1 Application of these Terms and Conditions
These terms and conditions (“Conditions”) apply to all supplies made by the Supplier to the Purchaser. Where the Purchase Order purports to be made on or subject to terms and conditions other than these Conditions, the Purchaser agrees that such other terms and conditions are disregarded and form no part of the Contract unless the Supplier agrees otherwise in writing.
2 Quotations, Purchase Orders and Forecasts
Any quotation made by the Supplier is not an offer to sell and no Purchase Order given in pursuance of any quotation will bind the Supplier unless and until such Purchase Order is accepted by the Supplier in its absolute discretion. All quotations are subject to withdrawal or variation by the Supplier at any time prior to acceptance of a Purchase Order.
Where the Purchaser has provided the Supplier with a forecast of future requirements it acknowledges that the Supplier will be entitled to rely on the accuracy of such forecast(s) for the purpose of ordering raw materials and arranging its resources so as to be able to meet those forecast requirements. In the event that any such forecast is materially inaccurate the Supplier shall be entitled to invoice the Purchaser for all costs, expenses or losses which result from the Supplier having relied on the inaccurate forecast. Such invoice will be subject to the normal terms of payment applying to the Purchaser.
3 Terms of Payment
Terms of payment are strictly 30 days from end of the month of issue of the tax invoice unless otherwise agreed to by the Supplier. Any credit limit determined by the Supplier, in its absolute discretion, and as varied from time to time by the Supplier, shall apply to all purchases of supplies from the Supplier. If payments are not made within the above terms the Supplier is entitled to calculate and charge interest at a rate of 12 % per annum calculated daily.
If the Purchaser defaults in payment, or an application is made to a court to wind up the Purchaser, or a receiver or administrator is appointed to manage the affairs of the Purchaser, or the Purchaser makes or proposes to make any arrangement with its creditors, then the Supplier may, without prejudice to any other remedy that may be available to the Supplier, at its option withhold further deliveries or terminate the Contract and may recover from the Purchaser, at a minimum, reasonable compensation for all costs incurred in complying with the Purchaser Order.
5 Delivery and Risk
While the Supplier will use all reasonable endeavours to deliver by the date specified in the Purchase Order, it does not guarantee delivery on that date and is not liable for any loss resulting from late or early delivery. Delivery of the Goods shall be effected when the Goods are unloaded from the delivery vehicle or placed on the Purchaser’s or the Purchaser’s agent’s nominated carrier. If no date for delivery has been specified, then the Goods shall be supplied to the Purchaser and the Purchaser shall receive the Goods as soon as practicable after the Purchase Order has been accepted by the Supplier. Risk in the Goods passes to the Purchaser at the time of delivery. Delivery to the Purchaser is deemed to occur at the time of delivery to the Purchaser, its agent or carrier.
6 Passing of Property
The Purchaser agrees that property in the Goods is retained by the Supplier until payment by the Purchaser of all sums owing to the Supplier, whether under the Contract or otherwise.
If the Purchaser fails to pay by the due date any amount owing to the Supplier, the Supplier may (without prejudice to any of its other rights) recover and resell any of the Goods in which property has not passed to the Purchaser, and the Purchaser authorises the Supplier to enter onto the premises where the Goods are kept to take possession of the Goods for that purpose at any time.
If the Purchaser sells or purports to sell any of the Goods supplied by the Supplier in which property has not passed to the Purchaser, then the Purchaser does so as a fiduciary for the Supplier. The proceeds of such sale are the property of the Supplier to the extent of any money owed to it by the Purchaser. The Purchaser must account to the Supplier for that portion of the proceeds of sale.
Any request by the Purchaser for cancellation of a Purchase Order must be in writing and may be delivered by post, hand delivery, facsimile or email. The Purchaser is liable to reimburse the Supplier for the costs it has incurred in fulfilling the Purchase Order up to the date the request for cancellation is received by the Supplier, together with the Supplier’s loss of profit resulting from the cancellation of the Purchase Order.
8 Force Majeure
Neither party is liable for any loss incurred by the other party as a result of any delay or failure to observe any of these Conditions (other than an obligation to pay money) as a result of any circumstance beyond the party’s control, including but not limited to any strike, lock out, labour dispute, act of God, pandemic, epidemic, fire, flood, accidental or malicious damage, shortage of raw materials, or breakdown in machinery. During the continuance of such circumstance the obligations of the party affected, to the extent they are affected by the circumstance, are suspended and resume as soon as possible after the circumstance has ceased to have effect.
9 Supplier’s Liability
(a) All representations, statements, terms and conditions and warranties (whether implied by statute or otherwise) not embodied in these Conditions are expressly excluded to the fullest extent permitted by law, The Purchaser acknowledges that neither the Supplier nor any person acting on the Supplier’s behalf has made any representations or given any promise or undertaking in relating to the quality of the Goods, their fitness for purpose or their usage.
(b) Nothing in these Conditions is to be interpreted as having the effect of excluding, restricting or modifying any condition or warranty, or right or liability implied by any applicable legislation (including the Competition and Consumer Act 2010 (Cth)) into the Contract, if such exclusion, restriction or modification would be void or prohibited by the legislation.
(c) To the extent that the Supplier breaches any condition or warranty implied into the Contract and which cannot be excluded, or breaches any condition or warranty expressly included in the Contract, then the Supplier’s liability is limited to, and completely discharged by, at the Supplier’s discretion, either:
(d) Subject to (b) and (c) above, the Supplier is not liable to the Purchaser (or to any third party claiming through the Purchaser) for any Loss caused by any act or omission of the Supplier, its employees or agent, and whether based on negligence or other tort, contract or otherwise.
(e) In no event shall the Supplier be liable for indirect or consequential losses (including loss of production, profit, goodwill or reputation).
10 Price Variation
The price quoted by the Supplier is subject to variation at any time prior to the date of acceptance of the order upon written notice to the Purchaser.
Without limitation, if the cost of wages, materials or transport to the Supplier increases after the date of any written and/or price list and before delivery of the Goods specified in the Purchase Order, the Supplier may add a fair and reasonable amount to the price quoted to cover the increase and the Purchaser must pay the price as varied.
11 Tax and Duties
The Purchaser is liable for all taxes (including GST), duties, levies and other government fees and charges in relation to the Goods. Unless specified otherwise, prices quoted do not include such taxes (including GST), duties etc. Where a Contract includes a price stated to be inclusive of taxes, the Supplier may on 7 days notice in writing increase the price for all or any of the Goods to the extent required to pass through the impact on the Supplier of any new tax, duty or other government charge or scheme (including any carbon based tax or scheme) coming into effect after the date of the Contract in accordance with the impact that such new tax, duty charge or scheme has on the Supplier’s costs of producing and supplying the Goods.
12 Goods and Services Tax
If, and to the extent, any supply of the Goods under the Contract is a taxable supply within the meaning of the GST Law, the price for the Goods will be increased to include GST payable by the Supplier in respect of the supply. All rebates, discounts or other reductions in price will be calculated on the GST exclusive price.
The parties agree that: (i) the parties must be registered persons within the meaning of the GST Law; (ii) the Supplier must provide tax invoices and if applicable adjustment notes to the Purchaser in the form prescribed by or for the purposes of the GST Law, and (iii) costs required to be reimbursed or indemnified excludes any amount that represents GST for which an input tax credit within the meaning of the GST Law can be claimed.
Any claim by the Purchaser arising out of the Contract must be made in writing and may be delivered by post, hand delivery, facsimile or email as soon as practicable after discovery by the Purchaser of a problem and in any event no later than 7 days after delivery of the Goods. The Purchaser must supply a sample, if requested, and information to the extent the Supplier can identify the product. The Supplier has the right at any time within 14 days after receipt of the claim to inspect the relevant Goods. If the Purchaser disposes of any of the Goods within the 14 day period, except with the written consent of the Supplier, all claims in respect of the Goods disposed of are deemed to have been waived by the Purchaser.
Unless otherwise instructed by the Purchaser in writing or included in a written quotation or price list by the Supplier, insurance cover for the Goods in transit will not be arranged by the Supplier. Instructions for insurance cover will only be accepted in writing at the time the Goods are ordered.
15 Delivery Provisions
Delivery may be made in one or more lots and at different times and by separate deliveries or shipments. Each lot forms a separate Contract and must be accepted and paid for accordingly, notwithstanding any late delivery or non delivery of any other lot.
The Supplier will deliver the Goods to the Purchaser’s nominated store.
16 PPS Law
(a) In this clause PPSA means the Personal Property Securities Act 2009 (Cth) and Security Interest means anything that is defined to be a “security interest” under the PPSA.
(b) If the Supplier determines that a Contract (or a transaction in connection with it) is or contains a Security Interest for the purposes of the PPSA, the Purchaser agrees, at its own cost, to do anything (such as obtaining consents, signing and producing documents and supplying information) which the Supplier reasonably requires for the purposes of: (i) ensuring that the Security Interest is enforceable, perfected or otherwise effective; or (ii) enabling the Supplier to apply for any registration, or give any notification, in connection with the Security Interest so that the Security Interest has the priority required by the Supplier; or (iii) enabling the Supplier to exercise rights in connection with the Security Interest.
(c) The Purchaser agrees to pay or reimburse the reasonable costs of the Supplier in connection with any registration of, perfection of or giving of any notification in relation to, a Security Interest, or exercise of its rights in connection with a Security Interest.
(d) The Supplier need not give any notice under the PPSA (including a notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
(a) Any of these Conditions may be varied in writing by the Supplier.
(b) The Supplier may set-off any amounts owed by it to the Purchaser under the Contract against amounts owed by the Supplier to the Purchaser on any account whatsoever.
(c) Failure by the Supplier to insist on strict performance of any of these Conditions shall not be deemed a waiver thereof. The waiver by the Supplier of any provision or breach of any provision, of the Contract is not to be construed as a waiver of any other provision or a breach of any other provision, or of any further breach of the same or any other provision of the Contract.
(d) If any provision of the Contract is unenforceable or void either in whole in part for any reason, then that provision (or part) is deemed to be deleted without any way affecting the validity or enforceability of any other provision.
(e) The Contract (including the details appearing on the Purchase Order) constitutes the entire agreement between the Purchaser and the Supplier and no modification is binding in relation to the Contract unless agreed to in writing by the Supplier.
(f) Any dispute arising out of the Contract is governed by the laws of Tasmania and the Purchaser submits to that jurisdiction and agrees to be bound by the Federal Courts of Australia of that jurisdiction.
(g) All costs and expenses incurred by the Supplier to remedy any breach by the Purchaser of these Conditions shall be recoverable from the Purchaser in addition and without prejudice to the Supplier’s right to damages for breach of these Conditions.
(h) The Purchaser will not divulge to any person any information provided by the Supplier in relation to the Contract without the prior written consent of the Supplier, except as required by law or for the purposes of obtaining professional legal, financial or taxation advice.
(i) The following words have the following meanings in these Conditions, unless the context requires otherwise:
“Contract” means the agreement between the purchaser and the Supplier for the supply of the Goods on these Conditions and includes the details appearing on the Purchase Order;
“Conditions” means the terms and conditions set out in this document; “Goods” means all goods ordered in the Purchase Order;
“GST” has the same meaning as in the GST Law;
“GST Law” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Loss” means any loss, liability, damage, expense or cost whatsoever and includes (without limitation) indirect or consequential loss or damage, loss of profits or business opportunity, and damage to equipment or property; “Purchase Order” means a purchase order or alternative form of order or offer to purchase provided by the Purchaser to the Supplier;
“Purchaser” means the person (including its successors, personal representatives and permitted assigns) who acquires the Goods from the Supplier, and where this consists of more than one person the obligations in the Contract are deemed to be joint and several; and
“Supplier” means the company identified in the invoice.