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| Terms and Conditions of Sale of Goods by Longwarry Food Park | |||||||||||||||||||
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The below Terms & Conditions are applicable to all transactions by Longwarry Food Park (can be downloaded here):
1. Confirmation of the Contract 1.1. Confirmation by the seller shall serve as full proof of the contract, unless the buyer has filed a written objection to its contents within three working days of receipt. 1.2. If the seller has not confirmed the contract in writing within ten days of its conclusion, the buyer's confirmation shall serve as full proof of the contract, unless the seller has filed a written objection to its contents within three working days of receipt. 2. Quality and Composition 2.1. The goods delivered shall at least satisfy the requirements for quality and composition as customary in the trade. 3. Packaging 3.1. The packaging shall be provided with the brands and wording legally required in the country of origin. The packaging shall also feature the brands and wording that the buyer stipulated in writing upon inception of the contract. 3.2. The costs associated with meeting the requirements for packaging, labeling, stamping and palletizing established upon inception of the contract shall be borne by the buyer. 4. Instructions by the Buyer, Documents 4.1. The buyer shall be obligated to issue his instructions for delivery fully and at such notice as to enable the seller to deliver within the agreed term, observing a call period of 28 working days. 4.2. If the buyer fails to issue his instructions on time, the seller shall be entitled to invoice the goods as of the last delivery day resulting from the purchase and demand payment as if the same had been supplied on said day, provided that he keeps said goods available for the buyer at the latter's expense and risk. In that event, the seller shall also be entitled to cancel the contract in accordance with Section 8 of this Terms and Conditions. 4.3. All costs caused by or resulting from the drafting and delivery of the required documents shall be borne by the buyer, unless the opposite is explicitly agreed upon. 5. Delivery 5.1. The transport and delivery terms employed in quotations, contracts of sale or confirmations of purchase shall be interpreted in accordance with the description provided in the INCO terms applicable at the time of the contract, in so far as not otherwise provided in said documents and/or these conditions. 6. Damages on Delivery 6.1. Without prejudice, the seller shall only recognize damages to bags in excess of 1% of the total number of bags transported per shipment to the buyer’s destination and discuss with seller potential compensation applicable. 7. Payment, Security 7.1. If no other payment condition is agreed upon, payment of the agreed price invoiced by the seller shall be effected upon delivery, without deduction of any remittance expenses. 7.2. Irrespective of any understandings between the seller and the buyer with regard to the credit terms, the seller shall be entitled to require the buyer to provide adequate security for payment before effecting the delivery. If said security for payment is not provided or not considered satisfactory by the seller, the seller shall be entitled to defer fulfillment of his obligations under the contract by written notice. The seller shall then in no event be liable for any loss that the buyer may sustain as a result of said deferral. 8. Interest on Overdue Money 8.1. The buyer shall pay interest on any amount payable by it on account of or in relation to a contract governed by this Terms and Conditions or any other related contracts from when it becomes due for payment during the period that it remains unpaid, on demand or at times notified by the seller, calculated on daily balances. The rate to be applied to each daily balance is a rate equal to 4% per year above the rate quoted for that daily balance by the seller’s bankers (as nominated by the seller) on unsecured overdraft accommodation in excess of $100,000.00. 9. Retention of Title 9.1. Any and all goods delivered by the seller to the buyer shall remain the exclusive property of the seller - even after and despite processing or treatment - until all the seller's receivables relating to goods delivered or to be delivered (under the contract) or activities performed or to be performed for the buyer (under such a contract) have been fully settled and until any receivables due to non-fulfillment of such a contract (including expenses and interest) have been fully settled. 9.2. Goods that are subject to the retention of title for the seller pursuant to Section 9.1 shall in no event be sold and/or delivered to third parties, except as part of normal business operations. Nor may said goods be pledged for the benefit of third parties. 9.3. If the contract is cancelled by the seller and/or buyer and the goods are subject to a retention of title, the buyer shall place said goods immediately at the seller's disposal. 9.4. The buyer shall not be entitled to set off any claims he may have on the seller or, based on such claims, defer his obligation to place said goods at the seller's disposal. 10. Premature Cancellation 10.1. If any of the parties should default or continue to default on fulfilling any of their obligations towards the other party with regard to the term of delivery or credit term, or in the event of their moratorium, bankruptcy, death or liquidation, the other party shall be entitled to cancel the contract in whole or in part without any notice of default or intervention of the court by means of written notice being required, without prejudice to the right to claim damages. 11. Complaints and Liability 11.1. a) The goods delivered shall meet any requirements that may reasonably be expected. If, upon delivery, an item delivered does not meet the standards set out in the contract because it displays a defect in quality and/or composition, any complaints about it shall only be taken into consideration if submitted to the seller in writing within three weeks of delivery. b) If a defect only becomes apparent some time after delivery, the buyer may only invoke non-compliance of the item with the standards set out in the contract if he notifies the seller thereof within five working days after he has detected or reasonably should have detected said defect. c) In assessing whether and when a buyer reasonably should have detected a defect, the buyer's obligation to observe the standards of supervision and care dictated by practice and statutory regulations in respect of the storage of the goods shall be taken into account. 11.2. Without prejudice to the provisions of Section 11.1 above, the seller shall only have to take a complaint into consideration if the buyer has paid the relevant invoice or has placed the item in question at the seller's disposal. 11.3. If the item delivered proves not to meet the standards set out in the contract, the seller shall be entitled - if and in so far as the item delivered is still present and can still be taken back - to supply a substitute consignment within a maximum of 30 working days from the day on which the non-conformity was established. If the item in question cannot be taken back or if the substitute consignment does not meet the standards set out in the contract either, the buyer shall be entitled to cancel the contract with or without claiming damages or to retain the item delivered at a lower price to be set by means of arbitration if no agreement can be reached thereon. 11.4. Barring the seller's possible obligation to refund the paid purchase price or part thereof, the seller's liability for any damage sustained and/or yet to be sustained shall at all times be limited to the invoice amount of the goods supplied, even if the same have already been processed. The seller’s liability for damage, direct or consequential, of any nature and origin whatsoever, sustained by the other party due to shortcomings in the goods shall never exceed the invoice amount of the delivery in question. 11.5. The buyer shall indemnify the seller from third-party claims, unless the buyer demonstrates that said claims are the direct result of actions or omissions on the part of the seller. 12. Sampling and Analysis 12.1. The buyer may, prior to delivery, have an attested sampler take samples in triplicate in the customary manner. The buyer and the seller may stipulate that said sampling be monitored. If the buyer and the seller fail to reach agreement on designating an attested sampler, the buyer shall undertake to have the samples taken by DTS Food Laboratories (Dairy Technical Services Ltd., Kensington - VIC 3031, Australia) 12.2. Inspections of quality and/or composition shall be conducted in accordance with the methods employed by DTS Food Laboratories (Dairy Technical Services Ltd., Kensington - VIC 3031, Australia) at the time of the inspection if no other methods are agreed upon. 12.3. If no samples are taken at the time of delivery, sampling may take place at a later date. Assessment and analysis can then only provide an indication of the quality at the time and site of the delivery. The provisions of Sections 12.1 and 12.2 shall apply mutatis mutandis to this sampling. 12.4. In the event of any disputes about quality and/or composition, one of the samples referred to in Section 12.1 or, as the case may be, Section 12.3 shall be subjected to an analysis by the laboratory of the seller’s choice as soon as possible and in any event within fourteen days. The findings of the analysis shall be binding, without prejudice to each of the parties' right to demand a reappraisal within 10 working days of publication of the findings, which reappraisal shall consist of an analysis of a sample other than the one taken as specified in Section 12.1 or Section 12.3 conducted by an impartial laboratory that may be the same laboratory as hereinbefore referred to. The findings of the reappraisal shall be binding upon both parties. The associated costs shall be borne by the party ruled against as evidenced by the final findings of the analyses referred to. 13. Delivery in Installments 13.1. If delivery in installments is agreed upon, the called or delivered quantity shall be considered to constitute a separate contract in respect of the quality and other properties of the goods delivered as well as payment. 14. Force Majeure 14.1. If either of the parties should be obstructed from fulfilling their obligations due to force majeure (including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected), they shall inform the other party thereof forthwith. The other party shall then have the option of extending the contract by a maximum of thirty days or cancelling the same in writing without any mutual obligation to pay compensation. As soon as the cause of force majeure ceases to exist within the extended period, the obstructed party shall be authorised to fulfill the contract in so far as it was not cancelled and to require the other party to fulfill their obligations under the contract. 14.2. If delivery in installments is stipulated, these provisions shall apply to each individual installment. 15. Arbitration 15.1. The parties will endeavor to amicably resolve all questions, disputes or differences which arise between them on account of or in relation to a contract governed by this Terms and Conditions or any other related contracts by negotiation. 15.2. In the event that the parties are unable to reach a settlement by the process of negotiation, either wholly or in part, any unresolved questions, disputes or differences as between the parties with respect to a contract governed by this Terms and Conditions or any other related contracts or its subject matter shall be submitted to arbitration in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Arbitration Rules and to be held at Victoria Chapter. Victorian Chapter of Institute of Arbitrators & Mediators Australia (IAMA) is located at Level1, 190 Queen Street, Melbourne. 15.3. If there is any dispute concerning the amount of any money due or payable by either party to the other on account of or in relation to a contract governed by this Terms and Conditions or any other related contracts, a certificate as to the amount signed by the auditors for the time being of the party who is the creditor shall be conclusive evidence of such sum and binding on both parties. 16. Applicable Law 16.1. Any and all contracts entered into by and between the parties shall be governed by the law of Victoria in respect of which this Terms and Conditions shall be considered to constitute an addition and, in so far as not dictated otherwise by mandatory provisions, a departure. For the Arbitration Rules of The Institute of Arbitrators & Mediators Australia Arbitration Rules we refer to the applicable section of this website or to the following link: http://www.iama.org.au/pdf/IAMAAR_FastTrack07.pdf |
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