1. DEFINITION

“The Supplier” means Australian Botanical Products Pty. Ltd. (A.C.N. 006 782 529/ A.B.N. 45 006 782 529);
“The Customer” means the person who buys or agrees to buy the goods, and;
“The Goods” means any item of whatever nature which is sold by the supplier.

 

  1. GENERAL

a)These terms and conditions including those particulars shown overleaf constitute the      entire agreement between the Supplier and the Customer relating to the goods purchased by the Customer and there are no agreements, understanding, warranties or representation between the parties other than those contained herein.  The Customer expressly agrees that his offer to purchase the goods contains these terms and no             others.

b)The Goods and all other products sold by the Supplier are sold on these terms and conditions.

 

  1. PRICE AND PAYMENT

a)The price of the goods shall be the Supplier’s price set out overleaf.

b)Prices quoted are strictly net and, unless credit arrangements satisfactory to the  Supplier have previously been made with the Customer, payment shall be made in full on demand, and failing the making of a demand, payment shall be made within 30 days from the date of this invoice.

c)If the Customer defaults in any payment or commits an act of bankruptcy or being an incorporated company passes a resolution for winding up (except for the purpose of   reconstruction), or a petition is presented for its winding up, then

i)all monies owing and outstanding to the Supplier on any account shall become immediately due and payable. In addition the Supplier may without prejudice to its other rights either suspend further production and deliveries and require payment in advance for all such deliveries, and;

ii)at the Supplier’s option and without liability on its part

i.treat such default as a repudiation of that portion of the contract and of any other existing contracts which is has with the customer.

ii.resell the goods either publicly or privately at wholesale prices or otherwise, and recover form the customer the amount by        which the price of the goods under this contract exceeds the amount so received together with all costs and expenses occasioned by the default of the Customer.

 

 

 

d)After 30 days from date of invoice outstanding invoices shall bear interest at a rate of 15 per centum per annum, calculated monthly and without any demand being necessary. Payments made by the Customer shall be allocated first to interest and     then to unpaid invoices in the order in which these invoices were issued by the Supplier to the Customer.

 

  1. FUTURE DEALING

Unless otherwise agreed to in writing by the Supplier and notwithstanding any terms appearing in documentation provided by or on behalf of the Customer the terms appearing herein shall be incorporated into all subsequent agreements by the Supplier to supply the Customer with goods.

 

  1. DELIVERY

The Supplier will make all reasonable efforts to have the goods delivered to the Customer on the date agreed to between the Supplier and the Customer at the delivery date and any date named or accepted by the Supplier for completion, delivery, despatch, shipment or arrival of the goods is an estimate only and does not constitute a condition of the contract or part of the description of the goods.  The Supplier is under no liability whatsoever should delivery not be made on the delivery date.

 

  1. RISK AND PROPERTY

a)Property in the Goods does not pass to the Customer until it has paid the purchase price in full or the Customer sells the goods to his customers in the ordinary course of business.

b)The Goods shall be at the Customer’s risk as and from deliver.

c)Until the Customer has paid for the Goods in full, the Customer shall hold the Goods (at no cost to the Supplier) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Supplier’s property. In the event of sale of the Goods by the Customer, the Customer shall, in his position as a fiduciary, assign to the Supplier the benefit of any claim against the Purchaser of such Goods.

d)Notwithstanding that the Goods (or any of them) remain the property of the Supplier the Customer may sell or use the Goods in the ordinary course of the Customer’s     business at full market value.  Any such sale or dealing shall be a sale or use of the Supplier’s property by the Customer on the Customer’s own behalf and the Customer shall deal as principal when making such sales or dealings.  The Customer shall keep separate records in relation to the proceeds of any such sale and immediately remit    such funds to the credit of the Supplier.  If any of the Goods are used in a       manufacturing process or mixed with other materials, the Customer shall 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 remit that amount to the Supplier.

e)If the Customer does not pay for any goods on the due date specified herein the Supplier is hereby 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 such 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 whatsoever. The customer shall indemnify the Supplier against liability for anything lawfully done in purported performance of the provision of this clause.

 

  1. CANCELLATION OF ORDERS

No order may be cancelled except by consent in writing and on terms which will indemnify the Supplier against all losses.

 

  1. INSPECTION AND ACCEPTANCE

Upon delivery of the Goods the Customer shall give written notice to the Supplier within 48 hours of delivery of any non-conformity with the description or with the terms and conditions of this contract and failure to give such notice shall constitute and irrevocable acceptance of the Goods by the Customer.

 

  1. WARRANTIES

a)Nothing contained in this Warranty shall be read or applied so to purport to exclude, restrict or modify or have the effect of excluding, restructuring or have the effect of excluding, restructuring or modifying the application in relation to the supply of the Goods of all or any of the provisions of Part 5 of the Trade Practices Act 1974 (as amended) or any relevant State or Territory Statute which by law cannot be excluded,          restricted or modified PROVIDED THAT to the extent that any such statute permits the Supplier to limit its liabilities to compensate or indemnify any person for breach of a condition or warranty implied thereby, then the respective liabilities of the      Supplier for such breach shall be limited to the replacement of the Goods or to the supply of equivalent Goods.

b)Subject to clause 9(a) and any legislation to the contrary:-

i)representations and agreements not expressly contained herein shall not be binding upon the Supplier as conditions, warranties or representations all such conditions, warranties and representations on the part of the Supplier, whether express or implied, whether collateral or antecedent or       otherwise are hereby expressly negatived and excluded;

ii)the supplier shall be under no liability to the Customer for any loss        (including but not limited to loss of profits and consequential loss) or for damage to persons or property or for death or injury caused by any act or        omission (including negligent acts or omissions) of the Supplier or the Supplier’s agents;

iii)the Customer shall indemnify the Supplier against any claims made against the Supplier by an third party in respect of any loss, damage, death or injury as set out in subparagraph (ii) hereof and the Customer        further agrees to indemnify and keep indemnified the Supplier against all        losses and expenses which the Supplier may suffer or incur due to the        failure of the Customer fully to observe its obligations under the contract;

iv)notwithstanding anything herin contained the Customer shall assume all        risk and liability resulting from the use of the goods either alone or in conjunction with other Goods and material even if the Supplier had or        should have had knowledge of the use to which the Goods would be put.

 

 

  1. FORCE MAJEURE

If, by reason of any fact, circumstance, matter or thing beyond the reasonable control of the Supplier, the Supplier is unable to perform in whole or in part any obligation hereunder, the Supplier shall be relieved of that obligation hereunder to the extent and for the period that it is so unable to perform and shall not be liable to the Customer in respect of such inability.

 

  1. LAW AND JURISDICTION

All contracts made between the Supplier and the Customer shall be governed by and constructed in accordance with the laws of the State of Victoria.