In these terms and conditions:
“person” shall include a firm or corporation, staff or management;
“Company” shall, where the context admits or requires, mean and include Schulz Organic Farms Pty Ltd, ACN 118499175, ABN 31 292 721 221 and/or any of its related bodies corporate as defined in Section 50 of the Corporations Law or any other person who or which is named as the party accepting the order; “goods” shall include services;
“Purchaser” shall mean the person to whom any quotation is made and shall include any person contracting or offering to contract with the Company on these terms and conditions and where there is more than one Purchaser, the Purchaser’s covenants and obligations are joint and several.
Any term or condition which infringes any legislation whether State or Federal shall be severable from any agreement between the parties for the supply of goods.
All quotations are subject to withdrawal or variation by the Company at any time prior to acceptance of an order. The Company also reserves the right to amend prices at any time for the undelivered portion of any order, but the Purchaser will have the right to cancel the outstanding balance of an order within seven (7) days from the date of notification of an amendment to the price.
3. Offer and Acceptance
Any quotation made by the Company is not an offer to sell and no order given in pursuance of any quotation will bind the Company unless and until such order is accepted by the Company in its absolute discretion. Unless otherwise agreed in writing all orders are subject to acceptance by the Company within thirty (30) days of receipt by the Company of the Purchaser’s order. Upon acceptance of any order by the Company a binding agreement shall arise between the Purchaser and the Company and these terms and conditions shall be deemed to be incorporated in such agreement.
If any terms and conditions are contained in any order, offer, acceptance or invoice of the Purchaser then it is specifically agreed between the Purchaser and the Company that such terms and conditions are null and void and shall not apply. All representations, statements, terms and conditions and warranties (whether implied by statute or otherwise) not embodied herein are expressly excluded to the fullest extent permitted by law.
Unless otherwise expressly agreed in writing the price of the goods shall be that price charged by the Company at the date of delivery plus:
a) the amount which the Company is required to pay on account of any excise or sales taxes or any other taxes or charges which may be established or levied by any government authority (domestic or foreign) upon the goods or the manufacture, use, sale or delivery thereof; and
b) any added costs requested in writing by the Purchaser.
5. Cost Variation
Quotations are based on the current cost of production prevailing at the date of the quotation (materials, overheads, wages etc.) and are subject to amendment on or after acceptance of any order placed in reliance upon such quotations, to meet any rise or fall in such cost.
a) Any date quoted for delivery is an estimate only and unless a guarantee shall have been given by the Company in writing providing for liquidated damages for failure to deliver by the quoted date the Company shall not be liable to the Purchaser for any loss or damage whether direct, indirect or consequential and howsoever arising for failure to deliver on or before the quoted date. The
b) Purchaser will accept and pay for goods if and when tendered notwithstanding any failure by the Company to deliver by the quoted date.
c) The Company reserves the right to deliver by instalments. If delivery is made by instalments the
d) Purchaser shall not be entitled:
(i) to terminate or cancel any instalments still to be delivered; or
(ii) to any loss or damage howsoever arising for failure by the Company to deliver any instalment on or before the quoted date.
7. Quantity Delivered
Every endeavour will be made to deliver the correct quantity ordered but, owing to the difficulties of producing exact quantities, the Company shall not be liable and there will be no adjustment in the price.
Any order may only be cancelled by mutual agreement and in the event of the cancellation of an order the Purchaser undertakes to reimburse and indemnify the Company for any costs expenses or charges incurred by the Company in preparation for and in the execution of an order which, without limiting the generality of the foregoing shall include an amount equal to fifty per cent (50%) of the net profit of the order had the order not been cancelled.
9. Description and Specifications
a) Whilst every effort is made to ensure their accuracy the descriptions illustrations and material contained in any catalogue, price list, brochure, leaflet, specification sheets or other descriptive matter provided by or on behalf of the Company represent the general nature of the items described therein and shall not form a part of any order or agreement or amount to any representation or warranty. The Company reserves the right to modify the design of goods without notice.
b) The Purchaser warrants that any goods manufactured, constructed or supplied by the Company which are based in whole or in part upon designs drawings or specifications supplied to the Company by or on behalf of the Purchaser shall not infringe any letters patent, registered designs copyright or other industrial or intellectual property rights held by a third party. The Purchaser must indemnify and keep indemnified the Company its servants and agents against any action, loss, cost, claim or damage that may be brought against or suffered by the Company its servants or agents as a result of a breach of that warranty.
c) The Company reserves the right to make any changes to products or specifications supplied to the Company by the Purchaser which are required to comply or conform with any applicable safety or statutory requirements or which do not materially affect the quality or usage of the goods by the Purchaser.
d) The Company does not warrant or guarantee that any goods manufactured, constructed or supplied by the Company which are based in whole or in part upon any specifications supplied to the Company by or on behalf of the Purchaser will achieve any standard or performance or any capacity whatsoever.
e) The Company will not be liable for any defect in the goods arising from any specifications supplied to the Company by the Purchaser.
f) In addition to any right of lien which the Company may be entitled to by law, the Company will have a general lien over any product or specifications supplied to the Company by or on behalf of the Purchaser which is in the Company’s possession until all monies owing by the Purchaser to the Company on any account have been paid in full.
10. Correction and Approval
Where the Purchaser approves any specifications or product submitted by the Company, the Company will not be liable for any errors or inaccuracies subsequently discovered in the goods or any work performed or produced by the Company in the course of producing the goods.
11. Intellectual Property
All right, title and interest in and to any goods or materials in which copyright or other intellectual property rights exist created by the Company for or supplied by the Company to the Purchaser shall, vest absolutely in and remain the sole property of the Company. The supply of goods shall imply a licence to the Purchaser to use the same but for no other purpose. The Purchaser undertakes not to utilise, copy, reproduce or disclose or permit others to utilise, copy, reproduce or disclose any such intellectual property without the prior written consent of the Company.
12. Product etc.
Product and specifications, photographs, are submitted to the Purchaser in confidence and shall remain the property of the Company
In respect of any work done other than at the Company’s premises it shall be the duty of the
Purchaser to ensure that the conditions under which the work is to be performed, the layout, means of access, accessibility of the different parts of the subject matter being worked on or handled and other material circumstances shall be suitable to the Company failing which the Company shall be entitled to charge a reasonable increase in the price having regard to the prevailing circumstances.
14. Limitation of Liability
a) Except when the Purchaser is a consumer for the purposes of the Trade Practices Act 1974, and the conditions warranties and rights implied by that Statute cannot be excluded, representations promises statements warranties and conditions (whether statutory express or implied) regarding any goods or services supplied by or on behalf of the Company which without limiting the generality of the foregoing shall include conditions or warranties as to quality or fitness for any particular purposes are expressly excluded. The Company shall not be liable for any loss or damage whatsoever and howsoever arising whether direct, indirect, special or consequential or in respect of any claim whenever and however made for any loss, damage, deterioration, deficiency or other fault or harm in the goods manufactured, work executed or services provided by or on behalf of or in any arrangements with the Company or occasioned to the Purchaser or any third or other party or to his or their property or interest and whether or not due to the negligence of the Company its servants or agents except in the following circumstances and subject to the following limitations:
(i) the Purchaser shall inspect the goods immediately on their arrival and shall, within seven (7) days from such arrival, give written notice to the Company of any matter or thing by reason whereof the Purchaser may allege that the goods are not in accordance with the agreement for supply of goods by the Company to the Purchaser.
(ii) the Company’s liability shall be limited in all circumstances to the repair or replacement (at the option of the Company) of any goods manufactured by it which are with the prior written authority of the Company, returned adequately packed and freight paid to the Company within the Company’s guarantee period covering the goods as indicated in Clause 14(a) (i) above and which the Company accepts as having been defective in manufacture.
b) The Company shall not be liable in any circumstances for any:
(i) defects or damage caused in whole or in part by misuse, abuse, neglect, error, improper cool storage, alteration or accident;
(ii) transport, installation, removal, labour or other costs;
(iii) modifications or changes to the goods not authorised in writing by the Company or any other unauthorised act by the Purchaser or a third party;
(iv) goods not manufactured by it but the Company will endeavour to pass on to the Purchaser the benefit of any claim made by the Company and accepted by the manufacturer of such goods under a warranty given by that manufacturer;
(v) technical advice or assistance given or tendered by it to the Purchaser whether or not in connection with the manufacture, or supply of goods for or to the Purchaser.
c) The Purchaser acknowledges that neither the Company nor any person acting on the Company’s behalf has made any representations or given any promise or undertaking in relation to the quality of the goods or their usage.
Containers (which includes crates, glass bottles, stillages, formers and pallets) in or on which goods are delivered and for which a deposit charge is made remain the property of the Company. On the containers’ return in good order and condition the deposit will be returned to the Purchaser. The deposit for containers which the Purchaser returns otherwise than in good order and condition shall only be refunded in part having regard to their actual condition. Containers will be deemed to be still in the Purchaser’s possession until received into the Company’s stores. A purchase order form signed by the Company and Purchaser will be required to prove and will be conclusive evidence of the return of the container.
16. Insolvency and Default
(a) the Purchaser makes default in any payment due to the Company or in the performance and observance of any term or condition set out herein;
(b) a resolution is passed or proposed or a petition is presented or an application filed or an order made for the winding up or liquidation of the Purchaser;
(c) a receiver, receiver and manager or controller (as defined in the Corporations Law) is appointed of the property or any part of the property of the Purchaser;
(d) the Purchaser makes or proposes to make any arrangement with its creditors;
(e) the Purchaser is placed under administration or an administrator is appointed;
(f) execution is levied upon the assets of the Purchaser for an amount in excess of $1,000.00 and is not satisfied within seven (7) days;
(g) the Purchaser is the subject or a debtor’s or creditor’s petition in bankruptcy or is the subject of a Bankruptcy Notice; or then, the Company may, without prejudice to any other remedy that may be available to the Company, at its option withhold further deliveries or cancel any agreement between the Company and the Purchaser.
Notwithstanding that risk in goods sold passes upon delivery to the Purchaser or the Purchaser’s agent or carrier, title to the goods shall not pass to the Purchaser until the earlier of:
(a) payment in full in cleared funds of the purchase price for the goods has been received by the
Company and for all other goods sold by the Company to the Purchaser for which payment is then due;
(b) a bona fide sale of the goods by the Purchaser in the ordinary course of the Purchaser’s business. At all times before title in the goods passes to the Purchaser, the Purchaser shall store the goods so that they are clearly identified as the property of the Company. Until title in the goods has passed to the Purchaser, the Company will be entitled at any time, in its absolute discretion, to retake possession of the goods and resell them and for that purpose may enter the Purchaser’s premises and sever, remove and carry away the goods.
Unless otherwise agreed in writing all goods shall be at the Purchaser’s risk upon delivery to the Purchaser, his carrier or agent.
Unless stated to the contrary on the face of this document, the whole of the purchase price is due immediately upon delivery of the goods to the Purchaser or the Purchaser’s carrier or agent and is payable on demand or, if no demand is made, within fifteen (15) days after which the goods are delivered. The Company reserves the right to charge interest at the rate of fifteen per cent (15%) per annum calculated daily on any overdue amounts. Any amounts unpaid within thirty (30) days after the due date for payment will be referred (at the Company’s discretion) to a debt collection agency, where all costs incurred will be recoverable from the Purchaser by the debt collection agency.
20. Force Majeure
Every effort will be made to carry out any contract based on a quotation, but the lack of performance of it is subject to variation or cancellation owing to an act of god, war, strikes, lock-outs, fire, flood, drought or any other cause beyond the Company’s control or owing to the Company’s inability to procure materials or articles except at increased prices due to any of the foregoing causes.
Failure by the Company to insist upon strict performance of any of these terms or conditions shall not be deemed a waiver thereof or of any rights the Company may have and shall not, and nor shall any express waiver, be deemed to be a waiver of any subsequent breach of any term or condition.
22. Goods and Services Tax (GST)
Unless otherwise stated the price does not include GST and SOFT reserves the right to increase the price by an amount equal to the GST payable in respect of any supplies.
23. Unpasteurised Products
In light of recent media attention given to the sale of un-pasteurised dairy products and concerns of Dairy Food Safety Victoria, the Company wishes to put in place an agreement between themselves and the Customer regarding the sale of un-pasteurised dairy products
a) The Customer shall not keep un-pasteurised dairy products in the same display cabinet and pasteurised dairy products.
b) All persons are to be made aware of the consequences of advertising the products as ‘safe to consume’. Persons are in NO CIRCUMSTANCES to promote it as edible or drinkable.
Should the Company be informed or witness a breach of the above, all un-pasteurised products will be withdrawn and an internal investigation will be conducted.
All costs and expenses incurred by the Company to remedy any breach by the Purchaser of these terms and conditions shall be recoverable from the Purchaser in addition and without prejudice to the Company’s right to damages for breach of these terms and conditions.