Terms & conditions

These are the entire Terms and Conditions of Sale of all goods merchandise and services (the “goods”) supplied by HOME MADE FOOD CO PTY LIMITED (ABN 38 609 870 466) and any associated or related body corporate or businesses (all of which are referred to as “Home Made Food Co”) to any person, firm or company placing an order with Home Made Food Co for the purchase of any goods (the “Customer”). Except as otherwise expressly agreed upon in writing between a duly authorised officer of Home Made Food Co and the Customer, these Terms and Conditions shall apply notwithstanding any provisions to the contrary which may appear on any order form or other document issued by any Customer.

Payment terms

The terms of payment are prepayment before the date of invoice (or such other terms as nominated by Home Made Food Co) and payment is due and payable by the date of invoice (“credit terms”). Home Made Food Co and any related body corporate (as that term is defined in the Corporations Act 2001) may, at any time, unilaterally vary the credit terms in its absolute and unfettered discretion. The current credit terms can be found at http://www.homemadefoodco.com.au/Home/Terms and placement on the website link is acknowledged by the Customer as constituting sufficient notice and receipt of updated credit terms.
Should the Customer not pay for the goods or services supplied by Home Made Food Co in accordance with the credit terms, or as otherwise agreed in writing by Home Made Food Co from time to time, Home Made Food Co shall be entitled to charge an administration fee of 10% of the amount of the invoice payable per year, or part thereof, from the date the goods or services were supplied (and not the day when Home Made Food Co’ invoice was payable) until payment by the Customer.
The granting of credit to a customer shall be at the absolute discretion of Home Made Food Co and unless otherwise advised by Home Made Food Co in writing, the Customer shall make payment of all amounts payable within specified terms as advised by Home Made Food Co to the Customer in writing, or the date of the invoice whichever is the earlier.
Home Made Food Co may at its absolute discretion withhold delivery of goods which are outside the credit terms.
Customers having overdue accounts will be precluded from participating in any special deals, discounts, rebates, bonus payments, redemptions and all other incentive programs until their accounts are no longer overdue.

Jurisdiction

The Customer acknowledges and agrees that this agreement shall be governed by the laws of New South Wales, and the laws of the Commonwealth of Australia, which are in force in New South Wales.
The Customer acknowledges and agrees that any contract for the supply of goods or services between Home Made Food Co and the Customer is formed at the address of Home Made Food Co.
The Customer submits to the exclusive jurisdiction of the courts of New South Wales and the relevant federal courts and courts competent to hear appeals from those courts.

Security/charges

The Customer (whether by its Director, Partner or Sole Proprietor) charges in favour of Home Made Food Co all of its estate and interest in any real property that the Customer owns at present and in the future with the amount of its indebtedness hereunder until discharged in full. The Customer agrees to deliver up to Home Made Food Co on demand any title deed in which it has an interest, although the failure to do so shall not vitiate any such charge.
The Customer charges in favour of Home Made Food Co all of its estate and interest in any personal property that the Customer owns at present and in the future with the amount of its indebtedness hereunder until discharged in full.
The Customer appoints as its duly constituted attorney Home Made Food Co’ company secretary from time to time to execute in the Customer’s name and as the Customer’s act and deed any real property mortgage, or consent to any caveat Home Made Food Co may choose to lodge against real property that the Customer may own in any registry of titles in any state or territory of Australia, even though the Customer may not have defaulted in carrying out its obligations hereunder.

Personal Property Security Act (2009) (Cth) (PPSA)

Home Made Food Co and the Customer hereby acknowledge that the PPSA applies to all transactions pursuant to these Terms and Conditions or otherwise.
The Customer hereby acknowledges that it will grant a security interest in all present and acquired goods as security for all monies now and in the future owing by the Customer.
The Customer agrees to do all such things and sign all such documents as are necessary and reasonably required to enable Home Made Food Co to acquire a perfected security interest in all goods supplied.
The Customer hereby agrees to provide such information as is required to enable registration of a Purchase Money Security Interest (“PMSI”) under the PPSA in favour of Home Made Food Co.
The Customer hereby acknowledges that a PMSI is granted in priority to all other creditors by the Customer in favour of Home Made Food Co and in all goods that are supplied from time to time, as security for the Customer’s obligations to Home Made Food Co.
The Customer hereby indemnifies Home Made Food Co against any liability for any costs or registration, maintenance, enforcement or discharge or security interest and such other costs and expenses as Home Made Food Co may incur.
The Customer hereby agrees that it will not, without notice, change its name or initiate any change to any registered documentation, or act in any manner which would impact on the registered security interest of Home Made Food Co.
The Customer hereby agrees to waive or exclude such sections of the PPSA as Home Made Food Co may require, subject to those sections being capable of exclusion.
Home Made Food Co hereby reserves the right at any time in its sole discretion to make such amendments, alterations and additions to this Clause as it may in its sole discretion determine.
The Customer appoints as its duly constituted attorney Home Made Food Co’ company secretary from time to time to execute in the Customer’s name and as the Customer’s act and deed any document that Home Made Food Co may require to enable recording or registration of a PMSI, or other PPSA security even though the Customer may not have defaulted in carrying out its obligations hereunder.

Purpose of credit

The Customer acknowledges and agrees that the credit to be provided to the Customer by Home Made Food Co is to be applied wholly or predominantly for commercial purposes.

Assignment

The credit terms provided by Home Made Food Co are not transferable by the Customer (or available to any other party at the direction or request of the Customer) without the prior written consent of Home Made Food Co, which may be given or withheld in the absolute discretion of Home Made Food Co.
Home Made Food Co may assign this agreement to another party without prior notice to the Customer. Home Made Food Co will give the Customer notice when the assignment has been effected.

Formation of contract

Quotations made by Home Made Food Co do not bind Home Made Food Co and shall not be construed as an offer or obligation to supply in accordance with the quotation. Home Made Food Co reserves the right to accept or reject, at its discretion, any offer to purchase goods received by it. Only express written acceptance by Home Made Food Co of the Customer’s offer to purchase goods shall complete a contract.
Placement of an order, either verbally or in writing, shall constitute acceptance of these terms and conditions.
If the Customer cancels or alters any order or part order for custom made goods (made to the Customer’s specification or recipe) or standard goods with specific ingredients purchased particularly to satisfy such custom order, then Home Made Food Co reserves the right to charge to the Customer the costs of any special goods or ingredients already acquired for the order together with the labour and production costs of fulfilling such order.

Retention of title

Whilst the Customer has not paid for the goods supplied in full at any time, the Customer agrees that property and title in the goods shall not pass to the Customer and Home Made Food Co retains the legal and equitable title in those goods supplied and not yet sold by the Customer.
Until payment in full has been made to Home Made Food Co, the Customer will hold the goods in a fiduciary capacity on behalf of Home Made Food Co and agrees to store the goods properly and safely and in such a manner that they can be identified as the property of Home Made Food Co, and shall not mix the goods with other similar goods.
The Customer shall be entitled to sell the goods in the ordinary course of its business, but until full payment for the goods has been made to Home Made Food Co, the Customer shall sell as agent and bailee for Home Made Food Co and the proceeds of sale of the goods shall be held by the Customer on trust for Home Made Food Co absolutely.
The Customer’s indebtedness to Home Made Food Co, whether in full or in part, shall not be discharged by the operation of these terms and conditions unless and until the funds held on trust are remitted to Home Made Food Co.
The Customer agrees that whilst property and title in the goods remains with Home Made Food Co, Home Made Food Co has the right, with or without prior notice to the Customer, to enter upon any premises occupied by the Customer (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the Customer) to inspect the goods of Home Made Food Co and to repossess the goods, or any of them, which may be in the Customer’s possession, custody or control when payment is overdue.
The Customer will be responsible for Home Made Food Co’ costs and expenses in exercising its rights under these terms and conditions. Where Home Made Food Co exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Customer against Home Made Food Co, its employees, directors, anyone appointed by Home Made Food Co or agents.
The Customer agrees that where the goods have been retaken into the possession of Home Made Food Co, Home Made Food Co has the absolute right to sell or deal with the goods, and if necessary, sell the goods with the trademark or name of the Customer on those goods, and the Customer hereby grants an irrevocable licence to Home Made Food Co to do all things necessary to sell the goods bearing the name or trademark of the
Customer.
Retaking of the goods by Home Made Food Co does not relieve the Customer of any obligation to Home Made Food Co, until the amount owing to Home Made Food Co is discharged in full.

Statement of Debt

A certificate signed by a Director, General Manager, Legal Officer, Financial Controller or Credit Manager of Home Made Food Co, shall be conclusive evidence of the amount of indebtedness of the Customer to Home Made Food Co at that time, in the absence of manifest error.

Orders and Delivery

Orders

Home Made Food Co reserve the right to accept or decline any offer to purchase in whole or in part.
The Goods will be delivered to the Customer on the delivery date and in the quantities specified in the Sales Order. Where the Customer has an account which requires payment on delivery or cash on delivery (POD/COD) and payment is not made on delivery, the Goods will not be delivered.
The order has to be confirmed four days prior to delivery date which is pre-determined by the Home Made Food Co based on the location.

Delays

Home Made Food Co will not be responsible for delays in delivery or failure to deliver due to causes beyond Home Made Food Co’ control including but not limited to acts of God, war, mobilisation, civil commotion, riots, embargoes, orders or regulations of governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties, shortages of or inability to obtain shipping space or transportation, traffic delays howsoever caused, or shortages of or unavailability of raw materials.

Cancellations

Cancellations of orders must be written or verbally confirmed by Homemade Food Co within 24 Hours of which order has been confirmed. Orders may in no event be cancelled after the goods have been dispatched.

Deliveries

The obligation of Home Made Food Co to deliver shall be discharged on arrival of the goods at the Customer’s nominated delivery destination, nominated transport company, nominated agent or the address appearing on the invoice. The Customer shall unload the goods upon delivery, provided that if the Customer is unable or unwilling to accept physical delivery of the goods when the goods are ready for delivery, then Home Made Food Co shall be entitled to charge a fee in such amount as represents (in the opinion of Home Made Food Co) the cost of any delay experienced or to arrange for the storage of the goods at the risk and cost of the Customer including all transportation, storage and other consequential costs.

Pallets

When palletised product is delivered, the Customer must exchange like pallets or authorise the de- hire to its pallet account. If the Customer is unable to comply with either procedure, the Customer must sign a pallet IOU and give it to the driver.

Defects

When The Customer is required to give written notice to Home Made Food Co of any defect or other claim ascertainable upon reasonable inspection of the goods within one (1) day after receipt of the goods. Home Made Food Co shall be given reasonable opportunity to inspect the goods where any such notice is given. Failure to inform Home Made Food Co shall be conclusive evidence that Home Made Food Co have satisfactorily performed.
The Customer may return the Goods (the “Authorised Returns”) but only with the prior written consent of Home Made Food Co’s representative.
Authorised Returns must be sent to Home Made Food Co at <address> and must be sent FREIGHT PAID. Any Authorised Returns not sent FREIGHT PAID may have the cost of freight deducted from the credit.

Limitation of Liability

Authorised Neither party excludes or limits the application of any provision of any statute (including the Competition and Consumer Act 2010 (Cth) as amended from time to time (the CCA), where to do so would contravene the CCA or cause any provision of these terms and conditions to be void. Nothing in these terms and conditions modifies or excludes the conditions, warranties, and undertakings and other legal rights under the Act and other laws which cannot be excluded. Except as expressly set out in these terms and conditions and the CCA, Home Made Food Co makes no warranties or other representations under or in connection with these terms and conditions and Home Made Food Co’ liability in respect thereof, is limited to the fullest extent permitted by law.
In the case of goods supplied by Home Made Food Co to the Customer who is not a “consumer” as defined in the CCA, if the goods were defective or there is any other material breach by Home Made Food Co of these terms and conditions, then, provided that the goods are preserved intact and made available for inspection by a representative of Home Made Food Co in the same order and condition as that in which they were delivered, Home Made Food Co’ total liability to the Customer pursuant to this clause is limited at Home Made Food Co’ option to re- supplying or replacing the goods in respect of which any loss or damage has occurred.
Should the Customer seek indemnity from Home Made Food Co in respect of any claim by a consumer of the Customer as a result of a breach of condition or warranty implied by the CCA in a contract for the supply of goods by the Customer to that consumer then the previous clause 49 will not apply and in respect of goods that are a kind ordinarily acquired for personal, domestic or household use or consumption (“consumer goods”) Home Made Food Co’ liability is limited to indemnifying the Customer in accordance with the CCA limited to a liability to pay to the Customer an amount equal to the cost of replacing the goods, supplying equivalent goods, paying the cost of replacing or obtaining equivalent goods, or the cost of having the goods repaired, whichever is elected by Home Made Food Co.
In the case of goods supplied by Home Made Food Co to the Customer who is a consumer under the CCA, clauses 49 and 50 will not apply and in respect of goods that are a kind ordinarily acquired for personal, domestic or household use or consumption (“consumer goods”) Home Made Food Co’ liability is limited to indemnifying the consumer in accordance with the CCA limited to a liability to pay to the Customer an amount equal to the cost of replacing the goods, supplying equivalent goods, paying the cost of replacing or obtaining equivalent goods, or the cost of having the goods repaired, whichever is elected by Home Made Food Co.
Except for those conditions and warranties implied by the CCA or other sale of goods or consumer protection legislation which may not be excluded, the Customer agrees that:
(a) It has not relied on any inducement, representation or statement made by or on behalf of Home Made Food Co in purchasing the goods and there are no implied conditions or warranties herein and no collateral contracts in connection herewith (except such as may be in writing and signed by a duly authorised representative of Home Made Food Co); and
(b)This clause sets out the entire liability of Home Made Food Co in respect of its liability under the CCA or otherwise in respect of liabilities to a consumer for a breach of a condition or warranty with respect to the sale of goods. In the case of goods supplied to an Customer who is not a “consumer” as defined under the CCA, neither party has any liability to the to other for consequential or indirect damages arising out of or in relation to the goods, any delay or other failure in supplying the goods, even if the party to these terms and conditions, knew such damages were possible or foreseeable, including without limitation, loss of profits and damages suffered as a result of claims by the Customer or any third party, such as customer of the Customer.

Subcontracting

Home Made Food Co may subcontract or licence the performance of the whole or any part of this Agreement to any person.

Cancellation of terms of credit

Home Made Food Co reserves the right to withdraw credit and cancel the credit terms at any time, whether the Customer is in default under the terms of this agreement or not.
Upon cancellation with or without notice all liabilities incurred by the Customer become immediately due and payable to Home Made Food Co.
If the Customer fails to comply with any of these terms and conditions or being a natural person or persons commits any act of bankruptcy, or being a corporation passes a resolution for winding up or liquidation (other than for the purposes of reorganization or reconstruction) or administration or enters into any composition or arrangement with creditors or if a receiver or manager or administrator or controller is appointed for any property or assets or a petition is presented for its winding up, or if a liquidator or provisional liquidator or administrator is appointed, Home Made Food Co may, in addition to exercising all or any of its rights against the Customer, suspend any further deliveries and immediately recover possession of any goods not paid for in accordance with these terms and conditions.

Indemnity

The Customer agrees to indemnify Home Made Food Co and keep Home Made Food Co indemnified against any claim relating in any way to anything arising from or contemplated by these terms and conditions or the supply, or non supply of the goods. This indemnity includes, without limitation, any legal fees and expenses Home Made Food Co incurs in order to enforce or protect its rights, on an indemnity basis.

Provision of further information

The Customer undertakes to comply with any request by Home Made Food Co to provide further information for the purpose of assessing the Customer’s creditworthiness, including an updated credit application.
If the Customer is a corporation (with the exception of a public listed company), it must advise Home Made Food Co of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). In the case of a change of directors or shareholders Home Made Food Co may ask for new guarantors to sign a guarantee and indemnity.
Failure by the Customer to comply with this provision may result in the withdrawal of credit and credit terms at the discretion of Home Made Food Co.

Corporations

If the Customer is a corporation, the Customer warrants that all of its directors have signed this agreement and that all of its directors will enter into a guarantee and indemnity with Home Made Food Co in relation to the Customer’s obligations to Home Made Food Co, on the terms required by Home Made Food Co.

Trustee capacity

If the Customer is the trustee of a trust (whether disclosed or known to Home Made Food Co or not), the Customer warrants to Home Made Food Co that:
a. the Customer enters into this agreement in both its capacity as trustee and in its
personal capacity;
b. the Customer has the right to be indemnified out of trust assets;
c. the Customer has the power under the trust deed to enter in to or sign this agreement; and
d. the Customer will not retire as trustee of the trust or appoint any new or additional trustee without first advising Home Made Food Co.
The Customer must give Home Made Food Co a copy of the trust deed upon request.

Partnership

If the Customer enters into this agreement as partners, the Customer warrants that all of the partners have signed this agreement and that all of the partners will enter into a guarantee and indemnity with Home Made Food Co in relation to the Customer’s obligations to Home Made Food Co, and as such acknowledge that they are jointly and severally liable for any liabilities arising to Home Made Food Co. If the Customer is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without first advising Home Made Food Co. In the case of a change of partners, Home Made Food Co may ask for new guarantors to sign a guarantee and indemnity.

Insolvency

The Customer’s directors, officers or partners are personally liable in their personal capacity under this agreement for payment of all liabilities incurred by the Customer.
If the Customer becomes insolvent, the Customer’s directors, officers or partners are and remain personally liable for payment of all liabilities incurred by the Customer. The Customer remains liable under this agreement even if Home Made Food Co receives a dividend or payment as a result of the Customer being insolvent.

Waiver

A waiver by Home Made Food Co of any provision or breach of this agreement is ineffective unless made by an authorised officer of Home Made Food Co in writing. A waiver of any provision or breach of this agreement by the Customer must be made by the Customer’s authorised officer in writing.

Costs

The Customer must pay for its own legal, accounting and business costs and all costs incurred by Home Made Food Co relating to any default by the Customer. The Customer must also pay for all stamp duty and other taxes payable, or which become payable, on this agreement (if any).
The Customer will pay Home Made Food Co’ costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Customer, including debt recovery fees and legal costs on an indemnity basis. Such costs and disbursements will be due and payable by the Customer to Home Made Food Co irrespective of whether pursuit of the recovery action, claim or remedy is successful.

Taxes and duty

The Customer must pay GST on any taxable supply made by Home Made Food Co to the Customer under this agreement. The payment of GST for a taxable supply is in addition to any other consideration payable by the Customer.
If as a result of:
a. any legislation becoming applicable to the subject matter of this agreement, or
b. any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration, Home Made Food Co becomes liable to pay any tax, duty, excise or levy in respect of the
amounts received from the Customer, then the Customer must pay Home Made Food Co these additional amounts on demand.

Interest rates

Home Made Food Co may add an interest charge at the rate of one point seven five percent (1.75%) per month on a cumulative basis on all overdue amounts (including late payment fees and charges and amounts other than the price) calculated on a day to day basis on any monies due but unpaid, such interest charge to be computed from the due date for payment AND both the Customer and Home Made Food Co agree that such interest charge is not a penalty but is a genuine measure of damages incurred by Home Made Food Co. Payments received from or to the account of the Customer will be credited first against any interest charge and all such fees shall be payable on demand.

Set-off

All payments required to be made by the Customer under this agreement will be made free of any set-off, or counterclaim and without deduction or withholding.
Any amount due to Home Made Food Co from time to time may be deducted from any monies which may be or may become payable to the Customer by Home Made Food Co.

Miscellaneous

Home Made Food Co is not liable for any loss caused to the Customer by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God or any other activity beyond Home Made Food Co’ control.
In relation to the supply of goods, Home Made Food Co’ liability is limited to:
a. replacing the goods or supplying similar goods;
b. repairing the goods;
c. providing the cost for replacing the goods or for acquiring equivalent goods; and
d. providing the cost for having the goods repaired.
In relation to the supply of services, Home Made Food Co’ liability is limited to:
a. supplying the service again; or
b. providing for the cost of having the services supplied again.
Home Made Food Co is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Customer.

Severance

If any provision of this agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.
If any part of this agreement is invalid or unenforceable, that part is deleted and the remainder of the agreement remains effective.

Variation

If The Customer agrees that these terms and conditions may be varied, added to, or amended by an authorised officer of Home Made Food Co at any time by written notice to the Customer.
Any proposed variation to these terms and conditions by the Customer must be requested in writing. Home Made Food Co may refuse any such request without providing reasons either orally or in writing.

Electronic Communications

The In addition to delivery in person, via post and via facsimile, the Customer agrees to have invoices and statements sent via email.
The Customer agrees that communications from Home Made Food Co to the Customer or the Customer to Home Made Food Co constitute an “electronic communication” within the meaning of the Electronic Transactions Act 2000 (NSW) (“ETA”).
The Customer agrees that in agreeing to receive invoices via email, and the service of notices under the ETA, or any like or similar legislation that may be applicable in the State or Territory where the goods were delivered to the Customer via email, the Customer is in both instances designating an information system within the meaning of the ETA.
The Customer agrees that evidence of the “dispatch” (within the meaning of the ETA) by Home Made Food Co of an email is also prima facie evidence of the “receipt” of the email by the Customer within the meaning of the ETA. Unless the contrary is proven the time of receipt will be deemed to be twenty (20) seconds after the time of dispatch of the email.

Entire agreement

In addition to delivery in person, via post and via facsimile, the Customer agrees to have invoices and statements sent via email.
This agreement constitutes the entire agreement between the parties relating in any way to its subject matter. All previous negotiations, understandings, representations, warranties, memorandum or commitments about the subject matter of this agreement are merged in this agreement and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.

Privacy Act

The Customer hereby grants permission in accordance with the Privacy Act, 1988 to Home Made Food Co to carry out such credit enquiries as Home Made Food Co may in its sole discretion determine and to provide such information concerning the Customer to any other parties as Home Made Food Co may in its sole discretion determine and the Guarantor further hereby indemnifies Home Made Food Co in respect of any claims or actions arising out of the obtaining or providing of information concerning the Guarantor in exercise of its discretion as outlined herein.

Goods to be Supplied

The Customer hereby and Home Made Food Co agree that the goods supplied by Home Made Food Co in accordance with the credit terms include but are not limited to the following:
a. food ingredients;
b. bakery ingredients.
c. vitamins;
d. herbs & spices; or
e. other associated items.

The goods supplied for each order will be particularized in the corresponding invoice.