Credit Account - Terms and Conditions of Sale
1.1 “Organic Trader” means Organic Trader Pty Limited, its successors and assigns or any person acting on behalf of and with the authority of Organic Trader Pty Limited.
1.2 “Purchaser” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Purchaser is a reference to each Purchaser jointly and severally.
1.3 “Goods” means all Goods or Services supplied by Organic Trader to the Purchaser at the Purchaser’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between Organic Trader and the Purchaser in accordance with clause 4 below.
2.1 The Purchaser is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Purchaser places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with Organic Trader’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Purchaser and Organic Trader.
2.3 At Organic Trader’s sole discretion, Organic Trader reserves the right to not accept the Cancellation of orders and/or returns where Organic Trader has provided Goods in good faith and in accordance with the Purchaser’s purchase order specifications where the:
(a) stock items are in a quantity that exceeds the amount representing more than six (6) months worth of normal sales of that stock item; or
(b) special quantities ordered for stocked items.
2.4 The Purchaser acknowledges that the supply of Goods on credit shall not take effect until the Purchaser has completed a credit application with Organic Trader and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods request exceeds the Purchaser’s credit limit and/or the account exceeds the payment terms, Organic Trader reserves the right to refuse delivery.
- Change in Control
3.1 The Purchaser shall give Organic Trader not less than fifty-five (55) days prior written notice of any proposed change of ownership of the Purchaser and/or any other change in the Purchaser’s details (including but not limited to, changes in the Purchaser’s name,
address, contact phone or fax number/s, or business practice). The Purchaser shall be liable for any loss incurred by Organic Trader as a result of the Purchaser’s failure to comply with this clause.
- Price and Payment
4.1 At Organic Trader’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Organic Trader to the Purchaser; or (b) the Price as at the date of delivery of the Goods according to Organic Trader’s current price list.
4.2 Organic Trader reserves the right to change the Price:
(a) if a variation to the Goods which are to supplied is requested; or
(b) where additional or substituted Goods are required due to unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the Goods, availability of Goods) which are only discovered on placement of order; or
(c) in the event of increases to Organic Trader in the cost of Goods (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond Organic Trader’s control.
4.3 Time for payment for the Goods being of the essence, the Price will be payable by the Purchaser on the date/s determined by Organic Trader, which may be:
(a) before delivery of the Goods for new orders;
(b) thirty (30) days following the end of the month in which a statement is posted to the Purchaser’s address or address for notices;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which, at Organic Trader’s discretion, is either fourteen (14) or thirty (30) days following the date of any invoice given to the Purchaser by Organic Trader.
4.4 Payment may be made by electronic/online banking, credit card (plus a surcharge of up to 2% of the Price), cheque, bank cheque , or by any other method as agreed to between the Purchaser and Organic Trader.
4.5 Unless otherwise stated the Price does not include GST. In addition to the Price the Purchaser must pay to Organic Trader an amount equal to any GST Organic Trader must pay for any supply by Organic Trader under this or any other agreement for the sale of the Goods. The Purchaser must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Purchaser pays the Price. In addition the Purchaser must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
- Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Purchaser or the Purchaser’s nominated carrier takes possession of the Goods at Organic Trader’s address; or
(b) Organic Trader (or Organic Trader’s nominated carrier) delivers the Goods to the Purchaser’s nominated address even if the Purchaser is not present at the address.
5.2 At Organic Trader’s sole discretion the cost of delivery is in addition to the Price.
5.3 The Purchaser must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Purchaser is unable to take delivery of the Goods as arranged then Organic Trader shall be entitled to charge a reasonable fee for
redelivery and/or storage.
5.4 Organic Trader may deliver the Goods in separate installments. Each separate installment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 Any time or date given by Organic Trader to the Purchaser is an estimate only. The Purchaser must still accept delivery of the Goods even if late and Organic Trader will not be liable for any loss or damage incurred by the Purchaser as a result of the delivery being late.
6.1 Risk of damage to or loss of the Goods passes to the Purchaser on Delivery and the Purchaser must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Purchaser, Organic Trader is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Organic Trader is sufficient evidence of Organic Trader’s rights to receive the insurance proceeds without the need for any person dealing with Organic Trader to make further enquiries.
6.3 If the Purchaser requests Organic Trader to leave Goods outside Organic Trader’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Purchaser’s sole risk.
7.1 Organic Trader and the Purchaser agree that ownership of the Goods shall not pass until:
(a) the Purchaser has paid Organic Trader all amounts owing to Organic Trader; and
(b) the Purchaser has met all of its other obligations to Organic Trader.
7.2 Receipt by Organic Trader of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
7.3 It is further agreed that:
(a) until ownership of the Goods passes to the Purchaser in accordance with clause
7.1 that the Purchaser is only a bailee of the Goods and must return the Goods to Organic Trader on request.
(b) the Purchaser holds the benefit of the Purchaser’s insurance of the Goods on trust for Organic Trader and must pay to Organic Trader the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Purchaser must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Purchaser sells, disposes or parts with possession of the Goods then the Purchaser must hold the proceeds of any such act on trust for Organic Trader and must pay or deliver the proceeds to Organic Trader on demand.
(d) the Purchaser should not convert or process the Goods or intermix them with other goods but if the Purchaser does so then the Purchaser holds the resulting product on trust for the benefit of Organic Trader and must sell, dispose of or return the resulting product to Organic Trader as it so directs.
(e) the Purchaser irrevocably authorises Organic Trader to enter any premises where Organic Trader believes the Goods are kept and recover possession of the Goods.
(f) Organic Trader may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Purchaser shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Organic Trader.
(h) Organic Trader may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Purchaser.
- Personal Property Securities Act 2009 (“PPSA”)
8.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
8.2 Upon assenting to these terms and conditions in writing the Purchaser acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been
supplied and that will be supplied in the future by Organic Trader to the Purchaser.
8.3 The Purchaser undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Organic Trader may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 8.3(a)(i) or 8.3(a)(ii);
(b) indemnify, and upon demand reimburse, Organic Trader for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Organic Trader;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Organic Trader;
(e) immediately advise Organic Trader of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
8.4 Organic Trader and the Purchaser agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
8.5 The Purchaser waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
8.6 The Purchaser waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
8.7 Unless otherwise agreed to in writing by Organic Trader, the Purchaser waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8.8 The Purchaser must unconditionally ratify any actions taken by Organic Trader under clauses 8.3 to 8.5.
8.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
- Security and Charge
9.1 In consideration of Organic Trader agreeing to supply the Goods, the Purchaser charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Purchaser either now or in the future, to secure the performance by the Purchaser of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
9.2 The Purchaser indemnifies Organic Trader from and against all Organic Trader’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Organic Trader’s rights under this clause.
9.3 The Purchaser irrevocably appoints Organic Trader and each director of Organic Trader as the Purchaser’s true and lawful attorney/s to perform all necessary acts to give effect to
the provisions of this clause 9 including, but not limited to, signing any document on the Purchaser’s behalf.
- Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
10.1 The Purchaser must inspect the Goods on delivery and must within seven (7) days of delivery notify Organic Trader in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Purchaser must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Purchaser must allow Organic Trader to inspect the Goods.
10.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
10.3 Organic Trader acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
10.4 Except as expressly set out in these terms and conditions or in respect of the Non- Excluded Guarantees, Organic Trader makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Organic Trader’s liability in respect of these warranties is limited to the fullest extent permitted by law.
10.5 If the Purchaser is a consumer within the meaning of the CCA, Organic Trader’s liability is limited to the extent permitted by section 64A of Schedule 2.
10.6 If Organic Trader is required to replace the Goods under this clause or the CCA, but is unable to do so, Organic Trader may refund any money the Purchaser has paid for the Goods.
10.7 If the Purchaser is not a consumer within the meaning of the CCA, Organic Trader’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Purchaser by Organic Trader at Organic Trader’s sole discretion;
(b) limited to any warranty to which Organic Trader is entitled, if Organic Trader did not manufacture the Goods;
(c) otherwise negated absolutely.
10.8 Subject to this clause 10, returns will only be accepted provided that:
(a) the Purchaser has complied with the provisions of clause 10.1; and
(b) Organic Trader has agreed in writing that the Goods are defective; and (c) the Goods are returned within a reasonable time at the Purchaser’s cost (if that cost is not significant) with Organic Trader’s nominated carrier; and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
10.9 Notwithstanding clauses 10.1 to 10.8 but subject to the CCA, Organic Trader shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Purchaser failing to properly maintain or store any Goods;
(b) the Purchaser using the Goods for any purpose other than that for which they were designed;
(c) the Purchaser continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Purchaser failing to follow any instructions or guidelines provided by Organic Trader;
(e) fair wear and tear, any accident, or act of God.
10.10 Organic Trader may in its absolute discretion accept non-defective Goods for return in which case Organic Trader may require the Purchaser to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
10.11 Notwithstanding anything contained in this clause if Organic Trader is required by a law to accept a return then Organic Trader will only accept a return on the conditions imposed by that law.
- Intellectual Property
11.1 Where Organic Trader has designed, drawn or developed Goods for the Purchaser, then the copyright in any designs and drawings and documents shall remain the property of Organic Trader.
11.2 The Purchaser agrees that Organic Trader may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Organic Trader has created for the Purchaser.
- Default and Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Organic Trader’s sole discretion such interest shall compound monthly at
such a rate) after as well as before any judgment.
12.2 If the Purchaser owes Organic Trader any money the Purchaser shall indemnify Organic Trader from and against all costs and disbursements incurred by Organic Trader in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Organic Trader’s contract default fees, and bank dishonour fees).
12.3 Without prejudice to any other remedies Organic Trader may have, if at any time the Purchaser is in breach of any obligation (including those relating to payment) under these terms and conditions Organic Trader may suspend or terminate the supply of Goods to the Purchaser. Organic Trader will not be liable to the Purchaser for any loss or damage the Purchaser suffers because Organic Trader has exercised its rights under this clause.
12.4 Without prejudice to Organic Trader’s other remedies at law Organic Trader shall be entitled to cancel all or any part of any order of the Purchaser which remains unfulfilled and all amounts owing to Organic Trader shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Organic Trader becomes overdue, or in Organic Trader’s opinion the Purchaser will be unable to make a payment when it falls due;
(b) the Purchaser becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Purchaser or any asset of the Purchaser.
13.1 Organic Trader may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Purchaser. On giving such notice Organic Trader shall repay to the Purchaser any money paid by the Purchaser for the Goods. Organic Trader shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 In the event that the Purchaser cancels delivery of Goods the Purchaser shall be liable for any and all loss incurred (whether direct or indirect) by Organic Trader as a direct result of the cancellation (including, but not limited to, any loss of profits).
13.3 Cancellation of orders for Goods made to the Purchaser’s specifications, or for nonstocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
- Privacy Act 1988
14.1 The Purchaser agrees for Organic Trader to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Purchaser in relation to credit provided by Organic Trader.
14.2 The Purchaser agrees that Organic Trader may exchange information about the Purchaser with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Purchaser; and/or
(b) to notify other credit providers of a default by the Purchaser; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Purchaser is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Purchaser including the Purchaser’s repayment history in the preceding two years.
14.3 The Purchaser consents to Organic Trader being given a consumer credit report to collect overdue payment on commercial credit.
14.4 The Purchaser agrees that personal credit information provided may be used and retained by Organic Trader for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Purchaser’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Purchaser; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
14.5 Organic Trader may give information about the Purchaser to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Purchaser including credit history.
14.6 The information given to the CRB may include:
(a) personal information as outlined in 14.1 above;
(b) name of the credit provider and that Organic Trader is a current credit provider to the Purchaser;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Purchaser’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Purchaser no longer has any overdue accounts and Organic Trader has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Organic Trader, the Purchaser has committed a serious credit infringement;
(h) advice that the amount of the Purchaser’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
14.7 The Purchaser shall have the right to request (by e-mail) from Organic Trader:
(a) a copy of the information about the Purchaser retained by Organic Trader and the right to request that Organic Trader correct any incorrect information; and
(b) that Organic Trader does not disclose any personal information about the Purchaser for the purpose of direct marketing.
14.8 Organic Trader will destroy personal information upon the Purchaser’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
14.9 The Purchaser can make a privacy complaint by contacting Organic Trader via email. Organic Trader will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Purchaser is not satisfied with the resolution provided, the Purchaser can make a complaint to the Information Commissioner at www.oaic.gov.au.
15.1 The failure by Organic Trader to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Organic Trader’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
15.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales in which Organic Trader has its principal place of business, and are subject to the jurisdiction of the Sydney courts in New South Wales.
15.3 Subject to clause 10 Organic Trader shall be under no liability whatsoever to the Purchaser for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Purchaser arising out of a breach by Organic Trader of these terms and conditions (alternatively Organic Trader’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
15.4 The Purchaser shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Purchaser by Organic Trader nor to withhold payment of any invoice because part of that invoice is in dispute.
15.5 Organic Trader may license or sub-contract all or any part of its rights and obligations without the Purchaser’s consent.
15.6 The Purchaser agrees that Organic Trader may amend these terms and conditions at any time. If Organic Trader makes a change to these terms and conditions, then that change will take effect from the date on which Organic Trader notifies the Purchaser of such change. The Purchaser will be taken to have accepted such changes if the Purchaser makes a further request for Organic Trader to provide Goods to the Purchaser.
15.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
15.8 The Purchaser warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.