Simotas Food Distributors – T/C’s
1.1. “Seller” shall mean Simotas Foods its successors and assigns or any person acting on behalf of and with the authority of Simotas Foods
1.2 “Customer” shall mean the purchaser of the goods set out in the invoice or relevant credit application
1.3 “Invoice” shall mean the document (including statement) which may be provided to the Customer on or after delivery of the Goods describing those Goods, their price and quantity.
1.4 “Goods” shall mean Goods supplied by the Seller to the Customer and are as described on the invoices.
1.6 “Purchase Price” shall mean the price payable for the Goods as shown as the total on the invoice.
- 2. Purchase price of Goods
2.1 At the Seller’s sole discretion the Purchase Price shall be either:
(a) as indicated on invoices provided by the Seller to the Customer in respect of Goods supplied; or
(b) the Seller’s current price.
3.1 The Customer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein. These terms and conditions are binging and can only be amended with the written consent of the Seller.
3.2 The Customer shall give the Seller not less than thirty (30) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, fax number, or business practice). The Customer shall be liable for any loss
incurred by the Seller as a result of the Customer’s failure to comply with this clause.
- Payment and Credit Terms
4.1 Payment for the Goods provided by the Seller shall be made to the Seller upon receival of goods, unless other alternative terms have been agreed by the Seller in writing.
4.2 Payment will be made by one of the following methods: cash, cheque, credit card, or telegraphic transfer into the bank account nominated by the Seller.
4.3 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4.4 Payment with the use of Amex will incur a 2.5% surcharge, as an addition to the value of goods.
- Delivery of Goods
5.1 At the Seller’s sole discretion delivery of the Goods shall take place when;
(a) the Customer takes possession of the Goods at the Customer’s
nominated address (in the event that the Goods are delivered by the Seller or the Seller’s nominated carrier); or
(b) the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.
5.2 At the Seller’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
5.3 The Seller will accept no responsibility for loss or damage to goods once despatched from the Seller’s warehouse where delivery is undertaken by companies other than the Seller.
5.4 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
5.5 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.6 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.7 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
6.1 If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with
the Seller to make further enquiries.
7.1 Property in the Goods remains with the Seller until the Customer has paid all monies owing by the Customer to the Seller and cleared funds on all cheques or negotiable instruments have been received by the Seller.
7.2 It is further agreed that:
(a) the Customer is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller; and
(b) the Customer shall not deal with the money of the Seller in any way which may be adverse to the Seller.
- Customer’s Disclaimer
8.1 The Customer hereby disclaims any right to rescind, or cancel any contract with the Seller or to sue for damages or to claim restitution arising out of any misrepresentation made to the Customer by the Seller and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgement.
9.1 The Customer shall inspect the Goods on delivery and shall notify (time being of the essence) the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote within 24 hours of delivery.
10.1 Returns will only be accepted provided that:
(a) the Buyer has complied with the provisions of clause 9.1; and
(b) the Seller will not be liable for Goods which have not been stored or used in a proper manner; and
(c) the Goods are returned in the condition in which they were delivered and with all packaging material as new condition as is reasonably possible in the circumstances.
- The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair
Trading Acts (“FTA”)
11.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
12.1 To the extent permitted by statute, no warranty is given by the Seller as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
- Default Payment and Interest on Overdue Accounts
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two percent (2.0%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
13.2 If the Customer defaults in payment of any invoice when due, the Customer shall pay the Seller all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.
14.1 The Seller maintains the absolute discretion to withdraw or suspend credit or cancel delivery of Goods at any time by giving written notice to the Customer. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
- Privacy Act 1988
15.1 The Customer agrees for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Seller
15.2 The Customer agree that the Seller may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this