TERMS AND CONDITIONS OF SALE
1.1. “Company” means Acacia Joinery Pty Ltd ACN 128 819 401 and includes its successors and assigns.
1.2. “Customer” means any person, firm or company placing an Order for the purchase of Goods and to whom a Quotation is addressed, and any person, form or company that purchases Goods from the Company.
1.3. “Goods” means all goods sold and/or delivered by the Company to the Customer, and includes goods the subject of an Order.
1.4. “GST” means the Goods and Services Tax imposed by A New Tax System (Goods and Service Tax) Act 1999.
1.5. “Invoice” means the Company’s invoice for Goods provided (or to be provided) to the Customer.
1.6. “Order” means the acceptance of a Quotation, in whole or in part, by the Customer.
1.7. “PPSA” means the Personal Property Securities Act 2009.
1.8. “Price” means the amount invoiced, or to be invoiced, for Goods the subject of an Order, or as otherwise agreed by the Company and the Customer.
1.9. “Quotation” means an estimate (verbal or written) issued by the Company to the Customer for the sale of Goods.
1.10. “Terms” means these Terms and Conditions of Sale.
2. APPLICATION OF THESE TERMS
2.1. These Terms apply to all Goods sold by the Company. The Customer is deemed to have accepted these Terms and to be immediately bound by these Terms on placing of an Order for Goods.
2.2. These Terms, together with a Quotation and an accompanying Order, constitute the entire contract between the Company and the Customer (‘Contract’). To the extent of an inconsistency between these Terms and an Order, these Terms shall prevail.
2.3. No amendment, alteration, waiver or cancellation of any of these Terms is binding on the Company unless confirmed by the Company in writing. No communication between the Company and the Customer shall modify or vary these Terms unless such modification or variation is in writing and signed by the Company.
2.4. The Customer acknowledges that no employee or agent of the Company has any right to make any representation, warranty or promise in relation to the Goods or the sale of the Goods other than as provided for in these Terms.
2.5. These Terms shall be available at www.acaciajoinery.com.au and may be amended, modified, added to or deleted at any time by the Company. Any such amendment, modification, addition or deletion to these Terms shall be legally effective from the date the amended Terms are displayed at www.acaciajoinery.com.au.
3. QUOTATIONS, PLACING ORDERS & ACCEPTANCE
3.1. No Quotation shall constitute an offer and an Order from a Customer shall constitute an offer only by the Customer to the Company.
3.2. A Quotation provided by the Company shall expire 30 days after the date the Quotation is provided however the Company reserves the right to vary any price quoted by the Company prior to any Order provided by the Customer in response to a Quotation, being accepted by it.
3.3. Each Order placed by the Customer with the Company will be considered valid when placed verbally or in writing.
3.4. The Company reserves the right to decline any request for the supply of Goods (including an Order provided) by the Customer. Without limiting this right, the Company shall not be obliged to supply Goods until an Order has been placed with, and accepted by, the Company.
3.5. Any person who places an Order warrants that they are duly authorised by the Customer to do so.
4.1. All prices for Goods are current at the time a Quotation is provided. Should these vary between the date a Quotation is provided and the date an Order is placed, such difference will be payable by the Customer.
4.2. Subject to other rights under these Terms, at the Company’s sole discretion the Price shall be either (a) as detailed in Invoices provided to the Customer in respect of Goods supplied the subject of an Order, or (b) the Company’s price as detailed in the Quotation the subject of an Order.
4.3. The Company reserves the right to change the Price if a variation to an Order is requested including, but not limited to, where a requested variation will result in a cost increase to the Company (including taxes, levies, material and/or labour).
4.4. Without limiting this clause, Prices shall be subject to change without notice at any time prior to an Order being accepted by the Company.
4.5. The Customer acknowledges and accepts the Company may increase any previously agreed pricing on not less than an annual basis and such increase shall apply on notification of that increase being advised to the Customer.
5. ABILITY TO SUPPLY
5.1. Any obligation of the Company to supply Goods is subject to its ability to secure labour, materials and other services for the manufacture and supply of the Goods. The Company shall not be liable in any way for failure to deliver the Goods within a stated time and the Customer may not reject the Goods on account of such failure to deliver within a stated time.
5.2. The Company shall not be liable for any failure to supply or deliver the Goods due to strikes, fires, explosions, flood, riot, lock-out, injunction, interruption of transportation, accidents, war, governmental action or other circumstances beyond the Company’s control.
5.3. If for any reason the Company is unable to perform its obligations under a Contract, the Company may at any time by notice in writing to the Customer terminate the Contract and in such a case the Contract will be at an end and any refundable deposit paid by the Customer will be refunded by the Customer and neither party will have any claim against the other.
6. TERMS OF PAYMENT AND PAYMENT DEFAULTS
6.1. Payments are to be made directly to the Company without any deduction or discount other than as agreed to in writing by the Company.
6.2. At the sole discretion of the Company, a non-refundable deposit may be required to be paid at such time(s) as determined and advised by the Company to the Customer.
6.3. Time for payment for the Goods being of the essence, an Invoice will be payable by the Customer on the date as determined by the Company, which, unless otherwise agreed to by the Company, shall be payable prior to the delivery of the Goods.
6.4. The Company may, in its sole discretion, require the Customer to pay instalments associated with an accepted Order at such times, and in such amounts, as advised by the Company.
6.5. Payment may be made by cheque, bank cheque, electronic/on-line banking or any other methods as agreed to between the Customer and the Company.
6.6. There will be no deductions for retentions applicable.
6.7. Unless otherwise stated, the price does not include GST. In addition to the Price, the Customer must pay to the Company an amount equal to any GST the Company must pay for any supply by the Company under this or any other agreement for the sale of the Goods.
6.8. The Customer must pay GST, without deduction or set off of any other amounts at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the price accept where they are expressly included in the Price.
6.9. In the event that the Customer’s payment is dishonoured for any reason, the Customer shall be liable for any dishonour fee incurred by the Company.
6.10. If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a solicitor and own client basis and the Company’s collection agency costs.
6.11. For the avoidance of doubt, the Building and Construction Industry Security of Payments Act 1999 shall apply to an invoice provided by the Company to the Customer and is a payment claim for the purposes of that Act.
7. DELIVERY OF GOODS
7.1. Delivery (“Delivery”) of the Goods is deemed to occur at the time that:
7.1.1. the Customer or the Customer’s nominated carrier takes possession of the Goods at the Company’s address; or
7.1.2. the Company (or the Company’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at that address.
7.2. At the Company’s sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.
7.3. The Customer must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. In the event that the Customer is unable to take Delivery of the Goods as arranged then the Company shall be entitled to (a) leave the Goods and in such a case the Company shall not be responsible for any claims, damages, costs or expenses arising or resulting therefrom (including any claim that the Goods were not delivered), and/or (b) charge a reasonable fee for redelivery and/or storage.
7.4. The Customer is responsible for ensuring that Goods delivered to it in accordance with these Terms are secured and insured, and shall be responsible for any loss, damage or theft of the Goods so delivered.
7.5. The Company may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with these Terms. Any Delivery time or date given by the Company to the Customer is an estimate only. The Customer must still accept Delivery of the Goods even if late and the Company will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late.
7.6. The Company shall not be liable for any delay in delivery of the Goods made by a third party or third party manufacturer.
8. PAYMENT, TITLE AND THE PPSA
8.1. Goods are at the Customer’s risk from Delivery but title in Goods supplied to the Customer will not pass to the Customer until all monies owing with respect to those Goods, together with all other monies owing by the Customer to the Company, has been fully paid. Until such time the Customer has custody of the Goods as fiduciary agent and bailee of the Company.
8.2. Where the Customer does make payment in respect of specific Goods, the Company may treat such payment as having deemed to have been made firstly in respect of Goods which are no longer in the possession of the Customer and, secondly in respect of Goods still in the Customer’s possession (as the Company determines).
8.3. Until Goods have been paid for in full, the Customer:
8.3.1. must store the Goods in such a manner as to show clearly that they are the property of the Company;
8.3.2. may only sell the Goods in the ordinary course of its business but only as fiduciary agent of the Company. In such an event, the Customer receives all proceeds associated with such sale (or insurance proceeds in the case Goods are stolen, damaged or lost) in trust for the Company and must keep the proceeds in a separate bank account until all liability to the Company is fully discharged;
8.3.3. must keep the Goods insured against theft, damage, and destruction (and if the Customer fails to insure the products, the Company may do so and invoice the Customer for the cost of insurance); and
8.3.4. agrees not to sell, assign, charge or otherwise encumber or grant any interest over any obligations which any third party may owe to the Customer as a result of the use, manufacture or resale of the Goods.
8.4. The Customer irrevocably authorises the Company at any time, to enter any premises upon which the Goods are stored to enable the Company to (a) inspect the Goods, or (b) to retake possession of the Goods where the Customer has breached these Terms.
8.5. This clause applies notwithstanding any credit facility that may exist between the parties.
8.6. The Customer acknowledges that the PPSA applies to all transactions pursuant to these Terms (or otherwise) and grants a security interest in all present and after acquired Goods as security for all monies now and in the future owing by the Customer to the Company.
8.7. The Customer agrees to do all such things and sign all such documents as are necessary and reasonably required to enable the Company to acquire a perfected security interest in all Goods supplied, and to provide such information as is required to enable registration of a Purchase Money Security Interest (‘PMSI’) under the PPSA.
8.8. The Customer acknowledges that a PMSI is granted in priority to all other creditors by the Customer in favour of the Company and in all Goods that are supplied from time to time as security for the Customer’s obligations to the Company.
8.9. The Customer indemnifies the Company for any liability for any costs of registration, maintenance, enforcement or discharge or security interest and such other costs and expenses as the Company may incur.
8.10. The Customer agrees to waive or exclude such sections of the PPSA as the Company may require, subject to those sections being capable of exclusion.
8.11. If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, the Company is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make any further enquiries.
9. CUSTOMER PAINTING OBLIGATIONS
9.1. Timber is a natural product and, as such, exhibits variations in texture, shade, colour, surface, finish, markings and veining, and contains natural fissures, occlusions, and indentations. Whilst the Company will make all reasonable efforts to match sales samples to finished Goods, the Company accepts no liability whatsoever where samples differ to finished Goods supplied.
9.2. Timber is a hydroscopic material subject to expansion and contractions. As a consequence, the Company shall not be responsible or liable for any gaps that may appear in joinery during prolonged dry periods.
9.3. The Customer shall prime/coat all surfaces and edges of timber windows, doors, frames and sashes with a suitable oil based product by the earlier of (a) 2 weeks following Delivery, and (b) installation by the Customer.
9.4. In order to reduce the possibility of bowing, twisting or warping, the Customer shall apply suitable light coloured finishes to all external timber surfaces in the manner and frequency as specified by the Company or paint manufacturer for the period of any warranty associated with the Goods. Light reflective semi-gloss finishes with a light reflectance value (LRV) finish greater than 55 should be used, noting that white has an approximate LRV of 95 whereas black has an LRV of less than 5.
9.5. Where timber doors are to be exposed to direct sun or rain, they require periodic resealing or painting (dependent on weather or moisture exposure). Dark coloured stains or paint shall not be used on timber doors to be exposed to sunlight, as some expansion and contraction of door parts may occur.
9.6. Using different colours on the exterior and interior of timber product may cause uneven heat/moisture absorption, particularly for timber doors exposed to direct sun or rain, and may result in bowing, twisting or warping. The finishing paint or stain applied should be the same colour on all six sides.
9.7. Any door or door unit over 2400mm high is only guaranteed against faulty workmanship and/or faulty materials and is not guaranteed against bowing, twisting or warping.
9.8. All window and door units are complete with standard 140mm reveal sections, and are priced accordingly, unless otherwise stated in the Quotation. Increases to this section size will incur additional costs due to extra material and labour requirements.
9.9. All timber jamb reveal and sill sections (especially greater than 140mm) need to be supported and securely fastened to prevent twisting, warping and/or cupping from sun and weather exposure.
9.10. Window design is a balance between performance and affordability, and it is not feasible to produce windows to withstand extreme weather conditions. Whilst products are designed and manufactured to/or exceed current Australian Standards, the Company shall not be responsible for any product failure caused by due to extreme weather conditions.
9.11. The Customer acknowledges that Goods supplied may:
9.11.1. fade or change colour over time;
9.11.2. expand, contract or distort as a result of exposure to heat, cold, weather;
9.11.3. mark or stain if exposed to certain substances; and
9.11.4. be damaged or disfigured by impart or scratching.
9.12. The Customer acknowledges that a failure to undertake any of the obligations detailed in this clause will void any warranty provided by the Company associated with the Goods.
10. POWDER COATING
10.1. Powder coat finish will comply with Australian Standards AS3715 and may contain minor blemishes which are acceptable within the meaning of Australian Standard AS3715.
11. CUSTOMER PROVIDED PLANS, SPECIFICATIONS & DRAWINGS
11.1. The Customer warrants that all plans, specifications, drawings and other information provided by it and associated with Goods to be manufactured and supplied by the Company to the Customer (‘Customer Supplied Plans’) are correct, accurate, compatible with and appropriate for the intended purpose of the Goods. The Company does not warrant the performance, technical features, compatibility and/or fitness for purpose features of Goods manufactured and supplied by the Company based, in whole or in part, on Customer Supplied Plans, and the Company shall be entitled to rely on the correctness, accuracy, compatibility with and appropriateness of the Customer Supplied Plans. The Customer acknowledges and agrees that in the event that any of the Customer Supplied Plans is incorrect, inaccurate, incompatible with and/or inappropriate for the intended purposes of the Goods, the Company shall not be responsible for any loss, damages, or costs however resulting as a consequence.
11.2. The Company allows for a single revision to shop drawings produced per Contract project (to the extent such revision relates solely to dimensional changes requested by the Customer). Any further revision (or any revision not solely related to dimensional changes requested by the Customer), including any architectural changes, may be charged at prevailing hourly rates, with any minimum fee applicable as advised by the Company.
12. FIT FOR PURPOSE
12.1. The Customer must ensure that the Goods are suitable for their intended purpose and warrants and represents that the Goods, the subject of an Order, are both suitable for their intended purpose and shall conform with all legal requirements associated with that intended purpose.
12.2. The Customer is responsible to ensure that the Company is made aware in writing of any specific requirements pertaining to the Goods prior to any Order placed. The Company shall not be liable for any damage, loss or injury suffered as a consequence of any inaccurate or insufficient information concerning such requirements as provided by the Customer in writing.
12.3. The Company shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is expressly stated in the Quotation the subject of the Goods, and the Customer acknowledges and agrees that it has not relied on, nor will it rely on, any representation or warranty with respect to the merchantable quality, description, quality, suitability or fitness for purpose of the Goods unless expressly provided for in the Quotation.
12.4. The Company shall not be liable for damage, loss or injury suffered as a result of any person failing to follow instructions relating to Goods, modifying the Goods, failing to appropriately maintain or store them or using them for a purpose not disclosed to the Company in writing, in accordance with these Terms.
12.5. The Customer agrees that any variations in colour or texture of any material comprising all or part of the Goods shall not constitute a defect.
13. ACCURACY OF MEASUREMENTS FOR ORDERS
13.1. In the event the Customer gives information relating to measurements and quantities of the Goods required to be supplied by the Company, it is the Customer’s sole responsibility to ensure the accuracy of those measurements and quantities. The Company accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this requirement.
14.1. The following circumstances constitute a default event (“Default Event”):
14.1.1. payment not being made by the Customer in accordance with these Terms;
14.1.2. the Customer otherwise breaching any of these Terms;
14.1.3. the Company receiving notice of, or holding a reasonable belief that, a third party may attempt to levy execution against Goods delivered; or
14.1.4. any other event which is likely to adversely affect the Customer’s ability to pay for the Goods (including but not limited to the appointment of a receiver, receiver and manager, administrator, controller, liquidator, trustee or similar person to the Customer’s undertaking).
14.2. The Customer is not entitled to defer, offset or withhold payment in whole or in part for any reason unless agreed to by the Company in writing.
14.3. In the event of a Default Event, the Company may (in its absolute discretion), and without limiting in any way its rights pursuant to these Terms:
14.3.1. terminate the Contract the subject of the Default;
14.3.2. refuse to supply any further Goods until the Default is rectified;
14.3.3. cancel any other Order of the Customer; and
14.3.4. repossess any Goods previously supplied;
14.4. To secure payment of all monies that may become payable by the Customer to the Company, the Customer charges all of the Customer’s interest in real property, both present and future, and the Customer consents to the Company lodging a caveat or similar instrument over any such real property to notify the existence of the Company’s charge.
14.5. The Company may charge interest on all overdue amounts calculated on a daily basis until paid in full at the rate prescribed by the Penalty Interest Rates Act 1983 and to charge for any expenses incurred in collecting or attempting to collect any overdue monies, including any debt collector’s expenses incurred, or to be incurred.
14.6. The Company may charge an administration fee for any payment made by credit card and the amount to be charged will be advised to the Customer.
14.7. A certificate signed by an authorised representative of the Company shall be prima facie evidence of the amount of indebtedness of the Customer to the Customer at that time.
14.8. The Customer is liable to pay to the Company and the Company may recover in full from the Customer all costs, expenses and disbursements incurred and/or payable by the Company (including debt collection agency fees and legal costs of a solicitor and own client basis) arising from or as a result of the Company’s exercising or enforcing or seeking or exercise or enforce a right under these Terms, and in particular, in collecting or attempting to collect amounts due to the Company. Such costs, expenses and disbursements may be recovered by the Company from the Customer as a liquidated debt. The Company may apply payments received from the Customer firstly to any costs, expenses and disbursements, then to interest and then to other amounts owed by the Customer.
14.9. The Customer shall have no right of set-off in any claim or proceeding brought by the Company against the Customer for any default in payment and the Customer acknowledges that the Company may produce these Terms in any claim by the Customer for set-off.
15. LIMITATION OF LIABILITY
15.1. The only conditions, guarantees and warranties which are binding on the Company in respect of the state, quality, condition, suitability or fitness of the Goods are those imposed and required to be binding by statute (including the Australian Consumer Law) which cannot be excluded. All other conditions, guarantees and warranties whether express or implied by law in respect of the state, quality or condition of the Goods which may apart from this clause be binding on the Company are expressly excluded.
15.2. To the extent permitted by law, the liability, if any, of the Company arising from the breach of such conditions, guarantees or warranties shall, at the Company’s option, be limited to and completely discharged by either the replacement or the repair by the Company of the Goods or the granting of credit in favour of the Customer up to the value of the Goods. The Customer acknowledges and agrees that the Company has no liability to any person for any loss or damage of any kind whatsoever including without limitation, for any costs associated with replacing or rectifying the Goods other than the Company’s actual costs associated with same, or any indirect or consequential loss (including loss of profits, business, revenue, opportunity, goodwill, or loss arising from any failure, breakdown, defect or deficiency in the Goods) even if due to the negligence of the Company arising out of or in connection with the Goods.
16. DEFECTS, WARRANTIES AND RETURNS
16.1. The Customer must inspect the Goods on Delivery and must, at the time of Delivery, provide to the Company a signed written acknowledgement (in a form as provided by the Company) stating that the Goods are free of any evident defect/damage, and fully conform with the Goods as ordered. In the case of discovery of any latent defect in the Goods, the Customer must, within 7 days of such discovery, notify the Company in writing of any evident defect. Upon such notification the Customer must allow the Company to inspect the Goods.
16.2. Subject to this clause, a return of Goods will only be accepted provided that:
16.2.1. the Customer has fully complied with these Terms;
16.2.2. the Company has agreed that the Goods are defective;
16.2.3. the Goods are returned within a reasonable time at the Customer’s cost; and
16.2.4. the Goods are returned in the identical condition to that in which they were delivered.
16.3. The Company shall not be liable for any defect or damage to Goods delivered which may be caused or partly caused by or arises as a result of:
16.3.1. the Customer failing to properly maintain or store any Goods;
16.3.2. the Customer using the Goods for any purpose other than that for which they were designed;
16.3.3. the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to any reasonably prudent operator or user;
16.3.4. the Customer failing to follow any instructions or guidelines provided by the Company;
16.3.5. the Customer failing to comply with all requirements detailed in clause 9 of these Terms; or
16.3.6. fair wear and tear, any accident, or act of God.
16.4. If the Customer fails to notify the Company that the Goods are to be used in extreme environments and the Goods are not suitable for those environments, then any warranty associated with those Goods is null and void.
16.5. No Order may be cancelled, modified or deferred without the prior written consent of the Company (which is at the Company’s sole discretion). If such consent is given, it is at the Company’s election, subject to the Company being reimbursed all losses, including loss of profits, and paid a cancellation and/or restocking fee (being not less than 10% of the invoice value of the Goods).
16.6. The Company may cancel any Contract to which these Terms apply or cancel Delivery of the Goods at any time before the Goods are delivered by giving written notice to the Customer. By given such notice, the Company shall repay the Customer any money paid by the Customer for the Goods. The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.7. In the event that the Customer cancels Delivery of the Goods, the Customer shall be liable for any and all loss incurred by the Company as a direct result of the cancellation.
16.8. Without limiting the Company’s rights under these Terms, no cancellation of an Order for Goods requested by the Customer will be permitted where the Goods are manufactured in accordance with the Customer’s specifications, or are non-stocklist items.
17.1. Particulars in leaflets, catalogues, drawings, brochures and other printed material are illustrations only, form no part of the Contract between the Company and the Customer, and are not binding to the Company.
18. DISPLAY AND SAMPLES
18.1. Any display product or sample inspected by the Customer is solely for the Customer’s convenience and does not constitute a sale by sample.
19. FORCE MAJEURE
19.1. The Company will not be liable for any breach of the contract due to any matter or thing beyond the Company’s control (including but not limited to transport stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, intervention or public authority, explosion or accident.
20.1. The Company collects the personal information of the Customer to enable it to provide a Quotation for its Goods and to provide those Goods to the Customer. The Company may disclose the personal information of the Customer to third parties that assist in in providing the Goods.
20.2. Where Goods are supplied, or intended to be supplied, to the Customer on credit the Customer authorises the Company, its employees and agents to make such enquiries as it deems necessary to investigate the creditworthiness of the Customer including (without limitation) making enquiries with trade referees, financial institutions, credit providers and credit reporting agencies and the Customer authorises the disclosure of all such information obtained to the Company. . With limiting this clause the Customer agrees to:
20.2.1. the Company obtaining a credit report containing personal credit information about the Customer;
20.2.2. the Company exchanging information concerning the Customer with trade referees, financial institutions and/or credit providers; and
20.2.3. the Company being provided a consumer credit report to collect all overdue payments.
21.1. The failure by the Company to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision, if any provisions of these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provision shall not be affected, prejudiced or impaired.
21.2. These Terms, and any contract to which they apply, shall be governed by the laws of New South Wales in which the Company has its principal place of business and are subject to the jurisdiction of the courts in that state.
21.3. The Company shall be under no liability, whatsoever, to the Customer for any indirect and/or consequential loss and/or expenses suffered by the Customer arising out of any breach by the Company by these Terms.
21.4. The Customer shall be not be entitled to set off against, or deduct from the price any sums owed or claimed to be owed to the Customer by any company nor to withhold payment of any invoice because part of that invoice is in dispute.
21.5. The Company may licence or subcontract all or any part of its rights or obligations without the Customer’s consent.
21.6. The Customer warrants that as prior entry to this agreement has obtained all necessary authorisation to allow it to do so, it is not insolvent and this agreement creates binding and legal obligations on it.