1. For the purpose of this agreement, and unless otherwise stated in writing;
a) “Australian Consumer Law” means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) as given effect under Part XI of the Competition and Consumer Act 2010 (Cth).
b) “Buyer” shall mean the Buyer named on any quote, invoice, purchase order, or any other documentation produced in relation to this agreement, Related Bodies Corporate of the Buyer, or any person acting on behalf of and with the authority of the Buyer.
c) “Goods” shall mean all Goods supplied by the Supplier to the Buyer and includes Goods outlined on any quote, invoice, purchase order, or any other documentation produced in relation to this agreement including any recommendations and advice.
d) “Price” shall mean the cost of the Goods and or Services as agreed between the Supplier and the Buyer subject to clause 5 of this contract.
e) “Related Bodies Corporate” has the meaning given to that term in the Corporations Act 2001 (Cth).
f) “Services” shall mean all Services supplied in relation to supply of the Goods and includes services outlined on any quote, invoice, purchase order, or any other documentation produced in relation to this agreement including any recommendations and advice. The Services may include delivery services, subject to clause 7 below.
g) “Supplier” shall mean Alltech Lienert Australia Pty Ltd or Alltech Biotechnology Pty Ltd (whichever is named on the relevant Order Confirmation and Invoice), and Related Bodies Corporate of Alltech Lienert Australia Pty Limited or Alltech Biotechnology Pty Ltd (whichever is named on the relevant Order Confirmation and Invoice).
2. Jurisdiction
This agreement shall be governed by and construed in accordance with the laws of the State of South Australia. The Buyer submits to the jurisdiction of the Courts of South Australia.
3. Offer and Acceptance
a) Any requests from the Buyer to the Supplier for the supply of Goods and or Services either verbal, or in writing, and or the Buyer’s signature on the invoice, quote, or any other document supplied by the Supplier to the Buyer shall constitute acceptance of the terms and conditions contained herein.
b) Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
c) Once accepted, these terms are binding, and may only be altered or revoked with the written consent of the Supplier.
d) The Buyer agrees to notify the Supplier in writing within 7 days of any change whatsoever in ownership structure, and further indemnifies the Supplier against any loss or damage that may result from the Buyer’s failure to notify the Supplier of any such change.
4. Goods and Services
a) The Goods and Services are as described on the invoice, purchase order, quotation, or any other document provided to the Buyer by the Supplier containing a description of the Goods.
b) The Buyer acknowledges and agrees that all containers provided by the Supplier to the Buyer for the purpose of transport or storage of the Goods, including, but not limited to totes, pallets, and bins are provided to the Buyer on a short term hire basis for a term not exceeding 6 months, unless otherwise agreed in writing.
c) The Buyer is responsible for the maintenance and cleanliness of all containers provided by the Supplier to the Buyer and the Buyer indemnifies the Supplier for any costs or expenses incurred by the Supplier in relation to any damage to or loss of containers occurring while the containers are in the Buyer’s possession, custody or control.
d) The Supplier reserves its right to charge a hire fee for any containers provided by the Supplier to the Buyer provided that such hire fee is communicated to the Buyer by the Supplier in writing, within 7 days of the Buyer taking possession of the relevant containers.
e) Should the Buyer request that Goods are to be supplied in containers provided by the Buyer, the Buyer indemnifies the Supplier against any direct, indirect, circumstantial, or special loss or damages arising as a result of doing so.
f) Notwithstanding anything to the contrary in this clause 4, the Supplier may agree to sell containers to the Buyer as Goods for a price to be determined by the Supplier in its absolute discretion.
5. Price
a) The Buyer agrees to pay the Supplier the price of the Goods and Services, within the agreed time for payment as set out in clause 6.
b) Subject to clause 7, the price will be determined by the quote given to the Buyer by the Supplier.
c) All prices are subject to change without notice.
6. Payment Terms
a)At the Supplier’s sole discretion, a deposit may be required before the supply of any Goods can commence.
b) Subject to clause 6(c), if no time for payment is stated on the invoice, then payment shall be due on delivery of the Goods.
c) Where a credit facility has been granted to the Buyer, and unless otherwise agreed between the Buyer and the Supplier, invoices will be sent within 7 days from the date of dispatch, and payment will be due and payable 14 days after delivery of the Goods.
d) Payments made by credit card are subject to charge of 2% (or at the merchant rate charged whichever is the higher).
e) Payment will be made by cash, cheque, direct deposit, or by any other method as agreed to between the Buyer and the Supplier.
7. Delivery of Goods
a) Subject to what is set out in this clause, the Buyer shall be responsible for making all necessary arrangements to take delivery of the Goods from the place of collection identified by the Supplier.
b) If the Supplier agrees to deliver, or arrange delivery of, the Goods beyond the Supplier’s premises, the Supplier is entitled to select the carrier(s) (which may include the Supplier and or its servants, agents and subcontractors) and the mode(s) of carriage, and the delivery will be subject to clauses 7(c), (d) and (e).
c) The Buyer is responsible for, and must pay the Supplier for, all delivery costs reasonably incurred by the Supplier (including but not limited to freight and customs duties) even if the said costs are not foreseeable at the time the Supplier agrees to deliver, or arrange delivery of, the Goods.
d) Delivery of the Goods to any third party nominated by the Buyer (including carriers) is deemed to be delivery to the Buyer for the purposes of this agreement.
e) Under no circumstances will the Supplier be liable to the Buyer for any loss arising out of non-delivery, misdelivery or late delivery of Goods. The failure of the Supplier to deliver within an agreed period of time shall not entitle the Buyer to treat this agreement as being cancelled.
f) This clause is subject to the application of any Incoterm identified by the Supplier in the quote referred to in clause 5(b).
8. Chep Account Holders
a) If the Buyer has an account with CHEP Australia Limited (CHEP) all transfers of CHEP equipment between the Supplier and the Buyer must be registered with CHEP by the transferor and shall be effective from the date of delivery of the CHEP equipment to the transferee.
b) If the Buyer does not register a transfer of CHEP equipment to the Supplier within 90 days of the date of delivery of the relevant CHEP equipment to the Seller, the effective date of the transfer shall be amended to be the invoice closing date.
c) The Buyer grants the Supplier the authority to amend a registration of a transfer made by the Buyer.
d) Any amendment to a registration of a transfer made under clause 8(c) will be deemed to be accepted by the Buyer unless the Buyer disputes the amendment in writing with the Seller within six months of the amendment.
e) If a Buyer disputes an amendment in accordance with clause 8(d), and the Seller accepts the terms of the Buyer’s dispute, a further amendment will be made with the transfer being recorded as effective from the date of the Seller’s initial amendment.
9. Notification of Defects
a) The Buyer shall inspect the Goods upon delivery and notify the Supplier within 14 days of any alleged defect, or failure to fulfil the quote. The Supplier or the Supplier’s nominated agent must be given access to any Goods within a reasonable time following delivery in order to identify any alleged defects in the Goods.
b) Should the Buyer fail to provide the notification referred to in clause 9(a), the Goods will be deemed to be in compliance with the quote, and free from any defects whatsoever.
c) Goods will not be accepted for refund whatsoever if there is any risk of the Goods causing cross contamination
d) Where the Supplier has agreed in writing that the Buyer is entitled to return the Goods, the Supplier’s liability is limited to (at the Seller’s discretion) replacing the Goods or, subject to clause 9(e), refunding the purchase price.
e) At the Supplier’s sole discretion, should the Supplier choose to issue a refund for the Goods, a handling fee of 5% of the value of the Goods will be retained by the Supplier.
10. Buyer’s warranty regarding use of Goods
The Buyer warrants to the Supplier that:
a) all Goods or Services supplied by the Supplier are supplied on the basis that they will only be used for lawful purposes and strictly in accordance with any directions provided to the Buyer by the Supplier;
b) if the Goods or Services supplied by the Supplier are used by the Buyer or any other party who obtains the Goods or Services either directly or indirectly from the Buyer, for purposes other than those referred to in clause 10(a), the Supplier will not, under any circumstances, be responsible for any loss caused to the Buyer or any liability of the Buyer;
c) if the Goods or Services supplied by the Supplier are used for purposes other than those referred to in clause 10(a), and the Supplier and or any other party suffers loss or incurs liability as a result thereof, the Buyer and each of its directors will be jointly and severally liable to indemnify and hold harmless the Supplier for all of the said loss/liability;
11. Buyer’s Disclaimer
a) The Buyer hereby disclaims any right to cancel the contract, or to seek compensation for loss or damages arising from any innocent or negligent misrepresentation made to the Buyer by the Supplier or its officers, employees, agents and contractors in relation to the Goods and or Services supplied.
b) The Buyer acknowledges that the purchase of all Goods and or Services are purchased relying solely upon the Buyer’s own skill and judgement.
12. Liability
a) Nothing in this clause or in any other part of this agreement operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy (including a right to indemnity), or the imposition of any liability, implied or conferred under the Australian Consumer Law or any other statute, the exclusion, restriction or modification of which would contravene that statute or cause any term of this Agreement to be void (“Non-excludable Obligation”).
b) Except in relation to Non-excludable Obligations and as otherwise set out in this agreement, all conditions, warranties, guarantees, rights, remedies, liabilities or other terms implied or conferred by statue, custom, or the general law that impose any liability or obligation on the Supplier are expressly excluded under this agreement.
c) Except in relation to Non-excludable Obligations, the Supplier’s liability to the Buyer arising directly or indirectly under or in connection with this agreement or the performance or non-performance of this agreement and whether arising under any indemnity, statue, in tort (for negligence or otherwise), or on any other basis in law or equity is limited as follows:
- The Supplier shall not be liable for any lost profits or indirect, special, incidental, consequential or punitive damages (including, without limitation, economic loss, loss of contract, loss of profit or revenue, loss of opportunity, loss of production, production stoppage or loss of data) for any claim arising out of this agreement, regardless of the type of claim (including negligence) and whether or not the Supplier has notice of possible damage; and
- Subject to clause 9(d) and (e), if the Supplier breaches any provision of this agreement, the Supplier’s sole and maximum liability shall be limited to the amounts paid by the Buyer in the 2-month period immediately prior to the date the claim arose, whether the claim arises under contract, statute, common law or otherwise.
d) The Buyer may only bring any action under this agreement provided such action is brought within 9 months after the cause of action has accrued or in an indemnification claim for a third party claim, within 6 months after the third party makes the claim.
13. Product Recalls
In the event of a recall of any of the Goods, whether voluntary or as required by a government authority, the Buyer must immediately cease distribution of the affected Goods upon notice thereof and otherwise cooperate with the Supplier in all respects relating to such recall. The Buyer must also maintain and make available to the Supplier such records pertaining to any distribution of the Goods as reasonably required by the Supplier from time to time so as to facilitate the Supplier’s ability to effect a recall of affected Goods or otherwise identify those who may have such Goods.
14. Default
a) The Buyer hereby agrees that if it should:-
- as an individual, commit an act of bankruptcy; or
- as a company, pass a resolution for winding up or have a summons to wind up served upon
it; or
- become subject to any form of external administration; or
- enter into an arrangement regarding outstanding payment with any of its creditors; or
- allow any invoice to remain in arrears for a period of over 30 days; all monies currently owed to the Supplier shall become due and payable immediately, and the Supplier reserves the right to terminate the supply of Goods and Services to the Buyer.
b) Should the Buyer fail to pay any invoice when due, the Buyer will be responsible for any additional costs associated with recovery of the outstanding amounts, including but not limited to the cost of a solicitor, and any cost incurred by the Supplier’s nominated collection agency.
c) Interest on overdue accounts will be charged at a rate of the prevailing Reserve Bank of Australia official cash rate plus 5% and, further, the Buyer must pay all such interest on demand.
15. No set off by the Buyer
a) Each order placed by the Buyer shall be treated as an individual transaction, and the Buyer shall not withhold payment for any individual order as a result of monies owed to the Buyer by the Supplier, for any reason whatsoever.
16. Retention of Title
a) Ownership, property, and title in all Goods shall remain with the Supplier until the Buyer has paid all monies owing to the Supplier for all Goods and Services provided.
b) The Goods shall be kept separate and clearly identifiable as property of the Supplier until property in the Goods has passed to the Buyer.
c) The Supplier may demand in writing that the Buyer return the Goods or any part of them at any time until property in the Goods has passed to the Buyer.
d) Should the Buyer fail to return the Goods to the Supplier upon such notice, the Supplier, without prejudice to any of its other rights and remedies under this agreement, reserves the right of entry to the Buyer’s premises, or any other premises where the Goods are stored by its servants or agents for the purpose of recovering or re selling the Goods, and any cost incurred as a result of such action will be the responsibility of the Buyer.
e) If the Goods are incorporated in any other Goods the ownership of the combined Goods shall as far as the law allows pass to the Supplier.
f) If the Buyer sells the Goods (or something incorporating those Goods) in contravention of this clause, the proceeds of sale shall be the property of the Supplier and the Buyer shall hold such proceeds on trust for and on behalf of the Supplier.
g) Nothing in this clause shall be deemed to limit the Supplier’s rights as against the Buyer and or the Goods under the Personal Properties Securities Act 2009 (Cth) (“PPSA”).
17. Personal Properties Securities Act (PPSA)
a) The Supplier and the Buyer acknowledge and agree that each of the relevant clauses of this agreement creates a security interest under the PPSA in the Goods and the proceeds of sale of the Goods.
b) To the extent that the Goods are for the Buyer’s business use, the Buyer and the Supplier agree to contract out of the following provisions of the PPSA in accordance with s 115 of the PPSA:
- Sections 95, 118, 130, and 135, to the extent that the sections require the Supplier to give a notice to the Buyer;
- Section 125 (obligation to dispose of or retain collateral);
- Section 132(3)(d) (contents of statement account after disposal); and
- Section 132(4) (statement of account if no disposal).
c) The Buyer:
- agrees to take all such action (including without limitation, signing documentation and providing information) as is reasonably required by the Supplier to enable the Supplier to perfect all security interests granted by the Buyer to the Supplier;
- must indemnify the Supplier against all liabilities incurred by the Supplier in relation to the registration, maintenance, enforcement and discharge of all security interests granted by the Buyer to the Supplier;
- must not to take any action which may affect the perfection of any security interest granted by the Buyer to the Supplier;
- waives its right to receive a notice of any verification statement created in relation to this Agreement to the extent that such waiver is permitted by s 157(3) of the PPSA;
- must not grant any other security interest in relation to Goods until all monies owed to the Supplier in relation to the Goods are paid in full.
18. Registered Security
The Buyer charges in favour of the Supplier all its estate and interest in any land and in any other assets, whether tangible or intangible, in which it now has any legal or beneficial interest or in which it later acquires any such interest, with payment of all monies owed by the Buyer, and consents to the lodging by the Supplier of a caveat or caveats which note its interest in that real property. The Supplier will only rely on its rights pursuant to this clause if the Buyer is in default of this agreement.
19. Unpaid Supplier Rights
If payment has not been received by the Supplier when due, and the Supplier has made a verbal or written demand for payment, and the Goods are in possession or control of the Supplier, the Supplier reserves the right to dispose of the Goods, and claim from the Buyer any loss arising as a result of such disposal.
20. Cancellation
a) The Supplier may cancel the supply of Goods and or Services at any time before supply by giving 7 days’ notice, either verbal, or in writing to the Buyer. The Supplier shall not be liable for any direct, indirect, consequential, or special loss or damage arising from such cancellation.
b) At the Supplier’s sole discretion the Buyer may cancel supply of Goods and or Services provided that notification is given to the Supplier not less than 24 hours prior to the scheduled dispatch date.
c) In the event that the Buyer cancels delivery of Goods and or Services, the Buyer shall be liable for any costs incurred by the Supplier up to the time of cancellation.
21. Privacy Act 1988
a) The Buyer agrees that the Supplier may obtain a credit report from a Credit Reporting Agency containing individual credit information about the Buyer in relation to credit provided by the Supplier.
b) The Buyer agrees that the Supplier may use information about the Buyer obtained from a Credit Reporting Agency, or other trade references named in the Application for Credit Account, or named in a Credit Report issued by a Credit Reporting Agency for the following purposes:
- to assess an application by Buyer;
- to notify other credit providers of a default by the Buyer;
- to exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers.
c) The Buyer hereby gives consent to the Supplier obtaining a credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
d) The Buyer agrees that individual data provided may be used and retained by the Supplier for the following purposes and for other purposes as shall be agreed between the Buyer and Supplier or required by law from time to time:
- provision of Goods and or Services
- marketing of Goods and or Services by the Supplier, its agents, distributors, or contractors.
- assessing the credit worthiness of the Buyer in relation to extending further credit.
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer.
- collection of amounts outstanding in the Buyer’s account in relation to the Goods and or Services.
- The Supplier may give, information about the Buyer to a credit reporting agency for the following purposes:
- to obtain a credit report about the Buyer; and or
- allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer including defaults.
22. General
a) The Supplier assumes no responsibility for changes in the laws of South Australia which may affect the supply of Goods and or Services under this agreement.
b) The Supplier reserves the right to review these terms and conditions at any time, and if any changes are deemed necessary, the Buyer will be advised of such changes upon them being made.
c) A term or part of a term of this agreement that is illegal or unenforceable may be severed from this agreement and the remaining terms or parts of the term of this agreement will continue in force.
d) The Supplier does not waive a right or remedy available to it merely because it fails to exercise, or delays in exercising, the right or remedy. A waiver of a right by the Supplier must be in writing and signed by a director or officer of the Supplier.
e) Any obligation to indemnify under this agreement is independent and survives the termination of this agreement. All other terms which by their nature are intended to survive termination of the agreement will also survive termination.
