TERMS AND CONDITIONS OF SALE FOR GOURMET BRANDS
“Customer” means the party making this application for credit, “Supplier” means Gourmet Brands
1.1 These terms and conditions shall apply to the exclusion of all others, including the terms and conditions of the buyer with the exception of any Terms and Conditions necessarily implied by statute or as agreed in writing by the Supplier, and by taking delivery of the goods the Customer shall be deemed to agree that these Terms and Conditions of Trade shall apply to the exclusion of all others.
1.2 Failure by the Supplier to assist upon strict performance of any of the provisions of these terms of sale shall not be deemed a waiver of any rights the Supplier may have against the Customer, and express or implied waiver by the Supplier shall not be deemed a waiver of any subsequent breach by the Supplier.
1.3 All goods are sold on a non-returnable basis; particularly those made seasonally or to special orders.
1.4 Without waiving any other rights of the Supplier, under special circumstances the Supplier may consider and agree to accepting the return of goods providing they are still in saleable condition, in which case there will be a re-stocking fee, determined by the Supplier, of not less than 15% of the invoiced value of the goods.
1.5 These conditions of trade shall be governed and construed in accordance with the laws in force in the state of Victoria, Australia
2. RETENTION OF TITLE
2.1 Title to goods supplied by the Supplier to the Customer shall not pass until payment in full is received by the Supplier from the Customer for those goods.
2.2 Until such times as title to goods has passed to the Customer, the Customer shall store the goods on behalf of the Supplier without charge, in such a manner as to show clearly that they are the property of the Supplier, and in an area suitable for the storage of such goods so as to retain the goods in saleable condition.
2.3 Until such times as the title in the goods has passed to the Customer, the Customer is at liberty to sell the goods in the ordinary course of its business, as agent for the Supplier.
2.4 Any debts arising out of the sale of the goods by the Customer shall be the property of the Supplier and the Customer shall, on demand of the Supplier, assign all rights to such debts. In the meantime, the Customer is authorised to collect and receive payment of these debts on behalf of the Supplier.
2.5 If any uncertainty arises as to whether goods held by the Customer have been paid for, the Customer must treat goods supplied by the Supplier on a first in, first out basis. If the Customer does not pay for any goods by their due date, the Supplier is irrevocably authorised by the Customer to enter Customer’s premises (or any premises under the control of Customer or as agent for Customer if the goods are stored at such premises) and use reasonable force to take possession of goods without liability for the tort of trespass, negligence or for payment of any compensation to Customer whatsoever.
3.1 All goods will be at the Customer’s risk on delivery to the Customer’s nominated premises if F.I.S., and to the Customer’s carrier if F.O.B.
3.2 The customer shall insure the goods in an amount at least equal to the contract value in the names of the Supplier and the Customer against fire, theft, accidental or malicious damage, flood or storm and the Customer shall pay all premiums in respect of such insurance.
4.1 Any claims for total or partial loss, or a shortage (including weight) in or damage to any goods supplied, or any delay in delivery, must be made, in writing to the Supplier within seven (7) days after receipt of goods by the Customer. The Supplier must be given an opportunity to inspect the goods and to take samples and perform such tests thereon as may reasonably be required.
4.2 If when taking delivery the Customer signs a clean receipt for goods which are later found to have been damaged in transit, thereby prejudicing a possible claim on a third party, the Supplier shall be freed from all responsibility for the loss or damage involved.
5. WARRANTY and LIABILITY
5.1 The Supplier shall not be held responsible for losses arising from non-delivery or delay in delivery. The Customer acknowledges that any dates for delivery are guides only. Each delivery or part delivery of the goods is a separate contract and the buyer is bound to accept and make payment for partial deliveries.
5.2 Where the goods are damaged, or defective, for any reason, including on the part of the Suppliers, its servants or agents, the Supplier’s only liability, if any, shall be limited to the replacement of the goods.
5.3 The Customer assumes all risks and liabilities for consequences arising from the use of the goods whether singularly or in combination with other products. Any warranties or conditions, statutory or otherwise, as to quality or fitness for any purpose are excluded.
5.4 Where products have a ‘use-by’ date and have been supplied within a reasonable time prior to this date, then the Supplier shall have no liability for any goods sold after such date.
6. PAYMENT TERMS
6.1 Unless otherwise agreed in writing by the Supplier, full payment must be made thirty days from the date appearing on the invoice with which the goods are delivered. In the event that payment is not received within the agreed terms, without limitation upon the legal rights of the Supplier, interest plus fees will be charged at the rate of two per centum (2%) per month from the due date until the date of payment at the discretion of the Supplier.
6.2 In the event that there are insufficient funds to meet any cheque drawn in favour of the Supplier, an administration fee will be charged on each and every representation and or dishonour.
6.3 Should collection action and or legal action be taken by the Supplier for recovery of any monies owing, the Customer agrees to be responsible and to reimburse the Supplier for all costs and commissions.
7. CANCELLATION OF CREDIT TERMS
7.1 The Customer acknowledges that the Supplier has an unfettered discretion to terminate credit terms to the Customer at any time by giving the Customer Notice of Termination in writing.
7.2 Upon cancellation of credit terms, all amounts, including interest and fees, owing to the Supplier shall become immediately due and payable.
8. THE PRIVACY ACT 1998 (as amended)
8.1 The Customer authorises Gourmet Brands to obtain from any credit reporting agency both now and in the future personal credit information, or a commercial credit worthiness report, should Gourmet Brands consider it necessary to assess this application for credit.
8.2 If considered relevant to collecting overdue payments for commercial credit provided to the Customer, Gourmet Brands may receive, from a credit reporting agency a credit report containing personal information about the Customer in relation to collecting overdue payments.
8.3 The Customer authorises Gourmet Brands to give to and obtain from any credit providers named in this credit application and any credit providers that may be named in a credit report issued by a credit reporting agency, information about the Customer’s credit arrangements. The Customer understands that this information can include any information about the Customer’s credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act.
9. SECURE OVER PROPERTY
To better secure payment of all monies for which the Customer may become liable to pay Gourmet Brands hereunder, the Customer hereby charges as beneficial owner of all the Customer’s freehold and leasehold interest in land both in which the Customer is now possessed and which may hereafter be acquired along with all the Customer’s personal property, both presently owned by the Customer and that which the Customer acquires hereafter. The Customer further agrees that immediately upon demand being made upon the Customer by Gourmet Brands such Bill of Mortgage or Bill of Encumbrance, or other instrument of security or consent to such caveat as Gourmet Brands may require, duly executed or consented to the Customer. In the event the Customer should neglect or fail to deliver the requested instrument of security, the customer hereby appoints the proprietors of Gourmet Brands to be the Customer’s lawful attorneys for all such purposes of executing and registering such instruments.
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