AGRITRADING

 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.

In these Terms of Trade:

“Agreement” means this document, including the terms and conditions set out in the Credit Application and the Terms of Trade.

“Amount Payable” means, at any time, all amounts payable by the Customer to the Supplier at that time (whether or not those amounts have become due for payment under clause 5 or any other provision of these Terms and Conditions) in connection with the Goods (including, without limitation, any invoiced amount, interest, fees, costs or expenses).

“Application” means the Credit Application attached to these Terms and Conditions.

“Contract” means a contract for the sale and purchase of Goods between the Supplier and the Customer formed upon the acceptance of an order and in accordance with the Terms of Trade.

“Goods” means any goods, products, services or materials supplied or to be supplied by the Supplier to the Customer at any time and from time to time including, without limitation, any goods specified in an order or invoice.

“Processed Goods” means Goods which after their delivery become part of a product or mass by being manufactured, processed, assembled, commingled or otherwise dealt with in such a way that their identity is lost in the product or mass.

“PPSA” means the Personal Property Securities Act 2009 (Cth).

“Terms and Conditions” means the terms and conditions set out in this document, as amended or replaced from time to time. The terms “financing statement”, “proceeds”, “purchase money security interest”, “security agreement”, “security interest” and “verification statement” have the respective meanings given to them under, or in the context of, the PPSA.

2. Jurisdiction: Notwithstanding any implication to the contrary, this Agreement and all Contracts between the Customer and the Supplier governed by the Credit Application and Terms of Trade shall be deemed to be made at the premises of the Supplier and construed and to be enforceable in and according to the laws of the State of South Australia and by mutual consent to be subject to the non-exclusive jurisdiction of the Courts of that State.

TERMS OF TRADE

1. The Customer and Supplier agree that these Terms of Trade shall apply to all contracts for the purchase of Goods and/or services by the Customer from the Supplier.

2. Formation of contract 

(a). The Supplier may provide a written quote to the Customer on request.  The written quote is neither an offer nor acceptance of a Contract. 

(b) The Customer may send a Purchase Order to the Supplier which constitutes an offer to purchase goods and/or services. 

(c) The Supplier may send a sales invoice to the Customer which constitutes acceptance of an offer and confirms the details of a contract for the purchase of goods and/or services by the Supplier.  The terms of such Contract consist of these Terms of Trade and any special conditions set out in the sales invoice.

(d) Unless specified otherwise, all prices are in Australian dollars and inclusive of delivery costs (including freight, loading and insurance and government charges which, if applicable, shall be for the Customer’s account.

(e ) Orders accepted by the Supplier under this clause 2, will be supplied at the price quoted by the Supplier at the time of the order; or if no price is quoted at the price stated in the sales invoice.

(f) If any statutory charge, duty, impost, or tax (including GST) is levied in respect of the Goods and that charge has not been allowed for by the Supplier in calculating the price or when raising a sales invoice, then the Customer must pay that charge and the price for the Goods will increase accordingly.

(g) If the Customer cancels an order after the order has been accepted pursuant to clause 2 (c), the Customer must pay the Supplier for reasonable forseeable loss, damage or expense incurred by the Supplier in relation to the supply or proposed supply of the Goods.

(h) If the terms in the sales invoice conflict with the terms set out in a quote or purchase order, the Customer must notify the Supplier within seven (7) days if it does not agree to the Contract on the terms constituted by the sales invoice, in which case the Contract is null and void. 

3. If any Amount Payable in respect of a Contract is not made in full within the agreed periods, the Supplier is entitled to do any one or more of the following (without limiting its other legal rights):

(a) rescind and terminate any Contract;

(b) refuse to make, or suspend, delivery of the Goods (whether or not ordered);

(c) charge interest on the overdue amount at the rate of 1.5% month, calculated daily from the due date of payment until the date the payment has been made in full;

(d) terminate or suspend any credit arrangement with the Customer;

(e) recover in full from the Customer all costs and expenses incurred by the Supplier in enforcing its rights under the Agreement including the Supplier’s legal costs.

4. Delivery shall be upon the terms stated in the sales invoice, or if no terms are stated, then EXW Incoterms 2020 Supplier’s warehouse.  Time for delivery shall not be of the essence unless specifically so stated in the sales invoice.

5. Unless agreed otherwise by the Supplier, accounts where there is no agreement to provide credit, or where such credit has been withdrawn, shall be payable at the time of delivery.

6. Retention of Title

(a) The Customer acknowledges that all Goods remain the property of the Supplier until the Supplier receives payment of the Amount Payable. The Supplier agrees to allow the Customer to deal, sell or trade with the Goods in the normal course of business and for the Customer to retain the sale proceeds provided that the Customer adheres to these Terms and Conditions.

(b) In the event of the Customer defaulting on any of its obligations pursuant to these Terms and Conditions, then the Supplier has the right to retake possession of the Goods supplied to the Customer.

(c ) The Customer hereby authorizes and allows the Supplier or its representative to enter the premises of the Customer (or premises occupied by any receiver, receiver and manager, administrator or liquidator or trustee in bankruptcy of the Customer) where the Goods are housed or stored for the purposes of re-taking possession.

(d) For avoidance of doubt, the Supplier’s interest constitutes a “purchase money security interest” pursuant to the PPSA.

(e) The Supplier shall not be liable for any costs, losses, damages or any other monies or losses suffered by the Customer as a result of the Supplier re-taking possession of the Goods.

7. The Customer acknowledged that any Contract which incorporates these Terms of Trade constitutes a security agreement for the purposes of the PPSA.

8. The Customer grants to the Supplier a security interest in the Goods and in all of its present and after acquired property to secure payment of the Amount Payable. The security interest granted by the Customer to the Supplier pursuant to this clause 8:

(a) extends to and continues in all proceeds and Processed Goods; and

(b) is a purchase money security interest to the extent to which it secures payment of that part of the Amount Payable which comprises the aggregate unpaid purchase price of Goods.

9. The Customer must not do or permit anything to be done that may result in the purchase money security interest granted to the Supplier ranking in priority behind any other security interest.

10. The Customer:

(a) waives the right under section 157 of the PPSA to receive a copy of the verification statement verifying registration of a financing statement or a financing change statement relating to a security interest created under these Terms and Conditions; and

(b) contracts out of its rights to receive any other notice or statement under any other provision of the PPSA (including for the avoidance of doubt, any of the provisions specified in clause 10 of these Terms and Conditions).

11. To the fullest extent permitted by the PPSA, the parties agree to contract out of sections 95, 121(4), 125, the second sentence of section 126(2), sections 129(2), 129(3), 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA, which sections (or parts of sections) shall not apply.

12. In addition to the security interests granted pursuant to clause 8 of these Terms and Conditions, the Customer charges in favour of the Supplier all of its interest in all present and future real property of the Customer to secure the performance of the Customer’s obligations under these Terms and Conditions, including payment of the Amount Payable. The Customer acknowledges that the Supplier has a caveatable interest in any real property of the Customer under this clause and may lodge a caveat over that property. Upon demand by the Supplier, the Customer agrees to immediately execute a mortgage on terms satisfactory to the Supplier to more particularly describe the security interest conferred by this clause. Should the Customer fail within a reasonable time of such demand to execute that mortgage, then the Customer irrevocably appoints the company secretary of the Supplier as its attorney with authority to do on its behalf anything that it may lawfully authorise an attorney to do including, without limitation, to make, sign, execute, seal and deliver any document and to take possession of, use, sell or otherwise dispose of any real property of the Customer.

13. Trustee or Partnership Capacity

(a) In the event that the Customer enters into this Application as trustee for a trust, the Customer acknowledges that it has the power under the trust deed to sign this Agreement and shall be liable in both its personal capacity and in its capacity as trustee for the trust for all of the Amount Payable and that the assets of the trust shall be available to meet payment of the Amount Payable and the Supplier has the right to be indemnified out of trust assets. The Customer will not retire as trustee of the trust or appoint new or additional trustees without advising the Supplier and on the request of the Supplier will supply a copy of the trust deed.

(b) If the Customer enters into this Agreement as partners, the Customer warrants that all of the partners have signed this Agreement and that all the partners will enter into a guarantee and indemnity with the Supplier in relation to the Customer’s obligations to the Supplier.

14. Termination: The Supplier may at any time by written notice to the Customer terminate its obligation to supply Goods to the Customer upon the happening of any of the following:

(a) any action is taken for, or with a view to, the liquidation (including provisional liquidation), winding up, official management, bankruptcy or insolvency (or equivalent) of the Customer and such action remains pending for a period of 21 days thereafter, unless the Customer satisfies the Supplier (in its absolute discretion) of the Customer’s solvency;

(b) the Customer’s failure to make payment under clause 5 or under these Terms of Trade;

(c) the Customer becomes insolvent or is unable or deemed to be unable to pay its debts or ceases or threatens to cease to carry on its business or a major part of its business or the Customer enters into dealings with any of its creditors with a view to avoiding, or in expectation of, insolvency or stops or threatens to stop payments generally or a receiver or receiver and manager is appointed to, or an encumbrancee takes or proposes to take possession of, any material part of the assets of the Customer;

(d) the Customer enters into any arrangement, assignment or composition with or for the benefit of its creditors or any class of them;

(e) any distress, attachment or execution is issued, levied or enforced against the Customer which is not satisfied or challenged in good faith by appropriate means within 14 days;

(f) a person is appointed under any applicable law to investigate any part of the Customer’s business or affairs or an application is made for the appointment of such an inspector, or an administrator (or equivalent) is appointed to the Customer or any steps are taken for such an appointment; or

(g) any other event occurs or circumstance arises, financial or otherwise, which, in the reasonable opinion of the Supplier, is likely materially and adversely to affect the ability of the Customer to observe any of its payment obligations to the Supplier, and in any such event the Customer shall be deemed to be in breach of its obligation to purchase those goods.

(h) Either party may terminate this Agreement “without cause” on 30 days written notice to the other, save that any Account Payable due shall fall due and payable to the Supplier upon receipt of the written notice from the Customer and the Supplier shall complete delivery of Goods which have been paid for by the Customer. 

15. Limitation of Liability

To the fullest extent permissible at law:

(a) Supplier gives no warranty in relation to the Goods and services it supplies unless expressly given in writing in these Terms of Trade or otherwise in writing executed by Supplier or required by law.

(b) Neither Party is liable to the other for any indirect, punitive, incidental, special or consequential damages including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide goods or services, or otherwise arising out of the provision of goods or services, whether based on terms of trade, negligence, strict liability or otherwise, even if a Party has been advised of the possibility of damages.

(c) The Supplier shall not bear liability or responsibility for direct or indirect loss or consequential loss in relation to the use of the Goods by the Customer.

(c) In the event that the Australian Consumer Law gives to the Customer guarantees (whether because Customer is an end-user or for any other reason): Where liability for breach of any such guarantee can be limited, Seller’s liability (if any) arising from any breach of those guarantees is limited with respect to the supply of goods, to the replacement or repair of the goods or the costs of resupply or replacement of the goods or with respect to services to the supply of services again or the cost of re-supplying the services again.

(d) Customer expressly agrees that use of supplied Goods and services is at Customer’s risk.  Supplier’s liability for breach of any term implied into these Terms of Trade by any law is excluded.

(e) Unless expressly stated otherwise in the sales invoice, Customer acknowledges and warrants that Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption and were not manufactured, processed or adapted to the special order of the Customer.

16. Any claim by the Customer in respect of defective, short delivered, or non-conforming or damaged Goods must be made in writing within 7 days of the delivery of the Goods, unless a longer period is expressly agreed to by the Supplier in writing. Should the Customer fail to notify the Supplier within the specified period then the Goods will be deemed to be in compliance with the order and free from any defects whatsoever.

17. Despite any other provision of these Terms and Conditions, the Supplier is not liable, to the maximum extent permitted by law, for defects or deficiencies in Goods caused by improper storage of the Goods by the Customer or normal wear and tear and damage.

18. Risk:

(a) Notwithstanding retention of title provisions under clause 6 hereof, the risk in the Goods purchased (including risk of damage or loss of the Goods) shall pass to the Customer upon delivery of the Goods to the Customer or its agent or to a carrier commissioned by the Customer.

(b) If any of the Goods are damaged or destroyed prior to the title passing to the Customer, the Supplier is entitled, without affecting any other rights and remedies under any other agreement, to any insurance proceeds payable for the Goods.

19. Force Majeure

(a) Where a Party is unable, wholly or in part, to carry out any obligation under the Terms of Trade by reason of an act of God, strike, lockout or other interference with work, war, declared or undeclared, blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental or quasi-governmental restraint, pestilence, expropriation, prohibition, intervention, direct or embargo, unavailability or delay in availability of equipment or transport, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licenses, authorities or allocations, and any other cause whether of the kind specifically enumerated above or otherwise which is not reasonably within the control of the party affected (Force Majeure), and that Party:

(i) gives the other Party prompt notice of that Force Majeure with reasonably full particulars of it, and, insofar as known, the probable extent to which it will be unable to perform or be delayed in performing that obligation; and

(ii) uses all possible diligence to remove that Force Majeure as quickly as possible,

that obligation is suspended so far as it is affected by Force Majeure during the continuance of the event.

(b) Clause 19(a) is applicable provided that:

(i) an obligation to pay money is never excused by Force Majeure; and

(ii) the requirement that any Force Majeure must be removed with all possible due diligence does not require the settlement of strikes, lockouts or other labour disputes, or claims or demands by any government on terms contrary to the wishes of the party affected.

20. These Terms of Trade and any sales invoice constitute the entire contract between the parties and supersedes all and any communications, negotiations, arrangements and agreements, whether oral or written, between the parties in respect of the matters that are the subject of these Terms of Trade.

21. A waiver of any provision or breach of this Agreement by the Customer must be made by an authorised officer of the Supplier in writing. A waiver of any provision or breach of this Agreement by the Supplier must be made by an authorised officer of the Customer in writing.

22. If a provision of these Terms and Conditions would, but for this clause, be unenforceable the provision must be read down to the extent necessary to avoid that result or, if the provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of these Terms and Conditions.