HASTINGS DEERING (PNG) LIMITED TERMS AND CONDITIONS OF CREDIT
These Credit Terms apply to the provision of credit by the Company in connection with Goods and Services supplied by the Company to the Applicant.
Provision of Credit
The Company may, in its absolute discretion, grant credit to the Applicant from time to time for the purpose of the purchase of Goods and Services from the Company on the terms and conditions set out in these Credit Terms and the Sales Terms.
Credit limits are as approved by the Company in its absolute discretion and the Company may vary the credit limit at any time by notice in writing to the Applicant.
These Credit Terms are subject to the Sales Terms.
If there is any inconsistency between the Credit Terms and the Sales Terms then the Credit Terms will prevail to the extent of the inconsistency.
Commercial credit The Applicant warrants and declares that the credit provided in connection with the Credit Application is to be applied wholly for business purposes and not for personal, domestic or household purposes.
Payment Terms
The Applicant must pay the Amount Outstanding to the Company within 30 days after the date of each Statement.
If payment is not made by the Applicant when due, the Company may charge interest on the Amount Outstanding which shall accrue and be calculated on a daily basis with an interest rate equal to the Overdue Rate.
Indemnity The Applicant agrees to indemnify the Company for all costs, expenses, charges, commissions, fees and disbursements incurred by the Company in the recovery of any Amount Outstanding including charges for any dishonored cheques received from the Applicant.
Notification Obligation The Applicant agrees to notify immediately the Company in writing of:
any detrimental changes to the Applicant's financial position;
any Insolvency Event in relation to the Applicant;
any change in control of the Applicant; or
any change of structure of the Applicant from the entity or natural person described in section 1 (Details of Applicant) the Credit Application.
Termination
It is a Termination Event if:
any amount payable by the Applicant to the Company is not paid when due;
the Applicant makes any false or misleading representation (whether by act or omission) in respect of the Credit Application;
the Applicant breaches or fails to comply with any term of the Credit Application;
an Insolvency Event occurs with respect to the Applicant or a guarantor of the Applicant’s indebtedness to the Company;
any guarantor of the Applicant’s indebtedness to the Company revokes its guarantee; or
a change in control of the Applicant occurs.
If a Termination Event occurs, the Company is entitled (without prejudice to any other right or remedy) at its option immediately to do any one or more of the following:
declare all amounts actually or contingently owing by the Applicant to the Company, whether or not due and payable, to be immediately due and payable;
refuse to supply Goods or Services to the Applicant;
terminate the Credit Application by noticing in writing and refuse to provide credit to the Applicant; or
repossess and remove all Goods for which title has not passed to the Applicant in accordance with clause 5.1(d) of the Sales Terms.
Disclosure of Information 7.1 Credit information
The Applicant acknowledges and agrees that the Company may give to a credit reporting agency and other commercial entities personal information about the Applicant including, to the extent permitted by law, identity particulars, the fact that the Applicant has applied for credit, the amount and type of credit and dishonored cheques.
The Applicant agrees that the Company may seek and obtain from a credit reporting agency or other commercial entities a credit report (including a consumer credit report) containing personal information about the Applicant until the credit account to which this Credit Application relates ceases to exist, in order to:
assess the Applicant's application for credit;
review the continued provision of credit to the Applicant or the credit limit, as part of regular reviews, or where the Applicant seeks to increase its credit limit, places an unusual order, or the Company otherwise has reasonable concerns that the Applicant poses an unacceptable credit risk;
assess whether to accept the Applicant's obligations under this Credit Application; or
collect overdue payments in respect of credit provided to the Applicant.
The Applicant agrees that the Company may give information to, and get information from, other credit providers and trade referees (including those named in this Credit Application) and any business which provides information about the commercial credit worthiness of persons. The Applicant acknowledges and agrees that this information can include a banker’s opinion, information about the Applicant's credit arrangements, credit reports issued by credit reporting agencies, and any information about the Applicant's creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other.
The Applicant acknowledges and agrees that the information described in clause 7.1(c) may be used for the following purposes:
to assess an application by the Applicant for credit;
to assess whether to accept the Applicant's obligations under this Credit Application;
managing defaults and potential defaults on the Applicant's obligations under this Credit Application or other credit arrangements;
to assess the Applicant's creditworthiness; and
any other purpose authorised by law.
The Company may disclose information about the Applicant (including credit reports and the information described in clause 7.1(c)) to guarantors and to prospective guarantors so they can decide whether to become guarantors. 7.2 Personal information generally (a) The Company collects personal information through means including the Credit Application, interactions with applicants and customers, public sources and third party credit reporting agencies. (b) The Company may collect, use and disclose personal information in connection with activities including providing its products and services, assessing credit applications, providing credit to the Applicant, managing its customer relationships, protecting its lawful interests, investigating and dealing with suspected fraud or unlawful activity, third party acquisitions of any interest in the Company’s business and administrative purposes including credit scoring, research, planning, service development, security and risk management. (c) The Company may disclose personal information to its related companies, the Applicant’s referees, advisers and representatives, regulatory authorities and service providers including organisations that provide archival, auditing, debt collection, banking, insurance, marketing, advertising, mailhouse, delivery, recruitment, customer contact, technology, data processing, research, investigation, utility, professional advisory (legal, accounting, financial and business consulting) and security services. (d) Some of the third parties to whom the Company may disclose personal information may be located in other countries. (e) If the Company is unable to collect the relevant personal information, it may not be able to do the things referred to in this clause 7.2, including assessing the Credit Application.
Confidentiality 8.1 Obligation of confidentiality (a) Subject to clause 8.2, the Applicant must keep secret and confidential, and must not divulge or disclose any of the Company’s Confidential Information. (b) The Applicant must take all reasonable steps to ensure that any person to whom it discloses Confidential Information under the Credit Application does not make public, or disclose, the Confidential Information. (c) If an Applicant delegates any of its authorities, powers, duties or discretions under the Credit Application to an entity or person who is not a director, officer or employee of the Applicant (Delegate), the Company may request the Applicant to procure the Delegate to enter into a confidentiality agreement with the Company prior to any of the Confidential Information being provided to the Delegate. 8.2 Exceptions Clause 8.2 does not apply where the relevant Confidential Information: (a) is public knowledge (other than as a result of a breach of the Credit Application); (b) is required by law to be disclosed, provided the Applicant has notified the Company of such requirement as soon as possible after becoming aware of such requirement; or (c) is disclosed to the Applicant’s directors, officers, employees, financial advisers, analysts and legal representatives for the purpose of exercising rights under and performing the Credit Application.
General 9.1 Assignment (a) The Company may transfer, assign, novate or sub-contract any of its rights or obligations under the Credit Application without the prior written consent of the Applicant. (b) The Applicant’s rights and obligations arising out of or under the Credit Application are not assignable by the Applicant without the Company’s prior written consent. 9.2 Further Assurances The Applicant must promptly do all further acts and execute and deliver all further documents (in form and content reasonably satisfactory to the Company) required by law or reasonably requested by the Company to give effect to these Credit Terms or any obligation under them. 9.3 Waiver (a) Waiver of any right of the Company arising from a breach of these Credit Terms by the Applicant or on the occurrence of a Termination Event must be in writing and executed by the Company. (b) A failure to exercise, a delay in exercising, or a partial exercise of, a right by the Company created under or arising from a breach of these Credit Terms or on the occurrence of a Termination Event does not result in a waiver of that right. 9.4 Relationship between the parties These Credit Terms are not intended to create a partnership, joint venture or agency relationship between the parties. 9.5 Severability (a) A provision of, or the application of a provision of, these Credit Terms which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of: (i) that provision in any other jurisdiction; or (ii) the remaining provisions in that or any other jurisdiction. (b) Where a clause in these Credit Terms is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in these Credit Terms. 9.6 Variation of Credit Terms The Company may, in its absolute discretion, vary these Credit Terms (including the withdrawal of credit) at any time by notice to the Applicant by any of the following methods: (a) by written notice to the address listed in section 1 (Details of Applicant) of the Credit Application; (b) by email notice to the email address listed in section 1 (Details of Applicant) of the Credit Application; or (c) by uploading the varied Credit Terms onto the public website of the Company (www.hastingsdeering.com.au). 9.7 Entire agreement The Credit Application replaces all previous agreements between the parties concerning its subject matter and contains the entire agreement between the parties. 9.8 Governing law and jurisdiction These Credit Terms are governed by and construed in accordance with the law of Papua New Guinea and the parties submit to the non-exclusive jurisdiction of the courts of Papua New Guinea.
Definitions 10.1 Defined Terms In these Credit Terms: Amount Outstanding means in relation to a Statement, the total amount outstanding from the Applicant to the Company as at the date of the Statement including the total amount of all invoices issued by the Company to the Applicant prior to or during the calendar month to which the Statement relates and which remain unpaid. Applicant means the person seeking credit as set out in section 1 (Details of Applicant) of the Credit Application. Company means Hastings Deering (PNG) Limited Registration Number 1-16996. Confidential Information means confidential information, trade secrets, know-how, scientific, technical, product, market or pricing information relating to the Company’s business. Credit Application means the credit application to which these Credit Terms are annexed including and incorporating these Credit Terms and the Sales Terms. Credit Terms means the terms and conditions set out in this Annexure 1 (Credit Terms), as amended from time to time. Goods means the goods, equipment, components, parts, accessories and materials supplied, or to be supplied, by the Company to the Applicant as ordered by the Applicant from the Company. Insolvency Event means where the Applicant: (a) is insolvent, bankrupt or unable to pay its debts as they fall due; (b) enters into an arrangement with its creditors; (c) takes or has instituted against it an action or proceedings whether voluntary or compulsory with the object of, or which may result in, the winding-up or bankruptcy of the Applicant; or (d) has a winding-up or bankruptcy order made against it or passes a resolution for winding-up or bankruptcy. Overdue Rate means the Bank of Papua New Guinea kina facility rate on the date the relevant amount is due for payment (or any other equivalent benchmark rate selected by the Company in its absolute discretion) plus 2%. Sales Terms means the terms and conditions set out in Annexure 2 (Sales Terms), as amended from time to time. Services means the services supplied, or to be supplied, by the Company to the Applicant as ordered by the Applicant from the Company. Statement means each statement issued by the Company to the Applicant on or around the end of a calendar month setting out the Amount Outstanding. Termination Event has the meaning set out in clause 6(a). 10.2 Interpretation Clause 15.2 (Interpretation) of the Sales Terms is incorporated into these Credit Terms as if set out in full with the necessary changes.
