Consignment Stock Agreement
Effective date: 1st July 2023
1. Interpretation
The supply of Consignment Stock by Moffat Pty Ltd ACN 070 810 721 (Supplier) to any person or entity (Distributor) is made on the following terms and conditions and incorporates where applicable, the Terms and Conditions of Sale located at https://www.moffat.com.au/terms-and-conditions-sale (Agreement).
In this Agreement, unless the context otherwise requires:
Attaches has the same meaning as given to that term in the PPSA;Collateral has the same meaning as given to that term in the PPSA;
Consignment Stock(s) means the stock supplied to the Distributor by the Supplier from time to time pursuant to this Agreement and the Terms and Conditions;
Distributor means the person, firm or company that has offered to take delivery of the Consignment Stock and includes the Distributor and any servant, agent, partner, contractor or employee of that person;
Financing Statement has the same meaning as given to that term in the PPSA;
Financing Change Statement has the same meaning as given to that term in the PPSA;
Perfected has the same meaning as given to that term in the PPSA;
PPS law means:
(a) the PPSA;
(b) any regulation made pursuant to the PPSA; and
(c) any other legislation or regulation made to implement, or contemplated by, any PPSA law referred to in paragraph (a) or (b);
PPSA means the Personal Property Securities Act 2009 (Cth);
Purchase Money Security Interest has the same meaning as given to that term in the PPSA;
Relevant Date has the meaning given to it in clause 3; and
Security Interest means:
(a) any security for the payment of money or performance of obligations including a mortgage, charge, lien, pledge, trust or power, or title retention arrangement;
(b) a security interest as defined in the PPSA; or
(c) any document that grants or creates anything referred to in either paragraphs (i) or (ii) of this definition and any other thing which gives a creditor priority over any other creditor with respect to any asset or an interest in any asset;
Supplier means Moffat Pty Ltd ACN 070 810 721 and includes all of the Supplier’s employees and agents;
Terms and Conditions means the Supplier's Terms and Conditions provided to the Distributor.
Transfer Order means a document in such form as the Supplier may require from time to time setting out details of Consignment Stock delivered to the Distributor; and
Verification Statement has the same meaning as given to that term in the PPSA.
2. Delivery
The Distributor must sign the Transfer Order upon delivery and send it to the Supplier immediately by email to customer.service@moffat.com.au. Upon sale of the Consignment Stock, the Distributor must inform the Supplier within 24 hours. Upon notification, the Supplier will invoice the Distributor and the Distributor must make payment within agreed payment terms of the date of invoice.
3. Risk and Title
The risk of loss or damage to the Consignment Stock will pass to the Distributor upon delivery of the Consignment Stock to the Distributor’s premises
In relation to title in the Consignment Stock:
(a) If any loss or damage occurs after delivery or the Distributor sells the Consignment Stock to a buyer, the Distributor will be deemed to have sold or used the Consignment Stock and title passes to the Distributor, entitling the Supplier to immediate payment;.(b)Otherwise, property in and title to the Consignment Stock shall remain with the Supplier and shall not pass to the Distributor until such time when the Distributor pays all monies owing to the Supplier on any account whatsoever (which payments are not to any extent subsequently claimed or clawed back by any person standing in the place of or representing the Distributor) (Relevant Date).
4. Usage of the Consignment Stock
4.1 The Distributor shall not represent to any third parties that it is in any way acting for the Supplier and the Supplier will not be bound by or liable under any contracts or arrangements with third parties. The Supplier will not accept the return of any Consignment Stock that has been in any way rendered unsaleable whilst in the possession of the Distributor.4.2 The Distributor will be invoiced for any Consignment Stock that is not in an as-new condition.
4.3 Until the Relevant Date, the Distributor agrees that:
(a) the Distributor holds the Consignment Stock as fiduciary bailee of the Supplier;
(b) the Consignment Stock will be stored and retained separately for display purposes only (unless sold) so as to be readily identifiable as the property of the Supplier;
(c) the Distributor will not dispose of the Consignment Stock except in the ordinary course of the Distributor’s business;
(d) the Distributor will notify the Supplier of the sale of Consignment Stock and will reorder as required;
(e) the Distributor will pay all money received, relating to the sale of the Supplier's Consignment Stock to the Supplier on request in the next invoice received from the Supplier;
(f) the Distributor will not allow or cause the Consignment Stock to become an accession to any other property or to lose their separate identifiable character or to be co-mingled with other goods, in any way, either by any process of its own or by a third party, except with the Supplier’s prior written consent;
(g) the Distributor has no right or claim to any interest in the Consignment Stock to secure any liquidated or unliquidated debt or obligation the Supplier owes to the Distributor;
(h) the Distributor cannot claim any lien over the Consignment Stock;
(i) the Distributor will not create any absolute or defeasible interest in the Consignment Stock in relation to any third party, except with the Supplier’s prior written consent;
(j) pending payment in full for all amounts owed by the Distributor to the Supplier on all accounts, the Distributor
- (i) subject to clause 4.4(a), must not allow any person to have or acquire any Security Interest in the Consignment Stock;
- (ii) must insure the Consignment Stock for their full insurable or replacement value (whichever is higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Distributor carries on business; and
- (iii) must not remove, deface or obliterate any identifying mark or number on any of the Consignment Stock.
- (i) attaches to the Collateral that is intended to be covered by that Security Interest;
- (ii) is enforceable, Perfected, maintained and otherwise effective; and
- (iii) has the priority contemplated by those Arrangements; or
- (i) first, to satisfy any obligations owed by the Distributor to the Supplier which are unsecured, in the order in which the obligations were incurred;
- (ii) second, to satisfy any obligations owed by the Distributor to the Supplier that are secured but which are not secured by a Purchase Money Security Interest, in the order in which those obligations were incurred; and
- (iii) third, to satisfy any obligations owed by the Distributor to the Supplier that are secured by a Purchase Money Security Interest, in the order in which those obligations were incurred.
4.4 If at any time the Supplier determines that a PPS Law applies to any agreement that incorporates this Agreement, the Terms and Conditionsor the supply of any Consignment Stock (Arrangements), then the Distributor must promptly upon request from the Supplier do anything (including obtaining consents, making amendments to the Arrangements or executing new Arrangements):
(a) for the purposes of ensuring that any Security Interest created under, or provided for by, the Arrangements:
(b) to enable the Supplier to prepare and register a Financing Statement or Financing Change Statement; or
(c) to enable the Supplier to exercise any of its powers in connection with any Security Interest created under, or provided by, the Arrangements.
4.5 The Distributor must provide any information requested by the Supplier in connection with the Arrangements to enable it to exercise any of its powers or perform its obligations under the PPS Law.
4.6 Except if section 275(7) of the PPSA applies, each of the Supplier and the Distributor agree not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available to a person or entity not a party to this Agreement.
4.7 The Distributor agrees that:
(a) the Supplier is under no obligation to dispose of or retain any Consignment Stock the Supplier seizes within a reasonable time under section 125 of the PPSA;
(b) following a default, the Distributor has no rights to redeem the Consignment Stock under section 142 of the PPSA;
(c) the Distributor has no rights to reinstate this Agreement following a default under section 143 of the PPSA; and
(d) despite the Distributor paying for particular Consignment Stock itemised in an invoice or order or otherwise in respect of moneys owing under or in connection with the Arrangements, any payments received by the Supplier from the Distributor shall be applied in the following order:
4.8 The Distributor waives its rights to receive:
(a) a notice of the Supplier’s proposal to remove PPSA personal property which has become an accession under section 95 of the PPSA;
(b) a notice of the Supplier’s proposal to exercise its rights in accordance with land law under section 118(1)(b) of the PPSA;
(c) a notice of the Supplier’s proposal to dispose of any PPSA personal property under section 130 of the PPSA;
(d) a notice of the Supplier’s proposal to retain PPSA personal property under section 135 of the PPSA;
(e) details of the amounts paid to other secured parties in a statement of account provided by the Supplier under section 132(3)(d) of the PPSA;
(f) a statement of account under section 132(4) of the PPSA; and
(g) a copy of, or notice of, any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to any Security Interest under, or provided for by, the Arrangements.
4.9 Anything that is required by the Supplier to be done under this clause 4 shall be done by the Distributor at its own expense. The Distributor agrees to reimburse the costs of the Supplier in connection with any action taken by the Supplier under or in connection with this clause 4 including, without limitation, registering a Financing Statement or Financing Change Statement or enforcing any Security Interest under, or provided for by, the Arrangements.
5. The Distributor’s Rights and Responsibilities
5.1 The Distributor shall observe all reasonable directions and instructions given to it by the Supplier in relation to the Consignment Stock as notified from time to time and undertakes that it will at all times use the Consignment Stock as a display in the Distributor's showroom/s and keep the Consignment Stock safe and secure, free from dirt and dust and protected from harm and damage.5.2 Until title passes to the Distributor, the Distributor must mark or display the Consignment Stock in a manner reasonably satisfactory to the Supplier and which indicates that title to the Consignment Stock remains vested with the Supplier. Tthe Distributor will at all times:
(a) retain any mark or label affixed to any item of the Consignment Stock by the Supplier prior to its delivery to the Distributor; or
(b) display any Consignment Stock not marked or labelled in accordance with clause 5.2(a) in a position or conditions pre-approved by the Supplier and which bears a sign to the effect that, ‘All contents are the property of Moffat Pty Ltd until purchased’.
5.3 The Distributor must use its best endeavours to ensure that the Consignment Stock will achieve a mutually agreed Consignment Stock turnover rate
5.4 The price payable to the Supplier by the Distributor for the Consignment Stock so sold shall be the price as as provided under the Terms and Conditions of Sale , unless otherwise agreed.
5.5 Prices determined under this Agreement are exclusive of GST and other taxes and duties
5.6 The Distributor shall keep proper books of account and proper detailed and accurate records (including without limitation computer records) of Consignment Stock levels and shall provide the Supplier with a prompt response to the Supplier's enquiry regarding Consignment Stock levels and such assistance as it may reasonably require to carry out inspection (at least twice each year) and random audits pursuant to clause 6.1.
5.7 The Distributor indemnifies the Supplier against all loss or damage as a result of unauthorised warranties or representations by the Distributor to third parties, and indemnifies and holds the Supplier harmless from any and all claims demands, suits or liabilities arising out of any such acts or omissions of the Distributor, its employees, appointees, legal representatives and agents.
5.8 The Distributor indemnifies the Supplier against any loss or damage (including consequential loss), and any third party claims that arise in relation to the Distributor’s dealings with the Consignment Stock, to the extent that the loss or damage was not caused by fire or theft or any other event outside the reasonable control of the Distributor.
6. The Supplier’s Rights and Responsibilities
6.1 The Supplier or its representatives may enter upon any premises where the Consignment Stock is stored or displayed or where it is reasonably thought to be stored or displayed at any time during normal business hours upon reasonable notice to the Distributor for the purposes of inspecting and conducting random audits of the Consignment Stock on hand to verify the accuracy of the records provided pursuant to clause 5.6 and to inspect the Distributor’s compliance with the requirements of the Supplier. If during an inspection the Supplier, acting reasonablydetermines that Consignment Stock is missing, has been sold or is damaged, then the Supplier will invoice the Distributor for the Consignment Stock.6.2 Insofar as may legally be done, all conditions, warranties, representations and liabilities relating to quality or fitness of the Consignment Stock are hereby negatived and excluded.
6.3 The Supplier’s liability for breach of any non excludable conditions, warranties, representations or liabilities shall be limited, at the Supplier's option, to replacement of the relevant portion of Consignment Stock, or the supply of the equivalent Consignment Stock, or refund of the cost thereof. The Supplier shall not in any event be maximum extent permitted by law by inserting exclusion and/or limitation of liability clauses in the the Distributor’s sale documents.
6.4 The Distributor undertakes to use its best endeavours to exclude and/or limit its liability and the liability of the Supplier for breach of warranties or other legal duties to the Distributor’s customers to the maximum extent permitted by law by inserting exclusion and/or limitation of liability clauses in the the Distributor’s sale documents.
6.5 The Distributor will make no representations or warranties with respect to the Consignment Stock except as authorised in writing by the Supplier.
7. Termination and Recovery
7.1 Unless otherwise provided in this Agreement, this Agreement may be terminated by any party giving thirty days prior written notice to the other party. The Supplier may terminate this Agreement with immediate effect by written notice if payments are not received on the due date or the Distributor is otherwise in breach of any provision of this Agreement or the Terms and Conditions and:
(a) such breach is not capable of remedy; or
(b) the Distributor fails to remedy that breach within thirty days.
7.2 If the Distributor fails to pay for any Consignment Stock within the period of credit extended by the Supplier to the Distributor the Supplier may recover possession of all Consignment Stock (in which property has remained with the Supplier) at any site owned, possessed or controlled by the Distributor and the Distributor agrees that the Supplier has an irrevocable licence to do so without incurring any liability to the Distributor or any person claiming through the Distributor.
7.3 On termination of this Agreement, the Distributor agrees to return any unsold Consigment Stock to the Supplier within seven days of the date of termination. The cost of returning the Consignment Stock shall be borne by the Distributor.
8. Governing Law
This contract shall be governed by the laws of the State of Victoria, and the Distributor submits to the non–exclusive jurisdiction of the courts of that State.
9. Amendment of this Agreement
The Supplier may vary this Agreement without notice to the Distributor if it is reasonably necessary to do so to protect its legitimate business interests. The varied Agreement will be published on the Supplier’s website at https://www.moffat.com.au/consignment-stock-agreement.
Executed as an Agreement Executed by Moffat Pty Ltd (ACN 070 810 721) in accordance with section 127 of the Corporations Act 2001 (Cth): ) )
