Terms and Conditions
SALES CONDITIONS
The Supplier will supply Goods to the Customer on the following Sales Conditions, unless otherwise notified or agreed by the Supplier in writing.
1. INTERPRETATION
1.1 Definitions
In this agreement:
“Containers” means any containers, pallets, pallecons crates or tanks used for the delivery of Goods, but excludes any cardboard packaging.
“Customer” means the purchaser of the Goods set out in the invoice or relevant credit application.
“Goods” means the Goods delivered by the Supplier to the Customer and the subject of an order by the Customer.
“GST Act” is a reference to A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended.
“Invoice” means the document (including a statement) which may be provided to the Customer on or after delivery of the Goods describing those Goods, their price and which may contain these Sales Conditions.
“Laws” means the common law and the laws of the Australian Commonwealth, State or Territory legislation.
“Purchase Price” means the price to be paid for the Goods as shown as the total on the Invoice calculated by reference to the Supplier’s current price list for the Customer and such other terms as may be agreed by the Customer and the Supplier from time to time, subject to conditions 2.2. The Purchase Price is inclusive of GST.
“Supplier” means Clean Health Group and any of its related bodies corporate.
“Taxable Supply” has the meaning given in the GST Act.
2. PRICE OF GOODS
2.1 Prices Inclusive
Unless otherwise agreed or required by law, the Purchase Price includes: any sales tax, GST, duty or other impost (other than income tax) on the sale of the Goods; delivery and standard packing for delivery.
2.2 Application of Other Terms
Any discounts or other terms agreed between the Customer and the Supplier will be calculated on and applied to the Purchase Price less GST.
2.3 Variation of Price
The Supplier may vary the price of the Goods at any time in its discretion but will use its reasonable endeavours to provide the Customer with 20 Business Days’ prior written notice of any price increase.
3. DELIVERY
3.1 Method and Loss or Damage
Unless otherwise agreed or the Goods are ex-works; the Supplier may select the method of delivery and the carrier and is not liable for any loss or damage of any kind whatsoever arising from late delivery.
3.2 Timing
The Customer acknowledges and agrees that time is not of the essence in relation to delivery and that it must accept and pay for Goods even if the Goods are delivered after the requested date.
3.3 Instalments
The Supplier may deliver the Goods in instalments and the Customer must pay an amount for that instalment as notified by the Supplier in the Invoice. If the Supplier fails to deliver any instalment the Customer must still accept and pay for the balance of the Goods delivered. If the Customer fails to pay for any instalment the Supplier may at its absolute discretion: refuse to deliver any further instalments until all amounts payable, whether due or not, are paid; or terminate the agreement for the supply of the Goods and recover damages.
4. PAYMENT AND CREDIT
4.1 Cash on Delivery
Subject to condition 4.2, the Customer must pay the Purchase Price for the Goods in advance or cash on delivery.
4.2 Credit Terms
If the Customer has made an application to the Supplier for a credit account and the Supplier has agreed to supply Goods to the Customer on the Credit Terms, the Customer must pay for the Goods within the period of the Credit Term from the date of any Invoice for the Goods. Unless otherwise agreed by the Supplier, payment must be by telegraphic transfer into a bank account nominated by the Supplier.
4.3 Disputes
If there is any dispute in relation to the Purchase Price, the Customer must provide the Supplier with written detailed reasons for the dispute within 14 days of the date of the Invoice and must pay the undisputed amount of the Purchase Price.
4.4 Resolution of Disputes
The Customer and the Supplier must make a bona fide attempt to resolve the dispute by negotiation within 14 days of the date that the Purchaser provides its reasons for the dispute before pursuing other remedies but the Supplier may during this period refuse to supply Goods to the Customer. If the Purchase Price stated on the Invoice is found to be correct, the Supplier may charge the surcharge set out in condition 4.6 on the disputed amount from the date that the disputed amount was due to the date it is paid.
4.5 Discounts - Credit to Invoice
Agreed discounts, rebates and allowances to which the Customer is entitled will be credited to the Customer in the Invoice or paid by the Supplier to the Customer by a means nominated by the Supplier. In no circumstances is the Customer permitted to deduct any discount, rebate or allowance from moneys owing by it to the Supplier.
4.6 Late Payment & Dishonoured Cheques
If payment is not made when due, the Supplier may: withdraw any credit; not supply further Goods; and charge a surcharge of up to 10% of the Purchase Price (less GST) which will be payable in addition to the Purchase Price. The Purchaser shall also pay to the Supplier upon demand an amount equal to any additional GST that may become payable by the Supplier as a result of the Customer’s non-payment.
4.7 Costs
The customer is liable for all out-of-pocket expenses and all other reasonable expenses; including debt collection, commission, (as if the account had been collected) and any other contingent expenses and legal costs on a solicitor/own basis, incurred by Clean Health Group PTY LTD for enforcement of obligations and recovery of moneys due from the customer to Clean Health Group PTY LTD.
Clean Health Group PTY LTD shall levy and the customer shall pay interest at 10% above the overnight inter-bank commercial lending rate on all amounts outstanding. Dishonoured & re-presented cheques will attract a minimum $100.00 fee.
4.8 Supplier’s Right of Set Off
The Supplier may set off any amount owed by the Supplier to the Customer from any amount due by the Customer to the Supplier.
5. PAYMENT OF GST
5.1 Customer Liable for all GST
In addition to any GST included in the Purchase Price of the Goods, the Customer must pay to the Supplier on demand any GST payable in relation to any other Taxable Supplies which is subject to these conditions.
5.2 Apportionment of Payment
If any part of the Purchase Price is referable 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 the Supplier.
5.3 Adjustments
If the Supplier determines on reasonable grounds that the amount of GST referable to any Taxable Supply which is subject to these conditions differs for any reason from the amount of GST included in the Purchase Price, the amount of GST payable by the Customer shall be adjusted accordingly and recovered from the Customer or credited to the Customer's account as appropriate. Where the Supplier has paid the difference between the two amounts to the Commissioner of Taxation, whether or not as part of a larger sum, no amount will be paid to the Customer under this clause unless the Supplier is entitled to a refund or credit of such amount from the Commissioner of Taxation.
6. RISK
Risk in the Goods passes to the Customer at the time the Goods are delivered to the Customer at the nominated delivery point.
7.1 Retention of Title
Subject to condition 7.2, property in the Goods remains with the Supplier and does not pass to the Customer until the Customer has paid all amounts owing by the Customer to the Supplier ("Amount Due") and cleared funds on all cheques or negotiable instruments have been received by the Supplier ("Relevant Date").
7.2 Sales to Third Parties
Until the Relevant Date the Customer may, as principal, in the course of its business, sell and deliver any Goods to a third party (and for that purpose the Supplier gives to the Customer the right to pass the ownership of those Goods to the third party) provided that:
(a) where the Customer is paid for the Goods by the third party, the Customer must out of the proceeds of the sale hold the Amount Due from the Customer to the Supplier on trust; and
(b) where the Customer has not been paid for the Goods by the third party, the Customer holds the debt owing to it by the third party in respect of the sale of the Goods upon trust for the Supplier and must assign that debt to the Supplier and for the purposes of the assignment of that debt the Customer irrevocably appoints the Supplier as its attorney.
7.3 Right of Entry
The Customer must permit representatives of the Supplier to enter any premises under the control of the Customer where the Goods are held for the purpose of inspecting the premises and the Goods to check that the Customer is complying with this condition and, in circumstances covered by this condition 7, to retake possession of any relevant Goods.
7.4 Retaking Possession
If:
(a) the Customer fails to pay any of the Amount Due; or
(b) the Customer becomes or, in the reasonable opinion of the Supplier, is in danger of becoming, insolvent or bankrupt
the Supplier may retake possession of the Goods.
7.5 Disposal on Retaking Possession
If the Supplier retakes possession of the Goods, the Supplier may sell or otherwise dispose of the Goods at its absolute discretion.
8. WARRANTIES, LIMITATION & EXCLUSIONS, AND INDEMNITY
8.1 Exclusion of Warranties
Subject to condition 8.2 and to the extent permitted by law, this agreement excludes all warranties, conditions, liabilities or representations in relation to the Goods or the correctness of information, advice or other services concerning the Goods or otherwise.
8.2 Limitation of Liability
Where legislation implies in these Sales Conditions any condition or warranty which cannot be excluded or modified, the condition or warranty is deemed to be included in this agreement. However, to the extent permitted by law, the liability of the Supplier and its officers, employees or agents for a breach of any such condition or warranty is limited, at the Supplier's option, to any one or more of the following:
(a) the replacement (from any source) of those Goods or the supply of equivalent Goods;
(b) the payment of the costs of replacing those Goods or of acquiring equivalent Goods, by credit to the Customer's account, in cash or by cheque at the Supplier's absolute discretion; or
(c) repayment of any part of the Purchase Price of those Goods which has been paid by the Purchaser, by credit to the Customer's account, in cash or by cheque at the Supplier's absolute discretion.
8.3 No Liability
Subject to condition 8.2, the Supplier, its officers, employees or agents are not liable for any loss or damage of any kind whatsoever, including, without limitation, consequential or economic loss or loss of profits, even if due to the negligence of the Supplier, its officers, employees or agents arising out of or in connection with the supply of Goods. This exclusion extends to any promotional activities, advertising statement about the Goods or their performance or characteristics of or by the Customer.
8.4 Notification of Claims
Where Goods are short delivered, defective or damaged on delivery, the Customer must notify the Supplier immediately on delivery or in writing (including any delivery note number and details of the claim) within 24 hours after delivery, unless there is an immediate danger to the health of consumers in which case the Customer must notify the Supplier immediately by telephone and must follow any product recall or withdrawal directions given by the Supplier. The Customer has no entitlement to return Goods which are outside the "use by" period of those Goods other than in accordance with this clause. The Customer is deemed to have accepted the Goods if they are not rejected in accordance with this clause.
9. FORCE MAJEURE
9.1 Force Majeure Events
The Supplier may suspend delivery or reduce the amount to be delivered if the Supplier is unable to deliver the Goods by reason of circumstances beyond its reasonable control, including (without limitation) strikes, lock-outs, accidents, war, fire, flood, explosion, shortage of power, breakdown of plant or machinery, shortage of raw materials from normal source of supply, act of God or any order or direction of any government, government authority or instrumentality.
9.2 Right of Termination
If the effects of the force majeure event continue for more than one calendar month, the Supplier at its absolute discretion may terminate the agreement for supply of Goods to which these terms and conditions apply.
9.3 No Claim
The Customer will have no claim against the Supplier for any damages, loss, costs or expenses arising from delay or cancellation under condition 9.1.
10. GENERAL
10.1 Waiver
The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
10.2 Severability
Any provision in this agreement which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. Otherwise the provision may be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
10.3 Sales Conditions Prevail
As between the Supplier and the Customer, if there is any inconsistency (whether expressly referred to or to be implied from these Sales Conditions or otherwise) between the provisions of these Sales Conditions and those of any document of the Customer, the provisions of these Sales Conditions prevail to the extent of the inconsistency.
10.4 Variation to Sales Conditions
The Supplier may from time to time at its absolute discretion vary the Sales Conditions.
10.5 Governing Law
The Supplier and the Customer accept the law of Victoria as the proper law of the agreement and agree to submit to the non-exclusive jurisdiction of the Courts in Victoria and any court hearing appeals from those Courts.
GUARANTEE AND INDEMNITY
To: Clean Health Group PTY LTD (the “Supplier”)
1. Guarantee and Indemnity
In consideration of the Supplier at the request of the person(s) listed as guarantor(s) below (“Guarantor”), supplying in the future or continuing to supply [Customer Name] (“Debtor”) with Goods or services from time to time, the Guarantor:
(a) guarantees to the Supplier the due and punctual payment of all moneys owing from the Debtor to the Supplier now or in the future for the supply of Goods or services (“Guaranteed Moneys”); and
(b) as a separate obligation, indemnifies the Supplier against any loss suffered by the Supplier because any agreement between the Supplier and the Debtor for the supply of Goods or services is unenforceable or the Guaranteed Moneys, in whole or in part, are not recoverable from the Debtor or, having been recovered, must be refunded.
2. Guarantor’s Obligations
2.1 The Guarantor’s obligations under this guarantee and indemnity are unconditional, irrevocable, continuing and, if there is more than one Guarantor, joint and several.
2.2 The Guarantor’s liability is not affected by anything which, but for this provision, might operate to release it from or modify any of its liability, including, without limitation:
(a) any variation of contract (including any increase in the Guaranteed Moneys), extension of time for the payment or other indulgence which may be made or given between the Supplier, the Debtor, the Guarantor or any other surety for the Guaranteed Moneys (each a “Relevant Person”)
(b) where a Relevant Person is a partnership, if there is any change in the membership of the partnership;
(c) the death, bankruptcy, receivership, administration or liquidation of a Relevant Person.
(d) the obligations of a Relevant Person under any agreement or document relating to the Guaranteed Moneys, including any other guarantee or security, being or becoming wholly or partially unenforceable or disclaimed by a liquidator or trustee in bankruptcy;
(e) the failure by the Supplier to give notice to the Guarantor of any default by the Debtor or any other person;
(f) the fact that any person who was intended to be bound as a guarantor in respect of the Guaranteed Moneys does not become bound or, having done so, ceases to be bound;
(g) the fact that the Supplier does not enforce or delays the enforcement of this guarantee and indemnity or any other right or any agreement or fails to give any notice;
(h) the fact that the Supplier has at its discretion refused further credit or the supply of Goods or services to the Debtor; or
(i) anything which may end or limit the Guarantor’s recourse to any person or property for the recovery of moneys paid by the Guarantor under this guarantee and indemnity.
2.3 If the Debtor defaults in payment of the Guaranteed Moneys, the Guarantor must pay those moneys on demand to or as directed by the Supplier.
2.4 The Guarantor warrants that it has not taken, and it must not take, security from the Debtor in respect of any present or future obligations of the Debtor to the Guarantor.
2.5 The Guarantor must indemnify the Supplier against, and must pay the Supplier on demand the amount of, any stamp duty and all costs of enforcing this guarantee and indemnity.
3. Evidence of Indebtedness
A certificate signed on behalf of the Supplier as to the amount owing by the Debtor on a specific day or the occurrence of a specific event will be binding on the Guarantor in the absence of manifest error. A judgment, order, award or certificate binding on the Debtor is also binding on the Guarantor.
4. Independent Legal Advice
The Guarantor acknowledges and warrants that the Guarantor has executed this Guarantee and Indemnity voluntarily, has read it and understood its true nature and effect and has obtained, or is aware of its right to obtain and has declined of its own free will to obtain independent legal and/or financial advice concerning this Guarantee and Indemnity.
5. Interpretation
(a) “Supplier” means any one or more of the Suppliers to whom this Guarantee and Indemnity is addressed (see above) who supply Goods or Services to the Debtor from time to time at the request of a Guarantor.
(b) The singular includes the plural and vice versa.
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