Last updated 6 June 2013
1. Definitions and Interpretations
a) In these Trading Terms:
"Australian Consumer Law" means Schedule 2 of the Competition and Consumer Act 2010 (Cth) as amended;
"Company" means Rivalea (Australia) Pty Ltd (ACN 004 892 835) and its trading entities;
"Consumer" means a person acquiring Goods defined as a “consumer” under Australian Consumer Law.
"Consumer Goods" means ‘goods of a kind ordinarily acquired for personal, household or domestic use or consumption’, as that expression is used in Australian Consumer Law.
"Consumer Guarantee" means a consumer guarantee applicable to these Trading Terms as defined under Australian Consumer Law.
"Customer" means the person described in the Company’s Application for a credit account as “the Applicant” and/or the person or entity in whose name an account is maintained by the Company and/or the person or entity that purchases Goods and services from the Company.
“Event of Default” means:
i) The Customer fails to pay when due any moneys owing to the Company under these Trading Terms.
ii) The Customer gives any third party a security interest in accounts as original collateral in respect of any proceeds of any Goods supplied to the Customer;
iii) An Insolvency Event occurs or is continuing.
iv) Any representation or warranty made or issued by the Customer proves to have been untrue in any material respect when made.
v) The Customer breaches any other provision of these Trading Terms and fails to cure it within five (5) business days notice from the Company to do so.
“Feeds Customers” means Customer’s dealing with Corowa Feed Sales.
"Force Majeure Event" is defined in Clause 18 herein.
"Financing Statement" and "Financing Change Statement" means a "financing statement" and a "financing change statement" within the meaning of the PPSA.
"Goods" means any goods supplied by the Company to the Customer under these Trading Terms. They include goods described in any invoice, quotation or any other documents provided by the Company to the Customer.
"GST" means "GST" within the meaning of the applicable GST Act as amended.
"GST Act" means the goods and services tax in Australia.
"Insolvency Event" means, in relation to a party, one of the events specified in Clause 17 herein has occurred in relation to that party.
"Intellectual Property" means any intellectual property of the Company including without limitation patents, trademarks, copyright, designs, layouts, knowhow, software, object codes, source codes, and confidential information.
“Meats Customers” means Customer’s dealing with Corowa Meat Sales, Melbourne Baxters, Sydney Coral Park and Brisbane Rivalea.
"PMSI" means a purchase money security interest as defined in the PPSA.
"PPSA" means the Personal Property Securities Act 2009 (Cth) as amended.
“Price” means the price for the Goods as set out on the Sales Invoice sent by the Company from time to time. "Proceeds" means "proceeds" within the meaning of the PPSA.
"Register" means the Personal Property Securities Register established under the PPSA.
“Sales Invoice” means the sales invoice relating to Goods supplied or services rendered by the Company to the Customer from time to time.
"Security Agreement" means a "security agreement" within the meaning of the PPSA.
"Security Interest" means a "security interest" within the meaning of the PPSA.
“Standard Terms” means Meats Customers are fourteen (14) days from invoice, and Feeds Customers are thirty (30) days from the end of the account calendar month of invoice.
b) Terms and expression defined in or for the purposes of the PPSA and the Australian Consumer Law have the same meaning when used in these Trading Terms.
c) Any special conditions specified on the Sales Invoice shall, to the extent they are inconsistent with these Trading Terms, prevail over these Trading Terms.
d) These Trading Terms shall, to the extent that they are inconsistent with any terms contained in any credit application, prevail over that credit application.
e) Words importing the singular shall include the plural (and vice versa).
a) These Trading Terms apply to:
i) The establishment, operation and use of the account of the Customer with the Company;
ii) All transactions effected by the Customer with the Company for the supply of Goods or services on its account or on a cash basis unless otherwise expressly agreed in relation to any particular supply of Goods; and
iii) The exclusion of all others including any terms and conditions of the Customer.
b) These Trading Terms shall apply as if incorporated into each order placed by the Customer with the Company.
c) These Trading Terms may be varied only with the written agreement of the Company.
d) The Company may at any time and from time to time by written notice to the Customer alter these Trading Terms.
a) The Customer may place and the Company may accept or reject orders in part or full for the supply of Goods upon these Trading Terms bya communication in writing (including by e-mail) or any other means that the parties may agree on including by telephone and by internet ordering.
b) The Company reserves the right to specify a minimum order value and/or quantity which it will accept from time to time and to impose a surcharge should the Customer require delivery of goods having a value less than the minimum order value.
c) Delivery of ten percent (10%) more or less than the quantity specified on the delivery documentation will constitute fulfilment of the order and any excess not exceeding that amount will be taken by the Customer who must pay for the actual quantity delivered.
d) The Company reserves the right to vary the order of the Customer at any time prior to delivery of the Goods.
e) Orders accepted by the Company cannot be cancelled or altered in whole or in part without the Company' written consent.
4. Withholding Supply
The Company reserves the right, irrespective of whether or not an order has been accepted and without notice to the Customer, to withhold supply to the Customer and/or to cancel any obligation it may have to the Customer and the Company will not be liable for loss of damage resulting directly or indirectly from such action where:
a) The Company has insufficient Goods to fulfil the order;
b) The Goods ordered have been discontinued;
c) The Customer has failed to observe these Trading Terms or the Company’s payment terms or
d) The Company has determined, in its absolute discretion that credit should no longer be extended to the Customer.
5. Pricing, Delivery & Risk
i) The price quoted on an order shall be in Australian dollars unless specified on an order.
ii) All prices quoted or agreed are on a tax exclusive basis. The applicable amount of GST or other taxes or duty will be disclosed on invoices and is payable by the Customer.
iii) In certain circumstances, the invoice price may vary from the catalogue or order price, but this is rare and normally occurs when suppliers alter their pricing. Accordingly, the prices and product specifications in published price lists are subject to alteration without notice at any time prior to delivery, including the right to correct printing and clerical errors without notice. The Company will make every attempt to advise the Customer of any increase in any published price list.
iv) Unless otherwise agreed in advance, the Company reserves the right to:
i. charge the Customer for the cost of freight, delivery and imposts including any import duty and taxes and additional duty and taxes incurred as a result of importation prior to the proposed delivery date on the order and GST;
ii. charge for re-scheduling and delivery for all variations to the original contract; and
iii. adjust prices if and when necessary prior to acceptance of any offer from the Customer.
v) If delivery of Goods is delayed because of the late payment by the Customer of any of the sums due under Clause 5a)iv) herein, storage charges shall be at the expense of the Customer.
i) Any time quoted for delivery is an estimate only. The Customer is not relieved of any obligation to accept or pay for Goods because of any delay in delivery.
ii) The Company shall deliver Goods to the Customer as soon as reasonably practical after acceptance of any order from the Customer.
iii) The Company reserves the right to deliver by instalments and each instalment will be taken to be sold under a separate contract. Failure of the Company to deliver any instalment will not entitle the Customer to cancel the balance of the order. If the Customer defaults in payment for any instalment, the Company may elect to treat the default as a breach of contract relating to each other instalment.
iv) If the Company determines that it is, or may be, unable to deliver within a reasonable time, or at all, the contract may be cancelled by the Company. If the contract is cancelled, the Customer will have no claim against the Company for any damage, loss, cost or expense.
v) The Company will deliver Goods to the delivery address as notified in writing at the time of ordering, and will use its own nominated carriers and charge the Customer for freight on the invoice. Whilst the Company shall use all reasonable endeavours to comply with the Customer's particular delivery requirements and order specifications, the Customer will not be entitled to claim compensation by reason of failure to comply with their delivery requirements.
vi) Delivery shall be deemed to have taken place when the Company or its agent deliver or leave Goods at the address shown on the Sales Invoice for the delivery of such Goods.
vii) Applies to Meats Customers only - Goods sold on a “hot weight” basis are considered delivered ex-works and in such cases where the Company agrees to arrange for the dispatch of Goods to the Customer, all costs of delivery will be for the Customer's account.
viii)Any date agreed for delivery of Goods shall only be varied with the consent of the Company. If the Company agrees to postpone the delivery date, the Goods shall be stored at the Customer’s risk.
ix) Subject to the provisions contained in Clause 13 herein, the Company shall not be liable for any failure to deliver or delay in delivery for any reason including, without limitation:
i. Any Force Majeure Event as set out in Clause 18 herein;
ii. Breakage, accident or other damage to or failure of machinery or equipment, whether of the Company’s or of the any person on which the Company is relying, directly or indirectly, to meet the Company's obligations to the Customer;
iii. Unavailability or shortage of raw materials, labour, power supplies or transport facilities; or
iv. Failure or inability to obtain licences or the effect of any applicable laws, orders, rules or regulations of any government or competent authority.
x) Where in order to deliver the Goods the Company or its Carrier enters upon the Customer’s premises, the Customer will provide full and safe access to the Company or its Carrier and will be liable for, and indemnify the Company against the cost of all loss, damage to property or injury to persons, occurring directly or indirectly as a result of the failure by the Customer to ensure the said full and safe access.
xi) The Company reserves the right not to provide Goods to any Customer who fails to provide a safe environment for the Company’s employees or its agents.
xii) Applies to Meats Customers only - The Company retains the right to possession of all slides, gambrels and other equipment used for the delivery of Goods sold to the Customer. It is the Customers responsibility to ensure the return of all slides, gambrels and other equipment to the Company or the Company’s Agent.
i) Applies to Meats Customers only - The risk of loss, damage and the maintenance of food safety of the Goods shall pass to the Customer or its agent when delivered to the Customer or when the Goods become under the Customer’s control in any way.
ii) Applies to Feeds Customers only - The risk of loss and damage of the Goods shall pass to the Customer or its agent when delivered to the Customer or when the Goods become under the Customer’s control in any way.
iii) Applies to Meats Customers only - From the date of delivery of the Goods the Customer shall be responsible for compliance with food safety requirements relating to the storage, processing, sale and display of the delivered Goods.
iv) Goods in transit- Goods dispatched by the Company will be at the Customer's risk and the Company is under no obligation to insure the goods while in transit.
v) The Customer agrees to insure the Goods from the time of delivery and will note the Company’s interest as an interested party.
6. Retention of Title Arrangements
a) Property in and title to any Goods remains with the Company until the Customer has paid in full (and in cleared funds) all amounts owing by the Customer to the Company in connection with the Goods.
b) Until all Goods supplied by the Company have been paid for in full, the Customer will hold the Goods on trust and as bailee for the Company and the Company may appropriate any payments received from the Customer to such Goods and accounts as the Company thinks fit, notwithstanding any purported appropriation by the Customer to the contrary.
c) Unless otherwise agreed by the Company, the Customer must identify and store the Goods in a manner that clearly shows that they are the property of the Company and so they are maintained in good condition.
d) Notwithstanding any of the matters set forth in this Clause 6 herein, the Customer may sell the Goods to a third party in the ordinary course of their business. The Company shall be entitled to trace the sale Proceeds (or any insurance proceeds if an insurance claim has been made in respect to them), which Proceeds shall be held by the Company in a separate bank account on trust for the Company.
e) If the Customer is in default under these Trading Terms, they must return any goods not paid for to the Company upon request.
f) The Customer irrevocably authorises the Company and provides its consent to any of its lawful agents, at any reasonable time, to enter the Customer’s premises or any premises occupied by the Customer or its agents and re-take any Goods supplied under these Trading Terms and then to re-sell those Goods and retain the Proceeds without prejudice to the Company’s rights to claim the balance of all moneys due under the Trading Terms. The Customer indemnifies the Company in respect of any such entry. The provisions of this clause survive the termination of any Security Agreement that arises in respect of these Trading Terms.
7. Security Interest
a) a) The Customer acknowledges and agrees that these Trading Terms (including any order and invoice covering any goods ordered by the Customer) are a Security Agreement for the purposes of the PPSA and gives the Company a Security Interest in:
i) all Goods supplied to it that are described in any invoice or delivery and/or shipping documentation provided to it and/or order documentation that it gives to the Company including all present and after-acquired goods held by the Customer as inventory and any accounts relating to them.
ii) all present and future property of the Customer including real property. The Security Interest given by this clause is given as beneficial owner. If the Customer is a trustee of any trust, it acknowledges that the Security Interest is given by it covers both the assets of the trust and any personal assets that the Customer owns.
b) Any Security Interest that arises under this clause is a continuing Security Interest that applies to all Goods and their Proceeds and secures the due and punctual payment of all moneys payable by us under these Trading Terms. It is not extinguished or in any way diminished even if the Goods or any part of them is processed or commingled with and becomes part of a product or a mass as part of a manufacturing, assembling or commingling process. Any account arising by virtue of any sale of any Goods supplied to the Customer takes effect as a transfer.
c) The Customer acknowledges and agrees that the Company may register a financing statement including any financing change statement on the PPSA Register. If requested, the Customer will reimburse the Company for any costs and expenses and other charges incurred by it in registering them. The Customer irrevocably waives any rights to receive a copy of any verification statement.
d) The Customer acknowledges that until they have paid for all Goods they are not the owner of those Goods and, as such, if chapter 4 of the PPSA applies to these Terms, then the Customer contracts out of the enforcement provisions of the PPSA specified in section 115(1).
e) The Company and the Customer agree that neither party will disclose to an interested person or to any other person, any information of the kind described in section 275 (1) of the PPSA except that the Company may disclose that information to an interested person where section 275(7) of the PPSA applies.
a) If an Event of Default occurs or is continuing, the Company may immediately enforce these Trading Terms. Without limitation this includes:
i) Retaking possession of any Goods not paid for by the Customer;
ii) Suspending delivery of any Goods on order and/or refusing to process any unfulfilled order;
iii) Enforcing any security interest.
iv) Requiring cash on delivery.
v) Requiring payment of any proceeds held by the Customer in a separate account or otherwise.
vi) Appointing a receiver and manager of any of the Customer’s real or personal property. The Customer agrees that any such receiver and manager has the powers conferred by the Corporations Act 2001 (Cth) as amended.
b) If the Customer is in default they agree that the Company may exercise any of the powers conferred by these Trading Terms, including at law or in equity. The Customer appoints the Company its attorney by way of security for the purpose of exercising any powers the Customer gives the Company under these Trading Terms.
c) If the Customer has not been paid for the sale of the Company’s goods by any of its customers, at the Company’s option, it may in addition to the powers in section 120 of the PPSA, collect that account on giving that customer notice in writing to that effect. The Customer will be entitled to issue proceedings in the Company’s name against that customer for recovery of that account for the Company’s benefit. The Customer indemnifies the Company in respect of any such action and proceedings. For the purposes of this clause, the Customer must keep proper records and accounts in respect of such unpaid sales, including the dates of sale, price, amount and identity of such customer and the Goods.
d) The Company may in its discretion despite section 14(6) of the PPSA apply any moneys received in respect of any PMSI obligations of the Customer on a pro rata basis.
9. Payment Terms and payment defaults
a) Credit Arrangements
i) The Customer must pay accounts on cash on delivery (COD) basis, unless otherwise negotiated or stated.
ii) Where the Company has agreed to provide the Customer with credit, the Customer must (unless otherwise agreed in writing) pay the Company for the Goods supplied in accordance with the Standard Terms from the date of the invoice rendered by the Company to the Customer or within such other time frame as the Company approves in writing. All payments shall be made free of any deductions, withholding or set-off.
iii) Payment is to made by way of cheque, credit card or bank transfer of cleared funds in Australian dollars to the Company’s designated bank account unless agreed otherwise by the Company at the time of order, in which case such special conditions or additional security may be required by the Company as in its absolute discretion it deems fit.
b) Cash Sales
Where the Customer purchases Goods on a cash basis, the following arrangements will apply:
i) Full payment of the Goods to the Company must be made strictly in advance of delivery.
ii) Cancellation of purchase orders will only be accepted in accordance with the provisions specified in Clause 15 herein of these Trading Terms.
c) Other Conditions May be Imposed
The Company may, at its option, as a pre-requisite to manufacturing the Goods or making delivery, require all or any part of the following payment arrangements:
i) Payment of the Price in full;
ii) A letter of credit for the total amount of the Price from the Customer; or
iii) A deposit of a portion of the Price.
d) Payment Defaults
i) If the Customer does not make payment as required by the Trading Terms, the Customer may be required by the Company to pay by liquidated damages for a breach of contract a default charge in relation to the unpaid amount calculated by applying an interest rate being 3% per annum above the RBA (Reserve Bank of Australia) Cash Rate as published on the RBA website on the unpaid amount on a daily basis from the date the unpaid amount became due until the date that it is paid in full.
ii) If the Customer fails to pay for any Goods or services supplied by the Company when due, then by notice to the Customer the Company may declare any amounts actually or contingently owing by the Customer to the Company to be immediately due and payable.
iii) Where the Customer is overdue with any payment or the Company is in receipt of credit references that it regards as unsatisfactory, the Company reserves the right to change the Customer to a COD account and all Goods on a COD account shall be paid for before they are supplied.
e) Application of Payments
Any payments received by the Company will be applied first to any enforcement costs, then any interest and then towards any amount that is overdue.
10. Credit Card Payments
a) If the Customer pays its outstanding account by a credit card, at the time the transaction is processed, the Company reserves the right to charge the Customer an amount that the Company determines (acting reasonably) to be equal to the merchant service fee or any similar fee payable by the Company to its transaction acquirer in connection with the transaction. The following fees will apply: 1.7% for Visa and Master Cards will be payable by the Customer and will be added to the invoice price of the Goods sold.
b) The Company may add any amount payable by the Customer under Clause 10a) to the sale price of the relevant Goods or services supplied or to be supplied by the Company to the Customer.
a) To the extent that a party makes a taxable supply in connection with these Trading Terms, the consideration payable by a party under these Trading Terms represents the value of the taxable supply for which payment is to be made, unless otherwise expressly agreed.
b) Subject to Clause 11c) herein, if a party makes a taxable supply pursuant to these Trading Terms for a consideration which, under Clause 11a) herein, represents its value, then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
c) A party's obligation to make payment under Clause 11b) herein is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.
12. Default Arrangements & Enforcement Expenses:
If the Customer fails to pay any amounts when due, then in addition to any other amount payable under these Trading Terms, the Customer must pay to the Company upon demand any costs incurred in connection with enforcement of any of the Company's rights in connection with the supply of goods on these Trading Terms including without limitation:
a) Any legal costs (on a solicitor and own client basis) incurred by the Company;
b) Any mercantile agents fees incurred by the Company in recovering or attempting to recover any amount payable by the Customer under these Trading Terms; and
c) Any dishonour or bank fees incurred by the Company in connection with payments or remittances that are made or that should have been made by the Customer.
13. Exclusions of Warranties, Limitations of Liability and Indemnity:
a) The Company acknowledges that the Australian Consumer Law and similar legislation provides:
i) Certain rights for Consumers that cannot be excluded; and
ii) In relation to the supply of Goods, that in some circumstances the Customer may be a Consumer.
b) Subject to paragraph (c), the Company excludes any and all conditions, warranties, terms and consumer guarantees implied by statute, general law or custom applicable to any supply of Goods.
c) The Consumer Guarantees apply to any supply of Goods where the Customer is a Consumer, and the liability of the Company in connection with the Consumer Guarantees is not limited except as stated in paragraph (d).
d) If the Customer is a Consumer in relation to the supply of Goods, and those goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the liability of the Company in connection with the Consumer Guarantees is limited to one of the following (as selected by the Company):
i) The replacement of the Goods or the supply of equivalent Goods;
ii) The repair of the Goods;
iii) The payment of the cost of replacing the Goods or of acquiring Goods equivalent to the Goods; or
iv) The payment of the cost of having the Goods repaired, except where it is not Fair and Reasonable to limit liability in this way.
e) The Company:
i) Excludes any liability in contract, tort (including negligence) or otherwise, in connection with:
a. any supply of Goods or from the non availability of stock,
b. any loss in the course of transport,
c. for any indirect damages or losses or
d. for any special, punitive or exemplary damages;
ii) Limits its liability in contract, tort (including negligence) or otherwise, in connection with any supply of Goods, to the price payable by the Customer for the Goods; and
iii) Excludes any liability for or in connection a claim that the Goods are not fit for a particular purpose or function, except where the Company has a liability as contemplated by Clauses 13a) or 13d) herein.
f) In so far as permissible by law and except as provided under this Clause 13 herein, the Customer will indemnify the Company from or against any physical, direct, indirect and consequential damage, loss or costs (including legal costs on a solicitor- client basis) sustained by the Company or any other person arising from the supply of the Goods or services under these Trading Terms and will indemnify and save harmless the Company from any claim or proceeding against it to the extent caused or contributed to by the Customer in respect to any Goods supplied under these Trading Terms after risk or title has passed to the Customer.
g) The Customer agrees to notify the Company in writing of any change in ownership or shareholding of the Customer within seven (7) days from the date such change or immediately if an Insolvency Event as specified in Clause 17 herein hereof occurs and the Customer shall indemnify the Company against any loss or damage incurred by it as a result of its failure to notify the Company of such change or Insolvency Event.
14. Claims and Returns
a) The Customer will be responsible for immediate examination of the Goods upon arrival at their destination and will be taken to have accepted Goods received by it as being in accordance with its order unless it notifies the Company in writing of its claim, including invoicing shortages, within forty eight (48) hours (time being of the essence) from the date of receipt of the Goods. All returns must comply with the Company’s “Return of Merchandise Procedure as set out in this Clause 14 herein (or as maybe notified to the Customer from time to time).
b) The Customer must take all reasonable steps to mitigate any loss in connection with its claim or any defect in the delivered Goods.
c) The Company will not accept the return of Goods that are specifically made to the Customer’s specifications or ordered for special manufacture.
d) No return of Goods that are allegedly defective or faulty will be accepted by the Company unless either:
i) The Customer is a Consumer in relation to those Goods and is entitled to return them because a Consumer Guarantee applies; or
ii) The Company has given prior written authorisation for the return of the Goods and has allocated the Customer with a Claims Reference Number (“CRN”) (This number can be obtained by contacting the Company and a reference number will be provided by telephone. CRNs will only be issued for genuine claims for shipping errors, faulty goods or damaged goods). The CRN and the invoice number must be clearly noted on the outside of the parcel or container containing the returned Goods.
e) All Goods for return must be inspected by a representative of the Company prior to the Company accepting any obligation for the return of Goods.
f) If the Company consents under Clause 14d)ii) herein for the return of any Goods, the Customer must:
i) Return the Goods to the Company as directed by the Company;
ii) Provide to the Company a written statement setting out the reasons for return of the Goods and the nature of the fault or shipping error and any other relevant information such as a copy of the signed order confirmation;
iii) Give the Company details of the original invoice number and the date of delivery of the Goods;
iv) Provide to the Company a copy of the receipt or delivery docket relating to the Goods delivered;
v) Return the Goods in their original condition as at the time of their sale and/ or packed in their original, undamaged state.
Any returns that do not strictly follow the procedures specified herein will not be accepted.
g) In the event of the Company delivering the Goods to the Customer's nominated carrier, the Customer shall be responsible for the expense of that carrier, and the Company shall be liable only to replace defective or faulty Goods and not Goods damaged in transit.
h) Upon arrival of a faulty product, the damaged or faulty Goods will be assessed by the Brand Manager or the equivalent. The Customer will be notified within seven days the outcome of any claim and whether they will receive a repair, exchange or credit. Exchanges are only possible if the item is available in stock. The Company will only exchange faulty items for the same item in the same style, subject to availability.
i) In the event of the Company agreeing to accept a return of Goods, these shall be returned to the Customer at the Customer’s expense (unless the Goods are deemed faulty by the Company within its terms of warranty). The Company shall credit the Customer's account with an amount equal to the invoiced sum.
j) Where the company determines that the Customer’s claim under Clause 14 herein is valid, the Company will provide an adjustment note. Payment of the amount specified on the invoice must not be withheld whilst adjustment notes are being published.
15. Cancellations and Variations of Orders
a) Any change to or cancellation of orders by the Customer must be directed to the Company’ Account Manager in writing and must be received by the Company by no later than seven (7) days after the initial order.
b) Back orders will be shipped when stock becomes available, unless the Goods subject to the back order have been cancelled, and the cancellation has been accepted by the Company.
c) The Company endeavours to meet all orders placed. However, for various reasons including delayed availability of product from our suppliers this may not be possible, and accordingly the Company accepts no responsibility for undelivered orders.
d) The Customer may not cancel or vary an order unless the Company in its absolute discretion consents in writing to the cancellation or variation.
e) The Company may charge the Customer for any reasonable costs incurred in preparation of any order that has been varied or cancelled.
f) The Company reserves the right to immediately cancel any contract for the supply of Goods or suspend any such supply without incurring any liability to the Customer in any of the following circumstances:
i) The Customer is overdue with any payment due under these Trading Terms or is otherwise in breach of these Trading Terms or
ii) An Insolvency Event has occurred.
g) Cancellation by the Company under this clause shall be without prejudice to the Company’s right to recover payment from the Customer for Goods previously supplied.
16. Insolvency Events
If the Customer:
a) becomes insolvent or bankrupt;
b) is the subject of an application to wind up, or if a Liquidator, Provisional Liquidator, Receiver, a Receiver and Manager, or an Administrator is appointed with respect to the Customer or any of the Customer's assets;
c) makes an arrangement or composition with its creditors or attempts to make such an arrangement or composition;
d) is unable to pay their debts as they fall due;
e) fails to comply with a statutory demand made under the Corporations Act 2001 (Cth) as amended for payment of a debt;
f) ceases to operate;
g) has execution levied against any of their assets; or
h) has a mortgagee, Liquidator, Provisional Liquidator, Receiver, Receiver and manager or Administrator enter or seek to enter into possession of any of its assets,
then any monies actually or contingently owing to the Company at that time under any contract formed on these Trading Terms (including any amounts which would not otherwise be payable until a later date or dates) are immediately due and payable (without the need for any demand by the Company).
17. Force Majeure
a) The Company may suspend any or all of its obligations to the Customer that are affected by any act of God, fire, flood, storm, earthquake, strike, lockout, labour dispute, breakdown, theft, crime, delays in shipping, or the inability of the Company to procure necessary materials or articles preventing or retarding performance of the contract or any other cause not reasonably within the control of the Company (each a Force Majeure Event) and the Company is not responsible for any delay, default, loss or damage due to any Force Majeure Event.
b) When a Force Majeure Event ceases to affect the performance of any of the Company's obligations, the Company must lift any suspension of those obligations that it makes under Clause 18 a) herein.
18. Customer’s Duties
The Customer shall not infringe the intellectual property rights of the Company or any third party nor shall it engage in any conduct that is detrimental to the Company’s interests, reputation and goodwill and shall ensure that at all times that any Goods supplied by the Company are displayed and promoted in such a manner that the goodwill and reputation of the Company and the owner of any brand name of the Goods are protected. If the Company determines that the Customer is not complying with the obligations contained in this clause, it shall have the right to cancel any existing orders and demand immediate payment of all outstanding amounts that are owed to the Company.
A certificate of the Customer's liability under any contract or contracts formed on these Trading Terms, signed by an officer of the Company, is prima facie evidence of the Customer's liability to the Company under these Trading Terms as at the date of the certificate.
a) Either party may terminate the arrangements under these Trading Terms by not less than thirty (30) days notice to the other or immediately by notice to the other party if the other party is subject to an Insolvency Event.
b) Upon termination all amounts actually or contingently owing by the Customer to the Company are immediately due and payable and the Customer shall immediately on demand deliver up to the Company all goods purchased from the Company for which it has not paid.
Time is of the essence for payment of any monies owed by the Customer to the Company pursuant to the provisions specified in these Trading Terms.
22. Survival of indemnities
a) Each indemnity and payment obligation of the Customer under these Trading Terms is a continuing obligation, separate and independent from all other obligations, and survives termination of these Trading Terms.
b) It is not necessary for the Company to incur expense or make a payment before enforcing a right of indemnity.
23. Customer’s acknowledgments
The Customer acknowledges and agrees that:
a) It will advise the Company if it changes its name, registered office, if any of its directors change, it becomes a trustee of any trust or the constitution of any partnership of which it is a member changes within seven (7) business days of any such change.
b) The Company may act on any privacy and PPSA authorisations provided in any credit application or request to supply Goods made by it to the Company.
c) Neither the Company nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in writing, whether as to the fitness of the Goods supplied for any particular purpose or any other matter.
24. Literature and suitability of Goods
a) Literature provided by the Company to the Customer in conjunction with the supply of Goods (including instructions in relation to food safety) contains information concerning the limitations of the Goods and their use. That literature must be read and considered carefully by the Customer. The Customer must satisfy itself that the Literature in which it is relying upon is the current version at the time of use.
b) The Customer acknowledges that it alone is responsible for determining the fitness of the Customer’s Goods for the purpose for which the Customer intends to use them.
Failure by the Company to insist on strict performance of any term, warranty or condition of the Trading Terms will not be taken as a waiver of it or of any rights the Company may have and no waiver will be taken as a waiver of any subsequent breach of any term, warranty or condition. No waiver is effective unless in writing.
a) The invalidity or unenforceability of any provisions of these Trading Terms shall not effect the validity or enforceability of the remaining provisions.
b) No delay or failure to act is a waiver of any of the provisions herein contained.
c) These Trading Terms shall bind the Company and the Customer and their respective successors and permitted assigns.
d) The Customer may not assign any of its rights or obligations under these Trading Terms without the prior written consent of the Company.
These Trading Terms are governed by the laws of the State of New South Wales. The parties submit to the non-exclusive jurisdiction of the Courts of the State of New South Wales in relation to any dispute or claim arising under or in connection with the supply of Goods or otherwise concerning these Trading Terms and waive any rights to claim that such courts are an inconvenient forum.
a) Any notice required under these Trading Terms may be given by any party, including any director or authorised person of that party.
b) Any notice may be given at that party’s registered address or other address stipulated in application in connection with these Trading Terms or as notified in writing for the purposes of this clause. Without limitation this includes any electronic address notified to the other party.