In these Terms & Conditions:
(a) Advantage Feeders means Advantage Feeders Pty Ltd ACN 136 664 036.
(b) Australian Consumer Law (“ACL”) refers to the provisions as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(c) Credit Application means any credit application form provided to the Customer by Advantage Feeders.
(d) Customer means a person or entity ordering the Goods or Services as shown on the invoice, purchase order, or other document issued by Advantage Feeders.
(e) Goods means those products listed on the written quotation, invoice or other document provided by Advantage Feeders to the Customer.
(f) Supplied Goods means the products supplied by Advantage Feeders on behalf and at the request of the Customer.
(g) GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended.
(h) GST means the Goods and Services Tax as levied under the GST Act.
(i) Services means any service listed on the written quotation, invoice or other document provided by Advantage Feeders to the Customer.
(j) Deliverer means the delivery company utilised by Advantage Feeders, the delivery company used is at the complete discretion of Advantage Feeders.
(k) Supply Date means the date on which Advantage Feeders, or the Deliverer, attempts delivery and/or supply of the Goods to the Customer’s nominated address.
(l) PPSA has the meaning as set out in Personal Properties and Securities Act 2009 (Cth).
(a) These Terms & Conditions apply to any sale of Goods or supply of Services provided by Advantage Feeders to the Customer, unless expressly waived or varied by Advantage Feeders in writing.
(b) Any order of Goods and/or the request for Services by the Customer or any payment made by the Customer, represents the Customer’s unequivocal and irrevocable acceptance of these Terms & Conditions and acts as a legally binding contract between Advantage Feeders and the Customer.
(c) These Terms & Conditions must be interpreted to comply with applicable Commonwealth and Victorian State legislation. If any clause does not comply with any such law, then that clause must be read to give as much effect as possible.
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(a) Subject to clause 3(b), Advantage Feeders’ written quotations must be accepted within 30 days of the date of issue, unless otherwise stated in writing on the quotation provided to the Customer.
(b) Prices quoted are based on the cost of production and/or supply, and subject to reasonable change, which may occur due to increases in the costs of materials, or increased production costs.
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(a) Terms provided to the Customer by Advantage Feeders may be accepted by the Customer either by the conduct outlined in clause 2(b), verbally or in writing.
(b) Notwithstanding clause 4(a) above, Advantage Feeders may request the Customer to sign a confirmation of acceptance of terms at any time.
(c) The terms may be signed in any form as determined at the absolute discretion of Advantage Feeders, including by electronic signature.
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(a) Advantage Feeders’ written quotation shall be deemed to correctly interpret the Customer’s instructions.
(b) In the absence of written instructions, Advantage Feeders shall not be liable to the Customer for any errors or omissions due to misinterpretation of verbal instructions.
(c) Provided that Advantage Feeders correctly follows the Customer’s written instructions, any alterations or additions to the Customer’s order will alter the quotation and the Customer may be charged additional costs above the amount stated in the written quotations.
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(a) If Advantage Feeders is required to obtain additional Goods or Services, then Advantage Feeders acquires these Goods and/or services as agent for the Customer and not as principal and will have no liability to the Customer in relation to the supply of those Goods and/or Services. Any claim by the Customer in relation to the supply of those Goods and/or Services must be made directly against the third party.
(b) In the event that Advantage Feeders is required to obtain additional Goods and/or Services, the Customer will be required to pay a deposit of fifty (50) percent of the value of the total quoted value of the works, or such other amount as may be required by Advantage Feeders from time to time.
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(a) The suspension by the Customer of any work, for any reason whatsoever, for a period of fourteen (14) days entitles Advantage Feeders to payment in full for the portion of work completed and any work-in-progress.
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(a) The order of precedence for determining the price for the Goods shall be:
(i) Advantage Feeders’ current ruling price at the date of supply;
(ii) the price shown on Advantage Feeders’ invoice; and
(iii) any written quotation given by Advantage Feeders.
(b) Unless expressly stated on the written quotation or on Advantage Feeders’ invoice, the price excludes:
(i) any delivery charge; and
(ii) GST.
The Customer must pay these amounts in addition to, and at the same time as payment of the price.
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(a) Advantage Feeders shall invoice the Customer for the quoted value of the Goods and/or Services plus any additional costs that have been incurred to enable the completion of the supply of Goods and Services in accordance with the Customer’s requests and requirements.
(b) Unless otherwise agreed with Advantage Feeders, payment is due in full upon confirmation of the order and prior to delivery of the Goods and/o Services.
(c) The Customer is not entitled to set-off, deduct, withhold or counterclaim against any amount payable to Advantage Feeders, whether under this contract or otherwise, unless Advantage Feeders agrees in writing.
(d) In the event of late payment Advantage Feeders may, without prejudice to any other rights:
(i) Suspend further deliveries of Products until all overdue amounts (including interest and fees) are paid in full;
(ii) Cancel any outstanding orders with immediate effect upon written notice; and/or
(iii) Demand immediate payment of all outstanding amounts owed under any invoices, whether due or not.
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(a) Advantage Feeders may charge the Customer:
(iv) penalty interest at the rate that is 2% higher than the rate for the time being set by the Penalty Interests Rates Act 1983 from the due date for payment until the date that all amounts due are received as clear funds by Advantage Feeders; and
(v) any other amounts or fees incurred by Advantage Feeders as a consequence of late payment, including but not limited to fees accrued by the engagement of a debt collector or other professionals.
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(a) Advantage Feeders may, at its sole discretion, supply the Customer with the Goods on terms that do not require payment in full at the time of delivery. If Advantage Feeders does so, this clause applies.
(b) If this clause applies, Advantage Feeders may:
(i) require the Customer to complete a Credit Application, in any form prescribed by Advantage Feeders, as a condition of providing or extending credit;
(ii) withdraw, suspend or vary the conditions of credit at any time;
(iii) set and vary credit limits for Customers from time to time; and
(iv) require the Customer to make a payment on or prior to delivery or supply of Goods or Services, provided the Customer is notified of the change in payment arrangements prior to delivery or supply of Goods or Services.
(c) By accepting credit from Advantage Feeders, the Customer warrants and acknowledges that:
(i) they have read these Terms & Conditions;
(ii) they have understood the Credit Application; and
(iii) they are in a financial position to pay all debts as they fall due.
(d) The Customer agrees not to make any claim, seek to withhold payment or avoid its obligations in respect to payment of any balance payable to Advantage Feeders.
(e) If the Customer is a company, each director of the company must execute a guarantee and indemnity (in the form required by Advantage Feeders), as security for the Customer’s obligations and payments to Advantage Feeders.
(f) If required by Advantage Feeders, the Customer must immediately procure and deliver executed Guarantees to Advantage Feeders.
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(a) Manufacturer’s warranty only
The Goods are sold with the benefit of the manufacturer’s/supplier’s warranty only. A copy of the current manufacturer’s warranty applicable to the Goods is available on request.
(b) Exclusion of implied warranties
Save as expressly stated in these Terms and Conditions and to the maximum extent permitted by law, Advantage Feeders excludes all conditions, warranties, representations and other terms (whether express or implied by statute, common law, trade usage, course of dealing or otherwise) in relation to the Goods and Services, including without limitation any implied terms as to satisfactory quality, fitness for any particular purpose, correspondence with description or sample, or non-infringement of third-party rights.
(c) Limitation of liability where exclusion is not permitted
Where liability cannot be excluded by law (including under the Australian Consumer Law), Advantage Feeders’ liability for breach of any non-excludable guarantee is limited, at its option, to;
(i) in the case of Goods: the repair or replacement of the Goods, the supply of equivalent goods, or the payment of the cost of such repair, replacement or supply; or
(ii) in the case of Services: the re-supply of the Services or the payment of the cost of having the Services re-supplied.
(d) General exclusion of liability
Subject to clause 11(c) and to any non-excludable statutory rights Advantage Feeders shall not be liable (whether in contract, tort (including negligence), under statute or otherwise) for any loss, damage, cost or expense of any kind (whether direct, indirect, consequential or economic, including loss of profit, revenue, goodwill or business opportunity) arising out of or in connection with the supply of the Goods or Services or these Terms and Conditions.
(e) Specific exclusions
Without limiting clause 11(d), Advantage Feeders shall not be liable for:
(i) any defect, damage or loss caused wholly or partly by misuse, abuse, neglect, accident, overload, improper installation, repair or alteration (other than by Advantage Feeders), or any other abnormal conditions or use;
(ii) transport, installation, removal, labour or any other ancillary costs;
(iii) defects in goods not manufactured by Advantage Feeders (although Advantage Feeders may, in its discretion, assist the Customer in pursuing a claim under the relevant manufacturer’s warranty); or
(iv) any technical advice or assistance provided by Advantage Feeders unless such advice or assistance was given negligently and caused direct loss.
(f) Notification of claims
The Customer must give Advantage Feeders written notice of any alleged defect or non-conformity within fourteen (14) days after the Customer becomes aware (or ought reasonably to have become aware) of it. Failure to give such notice within the time required shall constitute irrevocable acceptance of the Goods and Services and waive any claim in respect of the alleged defect or non-conformity (subject always to non-excludable statutory rights).
(g) Manufacturer’s warranty claims
Any claim under a manufacturer’s or supplier’s warranty must be made directly by the Customer to the manufacturer or supplier in accordance with its terms and procedures. Advantage Feeders is under no obligation to handle, process or administer such claims but may, in its absolute discretion, provide reasonable assistance.
(h) Non-excludable rights preserved
Nothing in this clause 11 excludes, restricts or modifies any right or remedy that cannot lawfully be excluded, restricted or modified under the Australian Consumer Law or any other applicable law.
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(a) Nothing in these Terms shall exclude or limit Advantage Feeders’ liability for death or personal injury caused by its negligence, fraud, fraudulent misrepresentation, or any other matter for which liability cannot lawfully be excluded or limited.
(b) Subject to clause 12(a), Advantage Feeders shall not be liable (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) for any defect in the Goods, failure of the Goods to conform to any description or sample, unfitness for purpose, or any other issue that would otherwise give rise to liability under an implied warranty or condition.
(c) To the extent permitted by the ACL, the liability of Advantage Feeders for breach of a condition or warranty implied by the Act is limited to the:
(i) replacement or re-supply of the Goods, or supply of equivalent Goods; or
(ii) payment of the cost of replacing the Goods or of acquiring equivalent Goods.
(d) Force Majeure: Advantage Feeders will have no liability to the Customers for any loss, damage or expenses suffered, or incurred resulting from circumstances beyond Advantage Feeders’ control, such as but not limited to, insurrection, fires, floods, strikes, lockouts, delays in delivery of materials to Advantage Feeders, breakdown in machinery, inability or failure of Advantage Feeders to supply necessary materials, or prohibitions, or other action by any government, or government authority, or embargoes.
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(a) Unless otherwise agreed, Advantage Feeders is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the goods to the customer to the point of delivery.
(b) Any date quoted for delivery is an estimate only. Advantage Feeders shall not be liable to the customer for any loss or damage arising for failure to deliver:
(i) on or before the quoted date; or
(ii) after the quoted date, unless a guarantee under this clause has been provided by Advantage Feeders to the customer.
(c) Advantage Feeders reserves the right to deliver by installments. If delivery is made by installments, the customer shall not be entitled:
(i) to terminate or cancel the contract, or
(ii) to any loss or damage arising for failure by Advantage Feeders to deliver any installments on or before the quoted date or after the quoted date, unless a guarantee under this clause has been provided by Advantage Feeders to the customer.
(d) The customer indemnifies Advantage Feeders against any loss or damage suffered by the Advantage Feeders, its sub-contractors or employees as a result of delivery, except where Advantage Feeders has not used due care and skill.
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(a) The Customer must provide suitable and practical means of access to the delivery site and ensure that the delivery site is suitably prepared for the delivery of Goods or provision of the Services.
(b) Where the Customer warrants that it is the owner of the delivery site or is authorised to request the Goods be delivered or Services be conducted at the delivery site, and that it has all of the required permissions, permits, approvals and authorisations for this to occur.
(c) At no time does Advantage Feeders take or accept any ownership of or responsibility for the delivery site. All risk and liability in and relating to the delivery site remains with the customer at all times.
(a) Risk in the Goods passes to the Customer when the Goods are delivered to the Customer’s nominated delivery address.
(b) From the time risk passes to the Customer, the Customer is responsible for insuring the Goods against all risks and for any loss, damage, deterioration or theft however caused.
(c) If the Customer requests Advantage Feeders to arrange delivery or insurance beyond the point where risk passes, Advantage Feeders does so as agent for the Customer and all costs and risks remain with the Customer.
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(a) The supply of the Goods does not include any training, commissioning, installation, set-up, or instruction on operation or maintenance unless this is expressly stated in the written quotation.
(b) Any training, commissioning, or operating instruction services that the Customer requires will be quoted and charged separately and will only be provided once the Customer accepts a separate quotation or purchase order for those services.
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(a) For the purposes of this clause 17:
(i) Intellectual Property means all copyright, patents, trademarks, designs, names, formulae, Specifications, confidential information and all modifications, improvements and enhancements (whether registrable or not) owned by or licensed to Advantage Feeders in respect of the goods or services; and
(ii) Specifications means all drawings, illustrations, descriptive matter and particulars contained in Advantage Feeders’ catalogues, price lists and marketing documents.
(b) The customer acknowledges that it has no proprietary right or interest in the Intellectual Property.
(c) The customer must not register or record or attempt to register or record anywhere in the world the Intellectual Property or any part thereof nor any patents, inventions, trademarks or designs derived from or similar to it, nor aid or abet anyone else in doing so.
(d) The customer must not at any time create, sell, manufacture or process any products using or taking advantage of the Intellectual Property.
(e) Any Intellectual Property provided to the customer by Advantage Feeders in connection with the goods or services remains the exclusive property of Advantage Feeders and must be returned to Advantage Feeders on demand. The customer must not copy nor communicate the Intellectual Property to any third party without the Advantage Feeders express prior written consent.
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(a) The Customer shall be deemed to have accepted the Goods and any Services performed by Advantage Feeders immediately on supply.
(b) Upon accepting the Goods, the Customer waives the right to make any claim against Advantage Feeders, unless the Goods or Services are defective and the Customer notifies Advantage Feeders of the defect in writing within fourteen (14) days of the Supply Date.
(c) If the Customer fails to give notice of any defect to Advantage Feeders in accordance with (b), then subject to any non-excludable condition implied by law, the Goods and/or Services shall be deemed to have been accepted by the Customer.
(d) Advantage Feeders is not however obliged to accept the return of the Goods, unless Advantage Feeders determines that the Goods are defective.
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(a) Advantage Feeders may, at its sole discretion, accept cancellation of an order of Goods and or Services, provided that:
(i) the request for cancellation is made in writing at least thirty (30) days prior to the quoted Supply Date;
(ii) the Customer agrees to pay a cancellation fee as determined by Advantage Feeders, provided that Advantage Feeders notifies the Customer of the cancellation fee within sixty (60) days of receipt of the written request for cancellation; and
(iii) the Customer pays for any completed order(s) and all out-of-pocket expenses incurred by Advantage Feeders to obtain Goods and Services on behalf of the customer.
(iv) The Customer must also pay for the portion of work in progress already completed, which will be invoiced to the Customer in addition to the cancellation fee.
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(a) Title to and property in all Goods supplied by Advantage Feeders remains with Advantage Feeders and does not pass to the Customer until Advantage Feeders has received payment in full of all monies owing by the Customer to Advantage Feeders on any account whatsoever (including under this or any other contract).
(b) Until title passes, the Customer holds the Goods as bailee for Advantage Feeders and must store the Goods separately, clearly identified as the property of Advantage Feeders.
(c) Until title passes, the Customer is entitled to use or resell the Goods in the ordinary course of business, but:
(i) any proceeds of resale must be held in a separate account on trust for Advantage Feeders; and
(ii) if the Customer resells the Goods before title passes, the Customer assigns to Advantage Feeders the benefit of any claim against the sub-buyer and must immediately remit any proceeds received to Advantage Feeders.
(d) If the Customer fails to pay any amount when due, or becomes insolvent, Advantage Feeders may, without prior notice:
(i) terminate the bailment and retake possession of the Goods (wherever located);
(ii) enter any premises where the Goods may be stored for that purpose (and the Customer grants an irrevocable licence for that purpose); and
(iii) sell or otherwise dispose of the Goods.
(e) If the Customer fails to make payment before the delivery of Goods, then Advantage Feeders may retain the Goods, until such payment is made.
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(a) The Customer grants Advantage Feeders a purchase money security interest (PMSI) and a general security interest in all present and after-acquired Goods supplied by Advantage Feeders and their proceeds to secure payment of all amounts owing.
(b) In this clause, the terms which are defined in the PPSA have the meaning given to them in the PPSA.
(c) If so requested by Advantage Feeders, the Customer agrees to promptly execute any documentation necessary, or do anything required by Advantage Feeders, to consent and ensure that the security interest is created as soon as required by Advantage Feeders. Any security interest registered in accordance with these Terms & Conditions shall constitute a first ranking, perfected security over the Goods.
(d) The Customer waives their right to receive a verification statement under the PPSA, but must be provided with confirmation of discharge of any registered securities, once payment(s) of any outstanding invoice(s) are made, or the line of credit is finalised and any invoice(s) accrued under that line of credit are paid in full.
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(a) Advantage Feeders may demand and if demanded the Customer must grant such further security for the customer’s obligations as Advantage Feeders reasonably requires from time to time.
(b) Advantage Feeders reserves the right to withdraw the customer’s credit or terminate the customer’s account if the customer does not do all things reasonable to grant any such further security, and sign any relevant documents relating to such security, when demanded.
(c) The Customer hereby irrevocably charges all of the Customer’s real and personal property as further security for the Customer’s obligations, and authorises and consents to Advantage Feeders registering a caveat over any real property owned by the Customer, and a security interest over all present and after acquired property of the Customer and their proceeds without exceptions.
(d) The Customer must pay Advantage Feeders reasonable legal and other costs, on a full indemnity basis, associated with the documentation and registration of any further security taken in accordance with this clause.
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(a) Without limiting any other right, Advantage Feeders may immediately terminate any contract and/or suspend further supply and/or retake possession of any Goods to which title has not passed if the Customer:
(i) fails to pay any amount by the due date;
(ii) commits any other material breach of these Terms & Conditions;
(iii) becomes insolvent, enters administration, receivership, liquidation, bankruptcy, or makes any arrangement with creditors; or
(iv) ceases or threatens to cease carrying on business.
(b) On termination under this clause, all amounts owing by the Customer to Advantage Feeders immediately become due and payable.
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(a) Advantage Feeders may vary these Terms & Conditions at any time, by notice in writing to the Customer.
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(a) The law of Victoria govern these terms and conditions. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
(b) If a clause is unenforceable, it must be read down so as to be enforceable or, if it cannot be so read down, it must be severed from these terms and conditions without affecting the enforceability of the remaining terms.
(c) A notice must be in writing and handed personally or sent by facsimile, email or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received upon confirmation of successful transmission.
