Maxum Foods Pty Ltd (ACN 103 379 657) (ABN 80 103 379 657) (“Maxum”) shall only supply Goods to you on the following Terms and Conditions of Sale (“Terms and Conditions”):
In these Terms and Conditions:
1.1 ‘Buyer’ means the Applicant noted on the Credit Application Form attached hereto;
1.2 ‘Consequential Loss’ means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise;
1.3 ‘Goods’ means the products and, if any, services purchased by the Buyer from Maxum;
1.4 ‘Moneys Owed’ means all principal, interest, capitalised interest, default interest, fees, costs, expenses, charges and other moneys of whatsoever nature owed or payable by the Buyer to Maxum whether pursuant to this Agreement or otherwise; or otherwise of whatsoever nature and howsoever arising;
1.5 ‘Insolvency Event’ means, for the Buyer, as being in liquidation or provisional liquidation, bankruptcy or under administration, having a controller (as defined in the Corporations Act 2001) or analogous person appointed to the Buyer or any of the Buyer’s property, being taken under section 459F(1) of the Corporations Act 2001 to have failed to comply with a statutory demand, being unable to pay the Buyer’s debts, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing the Customer’s own affairs for any reason, taking any step that could result in the Company becoming an insolvent under administration (as defined in section 9 of the Corporations Act 2001), entering into a compromise or arrangement with, or assignment for the benefit of, any of the Buyer’s members or creditors, or any analogous event.
1.6 ‘Interest Rate’ means the standard contract default rate published by the Queensland Law Society from time to time and calculated, compounded and payable daily from the date upon which the payment was due until the invoice is paid in full.
1.7 ‘Loss’ means any expense, cost or damage of any kind and includes Consequential Loss and a fine or penalty imposed by a statutory or other authority.
1.8 ‘Maxum’ means Maxum Foods Pty Ltd, ACN 103 379 657.
1.9 ‘PPSA’ means the Personal Properties Securities Act 2009 (Cth).
1.10 ‘PMSI’ means a purchase money security interest as defined by the PPSA.
1.11 “security interest”, “purchase money security interest”, “attached”, “attachment”, “perfected”, “accession”, “commingled” and all related terms have the meanings given them by the PPSA;
1.12 ‘Real Property’ means all real property interests held by the Customer now or in the future;
‘Terms and Conditions’ means all the terms and conditions included in these Terms and Conditions.
2.1 The Buyer has no entitlement to credit unless in Maxum’s sole discretion Maxum extends credit to the Buyer. If in a particular case, Maxum gives the Buyer credit, Maxum reserves the right at any time and for any reason in Maxum’s sole discretion to refuse to supply any further Goods to the Buyer and to refuse to supply any Goods to the Buyer on credit terms. If Maxum does decline to give the Buyer further credit then that decision does not affect the credit terms which apply to any amounts the Buyer then owes to Maxum.
2.2 If the Buyer fails to comply with any of the Terms and Conditions or suffers an Insolvency Event the balance of the Buyer’s account to Maxum will become due and payable immediately.
3.1 The price of Goods is to be calculated by reference to Maxum’s current price list.
3.2 The prices and product specifications including those published in Maxum’s price lists are subject to alteration without notice, including without limitation the right to correct printing and clerical errors without notice.
3.3 The Buyer agrees that delivery occurs when the delivery or collection docket is signed, by or on behalf of the Buyer. The signed docket shall be conclusive evidence of delivery.
4.1 An order for Goods constitutes an offer to purchase the Goods by the Buyer subject to the Terms and Conditions.
4.2 Orders accepted by Maxum may not be cancelled or altered in whole or in part by the Buyer without Maxum’s prior written consent.
4.3 Maxum may from time to time in its absolute discretion vary the Terms and Conditions.
4.4 Maxum may at its absolute discretion decline any order either in whole or in part.
4.5 Maxum reserves the right to specify the minimum order value that will be accepted from time to time. Maxum may in its absolute discretion, supply orders below the specified minimum order value and charge a handling fee, as determined by Maxum, on all such orders.
4.6 In placing any order the Buyer expressly represents that the Buyer:
4.6.1 is solvent; and
4.6.2 has not committed an act of bankruptcy/insolvency; and
4.6.3 does not know of any circumstances which would entitle any creditor or secured creditor to appoint a receiver or which would entitle any creditor or shareholder to exercise any rights over or against the Buyers’ assets.
5.1 The Buyer agrees that it must:
5.1.1 pay, without any deduction or setoff, the price charged by Maxum for Goods supplied to the Buyer according to the payment terms of the credit granted and as specified on each and every invoice,
5.1.2 pay any stamp duty assessed on this document or arising out of any matter connected with this document;
5.1.3 advise Maxum in writing of the occurrence of any Insolvency Event, any change in its name, ownership or control, or any step being taken to sell an asset or assets (separately or together having a value being greater than 20% in value of its gross assets) as soon as practicable and not later than within two business days of such event, change or step occurring. The Buyer acknowledges that, despite any such event, change, or step the Buyer remains liable to pay the price for all Goods supplied.
5.2 Should the Buyer fail to pay Maxum’s invoices by the due date then:
5.2.1 Maxum may charge interest on the amount owing pursuant to any overdue invoice at the Interest Rate calculated, compounded and payable daily from the due date until the invoice is paid in full, and;
5.2.2 the Buyer shall pay all of Maxum’s costs and expenses (including legal costs determined on an indemnity basis and agents including mercantile agent’s fees) which may be incurred in the recovery or attempted recovery of the overdue amounts from the Buyer.
5.2.3 As security for any amounts due to Maxum from time to time, the Buyer charges all of its legal and equitable interest (both present and future) of whatsoever nature held in any property including personal and real property to Maxum;
5.2.4 Without limiting the generality of the charge in clause 5.2.3, the Buyer, agrees, on request by Maxum, to execute any documents and do all things reasonably required by Maxum to perfect the charge given in clause 5.2.3 including without limitation registering a mortgage security over any real property. The Buyer appoints Maxum to be the Buyer’s lawful attorney for the purposes of executing and registering such documents and taking all such steps in that regard. The Buyer indemnifies Maxum on an indemnity basis against all costs and expenses incurred by Maxum in connection with the preparation and registration of any such steps needed to perfect the security or prepare or register the mortgage documents;
5.2.5 The Buyer consents unconditionally to Maxum lodging a caveat or caveats noting its interest in any real property;
5.2.6 Maxum may appoint an agent to collect any debts owed by the Buyer to Maxum from time to time;
5.2.7 A statement in writing signed by an authorised officer of Maxum setting out the moneys due or owing to Maxum at the date of the statement shall be sufficient evidence of the amount so due or owing until the contrary is proven.
5.3 Maxum may set off any amount owed by Maxum to the Buyer from any amount due by the Buyer to Maxum.
5.4 Without limiting the meaning of Moneys Owing, if the Buyer makes a payment to Maxum at any time whether in connection with the supply of goods or otherwise, Maxum may, in its absolute discretion, apply that payment to first satisfy obligations that are not secured, then obligations that are secured, but not by a PMSI, in the order in which those obligations were incurred, and then obligations that are secured by a PMSI in the order in which those obligations were incurred.
6.1 All prices will be quoted inclusive of GST. Invoices will comply with the ‘A New Tax System (Goods and Services Tax) Act 1999 (Cth)’ (The GST Law)’.
6.2 Any discounts or other terms agreed between the Buyer and Maxum will be calculated on and applied to the purchase price exclusive of GST.
6.3 Payment for GST
6.3.1 Liability for GST
If GST is imposed on any supply made by Maxum pursuant to these Terms and Conditions, the Buyer must pay to Maxum, in addition to any consideration payable, or to be provided by the Buyer under the Terms and Conditions for supply, an additional amount for supply calculated by multiplying the prevailing GST rate by the consideration for the relevant supply payable, or provided, (without any deduction or set-off) by the Buyer under any other clause in these Terms and Conditions. Any amount payable is payable upon demand by Maxum whether such demand is by means of any invoice or otherwise. ‘GST’ means the tax imposed pursuant to the GST law.
6.3.2 If any part of the purchase price is referrable to both a taxable supply and anything that is not a taxable supply, the GST-
exclusive portion of the purchase price shall be determined by Maxum.
6.3.3 Where Maxum determines on reasonable grounds that an adjustment is required to the purchase price, it will promptly issue any ‘Adjustment Notes’ that are prescribed by the GST law.
7.1 Any claims by the Buyer for short, wrongful or damaged delivery of the Goods must be notified to Maxum in writing within 48 hours after delivery of the Goods to the Buyer and for damages must be accompanied by photographic evidence. Any claim which the Buyer does not notify to Maxum within 48 hours (time being of the essence) shall be deemed to have been absolutely waived by the Buyer.
7.2 Any other claims for adjustment to any invoice for any reason whatsoever must be made to Maxum in writing within 30 days of delivery of the Goods.
8.1 Maxum will not accept returns of the Goods for credit with Maxum without prior written authorisation from Maxum in its absolute discretion unless otherwise required by law.
8.2 Without limiting Maxum’s discretion, any Goods which the Buyer returns for credit, other than materially defective Goods, will only be accepted if they are in the original packaging and in an as new order and condition.
8.3 If Maxum authorises the return of Goods, the Goods must be sent freight pre-paid or otherwise if approved by Maxum, carried by Maxum’s nominated carrier.
8.4 Except in respect of the return of materially defective Goods, Maxum may in its discretion charge a handling fee equal to 10% of the credit value and to deduct this fee from the credit amount.
The Buyer may have the benefit of consumer guarantees under the Australian Consumer Law. Otherwise, to the maximum extent permitted by law, all terms, conditions or warranties that would be implied into the Terms and Conditions or in connection with the supply of the Goods by Maxum under law or statute or custom or international convention are excluded.
10.1 To the maximum extent permitted by law and subject to clauses 8 and 10, Maxum’s total liability whatsoever and howsoever arising out of or in connection with its performance of its obligations pursuant to these Terms and Conditions, or arising out of or in connection with the supply the Goods (including without limitation pursuant to or for breach of these Terms and Conditions, repudiation thereof, under statute, in equity or for tort, including negligent acts or omissions) is limited as follows:
10.1.1 Maxum shall have no liability to the Buyer for any consequential loss;
10.2.2 Maxum’s total aggregate liability for loss, whatsoever and however arising, shall not exceed the GST exclusive aggregate price paid by the Buyer to Maxum for the specific Goods or Services connected with the Loss in question. The limitations and exclusions in this sub-clause 10 (b) do not apply to the extent that any Loss is directly attributable to:
(i) the personal injury or death to a person or persons caused by Maxum’s default, breach of the Terms and Conditions or negligence; or
(ii) fraud by Maxum.
Each party must take reasonable steps to mitigate any loss it suffers or incurs.
11.1 To the extent that Goods supplied by Maxum are not goods of a kind ordinarily acquired for personal, domestic or household use and the Buyer is deemed to be a consumer for the purposes of section 64A of the Australian Consumer Law, the Buyer agrees that Maxum’s liability for a failure to comply with a consumer guarantee that the Buyer may have a benefit under the Australian Consumer Law (other than a guarantee under ss 51 (title), 52 (undisturbed possession) and 53 (undisclosed securities), is limited to, at the option of Maxum, one or more of the following:
11.1.1 replacement of the Goods or the supply of equivalent goods;
11.1.2 the repair of the Goods;
11.1.3 the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
11.1.4 equivalent Goods; or
11.1.5 the payment of the cost of having the Goods repaired.
11.2 To the extent that any services supplied by Maxum are services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption, Maxum’s liability for failure to comply with a consumer guarantee that the Buyer may have the benefit of is limited to, at the option of Maxum:
11.2.1 the supply of the services again; or
11.2.3 the payment of the cost of having the services supplied again.
12.1 Subject to Clause 8, the Buyer shall indemnify and keep indemnified and hold Maxum harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by Maxum, and from and against all actions, proceedings, claims or demands made against Maxum, whatsoever and howsoever arising from one or more of the following:
12.1.1 As a result of the Buyer’s failure to comply with any laws, rules, standards or regulations applicable in relation to the Goods or the use of the Goods;
12.1.2 As a result of any other negligence or other breach of duty by the Buyer; or
12.1.3 As a result of any compliance or adherence by Maxum with any instructions of the Buyer in relation to the Goods or their manner of fabrication.
13.1 Maxum retains legal and equitable title in any Goods supplied to the Buyer until payment in full for or in connection with the supply of the relevant Goods has been received by Maxum. Until payment in full has been received, the following terms apply:
13.1.1 Notwithstanding that title in the Goods remains with Maxum until payment has been received in full, the Buyer may sell the Goods or use the Goods in the ordinary course of the Buyer’s business. As between the Buyer and the purchaser of any item of the Goods, the Buyer sells as principal and not as agent of Maxum. The proceeds of sale of each item of Goods must be held by the Buyer in a separate fund on trust for Maxum and the Buyer is under a duty to account to Maxum for such proceeds. The creation of, or any failure of, any such trust shall not in any way limit the obligation of the Buyer to pay an amount to Maxum for the Goods supplied.
13.1.2 Until the Goods are sold or used by the Buyer, the Buyer must keep the Goods safe and free from deterioration, destruction, loss or harm, clearly designate the Goods as the property of Maxum, store them in such a way they are clearly identified as the property of Maxum and keep full and complete records, firstly, of the physical location of the Goods and, secondly, the ownership of the Goods by Maxum.
13.1.3 Maxum is irrevocably entitled at any time and from time to time before the sale of any item of Goods by the Buyer to inspect or to recover and retake possession of the Goods and otherwise exercise in relation to the Goods any of its rights whether those rights are as owner and/or unpaid Seller or otherwise and whether those rights are conferred by common law, contract, statute or in any other way. In order to exercise such entitlement, Maxum and its agents are irrevocably authorised by the Buyer to enter any of the Buyer’s premises or vehicles or those of any third party. The Buyer agrees to obtain the consent of any such third party to such entry by Maxum and to indemnify Maxum and its agents for any liability arising from any entry upon such third parties’ premises or vehicles. Maxum and its agents agree to take all reasonable care in removing the Goods from such premises or vehicles but, to the extent this liability may be disclaimed by law, are not liable for any damage or injury to such premises caused by the removal of the Goods.
13.2 This reservation of title and ownership is effective whether or not the Goods have been altered from their supplied form, or commingled with other goods.
14.1 Without limiting any other clause of the Terms and Conditions and in addition thereto Maxum reserves the right, irrespective of whether or not an order has been accepted and without notice to the Buyer, to withhold supply to the Buyer and Maxum will not be liable for loss or damage resulting directly or indirectly from such action where:
14.1.1 Maxum has insufficient Goods to fill the order; or
14.1.2 The Goods ordered have been discontinued.
The Buyer may not, without Maxum’s written consent, alter, remove, or obliterate any labels which Maxum are attached to the Goods at the time of delivery.
The Buyer acknowledges that neither Maxum nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in writing whether as to the fitness of the Goods for any particular purpose or any other matter.
Failure by Maxum to insist upon strict performance of any term, warranty or condition of these Terms and Conditions shall not be deemed as a waiver thereof or of any rights Maxum may have and no express waiver shall be deemed a waiver of any subsequent breach of any term, warranty or condition.
The Buyer acknowledges that the Goods are not of a kind ordinarily acquired for private use or consumption but are acquired for business purposes.
19.1 The Buyer warrants that any design or instruction furnished to Maxum shall not be such as will cause Maxum to infringe any intellectual property rights (including patents, registered designs, trademarks, copyright, confidential information and the like) in the execution of the Buyer’s order and the Buyer agrees to indemnify Maxum against any liability whatsoever and howsoever arising out of or connected with any such infringement or unauthorised use of the intellectual property rights arising out of the manufacture or use of the Goods.
19.2 The sale and purchase of Goods does not confer on the Buyer any intellectual property rights in the Goods which are the property of Maxum.
20.1 Any notice pursuant to this Agreement must be in writing and may be given by a party or the party’s solicitor.
20.1.1 Notices are effectively given if sent to the nominated email address, facsimile number or address of the other party or its solicitor.
(i) Notices sent by email will be treated as given when the email enters the information processing system that the recipient has nominated even if the recipient is unaware of its receipt.
(ii) Notices sent by facsimile will be treated as given when the sender obtains a clear transmission report.
(iii) Notices sent by post will be treated as given on the second business day after posting.
Either party may change its facsimile number or address for notices to another facsimile number or address by prior notice to the other party.
It is agreed that if any provision of these Terms and Conditions should be determined to be void by any court of competent jurisdiction, then such determination shall not affect any other provision hereof and each such other provision shall remain in full force and effect.
Unless otherwise agreed in writing, the risk in the Goods shall pass to the Buyer upon the earlier of delivery of the Goods to the Buyer or collection of the Goods by the Buyer, its employees, agents or contractors.
Maxum shall not be liable for any failure or delay to supply the Goods due to a cause beyond its control including but not limited to acts of God, strikes, lock-outs or other industrial disturbances, fire, flood, explosion, civil riot, government interference and the like.
It is acknowledged and accepted by the parties that the Terms and Conditions are assented to under seal.
25.1 These Terms and Conditions shall be governed by and construed in accordance with the laws of Queensland.
25.2 The Buyer agrees with Maxum to submit to the non-exclusive jurisdiction of the Courts of Queensland and the Federal Court of Australia and agree that any legal proceedings may be heard in those Courts.
The Terms and Conditions contain all the terms of the agreement between the parties and supersede all prior discussions and arrangements in relation to the subject of this Agreement in the event that there is any conflict between the provisions of this Agreement and the provisions of the Credit Application Form and Guarantee and Indemnity Agreement then the provisions of this Agreement shall prevail.
Where any conflict or inconsistency shall arise between any of the terms, conditions and provisions, whether express or implied, of these Terms and Conditions and those of any other document including without limitation any document provided by the Buyer the terms, conditions and provisions contained in these Terms and Conditions shall prevail unless otherwise determined by notice in writing to the Buyer by Maxum.
Maxum reserves the right to correct clerical errors without notification to the Buyer.
29.1 The Buyer hereby acknowledges that these Terms and Conditions constitute a security agreement which creates a security interest:
29.1.1 In favour of Maxum in all Goods supplied by Maxum to the Buyer and all after acquired Goods supplied by Maxum to the Buyer (or for the Buyer’s account) to secure the payment from time to time and at a time, including future advances. The Buyer agrees to grant a PMSI to Maxum; and
29.1.2 In favour of Maxum in all personal and all real property owned by the Buyer now or in the future to secure the payment of the Goods and without limitation any Money’s Owed to Maxum by the Buyer from time to time.
29.2 The Buyer acknowledges and agrees that by assenting to these Terms and Conditions the Buyer grants a security interest (by virtue of clauses 5.2.3 and 12 respectively of the Terms and Conditions) to Maxum and all Goods previously supplied by Maxum to the Buyer (or for the Buyer’s account) and these Terms and Conditions shall apply notwithstanding anything express or implied to the contrary contained in the Buyer’s purchase order.
29.3 The Buyer undertakes to:
29.3.1 Sign any documents and/or provide any information (which information the Buyer warrants to be complete, accurate and up-to-date in all respects) which Maxum may reasonably require to enable registration of a financing statement or financing change statement on the Personal Properties Securities Register (PPSR);
29.3.2 Not register a financing change statement as defined in section 10 of the PPSA or make a demand to alter the financing statement pursuant to section 178 of the PPSA in respect of the Goods without the prior written consent of Maxum;
29.3.3 Not enter into any security agreement that permits any other person to have or to register any security interest in respect of the Goods or any proceeds from the sale of the Goods until Maxum has perfected its PMSI;
29.3.4 Not assign or grant a security interest in respect of any accounts owed to it in relation to the Goods with Maxum’s prior written consent;
29.3.5 Give Maxum not less than 14 days’ written notice of any proposed change in the Buyer’s name and/or any other changes in the Buyer’s details (including by not limited to changes in the Buyer’s address, facsimile number, email address, trading name or business practice);
29.3.6 Pay all costs incurred by Maxum in registering and maintaining a financing statement (including registering a financing change statement) on the PPSR and/or enforcing or attempting to enforce the security interest created by these Terms and Conditions including executing subordinate agreements;
29.3.7 Be responsible for the full costs incurred by Maxum (including actual legal fees and disbursements on an indemnity basis) in obtaining an order pursuant to section 182 of the PPSA; and
29.3.8 The Buyer waives any rights it may have under sections 115 of the PPSA upon enforcement.
29.4 For any Goods supplied that are not goods that are used predominately for personal, domestic or household purposes, the parties agree to contract out of the application of ss 95, 118, 121(4), 130, 132(4),135, 142 or 143 of the PPSA in relation to the Goods.
29.5 The Customer hereby waives any rights the Customer may otherwise have to:
(i) receive any notices the Customer would otherwise be entitled to receive under ss 95, 118, 121, 130, 132 or 135
(ii) apply to a Court for an order concerning the removal of an accession under section 97
(iii) object to a proposal of the Customer to purchase or retain any collateral under ss 130 and 135
(iv) receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest Maxum may have in Goods supplied to the Customer from time to time.
29.6 Pursuant to section 157 of the PPSA, unless otherwise agreed to in writing by Maxum, the Buyer waives the right to receive the verification statement in respect of any financing statement or financing change statement relating to the security interest.
29.7 The Buyer agrees that immediately on request by Maxum the Buyer will procure from any persons considered by Maxum to be relevant to its security position such agreement and waivers as Maxum may at any time require.
29.8 The Buyer gives Maxum a security interest in all of the Buyer’s present and after-acquired property in which Goods or materials supplied or financed by Maxum have been attached or incorporated.
30.1 In these Terms and Conditions, unless the context otherwise requires:
30.1.1 a singular word includes the plural and vice versa;
30.1.2 words denoting individuals include corporations, authorities, government and governmental agencies, and vice versa;
30.1.3 words which suggest one gender include the other gender;
30.1.4 headings are for convenience only and do not affect interpretation;
30.1.5 reference to recitals, clauses and schedules are references to recitals, clauses and schedules of or to this Guarantee; and
30.1.6 references to any agreement or document include that agreement or document as amended, novated, supplemented or replaced from time to time.