STANDARD TERMS AND CONDITIONS OF SALE
Fermex Distributors, a division of Pleasant Foods Pty Ltd as trustee for Pleasant Foods Trust ABN 11 419 410 946 and each subsidiary, affiliate, associated company and related entities (the Supplier)
These trading terms shall govern the sale and delivery of goods by the Supplier to its Customers (the Customer)
1. ACCOUNT TERMS
1.1 These terms and conditions shall apply to the exclusion of all other terms and conditions, including but not limited to, any terms and conditions of the Customer. If the Customer does not wish to receive goods on the terms and conditions set out in this Agreement (as amended from time to time), the Customer must notify the Supplier and return the goods to the Supplier within 48 hours of receipt or the date of amendment of this Agreement, otherwise the Customer will be deemed to have accepted the goods on the terms of this Agreement.
1.2 The Supplier may in its absolute discretion refuse the Customer credit facilities or suspend or discontinue the supply of goods and services to the Customer at any time without any obligation to provide to the Customer or the Customer’s Guarantors, a reason for such action.
1.3 No Goods will be supplied by the Supplier to the Customer on any other terms or conditions other than those set out in this document.
1.4 Any subsequent store locations must also be approved by the Supplier before the Supplier’s products can be distributed to another outlet.
1.5 All discounts and/or rebates granted on the invoice are conditional on payment by the Due Date. If payment is not received by the Supplier by the Due Date, any discounts and/or rebates offered by the Supplier on the invoice will be lost.
2. GENERAL
2.1. The Supplier may vary these Terms by a notice of variation in writing to the Customer. The Customer agrees that the purchase of any goods or services after the date of a notice of variation will be deemed to be an acceptance of such varied Terms by the Customer. Clerical errors are subject to correction without notification. The Customer will be deemed to accept the variation if no dispute is raised within 7 days of the date of the notice.
2.2. Should there be any variation to any of the information supplied by the Customer to the Supplier in the Commercial Trading Agreement or in the structure or nature of the Customer’s business, the Customer shall notify the Supplier in writing within 7 days of such variation.
2.3. The Customer warrants that this Commercial Trading Agreement is for the supply of goods and services on credit for use in a commercial operation and is not for personal (consumer) consumption.
2.4. Customer orders are subject to a minimum commercial value determined by the Supplier. The minimum commercial value will be advised by the Supplier and may be varied from time to time with prior written notice to the Customer.
3. PAYMENT AND CREDITS
3.1. All accounts are due and payable within the given terms stated on the relevant invoice or statement or as otherwise notified by the Supplier on approved credit trading terms.
3.2. If there is any dispute in relation to amounts the Supplier claims as owing by the Customer, the Customer must provide the Supplier with written detailed reasons for the dispute within seven days of the date of the invoice disputed, and must pay the undisputed amount of the invoice.
3.3. For “Payment before Delivery Sales”, full payment in the form of cleared funds must be received and verified by the Supplier prior to delivery of products being made the Supplier shall at all times and at its sole discretion have the right to supply goods on a “Payment before Delivery” basis and not offer credit irrespective of whether credit has been previously provided.
3.4. For “Payment on Delivery Sales”, full payment must be received and verified by the Suppliers’ drivers at the time of delivery for products being supplied. The Supplier shall at all times and at its sole discretion have the right to refuse to supply goods if “Payment on Delivery” basis is not made and not offer credit irrespective of whether credit has been previously provided.
3.5. In the event that a cheque provided by the Customer to the Supplier for payment is dishonoured by the Suppliers’ bank, then the Customer agrees to pay the Supplier twice the amount charged by the Suppliers’ bank.
4. DEFAULTS
Should the Customer fail to pay an account by the due date:
4.1. Any discounts that apply (including but not limited to off-invoice discount and settlement discount) will be disallowed if payment is not received on or before the date required in accordance with these terms. Any disallowed discounts will be due and payable immediately;
4.2. Where any part of the trading account has not been paid within the time specified in this agreement and has fallen into arrears then the totality of the account whether or not in arrears shall become immediately due and payable;
4.3. The Customer’s account may at Fermex Distributors’ discretion be subject to withdrawal of credit; suspension of supply of goods or permanent closure upon the provision of 48 hours’ notice; and Fermex Distributors may charge a surcharge of 10% (“productivity surcharge”) in addition to the amounts not paid within the credit term
4.4. The Supplier may charge a service fee charged at 1.5% per month on amounts due by the Customer, including the productivity surcharge, which will be in addition to amounts owed. The service fee shall be calculated on each day’s balance and compounded.
4.5. The Supplier may take legal action to recoup any debt which is likely to result in the closure of the account;
4.6. The Customer shall also be liable to pay all reasonable costs and expenses to the Supplier on demand (including without limitation all legal costs and disbursements on a solicitor/own client basis) and all mercantile agents fees incurred by the Supplier in recovering any amounts outstanding;
4.7. The Customer agrees to provide full details of its credit card account to the Supplier. If the Customer’s account is not paid in full by the due date the Supplier reserves the right to debit this amount to the Customer’s credit card together with any credit card fees that may be charged to the Supplier in respect of the transaction upon the provision of 24 hours’ notice in writing to the Customer. The Customer will be notified in writing of any amounts so debited and agrees to the Supplier charging $0.30 plus 1.53% on account of fees if such payments are received using Visa or Master Card, $0.30 plus 1.70% on account of fees if such payments are received using American Express, and that such charges will be taken at time of processing.
4.8. Where any person has a financial interest in two or more the Suppliers’ Accounts (“inter-related accounts”) and any one of the inter- related accounts fails to observe these trading terms then all inter-related accounts shall be subject to suspension of supply and account cancellation procedures and invoices rendered to all inter-related accounts shall become immediately due and payable.
4.9. An account may be subject to suspension or closure if the Customer breaches these Trading Terms or where any other guidelines or policies issued from time to time are not observed.
4.10. Any account together with any inter-related account will be immediately and permanently closed if in Fermex Distributors’ sole opinion the Customer:
4.10.1. sells or offers to sell or purchases counterfeit the Suppliers’ products;
4.10.2. engages in deceptive or illegal conduct that has an adverse effect on the Supplier; or
4.10.3. on-sells or supplies the Suppliers’ products to or purchases the Suppliers’ products from non-approved outlets.
4.11. Should an account be closed, the Supplier may immediately reclaim any advertising or point-of-sale material incorporating the Suppliers’ Trade Marks or other the Suppliers’ intellectual property that has previously been supplied and the Customer irrevocably grants permission for the Suppliers’ servants and agents to enter its premises to reclaim such material.
5. TITLE
5.1. Goods supplied by the Supplier to the Customer will not pass to the Customer until the Customer has paid all amounts owing by them to the Supplier in cleared funds to the Supplier’s bank account.
6. PRICES
6.1. The Customer acknowledges and accepts that orders are accepted for immediate shipment with the understanding that the price of the goods is dependent on the market. All prices are subject to change without notice.
7. FREIGHT AND ADMINISTRATIVE CHARGES
7.1. The Supplier shall bear all freight costs of delivering goods to the Customer where the Customer’s place of business is situated within a metropolitan area within Australia. A non-metro store is classed as any store outside of the metropolitan area of all capital cities of the States and Territories of Australia, which is determined by the additional charges passed onto the Supplier by our nominated freight company.
7.2. Deliveries to non-metro stores shall incur a delivery fee per delivery as advised by the Supplier to the Customer from time to time.
7.3. The Supplier shall not be liable for freight costs on any goods returned to it by the Customer where authorisation has not been arranged prior to return.
8. DELIVERY
8.1. Goods will be delivered to the Customer in accordance with the delivery schedule of the Supplier which may change from time to time. The Customer agrees to accept and pay for goods even if they are not delivered at a time requested by the Customer.
8.2. The goods will be dispatched to an address or addresses nominated by the Customer or the Customer’s employee/agent. If the Customer, employee or agent are not present at the specified address for delivery then the Supplier may unload the goods at that address and the goods shall be deemed to be received by the Customer and the Supplier shall not be liable for any claims, costs or losses suffered by the Customer. Alternatively, the Supplier at its discretion and having due care and consideration for the type of goods being delivered, may instruct its employee or contractor to return the goods to the warehouse to ensure the goods maintain their suitability for their intended use.
8.3. Delivery dates are estimates only. The Supplier will not be responsible for delays in delivery or failure to deliver due to causes beyond their control and the Customer will have no claim against the Supplier for any damages, loss or costs arising from any delay or failure in delivery.
8.4. Where good are short delivered, defective or damaged on delivery, the Customer must notify the Supplier immediately on delivery or in writing within 24 hours otherwise the Customer is deemed to have accepted the goods.
8.5. The Supplier may at its discretion levy an “uneconomic delivery charge” for deliveries below a certain value. This charge will be itemised on the invoice.
8.6. The Supplier may at its discretion levy a separate “delivery charge” the purpose for which will be itemized on the invoice.
9. CUSTOMER RETURNS AND OTHER CLAIMS
9.1. The Supplier shall not allow credit for returns, unless the return of goods is specifically authorized by the Supplier and the product is returned in a condition (original packaging and deemed to be resaleable) to the Supplier.
9.2. Returns of unpacked goods will not be accepted.
9.3. Returns of special orders will not be accepted.
9.4. Returns of goods received by the Supplier after the period specified by the Supplier when granting authorisation for the goods to be returned, will not be accepted.
9.5. With the prior consent of the Supplier, the Customer may return goods, in its original packaging, to the Supplier’s delivery driver at the next available delivery time.
9.6. Acceptance of the returned goods by the Supplier shall not constitute any acceptance of any claim.
9.7. The Supplier reserves the right to raise credits at the lowest invoiced prices if original invoice details are not provided.
9.8. Incorrect pricing claims relating to either price, freight or administration charges, must be advised by the Customer to the Supplier within 24 hours of the invoice date in order for these claims to be considered.
9.9. All claims will be subject to investigation before a decision is made and any rejections by The Supplier will be communicated to the Customer. For the avoidance of doubt, non-compliance by the Customer with this Agreement will be considered in any investigation and may cause the claim to be rejected.
10. CANCELLATION OF ORDERS
10.1. The following shall apply in relation to the cancellation of orders:
10.2. Orders placed with The Supplier by the Customer shall not be cancelled without prior written approval of The Supplier;
10.3. A request for cancellation will not be considered unless made in writing by the Customer to The Supplier and received by The Supplier not less than thirty (30) days prior to the scheduled delivery date;
10.4. Special Make-Up Orders and Custom Product Orders may not be cancelled; and
10.5. In the event that The Supplier accepts the cancellation of an order, The Supplier shall be entitled to charge any reasonable fees for the cost of work and materials and/or any administration costs incurred by The Supplier in preparing and cancelling the order.
11. LIMITATION OF LIABIILITY
11.1. The Supplier is not responsible to the Customer for any loss or damage to goods during transit caused by any event of any kind by any person (whether or not the Supplier is legally responsible for the person who caused or contributed to that loss or damage). The Supplier may provide the Customer with such assistance as may be necessary to press claims on carriers provided that the Customer has notified The Supplier and the carriers in writing immediately after loss or damage is discovered on receipt of goods; and lodges a claim for compensation on the carrier within three (3) days of the date of receipt of the goods.
11.2. Except as provided in these terms, and to the extent permitted by law, all express and implied warranties as to the supply of goods are expressly excluded. the Supplier is not liable to the Customer for any physical or financial injury, loss or damage or for direct, indirect or consequential loss or damage of any kind arising out of or in relation to the supply of the goods by the Supplier or arising out of any act or omission by the Supplier, its employees, servants and agents. Notwithstanding anything to the contrary contained in these terms, the Supplier’ liability is expressly limited to, at the Supplier’ absolute discretion, either the replacement of the goods or the cost of obtaining equivalent goods
12. RETENTION OF TITLE
12.1. The Customer agrees that all goods supplied by the Supplier to the Customer shall remain the property of the Supplier and property in all goods supplied shall not pass to the Customer until such time as the Supplier has:
12.1.1. been paid in full for all goods supplied;
12.1.2. received payment of all other sums that are owing by the Customer to the Supplier; and
12.1.3. the monies owing referred to in (a) and (b) above have been collected and cleared by the Supplier.
12.2. Where the Supplier has not been paid in full for any goods supplied to the Customer and/or in full for any other amounts which are due for payment by the Customer to the Supplier, then:
12.3. the Customer shall hold any such goods which it has been supplied by the Supplier upon trust and as a fiduciary for the Supplier and shall store and identify all such goods in a manner that clearly shows the Supplier’ ownership thereof;
12.4. the Customer must not sell any goods supplied without the prior written consent of the Supplier or except in the ordinary course of the Customer’s business;
12.5. the Customer shall have no right or claim to any right or interest in the goods to secure any liquidated or unliquidated debt or obligation that the Supplier owes or may owe to the Customer;
12.6. the Customer may not claim any lien over the goods;
12.7. the Customer agrees that it shall not create any absolute or defeasible interest in the goods or grant or allow any security interest in the goods or their proceeds in relation to any third party except as may be authorised by the Supplier; and
12.8. without prejudice to the Supplier’ rights as an unpaid Seller or any of its other rights or remedies to retake possession of the Supplier goods from the Customer, the Customer hereby agrees to deliver up goods to the Supplier upon demand by the Supplier and otherwise agrees that the Supplier may recover possession of the goods at any site owned, possessed or controlled by the Customer and the Customer agrees that the Supplier has an irrevocable licence to do so.
12.9. Where title has not passed to the Customer in goods supplied by the Supplier to the Customer; and those Goods are sold to a third party by the Customer, then the proceeds of such a sale by the Customer, to the extent that they are deemed to equal in dollar terms the amount owing by the Customer to the Supplier on any account at the time of receipt of such proceeds, shall be held upon trust by the Customer for the Supplier in a separate account until such time as full payment is made of all amounts owing by the Customer to the Supplier.
12.10. The Customer agrees to indemnify and hold the Supplier harmless against all loss and damage incurred or sustained by the Supplier as a result of or in relation to the exercise of the Supplier’ retention of title rights.
12.11. Clauses 12.1 to 12.4 above shall apply in respect of any goods supplied by the Supplier to an inter-related account of a Customer where the inter-related account is in default (see clause 4).
13. FORCE MAJEURE
13.1. The Supplier shall not be liable for any delay or for the consequences of any delay in performing or failure to perform any of its obligations under these Terms if such delay is due in full or in part to any cause whatsoever beyond its reasonable control. Such delay or failure shall not constitute a breach of these Terms and the Supplier shall be entitled at its option to either extend the time for delivery or performance for a reasonable period or to determine the contract without any recourse by the Customer to any claim for damages.
14. CHANGE OF OWNERSHIP
14.1. The Customer shall give written notice to the Supplier within seven (7) days of any change of ownership or control of the Customer. The Customer hereby agrees to indemnify and keep indemnified The Supplier against any loss, damage, cost or expense incurred by the Supplier as a result of the Customer’s failure to notify the Supplier of any such change of ownership and/or control. The Supplier reserves the right to vary any Customer order or terms of credit or hold or discount entitlements upon any change of ownership or control of the Customer.
15. LIEN
15.1. The Customer hereby irrevocably grants the Supplier a general and specific lien and pledge over any and all goods belonging to the Customer which are in the Supplier’ possession from time to time to secure payment of any amounts due and payable under these terms.
16. SEVERANCE
16.1. In the event that the whole or any part or parts of any clause in these Terms is found to be unenforceable by a Court then such clause or part thereof shall be to that extent severed from these Terms without effect to the validity and enforceability of the remainder of these Terms.
17. JURISDICTION
17.1. These terms shall be governed by and construed in accordance with the laws of the State of Queensland. The parties submit to the exclusive jurisdiction of the Courts in Brisbane and agree that proceedings may be commenced in any court in Brisbane and consent to that court having jurisdiction by virtue of this clause notwithstanding that the court would not have jurisdiction without this consent.
18. NOTICE
18.1. Notice required to be given by the Customer to the Supplier pursuant to these Terms may be delivered to the Supplier personally or by post to the Supplier at 21 Walker Street, Tennyson Qld 4105.
18.2. Notice will be taken as delivered when received by the Supplier
18.3. Notice required to be given by the Supplier to the Customer pursuant to these Terms may be delivered by post to the Customer’s last known address (and shall be taken as delivered on the second business day following posting), or by email to the last notified email address of the Customer (which will be taken to be received within 24 hours of the Supplier sending the email to the correct email address)
19. WAIVER
19.1. No waiver of these Terms shall be valid and operate unless such waiver is in writing and signed by the authorised representative of the Supplier.
20. GST
20.1. Unless otherwise agreed by the Supplier and the Customer, all amounts payable in relation to goods supplied to the Customer under these Terms are expressed to be exclusive of GST. If GST is payable on a taxable supply as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) then the amount payable by the Customer for that taxable supply will be the amount expressed plus GST.
21. ENTIRE AGREEMENT AND NO MERGER
21.1. Unless otherwise agreed in writing, the Supplier and the Customer acknowledge that these terms and conditions constitute the entire agreement between them and that the only enforceable obligations and liabilities of the Supplier and the Customer in relation to its subject matter. All representations, communications and prior agreements are superseded by these terms and conditions. Where previous terms and conditions have been entered into between the Customer and the Supplier, the parties agree that this Agreement shall not act as a merger of their rights but that the terms contained under such previous Agreement shall be amended by the terms contained herein to the extent of any inconsistency.
22. PPSA, PMSI and APAAP
22.1. The Customer hereby grants a charge to the Supplier overall and any of your present and after acquired property (“APAAP”) and any interest in real property (current or future) as security for your indebtedness and obligations under this Agreement. The Customer agrees that the covenant to repay contained in this Agreement is a charge over any such interest in real property of the Customer and consents to a caveat being lodged against the title to any such real property or any interest in such real property owned by the Customer from time to time, including that where the Customer/s is/ are or becomes a trustee of a trust (whether or not such trust is disclosed herein), the Customer in such capacity hereby charges all such real and personal property of such trust (including all present and after acquired property) with the obligations contained herein and declare that such charge is given in consideration of the terms herein, of the Supplier agreeing to sell or continue to sell to the Customer and at the request of and for the benefit of such trust . The Customer (in their own capacity and/ or as trustee as previously described) hereby and by way of security irrevocably appoints every officer and legal practitioner of the Supplier jointly and each of them severally as the Customer’s lawful attorney (“attorney”) with the power and for the purpose of executing (including as a deed) a mortgage or other instrument of security in any form determined in the absolute discretion of the attorney over any interest in real property of the Customer (in their own capacity and/ or as trustee as previously described) to secure the monies and obligations herein, if the Customer fails within a reasonable time of demand being made upon the Customer to execute such mortgage or other instrument, and to procure the registration of such mortgage or other security.
22.2. For the purposes of section 20(1) and (2) of the PPSA, and to ensure maximum benefit and protection for the Supplier under the PPSA, you confirm and agree that you intend to and do grant to the Supplier, as security for your indebtedness and obligations, a charge over all of your present and after-acquired property.
22.3. You agree to do anything that the Supplier reasonably requires to ensure that the Supplier has at all times a continuously perfected security interest over all of your present and after-acquired property and agree and acknowledge that the Supplier may register its security interest on the register established pursuant to the PPSA.
22.4. The Supplier may allocate amounts received from you in any manner it determines, but in default will apply same first to payment of any unsecured amount owing to the Supplier, next as to any reasonable enforcement expenses and then as to any secured balance owing to the Supplier.
22.5. You agree to reimburse the Supplier for all reasonable costs and/or expenses incurred or payable by the Supplier in relation to registering, maintaining or releasing any financing statement or financing change statement under this Agreement or complying with any requirement under the PPSA (including but not limited to complying with any request for information from third parties if required).
22.6. You will not (except with the written consent of the Supplier) allow to be, or be liable to become, perfected or attached in favour of any person, a security interest or transitional security interest in any of the monies from time to payable to the Supplier (if any) or otherwise, and whether to a provider of new value or otherwise).
22.7. You will not (as against any person who is a “related entity“ of you for the purposes of the Corporations Act 2001) without the prior written consent of the Supplier, before or until all money payable to the Supplier in connection with the Agreement is paid in full:
22.7.1. exercise a right of contribution or indemnity;
22.7.2. claim the benefit of (for example, by subrogation), or seek priority ahead of, the transfer of or the benefit of a security the Supplier holds in connection with this Agreement;
22.7.3. try to reduce its liability to the Supplier through set off or counterclaim; or
22.7.4. prove in competition with the Supplier if you are unable to pay your debts when due.
22.7.5. seek to perfect or attach in favour of you or another (either jointly or severally) a security interest in any of your present or after acquired property which would rank in priority to the entitlements of the Supplier.
22.8. You waive the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interests under this Agreement.
22.9. You agree that you and the Supplier contract out of and nothing in the provisions of Sections 95, 96, 117, 118, 121(4), 130, 132(3)(d), 132(4), 142 and 143 of the PPSA shall apply to this Agreement.
22.10. You and the Supplier acknowledge that you are the grantor and the Supplier is the holder of a Purchase Money Security Interest (“PMSI”) by virtue of this Agreement and/ or the PPSA.
22.11. You and the Supplier agree that the terms of this Agreement may be altered unilaterally by the Supplier
22.12. You hereby consent and appoint the Supplier to be an interested person and your authorized representative for the purposes of section 275(9) PPSA.
23. CONFIDENTIALITY
23.1. You acknowledge that all pricing information and any other commercially sensitive or confidential information relating to this Agreement is strictly confidential (Confidential Information).
23.2. Except as stated in this Agreement or where required by PPSA, the parties to this Agreement are under an obligation to not and must not permit any of their officers, employees, agents, contractors or related bodies corporate to disclose any Confidential Information to any person, without the prior written consent of the party to whom the Confidential Information relates, other than:-
23.2.1. to their professional advisors;
23.2.2. in the case of the Supplier, in assigning or enforcing or seeking to assign or enforce this Agreement, in a proceeding arising out of or in connection with this Agreement, to a ratings agency or to the extent that disclosure is regarded by The Supplier as necessary to protect its interest; or
23.2.3. as required by law, a binding order of any government agency or any procedure for discovery in any proceedings.
23.3. The parties acknowledge and agree, for the purpose of section 275(6)(a) of the PPSA, that neither party may disclose any information or documents supplied by another party, including information of the kind referred to in section 275(1) of the PPSA, except in the circumstances in which disclosure is permitted pursuant to clause 56
23.4. .This clause, and clause 55, 56 and 57 operates for the benefit of all parties; and continues despite the termination of this Agreement.