WORN GUNDIDJ TERMS OF TRADE
These standard terms of trade (Terms of Trade) apply to all sales and supplies provided by Worn Gundidj Aboriginal Co-operative Ltd ABN 13 986 701 465 (Worn Gundidj, Supplier, we, us) to you (Customer, you). By signing, agreeing or otherwise confirming a Quote and/or Order, the Customer will be bound by and agrees to accept the Terms of Trade which apply at date of the Quote and/or Order.
These Terms of Trade apply to all Quotes and/or Orders so that when the Quote or Order is signed, agreed or otherwise confirmed by the Customer, these Terms of Trade, bind the Customer and will make up “the Contract” (that is, ach Quote and/or Order make up a separate Contract).
The Contract constitutes the entire agreement and supersedes all previous agreements and understandings relating to our supply of Goods and Services (as specified in the Contract) to you. You agree that you have not relied on any statement, representation, assurance or warranty that is not explicitly set out in the terms of the Contract. Any additional or different terms provided by the Customer in any other documents it supplies or process it runs, including vendor or supplier registration forms or portals, purchase order terms, invoicing terms or online terms will be deemed void and not binding.
Definitions and interpretation
In these Terms of Trade:
Additional Charge means:
- fees or charges for additional work performed at the Customer’s request or reasonably required as a result of the Customer’s conduct, calculated in accordance with the Supplier’s then current prices; and
- expenses incurred by the Supplier, at the Customer’s request or reasonably required as a result of the Customer’s conduct.
Business Day means a day that is not a Saturday, Sunday or public holiday in Victoria.
Business Hours means 9am to 4pm Monday to Friday.
Customer means the person identified on a Quote or Order as the customer and includes the Customer’s agents and permitted assigns.
Deposit means a deposit of fifteen percent (15%) plus GST of the value of an Order.
Established Account Customer means a Customer that has an established course of dealing and previously arranged payment terms with the Supplier.
Goods means any goods supplied by the Supplier. including those supplied in the course of providing Services.
GST means Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other applicable legislation governing GST or similar impost or duty as amended or substituted from time to time.
Loss includes, but is not limited to costs, the Supplier’s legal costs, consequential loss or damage, expenses, lost profits, award of damages, personal injury and property damage.
Order means a purchase order for Goods and/or Services placed by a Customer in response to a Quote and as varied in writing from time to time by the parties. For the avoidance of doubt an Order includes an Order where the subject matter of the Order is specifically procured, held or otherwise obtained and/or retained by the Supplier at the request and for the benefit of the Customer following payment of a Deposit.
PPSA means the Personal Property Securities Act 2009 (Cth) and any regulation made thereunder, as amended or substituted from time to time.
Quote means a written description of the Goods and/or Services to be provided, an estimate of the Supplier’s charges for the performance of the required work.
Services means the services to be provided by the Supplier to the Customer in accordance with a Quote and these Terms of Trade.
Supplier’s Catalogue means the catalogue published by the Supplier for use by trade or retail customers and which details the price for plants grown by the Supplier on a GST inclusive basis.
Work Health and Safety Laws means the Work Health and Safety Act 2011 (Cth) and the Work Health and Safety Regulations 2011(Cth) as amended or substituted from time to time.
In these Terms of Trade, unless the context otherwise requires:
- a reference to writing includes email and other communication established through the Supplier’s website (if any);
- the singular includes the plural and vice versa;
- a reference to a clause or paragraph is a reference to a clause or paragraph of these Terms of Trade;
- a reference to a party to these Terms of Trade or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
- where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
- headings are for ease of reference only and do not affect the meaning or interpretation of these Terms of Trade;
- if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
- if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
- in all other cases, must be done on the next Business Day.
- references to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation.
As far as possible all provisions will be construed so as not to be invalid, illegal or unenforceable.
If a provision cannot be read down, that provision will be void and severable and the remaining provisions will not be affected.
If anything in these Terms of Trade is unenforceable, illegal or void then it is severed and the rest of these Terms of Trade remains force.
No rule of construction will apply to disadvantage a Party on the basis that it put forward these Terms of Trade.
Engagement of the Supplier
These Terms of Trade apply to all transactions between the Customer and the Supplier relating to the provision of Goods and Services from the Worn Gundidj Indigenous Nursery. These Terms of Trade take precedence over terms of trade, purchase order terms or similar, contained in any document held or relied on by the Customer or any relevant third party.
The Customer will be deemed to have accepted these Terms of Trade, irrespective of whether the Customer has acknowledged or signed these Terms of Trade, by the Customer doing any of the following acts:
- requesting or accepting a Quote;
- placing an Order;
- taking or accepting delivery of any Goods and/or Services;
- using any Goods and/or Services; or
- otherwise implying acceptance of these Terms of Trade through conduct.
The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
The Supplier may amend any details in a Quote by notice in writing to the Customer. Such amended details supersede any relevant prior detail in dealings between the parties.
Unless otherwise stated, all prices specified in the Supplier’s Catalogue and trade list or otherwise quoted by the Supplier are inclusive of Goods and Services Tax (GST).
Prices specified in the Supplier’s Catalogue and trade list are exclusively applicable to Goods and/or Services provided by the Supplier. Goods and/or Services sourced from other providers for a Customer will be charged at the rate of that provider and are subject to Additional Charges by the Supplier.
If the Supplier makes any alterations to the price of the Goods and/or Services or to any of their inputs either before acceptance of or during the currency of the Quote or Order, the Customer will be liable to pay for the Goods and/or Services at the altered price.
The Supplier’s Catalogue and trade list and all prices stated therein are intended for the use and reference between the Supplier as a wholesaler and its supply to trade and retail customers. The prices stated in the Supplier’s Catalogue and trade list are not for use by, and do not apply to the general public.
The Supplier may provide the Customer with a Quote. Any Quote issued by the Supplier is valid for 30 days from the date of issue.
Unless otherwise expressly stipulated or agreed to in writing, a Quote does not include delivery of the Goods.
Following provision of a Quote to the Customer, the Supplier is not obliged to commence work until the Quote has been accepted by the Customer by completing an Order form and returning the form to the Supplier or by the Customer otherwise accepting or confirming an Order with the Supplier in writing.
The Supplier reserves the right to amend any Quote before the Order has been completed to take into account any rise or fall in the cost of completing the Order. The Supplier will notify the Customer of any amendment as soon as practicable, at which point the amended Quote will be the operative Quote for the purposes of these Terms of Trade.
Any indication in a Quote of the time frame for the provision of the Goods and/or Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, any estimate if provided is not binding upon the Supplier.
Every Order by the Customer for the provision of Goods and/or Services must be submitted:
- in writing on the Supplier’s standard Order form; and
- via the Worn Gundidj Indigenous Nursery website order platform, unless otherwise agreed.
Orders from, lodged by or given by the Customer constitute:
- the Customer agreeing the Quote we have given;
- the Customer agreeing to be bound to these Terms of Trade; and
- an offer that may be accepted, in writing, by the Supplier.
Any costs incurred by the Supplier in reliance on incorrect or inadequate information may result in the imposition of an Additional Charge.
Orders must be signed by an authorised representative of the Customer and may specify, a preferred date of delivery.
Following the payment of a Deposit, the Supplier will hold or otherwise retain the relevant Goods and Services at the request and for the benefit of the Customer.
The Supplier may in its absolute discretion refuse to provide Goods or Services where:
- the relevant Goods or Services are unavailable for any reason whatsoever;
- credit limits cannot be agreed upon or have been exceeded; or
- payment for Goods or Services previously provided to the Customer or related party has not been received by the Supplier.
An Order cannot be cancelled without the prior written consent of the Supplier. Where an Order is cancelled by the Customer, the Customer remains liable for the amounts contracted for in that Order and the Customer indemnifies the Supplier against any Losses incurred by the Supplier as a result of the cancellation, including, delivery and recovery costs.
The Customer must keep and supply the Goods in accordance with the Supplier’s instructions. Where these instructions are not followed and the Goods fail or spoil then the Supplier assumes no liability for such failure or spoilage.
The Customer may request that its Order be varied by providing a request in writing to the Supplier. A request for a variation must be agreed to in writing by the Supplier in order to have effect.
If the Customer wishes to vary its requirements after a Quote has been prepared or after the placement of an Order, the Supplier reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates.
A revised Quote issued by the Supplier in respect of the requested variation supersedes the original Quote.
The Supplier has an automatic extension of time for the provision of the Goods and/or Services equal to the delay caused by the variation.
Invoicing and payment
The Supplier may in its absolute discretion, issue an invoice to the Customer in any one or more of the following ways:
- prior to commencing the provision of the Goods and/or Services, for an amount equal to the Quote and any Additional Charges if applicable; and
- upon completion of the provision of the Goods and/or Services or any time thereafter.
- the amount payable in an invoice is as per the Quote and any Additional Charges.
The Customer must pay a valid tax invoice issued by the Supplier within the period specified in the invoice. Where no period is specified in an invoice, the Customer must pay within 14 days of an invoice being issued to the Customer. Subject to previous written arrangement between the Supplier and the Customer, the Customer must pay any invoice prior to delivery of the Goods and/or provision of the Services by:
- payment by cash, electronic funds transaction or credit card; or
- where an Established Account Customer, strictly as per approved account payment terms. The foregoing notwithstanding, the Supplier may, at any time amend, alter or revoke such payment terms in its absolute discretion and/or where inconsistent with these Terms of Trade.
If any invoice is outstanding, the Supplier may withhold the provision of any further Goods and/or Services until overdue amounts are paid in full.
The Supplier may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to the Supplier.
The Customer is not entitled to retain any money owing to the Supplier notwithstanding any default or alleged default by the Supplier of these Terms of Trade, including (but not limited to) the supply of allegedly faulty or defective Goods, provision of Services to an inadequate standard or a delay in the provision of Goods and/or Services. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
The Customer is to pay the Supplier on demand interest at the rate of 8% per annum on all overdue amounts owed by the Customer to the Supplier, calculated daily from the date immediately following the date specified in an invoice for payment or where no period is specified in an invoice from 15 days following issuance of an invoice.
All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of the Supplier, are to be paid by the Customer as a debt due and payable under these Terms of Trade.
The Supplier may require the Customer to pay Additional Charges in respect of Costs incurred by the Supplier as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by the Supplier in order for it to provide the Goods and/or Services within the specified time frame (if any).
The imposition of Additional Charges may also occur as a result of cancellation by the Customer of an Order where cancellation results in loss to the Supplier., including without limitation, storage costs for goods not collected from the Supplier within 2 weeks of the date on which the Goods are ready for delivery or otherwise propagated, or created at the rate set out in the Quote, photocopying, communication costs, couriers, packing and handling, Government or council taxes or charges, additional work required by the Customer or any other occurrence which causes the Supplier to incur costs in respect of the Customer’s Order additional to the quoted cost.
The Customer must give the Supplier at least 5 Business Days written notice of the dates and times during Business Hours when the Customer requires delivery of the Goods.
Any dates or times nominated by the Supplier for delivery of the Goods are approximate or estimates only.
The Supplier will confirm the date of delivery with the Customer 1 day prior to the Goods and/or Services being delivered.
Any failure or inability by the Supplier to deliver the Goods on the dates and times nominated for delivery, whether by the Supplier or by the Customer, shall not confer any right on the Customer to cancel or terminate the Order, or to refuse to accept delivery of the Goods or to claim damages from the Supplier for breach of contract or to bring any other action against the Supplier.
The Customer must ensure that:
- the nominated premises is open and accessible for delivery; and
- the Customer, its staff or an authorised representative is present to accept the delivery.
The Supplier will not be liable for any loss, damage or delay occasioned to the Customer or its customers arising from late or non-delivery or provision of the Goods.
After the Goods are delivered to the Customer, the Customer shall unload the Goods at its risk and at its expense.
If the Customer fails to unload the Goods or refuses to accept delivery of the Goods, then the Supplier may return the Goods to its premises or arrange to have them stored. Any additional costs incurred by the Supplier in returning or storing the Goods (including return transportation fees, storage fees, or other consequential costs) shall be paid by the Customer.
Delivery by the Supplier or by any agent or third-party carrier to the Customer will be to kerb side, being the side of the pavement that is nearer to the kerb, unless prior and specific arrangements are made.
In compliance with Work Health and Safety Laws, all unloading of Goods exceeding 45 litres will require onsite machinery and/or physical assistance by the Customer and/or the Customer’s agent or receiver. Failure to provide machinery or assistance on site by the Customer may result in Goods not been delivered and Additional Charges to the Customer. Where the Customer is unequipped to provide machinery or assistance necessary for a delivery, it is the Customer’s responsibility to advise and make separate arrangements with the Supplier.
Any delivery times made known to the Customer are estimates only and the Supplier is not liable for late delivery or non-delivery.
Deliveries are currently not available. We may use a third party provider to deliver products if both parties agree.
The Supplier will not be liable for any loss, damage or delay occasioned to the Customer or its customers arising from late or non-delivery or provision of the Goods and/or Services.
The Supplier will not be liable for any loss, damage or injury occasioned to the Customer or its agents, employees or customers arising from the delivery or unloading of the Goods and/or provision of Services.
The Supplier may at its option deliver the Goods to the Customer in any number of instalments unless there is an endorsement to the effect that the Customer will not take delivery by instalments.
If the Supplier delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:
- this does not constitute a repudiation of these Terms of Trade; and
- the defective instalment is a severable breach that gives rise only to a claim for compensation, refund or re-delivery.
Loss or damage in transit
The Supplier is not responsible to the Customer or any person claiming through the Customer for any loss or damage to Goods in transit caused by any event of any kind or by any person (whether or not the Supplier is legally responsible for the actions of that person).
The Supplier must provide the Customer with such assistance as may be reasonably necessary to institute claims against a carrier for damages to Goods in transit so long as the Customer:
- has notified the Supplier and the carrier in writing immediately after loss or damage is discovered on receipt of Goods; and
- serves a claim for compensation on the carrier within 3 days of the date of receipt of the Goods.
Acceptance of Goods
If the Customer fails to advise the Supplier in writing of any fault in Goods or failure of Goods to accord with the Customer’s Order within 24 hours of delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer’s Order. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
Title and risk
The risk of loss of, or damage to, the Goods will pass to the Customer upon the earlier of:
- actual or constructive delivery of the Goods to the Customer; and
- collection of the Goods from the Supplier or any bailee or agent of the Supplier by any agent, carrier or courier whomsoever for the purpose of delivery.
Title to any Goods delivered to the Customer pursuant to these Terms of Trade will not pass to the Customer until the Customer has paid all amounts that it owes to the Supplier in full, including accounts owed or owing in respect of other transactions between the Supplier and Customer. Where such Goods are supplied by the Supplier to the Customer without payment of such accounts, the Customer:
- is a bailee of the Goods until property in them passes to the Customer;
- irrevocably appoints the Supplier its attorney to do all acts and things necessary to ensure the Supplier’s retention of title to the Goods, including the registration of any security interest in favour of the Supplier with respect to the Goods under applicable law; and
- grants an irrevocable licence to the Supplier or its agent to enter the Customer’s premises in order to recover possession of Goods pursuant to this Clause 13. The Customer indemnifies the Supplier in respect of any damage to property or personal injury which occurs as a result of the Supplier entering the Customer’s premises.
The Supplier consents to the Customer selling or otherwise disposing of the Goods in the ordinary course of the Customer’s business.
Dealings with Goods
Until it has paid for them in full, the Customer must keep the Goods separately stored and marked as the property of the Supplier from other goods which are held by the Customer.
Until it has paid for them in full, the Customer must not do any of the following in relation to any of the Goods except where they are sold or otherwise disposed of in the ordinary course of the Customer’s business as contemplated by these terms of trade:
- create or allow any interest in, or dispose or part with possession of, the Goods; or
- allow the Goods to become an accession to or commingled with any other property.
The Customer must notify the Supplier if anything mentioned in clause (b) occurs immediately upon becoming aware of it.
If the Customer sells or disposes of any Goods before it has paid for them in full, the Customer will hold the proceeds of sale or disposal on trust for the Supplier to secure payment of the amount the Customer owes the Supplier for the Goods. The Customer must pay all monetary proceeds, up to the amount owed, into a separate account until they are paid over to the Supplier, and must not mix them with any other amount or use them to pay a debt.
Recovery of Goods
If the Customer does not pay the Supplier the amount the Customer owes the Supplier for the Goods within 14 days of the due date for payment, the Supplier may re-take possession of the Goods. The Supplier may enter any land or premises for the purpose of re-taking possession. If the Supplier retakes possession of any Goods, it may deal with them as it thinks fit.
Default by Customer
Each of the following occurrences constitutes an event of default:
- the Customer breaches or is alleged to have breached these Terms of Trade for any reason (including, but not limited to, defaulting on any payment due under these Terms of Trade) and fails to remedy that breach within 14 days of being given notice by the Supplier to do so;
- the Customer, being a natural person, commits an act of bankruptcy;
- the Customer, being a corporation, is subject to:
– a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
– a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of the Customer’s property and undertaking;
– the entering of a scheme of arrangement (other than for the purpose of restructuring); and
– any assignment for the benefit of creditors,
- the Customer purports to assign its rights under these Terms of Trade without the Supplier’s prior written consent; and
- the Customer ceases or threatens to cease conduct of its business in the normal manner.
Where an event of default occurs, except where payment in full has been received by the Supplier, the Supplier may:
- terminate these Terms of Trade;
- terminate any or all Orders and credit arrangements (if any) with the Customer;
- refuse to deliver Goods or provide further Services;
- pursuant to clause 12 repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or
- retain (where applicable) all money paid on account of Goods or Services or otherwise.
In addition to any action permitted to be taken by the Supplier under paragraph (b), on the occurrence of an event of default all invoices will become immediately due and payable.
Exclusions and limitation of liability
The Customer expressly agrees that use of the Goods and/or Services is at the Customer’s risk. To the full extent permitted by law, the Supplier’s liability for breach of any term implied into these Terms of Trade by any law is excluded.
To the maximum extent permitted by law, the Supplier’s total liability arising out of or in connection with the performance of its obligations pursuant to these Terms of Trade, or arising out of or in connection with the supply of specific Goods and/or Services (including pursuant to or for breach of these Terms of Trade or repudiation thereof, under statute, in equity or for tort, including negligent acts or omissions) is limited as follows:
- the Supplier shall have no liability to the Customer for any Consequential Loss; and
- the Supplier’s total aggregate liability for claims or Loss, however arising, shall not exceed the amount paid by the Customer to the Supplier for the specific Goods and/or Services that gave rise to the Loss in question.
All information, specifications and samples provided by the Supplier in relation to the Goods and/or Services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Customer’s use of the Goods and/or Services will not entitle the Customer to reject the Goods upon delivery, or to make any claim in respect of them.
To the extent permitted at law, the Supplier gives no warranty in relation to the Goods and/or Services provided or supplied. Under no circumstances is the Supplier or any of its suppliers liable or responsible in any way to the Customer or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues), as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods and/or Services including in their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
- any Goods and/or Services supplied to the Customer;
- any delay in supply of the Goods and/or Services; or
- any failure to supply the Goods and/or Services.
Any advice, recommendation, information, assistance or service given by the Supplier in relation to Goods and/or Services is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability. The Supplier does not accept any liability or responsibility for any Loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.
To the fullest extent permitted at law, the Supplier is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods and/or Services, or otherwise arising out of the provision of Goods and/or the Services, whether based on Terms of Trade, negligence, strict liability or otherwise, even if the Supplier has been advised of the possibility of damages.
The Australian Consumer Law may give to the Customer certain guarantees. Where liability for breach of any such guarantee can be limited, the Supplier’s liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods or with respect to Services to the supply of Services again or cost of re-supplying the Services again.
If circumstances beyond the Supplier’s control prevent or hinder its provision of the Goods, the Supplier is free from any obligation to provide the Goods while those circumstances continue. The Supplier may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
Circumstances beyond the Supplier’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
These Terms of Trade are governed by the laws of the state of Victoria and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state.
These Terms of Trade and any Quotes, Orders and written variations agreed to in writing by the Supplier represent the whole agreement between the parties relating to the subject matter of these terms.
These Terms of Trade govern all oral and written negotiations and communications by and on behalf of either of the parties, except as varied by written agreement.
In entering into these Terms of Trade, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by the Supplier or any of its employees or agents relating to or in connection with the subject matter of these Terms of Trade.
If any provision of these Terms of Trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right, except to the extent it has done so in writing.
A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote (or as varied pursuant to this paragraph) and:
- if sent by mail, it must be a letter sent by registered or express post; or
- if sent by email, be a letter (on letterhead) that is delivered by email.
A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by e-mail before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
A party may only change its postal or email address for service by giving notice of that change in writing to the other party.