- Applicability
1.1. These conditions apply to all “business customer” sales, that is contracts by which any customer (refer to as “Buyer”) acquires GCAU, goods (including any related services) for the purposes of a business.
1.2. These conditions override and are in substitution for any conditions stipulated or referred to in writing or orally by buyer.
1.3. Nobody claiming to act on GCAU’s behalf is authorised to waive or change these conditions orally. Waivers or changes are effective only when made in writing and signed on GCAU’s behalf. - Prices
Stated or quoted prices are:
2.1. Exclusive of GST.
2.2. Agreed price and units between the Buyer and GCAU. The units and price is to be officially confirmed as per a pro-forma invoice to the Buyer. Any differences between the pro-forma and expected unit pricing must be identified in writing to GCAU by the Buyer before delivery. The Buyer shall make all payments due to GCAU in full without any deduction, whether by way of set-off, counterclaim, or any other equitable or legal claim. - Payment
3.1. Normal term of payment is seven working days (7) after delivery.
3.2. If default is made in payment by the due date, GCAU may (in addition to its other rights) charge simple interest of 2.5% per month 30% per annum (plus GST thereon) from the date payment became due until GCAU receives full payment, as well after judgment as before. The Buyer shall be liable to pay all expenses and legal costs of GCAU as between solicitor and client in relation to obtaining payment. - Retention of title
Notwithstanding any period of credit, ownership of goods remains with GCAU and will not pass to Buyer until all goods supplied to Buyer have been paid for in full and until that time Buyer agrees that:
4.1. Buyer holds the goods as bailee for and is in a fiduciary relationship with GCAU.
4.2. Buyer must store the goods so that they can be readily identified as belonging to GCAU.
4.3. Buyer is authorized by GCAU to dispose of the goods in the ordinary course of its business, but only as GCAU’s agent. However Buyer must not represent to any third party that it is in any way acting for GCAU and GCAU is not bound by any contract between Buyer and any third party. The Buyer’s authority to dispose of the Goods (as defined in clause 13.1 below) in the ordinary course of the Buyer’s business is revoked immediately if GCAU terminates the contract or if GCAU notifies the Buyer in writing that this authority is revoked.
4.4. If Buyer has not paid in full for the goods by the due payment date, GCAU or its agent(s) may (in addition to its other rights) enter Buyer’s premises (or other premises to which Buyer has access and where any of the goods subject of the contract are, or may reasonably be expected to be stored) during normal business hours, without notice and search for and recover its goods and may resell any of them, without incurring any liability to Buyer or any person claiming through Buyer. Buyer may not revoke the permission granted in this sub-clause.
4.5. Buyer will give GCAU at least 7 days notice before applying to the Court for the appointment of a provisional liquidator, and is not entitled to remain in possession of GCAU goods from the date of such notice.
4.6. The provisions of this clause 4shall be read subject to the provisions of clauses 11 and 13 below. - Risk
Notwithstanding the provisions in clause 4, the risk in the goods will pass to Buyer on delivery - Insurance
GCAU shall insure the goods up until the point of delivery at the place of delivery. This does not include unloading at the place of delivery. Place of delivery is deemed to be the Buyers main place of business. - Goods returned for credit
7.1. GCAU is not obliged to accept the return of any goods for credit. Requests for goods to be returned for credit will be considered only if received in writing no less than seven days prior to the delivery of the goods and quoting the order number. GCAU may grant or refuse any such requests as its sole discretion.
7.2. Once the goods are being dispatch from our warehouse, GCAU will refuse any returns of goods for credit.
7.3. No refund applies on deposits taken for imported product 7 days after order confirmation. - Buyer’s undertakings relating to Australian Consumer Law 2011
Buyer undertakings in relation to goods it acquires from GCAU.
8.1. Not to give any express written guarantees on behalf of the manufacturer, or AUS importer, or distributor of the goods, or on behalf of GCAU except with GCAU’s express written approval.
8.2. That it will not use GCAU’s goods for any purpose for which they are not suitable, and it will (wherever appropriate) correctly advise its customers as to the purpose to which GCAU’s goods should or should not be put.
8.3. That any literature that it may supply and which relates to GCAU’s goods will comply with the Consumer Guarantees Act 1993.
8.4. To immediately notify GCAU in writing of any claim Buyer may receive pursuant to the Consumer Law 2011, giving details of the GCAU goods concerned, and claimant’s contact information.
8.5. To effectively and in writing contract out of the Consumer Law 2011 whenever it agrees to supply GCAU’s goods to Buyer’s own customer, for the purposes of that customer’s business. - Buyer’s indemnity to GCAU
Buyer agrees immediately on demand to indemnify GCAU against liability (including liability to claims, costs and expenses defending claims), which would not have arisen had Buyer complied with the undertakings set out in clause 8 above. - Termination
10.1. GCAU may (in addition to its other rights) terminate the contract if Buyer fails to comply with any of these conditions or other terms of agreement with GCAU or commits an act of bankruptcy, or (being a company) has a receiver appointed or goes into liquidation, or compounds or arranges with its creditors, or if GCAU has reasonable grounds to believe that its goods have been or will be destroyed, damaged, endangered or removed from Buyer’s normal place of business (except in the ordinary course of trade). Upon termination, Buyer agrees that GCAU or its agent(s) may enter Buyer’s premises (or other premises to which Buyer has access and where any of the goods subject of the contract are stored) during normal business hours, without notice, and search for and recover its goods, and may resell any of them, without incurring any liability to Buyer or any person claiming through Buyer. Buyer may not revoke the permission granted in this clause.
10.2. Upon GCAU becoming entitled to terminate a contract with the Buyer, GCAU shall also be entitled to terminate all other contracts with the Buyer so far as they are unfulfilled, without prejudice to GCAU’s rights to recover all moneys owing to it in respect of deliveries already made and services already made and services already provided. GCAU shall be entitled to dispose of the balance of the goods contracted for, and the Buyer shall indemnify GCAU for any loss in price incurred by it on realization against that price at which such goods were contracted to be bought by the Buyer. - General
Nothing contained in these conditions shall be deemed to exclude or restrict any rights of remedies the Buyer may have under the Australia Consumer Law 2011. If the provision in these conditions is illegal, invalid or unenforceable, the validity and enforceability of the remaining provisions will not be affected. At all times GCAU reserves the right to refuse supply of goods or to terminate any dealership arrangement either expressed or implied without stating any reason for so doing. - Personal Property Securities Act 1999
12.1. For the purposes of the Personal Property and Securities Act 1999 (PPSA), Buyer agrees these conditions constitute and create a security agreement. Buyer grants a security interest in favour of GCAU in all Buyer’s present and after-acquired inventory of semen/genetic products supplied to Buyer by GCAU, and all future proceeds and accounts receivable in relation to that inventory (which present and after-acquired inventory is hereafter in this clause 13 of these Conditions referred to as “Goods”) to secure the payment by Buyer to GCAU of all amounts Buyer may owe GCAU from time to time in respect of such Goods.
12.2. GCAU may at its discretion and in such manner as GCAU determines allocate payments made by Buyer for all and any Goods.
12.3. Until payment is made to GCAU, Buyer agrees to store the Goods in a manner which permits them to be identified, and cross-referenced to particular invoices for the goods.
12.4. To the extent permitted by law, if Buyer defaults under these conditions or under any other payment obligation to GCAU:
(a) Each security interest created in favour of GCAU will become immediately enforceable.
(b) GCAU may, at any time, by notice to Buyer declare all or any part of the moneys owing to GCAU to be due and payable immediately, upon demand or at a later date as GCAU may specify.
(c) GCAU may:
i. Take possession of and either sell or retain the Goods; and
ii. Pay any expenses incurred in the exercise of any such powers out of the revenue from, or proceeds of realization of, the Goods.
iii. The parties contract out of Part 9 of the PPSA so that the rights and obligations contained in sections 114, 125, 129, 132, 133 and 134 of that Part do not apply between GCAU and the Buyer., and the Buyer waives its right:
i. Under Sections 133 and 134 of the PPSA, to reinstate the security agreement; and
ii. To receive a copy of the Verification Statement or a Financing Change Statement relating to GCAU’s security interest.
12.5. Buyer shall give written notice to GCAU immediately upon any change of name of Buyer.
12.6. On being requested by GCAU, Buyer shall promptly do all things (including signing any document) and provide all information necessary to enable GCAU to perfect and maintain the perfection of any and each security interest granted to GCAU by Buyer (including by registration of a Financing Statement).
CONDITIONS OF SALES BY GENETIC CHOICE AUSTRALAIA PTY LTD (“GCAU”) TO BUSINESS CUSTOMERS
