AUSTRALIAN FOOD INGREDIENT SUPPLIERS PTY LIMITED STANDARD CONDITIONS OF SALE
as at 20 April 2015
THESE STANDARD CONDITIONS OF SALE (“CONDITIONS”) ARE THE ONLY TERMS AND CONDITIONS APPLICABLE TO ANY SALE BY AFIS PTY LIMITED (ABN)/ACN (23) 002 563 939, INCORPORATED IN NEW SOUTH WALES (“AFIS”) TO BUYER WHICH IS DEEMED TO HAVE ASSENTED TO THESE CONDITIONS NOTWITHSTANDING INCONSISTENT OR ADDITIONAL PROVISIONS ON BUYER’S ORDER OR OTHERWISE. DIFFERING OR ADDITIONAL TERMS AND CONDITIONS MADE UNDER SEPARATE WRITTEN CONTRACT, OR UNDER THE PROVISIONS SET FORTH IN THE DOCUMENT OR FORM TO WHICH THESE CONDITIONS ARE ATTACHED (“FORM”) ARE RESERVED.
All oral, written or EDI purchase orders (“Orders”) placed by any person or company (“Buyer”) and pursuant to which AFIS supplies any goods denominated in the Form (“Goods”) are subject to AFIS’s confirmation either through written confirmation (“Order Confirmation”) or through shipping the Goods. Any order confirmed by AFIS shall be deemed to be firm and may be modified, rescinded or cancelled in whole or in part only upon mutual written agreement of AFIS and Buyer.
2. PRODUCT DESCRIPTION AND QUANTITIES.
Product description and quantities are set forth separately in the Form. Buyer may not reject or revoke acceptance of a bulk shipment and price payable by Buyer for such delivery shall be appropriately adjusted to reflect any such difference. Information supplied with regard to the percentage content of the Goods is only to be regarded as approximate average value and AFIS shall not be liable for any minimal variations in such content which are in the opinion of AFIS within the tolerances applicable to the particular Goods and not materially relevant.
Prices are fixed on the base of prices valid on the date of order. Price changes communicated by AFIS to Buyer after placement of an Order and prior to shipment thereof shall be binding upon Buyer unless objected to in writing by Buyer within 7 (seven) working days after receipt by Buyer of such communication. Prices are exclusive of any goods and services tax, which shall be invoiced in addition to the price of the Goods. Any prices appearing on AFIS’s price list, booklets or offers are for general guidance only.
All payments for Goods shipped are invoiced on or immediately after shipment date and are due within 30 (thirty) days from the date of statement, unless otherwise specified in the Form. Any amount not paid by Buyer when due will be subject to a finance charge at a rate equal to 1% per annum above the overdraft index rate for the time being, of the Commonwealth Bank of Australia, accruing and calculated on a daily basis and will be charged on the total amount of the Invoice for the period from the due date for payment until the date in payment in full of that invoice. Except by express written agreement between AFIS and the buyer, no set off will be permitted.
5. ORDERS AND DELIVERY
Orders may only be cancelled by written agreement from AFIS and any costs associated with the cancellation will be met by the buyer. Deliveries are made in accordance with Buyer’s delivery instructions and AFIS’s Order Confirmation to the extent permitted by the availability of the Goods or the raw materials thereof. AFIS shall not be responsible for failure to meet the delivery date or period agreed between the Parties which are estimated only and shall not be liable for any cost or damage due to early or late delivery. If AFIS is unable to serve total demand for the Goods, AFIS may allocate the available quantity of the Goods as it deems most fair in making partial shipment or shipments cancellation, and may give preference to the earliest commitments. Buyer may cancel any order for such partial or cancelled deliveries by written notice to AFIS upon receipt of notice from AFIS of such partial or cancelled deliveries. Unless otherwise specified in writing, risk in the goods passes to the buyer at the time the goods are loaded onto the vehicle which is to effect delivery of the goods from AFIS to the buyer. For Orders where delivery is to be made by collection by Buyer, such collection shall be at such premises of AFIS as it may designate to Buyer and delivery shall be deemed to have taken place when the Goods are made available for collection by Buyer at such premises. AFIS reserves the right to make delivery of Goods ordered by Buyer in instalments, and each instalment shall constitute a separate contract.
AFIS warrants title and that the Goods shall comply with AFIS’s standard specifications in effect on the date of shipment and to the description of the Goods contained in the Form. AFIS reserves the right at any time to change the specification with or without advance notice. AFIS EXPRESSLY EXCLUDES ANY AND ALL EXPRESS WARRANTIES OTHER THAN AS PROVIDED ABOVE AND ANY AND ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATIONS THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE RELATING TO THE USE OR PERFORMANCE OF THE GOODS. Without limiting the foregoing, under no circumstances whatsoever shall AFIS have any liability or obligation to Buyer for any and all advice assistance, recommendations or information provided by AFIS to Buyer with regard to the handling, storing, applying or using any Goods supplied by AFIS to Buyer.
7. LIMITATION OF LIABILITY.
Buyer shall carefully check all Goods upon receipt at the shipping destination. Claims must be notified to AFIS in writing within 10 (ten) working days of Buyer’s detection of the defects or 6 (six) months after receipts of the Goods, whichever shall first occur. Upon request, a sample shall immediately be sent to AFIS. Failure to give AFIS such notice shall constitute full waiver of such claims by Buyer. AFIS shall not be liable for personal injury or property damage unless caused by AFIS’s negligence and in no event shall AFIS be liable for any incidental or consequential damage. Buyer’s exclusive remedy and AFIS’s sole liability for any breach of the warranty made under 7 above shall not exceed the price of the Goods. AFIS will at Buyer’s option replace such Goods as determined to be defective upon AFIS’s inspection at no price for Buyer or refund the purchase price. Buyer may not send the Goods back to AFIS unless authorised in advance.
Title to and property of the Goods remain with AFIS until payment for those Goods and all other amounts owed by Buyer have been received by AFIS, and until such time the Buyer shall hold the Goods on trust for AFIS. The buyer acknowledges that AFIS may collect the book debt arising from such a sale as AFIS remains the beneficial owner of the book debt at all times. If the Buyer disposes of the Goods then the Buyer must retain out of the proceeds of that sale and hold on trust for AFIS, such of the proceeds of the finished product as relate to the Goods supplied by AFIS to Buyer and which remain unpaid. Such part shall be deemed to be equal in dollar terms to the amount owing by Buyer to AFIS at the time of receipt of such proceeds. At any time until the Goods have been paid for and without prejudice to any other remedies, AFIS or its agents shall be entitled to draw an inventory of such Goods and re-possess any Goods to which it has title here under. Nothing in this clause shall confer any right on the Buyer to return Goods supplied here under or to refuse or delay payment thereof. The buy agrees to the seller registering the debts under the PPSA (see below).
9. INTELLECTUAL PROPERTY.
No license under any patent or proprietary know how in relation to the Goods shall be granted to the buyer on any sale of the Goods to the buyer and the buyer will be solely liable for infringements of any patent, trademark or proprietary know how arising in consequence of the buyers use of the Goods in combination with other materials or the operation by the buyer of process or procedures in relation to the Goods.
10. FORCE MAJEURE
AFIS shall not be liable in any way for any loss or damage arising directly or indirectly, through or in consequence of production, delivery or holding stock of the Goods being prevented or delayed by happenings or occurrences due to or by reason of any matters or thing beyond the control of AFIS.
11. ASSIGNMENT, SEVERANCE, WAIVER.
Buyer shall not assign or charge the benefit of any purchase from AFIS without AFIS’s prior written consent. Each of the provisions of these Conditions are severable and distinct from others and if at any time one or more of the provisions is or becomes invalid, illegal or unenforceable, the validity, legality and/ or enforceability of the remaining provisions of these Conditions shall not in any way be affected or impaired by it. No failure to exercise or delay in exercising of any rights here under shall operate as a waiver of that or any other right, nor shall any single, defective or partial exercise preclude any other or future exercise of the right.
12. GOVERNING LAW AND JURISDICTION.
The parties accept the law of New South Wales as the proper law of the contract and both parties submit to the nonexclusive jurisdiction of the courts in that state and any court hearing appeals from those courts.
13. DEFAULT BY BUYER.
The Buyer acknowledges that in the event of any default or failure of the Buyer in making due and punctual payment of any amount to AFIS; an administrator, liquidator or provisional liquidator being appointed in respect of the Buyer; a receiver and manger, administrator or controller being appointed to the assets of the Buyer; or the Buyer goes into bankruptcy or is wound up; or the Customers admits in writing or is declared by a court to be unable to pay its debts when they fall due, or there is a breach by the Buyer of any of these terms and conditions, THEN all monies payable by the Buyer to AFIS shall become immediately due and payable notwithstanding the due date for payment shall not have expired and AFIS may do any of the following: withdraw any credit facilities extended to the Buyer, withhold any further deliveries of Goods. in respect of Goods already delivered, enter the Buyer’s premises and recover and resell the Goods and cease to supply goods to the Buyer.
14. PERSONAL PROPERTY SECURITY LAWS.
These terms create a purchase money security interest in the goods and the buyer must must do all things reasonable required by the Seller to register and perfect that interest under the terms of the Personal Property Securities Act 2009 (Cth) (PPSA) or otherwise. If the seller repossesses the goods the seller does not need to provide the buyer with any notice under sections 130 or 135 of the Personal Property Securities Act 2009 (Cth). The buyer will, at the seller’s request, pay any or all of the seller’s costs and expenses, on an indemnity basis, related to registration and enforcement of an security interest related to these terms (including in relation to any security interests granted by a person guaranteeing the buyers performance of these terms) or related to ensuring the payment of the buyer’s overdue debt, commission and fees payable to a collection agency, solicitor or the like.
The Buyer acknowledges and agrees that a credit application and Terms of Trade have been provided to the Buyer who has been chosen to take it away and read so that the Buyer may fully comprehend and understand the terms and conditions and provisions. The Buyer has acknowledged that it has read and fully understood and comprehended the terms and conditions of this provision.