Terms of Trade

1. Definitions and Interpretation

1.1 In these Terms, unless the context requires otherwise:

1.2 Headings do not affect interpretation. The singular includes the plural and vice versa. A reference to a statute includes regulations under it and later amendments.

2. Application of These Terms

2.1 These Terms apply to every Contract for the sale of Goods by the Seller, to the exclusion of any terms proposed by the Buyer (including in a purchase order or letter of credit application), even if the Seller performs part of the Contract without objecting to them. No Buyer terms apply unless the Seller agrees to them in writing.

2.2 The Seller sells through two entities, Broadsteer Australia and Broadsteer New Zealand, each defined in clause 1.1. The entity contracting is the one named as Seller in the Confirmation of Sale, and the governing law, tax, and payment details of that entity alone apply to that Contract.

2.3 These Terms are published at www.broadsteer.com/terms. The version current at the date of the Confirmation of Sale applies.

2.4 No addition, variation, or waiver of these Terms binds the Seller unless in writing and signed by its authorised representative.

3. Quotations and Orders

3.1 A quotation or price list is an invitation to treat only, is not binding, and may be withdrawn or changed at any time before a Confirmation of Sale is issued.

3.2 An order is an offer by the Buyer to purchase on these Terms. No Contract exists until the Seller issues a Confirmation of Sale under clause 4.

4. Confirmation of Sale Creates a Binding Contract

4.1 The Seller’s issue of a Confirmation of Sale accepts the Buyer’s order and immediately forms a binding, irrevocable Contract on these Terms, obliging the Buyer to accept and pay for the Goods at the price, quantity, and terms it states.

4.2 The Contract forms on issue of the Confirmation of Sale whether or not the Buyer has countersigned it, opened a letter of credit, given delivery instructions, or taken any other step. Silence or inaction does not prevent formation.

4.3 The Buyer must notify the Seller in writing within 24 hours of receipt if it disputes a Confirmation of Sale or any of the terms within. Otherwise it conclusively records the terms of the Contract.

4.4 Once issued, a Confirmation of Sale is firm. The Buyer may not cancel or vary it without the Seller’s prior written consent, which may be conditioned on the Buyer paying the Seller’s cancellation, resale, storage, and freight costs.

4.5 If the Buyer cancels or varies without consent, or fails to accept or pay for Goods as confirmed, that is a repudiation. The Seller may terminate and recover the full Price as a debt, plus loss of bargain and resale, storage, freight, and insurance costs — or affirm the Contract and require the Buyer to perform it.

4.6 The Confirmation of Sale, these Terms, and the invoice together are conclusive evidence of the Contract and its terms, including for a trade credit insurance claim or any dispute or proceeding.

5. Price and Taxes

5.1 The Price is the amount stated in the Confirmation of Sale, in the currency stated.

5.2 Unless stated otherwise, the Price excludes GST, other taxes and duties, and freight and insurance beyond the point risk passes under clause 7.3. Any GST payable is additional to the Price.

5.3 The Seller may change a quoted price at any time before issuing a Confirmation of Sale. Once issued, the Price is fixed unless the parties agree otherwise in writing.

6. Payment

6.1 The Buyer must pay the Price in full, in cleared funds and in the stated currency, according to the payment terms stated on the invoice (or, if none are stated, upon its issuance), without deduction, set-off, or counterclaim.

6.2 Payment must be made by the method stated in the Confirmation of Sale (for example telegraphic transfer or letter of credit). The Buyer bears all bank and currency conversion costs and must ensure the Seller receives the Price in full.

6.3 Time for payment is of the essence.

6.4 The Buyer must indemnify the Seller’s reasonable costs of recovering overdue amounts, including collection and legal costs on a full indemnity basis.

6.5 The Seller may apply any payment against any invoice or Contract as it determines.

6.6 If the Buyer’s account is overdue, or the Seller reasonably considers the Buyer’s creditworthiness has declined (including a reduction in the Seller’s credit insurance cover on the Buyer), the Seller may suspend further Confirmations of Sale or deliveries, require prepayment or security, or reduce or cancel credit terms.

7. Delivery and Risk

7.1 Goods are delivered on the Incoterm and at the place stated in the Confirmation of Sale. If none is stated, delivery is CIF at the port of destination.

7.2 Delivery or shipment dates are estimates. The Seller is not liable for delay, and a delay, if not due to the Seller’s wilful default, does not entitle the Buyer to cancel, refuse the Goods, or claim damages.

7.3 Risk passes on the Incoterm stated in the Confirmation of Sale or, if none is stated, when the Goods are handed to the first carrier.

7.4 Unless the Confirmation of Sale states the Incoterm as DDP, the Buyer is responsible for import clearance, duties, tariffs, and biosecurity and labelling requirements at destination.

7.5 The Buyer must inspect the Goods promptly on delivery and insure them from the point risk passes under clause 7.3.

8. Retention of Title

8.1 Title to the Goods remains with the Seller until it has received payment in full, in cleared funds, for those Goods and all other amounts then owing by the Buyer.

8.2 Until title passes, the Buyer holds the Goods as bailee, must keep them separately identifiable where practicable, and must not encumber them. If the Buyer on-sells or uses the Goods before title passes, it holds the proceeds on trust for the Seller to the extent owing.

8.3 This clause creates a security interest in the Goods and their proceeds for the purposes of the PPSA. The Buyer must do anything reasonably required to let the Seller register that interest.

8.4 On default, the Seller may enter any premises holding the Goods, on reasonable notice (or without notice if the Goods are at risk, including because they are perishable), to recover them, at the Buyer’s cost.

8.5 This clause may not be enforceable once the Goods have left Australia or New Zealand, or have been on-sold or processed overseas, and does not limit the Seller’s rights under clause 4, 6, or 12.

9. Export and Compliance

9.1 The Buyer is responsible for the Goods’ compliance with the import laws of the destination country, including food safety, biosecurity, and labelling requirements, and for obtaining all required import licences and approvals.

9.2 The Seller will use reasonable endeavours to provide export documentation reasonably required, at the Buyer’s cost where the Confirmation of Sale specifies, but is not liable for delay or refusal by a government authority.

9.3 The Buyer must not resell or export the Goods in breach of any applicable trade sanctions or export control laws.

10. Force Majeure

10.1 Neither party is liable for delay in performing an obligation (other than payment) caused by an event beyond its reasonable control, including natural disaster, disease outbreak, war, strike, port congestion, shipping unavailability, or government action (a Force Majeure Event).

10.2 The affected party must notify the other promptly and mitigate the effect. Affected obligations are suspended while the event continues. If it continues for more than 60 days, either party may terminate the affected Contract by written notice, without liability except for Goods already delivered or shipped.

10.3 A Force Majeure Event does not excuse payment for Goods already delivered or shipped.

11. Claims, Warranties, and Liability

11.1 The Buyer acquires Goods for business purposes, not as a consumer, and consumer-only guarantees (for example under the Australian Consumer Law or the Consumer Guarantees Act 1993 (NZ)) do not apply to the extent the law allows them to be excluded. All other warranties not stated in these Terms are excluded to the extent permitted by law.

11.2 The Buyer must inspect the Goods on delivery and notify the Seller in writing of any claim (short shipment, defect, or damage) within 3 business days, with particulars and evidence. Otherwise the Goods are deemed accepted.

11.3 For a claim properly notified and substantiated, the Seller’s sole liability, at its election, is to replace the Goods, credit the Buyer’s account, or refund the Price. The Seller is not liable for indirect or consequential loss, including loss of profit, revenue, or goodwill.

11.4 The Seller’s aggregate liability under a Contract is capped at the Price paid for the Goods giving rise to the claim.

11.5 Nothing in these Terms excludes liability that cannot lawfully be excluded, including for fraud, wilful misconduct, or death or personal injury caused by negligence.

12. Default and Termination

12.1 It is an Event of Default if the Buyer: fails to pay when due; breaches any other obligation and does not remedy it within 5 business days of notice; suffers an Insolvency Event; ceases to carry on business; suffers a material adverse change in its financial position; or loses trade credit insurance cover available to the Seller.

12.2 On an Event of Default, the Seller may, without liability: terminate any or all Contracts; suspend deliveries and further Confirmations of Sale; accelerate all amounts owing; recover Goods under clause 8; resell recovered or undelivered Goods and recover any shortfall as a debt; and claim damages, including loss of bargain.

13. Trade Credit Insurance and Assignment

13.1 The Seller may insure its receivables against non-payment, including under trade credit insurance, and may assign, novate, or charge its rights under a Contract (including the debt owing) to a credit insurer, financier, or factor, without the Buyer’s consent. The Seller will notify the Buyer of any assignment that changes how or to whom it must pay.

13.2 The Buyer must, on request, give the Seller (or, once notified, its insurer, financier, or assignee) financial information reasonably needed to assess its creditworthiness, and must pay a notified assignee as directed.

13.3 This clause does not reduce the Buyer’s obligation to pay the Price in full.

14. Confidentiality

14.1 Each party must keep the pricing and commercial terms of a Contract confidential, except as needed to perform the Contract, comply with law, or disclose to professional advisers, financiers, or insurers (including a trade credit insurer or an assignee under clause 13), or with the other party’s consent.

15. Notices

15.1 A notice must be in writing, sent to the address or email stated in the Confirmation of Sale (or as later notified). It is received: on delivery, if by hand; 5 business days after posting, if by post; and on transmission, if by email, unless the sender gets a delivery failure message.

16. General

16.1 The Seller may amend these Terms by publishing an updated version at www.broadsteer.com/terms. The version current when a Confirmation of Sale issues applies to that Contract.

16.2 A Contract (the Confirmation of Sale, these Terms, and the invoice) is the entire agreement for that sale and supersedes prior negotiations or representations.

16.3 A failure or delay in exercising a right is not a waiver of it. A waiver is only effective in writing.

16.4 If a provision is illegal, invalid, or unenforceable in a jurisdiction, the rest remains effective.

16.5 The Buyer must not assign a Contract without the Seller’s written consent. The Seller may assign its rights as set out in clause 13 without the Buyer’s consent.

16.6 A person who is not a party to a Contract has no right to enforce these Terms, except a permitted assignee under clause 13.

16.7 A Confirmation of Sale, and any notice or consent under these Terms, may be given electronically, and an electronic signature is as effective as a handwritten one.

17. Governing Law and Dispute Resolution

17.1 Where the Seller is Broadsteer Australia, the Contract is governed by the laws of New South Wales, Australia, and the parties submit to the non-exclusive jurisdiction of its courts.

17.2 Where the Seller is Broadsteer New Zealand, the Contract is governed by New Zealand law, and the parties submit to the non-exclusive jurisdiction of its courts.

17.3 The United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) does not apply.

Acknowledgement

By accepting delivery of Goods, opening or presenting a letter of credit, or making any payment under a Contract, the Buyer agrees to be bound by these Terms.