Thank you for applying for a credit account with Metcash Trading Limited.
This online application service has been provided so we can process your application as quickly as possible.
To complete your application, we will ask for the following information to be provided:
Attachments that might be required:
If you require any assistance with your application, please contact the relevant accounts department:
CreditorWatch is a provider of credit reporting services.
The Service involves the storage of Data about a company or individual. That Data can include personal information. “Personal information” is information about an identifiable individual, and may include information such as the individual’s name, email address, telephone number, bank account details, taxation details, and accounting and financial information.
CreditorWatch may collect personal information directly from You when You:
You can always choose not to provide Your personal information to CreditorWatch, but it may mean that we are unable to provide You with the Service.
Through Your use of the Service, CreditorWatch may also collect information from You about someone else. If You provide CreditorWatch with personal information about someone else, You must ensure that You are authorised to disclose that information to CreditorWatch and that, without CreditorWatch taking any further steps required by applicable data protection or privacy laws, CreditorWatch may collect, use and disclose such information for the purposes described in this Policy.
This means that You must take reasonable steps to ensure the individual concerned is aware of and/or consents to the various matters detailed in this Policy, including the fact that their personal information is being collected, the purposes for which that information is being collected, the intended recipients of that information, the individual’s right to obtain access to that information, CreditorWatch’s identity, and how to contact CreditorWatch.
Where requested to do so by CreditorWatch, You must also assist CreditorWatch with any requests by the individual to access or update the personal information You have collected from them and entered into the Service.
CreditorWatch collects Your personal information so that we can provide You with the Service and any related services You may request. In doing so, CreditorWatch may use the personal information we have collected from You for purposes related to the Services including to:
By using the Service, You consent to Your personal information being collected, held and used in this way and for any other use You authorise. CreditorWatch will only use Your personal information for the purposes described in this Policy or with Your express permission.
It is Your responsibility to keep Your password to the Service safe. You should notify us as soon as possible if You become aware of any misuse of Your password, and immediately change your password within the Service or via the forgot password process.
By using the Service, You agree that CreditorWatch can access, aggregate and use non-personally identifiable data CreditorWatch has collected from You. This data will in no way identify You or any other individual.
CreditorWatch may use this aggregated non-personally identifiable data to:
All Data, including personal and non-personal information, that is entered into the Service by You, or automatically imported on Your instruction, is transferred to CreditorWatch’s servers as a function of transmission across the Internet. By using the Service, You consent to Your personal information being transferred to our servers as set out in this Policy.
Currently our servers are located in Australia, primarily by Global Switch Pty Ltd. (Global Switch), and Your personal information will be routed through, and stored on, those servers as part of the Service. Global Switch complies with relevant aspects of the U.S.-EU Safe Harbor Framework and has certified that it adheres to relevant Safe Harbor Privacy Principles. If the location of our servers change in the future, we will update this Policy. You should review our Policy regularly to keep informed of any updates.
By providing Your personal information to CreditorWatch, You consent to CreditorWatch storing Your personal information on servers hosted in Australia. While Your personal information will be stored on servers located in the Australia, it will remain within CreditorWatch’s effective control at all times. The server host’s role is limited to providing a hosting and storage service to CreditorWatch, and we’ve taken steps to ensure that our server hosts do not have access to, and use the necessary level of protection for, Your personal information.
CreditorWatch is committed to protecting the security of Your personal information and we take all reasonable precautions to protect it from unauthorised access, modification or disclosure. Your personal information is stored on secure servers that have SSL Certificates issued by leading certificate authorities Symantec Corporation, and all Data transferred between You and the Service is encrypted.
However, the Internet is not in itself a secure environment and we cannot give an absolute assurance that Your information will be secure at all times. Transmission of personal information over the Internet is at Your own risk and You should only enter, or instruct the entering of, personal information to the Service within a secure environment.
We will advise You at the first reasonable opportunity upon discovering or being advised of a security breach where Your personal information is lost, stolen, accessed, used, disclosed, copied, modified, or disposed of by any unauthorised persons or in any unauthorised manner.
CreditorWatch will only disclose the personal information You have provided to us to entities outside the CreditorWatch group of companies if it is necessary and appropriate to facilitate the purpose for which Your personal information was collected pursuant to this Policy, including the provision of the Service.
CreditorWatch will not otherwise disclose Your personal information to a third party unless You have provided Your express consent. However, You should be aware that CreditorWatch may be required to disclose Your personal information without Your consent in order to comply with any court orders, subpoenas, or other legal process or investigation including by tax authorities, if such disclosure is required by law. Where possible and appropriate, we will notify You if we are required by law to disclose Your personal information.
The third parties who host our servers do not control, and are not permitted to access or use Your personal information except for the limited purpose of storing the information. This means that, for the purposes of Australian privacy legislation and Australian users of the Service, CreditorWatch does not currently “disclose” personal information to third parties located overseas.
If you choose to pay for the Service by credit card, Your credit card details are not stored by the Service and cannot be accessed by CreditorWatch staff. Your credit card details are encrypted and securely stored by Data Vault provided by Commonwealth Bank Of Australia to enable CreditorWatch to automatically bill your credit card on a recurring basis. You should review Data Vault by Commonwealth Bank of Australia to ensure you are happy with it.
It is Your responsibility to ensure that the personal information You provide to us is accurate, complete and up-to-date. You may request access to the information we hold about You, or request that we update or correct any personal information we hold about You, by setting out Your request in writing and sending it to us at firstname.lastname@example.org
CreditorWatch will process Your request as soon as reasonably practicable, provided we are not otherwise prevented from doing so on legal grounds. If we are unable to meet Your request, we will let you know why. For example, it may be necessary for us to deny Your request if it would have an unreasonable impact on the privacy or affairs of other individuals, or if it is not reasonable and practicable for us to process Your request in the manner You have requested. In some circumstances, it may be necessary for us to seek to arrange access to Your personal information through a mutually agreed intermediary (for example, the Subscriber).
We’ll only keep Your personal information for as long as we require it for the purposes of providing You with the Service. However, we may also be required to keep some of Your personal information for specified periods of time, for example under certain laws relating to corporations, money laundering, and financial reporting legislation.
In providing the Service, CreditorWatch utilises "cookies". A cookie is a small text file that is stored on Your computer for record-keeping purposes. A cookie does not identify You personally or contain any other information about You but it does identify Your computer.
We and some of our affiliates and third-party service providers may use a combination of “persistent cookies” (cookies that remain on Your hard drive for an extended period of time) and “session ID cookies” (cookies that expire when You close Your browser) on the Website to, for example, track overall site usage, and track and report on Your use and interaction with ad impressions and ad services.
You can set your browser to notify You when You receive a cookie so that You will have an opportunity to either accept or reject it in each instance. However, You should note that refusing cookies may have a negative impact on the functionality and usability of the Website.
We do not respond to or honour “Do Not Track” requests at this time.
CreditorWatch sends billing information, product information, Service updates and Service notifications to You via email. Our emails will contain clear and obvious instructions describing how You can choose to be removed from any mailing list not essential to the Service. CreditorWatch will remove You at Your request.
If You wish to complain about how we have handled Your personal information, please provide our Privacy Officer with full details of Your complaint and any supporting documentation:
Our Privacy Officer will endeavour to:
CreditorWatch reserves the right to change this Policy at any time, and any amended Policy is effective upon posting to this Website. CreditorWatch will make every effort to communicate any significant changes to You via email or notification via the Service. Your continued use of the Service will be deemed acceptance of any amended Policy.
Where we refer to the ‘Privacy Act’ in this Policy we mean, if you are located in Australia, the Privacy Act 1988 (Cth) and if you are located in New Zealand, the Privacy Act 1993 (NZ).
TYPES OF PERSONAL INFORMATION COLLECTED
The types of personal information collected and held by Metcash will vary depending on your dealings with us.
This information may include any or all of the following:
We will also collect your date of birth and driver’s licence number where required (for example, to comply with age restrictions or in order to verify your identity when applying for credit terms, etc).
Metcash will not collect sensitive information from you or any third party.
You do not have to provide us with any personal information, however if you do not do so we may not be able to complete a transaction you have entered into, finalise payment of a product or service you have ordered, make delivery of a product you have ordered, grant credit terms, validate your entry in a promotion, or otherwise provide you with the products, services or benefits you have requested.
HOW METCASH COLLECTS PERSONAL INFORMATION
Generally, Metcash collects personal information directly from you, such as:
Metcash will collect personal information through:
WHY METCASH COLLECTS, USES AND DISCLOSES PERSONAL INFORMATION
Metcash will collect personal information for the following purposes:
Metcash may also disclose your personal information to third parties who work with us in our business to provide, promote or improve the products or services you have requested or are interested in, such as:
Metcash will also use and disclose your personal information to send direct marketing to you from:
The direct marketing may relate to:
You may opt-out of receiving this direct marketing from Metcash or third parties through the unsubscribe function that will be made available to you with each direct marketing communication.
HOW METCASH STORES AND PROTECTS PERSONAL INFORMATION
Metcash stores personal information in a combination of computer storage facilities, paper-based files and other records. In so doing, we have taken numerous steps to protect your personal information from misuse, interference and loss, and unauthorised access, modification or disclosure.
Additionally Metcash takes reasonable steps to destroy or permanently de-identify personal information when we no longer need it.
The internet is not a secure method of transmitting information. Accordingly, other than where Metcash uses secure socket layer technology (SSL) to ensure information (such as credit card information) is securely transmitted and processed, Metcash cannot and does not accept responsibility for the security of information you send to or receive from us over the internet, or for any unauthorised access or use of that information.
DOES METCASH SEND PERSONAL INFORMATION OVERSEAS?
Metcash is likely to disclose some of your personal information, for the purposes described above, to organisations in other countries, including the United States of America.
HOW YOU CAN ACCESS YOUR PERSONAL INFORMATION
Metcash will take reasonable steps to make sure that the personal information we collect, use or disclose is accurate, complete and up to date. If your personal details change, such as your address or phone number, please contact our Privacy Officer by email or at the address detailed below.
At your request, Metcash will provide you with a copy of any personal information which we hold about you, unless an exception under the Privacy Act applies. We may charge a fee for retrieving this information, in which case we will inform you of the fee and obtain your agreement to that fee before providing the information.
We will promptly acknowledge and investigate any complaint about the way we manage personal information.
Information is also generated whenever a page is accessed on a Metcash website that records information such as the time, date and specific page. We collect such information for statistical and maintenance purposes that enables us to continually evaluate our website performance.
HOW TO CONTACT METCASH OR MAKE A COMPLAINT
THE PRIVACY OFFICER
1 Thomas Holt Drive
Macquarie Park NSW 2113
Fax: (02) 9741 3027
Metcash will take reasonable steps to remedy any issues resulting from our failure to comply with our privacy obligations.
Metcash may update this CRDM Policy from time to time. The most current version will be located on the Metcash website at http://www.metcash.com/footer/privacy-policy and is also available by contacting our National Credit Manager by email or at the address detailed below.
Types of Credit Information that Metcash collects and holds
The Privacy Act permits Metcash to collect and hold certain types of information.
The information Metcash collects includes:
• Identifying details such as your name, birth date, drivers licence number, address(es), telephone number(s) and other contact details.
• The type of credit offered and the terms of such credit (including when it was entered into, repayment, maximum amount of credit available and when it ceases).
• Any applicable repayment history.
• The type and amount of credit sought in an application to Metcash (or that you have offered to act as guarantor(s) in respect of the Trading Account arrangement).
• Payments of $150 or more which become more than 60 days overdue.
• Advice that payments are no longer overdue.
• Whether credit terms or conditions have been varied, or new credit provided.
• Personal information (other than sensitive information) that has a credit-worthiness bearing and that we have used or may use in establishing credit eligibility.
• That in the opinion of Metcash you have committed a serious credit infringement in relation to consumer credit provided to you.
• That the credit provided to you by Metcash has been discharged.
• Any court judgment that relates to any credit that has been provided to, or applied for by, you.
• Any personal insolvency information about you (as defined in the Privacy Act).
• Publicly available information about you that relates to your activities in the country in which you reside and your creditworthiness.
The Privacy Act uses a variety of terms to refer to such information, however in this CRDM Policy we refer to it collectively as Credit Information.
Why Metcash collects, holds, uses and discloses your Credit Information
Metcash may collect, hold, use and disclose your Credit Information to:
• Assess an application for credit (by you, an entity associated by you, or as a guarantor).
• Verify your identity.
• Derive scores, ratings, summaries and evaluations relating to your credit worthiness.
• Manage credit we may provide (including in relation to specific offers).
• Participate in the credit reporting system and provide information to credit reporting bodies/credit reference agencies as permitted by the Privacy Act and the CR Code.
• Assist you to avoid defaulting on your credit-related obligations.
• A guarantor or someone you have indicated is a prospective guarantor.
• Collect overdue payments, undertake enforcement activities and deal with serious credit infringements (including in relation to guarantors).
• Exchanging information with credit providers which is permitted under the Privacy Act, including default information.
• Conduct fraud assessments.
• Manage our relationship with you and our internal processes and procedures.
• Assess whether to insure, or assess a risk of default, including in relation to trade insurers.
• Deal with complaints.
• Meet legal and regulatory requirements.
(Some Credit Information may be used or disclosed under the Privacy Act for some of these purposes, or in specific circumstances only).
How Metcash obtains Credit Information
• credit reporting information about you from Veda, Creditor Watch, CreditWorks and Dun & Bradstreet (our Credit Reporting Bodies/Credit Reference Agencies).
• information about your commercial creditworthiness from businesses which provides information about commercial creditworthiness.
• Identifying details such as your name, birth date, drivers licence number, address(es), telephone number(s) from information that you provide to us (including your completed Application for Trading Account) or that is provided by third parties acting on your behalf.
Use of Trade Insurers
In relation to an application by your business for commercial credit, Metcash may ask a trade insurer to obtain credit reporting information about you for the purposes of assessing whether to insure or the risk of insuring Metcash or assessing the risk of default by your business and/or you in your capacity as Guarantor on the commercial Credit Application.
Other Uses of Credit Information
Credit Information obtained by Metcash may be used for credit related purposes and to notify Metcash’s successor and assigns, financiers and/or any assignees or any lender to an assignee of Metcash’s interests in any amount(s) payable arising under the Trading Terms between you or your business and Metcash from time to time.
How Metcash stores and protects personal information
Metcash stores personal credit information and credit eligibility information in a combination of computer storage facilities, paper-based files and other records. In so doing, we have taken numerous steps to protect your personal information from misuse, interference and loss, and unauthorised access, modification or disclosure.
Additionally Metcash takes reasonable steps to destroy or permanently de-identify personal information when we no longer need it and in accordance with the Privacy Act. The internet is not a secure method of transmitting information. Accordingly, other than where Metcash uses secure socket layer technology (SSL) to ensure information (such as credit card information) is securely transmitted and processed, Metcash cannot and does not accept responsibility for the security of information you send to or receive from us over the internet, or for any unauthorised access or use of that information.
How you can access your Credit Information
Metcash will take reasonable steps to make sure that the Credit Information we collect, use or disclose is accurate, complete and up to date. If your personal details change, such as your address or phone number, please contact our National Credit Manager by email or at the address detailed below.
At your request to the National Credit Manager, Metcash will provide you with a copy of any Credit Information which we hold about you, unless an exception under the Privacy Act applies. We may charge a fee for retrieving this information, in which case we will inform you of the fee and obtain your agreement to that fee before providing the information.
In accordance with the Privacy Act, Metcash will:
• Upon request, provide access to credit eligibility information within a reasonable timeframe.
• If access is refused and:
o you are a Customer in Australia, Metcash will provide you with the contact details for the Office of the Australian Information Commissioner (OAIC) to enable you to escalate your request; or
o you are a Customer in New Zealand, Metcash will provide you with the contact details for the Office of the Privacy Commissioner (OPC) to enable you to escalate your request.
How you can request the correction of your Credit Information
If you have accessed your Credit Information from Metcash or our Credit Reporting Bodies/Credit Reference Agencies and believe that it is not accurate, up to date, complete, irrelevant, or misleading, then you can request our National Credit Manager or Credit Reporting Bodies/Credit Reference Agencies to correct it.
Metcash will comply with the Privacy Act in relation to any request for the correction of your Credit Information.
In the course of the investigation process, we may consult with and disclose information to our Credit Reporting Bodies/Credit Reference Agencies and/or other Credit Providers. If our investigations reveal that your Credit Information does not require correction then we will advise you of this in writing and provide you with the contact details for the appropriate organisations to enable you to escalate your request.
How your Credit Information may impact your Application for a Trading Account
Metcash may refuse an Application for a Trading Account based wholly or partly on your Credit Information.
Metcash will comply with the Privacy Act in relation to any refusal for an Application for a Trading Account.
How to make a complaint
If you believe that Metcash or our Credit Reporting Bodies/Credit Reference Agencies has breached the CR Code or the Privacy Act or not taken reasonable steps to destroy Credit Information which is no longer relevant or required then you may complain using the contact details listed at the bottom of this document.
Metcash will deal with any complaints in accordance with the Privacy Act. In the course of investigating your complaint, Metcash may consult with and disclose information to our Credit Reporting Bodies/Credit Reference Agencies and/or other Credit Providers. If you are not satisfied with our response to your complaint then we will provide you with the contact details for the appropriate organizations to enable you to escalate your complaint
Metcash is committed to ensuring that we promptly acknowledge and investigate any complaint about the way we manage your credit Information.
How to contact the Credit Reporting Bodies/Credit Reference Agencies
You may contact our Credit Reporting Bodies/Credit Reference Agencies by using the following information. If you have any questions regarding your publicly held personal credit file then please contact Veda and Dun & Bradstreet as follows:-
NB Veda is the primary Credit Reporting Body/Credit Reference Agency used by Metcash
Creditor Watch Pty Ltd
1300 50 13 12
Dun & Bradstreet
D&B Public Access Centre:
Email PACAustral@dnb.com.au or call: 1300 734 806
CreditWorks Data Solutions Limited
Level 1, 1 Ngaire Avenue
P O Box 74 357
Ph 09 520 0626
How to contact Metcash
If you have any questions about this CRDM Policy, if you wish to update or correct information we hold about you or if you wish to make a complaint about our collection, use, management or disclosure of your personal information under this CRDM Policy then please, in the first instance, contact:
The National Credit Manager
Metcash Trading Limited
PO Box 557
Fax: (02) 9741 3430
Last updated June 2016
METCASH TRADING LIMITED (ABN 61 000 031 569) and each related body corporate from time to time (as defined in the Corporations Act 2001) of 1 Thomas Holt Drive, Macquarie Park NSW 2113 (individually and together called “Metcash”)
1. Application of terms
1.1 The terms of this Agreement apply in every case where Metcash provides goods or services of any kind (“Goods”) to the customer (as referred to in the Application for Trading Account or if there is no application, the customer placing the order, or on whose behalf the order is placed) (“Customer”) on the Customer’s trading account (“Trading Account”), unless otherwise agreed in writing between Metcash and the Customer. Acceptance of Goods by the Customer is conclusive evidence before any court that this Agreement (and any variation) applies and is binding on it and the guarantors (as referred to in the Application for Trading Account) (“Guarantors”).
1.2 In the event of, and to the extent of, any inconsistency between this Agreement and the terms of any purchase order for the provision of Goods, this Agreement prevails.
1.3 This Agreement comprises the Application for Trading Account, the Acknowledgement and Authority pursuant to the Privacy Act 1988 and these Trading Terms, as amended from time to time.
2.1 Metcash may, in its absolute discretion:
(a) grant, sell or supply any Goods to the Customer, as requested by the Customer from time to time, on credit;
(b) provide, in association with any other credit provider(s) from time to time, credit card access or facilities to the Customer for a range of Goods, on and subject to the terms and conditions of this Agreement and debit to the Customer’s Trading Account the relevant price stated or the amount charged in respect of the Goods, together with a service fee for each transaction in an amount or at a rate as notified by Metcash to the Customer from time to time;
(c) debit the Trading Account with the price stated or the amount charged or the Amount(s) Payable (as defined in clause 3) in any invoice or statement in respect of the Goods, and if no price is stated, then Metcash’s normal selling price for the Goods as notified by Metcash to the Customer from time to time;
(d) issue a statement at any time showing the debit or credit balance of the Trading Account at the date shown on the statement (“Statement”); and
(e) terminate the Trading Account by notice in writing to the Customer accompanied by a Statement showing the final balance of the Trading Account (“Final Statement”).
2.2 Metcash’s agreement to open the Trading Account does not entitle the Customer, at any time, to credit or any particular amount of credit.
3. Payment of Accounts
3.1 The Customer must, without demand from Metcash, pay the whole amount of any debit balance shown on a Statement (“Amount(s) Payable”) on or before the due date shown on the Statement (which unless otherwise stated is seven (7) days from the date of the Statement) (“Due Date”); where Statement a “Final Statement”, on or before the due date shown on the Final Statement (“Final Due Date”). This clause does not affect the obligation of the Customer to pay the entire Amount Payable prior to a Due Date or the Final Due Date where required under any other provision of the Agreement.
3.2 By setting the Due Date on a particular Statement:
(a) Metcash does not represent that the Due Date will be the same number of days from the date of the Statement in future Statements; and
(b) Metcash does not limit its right to vary the number of days between the date of a Statement and the Due Date from one Statement to another.
3.3 In this Agreement, “Amount(s) Payable” includes:
(a) all amounts debited to the Trading Account for Goods supplied pursuant to this Agreement, now and in the future;
(b) all money now and in the future owing or payable to Metcash by the Customer, either alone or jointly with another person, whether directly or indirectly or contingently under this Agreement or on any other account whatsoever, and including all such money arising from:
(1) any guarantee, deed, indemnity, account, document or other agreement in writing between Metcash and the Customer and/or any Guarantor (as referred to in the Application for Trading Account);
(2) any service fee or accounting administration fee or any other charge, cost or expense payable by the Customer to Metcash under this Agreement;
(3) all costs (including legal costs on a full indemnity basis and expenses), expenses or losses incurred or sustained by Metcash in relation to any failure by the Customer and/or Guarantor to comply with the terms and conditions of this Agreement;
(4) interest on any judgment entered by Metcash against the Customer in respect of the Amount(s) Payable; and
(5) all advances, further advances, loans, credits or financial accommodation (whether given on, before or after the date of this Agreement) by Metcash, to, for or on account of or at the request of the Customer and/or any Guarantor;
(c) any tax, duty, charge or other impost or levy made at any time by any local, state or Commonwealth government in connection with the Goods or this Agreement; and
(d) all amounts owing in accordance with clause 10.1(if applicable).
4. Changes to Trading Account
Metcash may at any time, in its absolute discretion, without notice and without assigning any reason:
4.1 set, change or limit credit in relation to the Trading Account;
4.2 refuse to open a Trading Account, close the Trading Account and/or refuse to extend credit to the Customer on any account;
4.3 All subsequent trading between Metcash and the Customer will revert to a cash purchase or a cleared funds basis until Metcash, in its absolute discretion, reinstates the provision of credit to the Customer; and
4.4 set, change, vary or discontinue any credit card access or facilities as described in clause 2.1(b).
5. Payments by the Customer
5.1 Metcash may appropriate any moneys paid to it by the Customer in such manner and at such times as Metcash, in its absolute discretion, determines.
5.2 The amount stated in a certificate signed by Metcash’s duly authorised representative or solicitor as being due and payable by the Customer to Metcash under this Agreement is prima facie evidence that such amount is owing.
5.3 Amounts payable by the Customer under this Agreement must be paid without deduction, retention or set-off of any kind and for any reason.
5.4 If an event listed in clauses 16.1(a) – 16.1(i)
5.5 (inclusive) occurs, Metcash may, at its discretion, apply a credit balance in any of the Customer’s Trading Accounts towards satisfaction of a debit balance in any of the Customer’s other Trading Accounts.
5.6 Payment by cheque or other negotiable instrument is not deemed to be payment of any moneys payable until the cheque or other negotiable instrument is met on first presentation for payment.
6. Retention of Title
6.1 Title to all Goods purchased by the Customer whilst the Trading Account has a debit balance (“Bailed Goods”) remains with Metcash.
6.2 The Customer must hold all Bailed Goods in the possession of the Customer as fiduciary and bailee for Metcash.
6.3 The Customer is authorised to sell the Bailed Goods in the ordinary course of its ordinary business, but only until:
(a) notified in writing to the contrary by Metcash; or
(b) the occurrence of an event listed in clauses 16.1(a) – 16.1(i) (inclusive).
6.4 The Customer grants to Metcash (under clause 6.1) a purchase money security interest, as defined in the Personal Property Securities Act 2009 (“PPSA”) in the Bailed Goods and any proceeds of sale of the Bailed Goods (“PMSI”) to secure the purchase price of the Bailed Goods.
6.5 The costs of registering a financing statement will be paid by the Customer and may be debited against the Customer’s Trading Account.
6.6 The Customer agrees not to do or permit anything to be done that may result in the PMSI granted to Metcash ranking in priority behind any other security interest (as defined in the PPSA).
6.7 The Customer will take such further steps (including obtaining consents, supplying information, signing forms or executing documents) which may be required by Metcash to take further or better security under the PPSA in respect of the Bailed Goods and proceeds of sale of the Bailed Goods or to maintain the effectiveness or priority of any security interest under the PPSA.
7. Risk in Goods and Customer Obligations
7.1 All Goods purchased by the Customer are at the risk of the Customer from the time the Goods are delivered to the Customer or its nominated agent. Delivery is deemed to occur when the Goods are delivered to the carrier, whether Metcash arranges, procures or effects the transport of the Goods at the request of the Customer or otherwise. The Customer must insure the Goods (with Metcash’s interest noted on the policy) from the date of delivery until title passes to the Customer or the Goods are sold in accordance with clause 6.
7.2 The Customer must inspect all Goods delivered to the Customer or its nominated agent within 24 hours (or such other time period for perishable, dry, security or other Goods as notified by Metcash from time to time) of delivery to the relevant Premises (“Inspection Period”) in order to ensure that Goods delivered are as ordered by the Customer and are not delivered in a damaged state. The Customer must notify Metcash within the Inspection Period if Goods are found to be other than as ordered by the Customer or have been delivered in a damaged state.
7.3 Subject to clause 9.1(e), if the Customer has not notified Metcash within the Inspection Period that Goods delivered were not as ordered by the Customer, or that Goods were delivered in a damaged state, then the Goods will be deemed to have been delivered in good condition and as ordered by the Customer.
7.4 Goods supplied by Metcash are resold by the Customer in the same consequential order as the Goods have been supplied by Metcash. All Goods of the same type as the Bailed Goods will be deemed to have been supplied by Metcash unless the Customer proves to the contrary at the time Metcash claims to be entitled to possession of such Goods.
7.5 The Customer must sell the Goods in the original packaging supplied by Metcash. The Customer must not alter or interfere in any way with the Goods or remove any labelling or instructions provided with the Goods.
7.6 The Customer must not make any representation or give any warranty in relation to the Goods not expressly authorised by Metcash in writing.
7.7 To the extent permitted by law, if the Customer is in breach of this Agreement, Metcash may (without prejudice to any other rights) repossess the Bailed Goods and the Customer licences Metcash and its employees and agents to enter its premises at any time without notice for such purpose, with all related costs of Metcash to be paid by the Customer on demand.
7.8 The Customer indemnifies Metcash and each of Metcash’s officers, employees and agents in respect of all loss, damages and expenses relating to, or arising out of a breach of clause 7.5 or clause 7.6.
8. Data and Information
8.1 Metcash may provide data to the Customer’s retail outlet(s). This data can take many forms including:
(a) Full initial load data;
(b) Weekly data updates;
(c) Weekly promotional data files; and
(d) Monthly or bi-monthly promotional files.
The data includes but is not limited to: Product codes; Global trade identification number (GTIN – previously referred to as APN); Descriptions; Size; Pack quantity; Cost price; Retail price; Promotional start and end dates; tax rates and numerous other flags.
8.2 Subject only to clause 8.3 Metcash has no liability for data provided by it to the Customer.
8.3 Where Metcash has charged an incorrect price for Goods, Metcash will correct the data as soon as it becomes aware of the error and will credit or debit (as applicable) to the Customer, the difference between the invoice price and the correct price. The Customer must, in addition to its other obligations under this Agreement, take steps to mitigate any loss it may suffer as a result of Metcash’s error.
8.4 The Customer bears responsibility for the normal retail price and promotional pricing generated by their POS system and the overall running of that system. The Customer warrants and represents that it is relying upon its own skill and judgment in relation to the actioning of the data in its retail store.
8.5 The Customer acknowledges and agrees that all trading information as between the Customer and Metcash belongs to Metcash at all times and that the Application for Trading Account and Trading Terms are confidential information and may not be disclosed to any third party without the prior written consent of Metcash.
8.6 Metcash agrees to take reasonable steps to prevent the disclosure of a Customer’s trading information to a competitor of the Customer.
9.1 The Goods are deemed to be defective if any Goods:
(a) are not of merchantable quality;
(b) are not fit for any purpose for which they are acquired by Customer;
(c) do not conform to any sample, specification or other description given to Metcash by the Customer in relation to the Goods;
(d) being in the nature of services, are not of a reasonable standard, quality, value or grade; or
(e) do not comply with any consumer guarantee or implied warranty applicable to the supply of the Goods which cannot be excluded (including pursuant to the Competition and Consumer Act 2010 (“CCA”)).
9.2 Where Goods are defective (as defined in clause 9.1) Metcash may, at its option, elect to:
(a) replace the Goods; or
(b) repair the Goods or reimburse the Customer for the cost of repairing the Goods; or
(c) in the case of Goods or reimburse the Customer for the of being the of services, re-supply the services; or
(d) if payment of the purchase price for the Goods has not been made by the Customer - release the Customer from any obligation to pay the purchase price; or
(e) if payment of the purchase price for the Goods has been made by the Customer - refund the purchase price to the Customer, subject to the Customer, where applicable, first restoring the unencumbered ownership of the Goods to Metcash; and
(f) in any case, reimburse to the Customer any cost incurred by the Customer in transporting the Goods to the Customer from Metcash.
9.3 To the extent permitted by law, Metcash will not accept the return of Goods unless:
(a) prior authorisation has been given (which will not be unreasonably withheld);
(b) the claim is supported by the relevant invoice;
(c) the Goods are in the same condition as at the date of supply;
(d) the Goods are returned via Metcash’s nominated carrier and at Metcash’s designated rates; and
(e) in the case of Goods delivered in a damaged state or Goods delivered other than in accordance with the Customer’s order, Metcash was given notice in accordance with clause 7.2.
9.4 Other than any remedies the Customer may have under the CCA, the sole remedies of the Customer under or in relation to this Agreement whether in contract, in tort, under statute or otherwise are only as specified in this Agreement and are subject to the limitations set out in clause 9.6 and the following limitations:
(a) Metcash, and Metcash’s officers, employees and agents, will not have any liability or other obligation to any person or other entity, including the Customer, arising out of, or in any way directly or indirectly connected with, the matters referred to in clauses 9.1(a) – 9.1(e) except to comply with its obligations (subject to the other provisions and limitations in this clause 9) under clause 9.2;
(b) all conditions, warranties and other terms pertaining to the condition or quality of Goods are excluded to the extent permitted by law (including the CCA);
(c) the Customer warrants and represents that it is relying upon its own skill and judgment in relation to the quality of Goods, and their fitness for any purpose that may be required, and not upon any conduct or representation of Metcash, or any of Metcash’s officers, employees or agents; and
(d) the Customer must not make any claim or demand, or take any action or other proceeding against Metcash, or any of Metcash’s officers, employees or agents, for any loss of profits, loss of revenue, loss of anticipated savings, loss or corruption of data, loss of contract or opportunity, loss of goodwill or any indirect, special or consequential loss of whatever nature including of any loss of a type described in this sub-clause, whether or not reasonably foreseeable, reasonably contemplatable or actually contemplated by the parties at the time of execution of this Agreement, arising out of, or in any way directly or indirectly relating to this Agreement including in relation to any of the matters referred to in clauses 9.1(a) – 9.1(e).
9.5 Subject to the remainder of this clause 9, the Customer:
(a) releases and forever discharges Metcash, and each of Metcash’s officers, employees and agents, from all claims under or in relation to this Agreement; and
(b) indemnifies Metcash and each of Metcash’s officers, employees and agents in respect of all loss, damages and expenses relating to, or arising out of, any claim.
9.6 To the extent permitted by law, Metcash’s total liability for any claim under or in relation to this Agreement is limited to the price paid by the Customer for the Goods or services the subject of the claim.
10. Administration Fee and Enforcement Costs
10.1 The Customer agrees that if any Amount Payable is not paid by the Due Date or by the Final Due Date in accordance with this Agreement, Metcash shall be entitled to charge and recover:
(a) interest on the outstanding amount at a rate equivalent to 3% p.a. above the annual business overdraft interest rate of its principal banker, as determined and calculated by Metcash, in its discretion; and/or
(b) an additional amount representing an accounting administration fee and loss of use of moneys not exceeding 3.5% per month or part thereof on the Amount Payable overdue for the period between the Due Date or the Final Due Date until payment is made in full. The Customer acknowledges that this fee is a genuine pre-estimate by Metcash of the loss, costs and expenses of Metcash which shall be incurred by reason of the Customer’s default in payment of the Amount Payable and the recovery of same.
10.2 If the Customer breaches its obligations under this Agreement, the Customer shall immediately pay to Metcash on demand, all costs and expenses whatsoever incurred by Metcash in the enforcement or attempted enforcement of this Agreement including, but without limiting the generality of the foregoing costs and expenses including legal costs (on a full indemnity basis) freight costs, storage costs, electricity and telephone charges (except to the extent such costs and expenses directly result from Metcash’s breach of this Agreement) and the Customer authorises Metcash to debit any Trading Account with such costs and expenses.
11. Security Interest
11.1 The Customer:
(a) grants a security interest in all of its present and after-acquired property and in all of its present and future rights in relation to any personal property (as defined in the PPSA) (“Personal Property”) to Metcash;
(b) charges all of its rights, property and undertaking of whatever kind and wherever situated, whether present or future including, without limitation, its capital and any interest in real property (both legal and beneficial, in freehold and leasehold land) (other than any Personal Property to which the PPSA applies) to Metcash; and
(c) agrees to mortgage all of its present and future interests in any real property to Metcash, as security for the performance of its obligations under this Agreement including payment of the Amount(s) Payable.
11.2 The Customer must, within 10 days of request from Metcash, execute such documents as Metcash requires to perfect the security interest, charge and mortgage. The Customer must pay on demand any stamp duty (including any fines and penalties) assessed in connection with the security interest, charge and mortgage. The costs of registering a financing statement will be paid by the Customer and may be debited against the Customer’s Trading Account.
11.3 The Customer acknowledges that Metcash, by virtue of the charge and mortgage, has a caveatable interest in any real property of the Customer which is or becomes subject to the charge and/or mortgage and may lodge a caveat over that property.
12. Change in Customer Details
12.1 The Customer must notify Metcash, in writing, within seven (7) days, of any proposed or actual change in:
(a) the address of the business and the address at which the Goods will be located (if it differs to the Premises);
(b) the trading name of the business;
(c) the person(s), director(s) or trustee(s) conducting the business of the Customer;
(d) the ownership or proprietorship of the Customer in the event that the Customer converts to a trust, sole trader or company;
(e) control of the Customer;
(f) the Australian Business Number of the Customer; or
(g) the address of any Guarantor.
12.2 The Customer indemnifies Metcash against any damage or loss incurred by it as a result of the Customer’s failure to provide notice in accordance with clause 12.1.
13.1 The Customer and each Guarantor irrevocably appoints Metcash and each of its authorised officers, jointly and severally, to be its attorney to do any act or thing which it is required to do under this Agreement.
13.2 Metcash may only exercise the power set out in clause 13.1 where the Customer or Guarantor (as applicable) is in breach of this Agreement and it may exercise its powers even if this involves a conflict of duty and even if it has a personal interest in doing so.
13.3 A third party may rely on a copy of this Agreement certified by a solicitor as evidence of the appointment of Metcash as the attorney of the Customer or Guarantor.
13.4 The Customer and each Guarantor must ratify all acts and things done by Metcash and its authorised officers in the exercise of the power of attorney granted in accordance with this clause.
14. Customer Warranties and Covenants
14.1 The Customer warrants that the facts and representations contained in the Application for Trading Account are true and correct and the Customer is aware and acknowledges that Metcash has relied upon the correctness of such facts and representations in providing the Trading Account to the Customer.
14.2 The Customer covenants that all Goods will be purchased for the purpose of re-supply or in connection with a business carried on by the Customer or by the Customer and another person or persons and not for personal, domestic or household use.
14.3 The Customer acknowledges and agrees that:
(a) all transactions and dealings between the Customer and Metcash in connection with the supply of Goods on the Trading Account will be made strictly in accordance with this Agreement (unless otherwise agreed by Metcash in writing);
(b) the Customer will pay the Amount(s) Payable punctually and strictly in accordance with this Agreement;
(c) no director or principal of the Customer is or has been bankrupt;
(d) the Customer is solvent and able to pay its debts as and when they fall due and has not made any compromise or arrangements with its creditors and no application has been made and no application is contemplated for the appointment of an administrator or controller of the Customer or any meeting of the Customer’s creditors or any class of them;
(e) the Customer has, prior to signing or execution of this Agreement obtained independent legal and financial advice and/or had the opportunity to obtain such advice as to the Customer’s obligations and the true meaning, nature and effect of this Agreement; and
(f) the Customer acknowledges receipt of a copy of this Agreement.
15. Guarantee & Indemnity and Security Interest
In consideration of Metcash at the request of the Guarantor entering into this Agreement with the Customer, the Guarantor covenants and agrees with Metcash that:
15.1 The Guarantor irrevocably guarantees to Metcash due performance by the Customer of its obligations under this Agreement including payment of the Amount(s) Payable.
15.2 The Guarantor separately and independently indemnifies Metcash and will at all times keep Metcash indemnified from and against all losses and expenses which Metcash may suffer or incur in consequence of any breach or non-observance by the Customer or any Guarantor of any of the terms of this Agreement (including a failure to pay the Amounts Payable and all enforcement expenses and legal costs on a full indemnity basis) or any part of this Agreement being void or unenforceable.
15.3 The Guarantor:
(a) grants a security interest in all of its present and after-acquired property and in all of its present and future rights in relation to any personal property (as defined in the PPSA) (“Guarantor Personal Property”) to Metcash;
(b) charges all of its rights, property and undertaking of whatever kind and wherever situated, whether present or future including, without limitation, its capital and any interest in real property (other than any Guarantor Personal Property to which the PPSA applies) to Metcash; and
(c) agrees to mortgage all of its present and future interests in any real property to Metcash, as security for the performance of its obligations under this Agreement including its guarantee of the Customer’s obligation to pay the Amount(s) Payable.
15.4 The Guarantor must, within 10 days of request from Metcash, execute such documents as Metcash requires to perfect the security interest, charge and mortgage. The Guarantor must pay on demand any stamp duty (including any fines and penalties) assessed in connection with the security interest, charge and mortgage. The costs of registering a financing statement will be paid by the Customer and may be debited against the Customer’s Trading Account.
15.5 The Guarantor acknowledges that Metcash, by virtue of the charge and mortgage, has a caveatable interest in any real and leasehold property of the Guarantor which is or becomes subject to the charge and mortgage and may lodge a caveat over that property.
15.6 Guarantor liable Metcash under clauses 15.1, 15.2, 15.3 and 15.4 notwithstanding that:
(a) Metcash has exercised any of its rights under this Agreement;
(b) the Customer (being a company) may be wound up or dissolved or (being a natural person) may be declared bankrupt; and
(c) the guarantee given by the Guarantor may be for any reason unenforceable, either in whole or in part.
15.7 It is not necessary that Metcash provide notice to the Customer to rectify any breach of this Agreement prior to the Guarantor being required to fulfil its obligations under this clause 15.
15.8 A demand on the Guarantor is deemed to have been duly made if it is in writing and signed on behalf of Metcash by its authorised representative or solicitor and has been given to the Guarantor or left at or posted to the address of the Guarantor or Customer as shown in the Application for Trading Account or such last known address as notified to Metcash in writing by the Guarantor.
15.9 The terms of this clause 15 are not affected by any action taken or notice issued in relation to any other securities. Metcash is under no obligation to marshal in favour of the Guarantor any security whatsoever held by Metcash.
15.10 This is a continuing guarantee and the liability of the Guarantor under this clause 15 is not affected by:
(a) any other person giving or not giving a guarantee or indemnity to Metcash;
(b) the winding up, deregistration, administration, liquidation or insolvency of the Customer;
(c) the granting of time or concession (including a release, waiver, variation, assignment, novation, compounding or relinquishment of rights) to the Customer by Metcash;
(d) any delay or laches on the part of Metcash;
(e) any variation of this Agreement between Metcash and the Customer (whether or not the Guarantor is party to that variation and whether or not such variation increases the Guarantor’s liability under the Guarantee) or any assignment or novation of this Agreement;
(f) Metcash taking, varying, wholly or partially discharging or otherwise dealing with or losing or impairing any security for the Customer’s obligations under this Agreement or a security of that kind being or becoming void, voidable or unenforceable; or
(g) anything that Metcash may do or omit to do which, but for this provision, might otherwise affect the liability of the Guarantor.
15.11 As between the Guarantor and Metcash the Guarantor is to be deemed to be a primary debtor to Metcash independent of the Customer.
15.12 To the fullest extent permitted by law the Guarantor waives such of the Guarantor’s rights as surety or indemnifier (legal equitable statutory or otherwise) which may at any time be inconsistent with any of the provisions of this clause 15.
15.13 The covenants and agreements made or given by the Guarantor are not conditional in any way and remain binding notwithstanding that any other person has not executed or duly executed this Agreement.
15.14 The obligations of the Guarantor under this clause 15 continue in force until Metcash confirms in writing that it has been released.
15.15 The Guarantor acknowledges that:
(a) it has, prior to signing or execution of this Agreement obtained independent legal and financial advice and/or had the opportunity to obtain such advice as to its obligations and the true meaning, nature and effect of this Agreement; and
(b) Metcash is under no obligation to notify the Guarantor of any changes to this Agreement or any dealings with the Customer (and the Guarantor appoints the Customer as its agent for the receipt of notices in connection with this Agreement).
15.16 In the event of liquidation or bankruptcy of the Customer, the Guarantor will not prove in such liquidation or bankruptcy in competition with Metcash.
15.17 The Customer and Guarantor agree that:
(a) if any payment to Metcash must be refunded under any statutory provision or otherwise, the liability of the Customer and Guarantor continues, and Metcash will immediately be restored to the rights that Metcash would have had against each party if the payment had not been made; and
(b) the Guarantor will immediately pay to Metcash the amount refunded by Metcash so that all amounts payable to Metcash under this Agreement have been paid.
15.18 If the obligation of the Guarantor in respect of any part of the debt is unenforceable, the Guarantor’s obligation in respect of the other part of the debt will not be affected by such unenforceability.
15.19 Metcash may apply any amounts received under this Guarantee towards satisfaction of any parts of the Amounts Payable or any other amounts under this Agreement in whatever manner it sees fit.
16. Default and Enforcement
16.1 If the Customer or any person who has guaranteed the debts of the Customer to Metcash:
(a) becomes an ‘externally-administered body corporate’ within the meaning of the Corporations Act 2001;
(b) has any step taken for its winding up or dissolution;
(c) holds a meeting of directors which considers a resolution that an administrator should be appointed;
(d) is insolvent within the meaning of the Corporations Act 2001, or being taken or presumed to be insolvent;
(e) commits an ‘act of bankruptcy’ within the meaning of section 40 of the Bankruptcy Act 1966 or any amendment or replacement thereof;
(f) has distress, attachment or other execution levied or enforced over any of its property;
(g) fails to pay the entire Amount Payable in accordance with this Agreement;
(h) breaches any other provision of this Agreement or any other agreement with any Metcash Entity (as defined in clause 19.1); or
(i) if, without the prior consent of Metcash, there is a change in control of the Customer (as defined in the Corporations Act 2001) or the business of the Customer is sold to another person,
the Customer must immediately notify Metcash and Metcash may, at its election and without prejudice to other rights which Metcash may have:
(j) declare the Amount Payable immediately due for payment;
(k) enter the premises at which the Bailed Goods are kept (“Premises”) to claim and remove the Bailed Goods from the Premises; and
(l) exercise any other right or remedy under this Agreement, the PPSA or applicable law including enforcing any security interest in connection with this Agreement and appointing any one or more persons as a receiver of any collateral (including fixing the receiver’s remuneration, removing a receiver, appointing an additional receiver and giving an indemnity).
16.2 Unless the terms of appointment restrict a receiver’s powers, the receiver may do anything the law allows an owner or a receiver of the collateral to do (including under sections 420(1) and (2) of the Corporations Act 2001).
16.3 The receiver is the agent of the grantor of the security interest and the grantor is responsible for the receiver’s acts and omissions. Metcash and any receiver are not liable for any loss which may arise because of any omission or delay in the exercise of any powers and any person who acquires the collateral need not check whether those parties had the right or authority to do so.
16.4 To the extent permitted by law the grantor agrees to dispense with any notice of or lapse of time before Metcash or a receiver may exercise any option, power or right following the occurrence of any default. If by law prior notice cannot be dispensed with or waived but the period of such notice can be agreed on, then period of that notice is the longer of one day or the minimum period that the law allows to be agreed.
16.5 Metcash may sell or otherwise dispose of any Bailed Goods recovered by Metcash pursuant to this Agreement in its absolute discretion and on its own account, without limitation to any other rights which Metcash may have.
16.6 The Customer indemnifies Metcash and every person acting on its behalf against any loss, damage, liability or expense incurred or sustained as a result of the reasonable exercise by Metcash of its rights under this clause 16.
16.7 Notwithstanding the other provisions of this clause 16 and without derogating from the rights of Metcash, Metcash may take any action it deems necessary, including legal proceedings, to recover as a liquidated debt an Amount Payable.
17.1 Time is to be of the essence so far as it relates to the Customer’s obligations to Metcash under this Agreement.
17.2 Metcash does not waive any breach by the Customer or the Guarantor of this Agreement unless the waiver is in writing signed by Metcash. No waiver is to be construed as a general waiver unless it is expressly stated to be a general waiver.
17.3 Should any provision of this Agreement be illegal, void or unenforceable, that provision will be ineffective and is to be severed from this Agreement to the extent only of that illegality, voidability or unenforceability. All remaining provisions are to be enforceable between Metcash, the Customer and the Guarantor.
17.4 This Agreement is enforceable against each of the Customer and Guarantor (if more than one person) jointly and each of them severally.
17.5 Metcash may at any time assign its rights and interests or novate its rights and obligations (in whole or in part) under this Agreement. The Customer must not assign any of its rights or obligations under this Agreement without Metcash’s prior consent in writing, which consent may be refused or given subject to such terms and conditions as Metcash may determine, at its absolute discretion.
17.6 This Agreement binds each person who signs as Customer or Guarantor even if another person who was intended to sign does not sign it or is not bound by it.
17.7 This Agreement binds the Customer and each Guarantor both personally and as trustee of any trusts for which it is trustee. If the Customer or a Guarantor is a trustee it warrants and undertakes that it is and will continue to be validly appointed as the sole trustee of the trust and is and will continue to be entitled to be fully indemnified out of the assets of the trust in respect of any amount owing to Metcash.
17.8 acceptance this may by establishing Trading or supplying Goods to the Customer.
17.9 Only a director or company secretary of Metcash has the authority to (a) vary this Agreement in any way or (b) accept orders or supply Goods under the Trading Account on terms other than this Agreement. This Agreement may be varied from time to time at the discretion of Metcash by giving seven (7) day’s notice to the and Customer Guarantors prospectively and to such variation.
17.10 This Agreement is governed by and the Customer and Guarantor submit to the laws of the State of New South Wales (or any other State or Territory nominated by Metcash). The courts of that State or Territory have non- exclusive jurisdiction in connection with this Agreement.
17.11 In this Agreement, words or terms incorporating the singular or the plural shall include the plural and singular respectively and words importing the masculine gender shall include the feminine and neuter genders.
17.12 In this Agreement, references to include and including are to be construed without limitation.
17.13 Notices in connection with this Agreement may be provided to the Customer and Guarantors by mail, facsimile or email to the Customer’s address provided on the Application for Trading Account, or any other address provided by it to Metcash. Metcash may also provide notice of any variation of this Agreement by publishing the revised Metcash Trading Terms on its website and Metcash may (but is not obliged to) notify the Customer that it has done so on an invoice, Statement or order acknowledgement.
18. Contracting out of the PPSA
18.1 The Customer and Guarantor agree that nothing in sections 125, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA shall apply to this Agreement, or the security under this Agreement and to the extent permitted by the PPSA, agree to waive and contract out of its rights to receive any notice or statement under sections:
(1) 95 (notice of removal of an accession);
(2) 118 (notice of decision to enforce security interest under land law);
(3) 121(4) (enforcement of liquid assets – notice to grantor);
(4) 123 (notice of seizure of collateral);
(5) 130 (notice of disposal of collateral);
(6) 132(3)(d) (statement of account following a disposal showing the amounts paid to other secured parties);
(7) 132(4) (statement of account if there is no disposal);
(8) 157 (notice in relation to registration events),
or otherwise. The parties also contract out of each other provision of Part 4.3 of the PPSA, under sections 115(7) and 116(2), but only to the extent that the provision impose obligations on Metcash.
18.2 The Customer, Guarantor or Metcash will not disclose information of the kind mentioned in section 275(1) of the PPSA, unless required by law (other than section 275(1) of the PPSA).
19.1 Metcash may set off any amount owing by Metcash or any associated entity (as defined in the Corporations Act 2001) of Metcash Trading Limited from time to time (“Metcash Entity”) to the Customer (whether or not due for payment) against any Amount Payable.
19.2 clause 19 (including for payment of any amount owing by a Metcash Entity to the Customer). This clause 19 applies despite any other agreement between the Customer and a Metcash Entity.
19.3 If there are any amounts owing or due for payment by the Customer to a Metcash Entity (other than Metcash), the Customer authorises Metcash to pay all or part of any such amount to the relevant Metcash Entity in satisfaction of all or part of the Customer’s obligations. Any amount paid by Metcash will be automatically debited against the Customer’s Trading Account and will constitute a debt from the Customer to Metcash under this Agreement. If Metcash makes a payment to another Metcash Entity under this clause 19.3, it must provide written notice to the Customer within fourteen (14) days of any such payment.
19.4 The Customer acknowledges that the Metcash Entities have entered into, or will enter into, arrangements to effect and authorise the set-off arrangements contemplated by this clause 19.
19.5 The Guarantor consents to the arrangements set out in this clause 19 and acknowledges that the guarantee in clause 15 extends to any amounts payable by the Customer under this clause.
20. Liquor & Tobacco Licensing Obligations & Warranties
20.1 This clause 20 applies if and when the Customer purchases tobacco or liquor products (“Licensed Goods”) from Metcash.
20.2 At each time the Customer places an order for Licensed Goods and each time such order is filled by Metcash, the Customer warrants that:
(a) it holds a valid and current licence to order, purchase, sell and distribute Licensed Goods in the conduct of its business (“Licence”) under and in accordance with all applicable laws; and
(b) it is not in breach of, nor has it had the terms of its, License revoked, varied or restricted and no condition has been imposed on the Licence which prohibits it from ordering, purchasing, selling or distributing the Licensed Goods in the conduct of its business.