Terms and Conditions

Terms of Trade – New West Foods (WA) Pty Ltd

2. 1. Definitions

Additional Charge means:

3. 2. 1. fees or charges for additional work performed at the Customer's request or reasonably required as a result of the Customer's conduct, calculated in accordance with the Supplier's then current prices; and
      2. expenses incurred by the Supplier, at the Customer's request or reasonably required as a result of the Customer's conduct.

Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Goods are being provided.

Customer means the person identified on a Quote or Order as the customer and includes the Customer's agents and permitted assigns.

Goods means all goods, and services (if any), supplied by the Supplier to or at the direction of the Customer.

Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trademarks, patents and registered designs.

Loss includes, but is not limited to, costs (including the Supplier's legal costs), expenses, lost profits, award of damages, personal injury and property damage.

Order means a purchase order for Goods placed by a Customer, accepted by the Supplier, and as varied in writing from time to time by the parties.

PPS Law means:

1. 3. 3. the Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time); and
      4. any amendment made at any time to any other legislation as a consequence of a PPS Law.

Quote means a written description of the Goods to be provided and may include the Supplier's estimated charges and an estimate of the time frame for supply of the Goods.

Supplier means the seller of the Goods, being New West Foods (WA) Pty Ltd ABN 20 009 311 540 (including its successors or assigns).

2. 4. Interpretation

Nothing in these terms of trade exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by the Australian Consumer Law (including the Competition and Consumer Act 2010 (Cth)) which by law cannot be excluded, restricted or modified.

In these terms of trade, unless the context otherwise requires:

3. 5. 5. a reference to writing includes email and other communication established through the Supplier's website (if any);
      6. the singular includes the plural and vice versa;
      7. a reference to a clause or paragraph is a reference to a clause or paragraph of these terms of trade;
      8. a reference to a party to these terms of trade or any other document or arrangement includes that party's executors, administrators, successors and permitted assigns;
      9. where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
      10. headings are for ease of reference only and do not affect the meaning or interpretation of these terms of trade; and
      11. if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
          1. if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
          2. in all other cases, must be done on the next Business Day.

5. 6. 12. These terms of trade apply to all transactions between the Customer and the Supplier relating to the provision of Goods. This includes all quotations, contracts and variations. These terms of trade take precedence over terms of trade contained in any document of the Customer or elsewhere.
      13. The variation or waiver of a provision of these terms or a party's consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
      14. The Supplier may amend any details in a Quote by notice in writing to the Customer. Such amended details supersede any relevant prior detail in dealings between the parties.
      15. The Customer charges any interest that it has in any real property (land) with the due payment of all monies payable to the Supplier from time to time, and the Customer consents to the Supplier lodging a caveat over such interest in relation to those monies.

7. 7. 16. The Supplier may provide the Customer with a Quote. Any Quote issued by the Supplier, unless withdrawn by the Supplier in its absolute discretion or issued in error by the Supplier or issued with an error on the Quote, is valid for the period of time listed on the Quote or in the absence of any indication on the Quote then 30 days from the date of issue.
      17. Unless otherwise expressly agreed in writing or set out in the Quote, a Quote does not include delivery of the Goods.
      18. Following provision of a Quote to the Customer, the Supplier is not obliged to commence work until the Quote has been accepted by the Customer and the Order has been accepted by the Supplier.
      19. The Supplier reserves the right to amend any Quote before the Order has been completed to take into account any rise or fall in the cost of completing the Order. The Supplier will notify the Customer of any amendment as soon as practicable, at which point the amended Quote will be the estimate or Quote for the purposes of these terms of trade.
      20. An indication in a Quote of the time frame for the provision of the Goods is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, this estimate is not binding upon the Supplier.
      21. Unless otherwise stated all prices quoted by the Supplier are exclusive of Goods and Services Tax (GST).

9. 8. 22. Unless otherwise agreed by the Supplier, every Order by the Customer for the provision of Goods must be submitted in writing on the Supplier's standard Order form.
      23. An Order will only be deemed to be placed by the Customer if the Order clearly identifies the Goods ordered and the Supplier's Quote (if any). Any costs incurred by the Supplier in reliance on incorrect or inadequate information provided by the Customer in an Order may result in the imposition of an Additional Charge.
      24. Orders must be signed by an authorised representative of the Customer and must specify the required date of delivery.
      25. Placement of an Order by the Customer signifies acceptance by the Customer of these terms of trade and the most recent Quote provided by the Supplier relating to that Order.
      26. The Supplier may in its absolute discretion refuse to provide Goods where:
          1. Goods are unavailable for any reason whatsoever;
          2. credit limits cannot be agreed upon or have been exceeded; or
          3. payment for Goods previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of the Supplier, associated with the Customer under the same or another supply contract, has not been received by the Supplier.
      27. An Order cannot be cancelled without the prior written consent of the Supplier. Where an Order is cancelled, the Customer indemnifies the Supplier against any Losses incurred by the Supplier as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.

11. 9. 28. The Customer may request that its Order be varied by providing a request in writing to the Supplier. A request for a variation must be agreed to in writing by the Supplier in order to have effect.
       29. If the Customer wishes to vary its requirements after a Quote has been prepared by the Supplier or after the placement of an Order, the Supplier reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred due to the variation. A revised Quote issued by the Supplier in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote
       30. The Supplier has an automatic extension of time for the provision of the Goods equal to the delay caused by the variation.

13. 10. 31. The Supplier may in its absolute discretion, issue an invoice to the Customer in any one or more of the following ways:
            1. prior to commencing the provision of the Goods, for an amount equal to the Quote and Additional Charges where the Supplier has not previously carried out work for the Customer or where the Supplier chooses to do so in its absolute discretion;
            2. at the end of each week, month or other period that the Supplier elects in its absolute discretion, before the Order is completed, the Supplier may issue one or more invoices for a proportion or the whole of the amount of the Quote (the proportion to be calculated at the Supplier's discretion either for work done to that point, work in the future or both) and require that proportion of the Quote be paid in advance of any further Goods being provided; or
            3. upon completion of the provision of the Goods or any time thereafter, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing the Supplier's charge for the Goods supplied and for any Additional Charges.
        32. The amount payable by the Customer will be the amount set out in the invoice. This will be calculated as:
            1. the amount for the Goods as set out in the Quote and any Additional Charges, or
            2. where no Quote has been provided by the Supplier, the Supplier’s usual charges for the Goods.
        33. The Customer must pay an invoice issued by the Supplier to the Supplier within the timeframe stated on the Supplier’s tax invoice, or if no timeframe is stated then within 1 day of a valid tax invoice being issued to the Customer
        34. If any invoice is due but unpaid, the Supplier may withhold the provision of any further Goods until overdue amounts are paid in full.
        35. The Supplier may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to the Supplier.
        36. The Customer is not entitled to retain any money owing to the Supplier notwithstanding any default or alleged default by the Supplier of these terms of trade, including (but not limited to) the supply of allegedly faulty or defective Goods, provision of services to an inadequate standard or a delay in the provision of Goods. Nothing in this paragraph affects the Customer's rights for any alleged failure of a guarantee under the Australian Consumer Law.
        37. The Customer is to pay the Supplier on demand interest at the rate of 15% per year on all overdue amounts owed by the Customer to the Supplier, calculated daily.
        38. All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of the Supplier, are to be paid by the Customer as a debt due and payable under these terms of trade.
        39. The Customer and the Supplier agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.

15. 11. 40. The Supplier may require the Customer to pay Additional Charges in respect of Costs incurred by the Supplier as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by the Supplier in order for it to provide the Goods within the specified time frame (if any).
        41. The imposition of Additional Charges may also occur as a result of:
            3. cancellation by the Customer of an Order where cancellation results in Loss to the Supplier;
            4. storage costs for Goods not collected from the Supplier at the agreed time;
            5. delivery, packing or handling charges not included in the Quote, including any additional costs arising where the Customer fails to take delivery of the Goods at the agreed time;
            6. taxes not included in the Quote; or
            7. additional work required by the Customer or any other occurrence which causes the Supplier to incur costs in respect of the Customer's Order additional to the quoted cost.

If the Customer fails to advise the Supplier in writing of any fault in Goods or failure of Goods to accord with the Customer's Order within 24 hours of delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer's Order. Nothing in this paragraph affects the Customer's rights for any alleged failure of a guarantee under the Australian Consumer Law.

18. 12. 42. Risk in Goods passes to the Customer:
            4. immediately upon delivery where the Supplier is responsible for providing delivery;
            5. immediately upon collection from the Supplier where the Supplier the Customer or its appointed transport provider collects the Goods; or
            6. where there is a delay of 12 hours or more from the agreed time in:
               1. the Customer accepting delivery of the Goods from the Supplier; or
               2. the Customer (or its appointed transport provider) collecting the Goods from the Supplier.
        43. Property and title in Goods supplied to the Customer under these terms of trade does not pass to the Customer until all money (including money owing in respect of other transactions between the Supplier and the Customer) due and payable to the Supplier by the Customer have been fully paid.
        44. Where Goods are supplied by the Supplier to the Customer without payment in full, the Customer:
            1. is a bailee of the Goods until property in them passes to the Customer;
            2. irrevocably appoints the Supplier to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of the Supplier with respect to the Goods under applicable law;
            3. must be able upon demand by the Supplier to separate and identify as belonging to the Supplier Goods supplied by the Supplier from other goods which are held by the Customer;
            4. must not allow any person to have or acquire any security interest in the Goods;
            5. agrees that the Supplier may repossess the Goods if payment is not made by the due date (or such longer time as the Supplier may, in its complete discretion, approve in writing); and
            6. the Customer grants an irrevocable licence to the Supplier or its agent to enter the Customer's premises in order to recover possession of Goods pursuant to this paragraph. The Customer indemnifies the Supplier for any damage to property or personal injury which occurs as a result of the Supplier entering the Customer's premises.
        45. Despite clause 9(c), the Customer may transfer, sell or dispose of Goods, to a third party in the ordinary course of business. This is provided that:
            1. where the Customer is paid by a third party in respect of Goods, the Customer holds the whole of the proceeds of sale, less any GST, on trust for the Supplier, until all amounts owned by the Customer to the Supplier have been paid; or
            2. where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the third party to the Supplier upon the Supplier giving the Customer notice in writing to that effect and for the purpose of giving effect to that assignment the Customer irrevocably appoints the Supplier as its attorney.

20. 13. 46. These terms of trade constitute a security agreement.
        47. The interest of the Supplier in the Goods and all proceeds from the sale of the Goods by the Customer to a third party is a security interest.
        48. The Customer consents to the Supplier registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by the Supplier to facilitate registration.
        49. Until title in the Goods has passed to the Customer, the Buyer agrees not to in any way assign, charge, or otherwise deal with the Goods in such a manner as to create, a security interest over, the Goods in favour of the Customer or any third party, the parties agree that this clause will not prohibit the Customer from selling the Goods in the ordinary course of business.
        50. The Customer waives its rights to receive any notice under PPSA (including notice of verification statement) unless the notice is required by the PPSA and cannot be excluded.
        51. The Supplier and Customer agree that this agreement and all related information and document(s) are confidential and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by these terms of trade or required by law.
        52. Expressions defined in the PPSA have the same meaning when used in these terms of trade.

22. 14. 53. The Customer warrants that it owns all Intellectual Property Rights pertaining to its Order for Goods or has a licence to authorise the Supplier to reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied by the Customer to the Supplier for the purposes of the Order. Further, the Customer indemnifies and agrees to keep indemnified the Supplier against all Losses incurred by the Supplier in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by the Customer.
        54. Unless specifically agreed in writing between the Supplier and the Customer, all Intellectual Property Rights in any works created by the Supplier on behalf of the Customer vest in and remain the property of the Supplier.
        55. Subject to payment of all invoices due in respect of the Goods, the Supplier grants to the Customer a perpetual, non-exclusive licence to use the works created or produced by the Supplier in connection with the provision of Goods under these terms of trade for the purposes contemplated by the Order.

24. 15. 56. The Customer agrees that the Supplier may at any time appoint or engage an agent to perform an obligation of the Supplier arising out of or pursuant to these terms of trade.
        57. The Supplier has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these terms of trade provided that the assignee agrees to assume any duties and obligations of the Supplier owed to the Customer under these terms of trade.
        58. The Customer is not to assign, or purport to assign, any of its obligations or rights under these terms of trade without the prior written consent of the Supplier.

26. 16. 59. Each of the following occurrences constitutes an event of default:
            7. the Customer breaches these terms of trade for any reason (including, but not limited to, defaulting on any payment due under these terms of trade) and fails to remedy that breach within 7 days of being given notice by the Supplier to do so;
            8. the Customer, being a natural person, commits an act of bankruptcy;
            9. the Customer, being a corporation, is subject to:
               3. a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
               4. a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Customer's property and undertaking;
               5. the entering of a scheme of arrangement (other than for the purpose of restructuring); and
               6. any assignment for the benefit of creditors;
            10. the Customer purports to assign its rights under these terms of trade without the Supplier's prior written consent; or
            11. the Customer ceases or threatens to cease conduct of its business in the normal manner.
        60. Where an event of default occurs, except where payment in full has been received by the Supplier, the Supplier may:
            8. terminate these terms of trade, however such termination shall not affect any accrued rights;
            9. terminate any or all Orders and credit arrangements (if any) with the Customer;
            10. refuse to deliver Goods;
            11. without limitation to clause 9(c), repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or
            12. retain (where applicable) all money paid by the Customer on account of Goods or otherwise.
        61. In addition to any action permitted to be taken by the Supplier under paragraph 13(b), on the occurrence of an event of default all invoices will become immediately due and payable.

In addition to the express rights of termination provided in these terms of trade, a party may terminate these terms of trade by giving 30 days written notice to the other party, however such termination shall not affect any accrued rights.

29. 17. 62. Subject to clause 15(f), the Customer expressly agrees that use or consumption of the Goods is at the Customer's risk. To the full extent allowed by law, the Supplier's liability for breach of any term implied into these terms of trade by any law is excluded.
        63. All information, specifications and samples provided by the Supplier in relation to the Goods are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the ability to use, consume or re-sell the Goods will not entitle the Customer to reject the Goods upon delivery, or to make any claim in respect of them.
        64. Subject to clause 15(f), under no circumstances is the Supplier or any of its suppliers liable or responsible in any way to the Customer or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods. This includes their form, content and timeliness of deliveries, error, omission, defect, including, without limitation, for and in relation to any of the following:
            7. any Goods supplied to the Customer;
            8. any delay in supply of the Goods; or
            9. any failure to supply the Goods.
        65. Any advice, recommendation, information, assistance or service given by the Supplier in relation to Goods, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. Subject to clause 15(f), it is provided without any warranty or accuracy, appropriateness or reliability, and the Supplier does not accept any liability or responsibility for any Loss suffered as a result of the Customer's reliance on such advice, recommendation, information, assistance or service.
        66. To the fullest extent permissible at law, the Supplier is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of profits, arising out of or in any way connected with the provision of or failure to provide Goods, or otherwise arising out of the provision of Goods, whether based on terms of trade, negligence, strict liability or otherwise, even if the Supplier has been advised of the possibility of damages.
        67. The Australian Consumer Law may give to the Customer certain guarantees which cannot be excluded. Where liability for breach of any such guarantee can be limited, the Supplier's liability (if any) arising from any breach of those guarantees is limited to the replacement or repair (where practicable) of the Goods or the costs of re-supply or replacement of the Goods.

31. 18. 68. If circumstances beyond the Supplier's control prevent or hinder its provision of the Goods, the Supplier is free from any obligation to provide the Goods while those circumstances continue. The Supplier may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
        69. Circumstances beyond the Supplier's control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.

33. 19. 70. These terms of trade are governed by the laws of the State of Western Australia and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that State.
        71. These terms of trade and any Quotes and written variations agreed to in writing by the Supplier represent the whole agreement between the parties relating to the subject matter of these terms.
        72. These terms of trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.
        73. In entering into these terms of trade, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by the Supplier or any of its employees or agents relating to or in connection with the subject matter of these terms of trade.
        74. If any provision of these terms of trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
        75. A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.
        76. A notice or other communication required or permitted to be given by one party to another must be in writing.