Terms and Conditions of Trade
These Terms and Conditions of Trade govern the provision of goods by The Forage Company Pty Ltd (ABN 83 140 545 204) (‘we’, ‘our’, ‘us’ or ‘The Forage Company’) to you the customer (‘you’ or ‘your’) and by placing an order with us you agree to be bound by these Terms and Conditions of Trade. Any additional or different terms are not binding unless agreed by us in writing.
- Your placement of an order with us constitutes an offer by you to purchase goods from us on these Terms and Conditions of Trade. The order is placed when it is submitted to us.
- Your order is accepted when we send an email to you confirming its acceptance or the date of delivery of the goods (whichever is the earlier) at which point and on which date a binding contract between you and us will arise under these
Terms and Conditions of Trade.
- Please refer to Appendix 1 below for delivery minimums. We reserve the right tocharge a delivery fee for orders below our delivery minimums.
- We reserve the right to decline your order at any time for any reason (or supplyless than the quantity of goods ordered), by providing written notice to you after the receipt of your order.
- We will deliver the goods to the address stated in the applicable order.
- Signature of your Invoice/Proof of Delivery document will constitute your acceptance of the goods.
- You must promptly, after receiving the goods examine the goods and inform us in writing of any issues that have occurred with a delivery by email to email@example.com. This includes short deliveries, items damaged in delivery or any other issue you wish to communicate to us relating to a delivery.
- No returned goods will be accepted by us if such goods are not returned in the state in which they were delivered.
- If goods have been incorrectly ordered by you, and you request a return, a $30 return delivery fee will be charged.
- We take no responsibility for orders shipped to an address provided by you that is incorrect or invalid and we are not liable for any loss, expense, cost or damage arising from an order being shipped to such an address.
- Time is not of the essence and, except where we have an obligation under the Australian Consumer Law, you agree and acknowledge that we will not be liable to you for any loss, expense, cost or damage arising out of or in connection with any failure to deliver or delay in delivering the goods for any reason.
- Where the goods we supply under these Terms and Conditions of Trade are damaged, short delivered or otherwise not in accordance with the order, then subject to the non-excludable provisions of the Australian Consumer Law and any other non-excludable term implied by law,: we will (at our sole discretion)
- a. repair the goods; or
- b. replace the goods or supply equivalent goods; or
- c. pay the cost of replacing or repairing the goods or of acquiring equivalent goods; or
- d. issue you with a credit equivalent to the price you paid for the applicable goods.
Payments, Terms of Trade and Credit Hold Policy
- Invoices will be paid by you to The Forage Company in accordance with the terms agreed between you and The Forage Company in writing or, if no such written agreement exists, prior to or on delivery of the goods.
- All goods are sold subject to goods & services tax (GST) unless the goods are classified as GST exempt.
- If you fail to pay an invoice by the due date, we reserve the right to suspend the delivery of further goods to you and we may immediately put you on credit hold and all further supply of goods will be withheld until payment is made.
- If you do not respond promptly to our requests for overdue payments you will receive a letter of demand which if not responded to promptly will be forwarded to our debt collection company.
- You agree and acknowledge that you are responsible for any expenses or costs incurred by us in recovering any outstanding monies owed by you including but not limited to debt collection company fees or agency fees or solicitors and court costs will be passed on to you.
- If you fail to respond to our letter/s of demand and/or our debt collection agency in relation to settling an overdue payment we may list information about the payment default with any credit reporting body.
- you fail to make any payment due under these Terms and Conditions of Trade by the due date; or
- you commit any other breach of any of your obligations under these Terms and Conditions of Trade ; or
- you are insolvent (as defined by section 95A of the Corporations Act 2001 (Cth)), are presumed to be insolvent under an applicable law or otherwise are, or state that you are, unable to pay all of your debts as and when they become due and payable;
- an application is made to a court for an order, or an order is made, that you be wound up, declared bankrupt or that a provisional liquidator, receiver or receiver and manager be appointed, and that application is not withdrawn, struck out or dismissed within 15 business days of it being made; or
- you commit an act of bankruptcy; or
- you are taken to have failed to comply with a statutory demand;
- any step is taken to appoint a receiver, a receiver and manager, a liquidator ora provisional liquidator or other like person to you or any of your assets,operation or business; or
- anything that occurs under the laws of any jurisdiction which has asubstantially similar effect to any of the events set out in paragraphs (c) to (g) above,
then any monies owed by you to us which are then unpaid, together with any other monies owing, will immediately become due and payable by you, without prejudice to any claim or right we may otherwise have.
- Title to the goods sold to you shall remain vested in us and shall not pass to you until the purchase price of the goods has been paid in full and received by us.
- We only consent to you selling or otherwise disposing of the goods in the ordinary course of your ordinary business to bona fide customers and unrelated third parties on arm’s length terms, while no default is subsisting. You must keep the goods separately stored and marked as the property of us.
- If you sell or dispose of any goods, you will hold the proceeds of sale or disposal on trust for us to secure payment of any amounts you owe us for the goods.
- Until title to the goods passes to you, we and our agents and employees shall be entitled to at any time demand the return of the goods and shall without the need to give notice to you and without liability to you, enter upon any property upon which the goods or any part of the goods are stored and have the authority to retake, sell or otherwise deal with and/or dispose of all or any part of the goods and you indemnify us from and against all loss, cost, damage, or claim suffered or incurred by us as a result of exercising our rights under this clause 21.
- These Terms and Conditions of Trade are a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (‘PPSA’). You acknowledge that you have granted us a security interest in the goods and their proceeds which is a purchase money security interest to the extent that it secures payment of all or part of the purchase price for particular goods.
- You consent to us perfecting any security interest arising in connection with these Terms and Conditions of Trade by registering a financing statement on the Personal Property Securities Register (‘PPSR’) and any other applicable security registers in any manner we consider appropriate. You agree to do anything we reasonably ask to ensure that the security interest is enforceable, perfected and otherwise effective and has priority over all other security interests.
- You waive your right to receive any notice (including notice of a verification statement) that is required by the PPSA unless the notice is required by the PPSA and cannot be excluded.
- You must notify us at least 14 days before you change your name, change your place of registration or incorporation, change or apply for an Australian Company Number, Australian Business Number, Australian Registered Body Number or Australian Registered Scheme Number under which an interest in any of the goods is or will be held. You must notify us if anything mentioned in this clause occurs immediately on becoming aware of it.
- Risk in the goods shall pass to you upon delivery.
- You acknowledge and agree that you are prohibited from reselling any goodsassociated with your order(s) outside of Australia and a breach of this clauseshall entitle us to treat such breach as a material breach under clause 36.
- If you become aware of any of your customers (or any persons you sell goods to) selling any of the goods outside Australia without our prior written consent, youmust notify us promptly in writing and you must cease selling goods to that customer;
Price and Price Variation
- Unless otherwise agreed in writing, the price of the goods is as stated in our price list(s) current on the day of delivery of the goods.
- We may adjust any price from time to time and you agree to pay any such adjusted price to take account of any variations that may arise from any of the following:
- delays in delivery of the goods as a result of instructions or lack of instructions from you;
- your failure or inability to fulfil your obligations under these Terms and Conditions of Trade;
- other circumstances beyond our control; or
- any variation in the cost of us acquiring the goods.
33. Credit card payments by Visa, MasterCard and Amex incur a surcharge fee.
34. These Terms and Conditions of Trade are governed by the laws of the state of New South Wales, Australia. Each party irrevocably and unconditionally submits to the Courts of New South Wales, which have exclusive jurisdiction to settle or hear disputes arising under or in connection with these Terms and Conditions of Trade.
Notices & Termination
35. All notices under these Terms and Conditions of Trade must be in writing by post or by e-mail, to an address detailed in the order.
36. Either party may terminate these Terms and Conditions of Trade by written notice to the other party if:
- the other party commits a material breach of these Terms and Conditions of Trade and if capable of remedy, is not remedied within  days of receiving notice of the breach; or
- any of the events set out in paragraphs Error! Reference source not found.(c) to Error! Reference source not found.(g)occurs in relation to the other party.
Limitation of Liability
37. Subject to where liability cannot be limited or excluded by applicable law, our liability to you for breach of agreement, negligence, breach of statutory duty or any other cause of action other than a breach of an applicable consumer guarantee (regardless of how that liability is caused), arising under these Terms and Conditions of Trade or related to any goods, in aggregate to the total fees received from you for the relevant goods.
38. We are not liable for any consequential, collateral, special, incidental, indirect, exemplary or punitive damages, including, without limitation, loss of profits or revenue, loss of opportunity or loss or destruction of data, costs of cover, costs of delay, however caused and based on any theory of liability, for any claims or causes of action arising out of or related to these Terms and Conditions of Trade or the goods.
39. The Forage Company reserves the right to change these Terms and Conditions of Trade at any time. For future orders, these Terms and Conditions of Trade may therefore be different, and we recommend that you read these Terms and Conditions of Trade carefully each time you place an order with us. If following any such change you continue to place an order with us, then you will be deemed to have accepted those changes or modifications.
40. If you have an order that has been accepted by us, the Terms and Conditions of Trade that will apply to the order are the Terms and Conditions of Trade that applied at the time you placed your order.