4.2 Subject to clause 8, BSH will not be liable for any loss or deterioration of, or damage to, the products:
(a) where a carrier is engaged by BSH to deliver the products to the Buyer, from such time as the Buyer or carrier commences unloading the products or the Buyer acknowledges receipt of the products, whichever occurs first; and(b) in all other cases, from such time as the products are loaded onto the carrier’s vehicle at the place of dispatch.
5. Property5.1 The Buyer acknowledges and agrees that until it has paid, in cleared funds, to BSH the full purchase price of all products supplied by BSH and all moneys otherwise owing by the Buyer to BSH for any reason whatsoever:
(a) the Buyer holds the products as bailee for and on behalf of BSH;
(b) as between BSH and the Buyer, BSH retains full title and ownership in all products supplied to the Buyer;
(c) for such time as the Buyer retains possession of the products, the Buyer must:
(i) insure them for the full purchase price;
(ii) store them securely and in such manner that they may be identified as the property of BSH and easily removable by BSH; and
(iii) ensure the products are properly maintained in the condition in which they were delivered and must make good any damage or deterioration.
5.2 Notwithstanding clause 5.1, subject to clauses 5.3, 5.4, 5.5 and 5.6, the Buyer may sell the products in the ordinary course of its business as fiduciary agent for and on behalf of BSH.
5.3 The Buyer acknowledges and agrees that, if it sells any of the products in accordance with clause 5.2, it receives those proceeds of sale as trustee for and on behalf of BSH but only to the extent that those proceeds do not exceed the invoice price of the goods (including GST) supplied by BSH. It must account to BSH on demand for the proceeds of sale held by it as trustee for BSH.
5.4 The Buyer acknowledges and agrees that:
(a) BSH may, from time to time, enter the Buyer’s premises to inspect, copy or take extracts from the books, records and files of any kind of the Buyer relating to the sale of the products or the identification of sale proceeds in respect of the products;
(b) it will keep its books, records and files of any kind available for inspection by BSH at its principal place of business; and
(c) BSH’s failure to exercise any right under 5.4(a) or any other right is not a waiver of the trust arising under clause 5.3.
5.5 A default event will occur if:
(a) in the sole opinion of BSH, there is a material risk that the Buyer is, or will be, unable to pay any amounts owing to BSH or perform any other obligation under these Terms and BSH gives notice in writing to the Buyer of this opinion;
(b) the Buyer defaults in paying any sums due to BSH; (c) the Buyer is an individual and becomes insolvent, bankrupt, commits any act of bankruptcy, compounds with or enters into any compromise or arrangement with its creditors;
(d) the Buyer is a company and has a provisional liquidator, liquidator, receiver, receiver and manager or official manager, trustee for creditors or in bankruptcy, voluntary administrator or analogous person appointed to it or any of its property;
(e) has judgment entered against it in any court and BSH gives notice in writing to the Buyer that, in its sole discretion, BSH considers it to be a default event; or (f) a secured creditor seizes or takes possession of any collateral in the possession of the Buyer and BSH gives notice in writing to the Buyer that, in its sole discretion, BSH considers it to be a default event.
5.6 If a default event occurs, then:
(a) all moneys accrued, owing or remaining unpaid by the Buyer to BSH will become immediately due and payable without the need for any demand by BSH and the security interest constituted by this agreement will become immediately enforceable;
(b) the Buyer must not sell or otherwise deal with any products in its possession;
(c) the Buyer irrevocably authorises BSH and/or any agent of BSH to enter any premises, by the use of reasonable force if necessary, where BSH reasonably suspects the products are kept and to use the name of the Buyer and to act on its behalf to recover possession of BSH’s products;
(d) if BSH recovers possession of, and resells the products to any other party, then to the extent permitted by law:
(i) the Buyer will have no claim to any surplus proceeds received
by BSH from the sale of the products; and
(ii) the Buyer will indemnify BSH against any deficiency from the sale
of the products; and
(e) BSH may cease performance of and cancel any unperformed contract for the sale of products, reserving all of BSH’s rights and remedies against the Buyer, without being liable for any loss suffered by the Buyer as a result of the cancellation of the contract.
5.7 The Buyer acknowledges and agrees that if a default event contemplated by clauses 5.5(c) or 5.5(d) occurs or the Buyer ceases to carry on business, unless otherwise agreed to in writing by BSH, all rebates, discounts and like allowances allowed to the Buyer in the 12 months immediately preceding the relevant default event are cancelled and, if already paid, become immediately due and repayable to BSH and the balance of amounts owing are calculated as if the cancelled rebates, discounts and like allowances never applied. 5.8 Technical information: All information relating to development and manufacture of product remains the exclusive property of BSH. On request of the Buyer and to be determined on a case by case basis, BSH may at its discretion disclose specific information about the products to the Buyer.
BSH in this clause 5 includes its related bodies corporate (as defined in the Corporations Act 2001).