Terms & Conditions

TERMS AND CONDITIONS OF SALE

To the fullest extent legally possible, all contracts and dealing between Adam & Amos Abalone Foods PTY LTD, A.B.N. 86 087 912 703, and any Customer relating to any products or services are subject to the Terms & Conditions of Trade set out below unless otherwise expressly agreed in writing.

In this Agreement, “Supplier” means Adam & Amos Abalone Foods PTY LTD from which this Agreement originated. "Customer" means the party to whom the Supplier has supplied its products to including but not limited to their subsidiaries, affiliates, associated companies, related company successors or assigns.

"GST" means any tax or imposition on the supply of goods and services covered by A New Tax System (Goods and Services Tax) Act 1999 Commonwealth (the GST Act) as amended from time to time.

The terms and conditions contained in this Agreement constitute the full understanding of the parties and a full and complete statement of the terms and conditions of the Agreement between them. No term, condition, understanding or agreement purporting to modify or vary the terms and conditions herein will be binding unless made in writing and signed by the Supplier and no modification or variation will be effected by the acknowledgement or acceptance by the Supplier of a purchase order form or any other document containing terms and conditions at variance with or in addition to those set out herein. Previous dealings between the Supplier and the Customer will not modify or vary the terms and conditions contained herein or be deemed to do so in any circumstances whatsoever.

Any variation of price is effective and binding upon receipt by the Customer of a notice in writing from the Supplier specifying such variation, provided that such variation will not apply to goods which have been ordered by the Customer prior to the date of receipt by the Customer of the notice of variation. The Supplier’s calculation of any such increase is price conclusive.

Unless otherwise agreed in writing, the terms of payment are 30 days from date of invoice.

Unless otherwise specified on the front page, the Customer must pay the price in Australian dollars.

Unless otherwise agreed in writing, the risk in respect of the goods passes with possession. Accordingly, the Customer bears the risk for the goods from the point and time of collection of the goods from the Supplier’s manufacturing plant.

7.1 Subject to Clause 7.2 goods delivered to the Customer remain the sole and absolute property of the Supplier as legal and equitable owner until such time as the Customer pays to the Supplier:

(b) any other payments due and payable to the Supplier whether under this Agreement or otherwise in respect of any goods supplied to the Customer by the Supplier.

7.2 Without limiting the generality of Clause 7.1, the Supplier may at any time before or after delivery of the Goods elect by notice in writing to the Customer to pass title in the Goods to the Customer on the date of such notice or such later date as the notice may specify.

7.3 The exercise by the Supplier of its rights contained in Clause 7.2 does not vary or derogate in any way from the rights and remedies of the Supplier at law in respect of any breach by the Customer of this Agreement.

Upon the occurrence of any of the following events, the Supplier may (without prejudice to any of its other rights) recover and resell goods, which remain the property of the Supplier and may enter on the Customer’s premises by its servants or agents for that purpose:

(1) (if the Customer is a corporation) the Customer becomes insolvent or any order is made or resolution passed for the winding up of its business or a receiver or receiver and manager is appointed over all or any part of the assets of the Customer; or

(2) (if the Customer is a natural person) the Customer commits an act of bankruptcy or makes an assignment for the benefit of creditors; or

(3) the Customer fails to make any payment to the Supplier when due and payable; or

The Supplier will apply any monies obtained from such sale in reduction of the monies due and payable by the Customer to the Supplier pursuant to this Agreement and otherwise.

The Supplier or the Customer (as the case may be) will make every reasonable effort to make delivery of or to collect (as the case may be) the goods by the appropriate delivery or collection date specified in any relevant Sales Order taken by the Supplier from the Customer.

Without limiting the generality of 9.1, the delivery or collection date specified therein is an estimate only and the Supplier or the Customer (as the case may be) is not liable for any loss or inconvenience caused from its inability to deliver or collect the goods (as the case may be) by the appropriate delivery or collection date.

Where any particulars or instruction are required to be supplied by the Customer before the Supplier can proceed with or complete this Agreement such particulars or instructions will be supplied within a reasonable time to enable the Supplier to deliver the goods by the appropriate delivery date. Failure by the Customer to supply such particulars or instructions within a reasonable time will constitute a breach by the Customer of this Agreement.

If any dispute arises in respect of the quality, quantity or condition of any goods or otherwise in connection with or under, this Agreement the Customer will nevertheless make due and full payment for each delivery by the Supplier under or in purported compliance with this Agreement to the intent that the customer will not be entitled to deduct from any invoice any money by way of retention, set off or otherwise.

The Supplier will not be liable in respect of any claim by the Customer under or pursuant to the contract or in any other way whatsoever (including liability for negligence or wilful default) in relation to the goods or delivery thereof unless such claim is notified in writing by the Customer to the Supplier within twenty four hours after the first to occur of tender of delivery or delivery to the Customer or collection by the Customer.

(a) excludes and limits its liability for any loss or damage howsoever caused including consequential loss or damage suffered or incurred by the Customer directly or indirectly in connection with the supply or failure to supply by the Supplier to the Customer of goods or services pursuant to this Agreement;

(b) excludes any liability arising under any statute whether State or Federal in respect of such supply and limits its liability to the minimum liability imposed on it by any such statute; and

(c) excludes any warranty term or condition which might otherwise be implied into this Agreement by any such statute and where such exclusion cannot be made limits the terms of any such warranty, term or condition to the minimum permitted by any such statute;

The Supplier makes no express warranties (including without limitation any warranties or representations concerning the characteristics or efficacy of the goods supplied when it is fed to any seafood species) in relation to the goods supplied. The Customer will rely on its own knowledge and expertise in selecting any products for any purpose and any advice or assistance given or on behalf the Supplier shall be accepted at the Customer's risk and shall not be deemed given as expert or advisor nor to have been relied upon.

This clause does not exclude or limit the application of any provision of any statute where to do so would:

The Supplier excludes all implied conditions and warranties except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void (in this clause called a ‘Non-excludable Condition’).

The Supplier’s liability to the receiver of this food for breach of any express provision of this Agreement or any Non-excludable Condition is limited, at the Supplier’s option, to:

The Supplier is not liable if the quantity of the goods specified on the front page of this Agreement varies, either in bulk or per package, by two per cent (2%) or less of the weight specified. The Customer agrees to accept delivery of such quantity and to pay the price determined in accordance with this Agreement in respect of such quantity.

14.1 The Supplier is not liable and the Customer has no claim for damages for breach of contract or otherwise in respect of any failure to produce or deliver or any delay in production or delivery of the goods by the Supplier caused or occasioned directly or indirectly by any reason, factor, event, interference or restriction wholly or partly arising beyond the reasonable control of the Supplier.

14.2 In the event of any such reason, factor, event, interference or restriction referred to in 14.1 causing delay, the appropriate delivery or collection date specified on the front page may at the Supplier’s option be extended to such period as may be reasonably necessary in which case the Customer will be bound to accept and pay for the goods notwithstanding any such delay or the Supplier may at its option cancel this Agreement.

14.3 The Supplier agrees to notify the Customer promptly of any event or force majeure under Clause 14.1 and to employ all reasonable efforts towards prompt resumption of its performance under this Agreement when possible if such performance is delayed or interrupted by reason of such event.

14.4 The Supplier will not be liable to the Customer in any respect by reason of a cancellation of this Agreement pursuant to Clause 14.2.

To the extent that a supply of services provided by the Supplier, or any other supply, made under or persuant to this agreement, is a "taxable supply" as defined by any GST Regulation, the Supplier will increase its price in respect of that supply it makes by the amount of GST applicable to the supply.

This Agreement is subject to and will be construed in accordance with the laws of the State of South Australia in which the Supplier is situated as shown on the front page and any difference or dispute under this Agreement, or any claim in any way arising hereunder, will be subject to the jurisdiction of the Courts of that State. All parties subject themselves to the jurisdiction of the State and all relevant Courts of Appeal therefrom.

(a) each order it places shall be deemed to include a representation that it is solvent and able to pay all of its debts as and when they fall due; and

(b) when any order is placed, the Customer shall inform the Supplier of any facts which might reasonably affect any decision to accept the order and/or grant credit. Any failure to do so shall be deemed to create or constitute an inequality of bargaining position, the taking of an unfair advantage of the Supplier and to be unconcionable, misleading and deceptive.

Any part hereof being a whole or part of a clause shall be capable of severance without effecting any part of these Terms and Conditions of Sale.

Upon any default or breach hereof by the Customer, the Supplier may (inter alia) retain all monies paid and/or cease further deliveries and/or recover from the Customer all loss of profits arising without predjudice from any other of its rights and without being liable in any way to any party.

The Customer shall pay all costs and expenses incurred by the Supplier, its legal advisors, mercantile agents and others in respect of anything instituted or being considered against the Customer, whether for debt, possession of any products or otherwise.