A J Products Pty Ltd ABN 62 114 374 079 [hereinafter referred to as “the Company’’]
Terms & Conditions of Trade for the Supply of Products to Purchasers [hereinafter referred to as “Terms”, “Products” and “the Purchaser”]
Unless otherwise agreed in writing these terms apply to all dealings between the Company and the Purchaser.
1. Ordering and Acceptance
1.1 Cash sales will be processed upon receipt of cleared funds for the full value of the order plus freight costs (if applicable).
1.2 The Company may at its sole discretion accept verbal or phone orders from credit account Purchasers but such orders must normally be in writing.
1.3 A binding contract will be established immediately the Purchaser instructs the Company to supply Products and/or the Company ordering supplies or commencing any processes on behalf of the Purchaser and the Purchaser will be liable for all costs in the event of cancellation.
- 1.4 “The Purchaser” in these Terms is the person who places the order.
- 1.5 Any terms or conditions of the Purchaser’s order deviating from these
Terms are expressly excluded and rejected by the Company. This exclusion and rejection includes any statement by the Purchaser that the Purchaser’s terms and conditions shall prevail.
1.6 The Purchaser agrees that in the event of any dispute concerning an order (including any question of identity or authority or any telephone, facsimile or email order) that the internal records of the Company will be prima facie evidence of what was ordered.
2. Price and Payment
2.1 The Company’s price lists are subject to change without notice.
2.2 Unless stated otherwise GST and any other taxes are payable by the Purchaser.
2.3 Quotations are based on costs at the time of quotation and are subject to change if the Purchaser does not accept the quotation within the period specified in the quotation or within 30 days if no period is shown.
2.4 At the Company’s sole discretion, the Company may require a non- refundable deposit before procuring Products or commencing work on the Purchaser’s order.
2.5 If the Purchaser is a regular buyer and requests a credit facility (which
the Company is not obliged to provide) the Purchaser warrants they shall strictly adhere to the Company’s payment terms, time being of the essence as to this obligation.
2.6 If the Purchaser pays by credit card the Company reserves the right to recover the credit card commission.
2.7 The Purchaser shall not be entitled to set off against any moneys owed (or allegedly owed) to the Purchaser by the Company or withhold payment or deduct money from an invoice because a portion of the invoice is disputed.
2.8 If the Company provides the Purchaser with a credit facility or any other form of deferred payment then each order placed by the Purchaser shall and be deemed to be a representation by the Purchaser that it is solvent and will remain solvent. The Purchaser shall inform the Company of any facts which could affect the Company’s decision to accept any order and/or to grant credit, such as, but not limited to, insolvency, potential insolvency or bankruptcy or the likelihood thereof. Failure to inform the Company of any such factors shall be deemed to create an inequality of bargaining position and be unconscionable, misleading and deceptive thereby rendering the person placing the order liable to pay all money owed by the Purchaser to the Company.
3.1 The Company reserves the right to deliver part orders at its entire discretion.
3.2 If the Purchaser, or their agent, collects the Products from the Company’s premises, delivery takes place immediately upon collection of the Products.
3.3 If the Purchaser requests the Company to deliver the Products to the Purchaser’s premises or to other premises or requests that a carrier collects the Products delivery shall take place when the Goods leave the Company premises.
3.4 Unless otherwise specified in the price or in the Company’s quotation the Purchaser is responsible for all delivery costs.
3.5 A certificate or delivery docket purporting to be signed by an officer or agent of the Purchaser confirming delivery shall be prima facie evidence of delivery.
3.6 The Purchaser shall not be relieved from its obligations to the Company for any delay in delivery.
3.7 The Company accepts no responsibility for any losses or alleged losses occurring as a consequence of any delay in delivery or for any losses or alleged losses arising from the Company’s inability to deliver at all.
4. The Products, Conversion and Tampering
4.1 The Purchaser certifies that the Products are being purchased for lawful use only.
4.2 Product descriptions, contents, benefits, usages and all other characteristics of the Products shall strictly be those stated by the Company in writing from time to time. The Company accepts no responsibility or liability whatsoever for the Purchaser using the products for any purposes that have not been approved by the Company in writing beforehand.
4.3 The Purchaser acknowledges and agrees that the Products are not human or veterinary medicines as defined under State or Federal legislation and shall not be bought or used by the Purchaser as human or animal medicines unless the Purchaser has been authorized to do so by a qualified medical or veterinary practitioner.
4.4 The Products shall not be regarded as crop, orchard, garden or other form of plant growth, yield enhancement or boosters by the Purchaser unless these properties have been advertised as such by the Company, or provided to the Purchaser in writing by the Company and the Products are then utilised by the Purchaser strictly in accordance with the Company’s instructions.
4.5 Product descriptions, uses and applications are strictly only those provided by the Company in writing. The Purchaser shall only use and apply the Products in accordance with the Company’s usage and application instructions and the Company accepts no responsibility or liability if the Purchaser fails to comply with the Company’s usage, application and all other instructions.
4.6 If the Purchaser converts, transforms or incorporates the Products in whole or in part into other products or substances or otherwise changes the Products (or the Purchaser permits any other party to do so) without the express written permission of the Company being obtained beforehand the Purchaser shall be totally liable for all claims made by any parties as a result of such actions and shall indemnify and reimburse the Company for all costs (including full legal costs on a solicitor-own-client basis), losses and claims that may be made by any parties against the Company as a result of the Purchaser’s breach of this clause.
4.7 Any tampering with the contents and/or misuse of the packaging and/or labelling of the Products including, but not limited to, reusing or refilling empty or partially empty Product packaging and containers with any other products and/or using any brand labels for any purposes whatsoever other than those stipulated by the Company is strictly prohibited.
5. Claims, Defects and Returns
5.1 Unless the Purchaser is a consumer as defined by the Commonwealth Competition & Consumer Act (2010) no Product claims or defect requests shall be accepted unless they are made within 7 days of delivery. Products will then only be accepted for return if agreed in writing by the Company prior to return and at the Purchaser’s expense. All Products that the Company accepts for return must be returned in the original packaging and without the contents being tampered or otherwise interfered with.
5.2 The Company shall not be liable for any alleged loss or expense whatsoever and howsoever caused whether direct, indirect or consequential in respect of any alleged defect in the Goods.
6. Purchaser/ Distributor not an agent
The Purchaser and/or any independent distributor or reseller are not agents of the Company and shall not enter into agreements or represent themselves as agents, officers or representatives of the Company to any parties whatsoever.
7. Force Majeure
The Company shall not be liable for any default or delay in delivery, or non- delivery, of Products or the performance of services due to any act of God, war, power or equipment failure, terrorism, industrial action, fire, flood, storm, tempest or other events beyond the control of the Company.
8. Risk & Insurance
8.1 All risks pass to the Purchaser upon delivery as defined in these Terms and it is the Purchaser’s responsibility to arrange insurance.
8.2 If any Products or other property of the Company are damaged, destroyed or stolen prior to payment being received by the Company and ownership passing to the Purchaser, the Company is entitled to payment in full.
9. Limited Liability and Suitability For Purpose
9.1 The maximum liability of the Company for any and all claims made by the Customer or any other parties shall not exceed the purchase price received by the Company for the Goods. The Company shall not be liable for any further payments either to the Customer or to any other parties for any alleged losses, damages, injury, illness, indirect and/or consequential loss and/or expense except where the Customer is defined as a consumer within the meaning of the Commonwealth Competition & Consumer Act 2010.
9.2 The Purchaser takes full responsibility for ensuring that Products ordered from the Company are suitable for the purposes they were ordered for and shall indemnify and keep the Company indemnified from all claims and costs from any parties whatsoever as a result of the Purchaser failing to select Products to the correct specifications.
9.3 If the Purchaser or any other parties fail to adhere to the Company’s Product usage, dosage and any other instructions or suitability for purposes requirements or guides the Company shall not be liable for any losses and claims (alleged or otherwise) as a result of such failures to comply with the Company’s requirements herein.
9.4 If the Purchaser requests the Company’s assistance in the selection, usage, dosages and suitability of Products then all such assistance shall not be considered as advice or a warranty or an expert opinion or a declaration of suitability and fitness for purpose unless the Purchaser has in advance totally informed the Company in writing of all facts and information (without limitation) that may affect the suitability and/or safety of using the Products for any purposes or application. Unless the Purchaser has fully advised the Company of all the above factors the Company accepts no responsibility or liability for any events that may occur as a result of the Purchaser’s failure to disclose relevant information and the Purchaser fully indemnifies the Company from any and all claims made by the Purchaser or any other parties.
10. Default, Interest, Costs and Penalties
10.1 If the Purchaser has obtained a credit facility from the Company and fails to pay their account on time, the Company reserves the right to charge interest at 2.5% a month from the day the account becomes overdue and compounded monthly until all outstanding monies have been paid in full.
10.2 If an account is more than 30 days overdue the company reserves the right to charge administration costs of $25 or 10% (whichever is the greater) up to a maximum $250.00 which shall be payable immediately upon demand.
10.3 The Purchaser shall indemnify and reimburse the Company for all costs and disbursements in collecting outstanding debts from the Purchaser which shall include dishonour fees, full legal costs on a solicitor-own- client basis, collection agency costs, investigators costs, court, judgement enforcement and bailiff fees, search agent costs, time, travel and all other collection costs.
10.4 If the Purchaser breaches any of its obligations the Company may exercise all its rights plus suspend or terminate the supply of Products and the Company will not be liable for any alleged loss or damage suffered by the Purchaser or any other parties as a result of the Company exercising its rights.
11. Security for Payment
11.1 If the Company allows the Purchaser extra time to pay money or perform obligations for which no guarantees or other securities have been provided, the Company may require security for payment including a guarantee by a director or other persons connected with the Purchaser.
11.2 Any requirement for security or guarantees is without prejudice to other rights or remedies the Company may have and does not affect the reservation of title in Products supplied to the Purchaser.
12. Personal Property Securities Act 2009 (“PPSA”) and Personal Property Securities Register (“PPSR”)
12.1 If the Purchaser has acquired goods from the Company on credit, or otherwise possesses the Company’s goods or property without payment being made in full, the provisions of this clause and the “Passing of Title/Reservation of Title” clause apply to these Terms.
12.2 If any clauses in these Terms contravene any provisions in the PPSA, or amendments thereto, such clause or clauses shall be deleted without affecting the validity of the remaining clauses of these Terms.
12.3 The Purchaser and all other parties such as, but not limited to, the owner(s) of the property where the Company’s Products are located, the Purchaser’s bankers, finance companies, receivers, liquidators or other insolvency officials are hereby notified that ownership and possession of the Company’s Products and all other property are subject to “Perfected Security Interests on the PPSR” in favour of the Company.
12.4 The Company may have and is entitled to have a “Purchase Money Security Interest” (“PMSI”) and/or other Security Interests on the PPSR for Products delivered but not paid for and for other Products and property of the Company and ownership and possession remains with the Company until all money has been paid in full and all other obligations of the Purchaser to the Company have been satisfied.
12.5 In the event that the Company’s Security Interests have not been perfected the Purchaser acknowledges and agrees that these Terms create a Security Interest in the Secured Property and consents to the Company registering a Security Interest on the PPSR and to provide all assistance required by the Company to register, perfect and retain the integrity of the Company’s Security Interests.
12.6 The Purchaser must not create or permit any other parties to create any form of Security Interest, including but not limited to, a Financing Statement, a Financing
Change Statement on the Company’s Products and other Property on the PPSR or in any other Register or charge document.
12.7 With regard to Section 64 of the PPSA the Purchaser warrants that under no circumstances shall the Purchaser permit a bank or other financial institution to register a “super priority security interest” or any other priority security interest on the PPSR on the Company’s unpaid-for Products and/or any other property that may be in premises or on sites that are not under the Company’s direct control.
13. Commonwealth Competition & Consumer Act 2010 (“CCCA”)
These Terms are not intended to have the effect of contracting out of any provisions of the CCCA and amendments thereto except where permitted by law. If the Purchaser buys the Products as a consumer these Terms
shall be subject to protection of consumers’ rights legislation and shall not affect the consumer’s statutory rights. If any clauses in these Terms contravene any provisions in the CCCA such clause or clauses shall be deleted without affecting the validity of the remaining clauses of these Terms.
14. Passing of Title/Reservation of Title
14.1 If the Purchaser has obtained a credit facility from the Company then notwithstanding delivery of the Products title remains with the company until all money has been paid in full and the Purchaser has fulfilled all its obligations to the Company.
14.2 Until all events in 14.1 occur title in the Products and other property of the Company that may be in the Purchaser’s possession remains with the Company as unpaid vendor and/or owner of the property and the Purchaser may only hold the Products/property as fiduciary agent and bailee for the Company’s benefit. Whilst holding the Products/property of the Company as fiduciary agent/bailee, the Purchaser shall ensure they remain identifiable as the Company’s Products/property and safely store and insure them for loss or damage for the Company’s benefit and keep all proceeds of sale in a separate account that is clearly identified as being the sale proceeds of the Company’s Products/property.
14.3 For Products on which title has not passed to the Purchaser, the Company can instruct the Purchaser to return them (or any part of them) to the Company if the Purchaser’s obligations under these Terms have not been fulfilled.
14.4 The Purchaser will not charge the Products in any way or grant or otherwise give any interest in the Products until clean title passes to the Purchaser.
14.5 If the Company becomes aware of a breach of these Terms or of an insolvency event (or likelihood of such an event) the Company and/or any representative of the Company may as the invitee of the Purchaser enter upon or into the site and/or premises where the Company may believe the Products and other property are stored to inspect and/or remove them and the Company shall not be liable for any alleged loss or damage as a consequence of such inspection and/or removal and without being exposed to any claim by the Purchaser or any other parties for trespass, detinue, conversion, or for any other reasons.
14.6 The Company can issue proceedings to recover the price of the Products even if ownership has not passed to the Purchaser.
15. Intellectual Property & Brand Protection
Ownership of all intellectual property owned by and/or developed by the Company including (but not limited to) the brands, trademarks, recipes, copyright, formulae and all other property and/or information remain with the Company and the Purchaser will promptly advise the Company of any breach or infringement of its rights by any party.
16. Set Off & Application
16.1 The Company shall be entitled to set off against any money owed to the Purchaser an amount equal to the total of all moneys at such time then owed by the Purchaser or on the Purchaser’s behalf to the Company.
16.2 The Company shall be entitled to apply any money received from or on behalf of the Purchaser to any and all amounts owed by the Purchaser as it sees fit and the Purchaser waives any rights of notification of any such allocation.
17. No Waiver
No waiver by the Company of any rights or provisions of these Terms shall at any time be deemed or implied to limit or exclude any of the Company’s rights against the Purchaser under these Terms.
18. Privacy Act
If the Purchaser has requested or obtained a credit facility from the Company then the Purchaser and/or the guarantor/s agree and consent to the Company obtaining and exchanging credit information from the Purchaser’s suppliers or other parties nominated by the Purchaser and for the Company to obtain reports and other information from credit reporting agencies and other sources on credit information about the Purchaser in relation to credit provided by the Company and the ability of the Purchaser to pay its bills as and when they fall due.
19. T ermination/Cancellation
If the Purchaser has requested or obtained a credit facility from the Company the Company can cancel orders from the Purchaser without notice if the Purchaser breaches any conditions of these Terms or becomes or is in jeopardy of becoming insolvent (or dies if the Purchaser is a natural person) and all outstanding money owing to the Company shall be payable immediately together with money owing to third parties for contracts entered into for the Purchaser’s benefit.
20. Purchaser Restructure
20.1 If the Purchaser has requested or obtained a credit facility from the Company the Purchaser shall notify the Company in writing of any change in its structure, including any change in ownership or sale of any material part of its business within 7 days of any such change. The Purchaser will be liable to the Company for any purchases from the Company until such notice is given.
20.2 The Company reserves the right to review or withdraw any credit facilities granted to the Purchaser and to review or cancel any orders upon any change in the Purchaser’s structure, change in ownership or sale of any material part of its business.
Notices from the Company to the Purchaser are served when delivered by hand, sent by mail, document exchange, facsimile or email and shall be treated as given when: if delivered by hand when delivered; if sent by mail or document exchange, 48 hours after posting; if sent by fax, and/or email when the fax machine confirms transmission or when the email system confirms transmission. A notice given after 5pm and/or on a day which is not a Business Day is treated as given on the next following Business Day.
If a dispute arises between the Company and the Purchaser and a solution thereto is contained in these Terms then such solution shall be a binding full and final settlement of the dispute. If no solution to the dispute exists in these Terms and the dispute cannot otherwise be resolved within 30 days from the date of the dispute then either party can refer the matter to a mediator. If neither party can agree on the mediator the dispute shall be referred to a mediator in accordance with the ‘Governing Law & Changes to Terms of Trade’ clause in these Terms. The Purchaser shall be liable for the full costs of the mediation and if this contravenes the Governing Law the parties will equally contribute to the cost of the mediation.
Should any clause or clauses of these Terms be invalid for any reason then such clause or clauses or parts thereof shall be deleted without affecting the validity of the remaining clauses of these Terms.
24. Governing Law & Changes to Terms of Trade
24.1 The laws of Australia apply to these Terms and to all contracts or other agreements between the Company and the Purchaser and are subject to the jurisdiction of the courts of South Australia.
24.2 These Terms can only be amended with the written consent of the Company.
24.3 The Company reserves the right to alter these Terms and such changes will be effective either from the date these changes are notified to the Purchaser or immediately upon the Purchaser placing further orders with the Company.
24.4 The Company may license or sub-contract all or any part of its rights and obligations without the Purchaser’s consent.
Large print version of these Terms is available on request.