HUON AQUACULTURE COMPANY PTY LTD (ACN 067 386 109)
TERMS AND CONDITIONS OF SUPPLY
In consideration of the Supplier granting the Customer the facilities of a credit account, the Customer agrees to be bound by the following terms and conditions of supply:
1. Defined Terms
Contract means the contract between the Supplier and the Customer in relation to the supply of Goods by the Supplier the terms and conditions of which comprise these Terms and Conditions of Supply, the Terms and Conditions of Credit and the conditions contained in any invoice issued by the Supplier to the Customer (as varied from time to time).
Credit Application means any application for credit made by the Customer to the Supplier.
Confirmed Order has the meaning given to that term in clause 11 (Delivery and Shipment).
Consequential Loss means loss of profits or anticipated profits, loss of business or anticipated savings, loss of use, business interruption or loss of goodwill, bargain or opportunities.
Customer means the person, entity or organisation that purchases Goods from the Supplier.
Delivery Date means the date agreed between the Supplier and the Customer for the delivery of the Goods specified in an Order.
Goods means any items, goods or products supplied from the Supplier to the Customer.
GST means the Goods and Services tax as imposed by the GST Act together with any related interest, penalties, fines or other charges.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.
Minimum Order Value means the minimum order values as advised to the Customer from time to time, and at the date of this Contract are, in respect of orders to be delivered by:
(a) road outside of Tasmania, 240 kilograms;
(b) express air freight outside of Tasmania, 20 kilograms; and
(c) any method within Tasmania, 60 kilograms.
Order means an order for Goods made by the Customer in accordance with clause 3 (Order and Supply).
PMSI has the meaning given to the term purchase money security interest in the PPSA.
PPSA means the Personal Property Securities Act 2009 (Cth).
Supplier means Huon Aquaculture Company Pty Ltd (ACN 067 386 109).
Tax Invoice means a tax invoice issued in accordance with the GST Act.
Terms and Conditions of Credit mean the terms and conditions contained in the Credit Application made by the Customer to the Supplier.
Terms and Conditions of Supply means these terms and conditions.
(a) The Contract shall prevail over any other terms and conditions including those implied by statute to the extent permissible at law.
(b) The Customer agrees that in placing any Order with the Supplier, and/or by accepting delivery in whole or part of any Goods after being provided with a copy of these Terms and Conditions of Supply, the Customer has agreed to these Terms and Conditions of Supply whether or not the Customer has signed a copy of these Terms and Conditions of Supply.
3. Order and supply
(a) Goods may be ordered by the Customer from time to time.
(b) An Order must specify the type and quantity of Goods required and must be more than the Minimum Order Value (where applicable).
(c) The Supplier is not obliged to accept an Order from the Customer if:
(i) the Customer is in default in relation to any of its obligations under the Contract;
(ii) if the Order is less than the Minimum Order Value; or
(iii) the Supplier does not have sufficient Goods of the type and quantity specified in an Order available.
The price of Goods will be as advised by the Supplier to the Customer from time to time.
(a) The Customer agrees to pay the Supplier for all Goods provided by the Supplier to the Customer, as well as any applicable GST or other charges, duties and taxes as set out in the Contract or otherwise invoiced by the Supplier.
(b) Where Goods are exported, any charge, duty, import sales tax or other expenditure which is levied upon the Supplier in relation to the Goods will be added to the Customer’s account.
(c) If the Customer requires delivery by air freight, it will be charged to the Customer at cost.
(d) All amounts are due and payable on the payment terms that are agreed between the parties separately in writing.
As a precondition to the Supplier supplying Goods to the Customer, the Supplier may require the provision of security in the form of a cash deposit, third party guarantee, bond or bank guarantee.
7. Charging of Real Property
To secure payment of all monies owed to the Supplier by the Customer, the Supplier hereby charges in the Suppliers’ favour all of its estate and interest in any land in which it has any legal and/or beneficial interest and/or in which it later acquires any such interest and the Customer irrevocably agrees to execute on request any registrable instrument and/or any other necessary document to transfer to the Supplier of any such estate and/or interest by way of security.
8. Failure to pay
If payment is not received in accordance with clause 5 (Payment) this will constitute a default under the Contract and:
(a) all money owed by the Customer to the Supplier at the date of the default will become immediately due and payable from the Customer to the Supplier (Debt);
(b) at the Supplier’s discretion the Customer will be liable to the Supplier for interest accruing on the Debt at the rate of 2% per annum above the overdraft rate as charged by the Supplier’s lenders from time to time, from the date the Debt became due and payable, until the amount due is received in full by the Supplier. Such interest may, at the Supplier’s sole discretion, be capitalised on a monthly basis; and
(c) the Supplier will be entitled to suspend supplying all or any part of the Goods to the Customer for such periods of time as the Supplier determines in its absolute discretion.
In the event of a default by the Customer under the Contract, the Customer agrees to indemnify the Supplier for all costs that the Supplier may incur in connection with the default, including:
(a) any reasonable legal costs (on a solicitor/client basis) that the Supplier may become liable for;
(b) the reasonable costs, including their commission, of any mercantile agent or collection agency that the Supplier may choose to engage; and
(c) any other disbursements that the Supplier may reasonably become liable for.
10. Application of payments
(a) The Customer agrees that any time that it makes a payment to the Supplier, irrespective of whether the payment is made under or in connection with the Contract, that the Supplier may apply that payment in any manner that the Supplier sees fit.
(b) If the Supplier for whatever reason ceases to grant credit to the Customer in relation to the supply of Goods but continues to supply Goods on the basis that cash equal to or greater than their sale price is paid at the time of delivery of the Goods, the Supplier may at its option (and without notice to the Customer) apply all or any part of the cash so paid in or towards payment of any amount outstanding for Goods previously supplied to the Customer. In that event, the payment by the Customer shall be deemed to be in respect of such Goods previously supplied and the provisions of clause 14 (Retention of Title) shall apply in all respects to the Goods delivered at the time such cash payment is made on the basis that such Goods are being supplied on credit.
11. Delivery and shipment
(a) Following the placement of an Order, the Supplier and the Customer will agree on a Delivery Date and the specific quantity and type of Goods to be included in that Order (Confirmed Order).
(b) The Supplier will provide the Customer with a packing confirmation notice prior to, or at the time of shipment of the Goods which will contain details of the Confirmed Order.
(c) Delivery of the Confirmed Order will be arranged by the Supplier, except where otherwise agreed.
(d) If the Supplier is unable to deliver the Confirmed Order on the Delivery Date the Supplier will advise the Customer of this at least 24 hours prior to the Delivery Date.
(e) The Customer may cancel the Confirmed Order if:
(i) the Supplier advises that the Goods will not be delivered on the Delivery Date and the Customer and Suppler are unable to agree on an alternative Delivery Date; or
(ii) the Customer disagrees with the Confirmed Order and the Customer and Supplier are unable to agree on an alternative quantity and type of Goods that will constitute the Confirmed Order.
(f) A Tax Invoice will accompany all Goods delivered, or will be provided to the Customer within 24 hours of the Order being delivered.
12. Inspection and Acceptance
Upon delivery of the Goods, the Customer must:
(a) check the temperature of, and inspect the Goods;
(b) check that the Goods conform with the Confirmed Order; and
(c) sign for the Goods.
13. Risk in Goods
The risk of loss or damage to the Goods supplied by the Supplier to the Customer will pass to the Customer immediately upon delivery of the Goods:
(a) to the Customer; or
(b) into custody on the Customer’s behalf,
and the Supplier and any of its employees, officers, subcontractors or agents will not be liable to the Customer for any loss in relation to the Goods upon that delivery unless the Customer notifies the Supplier within 24 hours of delivery of any Goods that were damaged on delivery.
14. Retention of Title
The Customer acknowledges that the property in all Goods supplied and delivered to the Customer will not pass until payment in full for all Goods delivered has been made.
15. Return of Goods
The Customer may only return the Goods to the Supplier if:
(a) the Goods:
(i) are contaminated or otherwise of unacceptable quality; or
(ii) do not conform with the Confirmed Order; and
(b) all of the following conditions are satisfied:
(i) the Customer has notified the Supplier within 24 hours of delivery that it intends to return the Goods;
(ii) at the time of notifying the Supplier of its intention to return the Goods, the Customer provides digital photographs to the Supplier of the Goods to be returned;
(iii) the Supplier has authorised the return of the Goods;
(iv) the Goods are returned directly to the Supplier through its nominated carrier; and
(v) the Goods are returned in their original condition, with the original Tax Invoice relating to the Goods.
16. Exclusion of warranties
Where the Competition and Consumer Act 2010 (Cth) or similar State and Territory legislation implies covenants and warranties into the Contract in relation to the Goods for the benefit of the Customer then to the extent that those conditions and warranties may be lawfully excluded all such conditions and warranties are expressly excluded.
17. Warranty limitations
Any warranty expressly or impliedly contained in the Contract or imputed by statute is subject to the Customer having fully complied with its obligations under the Contract. Any such warranty shall not apply to any loss or damage caused by neglect misuse or mismanagement of Goods by the Customer or its servants or agents.
18. Limitation of liability
To the extent permitted by law, the Customer acknowledges and agrees that:
(a) the Supplier will not be liable to the Customer or any of its officers, employees, contractors, agents or other users of the Goods for Consequential Loss arising out of or in connection with the Contract and the supply of Goods; and
(b) where the Supplier becomes liable to the Customer in any manner for any breach of any condition or warranty expressed or implied in relation to the supply of Goods then the Supplier’s liability will be limited, at the Supplier’s sole and absolute discretion to either:
(i) the replacement of the Goods or the supply of equivalent goods; or
(ii) the price paid by the Customer for the Goods; or
(iii) the cost of the re-supply of the Goods.
19. Right of entry
(a) If the Supplier has cause to exercise any of the Supplier’s rights under the Contract, the Customer irrevocably grants to the Supplier the right to:
(i) enter onto the Customer’s property or premises; and
(ii) to recover and dispose of the Goods,
without notice, and without being in any way liable to the Customer or to any third party.
(b) In exercising its rights under clause 19(a):
(i) the Supplier shall be entitled to use such force as may be necessary; and
(ii) the Customer indemnifies the Supplier from any claims made by any third party as a result of that exercise.
(a) Unless the context requires otherwise, the terms used in this clause 20 have the meanings given to them in, or by virtue of, the PPSA.
(b) The Customer consents to the Supplier effecting a registration on the Personal Properties Securities Register (in any manner the Supplier considers appropriate) in relation to any security interest arising under or in connection with the Contract and the Customer agrees to provide all assistance reasonably required by the Supplier to facilitate this.
(c) The Customer acknowledges that the interest of the Supplier under the Contract is a security interest for the purposes of the PPSA and:
(i) the security interest is a purchase money security interest (PMSI) for the purposes of the PPSA;
(ii) that security interest relates to the Goods and all proceeds of any kind;
(iii) this Contract amounts to a security agreement for the purposes of the PPSA.
(d) The Customer waives the right to receive a copy of any notice, verification statement confirming registration of a financing statement or a financing change statement relating to the security interest or PMSI under this document, unless the notice or statement is required by law and cannot be excluded.
(e) If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising out of this Contract, the Customer and the Supplier agree that each of the provisions of the PPSA which section 115 of the PPSA permits parties to contract out of, other than sections 117, 118, 123(1), 134(1) and 135, do not apply to the enforcement of that security interest. This clause 20(e) does not apply if the Goods supplied by the Supplier are to be used predominantly for personal, domestic or household purposes.
(f) The Customer and the Supplier may not disclose any information of a kind referred to in section 275(1) of the PPSA that is not in the public domain. The Customer agrees that it will only authorise the disclosure of information under section 275(7)(c) of the PPSA or request information under section 275(7)(d) of the PPSA, if the Supplier approves.
21. Force Majeure
Neither party is liable to the other for delay or failure to fulfil obligations under the Contract (other than an obligation to pay money) to the extent that the delay or failure is due to an unforeseen event beyond a parties reasonable control. Each party agrees to use its reasonable endeavours to remove or overcome the effect of the relevant event without delay.
(a) The Supplier may terminate the Contract and any supply of Goods immediately and without any liability to the Customer if the Customer is in breach of any provision of the Contract or becomes insolvent, goes into liquidation, enters into a scheme of arrangement or appoints an administrator.
(b) Either party may terminate the Contract and any supply of Goods at any time by giving the other party at least 14 days’ notice.
(c) Termination or expiry does not affect the accrued rights and obligations of the parties under the Contract, including with respect to any payments due to the Supplier or any indemnities given by the Customer under the Contract.
The Customer agrees that:
(a) it signs this Contract both in its personal capacity and as the trustee of any trust of which it is now trustee or may become during the term of this Contract; and
(b) if it enters into this Contract as the trustee of any current or future trust it does so with complete and valid authority pursuant to the relevant trust and warrants that it has the power to grant security over any trust property.
24. Non assignment
Except with the Supplier’s written consent, the Customer must not transfer or otherwise deal with any of its rights or obligations under this Contract to any other party (including through a sale or lease of the Customer’s business).
25. Provision of financial information
The Customer, on request from the Supplier, must provide all financial information necessary to the:
(a) Supplier; or
(b) the Supplier’s trade insurers sufficient to allow the insurer to provide trade insurance cover.
A right under this Contract may only be waived in writing, signed by the party granting the waiver.
27. Entire agreement
The Contract is the entire agreement in relation to the supply of Goods to the Customer and will have precedence over all other documents, correspondence or other writing at any time passing between the Supplier and the Customer, including over any purported terms of the Customer. Any terms and conditions contained in an order do not vary the Contract and are specifically excluded.
28. Governing law and jurisdiction
The laws of Tasmania govern the Contract and the parties submit to the non-exclusive jurisdiction of the courts of Tasmania.