“ABP” means Australian Botanical Products Pty. Ltd. (A.C.N. 006 782 529/ A.B.N. 45 006 782 529);
"Business Day" means a day that is not a Saturday or Sunday or a public holiday in the State of Victoria;
"Custom Products" means any Products that are not Standard Products;
“The Customer” means the person who buys or agrees to buy the Products; and
“Products” means any item of whatever nature which is sold by ABP.
"Standard Products" means Products offered on ABP's website which may be ordered as a standard product at the price offered by ABP.
(a) ABP will supply the Products in accordance with, and subject to these terms and conditions.
(b) ABP will provide you with an invoice for the Products. On the issuing of the invoice by ABP, a binding contract will be created between the parties.
(c) The invoice will state the price for the Product/s.
3. QUALITY AND DESCRIPTION
(a) The Products are sold by ABP and accepted by the Customer as being the weight, quantity, quality and specification as stated in the invoice.
(b) ABP will retain a sample of all Products sent to the Customer. The sample will have the same batch number as the Product.
(c) Where specifically requested by the Customer, ABP will carry out testing of the sample to determine the chemical composition of the Products and produce a certificate of analysis.
(d) Where specifically requested by the Customer, ABP will prepare a certificate of origin which states the country or countries the materials comprised within the Product come from.
(e) A copy of the Certificate of Analysis and/or Certificate of Origin will only be provided to the Customer on request, but no more than one of each type of certificate will be provided for each invoiced Product.
(f) Safety data sheets will be provided with each Product upon request.
4. MEANS OF SALE
ABP's Standard Products are listed on ABP's website and are sold "as is" and by way of sample. Invoices for Standard Products will, as a minimum, specify the Standard Product by its name (e.g. Bulgarian oil).
For Custom Products, ABP will provide the Customer with a quotation (which may include a Certificate of Analysis or other specification) or a sample of the Product and the Customer must accept the quotation or sample in writing. Upon receipt of the Customer's acceptance, ABP will issue an invoice to the Customer.
Sale by Sample
For Products that are sold by sample, the Product delivered will be consistent with the sample provided but the Product is otherwise sold "as is".
5. PRICE AND PAYMENT
(a) The price of the Products shall be ABP’s price set out in the invoice.
(b) Prices quoted are strictly net and, unless credit arrangements satisfactory to ABP have previously been agreed with the Customer, all invoices shall be payable by the Customer as prepayment is required at time of ordering.
(c) ABP reserves the right to charge interest on any overdue amount at the rate of 2% above the overdraft rate charged from time to time by ABP's banker (compounding daily) from the due date until payment in full is made. Payments made by the Customer shall be allocated first to interest and then to unpaid invoices in the order in which the invoices were issued by ABP to the Customer.
(d) The Customer agrees to bear all costs incurred by ABP in collecting any overdue amounts including but not limited to collector agency fees, legal fees and court costs.
(i) the Customer defaults in any payment or is unable or states that it is unable to pay its debts as and when they fall due;
(ii) the Customer being an individual commits an act of bankruptcy or has a controller or trustee appointed in respect of the Customer's estate or any part of the Customer's property or assets;
(iii) the Customer being a company passes a resolution for its winding up (except for the purpose of reconstruction), or a petition is presented for its winding up or enters into liquidation;
(iv) a receiver and manager, controller or voluntary administrator is appointed over any part of the property or assets of the Customer; or
(v) the Customer experiences any analogous event having substantially similar effect to any of the events specified above,
then ABP may, at its option, withhold further deliveries or cancel any order without notice to the Customer and without prejudice to any other action or remedy which ABP has or might otherwise have under these terms and conditions.
In such circumstances, all monies owing and outstanding to ABP on any invoice and irrespective of whether the due date on any invoice has occurred or passed shall become immediately due and payable.
(f) Notwithstanding clause 5(b), ABP may at times in its sole and unfettered discretion and without being under any duty or obligation to assign reasons to such discretion, alter or terminate the Customer's credit limit or payment terms without notice. Without limiting the generality of the foregoing, the decision of ABP shall be final and ABP accepts no liability or responsibility for any loss (including consequential loss), howsoever arising incurred by the Customer due to the exercise of ABP of its rights under this clause.
(c) In this clause:
(i) "credit risk" means if the Customer:
(A) suffers an insolvency event or is likely to;
(B) has a material judgement entered against it;
(C) fails to pay an invoice in accordance with these terms and conditions;
(D) is or any of its directors or principals are identified by a credit reporting agency as presenting a credit risk;
(E) fails or refuses to provide financial and trading information satisfactory to ABP;
(F) is trading as a trust; or
(G) relocates its main office overseas.
(ii) "financial security" means any form of security for the performance of the Customer's obligations, including a deposit of funds, payment in advance, a guarantee, change of payment terms and conditions, or a letter of credit.
(iii) "letter of credit" means a letter of credit on a form acceptable to ABP and provided by a bank acceptable to ABP.
7. PERSONAL PROPERTY SECURITY ACT ("PPSA")
(a) The Customer acknowledges that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest on all of the Customer's present and after-acquired Products supplied by ABP.
(b) ABP and the Customer agree that nothing in sections 130(1)(a) and 143 of the PPSA will apply to these terms and conditions.
(c) The Customer waives its rights as a debtor under sections 92, 93, 94, 95, 97, 118, 121, 132, 135, 140 and 142 of the PPSA.
(d) The Customer further agrees that where ABP has rights in addition to those under Chapter 4 of the PPSA, those rights will continue to apply.
(e) In this clause:
(i) "security agreement" means the security agreement under the PPSA created between the Customer and ABP; and
(ii) "security interest" has the meaning given to it by the PPSA.
ABP will make all reasonable efforts to have the Products delivered to the Customer at the address specified on the date agreed to between ABP and the Customer (delivery date).
However, the Customer acknowledges that any date named or accepted by ABP for completion, delivery, despatch, shipment or arrival of the Products is an estimate only and does not constitute a condition of the contract or part of the description of the Products. ABP is under no liability whatsoever should delivery not be made on the delivery date.
9. RISK AND TITLE
risk in and to the Products purchased shall pass to the Customer upon
delivery to the Customer or any agent or other carrier commissioned by
the Customer to take possession of the Products. Legal and equitable
title in and to the Products shall not pass to the Customer until
payment in full for all Products, the subject of the invoice, is made.
(b) The Customer acknowledges that if it sells the Products before title in and to the Products has passed to the Customer in accordance with this clause, it sells the Products as a fiduciary agent of ABP provided that such sales shall not give rise to any obligations on the part of ABP. The Customer shall be deemed to hold the proceeds of sale on trust for ABP in a separate account and immediately remit such funds to ABP. If any of the Products are used in a manufacturing process or mixed with other materials, the Customer shall record the value of Products so consumed in relation to each unit of finished product and upon sale of any unit of finished product immediately remit that amount to ABP.
10. CANCELLATION OF ORDERS
ABP has the sole discretion to accept or reject any order cancellation request by the Customer. If a cancellation request is accepted by ABP, the Customer will be liable for any loss or expense incurred by ABP in respect of that order (including without limitation, shipping (including the cost of the original shipment and any subsequent shipment to recover Products or to forward them to another customer) and payment for any Products ordered by ABP from its suppliers relating to that order.
11. INSPECTION AND ACCEPTANCE
(a) The Customer shall be responsible for checking the delivery of Products upon receipt and shall report any discrepancy in the quantity of the Products ordered by the Customer to ABP at the time of delivery. Failure to report any discrepancy to ABP within 48 hours shall constitute acceptance by the Customer that the quantity of Products delivered matches the quantity of Products ordered by the Customer.
(b) The Customer shall be responsible for checking the quality of the Products and shall report any discrepancy in the quality of the Products ordered by the Customer to ABP after delivery. Failure to report any discrepancy to ABP within 10 Business Days shall constitute acceptance by the Customer that the quality of the Products delivered matches the specifications of the Products as stated on the invoice.
12. CONFIDENTIAL INFORMATION
(a) The Customer acknowledges that the Certificate of Analysis is confidential information of ABP. The Customer undertakes, during the term of the agreement in relation to any invoice and any time thereafter, not to disclose the Certificate of Analysis to any person.
(b) The Customer agrees and acknowledges that the Certificate of Analysis cannot be used to manufacture or have manufactured products competing with the Products.
(c) Nothing in this clause prohibits disclosure of information which:
(i) is in the public domain;
(ii) is received from a third party provided that it was not acquired directly or indirectly by that third party as a result of the Customer breaching these terms and conditions;
(iii) is required to be disclosed by law or any government body, authority or agency having authority over the Customer.
(d) The terms of the Certificate of Analysis may only be disclosed to:
(i) any legal adviser of the Customer; or
(ii) a recognised independent expert in essential oils.
(e) The obligations under this clause survive termination.
13. DISPUTES ABOUT QUALITY
(a) Subject to clause 11(b):
(i) any dispute in relation to the quality or the specifications of the Products must be resolved as set out in this clause.
(ii) any dispute in relation to the quality of Products purchased by the Customer:
(A) will be referred to Southern Cross University by ABP;
(B) Southern Cross University will test the sample of the Product/s kept by ABP and prepare a Certificate of Analysis; and
(C) ABP will provide the Customer with the Certificate of Analysis.
(iii) the parties acknowledge and agree that:
(A) the Certificate of Analysis will be conclusive evidence as to the quality of the Products; and
(B) any determination made by Southern Cross University will be final and binding on the parties.
(b) Despite the existence of a dispute under this clause, each party must continue to perform its obligations under these terms and conditions.
(a) ABP warrants that the Products supplied will conform to the specifications as referenced in the invoice in relation to the Products.
(b) TO THE EXTENT PERMITTED BY LAW, ALL WARRANTIES, CONDITIONS, GUARANTEES, TERMS, REPRESENTATIONS AND UNDERTAKINGS, OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR VERBAL, STATUTORY OR OTHERWISE, AND WHETHER ARISING UNDER THIS AGREEMENT OR OTHERWISE, ARE HEREBY EXCLUDED INCLUDING, WITHOUT LIMITATION, THE IMPLIED GUARANTEES OR WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE PROVIDED THAT, TO THE EXTENT THAT ANY SUCH PROVISION CANNOT BE EXCLUDED AND IS IMPLIED INTO THESE TERMS AND CONDITIONS, ABP'S LIABILITY IS LIMITED, IN RELATION TO THE PRODUCTS:
(i) THE REPLACEMENT OF THE PRODUCTS OR THE SUPPLY OF EQUIVALENT PRODUCTS; OR
(ii) THE REFUND OF THE PRICE PAID BY THE CUSTOMER OF THE PRODUCTS.
15. LIMITATION/EXCLUSION OF LIABILITY
(a) SUBJECT TO CLAUSE 15(C), TO THE EXTENT PERMITTED BY LAW, ABP'S CUMULATIVE LIABILITY TO THE CUSTOMER FOR ALL CLAIMS ARISING UNDER OR IN RELATION TO THIS AGREEMENT (WHETHER IN COMMON LAW, EQUITY, CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY OBLIGATION OR DUTY, REPUDIATION, ANTICIPATORY BREACH OR OTHERWISE), WILL NOT EXCEED WHEN AGGREGATED, THE AMOUNT ACTUALLY PAID BY THE CUSTOMER FOR THE PRODUCT IN RELATION TO WHICH THE CLAIM HAS ARISEN.
(b) SUBJECT TO CLAUSE 15(C) AND TO THE FULL EXTENT PERMITTED BY LAW, ABP WILL NOT BE LIABLE TO THE CUSTOMER, WHETHER IN COMMON LAW, EQUITY, CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY OBLIGATION OR DUTY, REPUDIATION, ANTICIPATORY BREACH OR OTHERWISE FOR:
(i) ANY SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES;
(ii) THIRD PARTY CLAIMS;
(iii) LOSS OF BUSINESS, LOSS OF PROFIT, LOSS OF GOODWILL, LOSS OF OPPORTUNITY OR LOSS OF ANTICIPATED SAVINGS; OR
(iv) ANY FORM OF INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE,
REGARDLESS WHETHER ABP HAS BEEN MADE AWARE OF THE LIKELIHOOD OF SUCH LOSSES.
(c) CLAUSE 15(A) AND 15(B) DO NOT APPLY TO LIABILITY ARISING OUT OF THE DEALTH OR PERSONAL INJURY TO ANY PERSON ARISING FROM ABP'S NEGLIGENCE.
The Customer hereby acknowledges that it has not relied on any advice, recommendation, information or assistance provided by ABP in relation to the Products or their intended application, use or stated benefits.
17. OTHER DISPUTES
(a) Subject to clause 17(e), before resorting to any external dispute resolution process (including arbitration, mediation or court proceedings) any dispute between the parties regarding these terms and conditions (other than in relation to quality of the Products) must comply with the dispute resolution process as set out in this clause.
(b) Any dispute under these terms and conditions (other than in relation to quality of the Products) between the parties must be referred:
(i) initially for resolution by ABP's representative and the Customer's representative, who will endeavour to resolve the dispute within 14 days of the giving of a notice of a dispute by a party; and
(ii) if the dispute is not resolved in accordance with clause 17(b)(i), within the time specified in that clause, to the satisfaction of the respective relevant managers of the parties, the relevant managers of the parties will endeavour to resolve the dispute within a further 28 days or such other period as may be agreed between the parties.
(c) If the dispute is not resolved in accordance with clause 17(b) within the time specified in that clause, then the dispute may be submitted by either party to an external dispute resolution process, including to a court.
(d) Despite the existence of a dispute, each party must continue to perform its obligations under these terms and conditions.
(e) A party may commence court proceedings relating to any dispute (other than in relation to quality of the Products) arising out of these terms and conditions at any time where that party seeks urgent interlocutory relief.
18. TAXES AND DUTIES
Notwithstanding any other clause in these terms and conditions, to the extent that any supply made under or in connection with these terms and conditions attracts Goods and Services Tax (GST), the Customer must pay to ABP, in addition to the consideration provided for under these terms and conditions for that supply an amount (additional amount) equal to the amount of that consideration multiplied by the rate at which any GST is imposed in respect of the supply. The Customer must pay to ABP the additional amount at the same time as the consideration to which it is referable. The Customer is responsible for paying any other duties, taxes or charges in relation to the Products.
If any provision of these terms and conditions or its application to any person or circumstance is or becomes invalid, illegal or unenforceable the provision shall, so far as possible, be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of these terms and conditions shall not in any way be affected or impaired.
Waiver by ABP of a breach of these terms and conditions or of any right or power arising on a breach of these terms and conditions must be in writing and signed by ABP. A right or power created or arising on a breach of these terms and conditions is not waived by any failure to exercise or delay in exercising, or a partial exercise of, that or any other right or power.
21. INTELLECTUAL PROPERTY
(a) The purchase of Products under these terms and conditions does not confer on the Customer any licence or assignment of any copyright, patent, design or trade mark, or any other intellectual property right (whether registered, registrable or not) that subsists in the Products.
(b) The Customer is not authorised to cause any third-party to reverse engineer or decompile any of the products or derivative works of ABP including the Product; nor may the Customer itself engage in reverse engineering or decompilation of any of the products or derivative works of ABP including the Product.
22. VARIATION AND ASSIGNMENT
These terms and conditions may be varied by agreement between the parties in writing only. The Customer may not assign its rights under these terms and conditions without ABP's prior written consent.
23. FORCE MAJEURE
If, by reason of any fact, circumstance, matter or thing beyond the reasonable control of ABP, ABP is unable to perform in whole or in part any obligation hereunder, ABP shall be relieved of that obligation hereunder to the extent and for the period that it is so unable to perform and shall not be liable to the Customer in respect of such inability.
24. LAW AND JURISDICTION
All contracts made between ABP and the Customer along with these terms and conditions shall be governed by and constructed in accordance with the laws of the State of Victoria, Australia.