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Patons Macadamia Pty Ltd ACN 007 170 943 of Level 6, 428 George Street, Sydney NSW 2000 (Company)
Any person, corporation, partnership or other legal entity that places an order with the Company (Customer) in accordance with the provisions of these Trading Terms.
1.1 The Customer may at any time, by notice in writing, place an order (Order Request) for any products supplied or manufactured from time to time by the Company (Products).
1.2 An Order Request is accepted by the Company only when the Company:
(1) gives written notice of acceptance to the Customer; or
(2) commences fulfilment of the order set out in the Order Request.
1.3 A “Purchase Order" consisting of the Order Request and any variations to that document agreed by the Company and the Customer is deemed to come into existence upon acceptance of the Order Request in accordance with clause 1.2.
1.4 Any order for Products set out in an Order Request only becomes binding on the Company when a Purchase Order comes into existence.
1.5 A Purchase Order may only be amended or cancelled with the prior written consent of the Company, such amendment or cancellation to be on such terms as the Company may specify in its discretion, including that fees or charges may apply.
2.1 This Agreement applies to any order placed by a Customer for Products.
2.2 The terms on which the Company supplies the Products are the terms of this Agreement and the terms of any Purchase Order. In the event of any inconsistency between the terms of this Agreement and any Purchase Order, the terms of the Purchase Order prevail, but only to the extent of the inconsistency.
2.3 Despite clause 2.2, if a Customer submits its own terms and conditions with a Purchase Order, those terms and conditions have no application and the terms of this Agreement apply.
3.1 The Company will use its reasonable endeavours to supply or procure the supply of the Products in accordance with the terms of this Agreement and any applicable Purchase Order. If the Company is unable to supply the Customer’s total order, this Agreement will continue to apply to the Products supplied.
3.2 The Company reserves the right, in its absolute discretion, to add to or remove from the range of products supplied by the Company (including the Products), and may do so on 30 days’ notice to the Customer. The Company may discontinue supply of any Product without notice to the Customer
4.1 The price payable by the Customer for the Products is the amount set out in the Purchase Order (Price).
4.2 The Price will be invoiced following delivery and must be paid within 30 days of the date of the invoice, unless otherwise specified in the Purchase Order, without set-off or withholding.
4.3 The Price must be paid in the currency set out in the Purchase Order or, if no currency is specified, in Australian dollars.
4.4 If the Price is not paid on the due date, interest at the Commonwealth Bank Corporate Overdraft Rate (monthly charging cycle) plus 2% will apply. Interest will be calculated from the date that the Price is due and payable until the date that payment is received by the Company. Interest will be calculated daily and compound monthly.
4.5 The Customer is responsible for, and must pay to the Company, all taxes, duties, imposts, fees, levies or other charges imposed by any governmental, semi-governmental or regulatory authority (Taxes) that are payable in respect of the supply of Products pursuant to this Agreement. Without limiting the preceding sentence, where possible the Company will include Taxes in the Price. If a change to law results in the Taxes payable in relation to this Agreement altering then the amount payable by the Customer is to be adjusted by the amount of the alteration in the applicable Taxes.
5.1 Any delivery time specified in a Purchase Order or otherwise specified (whether orally or in writing) is an estimate only and in no circumstances will the Company be liable for any Loss occasioned to the Customer arising from late delivery or non-delivery of Products.
5.2 The Company will deliver the Products to the location nominated by the Customer in a Purchase Order (Delivery Location).
5.3 Risk in the Products passes to the Customer at the time that the Products are delivered at the Delivery Location unless otherwise agreed in writing by the parties.
5.4 The Customer must notify the Company of any short supply, defect in or damage to the Products within 5 business days of receiving the Products. If the Customer does not notify the Company of any short supply, defects or damage to the Products within that timeframe, then the Products are deemed to have been delivered in good condition and in accordance with the terms of this Agreement and Purchase Order.
5.5 Upon receiving notification from the Customer of a claim for short supply, defect in or damage to the Products the Company may conduct its own investigation to determine whether the claim is warranted, including but not limited to checking the Data Logger records relating to the relevant delivery. The Customer must provide reasonable assistance to the Company to facilitate its investigation.
5.6 If the Company's investigation establishes that there has been a short supply, defect in or damage to the Products then the Company must make good the short supply or defect in or damage to the Products in accordance with clause11.
6.1 The Company retains title in the Products until the earlier of:
(1) the Company receiving payment in full of all amounts owing to the Company by the Customer; or
(2) the Customer selling the Products in the ordinary course of its business.
6.2 Until title to the Products passes to the Customer, the Customer must:
(1) not sell, assign, charge or otherwise encumber or grant any interest over any debts and other obligations which any third party may owe to the Customer as a result of the use, manufacture or resale of the Products; and
(2) subject to clause 7.1, the Customer must keep the Products free from any security interest (as defined in the Personal Property Securities Act 2009 (Cth))(PPSA).
6.3 The Customer irrevocably authorises the Company at any time, to enter any premises upon which the Products are stored to enable the Company to inspect the Products and, if the Customer has breached this Agreement or suffers an Insolvency Event, to reclaim possession of the Products. The Customer indemnifies the Company against any liability to any person in connection with the entry or reclamation.
7.1 The Customer acknowledges and agrees that:
(1) this clause 7 creates a security interest in all present and after acquired Products and any proceeds as security for the Customer’s obligations to the Company;
(2) the Company is a secured party in relation to the Products and any proceeds of the Products and is entitled to register its interest on the register as: (a) a security interest; and, (b) if applicable, a purchase money security interest;
(3) the Company may, by notice to the Customer, require the Customer to take all steps requested by the Company to ensure its security interest in the Products is enforceable, and to perfect, or better secure the position of the Company as a first ranking security, and the Customer must comply with that notice; and
(4) the Company is not obliged to give any notice, document or information under the PPSA (including but not limited to under sections 95, 121(4), 130, 132(3)(d), 132(4), 135 and 143 of the PPSA), unless the provision of that notice, document or information is required by the PPSA and cannot be excluded.
(5) The parties may not disclose any information of a kind referred to in section 275(1) of the PPSA that is not in the public domain.
7.2 A term used in italics in this clause 7 has the same meaning as in the PPSA.
8.1 The Company covenants that the Products will be:
(1) safe and fit for their purpose; and
(2) manufactured in accordance with all legal requirements of the Commonwealth of Australia and its states and territories.
8.2 The Company covenants that all packaging in which the Product is contained will comply with all legal requirements of the Commonwealth of Australia and its states and territories. This clause does not apply where the packaging is provided by or on behalf of the Customer or is otherwise designed by the Customer.
8.3 To the extent permitted by law, all conditions and warranties, express or implied, whether arising by virtue of statute or otherwise, and whether as to the condition, suitability, quality, fitness for any purpose or title to the Products are expressly negatived and excluded from this Agreement.
8.4 The Company may, from time to time, ship Products with a Data Logger. The Customer must return the Data Logger to the Company via the return envelope enclosed with the Products within a reasonable time of the Customer receiving the Products.
8.5 Subject to any applicable laws, if a Data Logger is included with a delivery of Products, no claims will be accepted by the Company (pursuant to clause 11) in respect of Products that are claimed to be defective or damaged as a result of excessive temperature, unless the Data Logger has been returned to the Company pursuant to clause 8.4.
9.1 This clause 9 only applies where the:
(1) Products are manufactured by the Company in accordance with recipes, specifications or directions given by or on behalf of the Customer; or
(2) the parties otherwise agree that the arrangement between them is a “Contract Manufacturing” arrangement.
9.2 Where this clause 9 applies, its terms prevail over those in clause 8 to the extent of any inconsistency.
9.3 Where the supply of Products is pursuant to a contract manufacturing arrangement, the parties may agree a separate contract manufacturing agreement (which may include packaging information, intellectual property, length of contract and volume estimates), in which case this Agreement will not apply to the supply of the Products by the Company.
9.4 Where the parties have not agreed a separate contract manufacturing agreement but the Company will be contract manufacturing for the Customer pursuant to this clause 9, the following terms apply:
(1) The Company covenants that the Products will be manufactured in accordance with any recipe, specification or direction given by or on behalf of the Customer. The Company does not covenant that the Products will be safe and fit for their purpose or otherwise comply with all legal requirements of the jurisdiction in which the Products are to be sold;
(2) Where the packaging in which the Products are to be contained has been provided or designed by the Customer, the Company does not covenant that the packaging will comply with all legal requirements of the jurisdiction in which the Products are to be sold;
(3) if the Customer provides any recipe, formulation or specification to the Company for the manufacture of the Products, the Customer will continue to own that recipe, formulation or specification. Such recipe, formulation or specification will remain the property of the Customer at all times during the term of this Agreement; and
(4) the Customer indemnifies the Company in respect of any claim that the use or manufacture of the Products infringes any rights of any third party.
10.1 If the Customer is directed to assist in any suspension of supply or recall of Products for any reason by Company or an authority, the Customer must cooperate and comply with all such reasonable directions to ensure the most effective response to the suspension or recall.
11.1 To the extent permitted under the Competition and Consumer Act 2010 (Cth):
(1) the Company’s liability is, at the option of the Company, limited to the following: (a) replacement of any defective or damaged Products or of any short supplied Products; or (b) payment of the cost of replacing any defective or damaged Products or substitution of the Products with products of the same or similar nature; or (c) refund of any amounts paid by the Customer in relation to any defective or damaged Products;
(2) subject to clause 11.1(1), the Customer releases and indemnifies the Company from and against Claims and Loss arising out of or in respect of the supply of the Products to the Customer; and
(3) In no event will the Company, its officers, employees or agents be liable for any consequential, incidental, special or indirect loss or damage, any loss of business or revenue, loss of profit, loss of opportunity, loss of goodwill or loss of business reputation arising out of or in connection with the supply of Products or a Purchase Order, even if due to the negligence of the Company, its officers, employees or agents.
12.1 The terms of this Agreement, any Purchase Order and any information regarding Patons business and plans (including employees, customers, systems, pricing, costs, profits, markets, products and processes) (Confidential Information) are confidential and must not be disclosed by the Customer without the prior consent of the Company.
12.2 The Customer may disclose the Confidential Information:
(1) to its employees and advisers who have a need to know and who are subject to a duty of confidentiality; or
(2) where required by law.
12.3 The Customer acknowledges that all intellectual property rights in the Products and any packaging in which the Products are contained belongs to the Company. The Customer agrees that it will make no claim for ownership of any intellectual property in the Products or packaging. This clause does not apply to the extent that the Products or packaging have been manufactured in accordance with any recipe, specifications, directions or artwork provided by the Customer and it is expressly acknowledged in writing that the intellectual property rights in respect of the recipe, specifications, directions or artwork are the property of the Customer.
13.1 The following events constitute a breach of this Agreement by the Customer:
(1) the Customer fails to comply with the terms of this Agreement;
(2) the Customer dies, is dissolved or suffers an Insolvency Event; or
(3) any other event occurs which gives the Company reasonable grounds for doubting the financial standing of the Customer,
13.2 Where a breach of this Agreement occurs (as defined in clause 13.1) the Company may, at its absolute discretion and without limitation to any other rights that it might enjoy at law, do any one or more of the following:
(1) terminate this Agreement, any Purchase Order and the supply of any Products;
(2) cancel or suspend any undelivered or uncompleted Purchase Orders;
(3) require prepayment or other security as a condition of resuming delivery (notwithstanding the terms of payment applicable to the Purchase Order; charge interest on any amounts owed by the Customer); and
(4) recover from the Customer any other costs and expenses incurred as a consequence of the Customer’s breach (including legal costs on a full indemnity basis).
14.1 Terms used in this clause that are not otherwise defined in this document have the meanings given to them in the A New Tax System (Goods and Services Tax) Act 1999.
14.2 Unless the context provides otherwise, all consideration provided under this document has been calculated without regard to GST.
14.3 If and to the extent that one party (Supplier) makes a taxable supply to the other party (Recipient) pursuant to this document, the Recipient must pay to the Supplier an additional amount equal to the GST payable on that taxable supply (unless the consideration for that taxable supply is expressed to be GST-inclusive). The additional amount must be paid by the Recipient at the later of:
(1) the date when any consideration for the taxable supply is first paid or provided; and
(2) the date when the Supplier issues a tax invoice to the Recipient.
14.4 If the GST payable in relation to a supply made under or in connection with this document (including any GST payable in relation to an adjustment for the supply) varies from the amount that the Recipient has paid the Supplier under clause 14.2 such that a further amount of GST is payable in relation to the supply or a refund or credit of GST is obtained in relation to the supply, then the Supplier will adjust the amount payable by the Recipient to take account of the variation, and:
(1) any amount that becomes payable must be paid by the Recipient within 10 business days of the Supplier providing written notice requiring such payment. Any payment is deemed to be a payment of the additional amount payable under clause 14.2.
(2) any refund or credit that becomes payable to the Recipient must be paid by the Supplier within 10 business days of the Supplier receiving such credit or refund from the Australian Taxation Office. Any credit or refund is deemed to be a credit or refund of the additional amount payable under clause 14.2.
14.5 This clause will not merge on completion and will survive the termination of this document by any party.
15.1 This Agreement is governed by the laws of New South Wales. Each party submits to the exclusive jurisdiction of the Courts of New South Wales.
15.2 The rights contained in this Agreement are personal to the Customer and may not be assigned or transferred without the prior written consent of the Company.
15.3 The non-exercise or delay in performance of a right under this Agreement does not constitute a waiver. A waiver of a right may only be made by notice in writing signed by the party waiving the right.
15.4 This Agreement and any Purchase Order are the entire agreement of the parties in respect of each order of Products. All representations, communications and prior agreements in relation to the subject matter are merged in and superseded by this Agreement and any relevant Purchase Order.
15.5 The Company may vary this Agreement at any time by notice to the Customer. Any Purchase Orders received by the Company after the date of such notice will be subject to the terms and conditions of the revised Agreement. This Agreement may otherwise only be amended or varied by agreement in writing signed by both parties.
15.6 Any notice required or permitted to be given under this Agreement must be in writing and may be delivered personally or by pre-paid post or by facsimile or by electronic mail. Notices sent by post will be deemed to be received 3 clear business days after posting and notices sent by facsimile or electronic mail will be deemed to be received immediately except where the sender receives notification that the transmission did not complete (whether in whole or part). Where a notice sent by facsimile or e-mail after 5 PM (in the place of transmission) it will be deemed to be received on the next business day following transmission.
15.7 If the manufacture or delivery of Products is prevented or hindered directly or indirectly by strike, material/fuel/labour shortage, plant failure late receipt of the Customer’s Purchase Order or other information, or other cause not in the Company’s control, then the time for delivery will be extended until the effect of the delaying cause has ceased. Neither the Company nor the Customer will be entitled to cancel the Purchase Order, nor will the Company be liable for damages for the resultant delay.
15.8 If a provision of this document or a right or remedy of a party under this document is invalid or unenforceable in a particular jurisdiction:
(1) it is read down or severed in that jurisdiction only to the extent of the invalidity or unenforceability; and
(2) it does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions in any jurisdiction.
This clause is not limited by any other provision of this document in relation to severability, prohibition or enforceability.
16.1 In this Agreement:
(1) 'Claims' means any claim, action, demand, proceeding, judgment, damage, loss, cost, expense or liability howsoever incurred or suffered by or brought or made or recovered against that person and howsoever arising (whether or not presently ascertained, immediate, future or contingent);
(2) ‘Data Logger’ means a data logger device which monitors temperatures within a shipping container;
(3) ‘Insolvency Event’ means any circumstance in which the Customer is unable to pay its debts as they fall due or otherwise takes any corporate action or any steps are taken or legal proceedings are started for: (i) its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by the Company; (ii) the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or (iii) seeks protection or is granted protection from its creditors, under any applicable legislation; and
(4) 'Loss' means any damage, loss, liability, cost, charge, expense, outgoing or payment (whether direct or indirect, consequential or incidental, loss of profit or otherwise
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