Terms and Conditions of Sale
(a) These Terms and Conditions of Sale (“Conditions”) govern the supply of all goods by Fang’s Chilli Sauce Pty Ltd ACN 613 492 612 (“FCS”) to the Customer (the “Customer”).
(b) These Conditions prevail over any other terms and conditions that may be expressed or implied to the contrary by the Customer, whether in an order, letter, invoice, in negotiations or otherwise.
(c) No variation of these Conditions shall bind FCS unless made in writing and signed by a duly authorised officer of FCS.
(d) The headings of the clauses of the Conditions are intended for convenience only and shall in no way affect the construction thereof.
(e) In the event that any provision of these Conditions is held invalid or unenforceable, the remaining provisions will remain in full force and effect.
(f) Notwithstanding anything herein to the contrary, FCSs maximum liability under any order shall not exceed the aggregate of the purchase monies received by FCS for that order.
(g) Any provision in these Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
(h) If any of these Conditions are found to be unenforceable for reasons of invalidity or illegality, the remaining provisions shall not be affected in any way whatsoever.
(B) DELIVERY OF THE GOODS
(a) Delivery is to be effected either by delivery of the goods to the Customer’s premises or nominated delivery site or by collection of the goods from FCS’s premises by the Customer or its common carrier.
(b) The Customer acknowledges that:-
(i) delivery dates are estimates only and FCS shall not be liable for any delay in delivering the goods ordered by the Customer: and
(ii) delivery of the goods will be delayed by a period commensurate with the Customer’s delay in providing FCS with all necessary specifications.
(c) If the Customer is unable or fails to accept delivery of the goods, FCS may deliver them to a place of storage nominated by the Customer and failing such a nomination, to a place determined by FCS. Such delivery shall be deemed to be delivered to the Customer. The Customer shall be liable for all costs, charges and expenses incurred by FCS on account of storage, detention, double cartage/delivery or simular causes if these costs are caused by the Customers inability or failure to accept delivery of the goods when delivered or ready for delivery by FCS.
(d) The Customer agrees that it will be obliged to and shall pay for the goods on the due date for payment notwithstanding that delivery is made after the delivery date specified.
(a) The risk in the goods shall pass to the Customer upon delivery to the Customer or his agent or to a transport company nominated by the Customer.
(b) The Customer shall be fully responsible for any loss or damage to the goods whatsoever and howsoever caused following delivery.
(c) The Customer’s assumption of risk in the goods so delivered shall not be interpreted as inconsistent with the retention of FCS’s title in those goods pursuant to clause G.
(a) Subject to clause I, the Customer may not cancel or suspend any part of an order or sale without FCS’s written consent.
(b) If an order or sale is suspended or cancelled, the Customer must reimburse FCS what FCS considers to be a fair and reasonable amount to fully compensate FCS for any costs, charges, expenses, loss of profit and consequential damage that FCS has or may suffer in relation to such suspension or cancellation.
(c) The Customer acknowledges that in the event that it:-
(i) becomes insolvent: or
(ii) enters into any form of external administration as recognised by the Corporations Law or the Bankruptcy Act 1966; or
(iii) is named as a debtor to any winding up o bankruptcy petition or commits an act of bankruptcy,
FCS shall, in its absolute discretion, be entitled to cancel or suspend the sale as it thinks fit.
(a) The Customer must pay the full price of all goods and services ordered by the Customer from FCS within the agreed terms.
(b) The Customer shall pay for the whole of the value of the order as invoiced when the same is due for payment notwithstanding that the Customer may have directed that delivery of the goods be staggered over different times, to different addresses or that the Customer may not have signed a receipt for the whole or any part of the goods.
(c) Time for such payment shall be the essence of the Contract.
(d) In the event that FCS considers the credit of the Customer is unsatisfactory or the Customer fails to pay any amounts when due, then:-
(i) FCS may:
(A) require payment to be made prior to or at the time of delivery of the goods;
(B) require security for the payment of the price and may without notice withhold delivery of goods until such security is received; and/or
(C) terminate any or all subsisting contracts between FCS and the Customer without liability to the Customer:
(ii) the Customer shall, in addition to the amount owing and without prejudice to all or any of FCS’s other rights and remedies under the Contract, pay:-
(A) interest on all amounts outstanding, due and payable to FCS at the default interest rate of 2% per month, calculated on a daily basis from the due date of payment and
(B) Mercantile agent fees at 20% of the debt plus legal costs and all other costs, charges and expenses incurred by FCS in recovering unpaid amounts or otherwise enforcing or attempting to enforce any of its rights under these Conditions, including all legal costs actually incurred by FCS.
FCS may at any time alter or suspend credit terms, refuse any delivery or cancel unfilled orders when, in its opinion, the financial condition of the Customer or the status of the Customer’s account requires it.
(G) RETENTION OF TITLE
(a) Subject to Clauses G (b) to (i) and unless otherwise notified in writing, the Customer is authorised to sell the goods if it is in the ordinary course of its business to do so.
(b) Until full payment in cleared funds is received by FCS for all goods sold and supplied by it to the Customer, as well as all other amounts owing to FCS by the Customer-
(i) title and property in the goods shall remain vested in FCS and shall not pass to the Customer;
(ii) the Customer shall hold the goods as fiduciary bailee and agent for FCS; and
(iii) the Customer shall keep all goods supplied and delivered to it by FCS separate from its other property, and in a manner to enable them to be identified; and
(iv) the Customer must not encumber or otherwise charge the goods.
(c) If the Customer sells, disposes of or uses the goods before full payment in cleared funds is made to FCS, until such full payment is made, all monies resulting from such sale, disposal or use shall be held on trust for FCS specifically earmarked in the accounts of the Customer as the property of AFCS. The Customer shall account to FCS for those proceeds of sale failing which FCS is entitled to maintain an action for the proceeds of sale of any of the goods by the Customer.
(d) The goods remain FCS’s goods notwithstanding that they may have been attached to other goods that are not the property of FCS.
(e) If the Customer combines or incorporates the goods with other goods (not being the property of FCS) before full payment in cleared funds is made to FCS, so that FCS’s goods become mixed with goods of others, the Customer hereby authorises FCS to reclaim these goods.
(f) FCS shall have a lien on all goods of the Customer in its possession in the event that any amounts remain outstanding on FCS’s accounts or invoices to the Customer.
(g) Any payment made by or on behalf of the Customer which is later avoided by the application of any Statutory Provisions shall be deemed not to discharge FCS’s title in the goods nor the Customer’s indebtedness to FCS and, in such an event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.
(h) The Customer hereby irrevocably grants to FCS the right, at its sole discretion, to remove or repossess any goods from the Customer and sell or dispose of them, and FCS shall not be liable to the Customer or any person claiming through the Customer and FCS shall be entitled to retain the proceeds of any goods sold and apply same towards the Customer’s indebtedness to FCS.
(i) If the Customer commits an act bankruptcy, enters into any form of administration or liquidation, makes any composition or arrangement with its creditors, ceases to carry on business or breaches any fundamental clause of this agreement, then FCS may, without prejudice to any other remedies it may have, repossess any goods delivered to the Customer on any account which has not been paid in accordance with the Conditions herein and commence proceedings to recover the balance of any monies owing to FCS by the Customer.
(H) LIMITATION OF LIABILITY
(a) Nothing in these Conditions shall be read or applied so as to exclude, restrict or modify any condition, guarantee, warranty, right or remedy implied by law (including the Competition and Consumer Act 2010) where to do so would contravene the law or cause any part of these Conditions to be void.
(b) All conditions, guarantees and warranties as to:
(i) the quality, condition, fitness or purpose or correspondence with description or sample of the goods; and
(i) the services being rendered with due care and skill;
which, may otherwise be implied by stature, common law or custom of the trade are expressly excluded, except where such exclusion would contravene the law or cause any part of these Conditions to be void.
(c) Subject to clause (a), FCS excludes all liability for any loss or damage suffered by the Customer (whether direct, indirect or consequential) in connection with any defect or deficiency of whatsoever nature in the goods, or the manufacture, supply, acquisition, use or consumption of the goods, or any negligent act or omission of FCS, its officers, employees, contractors or agents.
(d) Where FCS is liable for a breach of a condition or warranty implied by the Competition and Consumer Act 2010, FCS’s liability is limited to the replacement of the goods or the supply of equivalent goods.
(e) FCS will have no liability to the Customer in relation to any loss, damage or expense caused by FCS’s failure to complete the order or to deliver the goods as a result of, in part or all, by reason of Acts of God, or the consequences thereof including, but not limited to fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of FCS’s normal suppliers to supply goods or any other matter beyond FCS’s control.
(I) CLAIMS AND RETURNS
(a) The Customer shall inspect all goods immediately upon receipt of delivery and within 2 business days of receipt of the goods, shall give notice in writing
to FCS of:
(i) any alleged weight or price discrepancy;
(ii) any issue relating to the quality of the goods; or
(iii) any other grounds relating to an alleged claim or return.
(b) In the event that the Customer does not give written notice of any proposed claim within 2 days of receipt of delivery, the goods shall be deemed to comply with the specifications of the contract and the Customer shall be bound to accept and pay for the goods in accordance with these Conditions.
(c) Disposal or use of any part of the goods in an order which is the subject of a claim shall constitute acceptance by the Customer of the whole of the order. The Customer acknowledges and agrees that it cannot and will not make a claim against FCS unless at the time of the claim all of the goods the subject of the relevant Contact remain intact as a whole.
(d) Upon giving written notice referred to in clause (a), the Customer hereby grants FCS full and unimpeded access to the premises of the Customer to enable representatives of FCS to investigate any claim by the Customer. Such investigation shall not constitute or be construed as an admission of liability by FCS.
(e) After receipt of the said notice and after investigation by its representatives, FCS may accept the return of the goods that are the subject of the claim.
(f) Any liability incurred by FCS as a consequence of the Customer’s claim shall at the option of FCS be limited to either replacement of the goods or a credit for the invoiced value of the goods in favour of the Customer, notwithstanding that that liability may have been incurred by reason of FCS’s error, omission, negligence or recklessness. In the event that FCS grants a credit for or replaces the goods, FCS shall have the right to retake possession of the goods and the Customer shall deliver up these goods to FCS.
Any mistake on any quotation, order, invoice, deliver docket or other document issued by FCS in relation to the contract issued by FCS in relation to the contract shall not be binding on FCS and FCS may in its discretion issue such amended document as is required to rectify such mistake. The Customer shall comply with FCS’s amended document.
The Customer irrevocably grants to FCS authority to enter into, forcibly or otherwise, all of the owned or leased premises of the Customer for the purpose of inspecting or removing any goods of FCS.
(L) LAW / INTERPRETATION
These Conditions are governed by the laws of the State of Queensland. Both the Customer and FCS consent to any proceedings in relation to these Conditions being instituted and heard by any appropriate Court sitting in the State of Queensland and submit to the non-exclusive jurisdiction of the Courts of that State and any courts which may hear appeals from those courts in respect of any proceedings in connection with these Conditions.
(a) The Customer hereby authorises FCS to collect, retain, record, use and disclose personal information about the Customer, in accordance with the Privacy Act 1988, to persons and/or legal entities who are a Solicitor or any other professional consultant engaged by FCS, a Debt Collector, Credit Reference Organisation and/or any other individual or organisation which maintains credit references and/or default listings.
(b) The Customer also authorises FCS to make enquiries with respect to the Customer’s credit worthiness; to exchange information with other Credit Providers in respect to previous defaults of the Customer and to notify other Credit Providers of a default by the Customer.
(N) CHARGE CLAUSE
The Customer hereby agrees to charge its/his/her/their interest and estate in all land presently held or hereafter acquired by it/him/her/them so as to better secure the performance of the Customer of these terms and conditions and the Customer hereby consents to the lodging of a Caveat(s) by the Company on all Certificates(s) of Title to any of the land so held by the Customer.