TERMS OF TRADE
The following terms of trade (“these Conditions”) apply to and form part of any sale between J Kliska & BJ Mitchell t/as
Fernhill Farm ("the Supplier") ABN 22 897 476 927 and the Customer for the sale of the Goods or Services by the Supplier
to the Customer.
These Conditions replace any previous terms and conditions.
1. Definitions and Interpretation
1.1 Where the context permits, the following expressions will have the meanings given to them:
"Business Day" means any day other than a Saturday, Sunday or a designated Public Holiday in
Victoria;
"Customer" means a party acquiring Goods or Services or Services from the Supplier;
“Goods” means products supplied or to be supplied by the Supplier to the Customer from time
to time.
"Intellectual
Property Rights" means all intellectual property rights, including all copyright, patents, trademarks,
design rights, trade secrets, domain names, know-how and other rights of a similar
nature, whether registrable or not and whether registered or not, and any applications
for registration or rights to make such an application;
“Order” is a written order to purchase clearly identified Goods or Services (including quantity,
specifications and other relevant matters) at a price specified in a Quotation signed by
or on behalf of the Customer;
"PPSA" means the Personal Property Securities Act 2009 (Cth);
“Quotation” is a quotation as to the price of specified Goods or Services given by the Supplier to
the Customer; and
1.2 "Services" means services performed or to be performed by the Supplier for the Customer from
time to time. In the interpretation of these Conditions, unless specified to the contrary:
(a) time is of the essence;
(b) words importing the singular include the plural and vice versa;
(c) words importing any gender include all other genders;
(d) a reference to a natural person includes a company or other corporate body and vice versa;
(e) a reference to any legislation, regulation, code or local law includes any modification, re-enactment or
substitution of it;
(f) the obligations on the part of a Customer who is a natural person includes his heirs, executors,
administrators and assigns; and
(g) the obligations on the part of a Customer which is a company or other corporate body includes its
successors and assigns.
1.3 Any obligation imposed by these Conditions on a Customer comprised of two or more persons (whether
natural, corporate or a combination of the two) binds them jointly and each of them severally.
1.4 The Customer may not, without the consent of the Supplier, raise a set off or counterclaim available to it
against the Supplier in reduction of its liability under these Conditions;
1.5 Clause headings are for ease of reference only and are not intended to affect the construction or
interpretation of these Conditions.
1.6 If the time for performing any obligation under these Conditions expires on a non-Business Day, then
time is extended until the next Business Day.
1.7 A waiver by the Supplier of a default by the Customer under these Conditions will not constitute a waiver
of another or continued default of the same nature or any other provision of these Conditions.
1.8 In the event that any or part of these Conditions is held to be unenforceable, the unenforceable part shall
be severed and the remainder of these Conditions shall remain in full force and effect.
1.9 These Conditions embody the entire agreement and understanding between the parties concerning its
subject matter, and succeeds and cancels all other agreements, understandings and representations concerning
the subject matter of these Conditions.
1.10 These Conditions can be varied by either party at any time, provided written notice of the variation is given to
the other party and upon receiving written notice of the variation, it is given the opportunity to negotiate the
proposed variation. Such variation will apply to all Orders and Quotations received after the date the proposed
variation is agreed.
1.11 These Conditions are to be governed by and construed in accordance with the laws of the State of Victoria and
the parties submit to the exclusive jurisdiction of the state and federal courts located in Victoria.
2. Formation of Contract
2.1 Quotations issued by the Supplier will not constitute an offer to sell specified Goods or Services at a
specified price, but rather will constitute an invitation to the Customer to make an offer to purchase the specified
Goods or Services at the quoted price by placing an Order. A contract for the supply of Goods or Services by
the Supplier to the Customer is formed when the Supplier accepts an Order.
2.2 These Conditions apply to and form part of every contract for the supply of Goods or Services by the
Supplier to the Customer. Orders are only accepted upon and subject to these Conditions.
2.3 Any qualification, addition, variation or provision which conflicts with these Conditions which appears on
the Customer’s Order shall not form part of the contract between the Supplier and the Customer unless such
change appears on the face of the order duly accepted by an authorised person of the Supplier or is otherwise
confirmed by the Supplier in writing.
3. Pricing
3.1 Goods or Services are invoiced at the prices current on the date of delivery.
3.2 All prices quoted are in Australian dollars.
3.3 All Goods or Services must be paid cash on delivery (COD) by the Customer, except where the Supplier
and Customer have agreed otherwise.
3.4 Any tax (including GST) or other duty on the production, sale, shipment or supply of any Goods or Services
sold by the Supplier now imposed or hereafter becoming effective shall be added to the price quoted and shall
be paid by the Customer to the Supplier.
3.5 Delivery charges will be charged to the Customer by the Supplier unless otherwise agreed by the Supplier
in writing.
3.6 If after acceptance of an Order and up until and including the date of delivery there are increases in the
costs incurred by the Supplier due to fluctuations in the cost of raw materials, the Goods themselves, currency
exchange rates, duty rates, freight rates or any other factors beyond the control of the Supplier, the Supplier
reserves the right to increase the prices to include allowance for such increased costs by notice in writing to
the Customer, at which point the Customer has the right to terminate the contract.
4. Delivery
4.1 The Supplier shall arrange delivery of the Goods or Services to the location agreed by the Supplier and
the Customer unless the Customer has arranged to collect the Goods or Services from the Supplier.
4.2 The Supplier will not be liable for any loss or damage which may be suffered by the Customer (including
consequential loss or damage) arising out of a delay in the delivery of Goods or Services.
4.3 The Supplier reserves the right to deliver any one or more consignments as part delivery with each
consignment to be paid for in accordance with these Conditions.
4.4 The Customer must notify the Supplier of any damage to Goods, defective Goods or Services or short
delivery within 24 hours of delivery, failing which the Customer will cease to have a claim for the damage,
defects or short delivery.
4.5 If the Supplier determines (acting reasonably) that the delivery contained a shortfall or damaged or
defective Goods then the Supplier will arrange for any missing, damaged or defective items to be dispatched
to the Customer.
4.6 Risk for any loss or damage to the Goods from whatever cause shall be borne by the Customer from the
time the Goods are dispatched or collected by the Customer from the Supplier's premises.
4.7 The Customer will be responsible for and indemnifies the Supplier for loss or damage to the Goods from
the time of delivery.
5. Default
5.1 The Customer is in default if:
(a) it breaches any of these Conditions and either the breach cannot be remedied or, if it can be remedied,
fails to remedy it within 7 days after receiving written notice of the breach;
(b) it fails to make a payment to the Supplier by its due date;
(c) being a natural person it commits an act of bankruptcy;
(d) being a corporation it has an administrator, receiver, receiver and manager, provisional liquidator,
liquidator or controller appointed over its assets; or
(e) it has any execution levied against its property.
5.2 In the event of a default, the Supplier will be entitled, without the obligation to give any notice to the
Customer, and in addition to any other rights, to:
(a) payment of interest on all overdue accounts at the rate of 2% per calendar month, calculated daily
and capitalised monthly, for each day that the amount is overdue;
(b) the commission it may have to pay to any recovery agent arising from such default or in recovering
overdue amounts;
(c) its actual legal costs on an indemnity basis incurred in relation to such default or in recovering overdue
amounts or in otherwise seeking compliance with these Conditions;
(d) immediate payment for all outstanding Goods or Services, the payment which would otherwise not
have been then due and payable;
(e) disallow any discounts otherwise claimable by the Customer;
(f) terminate or suspend delivery of any order which is the subject of any other sale between the Supplier
and the Customer; and
(g) treat the Customer's default as repudiation or any existing contract for the purchase of Goods or
Services and recover any unpaid sum plus the interest, recovery agent’s costs, and legal costs referred
to in (a), (b) and (c) above from the Customer by way of liquidated damages.
5.3 The Supplier is in default if:
(a) it breaches any of these Conditions and either the breach cannot be remedied or, if it can be remedied,
fails to remedy it within 7 days after receiving written notice of the breach;
(b) being a natural person it commits an act of bankruptcy;
(c) being a corporation it has an administrator, receiver, receiver and manager, provisional liquidator,
liquidator or controller appointed over its assets; or
(d) it has any execution levied against its property.
5.4 In the event of a default, the Customer will be entitled, without the obligation to give any notice to the
Supplier, and in addition to any other rights, to terminate any outstanding orders by written notice, provided
that it must still pay for Services provided or Goods delivered prior to the termination.
5.5 If these conditions are terminated or expire for any reason, then, in addition and without prejudice to any
other rights or remedies available:
(a) the parties are immediately released from their obligations under these Conditions except those
obligations listed in clauses 5 (Default), 10 (Limitation of Liability and Indemnity), and 11 (Intellectual
Property) and any other obligations that, by their nature, survive termination; and
(b) each party retains the claims it has against the other in respect of prior breaches of these Conditions.
6. Returns
6.1 Goods will not be accepted for return or credit without the prior approval of the Supplier, which may be
granted with or without conditions or withheld at its unfettered discretion.
6.2 Without limiting the previous subclause, the Supplier may impose an administrative charge or surcharge
on any return and provide a refund in the form of a credit against future orders or may replace the Goods as it
determines, solely at its discretion.
6.3 The Supplier may in its absolute discretion require the Customer to pay any charge, levy or tax associated
with the return of Goods including, but not limited to, freight costs.
7. Title and Property in Goods
7.1 Title to and ownership of and property in the Goods shall pass to the Customer only upon the Supplier
receiving payment in clear funds of the full purchase price and any freight charges, taxes and interest or other
monies due and while the Goods remain the property of the Supplier the Customer holds them on trust for the
Supplier and the Customer shall store or keep them in a manner which clearly identifies them as the property
of the Supplier.
7.2 If the Customer defaults under these Conditions, all of the Customers rights, including the right to be paid
any money, under any contract pursuant to which the Customer has hired, sold or otherwise provided the
Goods or any part of them, whether separately or together with other things, to third parties are automatically
assigned to the Supplier with effect from the date of the default, but only to the extent necessary to enable the
Supplier to recover the amount owed to it by the Customer.
7.3 Until the Customer pays all amounts it owes to the Supplier:
(a) the Customer must keep all Goods insured against theft, damage and destruction on behalf of the
Supplier (and if the Customer fails to insure the Goods the Supplier may do so and invoice the Customer
for the cost of insurance);
(b) the Supplier may enter premises where the Goods are stored to inspect them on reasonable notice;
and
(c) the Customer acknowledges that it holds the Goods as a bailee on behalf of the Supplier.
7.4 The Customer may on-sell the Goods prior to payment in full of the purchase price as agent for the
Supplier provided that the proceeds received from the on-sale are held on trust for the Supplier until payment
in full of the purchase price and are not mixed with other funds of the Customer until the purchase price is paid
to the Supplier. The Customer agrees to indemnify the Supplier on a full indemnity basis and hold the Supplier
harmless from liability for any loss damage or cost arising from any inaccurate or incomplete representations
to third parties.
7.5 If any Goods are used in a manufacturing process or mixed with other materials, the Customer must
record the value of Goods so consumed in relation to each unit of finished product and upon sale of any unit of
finished product immediately hold that amount on trust for and remit that amount from the proceeds of sale to
the Supplier.
7.6 If the Customer does not pay for any Goods on the due date, the Supplier is irrevocably authorised by the
Customer to enter the Customer’s premises (or any premises under the control of the Customer or as agent of
the Customer if the Goods are stored at other premises) and use reasonable force to take possession of the
Goods without liability for the tort of trespass, negligence or payment of any compensation to the Customer or
anyone claiming through the Customer whatsoever.
7.7 If any of the Goods are not paid for in full by the due date, the Customer must not allow any person to
create, have or acquire any security interest in the Goods.
7.8 The Customer acknowledges that the Supplier holds a security interest capable of registration pursuant
to the PPSA in all Goods (including all present and after-acquired Goods which have not been paid for) and in
all present and after acquired personal property of the Customer to secure payment of the amount the Customer
owes to the Supplier from time to time. The Customer further acknowledges that the security interest will
continue until the Supplier gives a final release in respect of it.
7.9 The Customer acknowledges and agrees that the Supplier may take all necessary steps to register its
security interest under the PPSA, and hereby irrevocably consents to the Supplier doing so. The Customer
further undertakes to promptly provide any information or supply any documentation and do all such things as
required by the Supplier to enable it to perfect its security interest in the Goods in accordance with the PPSA.
7.10 The Customer acknowledges that the Goods constitute commercial property and hereby waives its right to
receive notification from the Supplier of the registration of the security interest pursuant to section 157(3) of
the PPSA.
8. Fitness for Purpose
8.1 The Customer acknowledges that it has made due inquiry and relies on its own skill and judgment when
deciding whether the Goods or Services are fit for purpose.
8.2 It is the Customer's responsibility to satisfy itself that Goods or Services are of a description, quality and
character suitable for the purpose for which they are purchased and, to the extent permitted by law, the
Supplier shall not be liable in any way for any loss or damage (including direct, indirect or consequential) arising
from the failure of the Customer to so satisfy itself.
9. Information and Warranties
9.1 All samples, drawings, descriptive matter and specifications issued by the Supplier are issued or published
for illustration only and do not form part of the Quotation or the Order unless specifically referred to therein.
9.2 The Supplier will not be liable for any losses or damage, either directly or indirectly incurred by the use
of or in reliance upon the information provided therein or for any errors, omissions or inaccuracies in the
information provided.
9.3 The Supplier, if applicable, assigns to the Customer any warranty received from the original manufacturer
of the Goods so far as the Supplier is permitted to do so.
10. Limitation of Liability and Indemnity
10.1 To the extent permitted by law, we exclude all statutory or implied conditions and warranties and any other
liability we may have to you (including liability for indirect or consequential loss) that may arise under statute
or at law including without limitation for breach of contract, in tort (including negligence) or under any other
cause of action.
10.2 To the extent permitted by law, we limit our liability which cannot be legally excluded under all statutory or
implied conditions and warranties and any other liability we may have to you (including liability for indirect or
consequential loss) that may arise under statute or at law including without limitation for breach of contract, in
tort (including negligence) or under any other cause of action, to whichever of the following we determine at
our discretion:
• supplying equivalent Goods or Services again; or
• paying of the cost of acquiring equivalent Goods or Services again.
10.3 The Customer must give the Supplier written notice of any claim it may have against the Supplier in connection
with the Goods or Services the Supplier supplies to the Customer within 12 months of when the Supplier
supplies them to the Customer failing which the Supplier will not be liable for that claim.
10.4 The Customer indemnifies the Supplier against all reasonable costs (including legal costs), expenses, damages,
accounts or other losses or liability, including those arising from any actions, suits, proceedings, claims or
demands, made against or suffered by the Supplier, arising out of the Supplier supplying the Goods or Services
in accordance with these Conditions or arising out of the Customer breaching any of the Customer's obligations
(which includes any negligent act or omission by the Customer or its agents) under these Conditions.
11. Intellectual Property and Confidentiality
11.1 Ownership of all Intellectual Property Rights (other than third party Intellectual Property Rights) associated
with the Goods or Services and any related documentation provided to the Customer pursuant to the Order
belongs to and will vest in the Supplier.
11.2 Nothing stated in these Conditions shall be construed as an implied or express transfer of the Intellectual
Property Rights to the Customer or any other party.
11.3 The Customer shall not use any of the Supplier's Intellectual Property Rights including copyright, trademarks,
logos, know-how and any other type of intellectual property belonging to the Supplier without the prior written
consent of the Supplier.
11.4 Any information which is marked confidential or by its nature would reasonably be regarded as confidential,
that is disclosed by the Supplier to the Customer is the property of the Supplier; and is secret, confidential and
valuable to the Supplier, and the Customer will treat all such confidential information it receives from the
Supplier in the strictest confidence.
12. Force Majeure
Without prejudice to any other provision hereof the Supplier will not be liable for any failure to fulfil any terms of any
agreement or inability to supply any Goods or Services if such fulfilment is delayed, hindered or prevented by any
circumstances not within the Supplier's direct control including without limiting the generality of the foregoing strikes or
lock-outs, material shortages, the Supplier's suppliers’ failure to supply, labour disputes, war, hostilities or the threat or
apprehension thereof or compliance with any order or request or mandate of any competent government authority or
department or court of law.