Trade & Export Terms & Conditions
OPERATIVE PART
THE BUYER AND SELLER agree that the following Terms and Conditions apply to the sale of Product:
1. DEFINITIONS
The meanings of the terms used in this Contract are set out below:
Acceptance means when:
- Delivery is effected;
- the Buyer takes possession of the Product;
- if clause 6 applies, the Buyer does not give notice pursuant to clause 6.3;
Business Day means a day, other than a Saturday, Sunday or public holiday, on which banks are open for business in Brisbane, Queensland, Australia;
Buyer means the person, organisation, corporation, business specified in the Tax Invoice;
Contract means these Terms and Conditions and the Tax Invoice;
Delivery means when the Product is delivered by the Seller to the Buyer at the Delivery Address;
Delivery Address means the location / destination of Delivery of the Buyer;
Departure Due Date means the latest date requested by the Buyer for the Product to be delivered to the Delivery Address;
Deposit means the deposit to be paid by the Buyer as specified in the Tax Invoice;
Dispatch means when the Products leave the Seller’s address to be delivered/shipped to the Delivery Address by the Seller’s freight carrier;
Force Majeure Event means anything outside the reasonable control of a party, including but not limited to, acts of God, peril of the sea, fire, storm, lightening, flood, cyclone, landslide, earthquake or other adverse weather conditions, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, strikes or breakdown of plant, machinery or equipment;
Inspection means the Buyer or Seller inspecting the Product upon Delivery to assess whether the Product delivered to the Buyer at the Delivery Address reasonably complies with the quality, and quantity ordered by the Buyer, the Specifications or is defective;
GST means the goods and services tax under the GST Act;
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and includes other GST related legislation;
Order means an order placed by the Buyer for the Product to be delivered by the Seller to the Buyer;
Parties or parties means both the Seller and the Buyer;
Payment Terms means the terms of how the Purchase Price is to be paid by the Buyer to the Seller set out in the Tax Invoice;
Product means the product to be supplied by the Seller to the Buyer as set out in the Tax Invoice;
Purchase Price means the total purchase price for the Product set out in the Tax Invoice;
Seller means Macadamias Australia Enterprises Pty Ltd A.C.N. 639 628 676;
Specifications means the specifications of the Product issued by the Seller and does not include any industry standard or other specifications;
Tax Invoice means the tax invoice issued by the Seller for the Products ordered by the Buyer.
2. THE CONTRACT
2.1 The Seller agrees to sell the Product to the Buyer and the Buyer agrees to buy the Product from the Seller on these Terms and Conditions.
2.2 The Contract is formed when the Buyer places an order for Products and the Seller accepts the order.
3. ORDER
3.1 The Buyer may place an Order.
3.2 The Seller may accept the Order.
3.3 An Order is not binding on the Seller until it is accepted by the Seller.
3.4 The Seller will issue a Tax Invoice to the Buyer for the Order and the Product.
4. PAYMENT AND DELIVERY
4.1 It is the responsibility of the Buyer to satisfy itself of the Specifications and the Buyer understands, acknowledges and accepts the Specifications.
4.2 The Buyer will pay to the Seller the Purchase Price in accordance with the Payment Terms.
4.3 If the Buyer fails to pay the Seller the Purchase Price in accordance with the Payment Terms, the Buyer will be in default of these Terms and Conditions and the Contract.
4.4 The Buyer will pay the Purchase Price to the Seller in accordance with the Payment Terms.
4.5 The Buyer acknowledges that there is a minimum lead time from the date of the Deposit being paid to the date that the Products are produced and ready for Shipment of 4 weeks.
4.6 Upon the Seller receiving payment of the Deposit in accordance with the Payment Terms, the Seller will:
4.6.1 arrange for the production of the Products;
4.6.2 arrange and reserve Shipment and Dispatch with the Seller’s freight carrier;
4.6.3 notify the Buyer of the Dispatch Date as notified by the Seller’s freight carrier upon arranging and reserving Shipment and Dispatch.
4.7 The Seller will Dispatch the Products upon payment of the Balance in accordance with the Payment Terms.
4.8 If the Buyer has not paid the Balance by the Dispatch Date, the Seller will not Dispatch the Products.
4.9 While the Seller will use all reasonable endeavours to ensure Dispatch by the Departure Due Date, the Seller does not guarantee Dispatch by the Departure Due Date and is not liable for any loss resulting from late or early Delivery. The Buyer is not entitled to be compensated for any loss or damage for any delay in Dispatch by the Departure Due Date or Delivery.
4.10 If the Product is being exported from Australia to the Buyer, the Seller will forward the necessary shipping documents to the Buyer within a reasonable time after the Seller has received the necessary shipping documents from the Seller’s freight carrier.
4.11 If the Buyer requires the Dispatch Date or the Departure Due Date to be extended to a date later than the Departure Due Date:
4.11.1 the Buyer must request an extension of the Departure Due Date at least 14 days before the Departure Due Date (‘Extension Request’); and
4.11.2 the Seller is to give notice to the Buyer within 3 days of receiving the Extension Request stating:
4.11.2.1 whether the Seller approves the extension of the Departure Due Date to the extended Departure Due Date (‘Extended Departure Due Date’); and
4.11.2.2 the reasonable charges, costs, expenses, losses or interest incurred by the Seller as a result of the Extension Request and Extended Departure Due Date that are to be paid by the Buyer as result of the Extended Departure Due Date.
4.12 If the Seller does not approve the Extension Request, the Departure Due Date is to remain unchanged and the Seller will arrange Dispatch by the Departure Due Date and the Buyer will accept Dispatch by the Departure Due Date.
4.13 If the Seller does not approve the Extension Request pursuant to clause 3.8 and the Buyer does not provide Acceptance in accordance with these terms and conditions, the Seller may:
4.13.1 terminate the Contract by giving 5 Business Days notice to the Buyer; or
4.13.2 affirm the Contract and the Buyer will be in breach of the Contract and clause 10 will apply.
5. RISK, TITLE AND OWNERSHIP
5.1 The Seller is responsible for all risk and liability in the Product up to Delivery.
5.2 Upon Delivery, risk in the Product passes to the Buyer.
5.3 For the purpose of this clause, the Seller will maintain appropriate insurance for the Product and may maintain trade credit insurance with a reputable insurer. The Buyer shall within 2 Business Days do anything reasonably required by the Seller and/or the Seller’s insurer to maintain the insurances.
5.4 Title in the Product passes from the Seller to the Buyer upon the later of:
5.4.1 payment for the Product being received by the Seller; or
5.4.2 Acceptance.
5.5 If Delivery occurs before Title in the Product passes to the Buyer:
5.5.1 the Buyer must store the Product so that the Product is identifiable as those supplied by the Seller;
5.5.2 the Buyer must ensure the Product is properly stored and adequately insured;
5.5.3 the Buyer grants to the Seller a right to enter into any premises, location or building for the purpose of retaking possession of the Product;
5.5.4 and if the Buyer sells or purports to sell any of the Product in which title has not yet passed to the Buyer, then:
5.5.4.1 the Buyer does so as a fiduciary and trustee for the Seller;
5.5.4.2 the proceeds of the sale of the Product are the property of the Seller to the extent of any money owed to the Seller by the Buyer and are to be held on trust for the Seller; and
5.5.4.3 the Buyer must account to the Seller for that portion of the proceeds of sale of the Product on demand.
6. INSPECTION
6.1 Upon Delivery, the Buyer will carry out an Inspection of the Product within 5 Business Days of Delivery (‘Inspection Period’). The Buyer must act reasonably in the Inspection.
6.2 If, as a result of the Inspection, the Buyer considers that the Product does not satisfy the quality and quantity ordered by the Buyer, the Specifications or is defective, the Buyer must give written notice to the Seller within the Inspection Period that:
6.2.1 the Buyer is not satisfied that the Product meets the quality and quantity ordered by the Buyer, the Specifications or is defective;
6.2.2 the reason the Buyer is not satisfied with the Product; and
6.2.3 the Buyer accepts or does not accept the Product.
6.3 If the Buyer gives notice to the Seller pursuant to clause 6.2 that the Buyer does not accept the Product:
6.3.1 the Buyer will allow the Seller the opportunity to carry out an Inspection within a reasonable time after Delivery and the Seller must arrange for the Seller or an independent party to carry out an Inspection of the Product to assess whether the Product satisfies the quality and quantity ordered by the Buyer in accordance with Specifications;
6.3.2 the Inspection is to carried out within 3 days of the Inspection by the Buyer; and
6.3.3 the cost of the Inspection by the independent party is to be paid in equal shares by the Buyer and the Seller.
6.4 If, following the Inspection set out in clause 6.3, the Seller or the independent party declares that the Product does not satisfy the quality and quantity ordered by the Buyer in accordance with the Specifications:
6.4.1 the Seller will negotiate in good faith with the Buyer to remedy the issue pursuant to clause 8.1; and
6.4.2 if the negotiation pursuant to clause 6.4.1 does not reach an agreement between the Buyer and the Seller will:
6.4.2.1 arrange for the Product to be returned to the Seller as soon as possible or disposed of, at the Seller’s discretion; and
6.4.2.2 refund the Purchase Price to the Buyer within 14 days, if the Purchase Price has been paid by the Buyer; and
6.4.3 the Seller’s the Seller’s liability is limited to:
6.4.3.1 replacing the Product; or
6.4.3.2 refunding the Purchase Price to the Buyer.
6.5 If the Buyer does not give notice pursuant to clause 6.2 within the Inspection Period, it is deemed Acceptance.
6.6 Despite clauses 6.2, 6.3 and 6.4, the Buyer will pay the Purchase Price in accordance with the Terms of Payment without offset, discount or other deduction.
6.7 If the Buyer does not give notice pursuant to clause 6.2 within the Inspection Period, it is deemed:
6.7.1 Acceptance; and
6.7.2 the Product satisfies the quality and quantity ordered by the Buyer, within the Specifications and is free from defect.
6.8 Despite clauses 6.2, 6.3 and 6.4, the Buyer will pay the Purchase Price in accordance with the Terms of Payment without offset, discount or other deduction.
6.9 The Seller will not be liable for replacement of the Product or refunds of the Purchase Price if the Buyer has failed to store the Product in a reasonably proper manner.
7. GOODS AND SERVICES TAX, DUTIES, CHARGES AND COSTS
7.1 If the supply of the Product is a taxable supply pursuant to the GST Act, the Buyer will be responsible for paying GST in addition to the Purchase Price to the Seller.
7.2 If the Product is being exported from Australia to the Buyer:
7.2.1 the parties acknowledge that the supply of the Product for the purpose of export from Australia is GST-free under the GST Act;
7.2.2 if for any reason, the supply of the Product does not satisfy the requirements for a GST-free supply pursuant to the GST Act, the Buyer will be responsible for paying GST in addition to the Purchase Price to the Seller; and
7.2.3 the Buyer is responsible for paying any duties, charges or costs that may be payable on importing the Product.
8. PERSONAL PROPERTY SECURITIES ACT 2009 (‘PPSA’)
8.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
8.2 The Buyer acknowledges and agrees that these Terms and Conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Product that have previously been supplied and that will be supplied in the future by the Seller to the Buyer.
9. DISPUTE RESOLUTION
9.1 Any dispute arising from or in connection with these Terms and Conditions and the Contract shall be resolved in a spirit of good faith and a commercially realistic basis by negotiation or mediation between the parties within 14 days of the dispute arising.
9.2 If a dispute cannot be settled pursuant to clause 9.1, the parties must submit the dispute to arbitration:
9.2.1 in the jurisdiction of Queensland;
9.2.2 applying the laws of Queensland;
9.2.3 be conducted in English;
9.2.4 the costs of the arbitration are to be paid for equally by the parties; and
9.2.5 the arbitration shall be final and binding upon the parties.
10. DEFAULT
10.1 If the Buyer breaches any term of this Contract:
10.1.1 the Buyer will pay to the Seller interest on any money not paid in accordance with the Payment Terms at the rate to be calculated on the interest rate on default judgements published by the Queensland Law Society at the date of the money being due to be paid; and
10.1.2 the Seller may terminate the Contract immediately by giving written notice to the Buyer; and
10.1.3 the Buyer is responsible for paying any expenses, losses, damages and costs incurred by the Seller as a result of the breach and termination of the Contract within 7 Business Days of the termination of the Contract.
10.2 If the Seller breaches any term of this Contract:
10.2.1 the Buyer may terminate this Contract immediately if the breach is not remedied within 14 days after the Buyer gives notice to the Seller to remedy the breach.
11. INDEMNITY & SELLER LIABILITY
11.1 The Buyer indemnifies the Seller against all expenses, losses, damages and costs that the Seller may sustain or incur as a result, whether directly or indirectly, of any breach of this Contract by the Buyer, including but not limited to, a breach in respect of which the Seller exercises an express right to terminate this Contract.
11.2 The Seller is not liable to the Buyer or to any other person for any indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, loss of data or loss or damage resulting from wasted management time irrespective of whether:
11.2.1 the loss or damage is caused by or relates to breach of contract, statute, tort (including negligence) or otherwise; or
11.2.2 the Buyer or any other person previously notified the Seller of the possibility of the loss or damage.
11.3 If, despite clause 11.2, the Seller is liable to the Buyer for any reason, the parties agree that the liability of the Seller, howsoever arising, that in anyway relates to or in connection with these Terms and Conditions and the Contract, whether under the law of contract, tort, the Australian Consumer Law or otherwise, including all costs and expenses, shall be limited to a refund of the Purchase Price or the amount paid to the Seller in relation to these Terms and Conditions and the Contract.
12. ASSIGNMENT
12.1 The Seller may assign its rights and obligations under the Contract to an associated person, entity or organisation at any time.
12.2 The Buyer cannot assign or sell its rights and obligations under the Contract to any other person, entity or organisation
unless the Seller consents in writing.
13. FORCE MAJEURE
13.1 If a party is wholly or partially unable to perform its obligations under the Contract directly or indirectly as a result of a Force Majeure Event, including but not limited to any delay in the Departure Due Date, then:
13.1.1 as soon as reasonably practicable after the Force Majeure Event arises, that party must notify the other party of the extent to which the notifying party is unable to perform its obligations under the Contract; and
13.1.2 that party may suspend or partially suspend performance of its obligations in accordance with the Contract for the duration of the delay arising directly out of the Force Majeure Event, up to 21 days from the termination of the Force Majeure Event.
13.2 The Seller is not responsible for any delay in the Departure Due Date that may occur as a result of a Force Majeure Event.
13.3 If the performance of an obligation is delayed as a result of the Force Majeure Event beyond 60 days, either party may
terminate this Contract immediately by giving notice to the other party.
13.4 This clause does not apply to any obligation to pay money.
14. NOTICES
14.1 A notice or other communication to a party must be in writing and delivered to that party in one of the following ways:
14.1.1 delivered personally;
14.1.2 posted to the address for each party set out in the Tax Invoice when it will be treated as having been received on the third Business Day after posting; or
14.1.3 sent by email to the email address for each party set out in the Tax Invoice when it will be treated as received when it enters the recipient’s information system.
15. APPLICABLE LAW
15.1 The Contract is made in the State of Queensland, Australia.
15.2 The Contract is governed by and is to be construed in accordance with the laws in force in Queensland and the parties submit to the jurisdiction of the courts of Queensland.
16. ENTIRE AGREEMENT
16.1 The Contract represents the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings between the parties.
17. VARIATIONS AND REVIEWS
17.1 The Contract cannot be varied unless agreed in writing between the parties.
18. WAIVER
18.1 The failure of a party to the Contract to enforce a provision or the granting of any time or indulgence will not be construed as a waiver of the provision nor of a waiver of the right of the party at a later time to enforce the provision
18.2 Any waiver must be in writing and signed by the party to be bound.
19. SEVERABILITY
19.1 If any part of the Contract is invalid or unenforceable, that part will (if possible) be read down to the extend necessary to avoid the invalidity or unenforceability, or alternatively will be deemed deleted and the Contract will remain otherwise in full force.
20. JOINT AND SEVERAL
20.1 An obligation of two or more persons under the Contract binds them jointly and severally and every expressed or implied agreement or undertaking by which two or more persons derive any benefit in terms of the Contract will take effect for the benefit of those persons jointly and severally.
21. FURTHER ASSURANCES
21.1 Each party will sign and complete all further documents and do anything else that may be reasonably necessary to effect, perfect or complete the provisions of the Contract and the transactions to which it relates.
22. INTERPRETATION
In the interpretation of this agreement:
22.1 references to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
22.2 words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;
22.3 grammatical forms of defined words or phrases have corresponding meanings;
22.4 parties must perform their obligations on the dates and times fixed by reference to the capital city of Queensland;
22.5 reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia, unless otherwise stated;
22.6 if the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next Business Day;
22.7 references to a party are intended to bind their executors, administrators and permitted transferees.