Bard Investments Pty Ltd trading as The Bee Firm (ABN: 14 124 748 312) hereafter referred to as “The seller”
Terms and Conditions of Trade for the Supply of beverages and products to Customers hereafter referred to as “Terms”, “Products” and “the customer”
Unless otherwise agreed in writing these terms apply to all dealings between the seller and the customer.
1.1. Cash sales will be processed upon receipt of cleared funds for the full value of the order plus freight costs (if applicable);
1.2. Online/website orders will be processed upon receipt of full payment by credit/debit cards or other methods as may be agreed at the seller’s sole discretion;
1.3. The seller may at their sole discretion accept verbal or phone orders from credit account customers, but to avoid errors orders shall not be processed until they are confirmed in writing via email or online systems;
1.4. A binding contract will be established immediately the customer instructs the seller to supply The Bee Firm products and/or the seller ordering supplies or commencing any processes on behalf of the customer and the customer may be liable for all costs in the event of cancellation;
1.5. The customer in these terms is the person who places the order;
1.6. Any terms or conditions of the customer’s order deviating from or inconsistent with these terms are expressly excluded and rejected by the seller. This exclusion and refection include any statement by the customer that the customer’s terms and conditions shall prevail;
1.7. The customer agrees that in the event of any dispute concerning an order (including any question of identity or authority or any telephone, facsimile or email order) that the internal records of the seller will be prima facie evidence of what was ordered;
1.8. A quotation, estimate, or any other document issued by the seller (apart from confirmation of order document) is not an offer to supply.
1.9. Each order placed by credit account customers shall be deemed to be a representation of solvency and the customer shall inform the seller of any factors that could affect the commercial decision by the seller to accept the order and/or grant credit. Failure to pay the seller in accordance with these terms and conditions shall be deemed to be prima facie evidence that the customer had no reasonable grounds for making a solvency representation and that the representation was unconscionable, misleading and deceptive.
2.1. The seller’s price lists are subject to change without notice;
2.2. Unless stated otherwise GST and any other taxes shall be payable by the customer;
2.3. Quotations are based on costs at the time of the quotation and are subject to change if the Customer does not accept the quotation within the period specified in the quotation or within 30 days if no period is shown;
2.4. At the seller’s sole discretion, the seller may require a non-refundable deposit before manufacturing products on the customer’s behalf;
2.5. Payment is strictly on the basis of the seller’s payment terms as introduced from time
to time. If no specific payment terms have been agreed, payment must be made
immediately upon demand by the seller, time being of the essence as to this obligation.
2.6. If the seller agrees to accept payment by credit card the seller reserves the right to recover the credit card commission;
2.7. Payment shall only occur when cleared funds from the customer have been received by the seller for all amounts outstanding;
2.8. The seller may, at its sole discretion and without prejudice to its other rights and remedies, withhold supply and demand immediate payment of all amounts owing if the customer’s account is overdue or the seller is concerned over the customer’s ability to pay;
2.9. The customer shall not be entitled to set off against any moneys owed (or allegedly owed) to the customer by the seller or withhold payment or deduct money from an invoice because a portion of the invoice is disputed by the customer;
2.10. If the customer is a regular buyer and requests a credit facility (which the seller is not obliged to provide) the customer warrants that they shall strictly adhere to the seller’s payment terms, time being of the essence as to this obligation;
2.11. The seller can demand immediate payment of any or all amounts owed even if they are not currently due if the customer becomes insolvent, proposes or enters into an arrangement with creditors or an administrator, receiver, liquidator or similar person is appointed in respect of the customer or any asset of the customer.
3.1. Unless otherwise specified in the price or in the seller’s quotation the customer is
responsible for all delivery costs;
3.2. If the customer collects the products from the seller’s premises delivery takes place
immediately the product leaves the seller’s premises;
3.3. If the customer, their transport contractor, courier or other party collects the product from the seller’s premises they are deemed to be the customer’s agent and delivery takes place immediately upon collection of the products;
3.4. For the product delivered directly by the seller to the customer’s premises delivery takes place when the product is delivered to the said premises and the customer is entirely responsible to immediately store productions upon delivery;
3.5. The seller reserves the right to deliver part orders at its entire discretion;
3.6. A certificate or delivery docket purporting to be signed by an officer or agent of the customer confirming delivery shall be prima facie evidence of delivery;
3.7. The customer shall not be relieved from its obligations to the seller for any delay in delivery.
4.1. Claims and defect requests must be notified to the seller immediately the customer becomes aware of the alleged defect or within 7 days of delivery (time being of the essence)whichever is the sooner specifying the alleged defect and no claims shall be accepted by the seller thereafter apart from those specified by law;
4.2. Because The Bee Firm products are made from all natural ingredients, they possess a long shelf life and best before (use by) date.
4.3. Wholesaler, distributor and retailer returns shall only occur in the event that the selling conditions have been met.
4.3.1. Selling conditions include those detailed in Term Sheet and where the Term Sheet is silent those listed in this document.
4.3.2. In the event that the wholesaler, distributor or retailer has not followed the agreed resale range guidelines and the product’s best before or use by date expires, no returns shall occur.
The seller shall not be liable for any default or delay due to any act of God, war, Power, equipment failure, terrorism, strike, lock-out, industrial action, fire, flood, storm, tempest or any other events beyond the Seller’s control.
6.1 All risks pass to the customer upon delivery as defined in these Terms and it is the customer’s responsibility to arrange insurance;
6.2 If any product or other property of the seller is damaged, destroyed or stolen prior to payment being received and ownership of the product passing to the customer, the seller is entitled to payment in full;
The maximum liability of the Seller for any and all claims made by the customer or any other parties shall not exceed the purchase price received by the seller for the product. The seller shall not be liabile for any further payments either to the customer or to any other parties for any alleged losses, damages, injury, illness, indirect and/or consequential loss and/or expense expect where the customer is defined as a consumer within the meaning of the Commonwealth Competition and Consumer Act 2010.
8.1 If the seller has granted a credit facility to the customer (which the seller is not obliged to provide) the customer warrants that they shall strictly adhere to the seller’s payment terms as contained herein and as may be amended by the seller from time to time;
8.2 In the event of default, the customer shall indemnify and reimburse the seller for all costs and disbursements in collecting outstanding investigators costs, court, judgement enforcement and bailiff fees, search agent costs, time, travel and all other collection costs;
8.3 If the customer breaches any of its obligations the seller may exercise all its rights plus suspend or terminate the supply of products and demand the immediate return of all products and the seller will not be liable for any alleged loss or damage suffered by the customer or any other parties as a result of the seller exercising its rights;
8.4 The seller reserves the right to charge interest at 10% a month from the day the account becomes overdue and compounded monthly until all outstanding moneys have been paid in full;
8.5 If an account is more than 60 days overdue the seller reserves the right to charge administration costs of $25 or 10% (whichever is the greater) up to a maximum of $250.00) shall be charged to the customer and payable immediately.
9.1 If the seller allows the customer extra time to pay moneys or perform obligations for which no guarantees or other securities have been provided, the seller may require security for payment including a guarantee by a director or other persons connected with the customer;
9.2 Any requirement for security or guarantees is without prejudice to other rights or remedies the seller may have and does not affect the seller’s reservation of title in the product and other property of the customer.
10.1 If the customer has been granted a credit facility or otherwise owes the seller moneys or other obligations for sales of products provided by the seller the customer consents to the seller registering a security interest on the PPSR in a manner the seller deems appropriate for product sold to the customer in accordance with these terms and the customer agrees to provide all assistance required by the seller to register such security interests;
10.2 The customer acknowledges and agrees that these terms create a security interest in the secured product, and to avoid doubt, the proceeds of sale of the secured product for the purposes of PPSA;
10.3 The customer acknowledges and agrees that if any part of the secured product becomes the inventory of the customer , the customer will not permit any other security interest (including, but not limited to floating or other charges, liens or pledges) to be raised in respect of the secured product unless the seller has perfected the security interest prior to the customers possession of the secured product;
10.4 The seller may have a “Purchase Money Security Interest” (PMSI”) and/or other security interests on the PPSR and in the event that the seller has not registered a perfected PMSI on the PPSR the customer consents to the seller registering a PMSI on the PPSR;
10.5 To avoid doubt, the following definitions of the PPSA apply to the seller’s terms: Financing Statement, Financing Change Statement and Security Interest have the same meaning as defined by the PPSA and a Security Agreement is a security agreement created between the customer and the seller in the PPSA;
10.6 The customer acknowledges and agrees that by placing orders for product, the sellers terms constitute a Security Agreement for the purposes of the PPSA in such products and create a security interest in all those previously supplied which have not been fully paid for and for products to be supplied in the future, and to avoid doubt, the sale proceeds of the secured product;
10.7 The customer agrees to do everything the seller requests including but not limited to signing and completing documents without delay to register and/or perfect any security interest and for the seller to exercise its rights in connection with the secured product and proof that the customer has complied with these terms;
10.8 The customer agrees to indemnify and reimburse the seller on demand for any losses and costs incurred by the seller in relation to the PPSA including any registration or response to an amendment, demand or a request under section 275 or the PPSA;
10.9 The customer agrees not to register or permit a third party to register a Financing Statement, a Financing Change Statement or any other document in respect of a security interest on product by the seller that has not fully paid for product not returned in good condition;
10.10 The customer agrees to promptly tell the seller in any material change in its methods and policies of selling product supplied by the seller or storing product which would change the nature of the proceeds of such sales and security interests of the product;
10.11 With regard to sections 95, 96, 115 and 125 and any other parts of the PPSA and amendments thereto, the seller and the customer agree that to the extent allowed by the PPSA, these do not apply to any security interests created by these
terms. Furthermore, the customer waives its rights to receive notices under sections 95, 118, 121 (4), 130, 132 (3)(d) and 132 (4) together with verification statements unless all such notices are a requirement of the PPSA in which case all notices or documents must be given in accordance with the PPSA;
10.12 To the extent permitted by the PPSA the provisions of sections 127, 129(2) and (3), 132, 134(2), 135, 136(3), (4) and (5) and 137 will not apply to the enforcement of the sellers of the security interests;
10.13 With regard to sections 142 and 143 of the PPSA the customer waives its rights as a granter and/or a debtor under the PPSA;
10.14 The customer shall unconditionally approve any actions taken by the seller under Clauses 10.1 to 10.13
These Terms are not intended to have the effect of contracting out of any provisions of the CCCA except where permitted by law. If the Customer buys products or goods as a consumer, these terms shall be subject to protection of consumers’ rights legislation and shall not affect the consumer’s statutory rights.
Ownership of all intellectual property owned by and/or developed by the seller including, but not limited to, operational receipts, formulae and techniques, the brands, trademarks, other recipes, copyright and all other property and/or information remain with the seller and the customer will promptly advise the seller of any breach or infringement of its rights by any party.
13.1 The seller shall be entitled to set off against any moneys owed to the customer an amount equal to the total of all moneys at such time then owed by the customer or on the customer’s behalf to the seller.
13.2 The seller shall be entitled to apply any moneys received from or on behalf of the customer to any and all amounts owed by the customer as it sees fit and the customer waives any rights of notification of any such allocation.
No waiver by the seller of any rights or provisions of these terms shall at any time be deemed or implied to limit or exclude any of the seller’s rights against the customer under these terms.
Customers requesting a credit account (and those who already have a credit account) and/or the guarantor’s agree and consent to the seller obtaining and exchanging credit information from the customer’s suppliers and other parties nominated by the customer and for the seller to obtain reports and other information from credit reporting agencies and other sources on credit information about the customer in relation to credit provided by the seller and the ability of the customer to pay its bills as and when they fall due.
The seller can cancel orders from credit account customers without notice if the customer breaches any conditions of these terms or becomes or is in jeopardy of becoming insolvent (or dies if the customer is a natural person) and all outstanding moneys owing to the seller shall be payable immediately together with moneys owing to third parties for contracts entered into for the customer’s benefit.
17.1 Credit account customers shall notify the seller in writing of any change in their structure, including any change in ownership or sale of any material part of their business within 7 days of any such change. The customer will be liable to the seller for any purchases from the seller until such notice is given;
17.2 The seller reserves the right to review or withdraw any credit facilities granted to the customer and to review or cancel any orders upon any change in the customer’s structure, change in ownership or sale of any material part of its business.
Notices from the seller to the customer are served when delivery by hand, sent by mail, document exchange, facsimile or email and shall be treated as given when: if delivered by hand when delivered; if sent by mail or document exchange, 48 hours after posting; if sent by fax and/or email when the fax machine confirms transmission or when the email system confirms transmission. A notice given after 5pm and/or on a day which is not a business day is treated as given on the next following business day.
If a dispute arises between the seller and the customer and a solution thereto is contained in these terms, then such solution shall be a binding full and final settlement of the dispute provided such solution is not in breach of any legislation. If no solution to the dispute exists in these terms and the dispute cannot otherwise be resolved within 30 days from the date of the dispute, then either party can refer the matter to an independent party or mediator. If the seller or the customer fail to agree on a party/mediator, the dispute shall be referred to a party/mediator in accordance with the “Governing Law and Changes to Terms of Trade’ clause in these terms. The customer shall be liable for the full resolution costs and if this contravenes the Governing Law the parties will equally contribute to the resolution costs.
If any part of these terms is found to be unenforceable for any reason or in breach of any legislation, then that part will be severed from these terms and will not affect the validity or enforceability of any other part of these terms.
21.1 The laws of Australia apply to these terms and to all contracts or other agreements between the seller and the customer and are subject to the jurisdiction of the courts and tribunals of Western Australia.
21.2 These terms can only be amended with the written consent of the seller provided such amendments are not in breach of any legislation and all such amendments will be effective from the date they are notified to the customer. The customer will be deemed to have accepted these terms and any changes thereto upon placing further orders with the seller.
21.3 The seller reserves the right to license or sub-contract all or any part of its entitlements and obligations at any time.
It is agreed that a director/shareholder of the customer (owning at least 15% of the shares) of the customer and all co-directors/shareholders shall be jointly and severally liable for the performance of the customer’s obligations under this contract. By allowing the Credit Application Form that is associated with this document to be signed the said director/shareholder understands their obligations and has taken whatever advice they think appropriate in providing the Guarantee.
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