General Terms and Conditions of Trade
1. DEFINITIONS & INTERPRETATION
1.1 “ADI” means authorised deposit-taking institution and has the same meaning as in the Banking Act 1959;
1.2 “Agreement” includes the Customer Application and the agreement for the supply of the Goods by the Seller to the Customer pursuant to these Terms and Conditions;
1.3 “Consumer” has the meaning given by the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act (Cth) 2010). Under the Australian Consumer Law, a person is a consumer
(a) if the price of the relevant goods is less than $40,000;
(b) if the price is $40,000 and above, the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption; or
(c) the goods consist of a vehicle or trailer acquired for use principally in the transport of goods on public roads.
1.4 “Customer” means the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation or other form as provided by the Seller to the Customer;
1.3 “Customer Application” means the Customer Application form including the Customer and Guarantor details completed on that form;
1.5 “Goods” mean any goods or products supplied by the Seller (including but not limited to agricultural chemicals) to the Customer (and where the context so permits shall include any supply of Services) and are as described on the Purchase Order(s) and Invoice(s);
1.6 “Guarantor” means that person (or persons) or entity who agrees to be liable for the debts of the Customer on a principal debtor basis pursuant to the Agreement and has executed a deed of guarantee and indemnity in favour of the Seller;
1.7 “Intellectual Property” includes but is not limited to all trade marks, patents, copyright, designs, marks, processes, know-how, methodology, concepts, specifications, statements, formulae, trade secrets, manner of new manufacture, or other like property or rights owned or held by the Seller. These rights include but are not limited to:
(i) marks, logos, images, service marks, trade names, business names, internet domain names, slogans, symbols, brand names, copyright or other trade indicia; and
(ii) all rights in information, know-how, processes, procedures, compositions, devices, methods, formulae, protocols, techniques, trade secrets or data whether or not protectable by patent application design registration, copyright, whether unregistered, registered or registrable.
1.8 “Intellectual Property Rights” means all present and future rights conferred by statute, common law or equity anywhere in the world in or in relation to copyright, trade marks, designs, patents, methodology, concepts, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific fields whether or not registrable, registered or patentable. These rights include:
(i) all rights in all applications to register these rights including all rights to claim Paris Convention priority;
(ii) all renewals and extensions of these rights; and
(iii) all rights in the nature of these rights, such as moral rights.
1.9 “Invoice” means a taxation invoice for Goods supplied by the Seller to the Customer;
1.10 “Loss” means
(i) loss, including but not limited to direct loss, consequential loss, special loss, loss of anticipated profits and/or loss of business opportunity;
(iii) damage including but not limited to any damages or compensation and/or any damage to reputation; and/or
(iv) cost or expense including legal costs on a full indemnity basis;
1.11 “Party(ies)” means the parties to the Agreement including but not limited to the Seller and the Customer;
1.12 “Personal Property Securities Act” or “PPSA” means the Personal Property Securities Act (Cth) 2009, as amended from time to time;
1.13 “Price” means the price payable for the Goods specified in the Invoice in accordance with clause 7 of this contract;
1.14 “Purchase Order” means a purchase order for Goods and/or Services from the Customer to the Seller;
1.15 “Quotation” means the Seller’s quotation for the goods to be supplied to the Customer;
1.16 “Sales Order Form” means the Seller’s prescribed form for the Customer’s placement of orders;
1.17 “Security Agreement”, “Collateral”, “Commingled Goods”, “Financing Statement”, “Financing Change Statement”, “Personal Property”, “All Present and After Acquired Personal Property”, “Purchase Money Security Interest”, “Registration” and “Security Interest” have the meanings given to them in the Personal Property Securities Act;
1.18 “Supply” means supply of the Goods by the Seller;
1.19 “Seller” means 4 Farmers Australia Pty Ltd (ACN 160 092 428) trading as ‘“4Farmers” and include without limitation its officers, agents, sub-contractors, successors and assigns or any person acting on behalf of and with the authority of 4 Farmers Australia Pty Ltd;
1.20 “Services” means all services requested and supplied by the Seller to the Customer, including advice or recommendations and as specified in the Purchase Order(s), Invoice(s) or in any other written communications;
1.21 “Terms and Condition” means these terms and conditions of the Seller’s supply of the Goods to the Customer pursuant to the Agreement;
1.22 In interpreting these Terms and Conditions:
(a) the clause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;
(b) any obligation on the part of two (2) or more persons or entities binds them jointly and severally;
(c) words in the singular number include the plural and vice versa;
(d) words importing a gender include any other gender;
(e) a reference to a person includes a partnership and a body, whether corporate or otherwise;
(f) a reference to the Customer includes the Customer’s officers, employees, agents or sub-contractors;
(g) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(h) monetary references are references to Australian dollar currency (“$AUD”); and
(i) in the interpretation of these Terms and Condition, no rule of contract interpretation applies to the disadvantage of a Party on the basis that it put forward these Terms and Conditions or any part of them.
2.1 The Quotation is valid for two (2) Business Days from the date of the Quotation. If the Customer accepts the Quotation after the two Business Days, the Price in the Quotation may be revised at the Seller’s sole discretion.
2.2 The Prices in the Quotation do not include GST.
3. ORDERING PROCEDURE
3.1 The Seller may require the Customer to complete and submit a Sales Order Form when ordering any Goods.
4. PURCHASE ORDER
4.1 Purchase Order TY MANAGEMENT SYSTEM DOCUMENT
(a) The Customer will, if the Seller requests, provide the Seller with a Purchase Order for the supply of the required Goods.
(b) The Purchase Order will be in writing and will specify:
(i) the description of the Goods and/or Services required;
(ii) the specifications for the Goods;
(iii) the quantity of the Goods;
(iv) proposed time of delivery/collection;
(v) any special requirements.
(c) The Seller will endeavour to notify the Customer of the following within three (3) Business Days from the date of receipt of the Purchase Order:
(i) confirmation that the Seller has received the Purchase Order;
(ii) whether the Seller reasonably believes that the Goods can be supplied and whether the Seller can meet the Customer’s requirements; and
(iii) whether the Seller accepts the Purchase Order.
5. ACCEPTANCE OF THE TERMS AND CONDITIONS
5.1 Any instructions received by the Seller from the Customer in relation to the following:
(a) acceptance of the Quotation;
(b) provision of the Sales Order Form or Purchase Order to the Seller;
(c) supply of the Goods;
(d) the Customer and the Seller enters into an Agreement; or
(e) the Customer’s acceptance of the Goods supplied by the Seller,
will constitute acceptance of these Terms and Conditions.
5.2 The Customer agrees that, notwithstanding any terms and conditions of any document (including the Purchase Order) provided by the Customer to the Seller purportedly regulating the legal relations between them, this Agreement and these Terms and Conditions will prevail and the Seller will only be bound by the terms and conditions of such documents to the extent, not inconsistent with this Agreement and these Terms and Conditions, that the Seller agrees with the Customer in writing to be so bound.
6.1 The Seller may require the Customer to pay a deposit (“the Deposit”) before the Seller processes the Sales Order Form or Purchase Order. In certain circumstances, the Seller may at its absolute discretion waive the payment of the Deposit.
6.2 If a Deposit is required, the Seller is not obliged to supply the Goods until the Deposit has been received by the Seller.
6.3 To the extent permitted by law, any Deposit paid is non-refundable.
7. PRICE AND PAYMENT
7.1 At the Seller’s sole discretion the Price is either:
(a) as indicated on the Invoices provided by the Seller to the Customer; or
(b) as indicated in the Quotation (subject to clause 7.2).
7.2 The Seller reserves the right to change the Price in the event of variations to the Quotation, Sales Order Form or Purchase Order.
7.3 Time for payment for the Goods shall be on delivery/collection of the Goods or due twenty (20) days following the month in which the Invoice was issued. If the Seller has approved the Customer’s credit application, the time for payment will be as agreed between the Parties. If the credit application did not specify the time for payment, the Customer must pay the Invoice in accordance with this clause 7.3.
7.4 Payment for the Goods can be made in any manner as agreed with the Seller (e.g. by cash, credit card, cheque EFT transfer to the Seller’s account). If payment is made by EFT, the Customer must provide a reference (name, Quotation number or Invoice number). The Customer agrees to pay any administrative fees, merchant fees or any similar charges incurred by the Seller in processing the Customer’s payment.
7.5 GST and other taxes and duties that may be applicable will be shown separately and are not included in the Price (unless it is stated otherwise).
8.1 The Customer shall take delivery of the Goods from:
(a) the Seller’s premises;
(b) an address nominated by the Seller; or
(c) the Seller’s agent,
as notified by the Seller. Subject to clause 8.8, the Goods are deemed to be delivered to the Customer once the Seller delivers the Goods in accordance to this clause 8.1.
8.2 All Goods specified in the Purchase Order are estimated to be delivered within:
(a) the estimated timeframe specified in the Quotation or as agreed between the Parties; or
(b) if clause 8.2(a) is unreasonable or impossible, as mutually agreed between the Parties or within a reasonable time.
8.3 The Seller will notify the Customer as soon as possible if the Seller becomes aware of any delay in the delivery of Goods.
8.4 The Customer must make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery and in the event that the Customer is unable to take delivery of the Goods, the Seller will be entitled to charge a reasonable fee for re-delivery (subject to the Seller’s agreement) and storage costs.
8.5 All Goods must be adequately packaged and labelled in accordance with:
(a) good commercial practice to avoid damage in transit to their final destination; and
(b) any legal or regulatory requirements.
8.6 The Seller must specify if the delivery costs are:
(a) included in the Price; or
(b) in addition to the Price.
8.7 The Seller may deliver the Goods by separate instalments and each separate instalment will incur delivery costs. The Customer agrees to pay the delivery costs for each instalment.
8.8 Delivery of the Goods to a carrier, either named by the Customer or failing such naming to a carrier at the discretion of the Seller for the purpose of transmission to the Customer, is deemed to be a delivery of Goods to the Customer.
8.9 The costs of carriage and any insurance which the Customer reasonably directs the Seller to incur must be reimbursed by the Customer without any set-off or other withholding (whatsoever) and is due on the date for payment of the Invoice. The carrier is deemed to be the Customer’s agent.
8.10 The failure of the Seller to deliver will not entitle the Customer to treat the Agreement as repudiated.
8.11 The Seller will not be liable for any loss or damage to the Customer resulting from late delivery of the Goods for any reason (including but not limited to changes to the Customer’s requirements or variations to the Goods).
8.12 The Seller reserves the right to withhold delivery of the Goods until the Customer has fully paid all outstanding Invoices.
8.13 The Customer must inspect the Goods on delivery and must within one (1) day of delivery (time being of the essence) notify the Seller in writing of any alleged defect, shortage in quantity, damage in the Goods or failure to comply with the description or Quotation. If the Customer fails to give the written notice within the specified timeframe, the Goods will be presumed to be free from any defect or damage and the Seller is not liable to replace or repair the Goods.
9.1 The Seller may cancel the Agreement to which these Terms and Conditions apply or cancel delivery of the Goods at any time before the Goods are delivered, by giving written notice to the Customer. On giving such notice the Seller must repay to the Customer any sums paid in respect of the Price. The Seller will not be liable for any loss or damage whatever arising from such cancellation.
9.2 In the event that the Customer cancels the Sales Order Form and/or the Purchase Order at any time after the Seller has accepted the Sales Order Form or the Purchase Order (as the case may be), the Customer will be liable for any costs, expenses or losses incurred by the Seller (including but not limited to any loss of profits, manufacturing costs) up to the time of cancellation.
9.3 The Customer must reimburse the Seller for any expenses (including but not limited to administrative, storage or delivery costs) incurred by the Seller as a result of any cancelled order for whatever reason.
10. PASSING OF RISK
10.1 Goods supplied by the Seller to the Customer will be at the Customer’s risk upon
(a) delivery to the Customer;
(b) delivery to the Customer’s custody, possession or control; or
(c) delivery to the Seller’s nominated delivery agent or any carrier,
whichever is sooner.
10.2 For the avoidance of doubt, the Seller is not liable for any damage or loss of the Goods once the Goods are delivered in accordance with clause 8.
11. THE PERSONAL PROPERTY SECURITIES ACT
11.1 Ownership of the Goods remains with the Seller until all the amounts owing by
the Customer to the Seller (including without limitation to the purchase price of the Goods and other debts owing to the Seller) have been paid in full.
11.2 The Customer acknowledges that this Agreement and these Terms and Conditions constitute a Security Agreement. The Customer grants a Security Interest in favour of the Seller in the following collateral to secure the Customer’s payments and obligation to the Seller under this Agreement:
(a) All Goods (including any Commingled Goods) supplied by the Seller to the Customer from time to time; or
(b) The Customer’s All Present and After Acquired Personal Property; or
(c) The Crops or proceeds of Crops produced using Goods supplied by the Seller.
11.3 The Customer grants to the Seller an annual Purchase Money Security Interest over any Crops produced using Goods supplied for each Crop. An order from the Customer or Goods delivery documents providing for order or delivery of Goods within 9 months of planting will be conclusive evidence of the application of the Security Interest to a particular year’s Crop.
11.4 The Customer accepts, acknowledges and agrees that:
(a) the Seller can, effect and maintain a Registration (in any manner that the Seller considers appropriate) of its Security Interest on the PPSR in relation to any Security Interest created, contemplated or constituted by this Agreement;
(b) it waives any right to receive notification of the registration of a Security Interest.
11.5 Pursuant to section 275(6) of the PPSA, the Customer agrees the Seller is not required to disclose to an interested person information pertaining to the Seller’s Security Interest unless required to do so pursuant to the PPSA or at law generally The Customer will sign any documents and/or provide any further information (which information the Customer warrants to be complete, accurate and up-to-date in all respects) and/or assistance which the Seller may reasonably require to enable perfection of its Security Interest or Registration of a Financing Statement or Financing Change Statement on the PPSR;
(a) give the Seller not less than 14 days’ written notice of any proposed change in their name and/or any other changes in their details (including but not limited to, changes in their address, facsimile number, email address, trading name or business activities);
(b) indemnify the Seller against any costs the Seller incurs in perfecting and maintaining its perfected Security Interest in the Goods or such other Personal Property under the PPSA and any costs the Seller may incur in the course of enforcing any of its rights under this Agreement, the PPSA or at law generally;
(c) procure from any persons considered by the Seller to be relevant to its security position, such agreement and waivers as the Seller may at any time reasonably require.
11.6 The Customer undertakes not to register, or permit to be registered, a Financing Statement or a Financing Change statement in respect of a Security Interest contemplated or constituted by this Agreement in favour of any party without the Seller’s prior written consent.
11.7 If Chapter 4 of the PPSA would otherwise apply to the enforcement of a Security Interest arising in connection with this Agreement to which these Terms and Conditions apply, the Customer agrees that the following provisions of the PPSA will not apply to the enforcement of the Agreement:
(a) Section 95 (notice of removal of accession), to the extent that it requires the Seller to give a notice to the Customer;
(b) Section 96 (when a person with an interest in the whole may retain an accession);
(c) Subsection 121(4) (enforcement of liquid assets – notice to grantor);
(d) Section 125 (obligation to dispose of or retain collateral);
(e) Section 129 (disposal by purchase);
(f) Section 130 (notice of disposal of collateral), to the extent that it requires the Seller to give a notice to the Customer;
(g) Section 132(3)(d) (contents of statement of account after disposal);
(h) Section 132(4) (statement of account if no disposal);
(i) Section 135 (notice of retention of collateral);
(j) Section 142 (redemption of collateral); and
(k) Section 143 (reinstatement of security agreement).
11.8 Notices or documents required or permitted to be given to the Seller for the purposes of the PPSA must be given in accordance with the PPSA.
11.9 If the Customer orders Goods from the Seller for the purpose of on-sale the Customer must:
(a) ensure that such proposed on-sale documentation provides for the Registration of a Purchase Money Security Interest over Crops in favour of the Customer;
(b) annually register their Security Interest over the end user and the Crop prior to the Customer’s supply of the Goods to the end user;
(c) provide the Verification Statement evidencing the Registration to the Seller immediately following Registration.
11.10 If the Customer makes a payment to the Seller at any time whether in connection with this Agreement, any document entered into under this Agreement or otherwise the Seller may, at its absolute discretion, apply that payment in any manner it sees fit.
12. SECURITY AND CHARGE
12.1 Subject to clause 11 and the Personal Property Securities Act:
(a) where the Customer and/or the Guarantor (if any) is the owner of any real property, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said real property to the Seller or the Seller’s nominee to secure all payments and other obligations payable under the Agreement. The Customer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) is entitled to lodge an absolute caveat, where appropriate and the caveat will be withdrawn once all payments and other obligations hereunder have been satisfied.
(b) should the Seller elect to proceed in any manner in accordance with this clause 12 the Customer and/or the Guarantor will indemnify the Seller from and against all the Seller’s incurred costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate, constitute and appoint the Seller or the Seller’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 12.
13. DEALING WITH THE GOODS
13.1 Until all the amounts owing by the Customer have been paid in full (or if the Seller supplies the Goods to the Customer on consignment basis), the Customer may sell the Goods in the ordinary course of its business but only as trustee and agent of the Seller. The Customer must not represent to any third party that it is acting for the Seller, and the Seller will not be bound by any contracts with third parties to which the
Customer is a party.
13.2 The Customer must hold the sale proceeds it receives from any sale of the Goods as trustee for the Seller. All such sale proceeds must be placed in an ADI account separate from its own monies and the Customer must not allow any person to have control of, or grant a Security Interest over the proceeds or the accounts in which they are held. The Customer must make immediate payment to the Seller from the accounts in which the sale proceeds are held of all amounts which may be owing by the Customer to the Seller.
13.3 Until all amounts owing by the Customer have been paid in full and subject to clause 13.2, the Customer takes possession of the Goods and hold them as trustee for the Seller. The Customer must store the Goods in such a manner that they are readily distinguishable from other goods held by the Customer so they clearly show that they are the property of the Seller.
14.1 Goods will not be accepted for return unless other than in accordance with clause 8.13 has been complied.
14.2 Goods to be returned must be in their original condition and packaging and the Customer must not have used the Goods in any way.
14.3 If the Seller accepts a return of the Goods, the Seller may in its absolute discretion issue a credit note to the Customer instead of replacing the Goods.
15.1 Subject to clause 15.4, if the Goods are defective and the Customer complies with clause 8.13, the Seller agrees to:
(a) replace the Goods or re-supply equivalent Goods;
(b) the payment of the cost of replacing the Goods or the re-supply of equivalent Goods; or
(c) refund any payments in relation to the Goods that are defective.
15.2 The warranty in clause 15.1 is subject to the conditions in clause 15.3.
15.3 The conditions applicable to the warranty given by clause 15.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer (or its employees, agents or contractors) to properly maintain or store the Goods; or
(ii) failure on the part of the Customer (or its employees, agents or contractors) to follow any instructions or guidelines provided by the Seller; or
(iii) any use of the Goods that is inconsistent with the use or purpose communicated by the Customer to the Seller before the Customer takes delivery of the Goods; or
(iv) the continued use of the Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user.
15.4 If any of the Goods are manufactured by a third party, the warranty for the Goods shall be the manufacturer’s warranty.
16. IMPLIED GUARANTEES UNDER THE COMPETITION AND CONSUMER ACT 2010 (CTH) (“CCA”) AND THE FAIR TRADING ACT (“FTA”)
16.1 Any condition, warranty or guarantee which would otherwise be implied in the Agreement is hereby excluded to the full extent permitted by law.
16.2 If the Customer is a Consumer and legislation implies in the Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty will be deemed to be included in the Agreement. However, the liability of the Seller for any breach of such condition or warranty will be limited, at the option of the Seller, to one
or more of the following:
(a) if the breach relates to Goods:
(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair of such Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(iv) the payment of the cost of having the Goods repaired; and
(b) if the breach relates to Services:
(i) the supplying of the Services again; or
(ii) the payment of the cost of having the Services supplied again.
16.3 Nothing in the Agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
17. EXCLUSION OF LIABILITY
17.1 The Customer agrees that the Seller or its affiliates, agents and sub-contractors and each of their partners, principals, members, employees and other personnel will not be liable to the Customer for any actions, claims, or Loss in any way arising out of or relating to the Goods for an amount greater than the Price paid by the Customer to the Seller under this Agreement.
17.2 In no event will the Seller or its affiliates, agents or sub-contractors or any of their partners, principals, members, employees or other personnel be liable for special, incidental, indirect, consequential or punitive damages, costs expenses or losses of any kind, lost profits, lost revenue, loss of management time, opportunity costs, failure to realise anticipated savings, or lost data.
17.3 This clause 17 will apply regardless of the form of action, damage, claim, liability, cost, expense or loss whether in contract, statute or tort (including without limitation to negligence) or otherwise. To the extent that this clause 17 refers to persons other than the Seller, the Seller holds the benefit of this clause 17 on trust for them.
18. CUSTOMER’S INDEMNITY
18.1 The Customer continually indemnifies the Seller, the Seller’s affiliates, agents or subcontractors, against any claim or proceeding that is made, threatened or commenced, and against any liability, Loss, damage or expense (including legal costs on a full indemnity basis) any of them incurs or suffers, as a direct or indirect result of any of the following:
(i) A breach of this agreement including any warranty;
(ii) A wilful, unlawful or negligent act or omission by the Customer or an officer, employee, agent or subcontractor of the Customer;
(iii) Damage to or loss of any of the Seller’s property.
19. CUSTOMER’S WAIVER
19.1 Subject to clause 19.3, the Customer warrants that it has not relied on any representation made by the Seller (or the Seller’s affiliates, officers, employees or agents), in any form (including but not limited to the Seller’s leaflets, catalogues, brochures, website) which has not been stated expressly in these Terms and Conditions or upon any descriptions, illustrations or specifications or any documentation provided by the Seller.
19.2 The Customer acknowledges and agrees that, to the extent the Seller has made any representation which is not otherwise expressly stated in these Terms and Conditions, the Agreement or in any other document, the Customer has been provided with an opportunity to independently verify the accuracy of that representation.
19.3 The Customer waives any right to rescind, terminate or cancel the Agreement with the Seller or to sue for damages or to claim restitution arising out of any misrepresentation made to the Customer by the Seller and the Customer acknowledges that it is relying on its own skills and judgement when acquiring the Goods.
20. INTELLECTUAL PROPERTY
20.1 The Customer expressly agrees and acknowledges that:
(a) any Intellectual Property in the Seller’s Goods and/or Services (whether unregistered, registered or registrable) is the property of the Seller; and
(b) nothing in the Agreement is intended to provide the Customer with any interest in the Intellectual Property in the Seller’s Goods and Services.
21. GUARANTEE AND INDEMNITY
21.1 If the Customer is a company, all directors and the directors' spouses are required to sign as personal guarantor or guarantors. However, the failure of one or more directors and or spouses to sign as guarantor does not affect the liability of those who have signed as guarantor.
21.2 The Customer agrees to pay any duty that may apply in respect of such guarantee or guarantees.
21.3 Each guarantor warrants:
(a) that it has the power to enter into, and exercise its rights and perform and comply with its obligations under the Agreement;
(b) that it has done everything required to be done, including the taking of all necessary corporate action and the obtaining of all necessary consents; in order to:
(i) enable the guarantor to lawfully enter into, exercise its rights and perform and comply with its obligations under, this guarantee and indemnity; and
(ii) ensure that those obligations are legal, valid, binding and enforceable in accordance with their respective terms.
(c) that it has been requested to and has had the opportunity to obtain independent legal advice before executing the Agreement, including this guarantee and indemnity. The guarantor understands that it is liable for all amounts owing (both now and in the future) by the Customer to the Seller.
21.4 In consideration of the Seller agreeing to sell and supply Goods or Services to the Customer, the guarantor hereby unconditionally and irrevocably:
(a) guarantees the due and punctual payment to the Seller of all moneys which are now owing to the Seller by the Customer and all further sums of money from time to time owing to the Seller by the Customer in respect of Goods and Services supplied or to be supplied by the Seller to the Customer or any other liability of the Customer to the Seller, and the due observance and performance by the Customer of all its obligations contained or implied in any contract with the Seller. If for any reason the Customer does not pay any amount owing to the Seller the guarantor will immediately on demand pay the relevant amount to the Seller;
(b) holds harmless and indemnifies the Seller against any liability (including but not limited to damages, costs, Loss and legal fees incurred by or suffered by the Seller in connection with:
(i) the supply of Goods and/or Services to the Customer;
(ii) the recovery of moneys owing to the Seller by the Customer including the enforcement of this guarantee and including, but not limited to, the Seller’s costs of debt collection and legal costs calculated on a full indemnity basis; and
(iii) moneys paid by the Seller with the Customer’s consent in settlement of a dispute that arises or results from a dispute between, the Seller, the Customer, and a third party
or any combination thereof, over the supply of Goods and/or Services by the Seller to the Customer.
21.5 This guarantee and indemnity shall constitute an unconditional and continuing guarantee and indemnity and accordingly shall be irrevocable and remain in full force and effect until the whole of moneys owing to the Seller by the Customer and all the Customer’s obligations have been fully paid, satisfied or performed.
21.6 No granting of credit, extension of further credit, or granting of time and no waiver, indulgence or neglect to sue on the Seller’s part (whether in respect of the Customer or any one or more of any other guarantor(s) or otherwise) and no failure by any named guarantor to properly execute this guarantee and indemnity shall impair or limit the liability under this guarantee and indemnity of any guarantor. Without affecting the Customer’s obligations to the Seller, each guarantor shall be a principal debtor and liable to the Seller accordingly.
21.7 If any payment received or recovered by the Seller is avoided by law such payment shall be deemed not to have discharged the liability of the guarantor, and the guarantor and the Seller shall each be restored to the position in which they would have been had no such payment been made.
21.8 This guarantee and indemnity shall bind each of the signatories notwithstanding that one or more of the persons named as a “Guarantor” may never execute this guarantee and indemnity.
21.9 The term “guarantor” whenever used in this guarantee and indemnity shall, if there is more than one person named as guarantor, mean and refer to each of them individually and all of them together unless the context otherwise requires, and the obligations and agreements on the part of the guarantor contained in this guarantee and indemnity shall bind them jointly and severally.
21.10 Each of the representations and warranties made by the guarantor will be deemed to be repeated by the guarantor continuously whilst this guarantee and indemnity remains in effect by reference to the facts and circumstances then existing.
21.11 The guarantor irrevocably authorise the Seller to obtain from any person or company any information which the Seller may require for credit reference purposes. The guarantor further irrevocably authorises the Seller to provide to any third party, in response to credit references and enquiries about the guarantor or by way of information exchange with credit reference agencies, details of this guarantee and indemnity and any subsequent dealings that the guarantor may have with the Seller as a result of this guarantee and indemnity being actioned by the Seller.
22. DEFAULT AND CONSEQUENCES
22.1 Neither Party shall take any action (including legal action) against the other Party for a default of the Agreement without first giving the defaulting Party written notice specifying the default and providing the defaulting Party with seven (7) days to rectify such.
22.2 Interest on overdue Invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two percent (2%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
22.3 The Customer is liable to pay to the Seller an administrative fee of fifty dollars ($50.00) for each month (or part thereof) the Invoices remain unpaid.
22.4 If the Customer defaults in payment (including by way of dishonoured cheque) of any invoice when due, the Customer will indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs (on a solicitor and own client basis) and the Seller’s debt recovery costs.
22.5 Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Customer and any of its other obligations under these Terms and Conditions. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause 21.5.
22.6 Notwithstanding clause 21.1 and without prejudice to the Seller’s other remedies at law the Seller is entitled to immediately cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors or makes an assignment for the benefit of its creditors; or
(c) a trustee in bankruptcy, receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
22.7 Following default the Seller may immediately enter on to the Customer’s property using all reasonable force to repossess any Goods.
23. FORCE MAJEURE
23.1 If the Seller is delayed, hindered, or otherwise prevented from complying with its obligations under these Terms and Conditions by reason of events or circumstances beyond the reasonable control of the Seller including but not limited to acts of God, wars, riots, strikes, lock-outs, trade disputes or labour disturbances, breakdown of plant or machinery, accidents, storm, fire, floods, difficulties in obtaining materials, goods, transport or labour or any other circumstances affecting the supply of the Goods the Seller is not liable to the Customer for any loss or damage which is or may be suffered by the Customer whether as a direct or indirect result of any such events or circumstances.
24. PRIVACY ACT 1988 (CTH)
24.1 The Customer and/or its Guarantor/s agrees for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Seller.
24.2 The Customer and/or its Guarantor/s agrees that the Seller may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the credit worthiness of Customer and/or Guarantor/s.
24.3 The Customer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
24.4 The Customer agrees that personal credit information provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Customer and Seller or required by law from time to time:
(a) provision of the Goods; and/or
(b) marketing of the Goods by the Seller, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of the Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
24.5 The Seller may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
25.1 If any provision of these Terms and Conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
25.2 These Terms and Conditions and any agreement to which they apply shall be governed by the laws of Western Australia and the Parties unconditionally submit to the jurisdiction of the courts of Western Australia.
25.3 The documents comprising the Agreement will be read in the following order of precedence:
(a) the Agreement;
(b) the Terms and Conditions;
Where any conflict occurs between the provisions contained in the Terms and Conditions, the Terms and Conditions will be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions will be severed from the Terms and Conditions without otherwise diminishing the enforceability of the remaining provisions of the Terms and Conditions.
25.4 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Seller.
25.5 The Seller may license, assignor sub-contract all or any part of its rights and obligations (including supplying of the Goods and/or Services) without the Customer’s consent.
QUALITY MANAGEMENT SYSTEM DOCUMENT
25.6 The Seller reserves the right to review these Terms and Conditions at any time. If, following any such review, there is to be any change to these Terms and Conditions, then that change will take effect from the date on which the Seller notifies the Customer of such change.
25.7 The failure by the Seller to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.
25.8 Upon acceptance of these Terms and Conditions by the Customer, the Terms and Conditions are binding and can only be amended with the written consent both the Parties.
25.9 Where more than one Customer has entered into this Agreement, the Customers shall be jointly and severally liable for all payments of the Price.
25.10 The Customer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply with this clause
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