Definition of Terms
The following Terms apply to and govern the supply of all goods by Grunbiotics to the Customer. All Purchase Orders received by Grunbiotics from the Customer will constitute an offer by the Customer to acquire the Goods on these Terms. A contract is made only on acceptance (in whole or part) of the Purchase Order by Grunbiotics in accordance with the definition below. Each Purchase Order will constitute a separate contract for the particular Goods on these Terms.
Unless expressly agreed in writing by Grunbiotics, these Terms take precedence over any other terms and conditions, and any other terms and conditions proposed or issued by the Customer shall have no effect. Unless otherwise agreed in writing, Grunbiotics’s quotation (if any), Grunbiotics’s standard Purchase Order form, the Customer Details and these Terms constitute the entire agreement between Grunbiotics and the Customer for each Purchase Order in accordance definitions below.
Amount Owing means any amount owed by the Customer to Grunbiotics from time to time, including any interest payable by the Customer, any liability of the Customer under these Terms and any enforcement costs incurred by Grunbiotics in seeking payment of any Amounts Owing by the Customer;
Business Days means any day other than Saturday, Sunday, a public holiday in New South Wales, Australia;
Connected Entity has the meaning given to that term in section 64B of the Corporations Act 2001;
Customer means the customer named as such in the Customer Details;
Customer Details means the form on the website, recording the Customer’s details;
Delivery Address means the Delivery Address specified in the Purchase Order or such other address that is in the general locale of the Delivery Address specified in the Purchase Order, or is notified to Grunbiotics in writing from time to time and is accepted by Grunbiotics as being an appropriate new Delivery Address;
Delivery Date means the date on which the relevant Goods are ready for dispatch from Grunbiotics’, or its agent’s, premises and, for the avoidance of doubt, may not be the same date as the date on which the Goods are delivered to the Delivery Address;
Event of Default means any event where:
(a) any Amount Owing by the Customer to Grunbiotics is overdue or the Customer (in any capacity) fails to comply with any other obligation under these Terms or any other agreement with Grunbiotics; or
(b) the Customer fails to take delivery of the Goods; or
(c) the Customer exceeds its credit limit at any time and fails to pay any Amount Owing within 20 days of Grunbiotics’ request to do so; or
(d) the Customer fails to remedy a breach of these Terms within 10 days of Grunbiotics’ request to do so, or commits a breach that, in Grunbiotics’ opinion, is incapable of remedy; or
(e) the Customer suffers an Insolvency Event; or
(f) the ownership or effective management or control of the Customer or the Customer’s parent, or the Customer’s business, is transferred through whatever means, and Grunbiotics reasonably considers such change in control or transfer prejudicial to Grunbiotics’ interests; or
(g) the nature of the Customer’s business is materially altered;
Force Majeure Event means an event or circumstance beyond the reasonable control of either party, which makes it difficult or illegal to perform, or prevents compliance with or the performance of, a party’s obligations under these Terms, including:
(a) acts of God, fires, floods, storms and earthquakes;
(b) strikes, lockouts or industrial dispute;
(c) riots, explosions, insurrection or war, governmental action, epidemics, disease, accidents or emergency;
(d) interruptions to transportation or telecommunications, cyber security threats, delay in obtaining licenses, embargo, or damage to Grunbiotics’ works or business or those of its suppliers; or
(e) any other cause of the kind specifically stated above and outside the party’s reasonable control.
FSANZ means Food Standards Australia and New Zealand;
Goods mean any goods or products supplied by Grunbiotics pursuant to a Purchase Order;
GST means goods and services tax payable on supplies in accordance with the GST Law;
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Grunbiotics means Grunbiotics Australia Pty Limited (ABN 44 610 953 878);
Insolvency Event means in respect of a party (other than for the purpose of solvent reconstruction or amalgamation) (a) a receiver, receiver and manager, liquidator, provisions liquidator, trustee, administrator, controller, inspector appointed under any companies or securities legislation, or similar official is appointed in respect of that party or any of its property, or any security over any substantial part of its assets is enforced, (b) the party ceases to carry on all or substantially all of its business, is unable to pay its debts when due, or is deemed unable to pay its debts under any law, or makes an assignment for the benefit of, or enters into or makes any arrangement or compromise with, that party’s creditors or threatens to do so, or stops payments to its creditors generally, (c) the party is, becomes, or is deemed to be insolvent or bankrupt, (d) a distress, attachment or other execution is levied or enforced upon or commenced against any substantial party of its assets and is not stayed within 14 days, (e) anything having a similar effect to any of the events specified above happens under the law of any applicable jurisdiction, or (f) in the event that the party is an individual, anything having a similar effect to any of the events specified above happens in respect of that individual;
Intellectual Property means any patent, copyright, design right, database right, topography right, trade mark, service mark, name, domain name, logo, application to register any of the aforementioned rights or materials in which they may subsist, know-how, rights of confidence and any other intellectual property or industrial property right of any nature whatsoever in any part of the world, whether or not registered or capable of registration or existing now or in the future, including customer lists, specifications, formulae and processes;
PPSA means the Personal Properties Securities Act 2009;
Price List means the list of prices for Grunbiotics’ Goods and/or Services valid as at the date of dispatch or supply;
Purchase Money Security Interest has the meaning given to that term in the PPSA;
Purchase Order means an order for Goods and/or Services submitted to Grunbiotics by the Customer in writing using Grunbiotics’ standard order form;
Security Agreement and Security Interest have the meaning given in those terms in the PPSA;
Service Completion Date means the date for completion of the Services pursuant to the relevant Purchase Order;
Services mean any services supplied by Grunbiotics pursuant to a Purchase Order;
Terms means these Terms and Conditions of Sale;
Third Party Supplies means all goods and services supplied by persons or entities other than Grunbiotics.
All orders or requests for the supply of Goods and/or Services must be submitted by the Customer to Grunbiotics as a Purchase Order.
Grunbiotics may, at its discretion, accept a Purchase Order (in whole or part) by issuing an invoice in respect of the applicable Goods and/or Services, delivering the Goods and/or supplying the Services, or otherwise confirming its acceptance of the Purchase Order in writing. Grunbiotics reserves the right to refuse to accept or proceed with any Purchase Order (regardless of whether that Purchase Order has previously been accepted) if the Customer’s trade performance is, or becomes, unsatisfactory to Grunbiotics at any time.
Once Grunbiotics has accepted a Purchase Order, it cannot be cancelled by the Customer without Grunbiotics’ prior written approval. Any modifications or variations to a Purchase Order by the Customer will not be accepted unless notified to Grunbiotics within a reasonable time prior to delivery or performance and agreed to in writing by Grunbiotics.
The supply of Goods and/or Services is subject to availability and Grunbiotics reserves the right to suspend or cancel (in whole or in part) any Purchase Order (regardless of whether that Purchase Order has previously been accepted) upon notification to the Customer.
In the event that Grunbiotics accepts (in accordance with the clause above) an order for Goods or Services submitted other than by way of Purchase Order (e.g., an order not submitted in writing, not using Grunbiotics’ approved standard order form or, a quotation issued by Grunbiotics that is accepted in writing by the Customer), the Customer acknowledges and accepts that:
(a) these Terms shall apply to the order as though it was a valid Purchase Order; and
(b) to the extent permitted by law, Grunbiotics accepts no responsibility whatsoever, and will not be liable to the Customer, for any errors in dimensions, quantities, specifications or otherwise in relation to the Goods and/or Services.
The Customer acknowledges that all descriptions, specifications, statements or visual representations provided by Grunbiotics to the Customer or otherwise contained in any catalogues, advertising material or other documentation are approximate only and are intended to be merely a general description of the Goods and/or Services and are not incorporated in any contract with the Customer nor form part of the description of the Goods and/or Services provided under these Terms unless expressly agreed otherwise in writing by Grunbiotics.
4. Purchase Price
Unless expressly agreed otherwise by Grunbiotics, the purchase price of the Goods and/or Services is the price specified in the Price List at the date of supply of the relevant Goods or the Services Completion Date for the relevant Services. The Customer acknowledges and agrees that prices are subject to increase due to exchange rate fluctuations or increases in supplier costs beyond Grunbiotics’ reasonable control.
Grunbiotics reserves the right to update or amend the Price List from time to time and will supply the Customer with a copy of the then-current Price List on request.
Disbursements and expenses incurred by Grunbiotics in supplying the Goods and/or Services may be charged to the Customer in addition to the price, including, without limitation, freight and insurance. Grunbiotics reserves the right to charge a reasonable handling fee for all orders delivered to the Customer.
(a) In this clause, a term or expression starting with a capital letter which is defined in the GST Law but not defined in these Terms has the same meaning as in the GST Law.
(b) Unless otherwise specified, Grunbiotics’ prices are stated exclusive of all taxes (including GST), tariffs, duties or impositions of a similar nature imposed by any government or other authority. Where applicable, such amounts shall be added to the invoice issued to the Customer, and the Customer shall be required to pay such amounts at the same time as paying the prices for the Goods and/or Services.
(c) If GST is or becomes payable on a Supply made under or in connection with these Terms, an additional amount is payable by the party providing consideration for the Supply equal to the amount of GST payable on that Supply as calculated by the party making the Supply in accordance with the GST Law.
(d) Subject to paragraph (e), the additional amount payable under paragraph (c) is payable at the same time and in the same manner as the Consideration for the Supply.
(e) The Customer will not be required to pay any GST component of an invoice to Grunbiotics unless that invoice complies with all the requirements for a Tax Invoice under the GST Law.
(f) Unless otherwise stated in this Agreement, the following principles apply when determining the amount of a payment under these Terms:
(i) if a party is entitled under these Terms to be reimbursed or indemnified by the other party for an expense, claim, loss, liability or cost incurred in connection with these Terms, the reimbursement or indemnity payment must not include any GST component of the expense, claim, loss, liability or cost for which an Input Tax Credit may be claimed; and
(ii) if a party sets off an amount under these Terms, the same principles apply to calculate the amount to be set-off, as if the amount had been paid in accordance with paragraph (i).
(g) If an Adjustment Event occurs, the parties must do all things necessary to make sure that the Adjustment Event may be appropriately recognised, including the issue of an Adjustment Note.
Where a quotation is given by Grunbiotics for Goods and/or Services:
(a) Grunbiotics reserves the right to withdraw the quotation without notice at any time prior to acceptance by the Customer; and
(b) unless stated otherwise, the quotation shall:
(i) remain valid for a period of no more than 30 days from the date of quotation; and
(ii) be exclusive of all taxes, disbursements and expenses.
Where Goods and/or Services are required in addition to the quotation, the price of those Goods and/or Services (and any related taxes, tariffs, duties or impositions of a similar nature, disbursements or expenses) shall be payable by the Customer in addition to the quoted amount.
Where the quantity of Goods and/or Services actually ordered by the Customer reduces by more than 10% from the amount quoted in the quotation, Grunbiotics reserves the right to amend any quotation to reflect the reduced quantity.
Subject to clauses in section 5, the Customer must pay all Amounts Owing on the due date, in accordance with the payment terms specified by Grunbiotics in the Customer Details. If payment terms are not specified, the due date will be seven days from the end of the week in which an invoice for the Amount Owing is issued by Grunbiotics.
If the Customer disputes the whole or any part of any invoice submitted by Grunbiotics:
(a) the Customer shall pay the undisputed portion of the invoice in accordance with clause 6.1, and notify Grunbiotics in writing (within five Business Days of receipt of the invoice) of the reasons for disputing the remainder of the invoice; and
(b) if it is resolved that some or all of the amount in dispute should have been paid at the time the first invoiced, then the Customer shall pay interest on that amount in accordance with clause 6.6(a) from the original due date until the amount (including accrued interest) is paid in full.
Where any approved credit limit is exceeded, or no credit limit exists, Grunbiotics may (at its option) require the Customer to pay for the Goods and/or Services within a shorter time frame or in advance of provision of the Goods and/or Services by giving notice to the Customer accordingly. The Customer is not relieved from its obligation to pay as a result of the credit limit being exceeded or no credit limit existing.
Payment must be made in cash, or by cheque, bank cheque, direct credit, or by any other method agreed between the Customer and Grunbiotics.
The Customer must not deduct, withhold or offset any sum from any Amount Owing to Grunbiotics under these Terms.
In addition to any rights Grunbiotics may have under clause 15, if payment in full is not received by Grunbiotics by the due date:
(a) the Customer will pay to Grunbiotics on demand default interest on any Amount Owing, at a rate of 2% per annum above the current penalty interest rate fixed under the Penalty Interest Rates Act 1983, calculated on a daily basis from the date payment is due until the date payment in full (including accrued interest) is received by Grunbiotics; and
(b) Grunbiotics may (without any prior notice or demand) set-off or deduct any amounts owing (or to become owing) by Grunbiotics to the Customer in order to reduce any payment due (or to become due) by the Customer to Grunbiotics.
7. Delivery of Goods and Performance of Services
Unless otherwise agreed in writing:
(a) subject to clause 6, Grunbiotics is responsible for arranging delivery of the Goods; and
(b) the Goods shall be delivered to the Delivery Address.
Delivery will be completed by delivery to the Delivery Address, or if no address is indicated, delivery will be deemed to be effected at the time when Grunbiotics notifies the Customer that the Goods are available for collection by the Customer at Grunbiotics’ premises. The Customer shall be responsible for unloading the Goods at the Delivery Address and must do so promptly on arrival of the Goods at the Delivery Address.
The Customer will accept delivery of Purchase Orders in instalments. Where Grunbiotics delivers Goods to the Customer by instalments and Grunbiotics fails to deliver one or more instalments, the Customer shall not have the right to cancel the Purchase Order.
If the Customer fails or refuses to take or accept delivery or to unload the Goods promptly on their arrival, then the Goods shall be deemed to be delivered when Grunbiotics was willing to deliver the Goods, Grunbiotics will be entitled to invoice the Customer for full payment and the Customer shall be liable for all reasonable costs incurred by Grunbiotics, including reasonable storage, freight and handling costs, until the Customer accepts delivery of the Goods (and unloads them).
Grunbiotics will use reasonable commercial endeavours to meet any agreed Delivery Date or Service Completion Date, but will not be liable for, nor may the Customer cancel any Purchase Order, withhold payment, refuse delivery or reject performance, or make a claim against Grunbiotics for any losses caused to the Customer as a result of, any delay in delivery or performance.
The relevant Delivery Date, where specified, is subject to Grunbiotics’s suppliers’ stock levels and/or order production schedules and/or shipping dates, and accordingly Grunbiotics reserves the right to alter Delivery Dates.
For the avoidance of doubt, the time agreed for delivery of Goods or performance of Services is not an essential term of any contract, unless expressly acknowledged and agreed to be by Grunbiotics in the applicable Purchase Order.
8. Risk and Insurance
Risk of any loss, damage or deterioration in the Goods shall pass from Grunbiotics to the Customer when the Goods are delivered (or deemed to be delivered) to the Customer in accordance with clause 7.
The Customer must insure the Goods for their full replacement value for the benefit Grunbiotics at all times from the time at which risk in the Goods passes to the Customer until ownership of the Goods has passed to the Customer.
9. Property in Goods
Until Grunbiotics has received full payment in cleared funds of the Amount Owing:
(a) all Goods supplied by Grunbiotics will remain the property of Grunbiotics and title in them will not pass to the Customer;
(b) all Goods supplied by Grunbiotics and not sold by the Customer to a third party will be in the possession of the Customer as a fiduciary bailee for Grunbiotics. The Customer will keep the Goods separate from other goods and identify and store them so they remain readily identifiable as Grunbiotics’s property. The Goods must be kept in good condition; and
(c) unless Grunbiotics directs otherwise, and subject always to clause 14.1, the Customer may dispose of any Goods purchased from Grunbiotics to third parties by way of bona fide sale and for full market value, on arm’s length terms and in the normal course of trading. This authority is deemed to be revoked automatically and immediately if any Event of Default occurs.
Grunbiotics may apply any payments received from or on behalf of the Customer in reduction of the Amount Owing in such order and manner as Grunbiotics thinks fit (despite any direction to the contrary and whether before or after the occurrence of an Event of Default).
If the Customer resells or uses any Goods before ownership of the Goods has passed to the Customer, the proceeds of such sale or use will be received and held by the Customer (in whatever form) in trust for both the Customer and Grunbiotics. Grunbiotics’s interest as beneficiary under that trust will be that portion of the proceeds that does not exceed the Amount Owing. The balance of the proceeds (if any) will be the Customer’s beneficial interest under that trust.
Grunbiotics may bring an action for Amounts Owing in relation to Goods sold even where ownership of the Goods may not have passed to the Customer.
10. Personal Property Securities Act 2009
To secure payment by the Customer to Grunbiotics of the Amount Owing, in addition to any other Security Interests arising under these terms, the Customer grants to Grunbiotics a Security Interest in the Goods and the proceeds of such Goods. These Terms constitute a Security Agreement creating a Purchase Money Security Interest in those Goods and the proceeds of such Goods.
The Customer undertakes:
(a) promptly to do all things, sign any further document and/or provide any information that Grunbiotics may reasonably require to ensure Grunbiotics is paid all sums due to Grunbiotics and otherwise to protect the interests of Grunbiotics under these Terms (including by registration of a financing statement and ensuring that Grunbiotics has a first ranking perfected Security Interest in the Goods and the proceeds of the Goods); and
(b) to give Grunbiotics (addressed to the financial controller or equivalent) not less than 14 days’ prior written notice of any proposed change in the Customer’s name and/or any other changes in the Customer’s details (including changes to the Customer’s address, facsimile, email, trading name or business practice, including if it becomes trustee of a trust or partner of a partnership not stated in the Customer Details, or if any ABN, ARBN or ARSN in relation to it is allocated, changes or ceases to apply).
The Customer waives its right to receive any notice required by any provision of the PPSA (including notice of any verification statement under section 157 of the PPSA in respect of any financing statement relating to a Security Interest). However, this does not prohibit Grunbiotics from giving a notice under the PPSA or any other law.
If Chapter 4 of the PPSA applies to any enforcement of a Security Interest by Grunbiotics under a transaction contemplated by these Terms then, to the extent permitted by law:
(a) the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), and 135 of the PPSA;
(b) Grunbiotics and the Customer agree:
(i) to contract out of and nothing in the provisions of sections 142 and 143 of the PPSA will apply to these Terms; and
(ii) that Grunbiotics need not comply with sections 96, 125 and 129 of the PPSA;
(c) for the purposes of section 115(7) of the PPSA, Grunbiotics also need not comply with sections 132, 134(2) and 137(3) of the PPSA; and
(d) Grunbiotics and the Customer agree not to disclose information of the kind mentioned in s 275(1) of the PPSA, except in circumstances required by sections 275(7)(b) to (e) of the PPSA or where otherwise expressly permitted under these Terms. The Customer agrees not to exercise its rights to make any request of Grunbiotics under section 275 of the PPSA to authorise disclosure of any information under that section, or to waive a duty of confidence that would otherwise permit non-disclosure under that section.
Each Security Interest is a continuing security, notwithstanding any intermediate payments, settlement of accounts or anything else, and each Security Interest shall continue until Grunbiotics gives the Customer a final release.
The Security Interests granted under these Terms attach to the relevant Goods and proceeds in accordance with the PPSA. Nothing in these terms and conditions is to be construed as an agreement by the parties that a Security Interest under these Terms attaches at any later time.
Grunbiotics may allocate amounts received from the Customer in any manner Grunbiotics determines, including in any manner required to preserve any Security Interest (including any Purchase Money Security Interest) it has in the Goods.
The Customer must provide Grunbiotics with information and any associated documentation reasonably requested by Grunbiotics from time to time relating to the Customer financial status.
If at any time Grunbiotics considers that the financial status of the Customer is unsatisfactory, Grunbiotics may require the Customer to grant additional Security Interests as security for the Amount Owing and Grunbiotics may suspend or cancel further deliveries of Goods to the Customer until the Customer has provided such Security Interest.
The Customer will not, without Grunbiotics’s prior written consent, create or allow to exist any other Security Interest or third party interest in respect of the Goods or their proceeds, or enter into any Security Agreement that permits any other person to register any Security Interest in respect of the Goods or their proceeds.
To the maximum extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 of the PPSA that are for the benefit of the Customer or that place obligations on Grunbiotics will apply only to the extent that they are mandatory or Grunbiotics agrees to their application in writing; and
(b) where Grunbiotics has rights in addition to those in Chapter 4 of the PPSA, those additional rights will continue to apply.
For the purposes of section 18(4) of the PPSA, these Terms secure future advances.
For the purposes of section 20(2)(b)(i) of the PPSA, the collateral is the Goods.
11. Force Majeure
Grunbiotics will not be liable for any failure or delay in the delivery of Goods, performance of Services or performance of any other obligation under these Terms where such delay or failure is caused or contributed to by a Force Majeure Event. In such case, Grunbiotics shall be entitled, at its option, to amend the relevant Delivery Date or relevant Service Completion Date by a reasonable period of time, or to terminate a Purchase Order.
The Customer will not be released from the obligation to pay any Amount Owing by reason of a Force Majeure Event.