Sales Terms & Conditions
TERMS & CONDITIONS OF SUPPLY (''TERMS'')
1. In these Terms:
1.1 “Card Surcharge” means the amount as determined by the Supplier and as detailed in the Invoice to be charged to the Purchaser if the Purchaser pays the Price by way of credit or debit card payment;
1.2 “Delivery Fee” means the amount set out in the Invoice for delivery of the Goods by the Supplier to the Purchaser excluding GST;
1.3 “Goods” means the goods to be supplied by the Supplier to the Purchaser as detailed in the Invoice;
1.4 “GST” means goods and services tax payable under the GST Law;
1.5 “GST Law” has the same meaning as the definition of “GST law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
1.6 “Interest Rate” means the rate of 2% per month;
1.7 “Invoice” means the invoice issued by the Supplier to the Purchaser which details the Goods and the Price;
1.8 “Minimum Order Amount” means an amount of $250.00 excluding GST and the Delivery Fee;
1.9 “Supplier” means Drivepark Pty Ltd ABN 61 008 112 972 trading as Austral Meat as named in the Invoice;
1.10 “Price means the total amount payable for the Goods as detailed in the Invoice, including applicable GST, and the Delivery Fee to the Purchaser; and
1.11 “Purchaser” means the purchaser of the Goods detailed in the Invoice.
2. These Terms will apply to the supply of Goods to the Purchaser despite any conflicting terms proposed by the Purchaser, unless waived in writing by the Supplier.
Supply of the Goods
3. The Supplier agrees to supply the Goods and the Purchaser agrees to purchase the Goods on these Terms.
4. The Supplier may charge the Purchaser a surcharge on all orders placed by the Purchaser below the Minimum Order Amount. Any surcharge charged by the Supplier pursuant to this clause 4 will be detailed on the Invoice.
5. The Supplier acknowledges and agrees that the Supplier has the ability to charge the Card Surcharge for the Price if the Price is to be paid by the Purchaser by way of a credit or debit card.
6. Unless otherwise agreed by the Supplier in writing, the Purchaser must pay the Price without deduction in accordance with the payment terms detailed in the Invoice.
7. The Supplier may charge the Purchaser interest at the Interest Rate on the daily balance of any amounts outstanding to be paid to the Supplier. The Supplier reserves the right to charge interest at the Interest Rate retrospectively on any previously outstanding amounts which have not incurred interest charges.
8. In the event of non-payment of the Price in accordance with these Terms, the Purchaser will pay all reasonable collection expenses, legal costs and any other expenses incurred by the Supplier in connection with the non-payment.
9. If payment of the Price is not made by the Purchaser in accordance with these Terms, the Purchaser acknowledges and agrees that the Supplier has the right (without prejudice to any other rights and remedies it may have) to recover, remove and/or resell the Goods. For that purpose, the Supplier’s employees, agents or workers may without notice enter any place the Supplier believes the Goods to be without committing a trespass.
10. The Supplier will have no obligation to make good any damage caused by such recovery or removal and the Supplier will not be liable for and the Purchaser will indemnify the Supplier against any costs, claims, damages or losses suffered by the Purchaser as a result of such removal.
Title and Risk
11. In relation to all Goods:
11.1 title in the Goods will not pass to the Purchaser until the Price is paid in full in cleared funds;
11.2 risk in the Goods will pass to the Purchaser immediately upon delivery to or collection of the Goods or, where a third party freight supplier is used, when the Goods are handed over to the freight supplier;
11.3 until the Supplier receives full payment of the Price, the provisions of clause 12 apply and the Supplier has the right (without prejudice to any other rights and remedies it may have) to recover, remove and/or resell the Goods free from any claims by the Purchaser in accordance with clause 9; and
11.4 the Purchaser will indemnify the Supplier against any costs, claims, damages or losses suffered by the Supplier or a third party as a result of the Purchaser’s inability to pay the Price for the Goods.
12. In relation to all Goods, if the Purchaser has not paid the Price but sells or otherwise disposes of the Goods or any part of them, the monies received in respect of the disposal of the Goods will be held on trust by the Purchaser for the Supplier and will be payable immediately to the Supplier on demand.
13. Subject to clause 14, the Supplier will deliver the Goods to the Buyer on the delivery date at the delivery location for the Delivery Fee as detailed in the Invoice.
14. The Supplier will not be liable for any claim or loss incurred or suffered by the Purchaser as a result of delay in the delivery of the Goods by the Supplier.
Personal Property Securities Act 2009 (Cth) ("PPSA")
15. Where the Supplier has supplied Goods to the Purchaser but where title in the Goods has not yet passed to the Purchaser, the Purchaser acknowledges and agrees that:
15.1 these Terms constitute a Security Agreement for the purposes of the PPSA;
15.2 the Purchaser will grant the Supplier a purchase money security interest under the PPSA in the Goods and their proceeds and/or a security interest in all of the Purchaser’s present and after acquired property in order to secure all amounts owed to the Supplier by the Purchaser (“Security Interest”);
15.3 the Supplier may register the Security Interest on the Personal Property Securities Register (“PPSR”);
15.4 it will undertake to do all things necessary and provide the Supplier on request all information the Supplier requires to register a financing statement or financing change statement on the PPSR;
15.5 it undertakes not to change its name in any form or other details on the PPSR without first notifying the Supplier; and
15.6 it will, if required by the Supplier, pay to the Supplier the cost of registering and maintaining registration of the Purchaser’s Security Interest on the PPSR, within 14 days of the request.
16. The Supplier need not give any notice under the PPSA (including a verification statement or a financing change statement) unless the notice is required by the PPSA and cannot be excluded.
17. No party may disclose information of the kind referred to in section 275(1) of the PPSA (except where the parties may do so and where required due to the operation of section 275(7) of the PPSA) and the Purchaser must not authorise the disclosure of such information.
18. The Purchaser appoints the Supplier as its attorney to sign in the Purchaser’s name all documents which are necessary to enforce and to protect its rights under these Terms.
19. The Purchaser agrees that to the maximum extent permitted by law, it waives any rights it may have pursuant to, and the parties contract out of, sections 95, 118, 123, 125, 128, 129, 130, 132(1), 132(4), 135, 142 and 143 of the PPSA.
20. The Purchaser acknowledges that unless otherwise defined in these Terms, the terms and expressions used in this clause 15 to 19 have the meanings given to them, or by virtue of, the PPSA.
21. The Purchaser will indemnify and will continue to indemnify the Supplier against any liability, loss, damage, claim, action, demand, costs, or expenses incurred or suffered by the Supplier, including, but not limited to:
21.1 any breach of these Terms by the Purchaser;
21.2 any breach of any applicable laws by the Purchaser;
21.3 any act or omission (negligent or otherwise) by the Purchaser; or
21.4 any action or trespass resulting from the Supplier entering the location in accordance with clause 9 except to the extent that the claim results from the negligence, fault or willful misconduct of the Supplier.
22. Subject to clause 25, the Supplier indemnifies and keeps indemnified the Purchaser against any and all claims suffered or incurred by the Purchaser arising out of any material breach by the Supplier of these Terms.
23. Notwithstanding any other provision of these Terms, under no circumstances whatsoever will either party be liable for any indirect or consequential loss or damage (including loss of profit or loss of opportunity).
24. These limitations and indemnities continue after the expiration or termination of these Terms.
25. To the maximum extent permitted by law:
25.1 all conditions or warranties in respect of the Goods, express or implied, statutory or otherwise, are excluded; and
25.2 the sole liability of the Supplier to the Purchaser under or in connection with these Terms is either (at the election of the Supplier) the resupply of the defective Goods to the Purchaser, or refund of the price paid by the Purchaser for the defective Goods.
26. These Terms may be terminated at any time by mutual agreement between the parties.
27. These Terms may be immediately terminated by the Supplier if:
27.1 the Purchaser is in breach of these Terms and fails to remedy that breach within 7 days of receiving notice to do so;
27.2 the Purchaser fails to pay any amount outstanding to the Supplier after receiving 7 days’ prior notice that the amount is outstanding; or
27.3 the Purchaser becomes bankrupt or insolvent.
28. To the maximum extent permitted by law, the Purchaser will inspect the Goods upon delivery of the Goods and must advise the Supplier in writing on the same day of its receipt of the Goods of any defects in the Goods for any action to be considered by the Supplier.
29. The Goods must be returned to the Supplier at the Purchaser’s expense.
30. Except where disclosure is required by law or must be made to a legal advisor, both the Supplier and the Purchaser will keep confidential these Terms and any other information that is designated by the Supplier as confidential or any information that the Purchaser knows or ought to reasonably know is confidential.
31. These Terms are to be governed and interpreted in accordance with the laws of the State of South Australia. The parties agree to submit themselves to the non-exclusive jurisdiction of the courts of South Australia and any competent appellate courts.
32. Any notice to be given by one party to the other must be signed by the party giving the notice or by one of its duly authorised officers. The notice may be faxed to the intended recipient’s facsimile number or e-mailed to the intended recipient’s e-mail address. The notice will be deemed to have been received by the intended recipient upon receipt by the sender of a successful facsimile transmission answerback or in the case of e-mail, on the day of transmission provided that the sender is able to give evidence of transmission and the intended recipient does not give evidence of non-receipt.
33. The Supplier may add to or vary these Terms from time to time on 7 days’ written notice to the Purchaser.
34. The privacy of the Purchaser’s personal and credit related personal information (“credit information”) is important to the Supplier. The Supplier is committed to respecting the Purchaser’s right to privacy and protecting any personal or credit information provided by the Purchaser to the Supplier.
36.1 the purposes for which the Purchaser’s personal or credit information is collected;
36.2 the consequences if the Purchaser’s personal or credit information is not provided to the Supplier;
36.3 the third parties to which the Supplier discloses the Purchaser’s personal or credit information;
36.4 how the Purchaser may seek access or correction of their personal or credit information;
36.5 information about credit reporting, including the credit reporting bodies to which we may disclose your personal or credit information;
36.6 matters associated with credit reporting that must be notified to you in accordance with the Privacy Act;
36.7 whether the Purchaser’s personal or credit information is likely to be disclosed to overseas entities and in which countries these entities reside; and
36.8 how the Purchaser may complain about a breach of the Supplier’s obligations in respect of the Purchaser’s personal information and how such a complaint will be dealt with.
37. The parties may only assign their interests under these Terms with the prior written consent of the other party which must not be unreasonably withheld.
38. Every provision of these Terms will be deemed severable as far as possible from the other provisions of these Terms. If any provision is found to be void, illegal or unenforceable for any reason, it will be deemed to be severed and omitted from these Terms. These Terms, with the offending provision severed and omitted and with any consequential amendment necessary, will otherwise remain in full force.