Terms and Conditions
Spencer and Bennett – Yenda Prods Pty Ltd
ABN 97 080 911 959
Lot 1 1310 Hillston Road
Griffith NSW 2680
IF YOU DO NOT FULLY UNDERSTAND THESE TERMS AND CONDITIONS, PLEASE SEEK INDEPENDENT LEGAL ADVICE
Please note that due to the introduction of the Personal Properties Securities Act 2009 (Cth) and the Personal Properties Securities Register, we have had to change our terms and conditions to protect our interests. The Personal Properties Securities Register sets up a new system of registration of personal properties and changes the law for equipment leases, consignment sales, retention of title and accounts receivable financing. Accordingly, we have modified our sales terms and conditions to reflect these changes in the law and hereby advise that these terms and conditions replace our old terms and conditions.
In these terms and conditions, unless the context otherwise requires:
(a) “Buyer” means you or the person named in the Sales Invoice and/or Credit Agreement Terms and Conditions.
(b) “Sales Invoices” means the sales invoice issued by the Seller to the Buyer.
(c) “Seller” means Yenda Producers Co – operative Society Ltd ABN 79 134 587 268 and any and all its successors, assignees, subsidiaries or related entities, including;
I. Yenda Producers Distribution Pty Limited ABN 63 064 495 558;
ii. Spencer & Bennett – Yenda Prods Pty Ltd ABN 97 080 911 959
iii. Yenda Prods – Irrigation Pty Ltd T/A Riverina Water Engineering 79 119 484 025;
“Accounts” means profit and loss accounts and balance sheets together with statements, reports and notes, including a director’s report or an auditor’s report, attached to or intended to be read with any of those profit and loss accounts or balance sheets;
“Business Day” means weekdays and excludes Saturdays, Sundays and public holidays.
“CCA” means the Competition & Consumer Act 2010.
“Claim” means any claim, demand, action or proceeding;
“Collateral” has the meaning given under the PPSA and in particular for the purposes of these Terms and Conditions, the personal property that is not used predominately for personal, domestic or household purposes as identified in these Terms and Conditions hereof to which the Security Interest has attached;
“Collateral Security” means any document, including this document, that grants a Security Interest to the Seller, any Guarantee in favour of the Seller or other document or agreement at any time created or entered into in connection with or as security for any secured money owing from the Buyer to the Seller;
“Consumer Contract” means a supply of Goods by the Seller under these Terms and Conditions to an individual whose acquisition of the Goods is wholly or predominantly for personal, domestic or household use and consumption within the meaning of the Australian Consumer Law.
“Credit Agreement” means the agreement between the Seller and the Buyer for, or in relation to the sale and purchase of goods or services, or for the provision of finance for the purpose of purchasing goods or services and includes the Credit Agreement Terms and Conditions.
“Crops” means any and all crops owned, occupied, leased, used or share-farmed by the Buyer, whether severally or jointly, in which the Goods have been used, applied or otherwise to allow for the crops to be sown or grown and includes all Proceeds as is defined in section 31 of the PPSA.
“Event of Default” means any event or circumstance specified as such in clause 12 or otherwise specified in this document as an Event of Default.
“Goods” means any item of whatsoever nature which is sold or to be sold by the Seller to the Buyer and includes and future goods to be purchased by the Buyer;
“GST” means the tax payable on taxable Supplies within the meaning of the GST Act;
“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth)
“Insolvency” has a comparable meaning to Insolvent
(a) It is a corporation and is unable to pay its debts when they fall due;
(b) It is a corporation and is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act 2001 (Cth));
(c) A Liquidation occurs in relation to a person;
(d) It is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any applicable law or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the Seller);
(e) An application is made to a court for an order, or an order is made that a corporation be wound up or that a liquidator be appointed to a corporation;
(f) A creditor’s petition or debtor’s petition is filed against the Buyer; or
(g) A receiver, manager, trustee, administrator or similar official is appointed over any or all of the assets or undertaking or a person.
“Liquidation” includes provisional liquidation, administration, receivership, appointment of Controller, compromise, arrangement, amalgamation, reconstruction, winding up, dissolution, assignment for the benefit of creditors, arrangement or compromise with creditors, bankruptcy or death.
“Livestock” means any and all livestock owned, managed, grown, leased, licenced, farmed or trained by the Buyer and includes all Proceeds as is defined in section 31 of the PPSA.
“Moneys” means any and all moneys advanced by the Seller to the Buyer on credit terms from time to time pursuant to any Credit Agreement and includes all legal fees and interest incurred by the Seller in recovering any and all money advanced from the Seller to the Buyer.
“Person” includes an individual, a body politic, a corporation, an association (incorporated or unincorporated), a statutory authority, a trust of any form or structure, a partnership, and any other authority or persons identified as the Buyer.
“PPSA” means the Personal Property Securities Act 2009 as amended from time to time;
“PPS Register” means the personal property securities register established under section 147 of the PPSA;
“Prescribed Terms” means any terms, conditions, guarantees and warranties which the CCA and any other law expressly provides may not in respect of these terms and conditions be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent;
“Proceeds” has the meaning as provided by section 31 of the PPSA.
“Purchase Money Security Interest” (“PMSI”) has the same meaning as that given by section 14 of the PPSA.
“Sales Confirmation” means the document so titled issued by the Seller that formally accepts the order for goods from the Buyer;
“Security Interest” has the meaning given under the PPSA and includes:
(a) any Security Interest arising from the purchase of Goods on retention of title terms entered into by the Buyer and Seller in the ordinary course of the Buyer’s business on the Seller’s usual; terms of trading as long as the purchase price is paid and all obligations relating to the purchase are performed when due (unless the obligations are contested in good faith); and
(b) any Security Interest arising from a lease or bailment entered into by the Buyer in the ordinary course of the Buyer’s business and on the usual terms of trading of the lessor or bailor, as long as the monetary or other obligations under the lease or bailment are paid for or performed when due.
“Standard Specifications” means the Seller’s standard specification for the goods current at the time the goods are delivered to the Buyer. Copies of the Standard Specifications are available on request from the Seller;
“Terms and Conditions” means these terms and conditions.
“Third Party Purchaser” means any third party with whom the Buyer intends to sell either the Goods , the Crops or the Livestock to.
Words importing the singular number shall be deemed to include the plural and vice versa. Words importing the male gender shall be deemed to include the female and neutral gender and vice versa;
The headings in these terms and conditions are provided for convenience only and do not affect the interpretation thereof.
A reference to “dollar” or “$” is to an amount in Australian currency.
3. ALTERATION TO TERMS AND CONDITIONS
(a) The Seller may, at any time and from time to time by written notice to the Buyer, alter these Terms and Conditions of Sale.
(b) The placing of an order, or the receipt of the stock as ordered and subsequent payment of an invoice relating to that order by the Buyer will indicate the Buyer’s acknowledgement and agreement to these and any amended Terms and Conditions.
(a) The price of Goods will be the Seller’s current price at the time of delivery, or if delivery is not required, the current price at the date of the invoice, subject to any contrary agreement (if any) between the Seller and the Buyer regarding price.
(b) Where Goods supplied to the Buyer are of a kind ordinarily acquired for personal, domestic or household use, the Seller will provide a quotation or otherwise notify the Buyer of a single total price, inclusive of GST, applicable to those Goods if the price is capable of being quantified. The Buyer shall be liable to pay to the Seller all amounts on account of GST in the same manner and by the same means as all other charges.
(c) The price of Goods specified by the Seller in any quotation is subject to any other conditions specified in that quotation.
(d) Unless otherwise indicated, all prices for Goods are exclusive of all applicable taxes and charges. The Buyer shall be liable for all excise, sales, GST or any other tax, charge or government impost (domestic or foreign) upon the Goods or any part of the Goods, or upon the manufacture, use sale or delivery of the Goods in addition to the purchase price. Where Goods are subject to GST, the Buyer must pay GST at the same time as payment for Goods is made.
(e) Unless otherwise agreed, prices do not include the cost of delivery of Goods, including but not limited to costs incurred by the Seller arising out of late notification by the Buyer of a change to agreed delivery schedule, storage charges where Goods are not collected immediately upon being made available and demurrage costs incurred by the Seller.
(f) Unless otherwise requested by the Buyer in writing, prices quoted provide for the Sellers standard packing arrangements.
(a) Unless the Seller grants credit to the Buyer under a Credit Agreement and subject to the Seller’s right to withdraw credit, payment for Goods purchased from the Seller must be made by the Buyer in immediately available funds on or immediately prior to delivery of the Goods.
(b) Where the Buyer has an approved credit account or Credit Agreement with the Seller, the Buyer shall ensure that payment for the Goods is made to the Seller in accordance with the terms of the Credit Agreement. All payments are required to be made by the Buyer by no later than 30 days after the date of the Seller’s monthly statement or such other date for payment as the Seller and the Buyer agree in writing.
(c) The Seller may set off any amount owed by the Buyer to the Seller or any of its related entities against any amount of money owed, or may become owing, by the Seller or any of its related entities to the Buyer. The Buyer waives any right to set off any amount that is, or may become, owing by the Buyer to the Seller against any amount owing by Seller to the Buyer. This clause overrides any other document or agreement to the contrary.
(d) Payments made by credit card may be subject to a surcharge.
(a) The Seller reserves the right to charge interest on any amount overdue from the date it became due to the date payment is received at the rate to be determined by the Board of Directors of the Seller. All payments made by the Buyer will first be applied to the accrued interest.
7. DELIVERY, OWNERSHIP AND RISK
(a) Whilst the Seller endeavours to provide you with instance access to Goods, dates and times quoted for delivery are estimates only. Maximum lengths for products may vary and delivery of such will be determined by the Seller on a case by case basis. Any date or time named, accepted or provided by the Seller for delivery, completion, dispatch, shipment or arrival of the Goods is an estimate only and does not constitute a condition of these Terms and Conditions or part of the description of the Goods and is not of the essence.
(b) Goods ordered for collection will be held for a maximum period of 10 Business Days after the specific collection date. If the Goods are not collected by that time, they may be delivered to (at the Seller’s option) the Buyer’s site, store, farm or to a store selected by the Seller and all costs incurred by the Seller in relation to the holding and delivery of the Goods shall be charged to and be paid by the Buyer.
(c) The Seller shall not be obliged to complete any order in one delivery and expressly reserves the right to deliver by instalments. Where the Seller delivers by instalments each instalment shall be deemed to be sold to the Buyer under a separate contract. Failure to deliver any one instalment by the time quoted for delivery of that instalment (if any) shall not entitle the Buyer to repudiate the order.
(d) The Goods are at the Buyer’s risk from the time at which they are delivered to the Buyer or to the Buyers nominee.
(e) The Buyer shall notify the Seller within seven (7) days of delivery of the Goods of any short fall, loss or damage in respect of the Goods. Subject to the Australian Consumer Law, failure to notify the Seller within this seven (7) day period will disentitle the Buyer to any remedy in respect of the shortage, loss or damage.
(f) The Sellers products may be dangerous and contain hazardous chemicals. Please be careful when using and storing these chemicals. If you have any questions about these chemicals, we suggest you visit the Safe Work Australia website: http://www.safeworkaustralia.gov.au/sites/swa/whs-information/hazardous-chemicals/pages/hazardous-chemicals-other-substances.
(g) If the Seller is prevented either directly or indirectly from performing any of its obligations under these Terms and Conditions, including without limitation, making a delivery of the Goods or any part of the Goods by reason of Force Majeure it shall be entitled, at its option, by notice to the Buyer, either to:
i. extend the time for delivery of the Goods for a reasonable period; or
ii. subject to refunding the Buyer for any payment already made to the Seller in respect of those particular Goods (if any), terminate these Terms and Conditions, and the Buyer shall not have any claim against the Seller for damages or any other remedy for breach of contract.
(h) Where the Seller or its transport contractor enters the Buyer’s premises or the premises of a third party nominated by the Buyer as a delivery point, the Buyer:
i. releases the Seller from any claim the Buyer may at any time, have against the Seller but for this release in respect of damage occasioned to the Buyer’s premises or injury to persons arising out of the delivery by the Seller or its transport contractor of Goods to such premises; and
ii. indemnifies and holds the Seller harmless from and against any loss, damage or liability suffered or incurred by the Seller in respect of damage occasioned to the third party’s premises or injury to persons arising out of the delivery by the Seller or its transport contractor of Goods to the premises of the third party except for and to the extent that such loss, damage or liability suffered or incurred by the Seller arises out of the negligence or wilful misconduct of the Seller or its transport contractor.
8. CONDITIONS AND WARRANTIES
(a) The Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law may guarantee certain conditions, warranties and undertakings in relation to the Goods. To the extent they apply, these guarantees cannot be modified nor excluded by contract, and these Terms and Condition do not purport to modify or exclude any conditions, warranties, guarantees and undertakings under the Australian Consumer Law.
(b) Except as expressly set out in these Terms and Conditions and the Australian Consumer Law, the Seller makes no warranty, representation or other statement in respect of the Goods, their quality or their fitness for any purpose, except as stated expressly in these Terms and Conditions, or as may otherwise be required by law.
(c) If the Buyer purchases Goods as a Consumer as defined in the Australian Consumer Law, then the Australian Consumer Law contains certain guarantees in relation to the Goods that cannot be excluded. In these circumstances, the Buyer may be entitled to an identical replacement (or one of similar value if reasonably available), a refund or compensation for drop in value to the Goods, at the Buyer’s option. In the case of a minor failure, the Buyer may have the Goods repaired, replaced or obtain a refund at the Seller’s option.
(d) If and only if the Buyer is not a Consumer as defined in the Australian Consumer Law, the Seller warrants that the Goods, whether manufactured by the Seller or one of its associated entities, shall, for a period of twelve months from the date of despatch of the Goods from the Seller’s premises, be free of faulty workmanship, materials or design.
(e) The warranties provided in paragraph (d) of this clause shall be effective, and impose liability on the Seller to give effect to such warranty, only if:
i.the Seller is provided with written notice of the circumstances giving rise to the claim arising within 30 days of the occurrence of such circumstances; and
ii. the Seller is permitted to inspect Goods before they are repaired or replaced; and
iii. the Buyer returns the Goods or components to the Seller’s premises, at the Buyer’s expense; and
iv. the Seller is satisfied, by its own examination of the Goods, that any alleged circumstances giving rise to the claim have not been caused by:
1. improper use, installation, operation, damage due to accident, neglect, lightning power surge, or from improper repair, alteration, modification or adjustment to the Goods; or
2. Unusual deterioration or degradation due to physical, electrical, electromagnetic or noise environments.
(f) To the extent permitted by law, the Seller’s liability for any loss, injury or damage, shall be limited to making good, by replacement or repair, at the Seller’s option, and at the Buyer’s expense in relation to costs over and above the direct costs of replacing or repairing the Goods or the component parts of the Goods at the Seller’s premises, any defects which appear under proper use.
(g) Any repairs, alterations or other work carried out to the Goods by a person other than an authorised representative of the Seller shall invalidate the warranty in paragraph (f) of this clause.
(h) If the Buyer requests or insists that warranty service in paragraph (f) of this clause be carried out on site or at the Buyer’s premises then any costs over and above the direct costs of replacing or repairing the Goods or the component parts of the Goods at the Seller’s premises shall be at the Buyer’s expense.
(a) The Buyer indemnifies the Seller for any and all direct, special, indirect and/or consequential loss or damage, however caused to the Seller and/or to third parties, that results as a consequence of the Seller supplying, or failing to supply at all or on time, the Goods, to the Buyer, or to any third party, under or in association with these Terms and Conditions.
(b) The Seller shall be liable to the Buyer, or to any third party, for direct, special, indirect and/or consequential loss or damage, however caused, suffered by the Buyer, or to any third party, only to the extent that such loss or damage is caused directly by the fault of the Seller.
10. RETENTION OF TITLE
(a) The Buyer agrees that legal and equitable title to the Goods is retained by the Seller until the Seller receives payment in full from the Buyer for the Goods and all Moneys owing by the Buyer to the Seller at any time.
(b) Prior to title in the Goods passing to the Buyer, the Buyer
i. must hold the Goods as Bailee and fiduciary agent of the Seller;
ii. where the Buyer processes the Goods, either by using the Goods to manufacture or grow other goods or by incorporating the Goods in or with any other goods, must hold such part of the new goods (“Processed Goods”) on trust for the Seller as Bailee and fiduciary agent of the Seller;
iii. must store the Goods and such part of the Processed Goods separate from its own goods and those of any other third party so that they are readily identifiable as the property of the Seller;
iv. must keep the Goods in good and merchantable condition and fully insure the Goods against loss or damage however caused;
v. must not sell the Goods except with the prior written consent of the Seller or in the ordinary course of the Buyer’s business, provided that any such sale is at arms’ length and on market terms;
vi. any proceeds of re-sale, insofar as they relate to the Goods shall be held on trust for the Seller in a separate account; and
vii. Must not create any encumbrance over the Goods which is inconsistent with Seller’s title and ownership of the Goods, including a security interest in favour of any third party on the PPSR.
(c) For the purpose of this clause 10, “such part” means an amount equal in dollar terms to the amount owing by the Buyer to the Seller at the time the Goods are used in the manufacture of, or incorporated into, the Processed Goods.
(d) If the Buyer is in breach of these Terms and Conditions including, without limitation, failure by the Buyer to make payment for the Goods by the date specified by the Seller to the Buyer or in the Seller’s reasonable opinion the payment of any amount in respect of the Goods supplied by the Seller is in jeopardy, the Buyer must return the Goods to the Seller immediately on demand.
(e) If the Buyer does not return the Goods to the Seller on demand under clause 10(d), the Buyer irrevocably authorises representatives of the Seller to enter upon any site, farm or whatever the case may be, where the Goods are located to take possession of the Goods without prior notice, and the Purchaser indemnifies the Seller for all fees (including legal fees on a full indemnity basis), costs and expenses incurred or suffered as a result of any and all prosecution, actions, demands, claims or proceedings brought by or against the Seller in connection with the retaking possession of the Goods or the exercise by the Seller of its rights under this clause, and the Buyer shall repay all such fees, costs, losses, damages, expenses or any other sums of money on demand.
(f) In the event that the Goods are dissipated, commingled, or used by the Buyer to allow for any Crop to be sown or grown, the Seller will maintain a Security Interest in those Goods that subsequently become part of the Crop pursuant to Part 3.4 of Chapter 3 of the PPSA and further, the Seller may register a Security Interest on the PPS Register over any and all Crops and/or Livestock in which the Goods are applied in order to secure payment of the Moneys owing by the Buyer to the Seller for the Goods.
(g) The Buyer and Seller agree that the provisions of this clause apply despite any Credit Agreement between the parties under which the Seller grants to a line of credit to the Buyer.
(a) Subject to the terms of these Terms and Conditions, the terms “Attachment”, “Collateral”, “Debtor”, “Financing Change Statement”, “Financing Statement”, “Grantor”, “Perfected”, “Perfection”, “Proceeds”, “Secured Party”, “Security Agreement” and “Security Interest” have the meanings given in the PPSA.
(b) The Buyer acknowledges and agrees that these Terms and Conditions constitute a security agreement for the purposes of section 20 of the PPSA and that value has been given for the Security Interest pursuant to section 19 of the PPSA.
(c) The Buyer further acknowledges that:
I. the Seller holds (as Secured Party) a Security Interest over all of the present and after acquired Goods supplied by the Seller to the Buyer and any Proceeds of the sale of those Goods (“Collateral”) and a single registration on the PPS Register will cover all present and after acquired Goods;
ii. that any purchase by the Buyer on credit terms from the Seller pursuant to any Credit Agreement, or any retention of title supply pursuant to clause 10 hereof will constitute a PMSI;
iii. the PMSI granted herein will continue to apply to any and all Goods coming into existence or Proceeds of sale of Goods coming into existence;
iv. the Seller will continue to hold a Security Interest in the Goods in accordance with and subject to the PPSA, notwithstanding that the Goods may be processed, commingled or become an accession with other goods.
v. any Security Interest of the Seller will be a continuing and subsisting interest in the Collateral with priority to the fullest extent permitted by law over all over registered or unregistered Security Interest;
vi. until title in the Goods passes to the Buyer, it will keep all goods supplied by the Seller free and ensure all such goods are kept free of any charge, lien or Security Interest and not otherwise deal with the goods in a way that will or may prejudice any rights of the Seller under these Terms and Conditions, the PPSA, or any other document that the Seller may require the Buyer to enter for the purposes of securing the Seller’s Security Interest in the Goods; and
vii. in addition to any other rights under these Terms and Conditions or otherwise arising, the Seller may exercise any and all remedies afforded to it as a Secured Party under Chapter 4 of the PPSA including, without limitation, entry into any building, premises, farm or Crop owned, occupied, used, leased or share-farmed by the Buyer, to search for, inspect, seize, dispose of or retain those Goods, Crops or Livestock in respect to which the Buyer has granted a Security Interest to the Seller.
(d) The Buyer undertakes to:
i. sign any further documents and provide such information which the Seller may reasonably require to register, amend or update a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPS Register;
ii. indemnify and upon demand reimburse the Seller for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPS Register or releasing any Security Interests;
iii. maintain, at its own expense, all appropriate policies of insurance for all damage to the Crops and/or Livestock in an amount not less than the market value of the Crops and/or Livestock;
iv. not register or permit to be registered a Financing Change Statement in the Collateral without the prior written consent of the Seller; and
v. provide the Seller not less than 7 days prior written notice of any proposed change in the Buyer’s name, address, contact numbers, business practice or such other change in the Buyer’s details registered on the PPS Register to enable the Seller to register a Financing Change Statement if required.
(e) In the event that the Goods are dissipated, commingled, or used by the Buyer to allow for any Crop to be sown or grown, the Seller will maintain a Security Interest in those Goods that subsequently become part of the product or mass of the Crop pursuant to Part 3.4 of Chapter 3 of the PPSA. Further, the Seller may register a Security Interest on the PPS Register over any and all Crops in which the Goods are applied in order to secure payment of the Moneys owing by the Buyer to the Seller for the Goods. In the event that the Seller requires a Security Interest over the Crops, the Seller may require the Buyer to complete the Security Details, which is included as Annexure A of these Terms and Conditions.
(f) In the event that the Goods are dissipated, commingled, or used by the Buyer to allow for any Livestock to be grown or to allow for Livestock to populate, the Seller will maintain a Security Interest in those Goods that subsequently become part of the product or mass of the Livestock pursuant to Part 3.4 of Chapter 3 of the PPSA. Further, the Seller may register a Security Interest on the PPS Register over any and all Livestock in which the Goods are applied in order to secure payment of the Moneys owing by the Buyer to the Seller for the Goods. In the event that the Seller requires a Security Interest over the Livestock, the Seller may require the Buyer to complete the Security Details, which is included as Annexure B of these Terms and Conditions.
(g) The Buyer hereby agrees to sign any further documentation, including but not limited to, any payment direction, priority agreement or security deed for the purposes of securing payment of any Secured Moneys or Moneys to the Seller and further, agrees to provide to any Third Party Purchaser a copy of the documentation for the purposes of securing payment of any Secured Moneys to the Seller.
(h) In consideration for the Seller providing Goods to the Buyer on credit terms, the Seller may require the Buyer to obtain and maintain a policy of insurance over the Crops and/or Livestock in the name of the Seller and on terms and conditions that the Seller deems necessary to protect itself from any material diminution in the Crops and/or Livestock, whether or not the material diminution is a result of the acts, omissions or negligence of the Buyer.
(i) The Seller and the Buyer agree that sections 96, 125 and 132 of the PPSA do not apply to the security agreement created under these Terms and Conditions.
(j) By accepting these Terms and Conditions, the Buyer hereby waives its rights to received notices under sections 95, 118, 121, 130, 132 and 135 of the PPSA.
(k) The Buyer waives its rights as a Grantor and/or a Debtor under sections 142 and 143 of the PPSA.
(l) The Buyer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
(m) The Buyer shall unconditionally ratify any actions taken by the Seller under this clause 11.
(n) This clause 11 will survive the termination of these Terms and Conditions to the extent permitted by law.
12. EVENT OF DEFAULT
(a) If there is an Event of Default, the Seller will be entitled to exercise its rights under these Terms and Conditions in addition to those rights at law and equity.
(b) Without limiting any matters at law, equity, or under these Terms and Conditions, the following matters are deemed as Events of Default:
i. the Buyer fails to pay or repay in accordance with these Terms and Conditions, the Credit Agreement, or any other written demand provided by the Seller to the Buyer requiring payment of the Moneys;
ii. a representation, warranty or statement by or on behalf of the Buyer in any agreement entered into between the parties is not true in a material respect or is misleading in a material respect when made or repeated;
iii. the Buyer becomes Insolvent;
iv. Collateral or Goods is or will be able to be transferred (including by sale or creating a Security Interest or under proceedings to enforce a judgment) in breach of a provision in these Terms and Conditions prohibiting that transfer;
v. the Buyer does not comply with its obligations under any priority agreement or payment direction entered into in accordance with these Terms and Conditions;
vi. a loan provided by the Seller to the Buyer under the Credit Agreement is used for a purpose other than the stated purpose;
vii. the Buyer fails to maintain the appropriate policy of insurance over the Crops and/or Livestock, including any policy of insurance maintained or to be maintained in the name of the Seller;
viii. if the Buyer is a partnership and without prior notification to the Seller, the constitution of the partnership is changed or the partnership is dissolved;
ix. in the case of a Security Interest that the Seller has over the Crops:
1. The Crops suffer a material diminution in value or utility or a material part of the Crops suffers total loss or destruction or damage other than by force majeure; or
2. Crops are taken out of the effective management or control of the Buyer whether or not within the control of any party; and
x. In the case of a Security Interest that the Seller has over the Livestock;
1. The Livestock suffer a material diminution in value or utility or the Livestock are become deceased, ill or malnourished as a result of the Buyer or an agent of the Buyer’s conduct; or
2. The Livestock are taken out of the effective management or control of the Buyer whether or not within the control of any party.
(c) Where the Buyer is in default in the performance of any of its obligations under these Terms and Conditions and the Goods have not been supplied under a Consumer Contract, the Seller may refuse, without prejudice to any other rights it may have under these Terms and Conditions or at law, to supply or deliver further Goods to the Buyer until such time as the Buyer has remedied that default, and / or may choose to terminate the Credit Agreement or any other agreement between the parties.
(d) If the Goods have been supplied by the Seller under a Consumer Contract and the Buyer is in default in the performance of any of its material obligations under these Terms and Conditions, the Seller may refuse to deliver further Goods until such time as the Buyer has remedied that default.
(e) For the avoidance of doubt, if the Buyer (including a Buyer under a Consumer Contract) is Insolvent, this is deemed to be an Event of Default and will immediately allow for the Seller, in its absolute discretion, to exercise any and all of its rights of enforcement pursuant to Chapter 4 of the PPSA as well as those rights pursuant to these Terms and Conditions over the Goods, Crops and/or Livestock as the case may be.
(f) If the Buyer (including a Buyer under a Consumer Contract) is Insolvent, the Seller may in its discretion exercise any or all of the following rights in addition to any other rights it may have under these Terms and Conditions, at law, or in equity:
i. suspend deliveries of further Goods to the Buyer whether under these Terms and Conditions or otherwise;
ii. terminate the Credit Agreement in relation to Goods that have not been delivered;
iii. withdraw any credit facilities which may have been extended to the Buyer and require immediate payment of all Moneys owed to the Seller by the Buyer; and
iv. issue an invoice for, and demand immediate payment of, Goods ordered by the Buyer but not delivered.
(g) All costs incurred by the Seller relating to any action taken by the Seller to recover Moneys due from the Buyer (including, without limitation, legal or other debt collection costs) shall be payable by the Buyer on demand.
(a) Manufacturers of the Goods provided by the Seller may vary from time to time. All information contained in, on or with the Manufacturer’s Goods is guaranteed by sources we believe to be reliable. Despite this, the Seller cannot guarantee its accuracy and the Buyer should rely upon their own enquiries.
(b) Where the Seller is acting, as agent of a manufacturer or supplier, the Seller shall not be liable for any alteration, variation, representation, guarantee, condition or warranty in the Goods made by the manufacturer or the supplier.
14. FORCE MAJURE
(a) The Seller shall not be under any liability whatsoever for the consequences of any failure on its part to perform or delay in performing any obligation under these Terms and Conditions when due, whilst and to the extent that such failure or delay is due directly or indirectly to any event of force majeure.
(b) Without limiting the generality of the foregoing, this includes any liability whatsoever for any delay in completion, delivery, despatch, shipment or arrival of the goods or in the tender of any documents or the like.
(c) “event of force majeure” includes any acts of God, war, riots, strikes, lock outs, trade disputes, fires, break downs, mechanical failures, interruptions of transport, Government action or any other cause whatsoever, whether or not of a like nature to those specified above, outside the reasonable control of the Seller.
(d) If there is an event of force majeure, the Seller will notify the Buyer of the event and the likely impact on its performance under these Terms and Conditions. If the event affect the capacity of the Seller to complete its material obligations under these Terms and Conditions in a timely manner, the Seller may by notice to the Buyer terminate the Terms and Conditions without any liability whatsoever on its part arising from such termination.
15. POWER OF ATTORNEY
The Buyer for valuable consideration irrevocably appoints the Seller and any of the Seller’s officers jointly and severally its attorney (with power to appoint a substitute or substitutes and to remove any of them) to act at any time after termination of these Terms and Conditions in the name of the Buyer to deal with any Goods, Crops and/or Livestock left unpaid for and to execute a variation or termination of these Terms and Conditions and generally to execute any document and do or perform any act or thing in respect of the Goods as fully and effectually as the Buyer could do and the Buyer will
(a) ratify and confirm anything the attorney or any substitute may lawfully do or cause to be done.
(a) Except as required by law, these Terms and Conditions and subject to the PPSA, the Seller and the Buyer agree to treat these Terms and Conditions as confidential.
(b) The Seller and the Buyer acknowledge and agree that this clause constitutes a confidentiality agreement pursuant to section 275(6) of the PPSA.
(c) Neither the Seller nor the Buyer will disclose, send or make available any of the information referred to in section 275(1) of the PPSA to any person except as required by law, these terms and conditions and subject to the PPSA.
(a) If the Seller has any liability to pay GST on the supply of any Goods to the Buyer, the Buyer must pay the Seller an amount equivalent to the GST liability of the Seller at the same time as the principal is paid for the Goods.
(a) This section applies if any of the parties to these Terms and Conditions are executing the Terms and Conditions, and becoming a party to these Terms and Conditions, as a trustee of a trust.
(b) The balance of this section applies as follows:
(i) if only one party is entering into these Terms and Conditions as the trustee of a trust – to the trustee in respect of the Trust to which it has been appointed pursuant to the Trust Deed (as these terms are defined in this section); and
(ii) if more than one party is entering into these Terms and Conditions as the trustee of a trust – separately, to each trustee in respect of the relevant Trust to which it has been appointed pursuant to the relevant Trust Deed (as these terms are defined in this section).
(c) Unless otherwise specified in these Terms and Conditions, a reference to a transaction, asset, act or liability of any nature of the Trustee includes its transactions, assets, acts or liabilities as trustee of the Trust.
(d) The Trustee acknowledges that it enters into these Terms and Conditions in its capacity as trustee of the Trust and that these Terms and Conditions are binding on it personally and in its capacity as trustee of the Trust.
(e) A reference to a related body corporate of the Trustee includes a related body corporate of the Trust.
(f) The trustee expressly acknowledges that the trustee has full power conferred by the Trust Deed or any law:
(i) to execute and perform this Agreement, so as to bind the Trust and its assets, without any default by that trustee under the Trust Deed or any law;
(ii) to perform any action or liability contemplated by these Terms and Conditions;
(iii) to perform any business activity of the Trust as performed or contemplated at any time;
(iv) to pledge the assets of the trust.
(g) The trustee or trustees (both in its own right and as trustee of the Trust) represents and warrants to the Seller that:
(i) the Trust is validly constituted and has not terminated, nor has any action been taken to wind up, terminate or resettle the Trust, nor has the date or any event occurred for the vesting of the assets of the Trust (“Trust Fund”);
(ii) it has not given any notice of resignation and no action has been taken to remove it or to appoint an additional trustee or trustee of the Trust;
(iii) all action has been taken that is necessary or desirable under the Trust Deed or at law to authorise its entry into these Terms and Conditions and to perform its obligations under these Terms and Conditions;
(iv) it is entering into these Terms and Conditions as part of the proper administration of the Trust, for the commercial benefit of the Trust and for the benefit of the beneficiaries of the Trust;
i. It has the right to be indemnified out of the Trust Fund in relation to any liability arising under or in connection with the proper performance of its rights and obligations under these Terms and Conditions;
ii. The Trust Fund is sufficient to satisfy that right in full; and
iii. It has not released or disposed of its equitable lien over the Trust Fund;
(vi) It has disclosed to the Seller full particulars of the Trust and of any other trust or fiduciary relationship affecting the Trust Fund and has given the Seller a complete up-to-date copy of the Trust Deed; and
(vii) It is not in breach of any material obligation imposed on it in its capacity as trustee of the Trust, whether under the Trust Deed or otherwise.
(h) The warranties in this clause are taken to be made on receipt of these Terms and Conditions being accepted by the trustee.
(i) The trustee must give the Seller promptly on request (and in any event within 10 days of receipt of the request) either;
(i) any information relating to the financial condition (including the financial accounts), business, assets and affairs of the Trust that the Seller reasonably requests, or
(ii) a statement from the duly appointed auditors of the Trust attesting to the solvency and financial soundness of the Trust and the trustee of the Trust
(j) Each of these events or circumstances gives the Seller the right to terminate for cause pursuant to these Terms and Conditions:
(i) (breach of warranty) a warranty under this section made or taken to be made by the trustee is incorrect or misleading when made or taken to be made and, if capable of remedy, is not remedied within 10 Business Days of being made or taken to be made;
(ii) (amendment of the Trust Deed) the Trust Deed is amended in any material respect without the prior written consent of the Seller;
(iii) (failure to provide information) any of the information required to be provided under this document is not provided within the time specified in that clause or if the information provided is incorrect, incomplete or misleading in any material respect;
(iv) (distributions) any distributions of the capital of the Trust are made out of the Trust without the Seller’s prior written consent; and
(v) (dealing with units) if the Trust is a unit trust, any unit is issued, transferred, redeemed, encumbered or otherwise dealt with, without notification being given to the Seller.
19. ENFORCEMENT COSTS
(a) In the event that the Buyer breaches any of the terms and conditions in these Term and Conditions, the Buyer will be required to pay expenses reasonably incurred by the Seller in enforcing or preserving its rights under these Terms and Conditions. These expenses include those incurred by the Seller in preserving or maintaining property secured, collection expenses and expenses resulting from enforcement under the PPSA.
(b) Only the net proceeds of any enforcement of security and/or resultant recovery or receipt of monies will be applied to any monies owed by the Customer. For the avoidance of doubt, the net proceeds of enforcement is to be exclusive of any GST, excise, duties, fees or fines payable.
(a) In the event of any inconsistency between these Terms and Conditions and any specific terms contained in any other contract between the parties, the specific terms contained in these Terms and Conditions will prevail to the extent of that inconsistency.
(a) Any provision in these Terms of Sale which is invalid or unenforceable in any jurisdiction is to be read down for the purpose of that jurisdiction, if possible, so as to be valid and enforceable, and otherwise must be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
(a) Waiver of any right, power, authority, discretion or remedy arising on a breach of or default under an agreement in force between the Seller and the Buyer on these Terms and Condition and must be in writing and signed by the party granting the waiver.
(a) Any notice or other communication including, but not limited to, any request, demand, consent or approval, to or by a party under these Terms and Conditions must be in legible writing and in English addressed to such address as the other party has specified to the sender of the notice.
(a) The Buyer must not assign or otherwise purport to transfer its rights or obligations under these Terms or Conditions to any other person without the prior written consent of the Seller.
(b) The Seller may assign or otherwise transfer its rights or obligations under these Terms and Conditions to any other person without requiring the prior written consent of the Buyer.
25. CREDIT AGREEMENT
(a) The terms and conditions of the Credit Agreement are incorporated by reference to these Terms and Conditions. Those terms are legally binding between the Buyer and Seller and should be read together with the Credit Agreement terms and conditions. To the extent of any inconsistency, these Terms and Conditions prevail over the Credit Agreement terms and conditions.
Lot 1, 1310 Hillston Road,
Griffith NSW 2680
(02) 6966 8902