BEN FURNEY FLOUR MILLS PTY LTD ACN 605 455 445
TERMS OF SALEThese 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 a Purchase Order from the Buyer, together, are to be regarded as the Agreement. 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.
4.To the extent that there is any inconsistency between any of the terms in the following documents: (a) these Terms of Sale; (b) a Purchase Order; and (c) any subsidiary agreement; the terms of the document listed first will govern to the extent of the inconsistency.
Quotations and Purchase Orders
5. 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.
6. Purchase 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 order is accepted by the Seller, or as otherwise quoted by the Seller in writing.
7. Copies of the Seller’s price list current as at the date of the Purchase Order are available on request. All prices are subject to alteration without notice.
8. The Seller reserves the right to reasonably vary the price included in a quotation up until the date the order is placed, including changes to: (a) customs duties; (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; costs of component ingredients; (g) any charge or new tax imposed in relation to the Goods unless it is specified in the Seller’s quotation; (h) the Consumer Price Index; and (i) government taxes or other levies.
9. If the provisions of clause 8 result in an increased price, the Buyer has the right to cancel the Purchase Order in accordance with the terms of clause 21.
10. The Seller may, as a condition of acceptance of a Purchase Order require the Buyer to: (a) provide a cash deposit in advance of delivery of the Goods; (b) provide personal guarantees as to payment; and (c) provide bank guarantees as to payment.
Form of Bank Guarantee
11. For a bank guarantee to be acceptable to the Seller, it must: (a) be in the amount advised by the Seller; (b) be drawn in favour of Ben Furney Flour Mills Pty Ltd BSB 082-564 Account No 65 633 2315; (c) not have an expiry date; (d) be unconditional and irrevocable; and (e) describe the bank guarantee purpose as: “as security for the purchase of goods under contract”
Payment of Purchase Price
12. Payment of the purchase price (being an amount referred to in clause 6 as varied in accordance with clause 8), must be made in full by the due date notified by the Seller. If no dates are stated, upon delivery of the Goods.
13. If payment is made: by (a) credit card a fee of 2.1% will be added to the total; or (b) as a physical cash payment, a fee of 2% will be added to the total.
14. Any consideration payable or to be provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as 'GST inclusive', does not include an amount on account of GST. Unless otherwise stated in the applicable quotation, the Seller’s prices and expenses are GST exclusive.
15. If the Seller makes a supply under or in connection with this Agreement on which GST is payable (not being a supply the consideration for which is specifically described in this Agreement or in the applicable quotation as 'GST inclusive'): (a) the consideration payable for that supply under this Agreement but for the application of this clause (‘GST exclusive consideration’) is increased by, and the Buyer must also pay the Seller, an additional amount equal to the GST payable on the supply ('GST Amount'); (b) the GST Amount must be paid to the Seller by the Buyer without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided; and (c) the Seller will issue a tax invoice to the Buyer.
16. If a payment to a party under this Agreement is a reimbursement or indemnification, calculated by reference to a Loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that Loss, cost or expense and then increased in accordance with clause 15 if applicable.
17. If an adjustment event occurs in relation to a taxable supply made under or in connection with this Agreement, then the Seller must issue an adjustment note to the Buyer. Payment pursuant to the adjustment note must be made by the Seller or the Buyer (as the case may be) within the time stated on the adjustment note.
18. Unless the context otherwise requires, words or expressions used in clauses 14 through 17 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in clauses 14 through 17.
19. The Buyer must not set off any money alleged to be owing by the Seller against money due by the Buyer to the Seller.
20. The Seller may set off any amount owed by the Seller to the Buyer in respect of any supply of Goods from any amount owed by the Buyer to the Seller, without notice to the Buyer.
Cancellation of Purchase Orders
21. Without limiting the Buyer's obligations arising from the Sellers acceptance of a Purchase Order, or the Seller's rights to seek other remedies; a Buyer may only cancel a Purchase Order if the products appear on the Seller's then current price list and the Buyer agrees to reimburse the Seller's reasonable costs of performance of the Purchase Order up to the date of cancellation, or 10% of the purchase price, whichever is the greater, unless the Purchase Order was cancelled in accordance with the terms of clause 9.
Return of Goods and Credits
22. The Buyer is deemed to have accepted the Goods unless it makes a claim in accordance with the following clause.
23. 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 (a) providing full particulars of the claim on receipt of those Goods including product description, size and batch date of product; and (b) permit the Seller upon request to examine the goods. The Seller may dispute any such claim. The Buyer must not return any Goods to the Seller unless it has complied with this clause 23.
24. Goods may only 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.
25. A restocking fee of 10% is applicable at the Seller’s discretion unless subject to a claim that has been accepted by the Seller in accordance with clause 23.
Delivery and Storage of Goods
26. 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.
27. Under this Agreement, “delivery” of the Goods will occur when the Goods are placed at the disposal of the Buyer (including its nominee or agent).
28. Subject to the prior agreement of the Buyer, 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.
29. 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.
30. 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.
31. If the Seller provides the Buyer with any non public information about its business, tools or processes, or any other non public information including the terms of this Agreement, the Buyer agrees to treat that information as confidential information and only to use or disclose it as permitted by the Seller, or as required by law. Upon termination or expiry of this Agreement, the Buyer will return or destroy (as applicable) all Seller confidential information, unless where to do so would be contrary to law.
Title and Risk
32. 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 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 permit any charge, pledge, lien 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.
33. 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.
34. 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.
35. 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.
36. Despite the retention of these rights, the Seller may recover the price of the Goods from the Buyer.
37. 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.
Registration of Security Interest
38. The Buyer acknowledges that this Agreement creates a security interest in the Goods supplied to the Buyer for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA). In addition, the Buyer grants the Seller a charge in all Goods supplied to the Buyer under this Agreement, which charge secures the performance by the Buyer of its obligations to the Seller.
39. Nothing in this Agreement may be construed as an agreement or consent by the Seller to: (a) subordinate any security interest granted in favour of the Seller in favour of any person; or (b) defer or postpone the date of attachment of any security interest granted in favour of the Seller.
40. The Buyer must not, without the Seller's prior consent, allow: (a) the Goods to become mixed or commingled with any other property; (b) the Goods to become an accession to any other property; or (c) any other property to become an accession to the Goods.
41. The Buyer must do all things and provide all information necessary to enable the Seller to perfect its security interest in the Goods, including: (a) ensuring that the security interest is enforceable against third parties, or otherwise effective; and (b) assisting the Seller to complete the registration of any financing statement or financing change statement (each as defined in the PPSA).
42. The Buyer must pay all costs incurred by the Seller in connection with the registration of a financing statement or financing change statement (each as defined in the PPSA) in respect of a security interest granted by the Buyer in favour of the Seller.
43. The Buyer must immediately notify the Seller if any other person attempts to enforce a security interest in the Goods.
44. The Buyer undertakes not to change any of its details recorded in a financing statement registered by the Seller (including changing its ACN or any ABN allocated to a trust of which it is trustee or becoming the trustee of a trust) without giving the Seller 10 Business Days' prior notice.
45. The Seller may apply or appropriate all money received from the Buyer as the Seller sees fit (including so as to enable the Seller to preserve any purchase money security interest (as defined in the PPSA)). An application or appropriation by the Seller will override any appropriation made by the Buyer. For the purposes of section 14(6)(a) of the PPSA, this paragraph constitutes the method of payment application agreed by the parties.
46. To the extent permitted by law, the Buyer irrevocably waives its right to receive notice of a verification statement (as defined in the PPSA) in respect of each security interest granted in favour of the Seller.
47. To the extent permitted by law, the Buyer and the Seller contract out of sections 125, 132(3)(d), 142, 143 and (if permitted by section 115(7)) Part 4.3 (other than sections 123(1), 126, 128, 129(1), 133, 134(1), 136(1) and 136(2)) of the PPSA. The Buyer irrevocably waives any rights under sections 95, 118, 121(4), 130 and 132(4) of the PPSA.
48. Where the Seller has rights or powers in addition to, or existing separately from, those in Chapter 4 of the PPSA, those rights and powers will continue to apply and are not limited or excluded (or otherwise adversely affected) by the PPSA.
49. 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
50. 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.
51. To the maximum extent permitted by law or expressly agreed in writing by the Seller with the Buyer, and subject to clause 52, the Seller: (a) excludes all liability for: (i) indirect and consequential loss, and loss of all actual or anticipated profit, revenue, capital, goodwill, savings, data, customers, use and benefits; (ii) downtime costs, loss of or damage to reputation, Losses under or in relation to other contracts and Losses suffered by a third party; (iii) all special, exemplary or punitive Losses; and (b) limits its liability (at the Seller's option) to: (i) replacement of those Goods or supply of equivalent Goods; (ii) payment of the costs of replacing those Goods or acquiring equivalent Goods; or (iii) repayment of any part of the purchase price of those Goods which have been paid by the Buyer.
Australian Consumer Law
52. Where you acquire as a Consumer: (a) goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption, the operation of the Consumer Guarantees cannot be, and are not in the Agreement, excluded, restricted or modified; and (b) other goods and services, the Seller limits its liability for a failure to comply with any Consumer Guarantee (other than: (i) a Consumer Guarantee as to title, encumbrances or undisturbed possession of goods conferred by the Australian Consumer Law; or (ii) where to do so would otherwise cause all or part of this clause to be void) as described in clause 51(b), and we do not exclude or limit the operation of the Consumer Guarantees under any other provision of this Agreement or in any other manner and the parties agree it is fair and reasonable in all the circumstances for the Seller's liability to be so limited.
53. If the Buyer does not pay money by the due date for payment, the Seller may: (a) require the Buyer pay interest at 10% per annum (if that rate is not enforceable under applicable law, the highest rate that is enforceable under applicable law) calculated on daily balances of amounts unpaid, which will be payable in addition to the amount due; (b) refer the matter to a collection agency or solicitor and all reasonable legal costs & commission will be payable in addition to the amount due; (c) suspend some or all its obligations under this and any other Agreement with the Buyer, (d) enter the Buyer’s premises and repossess the Goods and keep or sell those Goods in accordance with clause 33; and (e) give notice in writing to the Buyer that if payment of all money owing under the Agreement is not received within 30 days after the date of the notice, then Buyer’s default is 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.
54. 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.
55. 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.
56. If either party materially breaches this Agreement, the other party may give notice requiring the breach to be remedied within 30 days. If the breach is not so remedied, the party serving notice may serve a further notice terminating the Agreement with immediate effect.
57. Subject to any applicable statutory stay on the exercise of rights, including ss 415D, 434J and 451E of the Corporations Act 2001 (Cth) (as applicable), either party may immediately terminate this Agreement by written notice if the other party is unable to pay its debts or has a receiver, receiver and manager, administrator, administrative receiver or liquidator appointed, or calls a meeting of its creditors or for any other reason ceases to carry on business, or if any of these events appear reasonably likely to occur.
58. 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 53.
59. Clauses 31; 32-48; 50-52; 53-55; 58; 70-71; 72 and any clauses of their nature intended to survive, survive termination or expiry of this Agreement.
60. If the Seller’s ability to perform its obligations under this Agreement 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.
61. 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, provided the delay is less than 3 months. Where the delay is greater than 3 months the Buyer may elected to cancel the order or remaining deliveries without penalty.
62. The Seller may publicise the relationship with the Buyer and the details of the Goods supplied to the Buyer.
63. Neither party may assign any right under the Agreement without the other party’s written consent.
64. The fact that the Seller fails to do, or delays in doing, something it is entitled to do under the Agreement, does not amount to a waiver of its right to do it. Any waiver must be agreed in writing by the Seller.
65. 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.
66. 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 an hour after it was sent by email; or if otherwise given at the time it was actually received.
67. The Agreement is governed by and interpreted in accordance with the laws of New South Wales. The Buyer submits to the non-exclusive jurisdiction of the courts of New South Wales.
68. Capitalised terms used in this Agreement are defined in clause 73.
69. The Buyer agrees that pallets and containers will be returned or exchanged within 10 Business Days of product delivery, otherwise the Buyer will be invoiced by the Seller, a $50 administration fee, plus at the Seller's discretion (a) the full replacement cost of the pallet and/or container; until such return or exchange is carried out.
Personal Information Security
70. The Buyer acknowledges and agrees that in the course of this Agreement it may receive or have access to personal information (having the meaning set out in section 6(1) Privacy Act 1988 (Cth) (Privacy Act)). The Buyer must (and must ensure that its personnel and subcontractors) comply with the Privacy Act and not do anything that would cause the Seller to breach the Privacy Act.
71. The Buyer must immediately notify the Seller if it becomes aware of or reasonably suspects any accidental, unauthorised, or unlawful destruction, loss, alteration, or disclosure of, or access to, the personal information has occurred.
72 The Buyer indemnifies the Seller against all Losses and claims suffered or incurred by the Seller, its officers, employees or contractors in connection with: (a) injury to or death of any of any person, arising from or in connection with Goods; (b) any wrongful act or omission (including negligent acts and omissions) of the Buyer or any of the Buyer’s employees, officers or contractors; (c) the Buyer’s violation (or causing the Seller’s violation) of any statute, order or regulation; and (d) the Buyer’s breach of this Agreement.
73. In this Agreement:
Australian Consumer Law has the meaning given to that term in section 4 of the Competition and Consumer Act 2010 (Cth).
Business Day means any day which is not a Saturday, Sunday or a public holiday in Sydney, New South Wales.
Buyer refers to the customer identified on a Purchase Order or the signing page attached to this Agreement, as applicable.
CHEP means CHEP Australia Limited (ABN 11 117 266 323).
Consumer has the meaning given to that term is section 3 of the Australian Consumer Law.
Consumer Guarantees means the statutory guarantees conferred in relation to the supply of goods or services to a Consumer under the Australian Consumer Law and other similar legislation of Australian states and territories.
Loss means any liabilities, losses, damages, costs and expenses (including legal costs and expenses, regardless of whether incurred or awarded) arising in contract, tort (including negligence) or otherwise.
Purchase Order means an order form which references this Agreement.
74. In this Agreement, except where the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) a reference to A$, $A, dollar or $ is to Australian currency;
(d) a reference to time is to Sydney, NSW time; and
(e) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions.