Terms and Conditions of Sale

BEN FURNEY FLOUR MILLS PTY LTD ACN 605 455 445

TERMS OF SALE

These terms of sale form the basis of an agreement between Ben Furney Flour Mills Pty limited ACN 605 455 445 (Seller) and the buyer (Buyer) of goods supplied by the Seller (Goods).

Content of agreement between the Seller and Buyer

  1. These terms of sale apply together with any additional or altered terms included in a quotation or notified in writing by the Seller before the acceptance of an order from the Buyer. All subsidiary agreements relating to the supply of Goods under orders from the Buyer are to be regarded as one agreement for the purposes of these terms of sale.
  2. Conditions or terms of contract submitted by the Buyer with a purchase order do not form part of the agreement with the Seller unless agreed to in writing by the Seller.
  3. Additions to or variation of these terms of sale are effective only if agreed to in writing by the Seller.

Quotations and Purchase Orders

  1. In order to purchase Goods the Buyer must place a purchase order with the Seller and such purchase order may be accepted or rejected by the Seller. A purchase order for standard Goods is only accepted by the Seller when it is acknowledged by the Seller either orally, or in writing, or when the Goods are delivered by the Seller. A purchase order for non-standard Goods is only accepted by the Seller when acknowledged by the Seller in writing.
  2. Orders are accepted by the Seller, subject to the condition that the Buyer agrees to pay those prices appearing on the Seller’s price list for the Goods current on the date the purchase or disaccepted by the Seller, or as otherwise quoted by the Seller in writing.
  3. Copies of the Seller’s price list current as at the date of order are available on request. All prices are subject to alteration without notice.
  4. The Seller reserves the right to increase the price included in a quotation because of any change between the date of the Seller’s quotation and the date when an order is placed, in any of the following: (a) customs duty; (b) foreign exchange rates; (c) freight, marine, all risks and other insurances; (d) freight costs and expenses; (e) costs of sub-contracted items of work and Goods; (f) salaries, wages or other employee entitlements; (g) costs of component ingredients; (h) any charge or new tax imposed in relation to the Goods unless it is specified in the Seller’s quotation; (i) the Consumer Price Index; (j) government taxes or other levies.
  5. The Seller may at its discretion, as a condition of acceptance of a purchase order require the Customer to: (a) provide a cash deposit in advance of delivery of the Goods; (b) provide personal guarantees as to payment; (c) provide bank guarantees as to payment.

Payment of purchase price

  1. The purchase price is an amount referred to in clause 5 as varied in accordance with clause 7, plus an amount equal to any goods and services tax imposed on supplies made by the Seller to the Buyer.
  2. Payment of the purchase price must be made in full by the due date approved by the seller as outlined in letter of decision sent to buyer at time of approval.
  3. The Buyer must not set off any money alleged to be owing by the Seller against money due by the Buyer to the Seller.

Cancellation of orders

  1. Without affecting the Seller’s rights to seek other remedies and without limiting the Buyer’s obligations arising from the Seller’s acceptance of the buyer’s purchase order, if the Buyer proposes to cancel a purchase order, the Seller will only consent to such cancellation for products appearing on the Seller’s then current price lists if the Buyer shall pay the Seller a fee being a proportion of the purchase price equivalent to the proportion of labour, skill and materials used by the Seller in its performance of the contract up to the date of cancellation, or 10% of the purchase price, which ever is the greater.

Return of Goods and credits

  1. The Buyer is deemed to have accepted the Goods unless it makes a claim in accordance with the following clause.
  2. The Buyer may claim the right to reject any Goods which are wrongly supplied or over supplied, or which are not in accordance with any express representations or these terms, by notifying the Seller of the claim and providing full particulars of the claim on receipt of those Goods. This includes product description , size and batch date of product. The Seller may dispute any such claim.
  3. The Buyer must not return any Goods to the Seller unless it has complied with clause 14 and has done all things necessary to permit the Seller to examine the Goods to its satisfaction within that period.
  4. Goods may be returned for credit if they are:

(a)     returned within 7 days of delivery to the Seller’s warehouse by prior arrangement and with the Seller’s written approval, at no cost to the Seller, unless delivered as the result of an administrative error by the Seller, in which case the Seller will bear the cost of return; and

(b)    accompanied by a dispatch note stating the Seller’s original invoice number and reason for return; and

(c)     returned in an unsoiled, undamaged and resalable condition, in their original packing.

  1. A restocking fee of 10% is applicable at the Seller’s discretion.

Delivery and storage of Goods

  1. All quoted delivery or consignment dates are estimates only. The Seller is not obliged to meet such dates and will not be liable to the Buyer by reason of delays caused by any reason whatsoever.
  2. Under these terms of sale, “delivery” of the Goods will occur when the Goods are placed at the disposal of the Buyer (including its nominee or agent).
  3. The Seller may deliver the Goods by instalments (where in the Seller’s opinion this is reasonable to do so) and issue interim invoices to the Buyer.
  4. Without limiting any other provision in these terms, failure by the Buyer to pay any instalment, or any other amount when due, will entitle the Seller to withhold or delay delivery of any remaining Goods ordered.
  5. If delay in delivery is caused by a circumstance of force majeure (specified below), the Seller may (at its option and without limiting its other rights and remedies) arrange suitable storage of the Goods, whether at its premises or elsewhere and the Buyer must pay or reimburse all costs and expenses of storage, insurance, demurrage, handling and other charges associated with such storage.

Title and risk

  1. Until all monies owing by the Buyer to the Seller are paid in full, title to the Goods is retained by the Seller. Until then, the Buyer is a bailee of the Goods. The Buyer must: (a) keep them in its possession and control; (b) keep them in good repair and condition, excluding fair wear and tear;

(c)     keep them stored separately and marked so that the Goods are clearly and easily identifiable as the Seller’s property and inform the Seller of the location of the Goods, if requested; (d) not sell, assign or let them or any interest in them, or permit any charge, pledge, lie nor other encumbrance to be created in relation to them; (e) maintain and allow the Seller to inspect records which: (i) identify any unpaid Goods owned by the Seller; (ii) detail third parties to whom the Buyer sells or otherwise disposes of the unpaid Goods; and (iii) detail payments made by such parties for the unpaid Goods.

  1. If the Buyer does not pay for any Goods on the due date for payment, the Buyer authorises the Seller, its employees and agents to enter the Buyer’s premises (and any premises under the control of the Buyer or an agent of the Buyer if the Goods are located on those premises) and use reasonable force to retake possession of the Goods without liability for trespass or damage. The Seller may at its option keep or resell Goods retaken from the Buyer.
  2. If the Buyer sells the Goods before payment in full to the Seller, the Buyer holds the proceeds on trust for the Seller in respect of those Goods, and must keep such proceeds separately from its own moneys until the liability to the Seller is discharged and must immediately pay that amount to the Seller.

26.                  If the Buyer uses the Goods in a manufacturing process of its own or of some third party, the Buyer must book the proceeds of such manufacturing process relating to the Goods in trust for the Seller and book such proceeds separately from its own moneys until the liability to the Seller is discharged. Such part shall be deemed to equal in dollar terms to the amount owing by the Buyer to the Seller in respect of the Goods in question at the time of receipt of such proceeds. The Buyer must not assign the right to any such proceeds or enter into any other arrangement that would result in the Buyer not receiving those proceeds.

  1. Despite the retention of these rights, the Seller may recover the price of the Goods from the Buyer.
  2. The risk in Goods supplied passes to the Buyer at the time of delivery of the Goods to the Buyer or its agent by the Seller or its agent.

Insurance

  1. The Buyer must keep the Goods insured against all risks for Goods of that kind from the time the risk in the Goods passes to the Buyer until the time the property in the Goods passes to the Buyer. The Buyer holds the proceeds of that insurance on trust for the Seller up to the amount it owes the Seller in respect of those Goods, and must keep such proceeds in a separate account until the liability to the Seller is discharged and must immediately pay that amount to the Seller.

Limitation of liability

  1. Except as implied by statute or expressly agreed in writing by the Seller with the Buyer, liability for defective Goods manufactured and/or sold by the Seller that arises from faulty materials and workmanship is excluded.
  2. The Seller makes no representation as to the fitness of Goods supplied by it for any purpose, other than a purpose which has been notified to the Seller in writing, prior to the date of any agreement, by the Buyer, and confirmed in writing by the Seller to be applicable.
  3. The Buyer acknowledges that the Goods are not acquired for personal, domestic or household use or consumption by the Buyer in their delivered state, and that the liability of the Seller for a breach of any condition or warranty implied by law is limited at the Seller’s option to the supply of a replacement, or payment of the cost of replacing the Goods or of acquiring equivalent Goods or payment of the cost of having the Goods replaced.
  4. Except as implied by statute, all other liability, including for physical or financial consequential loss or damage and whether arising from negligence or misuse of production any other way is excluded

Failure to pay money

  1. If the Buyer does not pay money by the due date for payment, the Seller may require the Buyer pay interest at 10% per annum calculated on daily balances of amounts unpaid, and if so required the Buyer must pay that interest. Accounts referred to a collection agency or solicitor will have all legal costs & commission added to the amount due.
  2. If the Buyer does not pay money by the due date for payment under an agreement with the Seller, the Seller may elect to suspend from time to time some or all its obligations under that and any other agreement with the Buyer until payment in full is received by the Seller or to enter the Buyer’s premises and repossess the Goods and keep or sell those Goods in accordance with clause 24. The non performance of obligations suspended by the Seller is not a breach of the agreement. The Buyer remains bound by its obligations to the Seller.
  3. If the Buyer does not pay money by the due date for payment, the Seller may give notice in writing to the Buyer requiring payment of all money owing under the agreement within 30 days after the date of the notice. If the Seller does not receive full payment within that period, the Buyer’s default is to be treated as a repudiation of the agreement and at any later time the Seller may terminate the agreement by giving notice in writing to the Buyer.
  4. The Seller may exercise all rights resulting from the failure to pay money at any later time despite the supply of Goods by the Seller after it becomes aware of a failure by the Buyer to pay money. The right to give notice requiring payment of all money owing may be exercised concurrently with the suspension of obligations by the Seller.

Termination

  1. The Seller may by written notice to the Buyer immediately end the agreement formed under these terms in any of the following circumstances:
  2. a) the Buyer fails to perform any of its obligations under the agreement;
  3. b) the Buyer dies or becomes incapacitated, or ceases, or indicates that it is about to cease, to carry on business;
  4. c) anything happens that reasonably indicates that there is a significant risk that the Buyer is or will become unable to pay debts as they fall due. This includes execution or distress being levied against any income or assets of the Buyer; a meeting of the Buyer’s creditors being called or held; a step being taken to make the Buyer bankrupt; and the Buyer entering into any type of arrangement with, or assignment for the benefit of, all or any class of its creditors, or being subject to a deed of company arrangement;
  5. a) a step is taken to have a receiver, receiver and manager, provisional liquidator, liquidator or administrator appointed to the Buyer or any of its assets.
  6. If the contract is ended because of the Buyer’s default and the Buyer owes the Seller money the money becomes payable immediately to the Seller and bears interest in accordance with clause 34.

Force majeure

  1. If the Seller’s ability to perform its obligations under these terms of sale is adversely affected by war, strike, trade dispute, breakdowns of plant or machinery, raw material shortages, accidents, suspensions of supply of any utility, or any cause beyond the Seller’s control, the Seller may, if it chooses, end the contract of sale or suspend it for up to 3 months by giving the Buyer written notice. The Seller will not be liable for any loss, damage or liability which the Buyer incurs.
  2. The Buyer must accept delivery of the Goods not withstanding any delay in delivery caused by any of the events specified in the previous clause.

Seller’s other rights and remedies

  1. The rights and remedies provided in these terms will not affect any other rights or remedies available to the Seller.

Miscellaneous

  1. Neither party may assign any right under the agreement without the other party’s written consent.
  2. The fact that the Seller fails to do, or delays in d doing, something it is entitled to do under the contract of sale, does not amount to a waiver of its right to do it. Any waiver must be agreed in writing by the Seller.
  3. If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from these terms, but the rest of this agreement is not affected.
  4. Any notice to be given to a party under these terms must be in writing and must be sent by post, facsimile or email to the address of that party shown in the quotation, purchase order or order acknowledgment. Notice is deemed to have been given at the time it would have been received in the normal course of post if sent by post, or if otherwise given at the time it was actually received.
  5. The agreement for sale is governed by and must be interpreted in accordance with the laws of New South Wales. The Buyer unconditionally submits to the nonexclusive jurisdiction of the courts of New South Wales.

Pallet clause

48.The Buyer agrees that pallets will be returned or exchanged within 10 business days of product delivery.  If the Buyer does not carry this out as per agreement, then the Buyer will be invoiced by the Seller, at the current CHEP rates, subject to change by CHEP.  As at 19.11.2015 rates are $0.051 per wooden CHEP per day and $0.59 per plastic CHEP per day, until such return or exchange is carried out.

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