ACN 619 887 464

1. Introduction

These Terms apply to every grant of credit by Loxton Irrigation Centre Pty Ltd (ACN 619 887 464) (Loxton Irrigation, we, us, or our) to a person or entity requesting such a grant (you or your) and will be incorporated by reference, deemed part of, and govern all written agreements formed in accordance with these Terms (including the Contract).

2. Formation of Contract

2.1       The completion and execution of a Credit Account Application constitutes an offer by you to acquire and use a credit account with Loxton Irrigation (Credit Account) on the Terms set out below.  You are responsible for ensuring the accuracy of the details in your Credit Account Application.

2.2       Loxton Irrigation may accept or reject your Credit Account Application in its absolute discretion.  You agree that you are not entitled to a Credit Account unless and until you receive written notice from us that we have approved your Credit Account Application.

2.3       If Loxton Irrigation approves your Credit Account Application, such approval will constitute acceptance of the offer and will create a contract between Loxton Irrigation and you (Contract).  The Contract is comprised of these Terms and the accepted Credit Account Application.

2.4       In the event of any inconsistency between these Terms and the Credit Account Application, these Terms will prevail to the extent of any inconsistency.

3. Credit Limit

3.1       Loxton Irrigation is not obliged under these Terms to extend any particular amount of credit to you.

3.2       Loxton Irrigation may, in its absolute discretion, specify a maximum amount (inclusive of GST) that may be charged to your Credit Account over a particular period (Credit Limit).  The balance of your Credit Account must not exceed the Credit Limit.

3.3       Notwithstanding any other provision in these Terms, you agree to immediately pay any amount charged to your Credit Account which exceeds the Credit Limit, whether or not demand for payment has been made by Loxton Irrigation.

3.4       Your Credit Limit is subject to review at any time by Loxton Irrigation.

3.5       On your written request, Loxton Irrigation may agree in writing to increase or decrease your Credit Limit.

3.6       If you have exceeded your Credit Limit, Loxton Irrigation is not responsible for any Claim arising from our refusal to supply you with any further Goods and/or Services on credit.

4. Purpose of Credit Account

4.1       You warrant that:

a.  you will only apply credit granted pursuant to these Terms and Conditions; and

b.  you will not apply credit granted pursuant to these Terms for any purpose deemed to be unlawful or criminal in nature (Unauthorised Use).

4.2       You indemnify Loxton Irrigation against any Claim arising from any Unauthorised Use of the Credit Account.

5. Payment terms

5.1       Any invoice provided to you by Loxton Irrigation in connection with the Contract or your Credit Account must be paid in full within 21 days from end of month of our invoice, unless otherwise agreed between the parties in writing.

5.2       In the event you do not comply with 5.1, Loxton Irrigation may (in addition to all or any of our rights and remedies under these Terms, any rule of common law, or any principles of equity and/or under any legislation) do any of the following:

a.  make all amounts in connection with your Credit Account that are outstanding immediately repayable by written demand to you;

b.  suspend or cease the supply of Goods and/or Services to you;

c.  recover or otherwise take possession of any Goods supplied to you for which you have not paid;

d.  enforce any Security Interest; or

e.  in the event any amount payable to us becomes overdue by 14 days or more, terminate or suspend the Contract.

5.3       Any tax invoice provided to you by Loxton Irrigation will be delivered to the address which is specified in your Credit Account Application or otherwise agreed between the parties in writing.

5.4       Your obligations under this clause 5 will survive termination or completion of the Contract.

6. Interest

Loxton Irrigation will charge interest at the rate of 10% per annum, charged monthly, on any amount which is overdue for more than 14 days.  Interest will be charged to your Credit Account.

7. Title

Title to any Goods supplied by Loxton Irrigation will not pass to you until we have received payment for those Goods pursuant to clause 5.1.

8. Security

8.1       We may, at any time (including prior to our approval of your Credit Account Application or during the term of the Contact) require you to provide a bank guarantee in a form and substance acceptable to us to secure your performance of the Contract.

8.2       As security for payment of all amounts payable by you and for your obligations generally under these Terms, you charge in our favour the whole of your undertaking, property and assets (including all of your interests, both legal and beneficial, in freehold and leasehold land) both current and later acquired.

8.3       In consideration of Loxton Irrigation suppling Goods and/or Service to you at your request, you:

a.  grant to Loxton Irrigation a purchase money security interest (PMSI) in all Goods and/or Services supplied by Loxton Irrigation to you from time to time as security for payment of the purchase price of those Goods and/or Services;

b.  grant to Loxton Irrigation a Security Interest in all of your present and after-acquired property and in all of your present and future rights in relation to any personal property from time to time as security for payment of any amount owed by you to Loxton Irrigation and as security for the performance by you of the obligations set out in these Terms;

c.  agree that any Goods or proceeds of sale of the Goods coming into existence after the date of these Terms will come into existence subject to the PMSI and other Security Interests granted in these Terms without the need for any further action or agreement by any party;

d.  acknowledge that you have received valuable consideration from Loxton Irrigation and agree that it is sufficient; and

e.  agree that the PMSI and other Security Interests granted in these Terms have attached to all Goods and/or Services supplied now or in the future by Loxton Irrigation to you and that the attachment of PMSI and other Security Interests have in no way been deferred or postponed.

8.4   You:

a.  agree with Loxton Irrigation that neither you nor Loxton Irrigation will disclose information of the kind specified in section 275(1) of the PPSA (except in the circumstances required by sections 275(7)(b) to (e) of the PPSA);

b.  agree that, to the extent permitted under section 115(1) of the PPSA, the following provisions of the PPSA do not apply to the Contract: sections 95, 118, 121(4), 125, 130, 132(3)(d), 135, 138B(4), 142 and 143;

c.  agree that, to the extent permitted under section 115(7) of the PPSA, the following provisions of the PPSA do not apply to the Contract: sections 127, 129(2), 129(3), 132, 134(2), 135, 136(5) and 137;

d.  acknowledge that Loxton Irrigation may, at your cost, register one or more financing statements in relation to Loxton Irrigation’s Security Interest to perfect that Security Interest and you must promptly, on request by Loxton Irrigation, execute all documents and do anything else reasonably required by Loxton Irrigation to ensure that Security Interest constitutes a perfected security interest;

e.  waive, if permitted under the PPSA, your right under section 157 of the PPSA to receive notice of any verification statement relating to the registration of any financing statement or any related financing change statement; and

f.  will not, without reasonable written notice to Loxton Irrigation, change your name or initiate any change to any documentation registered under the PPSA.

8.5       If a Security Interest becomes enforceable, Loxton Irrigation may appoint a Receiver to the Collateral and fix the renumeration of that Receiver or exercise any power exercisable by a Receiver even if a Receiver has not been appointed.

8.6       Funds received by Loxton Irrigation or by a Receiver appointed in accordance with these Terms may be applied first in payment of any costs and expenses of Loxton Irrigation or the Receiver (including remuneration) incurred pursuant to these Terms, Loxton Irrigation or the Receiver may apply different parts of the funds received to different parts of the monies owing in the absolute discretion of Loxton Irrigation or Receiver (as applicable).

8.7       Loxton Irrigation may, at any time, require you to provide additional security for performance under the Contract.  If you are a company, this may include a guarantee (in a form and substance acceptable to Loxton Irrigation) from each director and shareholder or any other person including the spouse or relative of that director or shareholder.

9. Expenses

9.1       You indemnify us from and against all costs incurred by us while recovering any overdue amounts in connection with your Credit Account.  These costs may include (without limitation) legal fees payable to a debt collection service provider.

9.2       In the event you make any payment to Loxton Irrigation using a credit card, you must promptly pay any credit card surcharge incurred by Loxton Irrigation in connection with that payment.

10. Warranties

10.1     You represent and warrant to Loxton Irrigation:

a.  all statements made, and documents provided in connection with your Credit Account Application (including in the Credit Account Application) are true and correct;

b.  all representations made by you (or which you may make) during the term of the Contract are (or will be) true and correct;

c.  you have disclosed to Loxton Irrigation all information which is relevant to your Credit Account Application and to Loxton Irrigation’s decision to grant credit to you;

d.  you have full legal power and capacity to accept these Terms and enter into a Contract;

e.  if you are a body corporate, you are duly incorporated and validly exist under the laws of your jurisdiction of incorporation;

f.  these Terms constitute legal, valid and binding obligations on you; and

g.  you are not affected by a Distress Event.

10.2     You acknowledge that Loxton Irrigation will rely on all warranties given in these Terms in considering your Credit Account Application and will continue to rely on these warranties for the duration of the Contract and in all dealings with you.

11. Changes in address and other particulars

You must provide reasonable written notice to Loxton Irrigation if there is any change to the details set out in your Credit Account Application, or any change or proposed change to your constitution, ownership, membership or control status (if applicable).  Your obligations under the Contract will continue despite any such change in particulars.  However, you acknowledge that Loxton Irrigation may require you to execute a new Credit Account Application in the event of any such change.

12. Indemnity

12.1     You indemnify Loxton Irrigation against any Claim we suffer or incur in connection with the Contract or your Credit Account, including any breach by you of the Terms.

12.2     The indemnity in the clause 12 is a continuing obligation, separate and independent from the other obligations in these Terms, and will survive the termination or completion of the Contract.

13. Termination and suspension

13.1     Either party may at any time terminate the Contract on five days’ written notice to the other party.

13.2     Loxton Irrigation may suspend or terminate the Contract immediately by written notice to you in the event of one of the following events;

a.  Loxton Irrigation was, in our reasonable opinion, induced by fraudulent misrepresentation on your part to approve your Credit Account Application;

b.  any change in your circumstances (including without limitation any changes to your constitution, ownership, membership, control status, or ability to provide security pursuant to the Terms) makes continuing the Contract undesirable or unsatisfactory in our reasonable opinion;

c.  any money payable to us under the Contract becomes overdue by fourteen days or more, or in our reasonable opinion, you will be unable to make a payment when it falls due;

d.  a Distress Event occurs;

e.  you dissolve, threaten or resolve to dissolve, or are in jeopardy of dissolving (if you are a partnership);

f.  you are otherwise in breach of these Terms, and provided that breach is capable of remedy, you have failed to remedy that breach within a reasonable period (not less than Seven Business Days) after receiving written notice from us requiring you to do so.

13.3     On termination of the Contract pursuant to these Terms, the balance of the Credit Account and any other amounts reasonably incurred by Loxton Irrigation in connection with the Contract will become immediately due and payable (less any amounts for Goods and/or Services which Loxton Irrigation has not supplied to you at the date of termination).

13.4     We will not be liable to you for any Claim you suffer because we have exercised our rights under this clause 13.

14. Limitation of liability

14.1     To the extent permitted by law, our liability to you for any Claim arising from our supply of any Goods and/or Services is limited to an amount equal to the total amount you have paid to us (or would be required to pay under clause 5 of these Terms) for those Goods and/or Services to which the Claim relates.

14.2     We are not liable for any Consequential Loss.

15. Privacy

15.1 Before, during or after the provision of credit to you, Loxton Irrigation may disclose personal information about you to a credit reporting body, including any of the following:

a.  identity particulars – name, sex, address (and previous two addresses, if applicable), date of birth, name of employer, and driver’s licence number (if applicable);

b.  the fact that you have applied for a Credit Account, and your Credit Limit;

c.  the fact that Loxton Irrigation is providing credit to you;

d.  your repayment history information;

e.  information about any previous consumer or commercial credit application, such as the type and amount of credit sought in those previous applications;

f.  any payment information that was previously notified to a credit reporting body as overdue and is no longer overdue;

g.  information relating to any court proceedings;

h.  information relating to any personal or business insolvency;

i.  details of payments which are overdue by more than 60 days, and in respect of which Loxton Irrigation has engaged a debt collection service provider;

j.  details of any serious credit infringement which you have committed (including, without limitation, any indication that you have acted fraudulently or shown an intention not to comply with your credit obligations),

k.  for the purpose of obtaining credit information or allowing that credit reporting body to create or maintain a credit information file containing information about you or for any related purpose.

15.2     Without limiting Loxton Irrigation’s rights under the other provisions of these Terms, you authorise Loxton Irrigation to collect from and disclose to:

a.  credit providers and suppliers;

b.  credit reporting bodies;

c.  your Credit References; and

d.  any business which provides information about the commercial creditworthiness of persons.

e.  any credit information about you for the purpose of:

i.  assessing your Credit Application;

ii.  exchanging information about you, including any default by you; or

iii.  assessing your creditworthiness or for any related purpose,

iv.  at any time during the term of the Contract.

15.3     You agree to provide signed written authorities addressed to your banker or other credit providers, credit bureau or mercantile agents as Loxton Irrigation requires from time to time for the purpose of our credit enquiries conducted in accordance with these Terms.

15.4     Loxton Irrigation may, but is not obliged to, disclose credit eligibility information about you to any person;

a.  who is currently a guarantor; or

b.  whom you have indicated is considering becoming a guarantor.

c.  for the purpose of that person deciding whether to act as guarantor or keeping a guarantor informed about any guarantee or for any related purpose.

15.5     Loxton Irrigation complies with the privacy policy made available on its website at https://loxtonirrigation.com.au/.

15.6     You can request a copy of Loxton Irrigation’s privacy policy (including the statement of matters that must be notified to you under the Privacy Act 1988 (Cth) (Privacy Act) and the Privacy (Credit Reporting) Code 2014 which is available on Loxton Irrigation’s website provided to you in an alternative form, such as a hard copy.

15.7     Loxton Irrigation is not likely to disclose personal information (including credit information or credit eligibility information) to overseas recipients that do not have an “Australian link”, as that term is defined in the Privacy Act.

16. Notice

Unless otherwise agreed in writing between the parties, notices served under the Contract must be delivered by post or by email as follows:

16.1     in respect of notices delivered to you – to that address or email address specified in your Credit Account Application; and

16.2     in respect of notices delivered to Loxton Irrigation – to PO Box 755, LOXTON SA 5333 or by email to rjames@loxtonirrigation.com.au.

17        General

17.1     Variation:  These Terms may only be amended with our consent in writing.  We reserve the right to amend these Terms at any time by publishing amended Terms on our website https://loxtonirrigation.com.au.  We will notify you if amended Terms are published on our website.

17.2     Assignment:

a.  You may only assign your rights and obligations under these Terms with the written consent of Loxton Irrigation (which must not be unreasonably withheld).

b.  Loxton Irrigation may assign its rights and obligations under these Terms at any time by written notice to you.

17.3     Set-off:  Loxton Irrigation may, from any amounts which are due from us to you, deduct any amount which is due from you to Loxton Irrigation.

17.4     Intellectual Property Rights:  You agree that:

a.  we retain ownership of our Intellectual Property Rights; and

b.  you will not do anything which may infringe on our Intellectual Property Rights.

17.5     Waiver:  Our failure to enforce any of these Terms will not be treated as a waiver of that Term unless that waiver is in writing.

17.6     Severance:  A provision in these Terms must be read down to the extent necessary to be valid.  If it cannot be read down to that extent, it must be severed.

17.7     Governing law:  These Terms, and any Contract formed under these Terms, are governed by the law of South Australia and the parties submit to the non-exclusive jurisdiction of the courts of South Australia.

18. Interpretation

In these Terms, unless the context requires otherwise:  headings do not affect interpretation; singular includes plural and plural includes singular; reference to a person includes body corporate, partnership, association and any other entity; a reference to a party is to a party bound by these Terms and includes the party’s successors and permitted assigns and substitutes; a provision must not be construed against a party only because that party prepared it; the meaning of general words or provisions shall not be limited by references to specific matters that follow them (for example, those matters introduced by words such as “including”) or precede them or are included elsewhere in these Terms; legislation or a provision of legislation includes all regulations, orders or instruments issued under that legislation or provision and any modification, consolidation, amendment, re-enactment, replacement or codification of it; and writing includes communication by electronic mail.

19. Definitions

In these Terms, unless otherwise defined:

19.1     “Business Day” means any day except a Saturday or a Sunday or other public holiday in South Australia;

19.2     “Claim” means any claim, cost, damages, debt, expense, tax, liability, loss, allegation, suit, action, demand, cause of action, proceeding or judgment of any kind;

19.3     “Collateral” means any property over which you have granted Loxton Irrigation a Security Interest;

19.4     “Consequential Loss” means any indirect, economic, special or consequential loss or damage (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, opportunity, goodwill or use) or any remote, abnormal or unforeseeable loss, whether arising in contract, tort (including negligence) or equity or under statute;

19.5     “Credit Account Application” means an application for a credit account substantially in the form of the enclosed application, or otherwise in a form approved by Loxton Irrigation;

19.6     “Credit References” means those credit references listed in your Credit Account Application;

19.7     “Distress Event” means the happening of any of the following events in relation to a person:

a.  where the person is a body corporate:

i.  the body corporate becomes a Chapter 5 body corporate under the Corporations Act 2001 (Cth) (Corporations Act);

ii.  a controller, administrator, receiver, provisional liquidator, trustee for creditors in bankruptcy or analogous person is appointed to the body corporate or any of the body corporate’s property;

iii.   any steps are taken (including, without limitation, the making or passing of an application, order or resolution) with respect to the appointment of a liquidator or provisional liquidator for the winding up of the body corporate (unless those steps are stayed, withdrawn or dismissed within 15 Business Days);

iv. the body corporate is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act;

v. the body corporate is or becomes, or its directors state that it is, or has become, unable to pay its debts as and when they become due and payable;

vi.  the body corporate is presumed to be insolvent under the Corporations Act;

vii.  any steps are taken to deregister the body corporate under the Corporations Act (except where the steps taken are reversed or abandoned within 10 Business Days); or

viii. the body corporate ceases or threatens to cease to carry on its business or any major part of its business;

b.  where the person is a natural person:

i.  the person authorises a registered trustee or solicitor to call a meeting of his or her creditors or proposes or enters into a deed of assignment or deed of arrangement or a composition with any of his or her creditors;

ii.  a person holding a Security Interest in assets of the person enters into possession of or takes control of any of those assets or takes any steps to enter into possession of or take control of any of those assets;

iii.   the person commits an act of bankruptcy;

iv.  the person has a bankruptcy notice issued against them;

v.  a receiver or trustee for creditors or in bankruptcy is appointed to any of the person’s property;

vi.  the person becomes an “insolvent under administration” within the meaning of the Corporations Act;

vii.  the person dies, is imprisoned or becomes incapable of managing his or her own affairs; or

viii. anything analogous to having a substantially similar effect to any of the above events

19.8     “Goods” means (without limitation) any goods, products, equipment, components and other materials supplied by Loxton Irrigation;

19.9     “Intellectual Property Rights” means any patents, trade marks, service rights, rights in design, trade names, know-how, domain names, business names, systems, confidential information, trade secrets and copyright (including future copyright), in each case whether registered or not, and any applications for registration of same which exists prior to, during and after Loxton Irrigation providing any Goods and/or Services;

19.10   “PPSA’ means the Personal Property Security Act 2009 (Cth);

19.11   “Receiver” means any receiver, manager, liquidator (provisional or otherwise), administrator or similar person;

19.12   “Security Interest” means:

a.  any security interest under the PPSA;

b.  any mortgage, charge, pledge, hypothecation, lien, retention of title arrangement, set-off arrangement or other arrangement having the same or equivalent commercial effect as a grant of security; or

c.  any agreement to create or give rise to any interest or arrangement of the type referred to in paragraphs (a) or (b);

19.13   “Services” means all services provided by Loxton Irrigation, including (without limitation) any installation services provided by Loxton Irrigation in respect of the Goods, and any other services incidental to the supply of those Goods; and

19.14   “Terms” means the credit account terms and conditions set out above, as amended from time to time.