In these terms and conditions and in this application for credit, "HFA" means Hemp Foods Australia Pty Ltd (ABN 84 090 668 367) as those terms are defined in the Corporations Act 2001 and includes HFA's successors and permitted assigns.
2. TERMS AND CONDITIONS TO APPLY
Hemp Foods Australia Pty Ltd and the customer ("Customer") agree that these terms and conditions ("Terms & Conditions") shall apply to the supply of all hemp products, books and promotional materials sold ("Products") by HFA to the Customer despite any prior agreements, prior offers, dealings or trade usage, or any terms communicated by the Customer to HFA. These Terms & Conditions supersede those in any previous form (and apply to Products previously supplied to a Customer and to any existing outstanding accounts or tax invoices) and do not affect the validity of any previous guarantee and may only be varied or added to by written agreement signed by an authorised representative of both the Customer and HFA.
If HFA has provided any quotation specifically for Products ("Quotation"):
a) These Terms & Conditions shall apply to the Quotation;
b) The price in the Quotation shall be HFA's current price as at the date of Quotation and the price actually payable for the Products shall be HFA's current price as at the date of the Customer's acceptance of the Quotation; and
c) Subject to paragraph b), the Quotation shall remain valid for acceptance by the Customer for three (3) days after the date of the Quotation.
If the Customer has made an order for Products without there being a Quotation provided by HFA ("Order"):
a) The Order is subject to acceptance in writing by HFA; and
b) The price actually payable for the Products is HFA's current price as at the date of HFA's acceptance of the Order.
5. VARIATION OR CANCELLATION
After the Customer's acceptance of the Quotation or HFA's acceptance of the Order, as the case may be:
a) No change in the specification of Products shall bind HFA, unless HFA expressly agrees to the change in writing; and
b) If the Customer cancels the Order for Products, the Customer will pay HFA any loss, damage or expenses incurred by HFA in relation to the supply or proposed supply of the Products.
6. CHARGES AND TAXES
a) Unless otherwise expressly stated, the price of Products includes all freight, transportation, shipping, insurance, packing, crating or casing, storage, handling, demurrage, delivery, export and similar charges, and all sales, goods and services, excise or other taxes, and the Customer shall pay and indemnify HFA for those charges or taxes. If HFA expressly agrees in writing that the price includes any of these charges or taxes, the price is subject to adjustments for increases in any of those charges or taxes after the date of the Quotation or acceptance of the Order.
b) The Customer shall pay all taxes, levies, duties and assessments of every nature due in connection with the Products supplied and hereby indemnifies and holds harmless HFA from any liability on account of any and all such taxes, levies, duties, assessments and deductions.
a) The Customer shall pay for Products within 7 days from the date of the tax invoice unless the Customer is notified of a different time for payment by HFA. Time shall be of the essence in respect of payment for the Products.
b) If payment is not made by the due date for payment, the Customer shall pay to HFA on demand interest at the rate of 1.5% (one percent) per month until paid. These will not affect the other rights of HFA.
c) HFA is entitled to recover from the Customer, in addition to the price, any GST on the supply of the Products except to the extent that the price expressly include GST.
d) HFA is entitled to recover from the Customer in addiction to the price all losses, expenses, costs (including legal fees) and disbursements, that HFA incurs will incur consequent upon the Customer's failure to pay on the due date, on a full indemnity basis and are recoverable from the Customer by HFA as a liquidated debit.
e) HFA may apply payments received from the Customer firstly to any costs, expenses and disbursements, then to interest and then to the balance of money owing.
a) Where a party to the Terms & Conditions makes a Taxable Supply under or in connection with the Terms & Conditions, HFA will be entitled, in addition to any other consideration recoverable in respect of the Taxable Supply, to recover from the Customer the amount of any GST on the Taxable Supply.
b) Where a party to the Terms & Conditions is entitled, under or in connection with the Terms & Conditions or in connection with any matter or thing occurring under the Terms & Conditions, to recover all or a proportion of its costs or is entitled to be compensated for all or a proportion of its costs, the amount of the recovery or compensation shall be reduced by the amount of (or the same proportion of the amount of) any Input Tax Credits available in respect of those costs.
c) In the Terms & Condition:
i. "GST" means the tax payable on Taxable Supplies under GST Legislation;
ii. "GST Legislation" means A New Tax System (Products and Services Tax) Act 1999 ("ACT") and any related act imposing such tax or legislation that is enacted to validate, recapture or recoup such tax;
iii. "Input Tax Credit" has the meaning given in the Act; and
iv. "Taxable Supply" has the meaning given in the Act.
a) HFA will use all reasonable endeavours to deliver Products on or before the agreed date for delivery ("Delivery Date"), but:
i. The Delivery Date is subject to extension for any delay caused by strikes, lockouts, war, breakdowns, accidents, delay in transport, fire or any cause beyond the reasonable control of HFA; and
ii. HFA will not be liable for any loss, damage, or other liability whether in contract, tort, negligence or otherwise and whether directly or indirectly arising from the Products not being delivered by the Delivery Date for any reason.
b) HFA may, with the agreement of the customer, deliver Products to the Customer in instalments and in which case HFA may separately invoice the Customer for payment for each delivery instalment (which shall be taken to be the subject of a separated and distinct contract between the parties).
c) Any Products returned is only accepted with the prior written approval of HFA and may be subject to a 20% handling/restocking fee.
d) Products which have been specifically Produced by HFA or altered by the Customer cannot be returned simply because the Customer has changed their mind about purchasing the Products.
10. RISK AND PROPERTY IN PRODUCTS
a) For the purposes of the Personal Property Securities Act 2009 (as amended from time to time) (the "PPSA") the term "Goods" used in this clause means any and all present and after acquired Products and services supplied by HFA to the Customer;
b) The Goods shall be entirely at the risk (including loss, damage or deterioration) of the Customer from the time of dispatch of the Goods (the carrier of the Goods shall be taken to be agent of the Customer even if engaged or paid by HFA).
c) HFA retains full title to the Goods until HFA receives payment in full for the Goods and all other amounts owed by the Customer to HFA.
d) Until all such monies have been paid:
i. HFA has the right to call for or recover possession of the Goods (for which purpose HFA's employees or agents may enter onto the Customer's premises) and the Customer must deliver up the Goods if so directed by HFA;
ii. the Customer:
a. agrees that the relationship between the Customer and HFA shall be fiduciary and the Customer shall keep the Goods safely, securely and separately stored and at a temperature below 12 degrees centigrade and marked in a manner which clearly indicates that they belong to HFA;
b. shall not resell, encumber or dispose of the Goods;
c. shall not mix the Goods with or attach them to other materials or otherwise make them unable to be returned to HFA in their original state;
d. agrees that if, in breach of this clause, the Goods are incorporated with Goods of the Customer, the resultant product shall become and be deemed to be the sole property of HFA. If the Goods are incorporated in any way with the property of a party other than the Customer, the resultant product shall become and be deemed to be owned in common by HFA with that other party (or parties) on a pro-rate basis to be calculated by reference to the cost to the Customer of the incorporated materials; and
e. will hold any proceeds (as that term is defined in PPSA) of any resale, disposal or other dealing with the Goods (including sale or supply to a party other than the Customer) in breach of this clause in trust for HFA and shall pay the proceeds into a separate fiduciary account to be held in trust for HFA until accounted for to HFA at the demand of HFA.
e) To avoid any doubt, for the purpose of the PPSA, it is the intention of the parties by this clause 10 that there is created for the benefit of HFA a Purchase Money Security Interest in the Goods;
f) The Customer agrees that HFA may register any personal property security interest created by the Terms & Conditions on the Personal Property Securities Register and the Customer waives its right to receive a verification statement (as that term is defined in the PPSA) in respect of any financing statement or financing change statement (as those terms are defined in the PPSA) registered by HFA in respect of any personal property of the Customer. The parties agree that, insofar as the provisions of chapter 4 of the PPSA are for the benefit of the Customer or place an obligation on HFA, those provisions will apply only to the extent that they cannot be contracted out of or to the extent that HFA otherwise agrees in writing.
11. LIABILITY AND DEFECTIVE PRODUCTS
The Customer agrees that:
a) The Customer must satisfy itself as to the truth and accuracy of and may not rely for any purpose upon, any technical, leagl or other advice or information provided by or on behalf of HFA in connection with Products or the Terms & Conditions;
b) Subject to clause 11 (g) except to the extent prohibited by law, the only remedy of the Customer against HFA for any loss, damage or liability whether in contract, tort, negligence or otherwise of the Customer in connection with the Terms & Conditions, the Products, HFA's supply of the Products or HFA's failure to supply the Products to the Customer in accordance to the Terms & Conditions shall be limited to HFA's at its option, replacing or repairing the Products at the point of manufacture of the Products or at the point of provision of Products; and
c) Subject to clause 11 (g) HFA shall otherwise have no liability to the Customer whether in contract, tort, negligence or otherwise.
d) Within two (2) days after the delivery of the Products the Customer shall both complete any inspection required by it to confirm the Products comply with any requirement of quantities, quality or description and notify HFA in writing of the extent to which the Products does not comply with the Terms & Conditions any requirements of quantities, quality or description.
e) The Customer shall not use the Products (other than to the extent reasonably necessary for inspection) before the Customer completes its inspection and satisfies itself that the Products complies with any requirements of quantities, quality or description, or, if the Customer notifies HFA under clause 11 (d) that the Products does not comply with any requirements of quantities, quality or description, HFA has had a reasonable opportunity to inspect the Products after HFA receives that notice.
f) If the Customer does not comply with this clause 11, the Customer shall be taken to have unconditionally accepted the Products and the Customer shall lose any right to reject the Products or claim any remedy (including damages) against HFA.
g) However, if the Customer is a consumer (as the term "consumer" is defined at section 3 of the Australian Consumer Law (which is at Schedule 2 of the Competition and Consumer Act 2010)) the Products comes with guarantees that cannot be excluded under the Australian Consumer Law. Such a Consumer Customer is entitled to replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. A Consumer Customer is also entitled to have the Products repaired or replaced if the Products fails to be accepted quality and the failure does not amount to a major failure.
Where HFA incurs any extra costs in relation to the supply of Products, directly or indirectly, as a result of any delay, interruption, suspension or alteration of any work or the supply of the Products caused by or as a consequence of any act or omission of the Customer, HFA shall be entitled to increase the price by the amount of the extra costs incurred.
13. CHARGING CLAUSE
a) To secure payments of all monies which are or may become payable by the Customer to HFA under these Terms & Conditions the Customer (or where the Customer is comprised of two or more persons or other entities then each person and other entity. Hereby charges and beneficial owner and as trustee of any trust in favour of HFA all the Customer's right, title and interest in land (held now or in the future) with the due payment of all those monies. The Customer acknowledges that HFA may register a caveat or caveats over the Customer's land in respect of this charge.
b) If the Customer is a trustee of any trust:
i. It is bond by these Terms & Conditions and charges the Customer's land as trustee and/or held as trustee;
ii. Warrants that it is a proper exercise of the Customer authority and power under the trust instrument and at law to trade with HFA and to charge the Customer's land under this Terms & Conditions.
c) Upon demand by HFA, the Customer agrees to immediately execute a mortgage or other instrument in terms satisfactory to HFA to further secure the Customer's indebtedness to the HFA.
d) Should the Customer fail within a reasonable time of such demand to execute such mortgage or other instrument then the Customer appoints irrevocably the credit manager or a duly authorised of HFA to the Customer's lawful attorney to execute any such mortgage or other instrument.
14. TRUST AND TRUSTEES
Where the Customer is a trustee of any trust:
a) The Customer agrees to produce immediately to HFA a stamped copy of the trust deed (including all amendments) upon written notice from HFA in accordance with clause 19 of these Terms & Conditions.
b) The Customer warrants that it has full power and authority to enter into these Terms & Conditions on behalf of the trust and that it shall be bound by these Terms & Conditions both personally and as trustee and clause 13 extends to any land held by the Customer as trustee.
15. DEFAULT, INSOLVENCY AND TERMINATION
If the Customer:
a) Commits a substantial breach of the terms & Conditions including unreasonably refusing to accept any Products or failing to pay for any Products in accordance with the requirements of the terms & Conditions; or
b) Informs any person it is insolvent, commits an act of bankruptcy, has a bankruptcy petition presented against it, becomes bankrupt, becomes subject to or bound by any arrangement, assignment, composition or moratorium of debts with its creditors, official management, receivership, liquidation, voluntary administration, winding up or other external administration,
HFA may, without affecting HFA's other rights:
c) Immediately terminate the supply of Products, by notice in writing to the Customer;
d) Refuse, suspend or withhold any further supply of Products;
e) Enter upon (personally or by its employees or agents) any premises in the possession or control of the Customer and use reasonable force for the purposes of retaking possession of any of the Products (title to which has not passed to the Customer), in which case the sale of the Products shall be taken to be terminated and HFA shall have no liability to the Customer whether for trespass, negligence, payment of damages or compensation or otherwise;
f) Terminate any credit arrangement with the Customer, by notice in writing to the Customer (in which case outstanding amounts will become immediately due and payable);
g) Forfeit any deposit paid for the Products; or
h) If payment in addition to a deposit has been made by the Customer in respect of any of the Products, the sale of which is terminated, appropriate that payment to any other debts of the Customer to HFA or damages incurred by HFA as a result of the termination of the sale.
16. SET OFF
a) HFA may at any time set off amounts owed by HFA to the Customer from the amounts owed by the Customer to HFA.
b) The Customer is not entitled to make any claim against HFA if any amount is owed by the Customer to HFA.
c) The Customer is not entitled to set off any amounts against amounts owed by the Customer to HFA.
17. FURTHER SECURITY
HFA may from time to time require further security as a condition of continuing to supply Products on credit. For the purposes of this clause 17 "security" includes a guarantee, mortgage or charge granted by any person nominated by HFA.
18. GOVERNING LAW
a) The laws of the State of New South Wales, Australia shall apply to the Terms & Conditions and the parties submit to the exclusive jurisdiction of the Courts nominated by HFA in the instance of a dispute reaching the Courts.
a) HFA's failure to exercise any right under the Terms & Conditions or failure to insist on strict performance of any part of the Terms & Conditions does not operate as a waiver and a partial exercise of a right does not preclude any further or fuller exercise of that right.
20. NO EXPORT
a) Unless otherwise agreed in writing by HFA, any Products supplied to the Customer are intended for use in Australia and must be sold Not For Human Consumption, until legislation allows changes, and only such that if any such Products are exported by the Customer, it is the responsibility of the Customer to ensure Products complies with the laws of any foreign country to which the Products are exported.
b) The Customer agrees to indemnify HFA in respect of any loss, damage, expense, claim or liability suffered or incurred by HFA as a result of any breach by the Customer of this clause 18 or any claims against HFA arising out of any matters referred to in this clause 18.
If any part of these Terms and Conditions or any related document is or becomes void or unenforceable that part is severed so that all parts which are not void or unenforceable remain in full force and effect and are unaffected by the severance.
a) Notices required to be given by the Customer to HFA pursuant to these Terms & Conditions may be delivered to HFA:
i. Personally to HFA at [2/6 Dudgeons Lane, Bangalow, NSW, 2479, Australia]; or
ii. Sent by post to HFA's postal address at PO Box 1069 Mullumbimby NSW 2482; or
iii. Sent by facsimile to HFA at 02 4210 8828
b) Notices will be taken as delivered when received by HFA.
c) Notices required to be given by HFA to the Customer pursuant to these Terms & Conditions may be delivered:
i. By post to the Customer's last known address (and shall be taken as delivered on the second business day following posting); or
ii. By facsimile to the Customer's last known facsimile number.
d) HFA's invoices and statements are deemed to be received by the Customer on the second business day after posting by ordinary pre-paid post or sent by email.
23. Where the Customer is comprised of more than one person or entity then each person and/or entity that comprises the Customer is bound by these Terms and Conditions jointly and severally.