Terms and Conditions
1.Interpretation
(1)In these terms and conditions (“Terms”), which constitute an agreement for sale between the Seller and the Customer:
a. “Australian Consumer Law” means the Competition and Consumer Act 2010 (C’th) together with any applicable amendments and regulations.
b. “Customer” or “you” or “your” means the person or entity being the buyer or intended buyer of the Goods named overleaf on the tax invoice and includes any agent, contractor or representative of you.
c. “Consumer” means a person or entity acquiring goods or services as a “consumer” as that term is defined in the Australian Consumer Law.
d. “Goods” means the goods specified overleaf on this tax invoice (such as stockfeed and supplements) or any other good or products supplied by the Seller to the Customer.
e. “GST” means Goods and Services Tax and has the same meaning as in A New Tax System (Goods and Services) Act 1999 (C’th).
f. “Seller”, “we”, “our” or “us” means Compass Feeds Pty Ltd ACN 007 994 407 which is the seller of the Goods and/or Services and our officers, employees, agents, contractors and advisers.
g. “Services” means any services supplied or deemed to be supplied by the Seller incidental to the supply of the Goods.
h. “Tax Invoice” has the same meaning as in A New Tax System (Goods and Services) Act 1999 (C’th).
i. Nothing in these Terms shall be read or applied so as to exclude, restrict, or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Australian Consumer Law) and which by law cannot be excluded, restricted or modified.
2. Terms of Sale
(1) The Goods and/or Services are sold or supplied on these Terms.
(2) These Terms apply to the sale or supply of all Goods and/or Services by us to you under any order made by you and accepted by us. To the maximum extent permitted by law they supersede and exclude all prior or subsequent discussions, representations, terms and/or conditions of trade, all prior written or oral agreements and understandings between us and you and any other terms and conditions which you seek to extend to the supply of Goods and/or Services by us to you, whether by way of incorporation into your order or otherwise.
(3) We reserve the right to amend these Terms from time to time by notice to you. By placing an order and purchasing Goods and/or Services, you will be treated as having accepted the Terms in force at the time the order was placed.
(4) We also hold these Terms on trust for our employees, agents, contractors and advisers involved in the sale and provision of Goods and/or Services to you and their acts are deemed to be ours and they benefit from these terms as though they are us.
3. Quotations
(1) No quotation given by us constitutes an agreement to sell or supply Goods and/or Services and all quotations are subject to these Terms. We can amend or withdraw quotations at any time. If you wish to purchase Goods and/or Services referred to in a quotation, you must place an order within the time period specified within the quotation and in a manner capable of acceptance by us.
(2) Unless previously withdrawn, quotations are open for acceptance by the placement of an order or purchase within the period stated in them or, when no period is so stated, within 7 days only after its date.
4. Descriptions, Advice, Recommendations
(1) To the extent permitted by law, all descriptive specifications, data, explanatory notes and product guides furnished by us or contained on our website or in other printed material are intended to be merely a general description of the Products and are not incorporated within any agreement with you under these Terms and do not form part of the description of the Products sold and/or Services provided under these Terms or any other agreement with you unless otherwise agreed by us in writing.
(2) We may from time to time provide advice, recommendations and statements with respect to the Goods and/or Services. To the extent permitted by law:
a. we do not warrant or guarantee the accuracy or completeness of that advice, those recommendations or statements or the results obtained through the use of the Goods or application of the Services;
b. we expressly disclaim any liability for damage to you from reliance on such advice, recommendations or statements; and
c. such advice, recommendations and statements are relied on by you at your own risk and you should make other appropriate enquiries having regard to your circumstances.
5. Delivery
(1) If we agree to deliver the Goods and/or Services, we will make all reasonable efforts to deliver the Goods and/or Services to an address agreed by you and us. Dates or periods specified for delivery shall not be of the essence. If delivery becomes commercially impractical, we shall advise you of the same and alternative delivery arrangements shall be agreed. We will not be liable for any loss or damage (including not being liable for consequential, special, punitive, incidental, indirect or economic loss or damage or loss of profits or opportunity) arising or resulting (directly or indirectly) from:
a. a delay in delivery where such delay is within our control and does not exceed 10 days or such other period as we may expressly agree in writing with you;
b. part or multiple deliveries;
3c. delay in, or failure to, deliver due to circumstances beyond our control.
(2) You must be available to accept delivery as and where scheduled or arranged by us. If any of the Products and/or Services perish, become damaged or tainted, or are otherwise unsaleable (“Damaged Products”) as a direct result of you being unable to accept delivery, you indemnify us for all costs and expenses incurred by us in connection with the Damaged Products (including arranging for transport and/or disposal).
(3) You must check all delivery volumes against the delivery documentation and:
a. where credit terms apply, if you do not dispute it with 2 days, we are entitled to rely on that documentation in issuing any subsequent tax invoice; and
b. where ‘cash on delivery’ applies, you are deemed to accept that volume is correct.
(4) You must also inspect all Goods and/or Services delivered and advise us within [x] days of any claimed defects in them or their packaging or storage or other dispute.
(5) If you do not notify us of any dispute or defect within the times set out in sub-clause 5(3) and 5(4) above, as appropriate, those Products and/or Services are deemed to have been delivered by us and accepted by you in compliance with these Terms.
6. Prices and Payment
(1) Unless otherwise stated in this Tax Invoice or in writing, all prices quoted by the Seller are exclusive of GST and any other applicable taxes at the time.
(2) You must pay the purchase price, plus the requisite GST and/or any other applicable tax, either:
a. on collection or delivery of the Goods or Services; or
b. on or before the date set out in the tax invoice; or
c. if unspecified by no later than 14 days from the date of the tax invoice
without deduction, set-off or counterclaim.
(3) In the event you have a credit account with us, such accounts must be paid no later than [14] days from invoice date, unless otherwise agreed with us in writing.
(4) Unless otherwise agreed in writing, all references to amounts of money are references to amounts in Australian currency. References to weights, quantities or other measures are, unless otherwise agreed in writing, references to that weight, quantity or other measure within a variance of plus or minus 5%.
(5) Without limiting our right to require payment by the due date, we may charge interest on overdue accounts at the rate that is 2% per annum above the rate charged by Bank SA from time to time on overdrafts of less than $100,000. Interest will accrue daily and compound monthly from the due date until payment is received in cleared funds. Any payments made by you will be applied first to accrued interest and then to the overdue principal amount.
4 (6)Without limiting clause 7 below, any collection charges, legal expenses (calculated on a full indemnity basis) and commissions or any other expenses incurred by us in attempting to recover from you any payment due to us is payable by you to us on demand by us.
7. Title and Risk
(1) Title to the Goods shall remain with us until payment in full has been received. If payment in full is not made on the agreed date, we shall have the right, with or without prior notice, to recover possession of the whole or any part of the Goods (and you agree that we may enter premises occupied by you to satisfy that purpose and use reasonable force to take possession of the Goods without liability for the tort of trespass, negligence or payment of any compensation to you or anyone claiming through you whatsoever), and keep or resell any Goods repossessed pursuant to this clause, without prejudice to other rights and remedies.
(2) Even after delivery or the taking of possession of the Goods by you, the Goods shall remain our property until all outstanding debts owed by you to us, including part paid debts and secured debts, are paid.
(3) Notwithstanding the provisions in sub-clause 7(1) and 7(2), we shall be entitled to maintain an action against you for the purchase price and the risk of the Goods shall pass to you upon delivery.
8. Cancellation
(1) No order may be cancelled except with our consent in writing and on terms which indemnify us against all losses incurred.
9. Our Warranties and Limitation of Liability
(1) You may have certain rights under the Australian Consumer Law. Nothing in these Terms should be taken to exclude, restrict or modify the application of any condition, warranty, guarantee, right or remedy conferred or implied under the Australian Consumer Law or any other law, where to do so would contravene that law, or cause any part of these Terms to be void. In particular, where any Goods are acquired by a Consumer within the meaning of the Australian Consumer Law, those Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
(2) To the extent to which the consumer guarantees under the Australian Consumer Law do not apply, we:
a. make no representations, guarantees or warranties concerning fitness for purpose or quality of any Goods or Services, and you must assure yourself of these matters having regard to your circumstances;
b. expressly negate and exclude all conditions and warranties which might otherwise be implied by law; and
5 c. are not and will not be liable for any claim by you for breach of representation or warranty unless notice is given in writing to us within two days of collection or delivery of the relevant Good and/or Service.
(3) To the extent that Goods and/or Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, our liability to you (if any) arising from the consumer guarantees in the Australian Consumer Law is limited, at our option, to:
a. in the case of Goods, the replacement of the Goods or the supply of equivalent Goods; the repair of such Goods; the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or the payment of the cost of having the Goods repaired; or
b. in the case of Services, the supplying of Services again; or the payment of the cost of having those Services supplied again.
(4) We will not be liable to the final Consumer where any Goods or Services supplied by us do not meet the consumer guarantees in the Australian Consumer Law:
a. due to an act, default or omission of, or representation made by, any person other than us or our employee or agent;
b. due to a cause independent of human control that occurs after the Goods or Services leaves our control; and/or
c. in relation to the consumer guarantee as to acceptable quality, where the final Consumer was aware of, or ought reasonably to have been aware of, any flaw in the Goods or Services at the time of purchase.
(5) You undertake to promptly inform us in writing within 48 hours or receipt if you believe any Goods or Services are defective due to conduct for which we are responsible and you must provide us with as much information as you have concerning the defect and the basis for your belief that we are responsible. You must retain the Goods in the condition is which they were provided to you until we have had an opportunity to inspect and/or test them.
(6) To the extent permitted by law, in no circumstances will we be liable to you or any other person for any loss or damage to person or property, or for consequential, special, punitive, incidental, indirect or economic loss or damage or loss of profits or opportunity, arising out of us supplying Goods and/or Services in connection with these Terms on any account whatsoever, and whether by way of damages or indemnity or in respect of breach of contract, tort (including negligence) or defect in manufacture/processing, design or information.
10. Indemnity
(1) You will indemnify and keep indemnified at your expense and to the maximum extent permitted by law, us and our related bodies corporate, officers, directors, employees, agents, contractors and advisers (“Our Indemnified Parties”) against any and all claims, suits, demands, actions, proceedings and all related liabilities, loss (including, where permitted by law, consequential, special, punitive, indirect or economic loss or damage or loss of profits or opportunity), damages, settlements, penalties, fines, judgments and
6 awards, costs and expenses (including, without limitation, legal fees and other dispute resolution expenses on an indemnity basis) incurred by us and Our Indemnified Parties arising out of or in connection with:
(a) any negligent act or omission or wilful misconduct, or breach of the law (including any law, legislation, rule, standard, regulation, registration or code) relating to the use, handling, storage or sale of the Goods and/or Services; and
(b) any breach by you of these Terms,
by you, your employees, officers, agents or contractors.
(2) The indemnity in sub-clause 10(1) is a continuing indemnity and is in addition to any statutory rights or remedies in our favour.
11. Force Majeure
(1) Where a party is unable, wholly or in part, by reason of an act of God, strike, lockout or other interference with work, war declared or undeclared, blockade, disturbance, lightening, fire, earthquake, storm, flood, explosion, governmental or quasi-governmental restraint, expropriation prohibition intervention direct or embargo, unavailability or delay in availability of equipment or transport, inability or delay in obtaining governmental or quasi-governmental approvals consents permits licences authorities or allocations, and any other cause whether of the kind specifically enumerated above or otherwise which is not reasonably within the control of the party affected (‘force majeure’), to carry out any obligation under these Terms and that party:
(a) gives the other party prompt notice of that force majeure with reasonably full particulars thereof, and, insofar as known, the probable extent to which it will be unable to perform or be delayed in performing that obligation; and
(b) uses all possible diligence to remove that force majeure as quickly as possible;
that obligation is suspended so far as it is affected by force majeure during the continuance thereof provided that;
(c) an obligation to pay money is never excused by force majeure;
(d) the requirement that any force majeure shall be removed with all possible diligence shall not require the settlement of strikes, lockouts or other labour disputes, or claims or demands by any government on terms contrary to the wishes of the party affected.
12. General
(1) Any notice given under these Terms will be in writing delivered to the relevant party or delivered by post or facsimile or email transmission at such address or number as may be notified in writing by each party to the other from time to time. Any such notice will be deemed received at the time when the same is handed to or left at the address of the party to be served and if served by post two business days after the day of posting (not being a weekend or public holiday) and if served by facsimile or email on the day of dispatch if sent between the hours of 9am and 5pm on a business day.
(2) Nothing in these Terms gives you any right, title or interest in or to any of our assets or rights other than the Goods and/or Services (excluding any intellectual property rights) and then only in accordance with these Terms. You must not use or modify our intellectual property in any way without our prior written consent.
7(3) Any confidential information or intellectual property provided by us in connection with the Goods and/or Services, and these Terms, remains our confidential and proprietary information and must not be disclosed without our prior written consent unless required by law or the information is already in the public domain (other than by reason of a breach of confidentiality). You must ensure that you and your officers, employees, agents, contractors and advisers do not disclose any confidential information provided by us to you.
(4) You must not:
a.repackage Goods using our intellectual property or packaging;
b. modify or in any way alter, deface, or cover up all or any part of our intellectual property or any part of the appearance or get-up of packaging or storage in respect of the Goods; or
c. use any other intellectual property in association with our intellectual property,
without our prior written consent.
(5) If any part of these Terms or the order is held to be invalid, illegal or unenforceable, it shall be deemed severed but this shall not affect the validity and enforceability of the remaining parts of the Agreement.
(6) The words “include”, “including”, “for example” or “such as” are not used as, nor are they to be interpreted as, words of limitation, and when introducing an example, do not limit the meaning of the words to that example.
(7) The headings in these Terms are for convenience only and shall not affect interpretation of these Terms. The singular includes the plural and the masculine gender includes the feminine in the interpretation of these Terms. A reference to an Act, statute, or other legislation, includes regulations, rules and by-laws and other subordinate legislation made under the legislation, and includes all amendments, re-enactments and substituted legislation or instruments from time to time.
(8) A rule of construction does not apply to our detriment because we prepared these Terms.
(9) No delay or failure to exercise any of our rights or remedies will be a waiver of any of our rights or remedies.
(10) Any variation to, or amendment or replacement of these Terms, shall not be authorised or enforceable unless it has been agreed to by us in writing by an authorised representative of the Seller.
(11) You may not assign or novate any or all of your rights or obligations under these Terms to a third party without our prior consent.
(12) Any personal information collected by you or us in connection with these Terms must only be used or disclosed for the purposes of ensuring performance of these Terms or your orders and any future like agreements or arrangements. This may include
8 disclosure within your or our organisations and to other parties involved in performing these terms or future like agreements or arrangements. You and we agree to comply with relevant privacy laws in respect of any personal information collected in connection with these Terms, any orders and any future like agreements or arrangements.
(13) These Terms and any order or contract to which they apply shall be governed by the laws of South Australia and you and us both submit to the jurisdiction of the courts of South Australia.
