TRADING TERMS & CONDITIONS (Date of issue: 6 October 2021)
Nievole Distributors Pty Ltd ABN 88 127 871 621 (Nievole)
These terms apply to each contract for a supply of products by Nievole to the Customer and prevail over any purchase terms the Customer may issue. These terms are subject to any special offer by Nievole, or as Nievole may agree in writing. The Customer’s failure to acknowledge these terms is not evidence that these terms do not apply. Placing an order on the account number allocated by Nievole is acceptance of these terms. Nievole may change these terms by notice in writing to the Customer before Nievole accepts their order.
Nievole may change its range of products on offer without prior notice.
If Nievole is to manufacture or package any product using specifications or materials supplied by the Customer: (a) the Customer warrants that such specifications do not infringe third party rights or applicable law, and that such materials are fit for purpose and will be delivered to Nievole in the form and within the time Nievole requires; (b) Nievole is not obliged to check those specifications or test those materials before use; and (c) the use of those specifications / materials is wholly at the Customer’s risk.
The Customer may place an order orally or in writing (this includes via any Nievole website offering that function) – if Nievole so requires, an oral order is not effective until confirmed in writing by the Customer. The Customer may place a “standing order” for repeat deliveries of product, in which case the order remains valid until its revocation is notified to Nievole’s account manager by the Customer. Nievole may have a minimum order requirement as stated in its current price list. A Customer’s order is subject to Nievole’s acceptance, and Nievole may decline an order in full or in part. Nievole accepts an order (in full or in part) either by so notifying the Customer or by executing the order. After Nievole accepts an order, a contract for the supply of products in that order is formed and the Customer may not cancel the order, or delay delivery, unless Nievole agrees to this in writing.
Unless stated otherwise, prices stated in Nievole’s current price list: (a) include usual packaging; (b) do not include GST; (c) do not include delivery to the Customer’s premises. Unless Nievole has quoted a fixed price, it will invoice an order at the current price on the day of delivery, which price may change without notice.
Nievole may recover from the Customer any GST for which Nievole becomes liable by its supply of product to the Customer.
On or as soon as practicable after a supply of product, Nievole will issue the Customer a tax invoice for that transaction. If the Customer wishes to dispute any part of the invoice, the Customer must notify Nievole and provide sufficient information regarding the reason for the dispute, within 14 days of delivery of the product. If the Customer does not notify Nievole of such a dispute within 14 days of delivery, the Customer waives all rights to dispute that invoice.
If Nievole extends credit to the Customer, the Customer must pay the amount of the invoice to Nievole no later than 30 days from the last day of the month that the invoice is dated unless Nievole extends credit to the Customer for a longer period (as last notified by Nievole in writing) in which case payment must be made before expiry of that extended period. Unless Nievole agrees in writing, the Customer may not deduct from an invoice amount any set off, counterclaim or rebate asserted by the Customer or any other sum (such as taxes or charges). Nievole may require payment by electronic funds transfer in clear funds to a bank account nominated by Nievole in writing. Payment by cheque is not made until the cheque clears.
If an invoice is not paid on time, Nievole may: (a) recover from the Customer interest at 15% per annum on the unpaid amount calculated on a daily basis from the due date until the date payment in full (plus accrued late payment interest) is made to Nievole; (b) without liability to the Customer, cancel or suspend delivery of other products yet to be supplied; and / or (c) exercise any other rights it has in relation to the default.
If Nievole extends credit to the Customer, it does so based on written information provided to Nievole by or for the Customer. If at any time that information changes materially or adversely, the Customer will advise Nievole in writing of the change and will provide sufficient information regarding the reason for the change within two working days. A credit account is personal to the Customer, and is not transferable to a third party. If Nievole is extending credit to the Customer, at any time and without reason, Nievole may reduce, suspend or terminate the credit account by so advising the Customer. A credit account will automatically terminate if the Customer does not trade with Nievole for 12 months or becomes insolvent. Within 7 days of being advised of a reduction/suspension/termination of the credit account, the Customer must pay to Nievole any amount owing to Nievole in excess of its credit limit at that time.
If Nievole extends credit to the Customer, the Customer charges all its present and after-acquired property (whether real property or personal property) as security for payment to Nievole of all moneys at any time owing by the Customer to Nievole. That charge is in addition to, and not in derogation of, any other rights Nievole might at any time have over any property or against any third party. The charge will become fixed if any monies owed by the Customer to Nievole are not paid when due, or if the Customer is under external administration in accordance with Section 161A of the Corporations Act 2001.
In addition to rights of set off under the general law, Nievole may set off any debt or liability the Customer (alone or with others) owes to a Group Company against any debt or liability that a Group Company owes to the Customer on any account. If a liability is unliquidated or otherwise unascertained, Nievole may set off an amount estimated by Nievole in good faith on account of such liability, without prejudice to the obligation of the parties to account for any shortfall or excess. In this clause, Group Company means Nievole and any (present or future) related entity of Nievole (within the meaning of Corporations Act 2001). Nievole holds the benefit of this clause on trust for itself and for each such related entity now existing or yet to exist.
Nievole warrants that: (a) a description of products accords with Australian trade usage, (b) a description of weight means weight when loaded for delivery, (c) packing or packaging is to usual Australian standards, (d) product is of merchantable quality when delivered. Subject to applicable laws, and without excluding, restricting or modifying the rights and remedies the customer may have under the Australian Consumer Law (set out in Schedule 2 of the Competition and Consumer Act 2010), Nievole does not give any other guarantee, warranty or condition of supply.
Nievole may supply less than a quantity ordered if unable to supply the full quantity. If the full quantity of an order is unable to be supplied, the unit sale price of the product will remain the same. Nievole may supply an order by instalment, but if it fails to supply a particular instalment by a date specified, the Customer is not entitled to rescind the contract.
Where Nievole delivers product to the Customer using wooden pallets, plastic pallets or pallet cons: (a) if Nievole knows the Customer account number with Loscam, Nievole may debit that account with those items, and the Customer must confirm that transaction within 30 days; or (b) if Nievole does not know the Customer account number with Loscam, at the time of each delivery the Customer must swap the pallets received from Nievole with identical pallets sourced by the Customer, and in default pay to Nievole $40 (before GST) for each pallet not so swapped. Palletcons by Ceva may be traded by agreement with Nievole. Nievole does not trade CHEP pallets.
Risk of loss / damage / deterioration in the product passes from Nievole to the Customer at the time of delivery.
Ownership of the product passes from Nievole to the Customer only when that product is paid for by the Customer. Until ownership passes to the Customer the Customer will: (a) hold the product as fiduciary and bailee for Nievole; (b) store the product separately and in a manner to enable it to be identified as product delivered pursuant to a particular invoice; and (c) subject to clause 19, be authorised and permitted to sell the product in the ordinary course of the Customer’s business and use the product in any manufacturing or construction process in the ordinary course of the Customer’s business. The Customer’s right to hold and sell the goods will immediately cease if the Customer is under external administration within the meaning of section 161A of the Corporations Act or the Customer is deregistered or becomes bankrupt. In any such case, and without the need for notice or demand by Nievole, the Customer acknowledges any sale or purported sale of or dealing with the goods will not be in the ordinary course of the Customer’s business and the proceeds of any goods sold in such circumstances will be held on trust for Nievole by the external administrator or trustee in bankruptcy as the case may be, or if there is no such officer, by the Customer.
Any proceeds of sale of the product sold in the ordinary course of the Customer’s business or any proceeds of sale of any goods incorporating or processed using the goods which are referable to the product shall be the property of Nievole and the Customer will hold such proceeds on trust for Nievole.
The Customer must not supply or sell product from Nievole not then in merchantable condition.
A recall of product Nievole supplied may be initiated by government, Nievole or the Customer for perceived health, hygiene or safety reasons. A party aware of a recall must immediately notify the other party (and must provide reasonable details of the recall). Each party must co-operate fully in relation to any recall, and at a minimum each party must comply with the ANZFA Food Industry Protocol, 2001 (or any later edition). If a recall occurs for reasons that are Nievole’s responsibility, Nievole is liable for the costs of transport and replacement for the products recalled.
A claim that a delivery was short is not valid unless advised to Nievole (with reasonable details) by 10 am on the next working day after the delivery. 23. Defective product: Subject to applicable laws: (a) a claim that product is defective for reasons that are Nievole’s responsibility is not valid unless advised to Nievole (with reasonable details) within 2 working days from the point at which the Customer was first made aware of the defect; and (b) Nievole may decline a claim for defective product if the Customer does not take reasonable steps to preserve the product (or the balance of the delivery) pending an inspection by Nievole’s agent, if Nievole requires inspection.
Subject to applicable laws, if products that Nievole supplies are short or defective for reasons that are Nievole’s responsibility, Nievole’s total liability is limited to (at Nievole’s election) the prompt replacement of the product, or the supply of equivalent product. In no case is Nievole liable for any loss of revenue / profits / goodwill or any incidental, consequential or punitive damages as a result of any claim in connection with its supply of product. If Nievole is to replace product that is defective for reasons that are Nievole’s responsibility, Nievole resumes ownership of the original product and may collect it from the Customer.
In addition to Nievole’s other rights, Nievole may suspend or cancel a contract and retake possession of products not paid for if the Customer is reasonably believed by Nievole to be insolvent or to have ceased to trade, or if the Customer is in default under any contract with a Group Company. Nievole may set off any claim it has against the Customer against any claim the Customer may have against Nievole on the same or another contract. The Customer is liable to pay all costs or expenses Nievole incurs in recovering or attempting recovery of moneys owing by the Customer or in otherwise enforcing Nievole’s rights under a contract. Such costs may include legal costs on a solicitor / client basis.
The Customer acknowledges and agrees that: (a) clause 11 gives Nievole a security interest under the Personal Property Securities Act 2009 (PPSA) over all the assets and property of the Customer; (b) clause 19 gives Nievole a purchase money security interest under the PPSA over product supplied to the Customer but not yet paid for by the Customer and the proceeds of such product. The Customer consents to Nievole at any time, without prior notice to the Customer but at the Customer’s cost, registering such security interest(s) in one or more financing statements / financing change statements on the register maintained under the PPSA and acknowledges that the products the subject of each order accepted by Nievole is subject to the single registered purchase money security interest of Nievole, To any extent Nievole at any time requests, the Customer must do all things necessary to assist with the registration perfection and enforcement of the security interest(s) and / or ensure the security interest(s) priority over any other security interest (present or future) over the same collateral granted to a third party. The Customer irrevocably contracts out of those provisions of the PPSA that the PPSA allows to be contracted out of by the Customer, including the right to receive verification statement(s). Any term used in this clause which is defined in the PPSA shall have the meaning given to it in the PPSA.
As a continuing obligation, the Customer indemnifies and holds harmless Nievole (a) against a claim for any loss, damage, personal injury or death to the extent caused by the Customer’s or consumer’s improper storage, handling or use of product or any other reasons that are not Nievole’s responsibility; and (b). for any costs (including all legal costs) Nievole incurs in enforcing its rights under these terms, including its rights against third parties claiming an interest in the product.
A party is not liable for a failure to perform an obligation contained in these terms if their performance is prevented by a circumstance not within that party’s reasonable control. It is acknowledged that an inability to pay sums due or other economic distress shall not be a force majeure event or circumstance.
The laws of South Australia govern this contract.
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