- APPLICATION OF THESE CONDITIONS
These conditions, subject to any variations we agree to in writing, apply to all supplies made by us as specified in the invoice and you as the purchaser. These conditions, in their present form or as changed, pursuant to these conditions, together with the relevant credit application form (if applicable), invoices and Purchase Orders exchanged between the parties form the contract.
Where the supply purports to be made on or subject to terms and conditions other than these conditions, you agree that such other terms and conditions are disregarded and form no part of the Contract unless the we agree otherwise in writing.
You acknowledge and agree that:
3.1 our liability under these conditions falls solely on us; and
3.2 your obligations that you accept and warranties that you make are accepted and made for our benefit and all our related bodies corporate.
- ACCEPTANCE OF PURCHASE ORDERS
4.1 We reserve the right to refuse acceptance of any Purchase Order, within 2 working days after receipt. Any quotation given by us lapses if not accepted by the Purchaser within 30 days.
- TERMS OF PAYMENT
Terms of payment are cash with order, COD (if agreed to by us) unless credit or the use of credit cards has been approved by us. If credit is satisfactorily established, invoices will be paid on or before the date specified for payment in the credit application approval (without deduction or set-off of any kind) unless otherwise agreed to by us in writing. If use of credit card is approved, then payment is due on the date of invoice. In the event payment is not received by the due date we reserve the right to charge interest at of 15% per annum calculated from the due date of payment in respect of all amounts you owe us which is overdue. Any interest so levied shall accrue on a daily basis and shall accrue until all monies owing are paid in full. You shall also be liable to pay all our expenses, legal costs on a solicitor and own client basis, in relation to obtaining remedy of the failure to comply.
If you default in payment, or an application is made to a court against you for winding up, or a receiver or administrator is appointed to manage your affairs, or you are in material breach of the Contract, then we may terminate the Contract or any Purchase Order immediately.
- DELIVERY AND RISK
7.1 We will use all reasonable endeavours to deliver by the date specified in the Purchase Order, it does not unless otherwise agreed in writing guarantee delivery on that date and we are not liable for any Loss resulting from late or early delivery. Delivery of the Goods shall be effected when the Goods are unloaded from the delivery vehicle. If no date for delivery has been specified, then the Goods shall be supplied to you and you shall receive the Goods as soon as practicable after the Purchase Order has been accepted by us.
7.2 Risk in the Goods passes to you at the time of delivery.
- PASSING OF PROPERTY
8.1 Our rights under this clause 8 secure:
a) our right to receive the price of all Goods sold under this Contract;
b) all other amounts owing to us under this Contract or any other contract.
8.2 All payments received from you must be applied in accordance with section 14(6)(c) of the PPSA.
8.3 You agree that legal title and property in the Goods is retained by us until payment is received in cleared funds of all sums owing to us, whether under the Contract or otherwise. You must keep the Goods separate from other goods and store the Goods so that they are readily identifiable as those supplied by us.
8.4 You must not sell the Goods except in the ordinary course of your business.
8.5 If you fail to pay by the due date any amount owing to us, we may (without prejudice to any of its other rights) recover and resell any of the Goods in which property has not passed to you. In addition to any rights we may have under Chapter 4 of the PPSA, we may, without notice, enter any premises where it expects the Goods may be located and remove them without committing a trespass, and you authorise the us (or our agents) to enter onto the premises where the Goods are kept to take possession of the Goods for that purpose at any time. You also indemnify us from and against all Loss suffered and or incurred by us as a result of exercising our rights under this clause 8. If there is any inconsistency between our rights under this clause 8 and our rights under Chapter 4 of the PPSA, this clause 8 prevails.
8.6 You acknowledge and warrant that we have a security interest (for the purposes of the PPSA) in the Goods and any proceeds until title passes to you in accordance with this clause 8. You must do anything reasonably required by us to enable us to register our security interest with the priority we require and to maintain that registration.
8.7 The security interest arising under this clause 8 attaches to the Goods when you obtain possession of the Goods and the parties confirm that they have not agreed that any security interest arising under this clause 8 attaches at any later time.
- FORCE MAJEURE
9.1 Neither party is liable for any Loss incurred by the other party as a result of any delay or failure to observe any of these conditions (other than an obligation to pay money) as a result of any circumstance beyond the party’s control, including but not limited to any strike, lock-out, labour dispute, act of God, fire, flood, accidental or malicious damage or breakdown in machinery. The party affected must notify the other party as soon as possible of such circumstance.
9.2 During the continuance of such circumstance the obligations of the party affected, to the extent they are affected by the circumstance, are suspended and resume as soon as possible after the circumstance has ceased to have effect.
- SUPPLIER’S LIABILITY
10.1 Nothing in these conditions is to be interpreted as having the effect of excluding, restricting or modifying any statutory guarantee, condition or warranty, or right or liability implied by any applicable legislation into the Contract, if such exclusion, restriction or modification would be void or prohibited by the legislation.
10.2 To the extent that we breach any statutory guarantee, condition or warranty implied into the Contract and which cannot be excluded or modified, our liability is limited to, at our discretion:
a) replacement of the Goods or supply of equivalent Goods;
b) payment of the cost of replacing the Goods or acquiring equivalent Goods
c) repair of the Goods; or
d) payment of the cost of having the Goods repaired.
10.3 Subject to the above, we are not liable to you (or to any third party claiming through you) for any Loss caused by any act or omission of us, our employees or agent, and whether based on negligence, tort, contract or otherwise. Under no circumstances shall we be liable for indirect or consequential losses.
- QUANTITY AND QUALITY TOLERANCES
11.1 Should we be required to match any shade or colour a light and dark tolerance shall be allowed to such extent as shall be agreed upon by us and you at the time the standard colour is specified and in the absence of any agreement a reasonable tolerance shall be allowed
11.2 Where you supply specifications to us, any Goods not varying in the specification stipulated by you by more than the established industry tolerance must be accepted by you as complying with the Contract.
- PRICE VARIATION
12.1 The price quoted by us is unless otherwise agreed in writing subject to variation at any time prior to the date of acceptance of the Purchase Order upon written notice to you. Without limitation, if the cost of wages, materials or any other supply or input to us increases after the date of any written and/or price list and before delivery of the Goods specified in the Purchase Order, we may subject to other agreed pricing mechanisms add a fair and reasonable amount to the price quoted to cover the increase and you must pay the price as varied.
12.2 Any addition or change to the specifications of the Goods must be agreed in writing by all parties and may result in a price variation in accordance with paragraph 12.1.
- TAX AND DUTIES
The Purchaser is liable for all taxes (including GST), duties, levies and other government fees and charges in relation to the Goods. Unless specified otherwise, prices quoted do not include such taxes (including GST), duties, etc.
- GOODS AND SERVICES TAX
14.1 If, and to the extent, any supply of the Goods under the Contract is a taxable supply within the meaning of the GST Law, the price for the Goods will be increased to include GST payable by us in respect of the supply.
14.2 All rebates, discounts or other reductions in price will be calculated on the GST exclusive price.
14.3 The parties agree that:
- a) the parties must be registered persons within the meaning of the GST Law;
b) we must provide tax invoices and if applicable adjustment notes to you in the form prescribed by or for the purposes of the GST Law; and
c) costs required to be reimbursed or indemnified excludes any amount that represents GST for which an input tax credit within the meaning of the GST Law can be claimed.
Any claim by you arising out of the Contract must be made in writing and may be delivered by post, hand delivery, facsimile or email as soon as practicable after discovery by you of the problem and in any event no later than 7 days after delivery of the Goods. We have the right at any time within 14 days after receipt of the claim to inspect the relevant Goods. If you dispose of any of the Goods within the 14 day period, except with our written consent, all claims in respect of the Goods disposed of are deemed to have been waived by you.
Unless required by law or otherwise agreed, you must keep confidential all information you receive from us which relates to the Goods, our business or any services we provide and any of our intellectual property (including without limitation any formulations), other products or processes except to the extent that information is in the public domain.
If you request delivery by means other than the means normally used by us, then you must pay all additional costs associated with the means chosen. If, within 4 weeks after the Goods are available for dispatch, we are unable or find it impractical to transport the Goods by the means chosen, we may transport the Goods by any means we consider suitable and will advise you accordingly.
- OTHER DELIVERY PROVISIONS
18.1 Delivery may be made in one or more lots and at different times and by separate deliveries or shipments. Each lot must be accepted and paid for, notwithstanding any late delivery or non-delivery of any other lot.
18.2 The quantity of Goods delivered by us under a Purchase Order can vary by up to 10% of the quantity specified by you in the Purchase Order.
18.3 We will deliver the Goods to your nominated store. You must unload the Goods at the your risk.
- 19. PRODUCT SPECIFICATIONS AND DESIGN CHANGES
We may make any changes or improvements to the design or specification of the Goods at any time without giving prior written notice to you unless otherwise agreed in writing.
We retain the right of possession of any pallets used for delivery of the Goods, and you agree to indemnify us in relation to the hire and replacement costs of any pallets not returned in good order and condition to us within 28 days of delivery of the Goods, unless otherwise agreed in writing by us.
- PAYMENT BY LETTER OF CREDIT
If you are not resident in Australia or are not an Australian company, payment must be made by irrevocable letter of credit. If you require delivery of the Goods outside Australia, prices quoted are “free on wharf” free alongside ship, unless otherwise agreed in writing by us.
- ASSIGNMENT AND NOVATION
You must not assign or novate the Contract or otherwise deal with the benefit of it or a right under it, or purport to do so, without our prior written consent. A change in control of your shareholders and/or directors will be deemed an assignment for the purposes of this contract;
- RELATIONSHIP OF THE PARTIES
Except as expressly provided in the Contract nothing in the Contract is intended to constitute a fiduciary relationship or an agency, partnership or trust; and no party has authority to bind any other party.
- ENFORCEMENT OF SECURITY INTEREST
If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interest created under this Contract, you agree that the following provisions of the PPSA will not apply; section 95 (notice of removal of accession) to the extent that it requires us to give a notice to you; section 121(4) (enforcement of liquid assets – notice to grantor); section 130 (notice of disposal), to the extent that it requires us to give a notice to you; paragraph 132(3)(d) contents of statement of account after disposal); subsection 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); section 143 (reinstatement of security agreement).
- NOTICES UNDER PPSA
We do not need to give you any notice under the PPSA (including a notice of verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.
You must comply with the Privacy Law with respect to any act done or practice engaged in by you for the purposes of this Contract, including, without limitation, in relation to the collection, use disclosure, storage, destruction or de-identification of Personal Information. You must also enter into a contractual arrangement to this effect with any subcontractor or third party to which you disclose Personal Information in connection with this Contract.
27.1 Any of these conditions may be varied in writing by us unless otherwise agreed between the parties. Any variation to these conditions will only apply to Purchase Orders placed after the condition has been varied.
27.2 The waiver by us of any provision, or breach of any provision, of the Contract is not to be construed as a waiver of any other provision or a breach of any other provision, or further breach of the same or any other provision of the Contract.
27.3 If any provision of the Contract is unenforceable or void either in whole or in part for any reason, then that provision (or part) is deemed to be deleted without in any way affecting the validity or enforceability of any other provision.
27.4 The Contract (including the details appearing on the Purchase Order) constitute the entire agreement between the parties and no modification is binding in relation to the Contract unless agreed to in writing by us.
27.5 Any dispute arising out of the Contract is governed by the laws of the State of Victoria and you submit to the jurisdiction of and agree to be bound by the Federal Courts of Australia and of that State.
27.6 The following words have the following meanings in these conditions:
- a) “Contract” means the contract between you are the purchaser and us as the supplier for the supply of the Goods;
- b) “Goods” means all goods ordered in the Purchase Order;
- c) “GST” has the same meaning as in the GST Law;
- d) “GST Law” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
- e) “Loss” means any loss, liability, damage, expense or cost whatsoever and includes (without limitation) indirect or consequential loss or damage, loss of profits or business opportunity, and damage to equipment or property;
- f) “Personal Information” has the meaning set out in the Privacy Act 1988 (Cth).
- g) “PPSA” means the Personal Property Securities Act 2009 (Cth);
- h) “Privacy Law” means the Privacy Act 1988, including (without limitation) the 13 Australian Privacy Principles (APPs) in the Privacy Act 1988 (Cth) and all relevant Australian privacy laws, including the Health Privacy Principles under state legislation (e.g. those contained in the Health Records Act 2001 (Vic) or the privacy provisions contained in Part 2 of the Health Records (Privacy and Access) Act 1997 (ACT)), the Privacy Regulations 2013 and the Privacy (Credit Reporting) Code;
- i) “Purchase Order” means a purchase order issued by you to us;
- j) “Related Bodies Corporate” has the meaning given to it in the Corporations Act 2001 (Cth); and
- k) “Us” means Long Fine Hospitality Supplies Pty Ltd;
- l) “you” means the person or company (including your successors, personal representatives and permitted assigns) who acquires the Goods from us, and where this consists of more than 1 person or company the obligations in the Contract are deemed to be joint and several.