Terms And Conditions
Payment terms
1. The terms of payment are strictly 25 days (or such other period as nominated by the supplier herein) from end of month in which goods/services are purchased. Agritrading Pty Ltd and its related bodies corporate (as that term defined in the corporations act 2001)(supplier) may, at any time, unilaterally vary the terms of trade in its absolute and unfettered discretion.
2. Should the applicant not pay for the goods or services supplied by the supplier in accordance with the credit terms as provided herein, or as agreed in writing by the supplier from time to time, the supplier will be entitled to charge an administration fee and interest charges. Please refer to the Interest Rates below.
Jurisdiction
3. The applicant acknowledges and agrees that the laws of South Australia, and the laws of the Commonwealth of Australia, which are in force in South Australia, will govern this agreement.
4. The applicant acknowledges and agrees that any contract for the supply of goods or services between the Supplier and the Applicant is formed at the address of the Supplier
5. The parties to this agreement submit to the non-exclusive jurisdiction of the courts of South Australia and the relevant federal courts and courts competent to hear appeals from those courts.
Security/Charges
6. The applicant charges in favor of the Supplier all of its estate and interest in any real property that the Applicant owns at present and in the future with the amount of its indebtedness until discharged.
7. The Applicant charges in favor of the supplier all of its estate and interest in any personal property that the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.
8. The Applicant appoints as its duly constituted attorney the Suppliers company secretary from time to time to execute in the Applicants name and as the Applicants act and deed and real property mortgage, bill of sale or consent to any caveat the Supplier may choose to lodge against real property that the Applicant may own in any land titles office in any state or Territory of Australia, even though the Applicant may not have defaulted in carrying out its obligations hereunder.
9. Where the applicant has previously entered into an agreement with the supplier by which the applicant has granted a charge, mortgage or other security over real or personal property those charges, mortgages or other security interests will continue to coexist with the obligations and security interest created in this agreement.
The supplier may, at its election, very the terms of such previous charges, mortgages or other securities to reflect the terms herein.
Purpose of credit
10. The applicant acknowledges and agrees that the credit to be provided to the applicant by the supply is to be applied wholly or predominantly for commercial purposes.
Formation of contract
11. Quotations made by the supplier will not be construed as an offer or obligation to supply in accordance with the quotation. The supplier reserves the right to accept or reject, at its discretion, any offer to purchase received by it. Only written acceptance by the supplier of the applicants offer will complete a contract
12. Placement of an order, either verbally or in writing, will imply acceptance of the supplies offer and of these terms and conditions.
Retention Of Title
13. Whilst the Applicant has not paid for the goods supplied in full at any time, the Applicant agrees that the property and title in the goods will not pass to the Applicant and the Supplier retains the legal and equitable title in those goods supplied and not yet sold.
14. Until payment in full has been made to the supplier, the Applicant will hold the goods in a fiduciary capacity for the Supplier and agrees to store the goods in such a manner that they can be identified as the property of the Supplier, and will not mix the goods with other similar goods.
15. The Applicant will be entitled to sell the goods in the ordinary course of its business, but until full payment for the goods has been made to the supplier, the Applicant will sell as agent and bailee for the supplier and the proceeds of sale of the goods will be held by the Applicant on trust for the Supplier absolutely.
16. The Applicants indebtedness to the supplier, whether in full or in part, will not be discharged by the operation of clause 15 hereof unless and until the funds held on trust are remitted to the Supplier.
17. The supplier agrees that while property and title in the goods remains with the Supplier, the Supplier has the right, with or without prior notice to the Applicant, to enter upon any premises occupied by the Applicant (or any receiver, receiver and manager, administrator liquidator or trustee in bankruptcy of the Applicant) to inspect the goods of the Supplier and to repossess the goods which may be in the Applicants possession, custody or control when payment is overdue.
18. The applicant will be responsible for the supplier’s costs and expenses in exercising its rights under clause 17. Where the Supplier exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on part of the Applicant against the Supplier, its employees, servants, or agents.
19. The applicant agrees that where goods have been taken into the possession of the Supplier, the Supplier has the absolute right to sell or deal with the goods, and if necessary, sell the goods with the trademark or name of the Applicant on those goods, and the Applicant hereby grants an irrevocable license to the Supplier to do all things necessary to sell the goods bearing the name or trademark of the Applicant.
20. The Applicant will be responsible for the Supplier’s costs and expenses in exercising its rights under clause 17. Where the Supplier exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Applicant against the Supplier, its employees, servants or agents.
21. For the avoidance of doubt, the Suppliers interest constitutes a ‘purchase money security interest’ pursuant to the Personal Property Securities Act 2009.
Cancellation Of Terms Of Credit
22. The Supplier reserves the right to withdraw credit at any time, whether the Applicant is in default under the terms of this Agreement or not.
23. Upon cancellation with or without notice all liabilities incurred by the Applicant become immediately due and payable to the supplier.
Indemnity
24. The Applicant agrees to indemnify the Supplier and keep the Supplier indemnified against any claim. This indemnity includes any legal fees and expenses the supplier incurs in order to enforce its rights, on an indemnity basis.
Provision Of Further information
25.The applicant undertakes to comply with any request by the supplier to provide further information for the purpose of assessing the Applicants creditworthiness, including an updated credit application.
26. If the applicant is a corporation (with the acceptance of a public listed company), it must advise the supplier of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). In the case of a change of directors or shareholders the supplier may ask for new guarantors to sign a guarantee and indemnity.
Corporations
27. If the Applicant is a corporation, the Applicant warrants that all of its Directors have signed this Agreement and that all of its directors will enter into a guarantee and indemnity with the supplier in relation to the Applicants obligations to the supplier.
Trustee Capacity
28. If the Applicant is the trustee of a trust (whether disclosed to the Supplier or not), the Applicant warrants to the supplier that:
a) The applicant enters into this agreement in both its capacity as trustee and in its personal capacity;
b) The Applicant has the right to be indemnified out of Trust assets;
c) The Applicant has the power under the trust deed to sign this agreement; and
d) The applicant will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier.
29. The Applicant must give the Supplier a copy of the trust deed upon request.
Partnership
30. If the Applicant enters into this agreement as partners, the Applicant warrants that all of the partners have signed this agreement and that all of the partners will enter into a guarantee and indemnity with the supplier in relation to the Applicants obligations to the supplier.
31. If the Applicant is a partnership it must not alter this partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Supplier. In case of a change of partners, the Supplier may ask for new guarantors to sign a guarantee and indemnity.
Insolvency
32. If the Applicant becomes insolvent, the Applicant remains liable under this agreement for payment of all liabilities incurred hereunder. The Applicant remains liable under this agreement even if the Supplier receives a dividend or payment as a result of the Applicant being insolvent.
Waiver
33. A waiver of any provision or breach of this agreement by the supplier must be made by an authorized officer of the Supplier in writing. A waiver of any provision or breach of this agreement by the Applicant must be made by the applicants authorized officer in writing.
34. Until ownership of the goods passes, the Applicant waives its rights it would otherwise have under PPSA:
a) under section 95 to receive notice of intention to remove an accession;
b) under section 118 to receive notice that the Supplier intends to enforce its security interest in accordance with land law;
c) under section 121(4) to receive a notice of enforcement action against liquid assets;
d) under section 129 to receive a notice of disposal of goods by the supplier purchasing the goods;
e) under section 130 to receive a notice to dispose of the goods;
f) under section 132(2) to receive a statement of account following disposal of goods;
g) under section 134(2) to receive a statement of account if no disposal of goods for each 6 month period;
h) under section 135 to receive notice of any proposal of the supplier to retain goods;
i) under section 137(2) to object to any proposal of the supplier to retain or dispose of goods;
j) under section 142 to redeem the goods;
k) under section 143 to reinstate the security agreement; and
j) under section 157(1) and 157(3) to receive a notice of any verification statement.
Costs
35. The applicant must pay for its own legal, accounting and business costs and all costs incurred by the supplier relating to any default by the Applicant. The Applicant must also pay for all stamp duty and other taxes payable on this agreement (if any).
36. The Applicant will pay the Suppliers costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Applicant, including debt recovery fees and legal costs on an indemnity basis. Such costs and disbursements will be due and payable by the Applicant to the Supplier irrespective of whether to pursuit of the recovery action, claim or remedy is successful.
37. The Applicant acknowledges and agrees that payments by the Applicant will be applied by the supplier as follows:
a) Firstly, in payment of any and all collection costs and legal costs in accordance with clauses 17 & 36.
b) Secondly, in payment of any interest incurred in accordance with clause 40.
c) Thirdly, in payment of the outstanding invoice(s).
Taxes And Duty
38. The Applicant must pay GST on any taxable supply made by the Supplier to the Applicant under this agreement. The payment of GST is in addition to any other consideration payable by the Applicant for a taxable supply.
39. If as a result of:
a) any legislation becoming applicable to the subject matter of this agreement; or
b) any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration;
The supplier becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Applicant, then the Applicant must pay the Supplier these additional amounts on demand.
Interest Rates
40. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of 1.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
The Customer is liable to pay to the Seller an administrative fee of fifty dollars ($50.00) for each month (or part thereof) the invoices remain unpaid and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs (on a solicitor and own client basis) and the Seller’s debt recovery costs.
Set-off
41. All payments required to be made by the Applicant under this agreement will be made free of any set-off or counterclaim and without deduction or withholding.
42. Any amount due to the supplier from time to time may be deducted from any monies which may be or may become payable to the Applicant by the Supplier.
Miscellaneous
43. The Supplier is not liable for any loss caused to the Applicant by reason of strikes, lockouts, fires, riots, war, civil commotions, acts of god, or any other activity beyond the Suppliers control.
44. In relation to the supply of goods, the Suppliers liability is limited to:
a) replacing the goods or supplying similar goods
b) repairing the goods
c) providing the cost for replacing the goods or for acquiring equivalent goods;
and
d) providing the cost for having the goods repaired
45. In relation to the supply of services, the Suppliers liability is limited to;
a) supplying the service again; or
b) providing for the cost of having the services supplied again.
46. The Supplier is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Applicant.
47. The applicant will, at the request of the supplier, execute documents and do such further acts as may be required for the Supplier to register the security interest granted by the Applicant under the PPSA.
48. The Applicant agrees to accept service of any document required to be served, including any notice under this agreement or the PPSA or any originating process, by prepaid post at any address nominated in this application or any other address later notified to the supplier by the Applicant or the Applicants authorized representative.
49. Any claim for non delivery, shortage in supply, or damage during the course of delivery or any claim for rejects by the Applicant must be in written and given to the Manager of the Supplier within twenty four (24) hours of delivery.
50. Nothing in this agreement shall be read or applied so as to purport to exclude, restrict or modify or have the affect of excluding, restricting or modifying the application in relation to the supply of any goods and/or services pursuant to this agreement of all or any of the provisions the Competition and Consumer Act 2010, or any relevant State or Federal Legislation which by law cannot be excluded, restricted, or modified.
Severance
51 If any provision of this agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.
52. If any part of this Agreement in invalid or unenforceable, that part is deleted and the remainder of the agreement remains effective.
Variation
53. The Applicant agrees that these terms and conditions may be varied, added to, or amended by an authorized officer of the Supplier at ant time by written notice to the Applicant.
54. Any proposed variation to these terms and conditions by the Applicant must be requested in writing. The Supplier may refuse any such request without providing reasons either orally or in writing.
Change of Ownership
55. The Applicant shall no later than fourteen (14) days prior to any proposed changes of ownership, change in registered particulars, alteration, addition to the shareholding or directorship, notify the supplier of the proposed change and the Applicant shall notify the Supplier of any change, alteration or addition to the Applicants internal structure and shall provide full details of the proposed change, alteration, or addition, to the Supplier and the Applicant shall be liable for any goods supplied by the supplier after such change alteration or addition unless the Supplier shall have acknowledged by writing acceptance of the intending change, alteration or addition.
Consent to Register
56. The Applicant hereby consents to the supplier recording the details of this Agreement on the personal Property Securities Register and agrees to do all things necessary and reasonably required by the supplier to effect such registration.
57. The Applicant waives any right or entitlement to receive notice of the registration of any security(s) created by this instrument on the Personal Property Securities Register.
Entire Agreement
58. This agreement constitutes the entire agreement between relating in any way to its subject matter. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this agreement are merged in this agreement and are of no further affect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.
Privacy Act
59. The Applicant agrees to the terms of the Privacy Act 1988 authorisation contained in this document.