1. The expression “Company” means Total Stockfeeds Pty Ltd, hereafter referred to as “TS” and “products” refers to all product sold by TS to the customer.
2. Where ever possible, dealings between TS and its customers will be subject to these conditions of sale (“conditions”) unless specifically agreed in writing.
3.1 Ownership of products will not pass to customer until paid for in full;
3.2 TS is granted permission by the customer to enter any property where the product is stored to take possession of and if necessary dispose of the product;
3.3 The customer will be liable for any disposal costs incurred by TS.
3.4 Any funds received by TS from the disposal of the product will be applied against the customers account and the customer remains liable to repay the balance of any monies due;
3.5 Upon delivery, the customer accepts liability for the safe custody of products and indemnifies TS for any losses relating thereto;
3.6 The customer agrees that a certificate purporting to be signed by an Officer of TS identifying products as unpaid for shall be conclusive evidence that the goods have not been paid for and title remains in TS.
4. Payment conditions
4.1 Cash with order (CWO) requires for payment to be made at time of placing the order;
4.2 Cash prior to delivery (COD) requires payment to be made prior to the collection or delivery of the product;
4.3 Credit purchases will be paid by EFT, cheque, bank cheque or cash without deduction before close of business on the last business day of the month following the invoice date;
4.4 TS may vary or withdraw any credit facility or credit limit at any time, at its own discretion, without any liability to the customer or other third party.
5. The TS reserves the right to charge interest at its own election on all overdue amounts at the prime bank rate, plus 4%.
6. Customer claims for short deliveries, damage, incorrect stock or any other non conformance must be:
6.1 noted on the delivery documents, and signed by the delivery person;
6.2 reported to TS within 24 hours of receipt of product;
6.3 product must be used within the “Use by” period specified on the product specification sheets;
6.4 kept for collection/return to TS unless instructed in writing by TS to dispose of the product
6.5 TS reserves the right to rely on or not rely on photographic evidence of any defect/non-conformance;
6.6 no product return for claims for defect or damage or non- conformance/returns will be permitted without prior written approval of a TS representative.
6.7 No claim for mould will be accepted if the bag is opened. 6.8. Should customer re-bag or re-process product, TS will not guarantee integrity of product (as variables outside our control have been introduced).
7 Order lead time may vary from time to time and standard transit times between metropolitan areas and regional centres may vary.
8 TS reserves the right to change and enforce Minimum order quantities from time to time. Orders below the minimum order quantity may attract an additional fee.
9. Limitation of liability:
9.1 The Customer agrees to limit any claim it makes to the cost of supply of equivalent products or the supply of services again
9.2 TS will not be liable for any contingent consequential direct indirect special or punitive damage arising in any way whether due to TS’s negligence or otherwise and the Customer acknowledges this express limit of liability and agrees to limit any claim accordingly.
9.3 No other term, condition, agreement, warranty, representation or understanding whether express or implied, extending to or relating to or binding upon TS is made or given.
10.1 Sample: No contract between TS and the Customer shall be or be deemed to be a sale by sample.
10.2 If TS publishes material concerning its products, services or prices, anything so published which is incompatible with these Conditions is expressly excluded.
10.3 The Customer will rely on its own knowledge and expertise in selecting any product or services for any purpose and any advice or assistance given for or on behalf of TS shall be accepted at the Customer’s risk and shall not be or be deemed given as expert or adviser nor to have been relied upon by or through the Customer.
11. Placement of Orders: The Customer agrees 11.1 in the event of any dispute concerning any order (including any question of identity or authority or any telephone facsimile, e-mail, e-commerce or computer generated order) that the internal records of TS will be conclusive evidence of what was ordered.
11.2 each order it places shall be and be deemed to be a representation by it, made at the time, or that it is and will remain in the future solvent and able to pay all of its debts as and when they fall due.
11.3 failure to pay TS in accordance with these Conditions shall be and be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in 11.4 and that the representations were unconscionable, misleading and deceptive
11.4 when any order is placed the Customer shall inform TS of any material facts which would or might reasonably affect the commercial decision by TS to accept the order and/or grant credit in relation thereto. Any failure to do so by or on behalf of the Customer shall create and be deemed to create an inequality of bargaining position and be deemed to be constitute the taking of an unfair advantage of TS and to be unconscionable, misleading and deceptive.
12. Purchase Price:
12.1 All sales are made at TS’s ruling price at time of delivery
12.2 duty, Government charges etc. including GST (“imposts”) will be to the Customer’s account. TS price lists exclude imposts unless expressly noted thereon.
12.3 any volume rebate or settlement discount will be calculated on base price exclusive of imposts.
13.1 TS accepts no responsibility for delivery but may elect to arrange delivery at its discretion and without any liability and at the Customer’s costs and responsibility in all things
13.2 TS may charge for any delivery
13.3 the Customer will be deemed to have accepted delivery and liability for products immediately TS notifies that they are ready for collection or they are delivered to a carrier or to the Customer’s business premises or site whether attended or not
13.4 a certificate purporting to be signed by an officer of TS confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket
13.5 TS will not be liable for delay failure or inability to delivery any products or perform any Services.
13.6 the Customer will pay all costs of TS in holding products for the Customer after TS gives notice that they are ready for collection or delivery.
14. Pallets. The Customer will accept all pallets to be de-hired onto their account with an agreed Pallet Supplier/Agent.
15. Products and Services
15.1 TS disclaims any responsibility or liability relating to any products made which are (i) provided or approved by or on behalf of the Customer (ii) utilised, stored, handled or maintained incorrectly or inappropriately
15.2 the Customer agrees to check all products for compliance with all applicable Standards and regulatory bodies before use, on-sale or application and to use or apply same in accordance therewith and with all manufacturer or TS recommendations and directions and good commercial practice.
15.3 the Customer acknowledges TS may update modify alter or make substitution for any of its products or any component in or used in forming any party of any products as part of its ongoing business development, and agrees to accept current products in substitution for any products ordered provided they are not materially different.
16. Other Conditions and Conditions: No terns and conditions sought to be imposed by the Customer (including any Conditions and Conditions of Purchase or the like) shall apply.
17. Recovery Costs. The Customer will pay any costs and expenses incurred by TS or its solicitors, legal advisers, mercantile agents and others acting on TS’s behalf in respect of anything arising from these Conditions or any dealing with TS.
18. Attornment: To give effect to its obligations arising hereunder, the Customer irrevocably appoints any solicitor acting for TS from time to time, as its attorney in all things.
19. Variation or cancellation of these Conditions or any order must be in writing and will not bind TS unless approved in writing by an authorised representative.
20. Defaults: Upon any breach of these Conditions or default in any dealing with TS by the Customer:
20.1 TS may (inter alia) retain all monies paid and/or cease further deliveries and recover from the Customer all loss of profits arising and or at and or at its discretion take possession of any products not paid for, without prejudice to any other of its rights and without being liable to any party
20.2 The Customer agrees not to commence or continue or permit to be commenced or continued through it any action against TS until any such default or breach is remedied
20.3 TS will be deemed to have requested the securities referred to in clause 27.
21 Severability: Any part hereof being a whole or part of a clause, shall be capable of severance without effecting any other part of these Conditions.
22. Customer Restructure: The Customer
22.1 will notify TS in writing of any change in its structure or management including any change in director, shareholder, management or change in partnership or trusteeship or of sale of any material part of its business within 7 days of any such change. Publicly traded companies are exempt with respect to shareholder changes.
22.2 will be liable to TS for any purchases from TS by any party acquiring any material part of the Customer’s business until such notice is given.
23. Jurisdiction: All dealings with TS shall be deemed to occur in the State nominated by TS and the Customer agrees to submit to the jurisdiction of any Courts nominated by TS.
24. Waiver: If TS elects not to exercise any rights arising from any breach of these Conditions it shall not be a waiver of any rights relating to any subsequent or other breach.
25. Notice: The Customer agrees that it will be deemed to have notice of any change to these conditions immediately they are adopted by TS. The Customer agrees to be bound by any conditions and conditions of sale adopted by TS immediately they are so adopted and notwithstanding any other purported or pre-existing conditions and conditions of TS.
26. Indemnity: The Customer indemnifies TS against any claim or loss arising from or relating to any dealing with TS or anything arising therefrom, or arising as a result of or subsequent to any breach of these Conditions or any part of the Trade Practices Act 1974 (C’W).
27. Security for Payment: The Customer will on request, execute a charge in favour of TS which charges (i) by way of a fixed charge all its books of account, financial records, goodwill, documents of title and current and later acquired real property and intellectual property and (ii) by way of floating charge, the whole of the Customer’s other assets, with payment of all monies owed.
28. Forward Orders etc: For any order or forward order, the Customer agrees
28.1 to pay for so much of any order as is invoiced by TS
28.2 that no delay or failure to fulfil any part of any order shall entitle the Customer to cancel or vary any order or delay or reduce any payment.
29. Force Majeure: TS will not be in default or breach of any contract with the Customer, or any of these Conditions, as a result of Force Majeure. Force Majeure means beyond the reasonable control of TS and includes any strike or lock-out.
30.1 If the Customer commits or is involved in any act of insolvency it agrees that this should be deemed in default under these conditions 30.2 An act of insolvency is deemed to include bankruptcy, liquidation, receivership, administration or the like.
31. Intellectual Property: The Customer agrees that all intellectual property or the like used in the preparation for or production of any products will be and remain the property of TS despite any contribution by the Customer.
32. Vienna Convention Excluded: The United Nations Convention on Contracts for the International Sales of Goods or any modification or substitution therefore is expressly excluded.
33. Ability to Supply. TS will not be liable for any delay in supply or availability of any products or services and may allocate them between Customers at its discretion.
34. Contracts and Quotations between the parties will be deemed to incorporate these Conditions by reference. If there is any conflict between these Conditions and any contract or quotation, the contract or quotation will prevail to the extent necessary to resolve any such conflict but these Conditions will otherwise continue to apply.
35. Where the context permits singular includes plural, and male gender includes female and neuter gender.
CARRIAGE & STORAGE
36. The expression ‘Consignor’ primarily means the person in whose name the goods are for the time being stored or carried but where the context reasonably permits shall include any person being the beneficial owner or mortgagee of the goods and any person who rents the whole or any part of the Company cold store. The Company may at its discretion act upon instructions received from the person in whose name the goods are stored or carried or from the beneficial owner or from the mortgagee. In the case of partnership or joint ownership each co-owner shall be deemed to have authority to bind all co-owners. Liability of those responsible (including the beneficial owner and mortgagee) shall be joint and several.
37. The expression “storage” or “cold storage” means the whole of the operations and service undertaken in respect of the goods, including, where the context reasonably permits, the carriage of goods.
38. The Company primarily carries on the business of cold storage and its carriage of goods is incidental thereto. The Company is not a common carrier and accepts no liability as such subject to any applicable statutory provision to the contrary. All goods are carried or transported and all storage and other services are performed by the Company subject only to these conditions and conditions and the Company reserves the right to refuse the carriage or transportation or goods for any person, corporation or firm and the carriage or transport of any class of goods at its discretion.
39. The Consignor hereby authorises the Company (if it should think fit to do so) to arrange with a sub-contractor or sub- contractors for the storage or carriage in whole or in part of any goods the subject of this contract. Any such arrangement shall be deemed to be ratified by the Consignor upon delivery of the said goods to such sub-contractor who shall thereupon be entitled to the full benefit of these conditions and conditions to the same extent as the Company.
40. Goods are stored at the Consignor’s own risk; insurance shall be its sole responsibility.
41. Insurance of the goods will not be effected for the benefit of the Consignor unless such insurance is requested in writing by the Consignor and accepted by the Company in writing. It is the Consignor’s responsibility to insure the goods against all forms of risk of loss and damage.
42. The Consignor agrees that there shall be no liability of the Company’s servants, agents and/or sub contractors (and servants or agents of such sub contractors) by whom the storage or carriage or any part of the storage or carriage is performed or undertaken (other than by the Company) which imposes or attempts to impose upon any such person any liability whatsoever in connection with the goods whether or not arising out of negligence on the part of such persons. Without prejudice to the foregoing every such person shall have the benefit of all provisions herein benefiting the Company as if such provisions were expressly for their benefit; and in entering into this contract the Company to the extent of these provisions does so not only on its own behalf but also as agent and trustee for any such person. The Consignor hereby authorises the Company to offer to such persons the benefit and protection of all provisions herein benefiting the Company, such offer to be accepted by each of such persons upon their performing same services or duties in respect of the storage or carriage.
43. The Consignor warrants:
1. that all goods delivered and received by the Company or into trucks are indelibly and clearly and distinctively marked so that they may be readily identifiable;
2. That the goods are and will remain free of deleterious or objectional matter or odours which may prejudicially affect any other goods in storage;
3. that the Consignor owns the goods free from any encumbrance, charge, lien or interest and is fully authorised to store the goods in his own name upon the Company’s storage conditions.;
4. That the goods are not volatile or explosive or may become dangerous, inflammable or offensive or may cause damage to person or property;
5. That it will give reasonable notice for collection of goods; and
6. That the goods stored are owned by the Consignor and that the Consignor has full right power and authority to store the same with the Company.
44. The Consignor shall be liable for all storage and any other charges payable in respect of the goods up to time of delivery (including day of delivery) or as provided in the Consignor’s Schedule of Rates. All charges shall be payable from time to time upon demand and before removal of goods.
45. Without derogating from any other provision in this contract, it is expressly agreed that all the rights, immunities, exemptions from and limitations of liability granted to the Company by the provisions set forth in these conditions of contract shall have and continue to have their full force and effect in all circumstances whether or not the same occur in the course or performance by the Company of the contract or are in the contemplation of the Company and/or the Consignor or are foreseeable by them or either of them or would constitute a fundamental breach of the contract or a breach of a fundamental term thereof.
46. The consignor agrees that there shall be no liability of the Consignor for loss of life and/or personal injury to any person or persons whatsoever or howsoever caused or contributed to by the goods covered by this contract or any inherent vice thereof caused or contributed by the storage and/or carriage of the goods even though such loss of life personal injury loss or damages results from or is contributed to by the negligence of the Company.
47. Subject to Clause 48, the Company and its sub contractors shall not be liable to the Consignor either directly or indirectly in tort or in contract or otherwise for any expense, loss, injury or deterioration or damage to any goods stored or carried or for any misdelivery, failure or delay in delivery whatsoever or howsoever occasioned, whether directly or indirectly suffered by the Consignor whatsoever and in particular arising from damage or destruction by fire, theft, storm, flood, tempest or water, act of God, act of War, orders or restrictions imposed by any government or lawful authority or from negligence or alleged negligence of or any act or omission of the Company or its servants or agents and without prejudice to the generality of the foregoing the Company shall not be liable for any such loss injury or damage:
(a) suffered by non-delivery or delayed delivery of the goods stored;
(b) resulting from or contributed to by chilling, freezing or storage or from contact of the goods with or their proximity to other goods or variation in or wrong temperatures or sweating, evaporation, leakage, breakage, shrinkage, deterioration, fermentation, wasting, decay, putrification or contamination of the goods by vermin;
(c) resulting from or contributed to by any strikes, lock-outs, shortage of labour, defect and or break down of plant or premises;
(d) caused or contributed to by the Company using or not using labour, machinery or plant the use or non-use of which it in its absolute discretion might precipitate cause or aggravate strike or entail risk to goods or business of the Company or any one or more of its customers; (e) resulting from or contributed to by any circumstances within or beyond the reasonable control of the Company.
48. Notwithstanding anything herein contained, the Company shall continue to be subject to any warranty or condition provided by the Trade Practices Act 1974 (as amended) if and to the extent that the said Act is applicable to this contract and prevents the exclusion restriction or modification of any warranty and condition. The liability of the Company if any for breach of any warranty or condition so implied by the Act (other than in the case of the contract for the supply of services ordinarily acquired for personal, domestic or household use or consumption) shall be limited to the supply of services again or at the Company’s option, the payment of the cost of having the service supplied again.
49. All claims is respect of any loss or damage to goods stored or carried must be made to the Company by the Consignor in writing setting out particulars thereof within 48 hours from the time of delivery to the Consignor. In any event the Company shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after the goods have or should have been delivered to the Consignor.
50. All storage, cartage and handling charges shall be charged at the Company’s rate of charges from time to time current during the period of storage or at the time of carriage and shall be payable on demand. Such charges from time to time payable by the Consignor whether in respect of goods comprised herein or other goods shall constitute a charge upon the goods covered by this contract and also upon such goods as are from time to time in the possession or control of the Company in the name of the Consignor or belonging to him and the Company shall have a general lien on all such goods and shall have the right to open up and separate and sell the same by public auction or by private treaty to recover storage and/or carriage charges or any other monies owing to the Company or on any account whatsoever if such fees or other monies are due and unpaid for thirty (30) days whether demand for payment has been made or not. In cases of any sales pursuant to this clause, no exception shall be taken upon the ground that any price realised is less than market value. The proceeds of any such sales shall be applied in the following manner:
(a) first in payment of the cost, charges and expenses incurred either in the cost of transporting the goods and in the execution of any of the powers herein conferred;
(b) in payment of storage and cartage charges due to the Company up to the date of sale;
(c) any other monies payable by the Consignor to the Company;
(d) the balance (if any) shall be payable to the person who is recorded in the Company’s records as Consignor of the goods.
51. The Consignor hereby authorises any deviation from the usual route or manner of cartage of goods which may in the absolute discretion of the Company be deemed reasonable or necessary in the circumstances.
52. All goods shall be tallied into any store. If the Consignor or his representative is not present at the time of receipt, the Company’s tally and description of the goods shall be accepted as final.
53. All goods will be tallied out of the store upon delivery. If the Consignor or his representative is not present at the time of delivery the tally and description of the goods by the Company shall be accepted as final.
54. An Inwards Receipt shall not constitute a document of title to goods or be negotiable nor shall any rights of the Consignor hereunder be assignable. The Company shall not be bound to recognise any person other than the person recorded as the Consignor as the owner of the goods or as having any interest in them.
55. If goods comprised in any storage receipt or warrant are delivered by request and if the storage receipt or warrant are not surrendered by the Consignor the Consignor shall hold the Company indemnified against all claims whatsoever and at whosoever’s instance in respect of the storage receipt and warrant and all goods referred to therein.
56. The Company shall have full control over storage and shall have the sole right of deciding whether in any particular case goods shall be stored in bulk or in assorted or separate lots or in a freezer or chiller.
57. The Company shall be entitled at any time without notice to or permission from the Consignor to remove any goods or part thereof to any storage premises whether belonging to the Company or not if for any reason whatsoever the Company may desire to do so. In the event of any goods being so removed the provisions of these conditions and conditions shall apply, during the removal and while in store in any other storage premises.
58. The Company does not in the absence of special arrangements to the contrary (which special arrangements must be evidenced in writing) accept responsibility for the cleanliness, condition or suitability for use of a container, neither does the Company accept responsibility for thermostat setting or operation of the refrigerator mechanism of a container while it is at the cold store or after it has left the cold store. The provisions of the conditions and conditions of storage and carriage shall apply to any goods packaged in a container by the Company and to the container or containers or other packaging containing the goods and to any pallet or pallets delivered to the Company by the Consignor. If the Consignor or his representative is not present at the time of packing a declaration by the Company as to the quantity, description, temperature and condition of the goods shall be accepted as final.
59. The Company’s charges shall be considered earned as soon as the goods are delivered to the Company and they shall be deemed a charge and constitute a lien on the goods.
60. These conditions and conditions and all agreements made by the Company with any Consignors whenever shall be governed and construed according to the laws of the State of Queensland and subject to the exclusive jurisdiction of the Courts of that State.
61. Any notices to the Consignor may be given in writing posted to faxed to or delivered at the address last known to the Company and notwithstanding any statute or law to the contrary, notices so posted as aforesaid shall be deemed to have been received by the Consignor at the time when in the ordinary course of posting or faxing should have been delivered at or received at such address.
62. No purported variation or modification of these conditions shall have any effect unless in writing signed by an executive officer of the Company.