Terms and Conditions of Sale
(Updated September 2012)
1. In these conditions and in any contract to which these conditions
apply:
a) "the Seller" means Ingredient Techniques
Australia Limited (ABN 68 691 866 895 ) or such other company being
a related body corporate of Ingredient Techniques Australia Limited
which can accept any order from the Buyer;
b) "the Buyer" means the person who buys or has
agreed to buy the Goods;
c) "the Goods" means any item of whatsoever
nature which is sold by the Seller and unless the context otherwise
requires, includes services of whatsoever nature which are provided
by the Seller, and;
d) the "Purchase Price" means the price for the
Goods specified on the Seller's invoice or any delivery docket given
to the Buyer in connection with the Goods and any other charges
payable in connection with the sale of the Goods. If the purchase
price is not paid within agreed terms this expression shall also
include interest for liquidated damages, arising as a result of
payment default, which is calculated at the rate specified in clause
4(b).
2. General
These conditions shall apply to every sale made
or agreed to be made by the Seller and no variation or abrogation of
the same shall be effective unless it is evidenced in writing signed
on behalf of the Seller. To the extent to which the terms of any
order differ from these conditions of sale the acceptance thereof
shall be deemed to be an offer to supply only on the terms and
conditions contained herein and acceptance of the Goods thereafter
shall constitute acceptance of the Goods on these conditions of sale
3. Price
a) Unless otherwise stated on the face hereof
the Purchase Price is for delivery ex-works and includes the cost of
basic packaging.
b) The Seller shall be entitled without notice
to the Buyer to adjust the Purchase Price, whether before or after
acceptance of the Goods, in the event of and to account for any
increase in the cost to the Seller of supplying the Goods as the
result of increases in costs of transport or insurance, or in rates
of any applicable taxes in respect of the supply of the Goods
including any duty, charge or levy in respect of the export or
import of goods, or changes in the classification or value of goods
for customs purposes, or any changes in applicable exchange rates or
in the event of delays by the Buyer in providing any information or
licences required by the Seller for the production, supply, dispatch
or delivery of the Goods, or any other impost arising after the
sale.
c) An administration and/or delivery charge may
be payable by the Buyer in respect of all contracts deemed by the
Seller to be of small value.
4. Payment Terms, Default and Limit
a) Unless otherwise agreed by the parties in
writing, the Purchase Price shall be paid within thirty (30) days of
the date of the Seller's Invoice.
b) Time for payment of the Purchase Price shall
be of the essence of the contract and if the Buyer fails to pay the
Purchase Price when due, the Seller may treat the contract as
repudiated by the Buyer or may, until payment in full is made,
suspend delivery of the Goods the subject of the contract and any
Goods the subject of any other contract with the Buyer without
incurring any liability whatsoever to the Buyer in respect thereof.
In addition, but without prejudice to such rights of the Seller, the
Buyer shall pay compounding interest on a daily balance basis to the
Seller on the overdue outstanding Purchase Price at the rate of 3
per cent per annum above the Indicator Lending Rate of the Seller's
banking institution ruling from time to time until the Purchase
Price is paid in full. Further, all moneys owing and outstanding to
the Seller on any account whatsoever by the Buyer shall become
immediately due and payable at the option of the Seller if any of
the following events occur.
c) the Buyer becomes, threatens or resolves to
become or is in jeopardy of becoming subject to any form of
insolvency administration;
(ii) the Buyer makes a scheme or compromise
with its creditors;
(iii) the Buyer ceases or threatens to cease
conducting its business in the normal manner and, whereby changes
arise in management control, structure or legal entity of the Buyer;
(iv) the Buyer or a related company of the
Buyer (within the meaning of the Corporations Law) or any Guarantor
of the Buyer defaults or breaches any condition or understanding
under this contract or any other contract between the Seller and the
Buyer or the Seller and the related company.
d) The Seller can at any time without notice to
the Buyer alter or terminate the Buyer's credit limit or terms. The
Seller accepts no liability howsoever in the operation of this
condition.
e) Any moneys paid by the Buyer shall be
firstly applied to payment of all interest owing, secondly to any
other costs which are applicable under these conditions of sale (if
any) and thereafter any residual of the amount paid shall be applied
against the Purchase Price of the Goods.
5. Recovery
The Seller can charge the Buyer with all
reasonable expenses (including, but not limited to transportation,
storage costs, collection and recovery costs and legal costs)
incurred by the Seller to enforce payment of any debt owed by the
Buyer to the Seller or otherwise in enforcing these terms and
conditions of sale.
6. Delivery
a) Any time or date named or accepted by the
Seller for completion, delivery, dispatch, shipment or arrival of
the Goods or for tender of any documents is an estimate only and
does not constitute a condition of the contract or part of the
description of the Goods. The Seller shall not be under any
liability whatsoever for the consequences of any delay as a result
of any cause outside its reasonable control and, in particular, but
without prejudice to the generality of the foregoing, the Seller
shall be under no liability whatsoever for any delay in completion,
delivery, dispatch, shipment or arrival of the Goods or in the
tender of any documents caused (directly or indirectly) by acts of
God, war, riots, strikes, lockouts, trade disputes, fires,
breakdowns, mechanical failures, interruption of transport,
government action or by any other cause whatsoever, whether or not
of a like nature to those specified above, outside the reasonable
control of the Seller and in any such event the time for completion,
delivery, dispatch, shipment or arrival at the Goods or tender of
documents may be extended by the Seller (or the Seller may cancel
the contract without any liability whatsoever on its part). Time for
completion, delivery, dispatch, shipment or arrival of the Goods or
for the tender of any documents is not of the essence of the
contract.
b) In the event of production of the Goods or
any part thereof being hindered or impaired or ceasing for any cause
whatsoever outside the reasonable control of the Seller, the Seller
may notify the Buyer that it is unable to fulfil the contract and
may cancel the contract without being under any liability whatsoever
save for an obligation to return to the Buyer any money received by
the Seller in respect of the Goods at that time.
c) Unless otherwise stated in writing the
Seller may make partial deliveries or deliveries by instalments in
any amounts it may determine and each such partial delivery or
delivery by instalment shall be deemed to be separate contracts and
these conditions of sale shall apply to each partial delivery or
delivery by instalment.
d) The Seller may deliver up to ten per cent
more or less than the amount specified for delivery, subject only to
an appropriate adjustment to the price payable, in full satisfaction
of the Seller's obligations pursuant to the particular contract.
7. Claims
The Buyer shall notify the Seller in writing
within fourteen (14) days of the date the Goods are delivered. If
the Seller is responsible for any shortfall in or loss or damage to
the Goods delivered (these expressions include Goods which are
defective or non-conforming) and shall ensure the Goods are kept
intact for inspection by the Seller. Failure to comply with this
provision shall, to the full extent permitted by law, disentitle the
Buyer to any remedy in respect of the shortfall, loss or damage.
(The Seller may at its discretion refuse Goods for return for any
reason other than the conditions contained herein.) Without limiting
the provisions of any other condition within these conditions of
sale, the Seller's liability with respect to claims shall not exceed
the Purchase Price of the Goods. The Seller may at its discretion
replace Goods which are the subject of a claim, at no extra cost to
the Buyer, and the replacement Goods shall be subject to these
conditions of sale.
8. Property
a) Property and ownership in the Goods will not
pass to the Buyer but will remain in the Seller until payment in
full of the Purchase Price of the Goods and all other amounts owing
is made to the Seller by the Buyer.
b) Risk in the Goods will pass at the time of
delivery and the Buyer must insure the Goods.
c) Until property in the Goods passes to the
Buyer:
(i) the Buyer will hold the Goods as fiduciary
bailee and agent for the Seller:
(ii) after giving 48 hours notice to the Buyer
the Seller is entitled to enter upon the Buyer's premises between 9
a.m. and 5 p.m. to inspect the Goods;
(iii) the Goods are to be stored separately and
in a manner to enable them to be readily identifiable as the
Seller's property;
(iv) the proceeds of any Goods sold are to be
kept in a separate account and must not be mixed with any other
monies, including funds of the Buyer;
(v) the Buyer must return the Goods to the
Seller on demand;
d) In the event that the Buyer fails to return
the Goods following the making of a demand, the Seller is
irrevocably authorised to enter any premises where the goods are
kept, and to use the name of the Buyer and to act on its behalf, if
necessary, to recover possession of the Goods without liability for
trespass or any resulting damage.
e)
In the event
that the Buyer
incorporates or
transforms the Goods (or any portion of them) into any other goods
or products produced by the Buyer
(or a third
party), then the Buyer
must hold a
proportion of any payment ("relevant proportion") received by the
Buyer for
such goods or products on trust for the Seller.
The Buyer
expressly acknowledges that the relevant proportion shall be equal
to the dollar value of the Goods incorporated or transformed and the
Buyer
further acknowledges that any part payment (not exceeding the
relevant proportion) received by the Buyer
for such goods
or products is received as payment first of the relevant proportion.
f) The authority of the Buyer to sell the Goods
does not extend to the making of any warranties or conditions which
exposes the Seller to liability to another person (except as to the
price, the terms of payment and like provisions) and the Buyer must
ensure that to the full extent permitted by law all conditions,
warranties implied or imposed by law are excluded and where such a
condition cannot be excluded that the Seller's liability is limited
to the full extent permitted by law.
g) The Buyer shall not attempt to give or allow
any security interest over the Goods in favour of another person.
h) The conditions of this clause 8 apply
notwithstanding any arrangement between the parties under which the
Seller grants the Buyer credit.
9 Personal Property Security Interest
a)
Within this section, capitalised words are defined terms and,
where applicable, have the same meaning as within the Personal
Property Securities Act (2009) (“PPSA”).
b) The Buyer grants the Seller a Security
Interest in the Goods (supplied as Commercial Property, more
particularly described as Other Goods) and their Proceeds to secure
the obligation of the Buyer to pay the purchase price of the Goods
and any other obligations of the Buyer to the Seller under this
contract (together the “Indebtedness”) and, where the Goods and/or
Proceeds are not readily identifiable and/or traceable or their
recoverable value is insufficient to pay the Indebtedness, the
security interest shall also extend to all the Goods present and
after acquired by the Buyer, of which the Goods form part, to the
extent required to secured the Indebtedness.
c) As and when required by the Seller, the
Buyer shall, at its own expense, provide all reasonable assistance
and relevant information to enable the Seller to register a
Financing Statement or a Financing Change Statement and generally to
obtain, maintain, register and enforce the Seller’s Security
Interest in respect of the Goods and their Proceeds in accordance
with the PPSA.
d) The Seller may at any time register a
financing statement or financing change statement in respect of a
Security Interest (including any Purchase Money Security Interest).
The Buyer waives any right to receive notice in relation to any
registration on the register of a Security Interest in respect of
the Goods.
d) The Buyer warrants that the Goods are not
purchased for personal, domestic or household purposes.
e) Notwithstanding any reference to a
particular invoice/order, where any sum remains outstanding by the
Buyer on more than one invoice/order, any payments received from the
Buyer shall be deemed to be made by the Buyer and applied by the
Seller in the following order (unless the Seller otherwise
determines):
(i) To any obligation owed by the Buyer to the
Seller which is unsecured, in the order in which the obligations
were incurred;
(ii) To any obligations that are secured, but
not by a Purchase Money Security Interest, in the order in which
those obligations were incurred;
(iii) To obligations that are secured by a
Purchase Money Security Interest, in the order in which those
obligations were incurred.
f) Until the Buyer has paid all money owing to
The Seller, the Buyer shall at all times ensure that:
(i) All Goods, while in the Buyer’s possession,
can be readily identified and distinguished, and/or
(ii) All Proceeds (in whatever form) that the
Buyer received from the sale of any of the goods are readily
identifiable and traceable.
g) Where the Goods are purchased by the Buyer
and held as Inventory, nothing in this clause shall prevent the
Buyer from selling or leasing and delivering the Goods in the
ordinary course of the Buyer’s business. Otherwise until the Buyer
has paid all money owing to the Seller the Buyer shall not sell or
grant a Security Interest in the Goods without the Seller’s written
consent.
h) The parties agree to contract out of the
PPSA in accordance with Section 115 of the PPSA to the extent that
Section 115 applies for the benefit of, and does not impose a burden
on, the Seller. Specifically, the following provisions of the PPSA
will not apply and the Buyer will have no rights under them:
(i) Section 95 (to the extent that it requires
the Secured Party to give notices to the Grantor); section 96;
section 118 (to the extent that it allows a Secured Party to give
notice to the Grantor); section 121(4); section 125; section 130;
section 132(3)(d); section 132(4); section 135; section 142; section
143.
(ii) Section 115(7) of the PPSA allows for the
contracting out of provision of the PPSA, the following provisions
of the PPSA will not apply and the Buyer will not have any rights
under them: section 127; section 129(2),(3); section 130(1); section
132; section 134(2); section 135; section 136(3), (4) and (5) and
section 137.
i) Unless otherwise agreed and to the extent
permitted by the PPSA, the Buyer and the Seller agree not to
disclose any information of a kind referred to in section 275(1) of
the PPSA to an interested person or any other person. The Buyer
waives any rights which it may have, or but for this clause it may
have had had, under section 275(7)(c) of the PPSA to authorise the
disclosure of the above information.
10 Privacy Act 1988 (“Privacy Act”)
To enable the Seller to assess the Buyer ’s
application for credit, the Buyer authorises the Seller:
a) To obtain from a credit reporting agency a
consumer or commercial credit report containing personal information
about the Buyer and its guarantors pursuant to Section 18K(1) of the
Privacy Act; and
b) To obtain a report from a credit reporting
agency and other information in relation to the Buyer ’s commercial
credit activities, and
c) To give to a credit reporting agency
information including identity particulars and application details
AND in accordance with Section 18N(1) of the
Privacy Act the Buyer authorises the Seller to give to and obtain
from any credit provider named in the accompanying credit
application and credit providers that may be named in a credit
report issued by a credit reporting agency information about the
Buyer ’s credit arrangements. The Buyer understands that this
information can include any information about its credit worthiness,
credit standing, credit history or credit capacity that credit
providers are allowed to give or receive from each other under the
Privacy Act. The Buyer understands that information can be used for
the purposes of assessing its application for credit (Section 18L(4)
Privacy Act), assisting it to avoid defaulting on its credit
obligations, assessing its credit worthiness and notifying other
credit providers and credit reporting agencies of a default by it
under these Terms.
11 Notification
The Buyer must notify the Seller in writing
within seven (7) days of:-
a) Any alteration of the name or ownership of
the Buyer.
b) The issue of any legal proceedings against
the Buyer.
c) The appointment of any provisional
liquidator, liquidator, receiver, receiver manager or administrator
to the Buyer.
d) Any change in the ownership of the
business name of the Buyer. The Buyer agrees that it shall be liable
to the Seller for all
Goods supplied to the new owner by the Seller until notice of any
such change is received.
12. Exclusion of Liability
a)
No warranties
except those implied and that by law cannot be excluded are given by
the Seller in respect of Goods supplied. Where it is lawful to do
so, the liability of the Seller for a breach of a condition or
warranty is limited to the repair or replacement of the Goods, the
supply of equivalent Goods, the payment of the cost of repairing or
replacing the Goods or acquiring equivalent Goods, as determined by
The Seller.
b) Any warranty given by the manufacturer of
the Goods will be passed on to the Buyer.
c) To the full extent permitted by law:
(i) the Seller gives no condition or warranty
whatsoever as to the condition or quality of the Goods or as to
their suitability or fitness for their ordinary or any special use
or purpose and the description of the Goods in any contract or other
document shall not import any such condition or warranty on the part
of the Seller:
(ii) it is the responsibility of the Buyer to
inspect the Goods and satisfy himself as to the condition, quality,
suitability and fitness of the Goods for his purposes prior to the
use or re-sale of the said Goods. If the Buyer fails to inspect the
Goods in connection with the requirements specified in this clause
9(b)(iii), he shall have forfeited any right for compensation of any
kind and must pay the full Purchase Price of the Goods to the
Seller,
(iii) the Seller assumes no liability (whether
for negligence or otherwise) for any technical advice or assistance
given or the results obtained there-from and any such advice is
given and accepted at the Buyer's risk:
(iv) the Seller shall be under no liability
whatsoever for any defects (including any defect caused by the
loading of the Goods) in, or deterioration or failure of, the Goods
or any part thereof (or any goods supplied with the Goods or any
part thereof) whether due to design, workmanship or materials or to
any cause whatsoever unless the same is due to the negligence or
wilful default of the Seller or its employees or agents. The Seller
shall be under no liability whatsoever for any failure of the Goods
(other than in relation to a substantial ingredient of the identity
of the Goods) to correspond with any description (including without
limitation, any description relating to quantity, dimensions,
weight, place of shipment or other statements relating to transport
of the Goods);
(v) the Seller shall be under no liability to
the Buyer for any loss (including but not limited to loss of profits
and consequential loss) of any kind whatsoever arising out of the
supply or failure to supply the Goods.
13. Indemnity
The Buyer shall comply with all instructions of
the Seller in relation to the handling, fitting, installation and
use of the Goods and, notwithstanding such compliance, the Buyer
shall keep the Seller indemnified against all costs, claims,
demands, expenses and liabilities of whatsoever nature, including,
without prejudice to the generality of the foregoing, claims for
death, personal injury, damage to property and consequential loss,
(including loss of profit) which may be made against the Seller or
which the Seller may sustain, pay or incur as a result of or in
connection with the manufacture, sale, export, import or use of the
Goods unless such cost, claim, demand, expense or liability shall be
directly and solely attributable to any breach of contract by, or
negligence of, the Seller or a duly authorised employee or agent of
the Seller.
14. Health and Safety
It Is the Buyer's responsibility to ensure that
all applicable health and safety regulations are observed and other
appropriate steps taken in relation to the storage, handling and use
of the Goods and, where information is supplied to the Buyer on
potential hazards relating to the Goods, to bring such information
to the attention of its employees, agents, subcontractors, visitors
and customers. Without prejudice to the foregoing, it is also the
Buyer's responsibility to provide safe facilities for the reception
of the Goods into storage.
15. Packages, Pallets and Containers
A deposit charge may be made by the Seller at
its discretion for any returnable packages, pallets or containers as
supplied by the Seller for delivery of the Goods. Such packages
pallets or containers must be returned in good condition within a
period of thirty (30) days of delivery otherwise, the Buyer will be
liable for payment of the deposit amount within the agreed thirty
(30) days payment terms unless an alternative agreement has been
made in writing.
16. Taxes, Duties
The Buyer shall pay to the Seller in addition
to the price of the Goods all taxes, duties, imposts or other levies
thereon or in respect thereof charged to the Seller or for which the
Seller may be liable when demand is made thereafter (whether in the
invoice for the Goods or otherwise). It is the Buyer's
responsibility to supply the prescribed certificates exempting
payment of taxes within the acceptable period, otherwise taxes are
for the account of the Buyer.
17. Proper Law and Jurisdiction
All contracts made between the Seller and the
Buyer in
18. Intellectual Property Rights
The Buyer shall not alter, remove or in any way
tamper with any of the trade or other marks or numbers of the Seller
attached to or placed upon the Goods.
19. Resupply
In connection with the supply of Goods:
a) the Buyer shall not make any false
representations as to the suitability of those Goods for a
particular purpose, the description of those Goods, their
merchantable quality or any other representation which will
constitute a breach of any condition or warranty implied by law; and
b) the Buyer shall distribute to every customer
all such warnings, instructions and like information relating to
those Goods which the Seller has provided to the Buyer.
20. Modifications
Where the Buyer re-supplies the Goods, the
Buyer shall not in any way without the consent of the Seller
interfere with the Goods or change the composition or appearance of
the Goods. Without limiting the generality of the foregoing, the
Buyer shall not conceal, remove or otherwise interfere with any
warnings, labels or other markings on or affixed to the Goods.
21. Licences and Consents
The obtaining and maintenance in full force and
effect of any necessary export or import licences, authorisations or
consents in respect of the Goods is the sole responsibility of the
Buyer and the Seller shall be under no liability whatsoever in
respect of Goods exported or imported without any necessary
licences, authorisations or consents.
22. Equitable Charge
The Buyer as beneficial owner and/or
registered proprietor now charges in favour of the Seller all of the
Buyer's estate and interest in any real property (including but not
limited to any applicable land
owned by the Buyer named or described as the Buyer's Street
Address in the Credit Application if applicable) ("Land") to secure
payment of accounts rendered by the Seller to the Buyer for the
delivery and/or supply of the Goods including interest payable on
these accounts and costs (including legal costs on a full indemnity
basis) incurred by the Seller and including the costs to prepare and
lodge a Caveat against the Land and to remove the Caveat.
23. Miscellaneous
a) The headings of these conditions of sale are
provided for convenience only and shall have no effect on the
Interpretation thereof.
b) If at any time the Seller does not enforce
any of these conditions of sale or grant the Buyer time or other
indulgence, the Seller shall not be construed as having waived that
term or condition or its rights to later enforce that or any other
term or condition.
c) If a provision or part of a provision is
illegal, void or unenforceable the remainder of the provision and
all other provisions will continue in full force and effect.
