Terms of Trade – Nosh Catering Perth
Terms of Trade – Definitions
1.1. “Seller” shall mean Flavour Craft Pty. Ltd. T/A Nosh Catering Perth Metro (ABN 68 670 079 062) and its successors and assigns.
1.2. “Buyer” shall mean the Buyer or any person acting on behalf of and with the authority of the Buyer.
1.3. “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Buyer on a principal debtor basis.
1.4. “Goods” shall mean Goods Nosh supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5. “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6. “Price” shall mean the cost of the Goods as agreed between the Seller and the Buyer subject to clause 4 of this contract. All transactions are processed in Australian Dollars (AUD).
2. Terms of Trade – Acceptance
2.1. Any instructions received by the Seller from the Buyer for the supply of Goods and/or the Buyer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms of trade contained herein.
2.2. Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
2.3. Upon acceptance of these terms of trade by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms of trade or with the written consent of the manager of the Seller.
2.4. None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
2.5. The Buyer undertakes to give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s address, facsimile number, or business practice).
3. Terms of Trade – Goods
3.1. The Goods are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Buyer.
4. Terms of Trade – Price And Payment
4.1. At the Seller’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or
(b) the Seller’s quoted Price which shall be binding upon the Seller provided that the Buyer shall accept in writing the Seller’s quotation within thirty (30) days.
4.2. At the Seller’s sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
4.3. Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods.
4.4. The Seller may withhold delivery of the Goods until the Buyer has paid for them, in which event payment shall be made before providing the Goods.
4.5. At the Seller’s sole discretion, for certain approved Buyers payment will be due seven (7) days following the date of the invoice.
4.6. Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by credit card, or American Express (Diners cards excluded), or by direct credit, or by any other method as agreed to between the Buyer and the Seller.
4.7. The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
5. Terms of Trade – Delivery Of Goods / Services
5.1. Delivery of the Goods shall be made to the Buyer’s nominated address. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.
5.2. The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.3. 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. Terms of Trade – Risk
6.1. If the Seller retains property in the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
7. Terms of Trade – Buyer’s Disclaimer
7.1. The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Buyer acknowledges that he buys the Goods relying solely upon his own skill and judgement.
8. Terms of Trade – Errors And Omissions.
8.1. The Buyer shall inspect the Services on delivery and shall immediately notify the Seller of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Services within a reasonable time following delivery if the Buyer believes the Services are defective in any way. If the Buyer shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms of trade and free from any defect or damage.
8.2. For defective Services, which the Seller has agreed that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Services or repairing the Services provided that the Buyer has complied with the provisions of clause 8.1.
9. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
9.1. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
10. Terms of Trade – Default & Consequences Of Default
10.1. Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.
10.2. If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all the Seller’s costs and disbursements including on a solicitor and own client basis and in addition all of the Seller’s nominees costs of collection.
10.3. Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
10.4. If any account remains unpaid at the end of the second month after supply of the Goods or Services an immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
10.5. In the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer,
then without prejudice to the Seller’s other remedies at law:
the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and
all amounts owing to the Seller shall, whether or not due for payment, immediately become payable in addition to the interest payable under clause 10.1 hereof.
11.1. It is the intention of the seller and agreed by the Buyer that property in the Goods shall not pass until:
(a) The Buyer has paid all amounts owing for the particular Goods, and
(b) The Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer.
11.2. Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership of rights in respect of the Goods shall continue.
11.3. It is further agreed that:
(a) The Buyer is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller.
(b) The Buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller.
(c) The Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.
(d) The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Buyer to the Seller arising out of these terms of trade, and the Seller may take any lawful steps to require payment of the amounts due and the Price.
(e) The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.
(f) Until such time that ownership in the Goods passes to the Buyer, if the Goods are so converted, the parties agree that the Seller will be the owner of the end products.
12. Security And Charge
12.1. Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [12.1 (a) and (b)] inclusive hereof the Buyer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Seller and/or the Seller’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest
13.1. The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
13.2. At the Sellers sole discretion the Buyer may cancel delivery of Goods. In the event that the Buyer cancels delivery of the Goods more than one (1) month prior to delivery of the Goods then the Buyer will forfeit any deposit already paid. In the event that the Buyer cancels delivery of the Goods less than one (1) month prior to delivery of the Goods then the Buyer will forfeit to the Seller any deposit already paid plus pay the Seller for any costs incurred by the Seller up to the time of cancellation of the Buyer and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Buyer’s and/or Guarantor’s name as may be necessary to secure the said Buyer’s and/or Guarantor’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Seller’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
14. Privacy Act 1988
14.1. The Buyer and/or the Guarantor/s agree for the Seller to obtain from a credit-reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relation to credit provided by the Seller.
14.2.The Buyer and/or the Guarantor/s agree that the Seller may exchange information about Buyer and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Buyer;
(b) To notify other credit providers of a default by the Buyer;
(c) To exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and
(d) To assess the credit worthiness of Buyer and/or Guarantor/s.
14.3. The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4. The Buyer agrees that Personal Data provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Buyer and Seller or required by law from time to time:
(a) provision of Services & Goods;
(b) marketing of Services and/or Goods by the Seller, its agents or distributors in relation to the Services and Goods;
(c) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to provision of Services/Goods;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer; and
(e) enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the Buyer’s account in relation to the Services and Goods.
14.5. The Seller may give information about the Buyer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Buyer; and/or
(b) allow the credit reporting agency to create or maintain a credit information
15.1. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
15.2. All Goods supplied by the Seller are subject to the laws of Western Australia and the Seller takes no responsibility for changes in the law which affect the Goods supplied.
15.3. The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.
15.4. In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods. The Buyer shall not set off against the Price amounts due from the Seller.
15.5. The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
15.6. The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the seller notifies the Buyer of such change.
15.7. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
16. Final Confirmations.
16.1. The final confirmation and menu selections, guaranteed number of guests, venue address and serving times must be provided to the Seller by the Buyer or their authorised agent(s) no later than 5 working days prior to the function. The Buyer agrees to indemnify the Seller against all liabilities including (but not limited to) any costs incurred by the Seller as a result of a breach of this clause.
17. Beverages and Responsible Serving of Alcohol
17.1.The sale and service of liquor by The Seller. is carried out under our Special Facility Licence issued by the Department of Racing & Gaming, of the Government of Western Australia. It is a condition of this licence that;
(a) In the event of the seller providing beverage services to the Buyer, all liquor consumed on the premises must be purchased from and distributed by the Seller (the licensee) or their appointed representative.
(b) No alcohol may be taken off the premises.
(c) No person under the age of 18 years of age shall consume alcohol.
(d) In accordance with The Responsible Service of Alcohol guidelines all employees of The Seller are under obligation to refuse the service of alcoholic beverages to persons identified as being intoxicated. It is the responsibility of the Buyer and/or function hosts to ensure that all attendees behave in an orderly manner while in attendance file containing information about the Buyer.