MENORA FOODS PTY. LTD. (ACN 005 365 873)
Terms and conditions of sale
Unless otherwise inconsistent with the context:
“Act” means the Competition and Consumer Act 2010 as amended.
“authorised person” means a person duly authorised by either the Supplier or the Customer as the case maybe to have the required authority to do all things necessary under this Agreement. “Bill of Lading” means the contract to carry goods by ship and the document of the Carrier; “Carrier” means the company that is responsible for delivery of the Goods; “Customer” means and includes any person or corporation purchasing Goods from the Supplier pursuant to these terms and conditions, including the person’s successors and assigns. “Goods” includes services. “GST” means any tax or imposition on the supply of Services and services covered by A New Tax System (Services and Services Tax) Act 1999 Commonwealth (“the GST Act”) as amended from time to time; “Hague Rules” means, unless alternative provisions are made by national legislation, the provisions of the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25th August 1924 and includes the amendments by the Protocol signed at Brussels on 23rd February 1968, but only if such amendments are compulsorily applicable to these Terms of Trade. (It is expressly provided that nothing in these Terms of Trade shall be construed as contractually applying said Rules as amended by said Protocol). “Order” means an order to purchase Goods placed by the Customer and accepted by the Supplier; “Person” includes corporation. “Supplier” where the context permits or requires, means and includes Menora Foods Pty. Ltd. (ACN 005 365 873) its successors, and/or any related corporations, including any assignee, transferee, division or trading name. “Terms of Trade” means these Terms and Conditions of Sale as set out in these Terms and Conditions of Sale (including the Commercial Credit Application) as varied from time to time by notification in writing by the Supplier to the Customer Words importing the singular number shall be deemed to include the plural and vice versa.
2. CREDIT SUPPLY TERMS
a) The Terms of Trade only apply upon the Supplier accepting the Application for Credit and approving such Credit, except where otherwise agreed by the Supplier
b) Approval by the Supplier is based on each individual nominated outlet and any subsequent store locations must be approved by the Supplier before any Goods will be distributed to that outlet. c) All Orders and any other agreement between the Customer and the Supplier regarding the sale of Goods by the Supplier are deemed to incorporate these Terms of Trade. If there is any inconsistency between these Terms of Trade and any Order submitted by the Customer (whether in writing, verbally or by Electronic Data Interchange) or any other arrangement between the parties, these Terms of Trade prevail unless agreed in writing by the Supplier and signed by an authorised person of the Supplier.
d) The granting of credit terms for new or existing accounts is entirely at the Supplier’s discretion and the Supplier may withdraw or vary credit terms at any time without consent.
a) Payment for all Goods must be made in accordance with the payment term as agreed with by the Supplier without deduction.
b) Payment must be by Electronic Funds Transfer (“EFT”), bank deposit or cheque unless otherwise agreed in writing by the Supplier. Payment is not deemed to have been received until the Supplier has verified the payment has been made by clear funds.
c) Time is of the essence regarding the making of all payments and where payment is not made by the due date interest will be payable by the Customer on all amounts overdue from the due date until the date that payment is received at rate prescribed by the Penalty Interest Rate Act 1983 (Vic) as amended calculated daily and compounded monthly.
d) Any payments made by credit card or by any means other than cheque, bank deposit or EFT are subject to approval by the Supplier and may attract additional charges.
e) The Supplier may apply any payments received from or on behalf of the Customer (where the Customer has not specified the purpose of the payment) in reduction of the Customer’s indebtedness as the Supplier thinks fit.
4. PAYMENT VALIDITY
The Customer acknowledges that the Supplier continues to supply the Customer on condition that, and accepts payments from the Customer on the understanding that, all payments by the Customer are made and are received by the Supplier:
(i). In Australian currency;
(ii). in the ordinary course of business;
(iii). in good faith; and
(iv). without having any reasonable grounds for suspecting that the Customer might be or might become insolvent; unless before making the payment the Customer gives notice in writing to the Supplier of the Customer’s then inability to pay its debts as and when they become due and payable.
a) The price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Supplier.
b) The price may be increased or decreased by the amount of any increase or decrease in the cost of any items (including any change in currency exchange rates) affecting the cost of supply, production and/or delivery of the Goods between the date of these Terms of Trade, Order confirmation and the date of delivery.
c) An extra charge may be made where additional work results from lack of precision in the Customer’s specifications or the Customer alters the specifications after the date of Order.
d) The Customer is bound to pay the price from the time the Order is placed with the Supplier, with there being no obligation on the Supplier to inquire as to the authority of any person placing an Order on behalf of the Customer. No Order may be cancelled without the Supplier’s prior approval, and then only upon such terms as the Supplier may specify in writing.
e) Alterations to any price list shall be effective from the date specified by the Supplier at the time of giving notice to the Customer.
6. DELIVERY AND STORAGE AND RETURN OF PRODUCTS
a) The Customer agrees to store the Goods in accordance with the Supplier’s guidelines. Any Goods stored outside the Supplier’s guidelines will not be accepted for return.
b) The Customer acknowledges that the Goods delivered may be fresh produce and this Term 6(a) is for the safety of the public.
c) Where delivery is to be made outside of the metropolitan area, then the Customer may be charged for transportation costs.
d) Any time stated for delivery is an estimate only. The Supplier is not liable for any delay in delivery.
e) If the Customer refuses to accept delivery of any of the Goods or sign the Supplier’s Proof of Delivery docket then the Supplier may charge the Customer for any additional costs incurred as a result, including a restocking fee and any transportation costs.
f) The Supplier will only accept returns / claims for product provided that any claim is made within twenty four (24) hour of delivery.
g) Customers in all states must return goods only by the Supplier’s nominated carriers.
7. BILL OF LADING
a) The Carrier will issue the Supplier with Bill of Lading when the Carrier receives the Goods from the Supplier for delivery to the Customer.
b) The Bill of Lading will be in accordance with the order placed by the Customer subject to these Terms of Trade.
8. FREIGHT AND CHARGES
a) The freight payable hereunder has been calculated and based on particulars of the Goods furnished by or on behalf of the Supplier.
b) Freight and charges are payable by the Customer from the time of the Goods leaving the Supplier’s warehouse to the time the Customer is in receipt of the Goods.
c) Freight shall be deemed earned on receipt of the Goods by the Carrier and shall be paid by the Customer to the Carrier as Agent for the Supplier.
d) Full freight shall be paid on damaged or unsound Goods.
e) Except to the extent (if any) to which they are inconsistent with any of the express terms of these Terms of Trade, the provision of the Carrier’s applicable tariff current at the time when the Goods were received by the Carrier for transportation and/or forwarding under these Terms of Trade which relate to freight contingencies, demurrage and charges payable in respect of the carriage covered hereby and matters associated therewith are incorporated into these Terms of Trade and form part of the Contract or evidenced herein. Details of the relevant provisions of the applicable tariff may be obtained by any Customer from the Carrier on request.
The Carrier in its capacity as Agent for the Supplier shall have a lien, which shall survive delivery, on all Goods and documents relating thereto for all freight and all charges and sum whatsoever payable by or chargeable to or for account of the Goods or any Customers under these Terms of Trade and for all costs of recovering such freight charges and sums (including costs or sale under right of sale hereinafter provided). For the purpose of such lien the Carrier shall have the right to sell Goods and documents by public auction or private treaty without notice to any of the Customers.
a) The Customer must give the Supplier instructions in writing to arrange insurance on its Goods a reasonable time before the Goods are to be exported. The Supplier may carry out these instructions by declaring the value of the Goods under an open marine cargo policy taken out by the Supplier, and upon request, provide a certificate or declaration of insurance or other evidence of insurance. The coverage on Goods so declared is subject to the terms and conditions of the policy. The Supplier is not liable if the Customer for any reason whatsoever fails to recover a loss in whole or in part from the insurer under the policy, even though the premium charged by the insurer is different from the Supplier’s charges to the Customer.
b) If coverage under its open marine cargo policy is not satisfied, the Supplier will recommend an insurance broker to arrange insurance appropriate to the Customer’s needs. After making this recommendation, the Supplier has no further duty regarding insurance and no liability for loss of or damage to Goods during transport or storage that could have been covered by insurance on the Goods, whether such loss or damage has been caused or contributed to by its negligence or breach of these Terms of Trade, or otherwise.
11. CUSTOMER WARRANTEES
The Customer warrants to the Supplier:
a) that it possesses all necessary licences, permits or approvals to receive, handle and store the Goods; and
b) that it will comply with all the laws (including but not limited to all environmental and safety laws), and the conditions of any licenses, permits or approvals, relating to the handling or storage of Goods.
12. PERIODS OF CLAIM FOR EXPORTED GOODS
Subject to the Hague Rules, any claim by any Customer in respect of loss or damage against the Carrier and/or Customer must be notified in writing to the Carrier and/or the Supplier within seven  days from the delivery of Goods or the date when the Goods should have been delivered and any claim, not so notified shall be deemed to be waived and absolutely barred. Further, any liability whatsoever of the Carrier and/or the Supplier shall in any event cease unless a legal suit is bought within one  year after delivery of the Goods or the date when the Goods should have been delivered.
13. CLAIMS (NO RETURN OF PRODUCT)
a) In respect to the following claims:
(i). Short delivery, being where product is short delivered within the cartons or pallets to the invoiced quantity;
(ii). Non Delivery, being when a full or partial consignment has not been delivered to the invoiced quantity; and
(iii). Incorrect pricing, relating to price, the Customer must advise the Supplier of any such claims within five (5) working days of the delivery date in order for these claims to be considered.
b) All claims must be fully documented quoting the Supplier’s invoice number or order number and must be forwarded to the Customer Services Department, failure to quote these details may result in the Supplier (in its discretion) not assessing claims.
c) No claim will be allowed where the Goods have been stored outside the Supplier’s guidelines.
14. PERSONAL PROPERTY SECURITES ACT 2009 (“PPSA”)
a) In placing any order the Customer expressly represents that the Customer:
(i) Is solvent; and
(ii) Has not committed an act of bankruptcy; and
(iii) Knows of no circumstances which would entitle any debenture holder or secured creditor to appoint a receiver or which would entitle any creditor or shareholder to apply to the Court to liquidate the Company or exercise any other rights over or against the Customer’s assets.
b) The title or property in any Goods delivered by the Supplier to the Customer shall pass to the Customer only upon payment in full by the Customer to the Supplier in relation to all Goods that have been delivered to the Customer pursuant to these Terms of Trade as well as any other sums of money that may be due and payable pursuant to these Terms of Trade. The Supplier holds a Security Interest in all goods supplied to the Customer for payment of those moneys.
c) Until all moneys due to the Supplier are paid by the Customer, the Customer agrees to act as a fiduciary of the Supplier and that the Customer will:
(i) Not sell, charge or part with possession of the Goods, otherwise than for their full values in the ordinary course of business;
(ii) Not alter, obliterate, or deface the Goods and will not alter, obliterate, deface, cover up, or remove any identity mark indicating that the Goods are the Supplier’s property.
(iii) Store the Goods in such manner that they are clearly identifiable as the Supplier’s property and must keep separate records of the Goods;
(iv) Hold the proceeds of the resale of the Goods in trust for the Supplier, in a separate and identifiable manner;
d) At the Supplier’s request, the Customer will promptly deliver, execute or do (or cause to be executed, delivered or done) any documents, contracts, agreements, deeds or other action that the Supplier may require from time to time to give effect to these Terms and Conditions of Sale, including without limitation doing all such things as the Supplier may require to ensure that the Security Interest created under these Terms and Conditions of Sale constitutes a perfected Security Interest over the Goods. This includes, but is not limited to, providing any information the Supplier requests to complete a financing statement or a financing change statement for the Personal Property Securities Register.
e) The Customer waives any right to receive a verification statement under the PPSA.
f) Nothing in sections 130(1)(a), 143(1) and 143(2) of the PPSA shall apply to these Terms and Conditions of Sale. The Customer’s rights as a debtor in sections 92, 95, 97, 132 and 134(2) of the PPSA shall not apply to these Terms and Conditions of Sale.
g) The Customer’s right to sell Goods will terminate forthwith on written notice of such termination being delivered by the Supplier to the Customer’s place of business.
h) The Customer’s right to possession of the Goods shall cease if:
(i) The Customer commits an available act of bankruptcy; or
(ii) The Customer does anything or fails to do anything in circumstances where such act or omission operates to entitle a receiver or liquidator to take possession of any assets or which would entitle any person to apply to the Court to liquidate the Customer; or
(iii) The Customer is overdue in making payment of any sum due to the Supplier and the Supplier makes demand. Demand may be made upon the Customer or any employee or authorised agent of the Customer by the Supplier or any employee or authorised agent of the Supplier either in writing at any time prior to repossession or verbally or in writing at the time of repossession; or
(iv) Notice is given terminating the Customer’s right to sell goods; or
(v) This agreement is terminated.
i) For the purpose of recovery of the Goods, the Supplier may by the Supplier’s employee(s) or agent(s) enter upon any premises where the Goods are stored or where they are reasonably thought to be stored and may repossess the same. This permission is irrevocable and the Customer agrees that the employees, servants or agents of the Supplier so entering are not trespassing. The Customer irrevocably agrees the Customer will not seek to invoke the provisions of any Acts to warn such persons to leave the Customer’s premises, nor will the Customer procure any other person to take such action.
j) Any Goods held by the Customer which meet the description of Goods on an invoice in respect of which either payment has not been made in full or in respect of which title to Goods has not transferred from the Supplier hereunder shall, in the absence of separate storage of Goods in terms of Term 16(c)(iii) herein and in the absence of evidence to the contrary, be deemed to be Goods to which the Supplier has retained title so that the Supplier shall be entitled to exercise any of the Supplier’s remedies hereunder against such Goods.
k) If the Customer has not received the proceeds of sale of the Goods subject to this clause then the Customer will within seven (7) days of being called upon so to do by the Supplier assign to the Supplier all rights which the Customer may have against the person or persons to whom the Customer has supplied any Goods.
l) Following repossession of the Goods the Supplier shall sell the goods in whatever manner the Supplier deems appropriate whether wholesale or retail, and shall credit the account of the Customer with the net proceeds of sale. The net proceeds of sale shall be the actual price received for the goods less all costs of sale including if incurred, rental of premises, staff wages, transport costs, advertising costs and all out of pocket expenses. The Supplier shall be obliged to list all Goods repossessed but shall not be obliged to record or account for the sale of Goods on an item by item basis. Proceeds of sale may be accounted for globally.
m) The debt owing by the Customer to the Supplier at the date of repossession of Goods shall, as between the parties, be deemed to include any payment previously received by the Supplier which might be claimed to be void under any law relating to bankruptcy, liquidation or the protection of creditors – irrespective of whether such a claim shall have been made at that date.
15. FURTHER SECURITY
To secure payment of all monies which may become payable by the Customer to the Supplier the Customer hereby charges with the due payment of those monies all of the Customer’s interest in real property both present and future and the Customer consents to the Supplier lodging a caveat or caveats noting its interests there under. Any applicable Stamp Duties, fees and/or charges incurred by the Supplier in doing so will be charged to the Customer’s account.
16. LIMITATION OF LIABILITY
a) Except as expressly provided to the contrary in these Terms of Trade all terms, conditions, undertakings, inducements or representations whether express, implied, statutory or otherwise in relation to the Goods are excluded to the maximum extent permitted by law.
b) To the extent permitted by law, including any provisions of the Act, The Supplier will not be liable to the Customer or any person in tort or otherwise for any loss or damage (direct or indirect) suffered or incurred by any person in relation to or arising out of the use of Goods, including but not limited to loss or damage caused by or resulting directly or indirectly from any defect or deficiency of any kind of or in the Goods.
c) In any event the Supplier’s liability shall not exceed the price paid by the Customer for the Goods.
d) The Customer agrees to indemnify the Supplier, its employees and agents against all actions, proceedings and claims (including consequential loss and loss of profits) whatsoever brought against the Supplier, its servant, agents or contractors in relation any action in tort or otherwise for any loss or damage (direct or indirect) suffered or incurred by any person in relation to or arising out of the use of Goods, including but not limited to loss or damage caused by or resulting directly or indirectly from any defect or deficiency of any kind of or in the Goods.
e) The Customer must inspect the Goods immediately on their arrival and must within five (5) working days from such arrival, give written notice to the Supplier of any matter or thing pursuant to which the Customer may allege that the Goods are not in accordance with these Terms of Trade.
The Supplier complies with the Privacy Act 1988 as amended and is bound by the National Privacy Principles dealing with the collection, use and storage of personal information about individuals.
a) The Customer fails to adhere to any guidelines from the Supplier will be an automatic breach and any outstanding monies will immediately become due and payable
b) If the Customer fails to comply with these Terms of Trade or any other agreement with the Supplier including payment under these Terms of Trade;
(i). The Customer fails to adhere to any guidelines from the Supplier will be an automatic breach and any outstanding monies will immediately become due and payable
(ii). execution is levied upon the assets of the Customer for an amount in excess of $1,000 and is not satisfied 7 days;
(iii). the Customer commits an act of bankruptcy;
(iv). the Customer enters into any composition or arrangement with its creditors;
(v). the Customer does anything which would make it liable to be put into liquidation;
(vi). a resolution is passed or an application is made for the liquidation of the Customer; or
(vii). a receiver, other form of insolvency administrator or statutory or official manager is appointed over all or any of the Customers’ assets, then, and in such event, the Customer will be deemed in default under this agreement and the Supplier may at its option withhold further deliveries or cancel the agreement without notice and without prejudice to its rights hereunder. If an event described in Term 20 (i - vii) occurs then:
(i). all amounts payable by the Customer to the Supplier will immediately become due and payable notwithstanding that the due date has not arisen;
(ii). The Supplier has the right to place the Customer on stop supply immediately upon default, until such time as the Customer has bought its account within the Supplier’s terms of payment and within these Terms and Conditions of Trade; and
(iii). The Supplier has the right to immediately and permanently close the account of the Customer. If the Supplier permanently closes the account then the Supplier may immediately reclaim any advertising or point of sale material incorporating the Supplier’s Trade Marks or the Supplier’s intellectual property that has previously been supplied and the Customer irrevocably grants permission for the Supplier’s servants or agents to enter upon the Customers premise to reclaim such material.
If any provision of these Terms of Trade or its application to any person or circumstance is or become invalid, illegal or unenforceable, the provision shall so far as is possible be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down, the provision or part of it shall be deemed to be void and severable and the remaining provisions of these Terms of Trade shall not in any way be affected or impaired.
20. INTELLECTUAL PROPERTY
The Customer agrees and acknowledges that the Supplier is and remains the owner or licensed user of all copyright, design, patents and trademarks used on or in relation to the Goods and advertising materials supplied in connection with such Goods.
21. FORCE MAJEURE
a) Every effort will be made to carry out any agreement in accordance with the relevant Order but the Supplier may suspend, vary or cancel the provision of Goods owing to an act of god, war, strikes, lock-outs, fire, flood, drought, or any other cause beyond the Supplier’s reasonable control or an inability to procure materials or articles except at increased prices due to any of the foregoing causes. The Supplier will take all reasonable steps to mitigate the effect of such events but will not be required to settle a dispute or otherwise submit to the demands of other parties, in a manner contrary to the Supplier’s judgment.
b) The Supplier will not be liable for any loss or damage (including direct or consequential loss or damage) arising from the exercise of its rights under Clause 14.
c) Nothing contained in this clause excuses non-payment of any money due or which becomes due under these Terms of Trade.
22. RECOVERY COSTS
The Customer shall pay all legal, mercantile and administrative costs and expenses incurred by the Supplier on an indemnity basis in respect of any default under these Terms of Trade by the Customer.
23. USE OF INFORMATION
The Customer agrees that the Supplier may obtain information about the Customer from the Customer or any other person (including other members of the Supplier and any credit or debt collection agencies) in the course of the Supplier’s business, including credit assessment, debt collecting and direct marketing activities, and the Customer consents to any person providing the Supplier with such information.
The Customer agrees that the Supplier may use any information it has about the Customer relating to the Customer’s credit worthiness and, subject to any confidentiality agreement between the Customer and the Supplier, give that information to any other person, including any credit or debt collection agency and other members of the Supplier, for credit assessment and debt collection purposes. The Customer agrees that any other information collected by the Supplier about the Customer is accessed or collected for the use of any member of the Supplier in the course of its business, including direct marketing activities.
The Customer must notify the Supplier of any change in circumstances that may affect the accuracy of the information provided by the Customer to the Supplier.
Notwithstanding anything else contained in these terms, where the Customer is a natural person, the Customer specifically agrees for the purposes of privacy legislation including the Privacy Act 1988 as amended to the Supplier: a) being given a credit report on him or her for the purpose of assessing an application for credit or for the purpose of the collection of payments that are overdue under this agreement; and
b) disclosing to or obtaining from another credit provider a credit report or personal information derived from a credit report on him or her for the purpose of assessing or exchanging information relating to his or her credit worthiness, credit history or credit capacity; and
c) the Supplier advises the Customer and the Customer acknowledges that the Supplier may disclose the information it acquires about the Customer to a credit reporting agency. The Customer may gain access to the information obtained by the Supplier under this clause. If the Customer or any other person fails to provide to the Supplier any or all of the information requested by the Supplier, the Supplier may determine not to provide credit to the Customer or not to contract with the Customer.
If the Supplier exercises or fails to exercise any right or remedy available to it, this will not prejudice its rights to exercise that or any other right or remedy. Waiver of any term of these Terms of Trade will only be effective if specified in writing and signed by an authorised representative of the Supplier.
The Customer agrees that all contracts made with the Supplier shall be governed by the laws of the State of Victoria and the parties shall submit to the non-exclusive jurisdiction of the Courts of the State of Victoria.