Rolling Forecasts
18. For Customers requiring Dawborn Steels to hold significant quantities of Goods in Australia in advance of placing orders, those Customers agree to provide Dawborn Steels with yearly forecasts of Goods required and quarterly updates of its anticipated stock requirements for the coming quarter expected to be ordered from Dawborn Steels during that period. The Customer also agrees to notify Dawborn Steels as soon as practicable of any changes to its anticipated stock requirements. The Customers who must comply with clauses 18 and 19 will be advised of this requirement by Dawborn Steels.
19. Due to the cost to Dawborn Steels to carry these Goods in advance of purchase, the estimates provided under clause 18 are binding on the Customer and the Customer must purchase 100% of the Goods set out in the quarterly forecast each quarter, unless Dawborn Steels has, in advance, agreed in writing, to alternative purchasing arrangements for that quarter.
Risk, Returns and Title in Goods
20. Risk in the Goods passes to the Customer either: from the time Dawborn Steels delivery truck arrives at the Customer’s delivery address or; at the time the Customer’s delivery truck arrives at Dawborn Steels’ premises to pick up the Goods.
21. The Customer must promptly notify Dawborn Steels in writing (but in any event no later than 5 Business Days following the Actual Delivery Date) of any faults or defects in the Goods delivered. If the Customer fails to advise Dawborn Steels in writing within this timeframe of any fault or defect in the Goods or failure of Goods to accord with the Customer's Sales Contract, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty, defective and in accord with the Customer's Sales Contract. Nothing in this paragraph affects the Customer's rights for any alleged failure of a guarantee under the ACL where those statutory rights apply to the Customer.
22. If the Customer determines any of the Goods are defective or damaged within 5 business days of being delivered, the Customer must immediately notify Dawborn Steels in writing of the fault or defect and return any damaged Goods to Dawborn Steels within 10 Business Days of delivery. The Customer must pay for the cost of returning the damaged or defective Goods to Dawborn Steels’ premises. If on receipt of the damaged or defective Goods Dawborn Steels agrees with the Customer’s assessment the Goods are damaged or defective, it will raise a credit note against the Customer’s account.
23. Title in the Goods supplied to the Customer under these Terms and any Sales Contract does not pass to the Customer until all monies (including any Pricing owing for those Goods and any other money owing in respect of other transactions between Dawborn Steels and the Customer) which are due and payable to Dawborn Steels by the Customer, have been fully paid.
24. Where Goods are supplied by Dawborn Steels to the Customer without payment in full of all monies owing in respect of the Goods, the Customer:
a. is a bailee of the Goods until title in them passes to the Customer;
b. irrevocably appoints Dawborn Steels, its attorney to do all acts and things necessary to ensure Dawborn Steels’ retention of title to the Goods including the registration of any security interest in favour of Dawborn Steels with respect to the Goods under applicable law;
c. must be able on demand by Dawborn Steels to separate and identify as belonging to Dawborn Steels, all Goods supplied by Dawborn Steels from other goods which are held by the Customer;
d. must not allow any person to have or acquire any security interest in the Goods;
e. agrees that Dawborn Steels may repossess the Goods if payment is not made within 30 days from the end of the month in which the invoice is issued (or such longer time as Dawborn Steels may, in its complete discretion, approve in writing) following the supply of the Goods; and
f. the Customer grants an irrevocable licence to Dawborn Steels or its agents to enter the Customer's premises in order to recover possession of Goods pursuant to this clause
24. The Customer indemnifies Dawborn Steels in respect of any damage to property or personal injury which occurs as a result of Dawborn Steels, its officers, employee, contractors or agents entering the Customer's premises.
25. Where Goods are supplied by Dawborn Steels to the Customer without payment in full of all monies payable in respect of the Goods and the Customer makes a new object from the Goods, whether finished or not, or the Customer mixes the Goods with other goods or the Goods become part of other goods (New Goods), the Customer agrees with Dawborn Steels that the ownership of the New Goods immediately passes to Dawborn Steels. The Customer will hold the New Goods on trust for Dawborn Steels until payment of all sums owing to Dawborn Steels whether under these Terms or any Sales Contract have been made and Dawborn Steels may require the Customer to store the New Goods in a manner that clearly shows the ownership of Dawborn Steels.
26. For the avoidance of doubt, under clause 25, the ownership of the New Goods passes to Dawborn Steels at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods.
27. Notwithstanding clause 26, the Customer may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business provided that:
a. where the Customer is paid by a third party in respect of Goods including New Goods, the Customer holds the whole of the proceeds of sale less any GST on trust for Dawborn Steels. Those monies must be held in a separate account, until all amounts owed by the Customer to Dawborn Steels have been paid; or
b. where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the third party to Dawborn Steels on Dawborn Steels giving the Customer written notice to that effect. For the purpose of giving effect to the assignment of the Customer’s rights against the third party it irrevocably appoints Dawborn Steels as its attorney and agrees to ratify any action taken by Dawborn Steels under the power of attorney.
PPSA
28. Where the PPSA is in force, the Customer acknowledges that these Terms create a security interest under the PPSA in the Goods supplied by Dawborn Steels to the Customer, and for the avoidance of doubt, the proceeds of sale of those Goods and any New Goods.
29. The Customer consents to Dawborn Steels effecting a registration of the PPSR (in any manner Dawborn Steels considers appropriate) in relation to any security interest contemplated by these Terms, including, without limitation, an interest under clauses 23 to 28.
30. The Customer further agrees:
a. to do all things necessary and required by Dawborn Steels to make sure that the security interest is a perfected ‘purchase money security interest’ under the PPSA;
b. not to allow any third party to acquire a security interest over the Goods.
31. Dawborn Steels’ security interest in the Goods and New Goods is a continuing security and remains in full force and effect until the date the Customer complies with all of its obligations under the Terms and any Sales Contract.
32. Where the Customer is in default of its obligations under these Terms or under a Sales Contract, Dawborn Steels’ may enforce its security interest and the Customer must take all action reasonably required by Dawborn Steels, or any attorney, receiver, administrator or liquidator, to assist them.
33. Enforcement of Dawborn Steels’ security interest shall in no way limit Dawborn Steels’ right to pursue other contractual or other legal remedies in respect of any default under these Terms or a Sales Contract.
34. To the extent the Goods are for the Customer’s business use, the Customer agrees to the extent permitted under the PPSA that the Customer has no right:
a. to receive notice of removal of an accession under the PPSA;
b. under Chapter 4 of the PPSA;
c. under the PPSA to receive a copy of any verification statement of a financing statement;
d. without in any way limiting clauses 34a, b or c, the Customer agrees that to the extent permitted under the PPSA, the Customer waives its right under sections: 95; 96; 118; 120; 121(4); 123; 125; 126; 128; 129; 130; 132; 134; 135; 142 and 143 of the PPSA.
35. Unless otherwise agreed to in writing by Dawborn Steels, the Customer waives its right to receive from Dawborn Steels any notice required under the PPSA (including a notice of a verification statement under section 157, 95, 118, 121 (4), 130, 132 (3) (d) and 132 (4) of the PPSA.
36. If the PPSA is amended to permit the parties to agree not to comply with or to exclude other provisions of the PPSA, Dawborn Steels may notify the Customer that any of these provisions is excluded, or that Dawborn Steels need not comply with any of these provisions.
37. The Customer must not assign or grant a security interest in respect of any accounts owed to it in relation to the Goods without Dawborn Steels’ prior written consent.
38. Without limiting any other provision of these Terms, if the Customer makes a payment to Dawborn Steels at any time whether in connection with the supply of Goods or otherwise, Dawborn Steels may at its absolute discretion apply that payment to satisfy obligations that are not secured, then obligations that are secured, but not by a purchase money security interest, in the order in which those obligations were incurred, and then obligations that are secured by a purchase money security interest, in the order in which those obligations were incurred.
Dawborn Steels Obligations
39. Dawborn Steels will:
a. provide the Goods under the Sales Contract to the Customer in exchange for the payment of the Deposit (if any), the Pricing and all other fees contained in the Sales Contract or set out in these Terms;
b. supply the Goods in accordance with the Specifications, Quantities and Sizing set out in the Sales Contract;
c. determine the Actual Delivery Date of the Goods at its absolute discretion and will use its reasonable endeavours to comply with any estimated delivery date set out in the Sales Contract;
d. not commence supply of Goods to a Customer under a Sales Contract until a commercial credit application has been provided by the Customer, a credit check is conducted and the results being satisfactory to Dawborn Steels in its absolute discretion; and
e. only continue to supply Goods under Contracts of Sale where the Customer is not in default under these Terms and/or under any of its Contracts of Sale.
40. Where Goods are being delivered to the Customer’s delivery address, the Pricing under the Sales Contract will include a Delivery Fee to cover one delivery only. Where the Customer requests the Goods ordered to be shipped in parts requiring more than one delivery, an additional Delivery Fee will be charged per delivery. Dawborn Steels will not deliver part shipments of Goods for Customers until the Customer confirms the request in writing and accepts the additional Delivery Fee in writing.
Interruptions to Supply
41. There may be times Dawborn Steels experiences disruptions to the supply of Goods, such as industrial action on wharves, Customs delays or stoppages or issues with Dawborn Steels’ overseas suppliers, due to circumstances which may or may not be within its control. Where a potential or actual disruption in supply of Goods becomes known, Dawborn Steels will use its best endeavours to provide Customers with reasonable notice of any alteration to estimated delivery dates or Actual Delivery Dates. The parties agree, Dawborn Steels is not liable to the Customer for any Losses (including consequential loss, damage or loss of profits) arising, whether directly or indirectly from any interruption, disruption or failure to supply either the whole or part of any order of Goods under a Sales Contract at any time.
Deposit / Pricing / Invoices
42. On acceptance of the Sales Contract, the Customer must pay any Deposit set out in the Sales Contract within 7 days of signing the Sales Contract. The Customer acknowledges Dawborn Steels is not required to place an order with its supplier for the Goods until the Deposit is paid in full. The Deposit invoice will accompany the Sales Contract.
43. The Deposit should be paid to Dawborn Steels’ bank account shown below in clause 45.
44. Invoices for the Pricing and Delivery Fee (less any Deposit paid) payable for the Goods under each Sales Contract will be issued at the same time the Customer is notified of the Actual Delivery Date.
45. Any monies owing must be paid in AUD to: Bank Name: ANZ Banking Group Limited – 388 Collins Street, Melbourne, Vic, 3000, Australia Account Name: Dawborn Steels Trading Pty Ltd BSB: 012 – 003 Account No. 836 777 514.
46. Invoices may be paid by credit card subject to the Customer agreeing to payment of a surcharge of 2%.
Non Payment of Invoices
47. If any invoice is due but unpaid, Dawborn Steels may withhold the provision of the Goods and any further Goods ordered until all overdue amounts are paid in full.
48. The Customer is not entitled to retain any money owing to Dawborn Steels notwithstanding any default or alleged default by Dawborn Steels of these Terms or the Sales Contract, including (but not limited to) the supply of allegedly faulty or defective Goods, or a delay in the provision of Goods. Nothing in this clause affects the Customer's rights for any alleged failure of a guarantee under the ACL (if applicable). 49. If an invoice for the Deposit, has not been paid in full within 7 days of the invoice date, or an invoice remains unpaid 30 days after the end of the month in which the invoice is dated, Dawborn Steels may suspend or cease to provide the Goods or any further Goods under these Terms and/or any Sales Contract until the outstanding payment and any interest or debts owing under clauses 50 and 51 respectively are received in full.
50. If an invoice remains unpaid 30 days after the end of the month in which the invoice is dated, Dawborn Steels may charge the Customer interest at a rate not exceeding the variable retail index interest rate set for an unsecured ANZ business overdraft (ANZ Business Overdraft) or where this product no longer exists, the interest rate is to be substituted with the interest rate of its replacement product , plus 2%, compounding daily from the date the invoice was issued until it is paid in full.
51. All costs and expenses associated with collecting overdue monies owed by the Customer, including, but not limited to, legal fees, debt collection agency fees and internal costs and expenses of Dawborn Steels, are to be paid by the Customer as a debt due and payable under the Terms.
Warranties and Limitation of Liability
52. The Customer warrants it is not a consumer as defined under the ACL and will not be using the Goods for personal, domestic or household use or consumption.
53. Where the Goods are of the kind ordinarily required for personal, domestic or household use or consumption, and the Customer is a consumer for the purposes of the ACL, there are statutory guarantees that cannot be contracted out. These Terms in no way limit the rights of Customers who fall within the definition of consumer under the ACL in connection with the purchase of the Goods.
Confidentiality
54. During the course of providing the Goods, the parties may have access to each other’s Confidential Information.
55. Each receiving party must keep confidential the disclosing party’s Confidential Information and must not disclose the Confidential Information to: any third party except for a permitted purpose under this Agreement; as required by law, with the prior written consent of the disclosing party; or to an associate of the third party to the extent they need to know that information for a permitted purpose under the Agreement; and only on the basis the associate is subject to the same obligations to keep the Confidential Information confidential.
Liability and Limitation of Liability
56. The Dawborn Steels website may from time to time contain hyperlinks to other websites. Such links are provided for convenience only and Dawborn Steels take no responsibility for the content and maintenance of or privacy compliance by any link used to a third party website. Any hyperlink used in the Dawborn Steels website does not imply Dawborn Steels’ endorsement, support, or sponsorship of the operator of that website nor of the information and/or products which they provide.
57. Dawborn Steels provides no warranty that any result or objective can or will be achieved or attained by the Dawborn Steels Goods and it is the Customer’s sole responsibility to ensure the Goods ordered suit the purpose for which it is being ordered.
58. This document does not exclude, restrict or modify the application of any statutory provision (including a provision of the ACL) where to do so would:
(a) contravene that statute; or
(b) cause any part of Agreement to be void.
59. The liability of Dawborn Steels in damages (excludes special, indirect or consequential damages, including damages deemed to include loss of revenue, loss of profit and opportunity loss) in respect of any act or omission of Dawborn Steels in connection with its obligations under these Terms or any Sales Contract and will not exceed the total amount of the Pricing specified in the relevant Sales Contract, even if Dawborn Steels has been advised by the Customer as to the possibility of such losses being incurred.
Indemnity
60. The Customer indemnifies and will keep indemnified Dawborn Steels from and against all Loss suffered or incurred by Dawborn Steels, its officers, employees or any third parties arising out of or in connection with the provision of the Goods supplied by Dawborn Steels to the Customer or the Customer’s breach of the Terms or any Sales Contract.
Termination
61. If a party is in default under these Terms, the nondefaulting party may give the defaulting party written notice to rectify the default (Default Notice). If the defaulting party does not rectify the default within 14 days of receipt of a Default Notice (Default Rectification Period), the non-defaulting party may immediately terminate these Terms and any Sales Contract.
62. If this Agreement is terminated due to the default of the Customer, no Deposit or Pricing paid in advance will be refunded to the Customer.
63. Dawborn Steels may end a Sales Contract immediately on the happening of an Insolvency Event.
64. Where the Customer is still in default following the Default Rectification Period in accordance with clause 61, or suffers an Insolvency Event, (either date being a Default Date), then on the Default Date, all invoices and any moneys owing by the Customer to Dawborn Steels will become immediately due and payable and Dawborn Steels may may cease the supply of all Goods under any Sales Contract.
65. Where the Customer is in default and Dawborn Steels terminates any Agreement, on the termination date, Dawborn Steels must be paid any monies owing for any Goods ordered but not yet delivered and any other monies owing under these Terms. The parties agree, the invoice of Dawborn Steels disclosing the outstanding monies owing for Goods ordered and any other monies owing, for the purposes of this clause, is sufficient evidence those Fees and monies re owed by the Customer to Dawborn Steels.
66. Termination of these Terms and any Sales Contract does not affect any rights a party has against any other party including, without limitation, any accrued rights in respect any past breach.
GST
67. Except for terms which are defined in these Terms, capitalised expressions set out in the clauses below bear the same meaning as those expressions in the A New Tax System (Goods and Goods Tax) Act 1999.
68. Any Pricing and other monies specified in this Agreement are exclusive of GST unless stated otherwise.
69. The Customer must reimburse to Dawborn Steels any GST payable by Dawborn Steels on a taxable supply made by Dawborn Steels to the Customer.
70. A party’s right to payment under these clauses is subject to a valid Tax Invoice being delivered to the Recipient of the Taxable Supply.
71. Any amount payable under clause 69 must be without deduction or set off.
Force Majeure
72. A party will not be in default of these Terms or a Sales Contract, should a Force Majeure Event occur that prevents that party from meeting its obligations under this Agreement.
Severability
73. If any term or provision of the documents forming this Agreement are held to be invalid or unenforceable, they are to be read down so as to be valid or enforceable or, if such reading down is not possible, severed and the remaining terms will not be affected but will be valid and enforced to the fullest extent permitted by law.
Assignment
74. Dawborn Steels has the right to assign and transfer to any third party, any of its title, interest, benefit or rights, under the Terms or any Sales Contract, provided the assignee agrees to assume Dawborn Steels’ duties and obligations owed to the Customer.
75. The Customer is not to assign, or purport to assign, any of its obligations or rights under the Terms or a Sales Contract without the prior written consent of Dawborn Steels.
Rule of Construction
76. In the interpretation of this document, no rule of construction applies to the disadvantage of the party preparing this document on the basis that it put forward this document or any part of it.
Amendments
77. Other than as set out in clause 15, these Terms cannot be modified or waived except in writing and signed by the parties. Entire
Agreement
78. These Terms and any Sales Contract accepted by the Customer, contain everything the parties have agreed on in relation to the matters dealt with in those documents.
Counterparts
79. This document and any Sales Contract may be executed in any number of counterparts.
Jurisdiction
80. This Agreement is governed by the law applicable in Victoria, Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria.
Definitions
81. ACL means Competition and Consumer Act (Cth) (2010)Act
82. AUD means Australian Dollars in cleared funds.
83. Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).
84. Confidential Information means:
any information in respect of the disclosing party, whenever disclosed and whether disclosed before or after the date these Terms first , other than information that:
a. at the date of this document, was generally and publicly available, or subsequently becomes so available other than by breach of any duty or obligation owed to the disclosing party; or
b. at the time it was disclosed to the receiving party, was in the possession of the receiving party lawfully and without breach of any duty or obligation owed to the disclosing party; or
c. subsequently becomes so available from another source, not subject to any duty or obligation as to confidence, and includes any copy made or created by the receiving party or any third party on its behalf.
85. Customer means the Customer identified as the customer in the Application for Commercial Credit Account and any person or entity identified in the Terms or in the Sales Contract as the Customer.
86. Delivery Fee means the fee charged by Dawborn Steels to deliver the Goods to the Customer’s delivery address nominated on or about the time of acceptance of the Quote and includes any additional delivery fees the Customer may incur where the Customer changes the original delivery address or the Goods need to be delivered more than once.
87. Force Majeure Event means any act, circumstance or omission over which the party affected by the event could not reasonably have exercised control.
88. Goods means the goods specified in the Sales Contract set out under Specifications, Quantities and Sizing.
89. Insolvency Event means in relation to a party, any of the following events:
(a) a party assigns any of its property for the benefit of creditors or any class of them;
(b) an encumbrancee notifies a party in writing of an immediate intention to take possession, or actually takes possession, of any assets of the party or exercises any power of sale;
(c) a party ceases, suspends or threatens to cease or suspend the conduct of a majority of its business, or disposes of or threatens to dispose of its assets, except for the purposes of a solvent reconstruction or amalgamation;
(d) any security interest is enforced against a party, or the party receives notification from another party of an intention to immediately seek enforcement;
(e) a party initiates any formal process to obtain protection or is granted protection from its creditors under any applicable legislation;
(f) a resolution is passed by a party to appoint an administrator or an administrator of the party is appointed;
(g) an order is made that the party it be wound up;
(h) an order is made appointing a liquidator or a provisional liquidator to the party;
(i) a party resolves to wind itself up or otherwise dissolve itself, or gives notice of its intention to do so, except for the purposes of a solvent reconstruction or amalgamation or is otherwise wound up or dissolved;
(j) an order is made or a resolution is passed for a party to enter into any arrangement, compromise or composition with or assignment for the benefit of its creditors or any class of them, except for the purposes of a solvent reconstruction or amalgamation;
(k) a party is, or states that it is, or under applicable legislation is taken to be, unable to pay its debts when they fall due (other than as a result of a failure to pay a debt or claim the subject of a dispute in good faith) or stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
(l) a receiver, receiver and manager, administrator, controller or similar officer of any of the assets or the whole or any part of the undertaking of a party is appointed;
(m) a party is the subject of an event described in section 459C(2) of the Corporations Act 2001;
(n) a party receives service of a valid notice of demand for payment of a debt from any creditor;
(o) a party, being an individual, commits an act of bankruptcy or becomes insolvent; or any event that is analogous or having a substantially similar effect to any of the events specified in this definition.
90. Liabilities means all liabilities (whether actual, contingent or prospective), debts, Claims, losses, damages, costs, outgoings and expenses of whatever description.
91. Losses means in relation to any person, damage, loss, cost, expense or Liabilities including all legal and professional expenses incurred in connection with investigating, disputing, defending or settling any Claim or proceeding relating to any fact, matter or circumstance, incurred by the person, however arising (including contractual, tortious, legal, equitable or pursuant to statute) and whether it is present or future, fixed or unascertained, actual or contingent.
92. PPSA means the Personal Properties Securities Act 2009 (Cth) and any regulations in force at any time under the PPSA, including the Personal Property Securities Regulations 2010 (Cth), as may be amended and restated from time to time).
93. PPSR means Personal Properties Securities Register.
94. Pricing means the fees set out in any Sales Contract. Where a Sales Contract has been accepted by the Customer in writing, the fees in the Sales Contract prevail over any pricing set out in a Quote.
95. Quote means any document in writing prepared by Dawborn Steels setting out the Pricing for the Goods the Customer needs and this document may include any other terms specific to the Customer’s order of Goods.
96. Sales Contract means the Sales Contract signed by the parties or, where a Sales Contract is not signed by the Customer but the Customer has proceeded to confirm the acceptance of the Quote in writing, those written documents together will form the Sales Contract.