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Credit Application Terms & Conditions

“Business Days” means a day that is not a Saturday, Sunday, public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done.

“Collateral” means all of the Customer’s present and after-acquired personal property, and all of the Customer’s present and future rights in relation to any personal property to which the PPSA applies.

“Force Majeure Event” means circumstances beyond the reasonable control, including (without limitation) strikes, lock-outs, accidents, war, fire, flood, explosion, shortage of power, breakdown of plant or machinery, shortage of raw materials from normal source of supply, act of God or any order or direction of any government, government authority or instrumentality.

“Goods” means the goods sold by M & J Chickens to the Customer, including the person filling out the application form provided by us.

“GST Act” is a reference to A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended.

“GST” means a tax, levy, duty, charge, or deduction together with any related additional tax, interest, penalty, fine or other charge imposed by or under the GST Act.

“Other Property” means any and all of the Customers’ interest(s) in any land and any other property other than any Collateral.

“PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time and any regulations made pursuant to it.

“Registered Business Address” means the address of the company’s registered office and principal place of business as held by ASIC.

“Secured Money” means all amounts of any nature which the Customer (whether alone, or jointly, or jointly and severally with any other person) is, or may at any time become, liable (whether actually or contingently) to pay or deliver to us (whether alone, or jointly or jointly and severally).

“Terms and Conditions” or “T&Cs” mean the rules, conditions, terms and requirements referred to in this document.

“Taxable Supply” has the meaning given in the GST Act.

“Trading Address” means location of the business premises which may or may not be the registered or official address of the company.

Terminology

In these T&Cs, the expressions we, us and our are a reference to M & J Chickens Pty Limited (ABN 92 626 875 465) trading as M & J Chickens (“M & J Chickens”).

1. Agreement

These T&Cs exclusively and completely state the rights and obligations of the Customer with respect to and concerning the provision of commercial credit by the Customer. This Agreement is formed on the acceptance of these T&Cs by M & J Chickens and supersedes all negotiations, representations, statements, warranties and prior agreements, whether written or oral, in respect of and concerning the provision of commercial credit by the Customer. If there is any inconsistency between these T&Cs and any other agreement or security, these T&Cs will prevail.

2. Amendments to T&Cs

M & J Chickens reserve the right to amend these T&Cs from time to time (including the withdrawal of credit) at any time and will notify the Customer accordingly. Amendments will be effective immediately upon notification. Regardless, the Customer’s continued use of these T&Cs or any other form following such notification will represent an agreement by the Customer to be bound by the T&Cs as amended from time to time.

3. Sale

M & J Chickens hereby agrees to sell to the Customer and the Customer hereby agrees to purchase from M & J Chickens the Goods ordered by the Customer from time to time, in accordance with these T&Cs subject to clause 2.

4. Ordering Procedure

a) The Customer may purchase Goods by making an offer to purchase these Goods in writing, verbally or electronically, which will constitute a valid agreement with M & J Chickens. The offer may consist of a standing order or may be made from time to time.

b) The Customer’s order must contain the Customer’s name, email address, credit card details and any other ordering information that is listed in our forms.

c) M & J Chickens require a minimum amount per order unless otherwise agreed by M & J Chickens in writing.

d) Acceptance of these T&Cs must be received along with the Customer’s order.

e) Within seven days of receipt of the Customer’s order, we will at our discretion accept or reject the Customer’s offer to engage our services.

f) The Customer may not cancel an order once it has been submitted, even if our acceptance or rejection of the Customer’s offer is still pending.

g) We are not required to give reasons for rejecting the Customer’s offer to purchase.

h) In the event we reject the Customer’s offer to purchase the Goods for any reason, neither of us will be under any further liability whatsoever (whether direct or indirect) to the other arising out of the Customer’s original offer or our non-acceptance of that offer.

i) If we have not responded to the Customer within seven days, the Customer’s offer will be deemed to have been rejected.

j) We give no undertaking as to the availability of products advertised.

k) Delivery of the Goods will be effected in the manner advised by us from time to time.

l) Title in the Goods does not pass to the Customer until payment has been received in full or in accordance with this credit application.

m) Risk of loss or damage to the Goods passes to the Customer on dispatch.

n) Payment must be effected in the manner described by us. Prices listed on our website are exclusive of goods and services tax. In all other respects, the price is exclusive of taxes, duties and charges imposed or levied in Australia or overseas in connection with the supply of Goods.

o) The Goods are offered for sale only to persons who can make legally binding contracts.

5. New Customer

If the Customer is new, they are required to make a full payment of their first invoice prior to delivery of any of our Goods. We will not send the Customer anything from the order until payment has been received by us. We will invoice for our freight charges at the time of stock delivery using a freight company. We have complete discretion to select the freight company that we prefer regardless of the costs of shipping which the Customer must pay. We have complete discretion to either reject or accept a request for approval of commercial credit to pay for our Goods.

6. Existing Customer

In the event the Customer is an existing Customer, we may agree to enter into payment terms at our sole discretion. In the event there are any late payments or a default of a payment, we may reserve our right to demand immediately our payment and to revert back to the payment terms as if the Customer was a new Customer and enforce extra obligations upon that Customer.

7. Prices

The Customer acknowledges that the price of Goods will vary from time to time and agrees that the price for the Goods shall be our prevailing price on the day of dispatch. The Customer acknowledges that we reserve the absolute right to vary or amend prices or quotes in relation to future orders placed for the Goods.

8. Alteration to Range

We reserve the right, at its absolute discretion, to add to or remove from the range of products, including the Goods, supplied by us, and may do so at any time without notice to the Customer.

9. Delivery

Delivery shall be made at the place notified by the Customer for that purpose, otherwise it shall be at the Customer’s Trading Address or Registered Business Address. In the event there are delays beyond our control, we are not responsible or liable to the Customer in respect to any claim by the Customer. In the event we deliver Goods to your site, we are not responsible for any damage or claim you may have against us and we will not indemnify you for such damage.

10. Title

a) Title or legal or beneficial ownership of any Goods purchased from us will not pass to the Customer until payment of the Goods have been received by us in full. We reserve all our rights in this clause to claim any damages, indemnity, remedies, action etc whether direct or indirect (amongst other things) against the Customer.

b) For the avoidance of doubt, the Customer agrees that we may register security or a charge in accordance with the Personal Property Securities Act 2009 (Cth) (PPSA) or any other collateral in order to repay any monies owed to us by the Customer. Accordingly, we may register any agreement entered into for the sale of Goods with us or a notification of it or a security interest related to or constituted by such an agreement at the Customer’s expense.

c) In the event that we deem it necessary to obtain the Goods from the Customer’s premises for non- payment, we will be authorised by the Customer and permitted to enter the Customer’s premises and/or place of storage and re-collect and repossess our Goods.

d) Any action of ours (including holding any customer’s keys) will not result in trespass as the Customer irrevocably agrees that we will be allowed to re-collect and repossess our Goods or access the site for any reason. Any costs associated with such recollection and repossession will be paid and reimbursed by the Customer.

11. Personal Properties Securities Act (PPSA)

a) The Customer acknowledges that under the PPSA:

1. the acceptance of these T&Cs constitutes a security agreement;

2. the Customer grants us purchase money security interest in the Goods and any proceeds; and

3. we may register a financing statement on the Personal Properties Securities Register (PPSR).

b) For the avoidance of doubt the Customer will owe Secured Money to us.

c) The Customer agrees to provide information and do anything reasonably required for us to register, maintain and enforce our security interest.

d) The Customer must not assign or grant a security interest in respect of any accounts owed to them without our prior written consent.

12. Grant of Security over Existing and Future Assets

a) The Customer grants to us a security interest in the Collateral.

b) The security interest referred to in clause 11(a) secures:

1) payment of all monies which may become payable by the Customer to us, including but not limited to, the payment or delivery of the Secured Money; and

2) the performance by the Customer of all of the Customer’s other obligations to us at any time;

c) the Customer hereby charges its Other Property both present and future in favour of us and the Customer consents to us lodging a caveat or caveats noting their respective interests pursuant to such a charge.

d) The Customer also agrees, if requested by us, to execute any other documents in registrable form to better secure this equitable charge.

e) The Customer hereby agrees to indemnify us for all legal costs and fees in respect to such charge(s) and caveat(s).

13. Purchase Money Security Interests

a) We retain title to and have a purchase money security interest in all Goods Credit Terms;

b) it will not dispose of, lend, factor, subordinate, part with possession of or otherwise deal with any Collateral or Other Property, nor attempt or threaten to do any of those, other than:

(i) with the prior written consent of us, or as permitted by these T&Cs;

(ii) in the case of Collateral or Other Property that is inventory or money, in the ordinary course of, and for the purpose of carrying on, its ordinary business;

(iii) in the case of Collateral or Other Property that is accounts, to collect in and realise those accounts; or

(iv) in the case of equipment, to replace or renew any equipment (other than serial numbered Goods), in the ordinary course of its ordinary business and for at least equal value and without the creation of a purchase money security interest in such equipment;

c) it will promptly pay all Proceeds from any dealing with the Collateral or Other Property into its usual working current account with the Suppliers or such account as may from time to time be designated by us for that purpose.

14. Provision of information under PPSA not required

The Customer waives the requirement for us to provide information under various provisions of the PPSA. In particular, the Customer agrees that as provided for in:

a) Section 157- we are not required to give the Customer a verification statement;

b) Section 144- we are not required to give the Customer notices under sections 95,118,121,130,132 and 135; and

c) Section 275- we are not required to provide interested persons with information relating to our security interest and neither is the Customer.

15. Terms defined in the PPSA

Terms defined in the PPSA (including purchase money security interest, verification statements, proceeds and various other terms) have the same meaning when used in these T&Cs.

16. Cancellation due to Error

The Customer acknowledges that despite our reasonable precautions, products may be listed at an incorrect price or with incorrect information due to a typographical error or like oversight. In these circumstances, we reserve the right to cancel the transaction, notwithstanding that the Customer’s order has been confirmed and the Customer’s credit card has been charged or any other way in which payment is charged to the Customer. We reserve this right up until the time of delivery of goods or supply of the services to the Customer. If a cancellation of this nature occurs after the Customer’s credit card or any other type of payment has been charged for the purchase, we will immediately issue a credit in a way and form at our sole discretion for the amount in question.

17. Credit Reports

a) The Customer and each person signing as guarantor of the Customer’s obligations under the credit application (each a “Guarantor”) acknowledges and agrees that each of the Customer(s) and any related bodies corporate:

1) may give certain information about them to a credit reporting body or other credit providers (including related bodies corporate of M & J Chickens) in order to obtain a credit report about them that may include but is not limited to, as relevant, identity particulars and the fact that the Customer has applied for credit or the Guarantor has offered to act as a guarantor; and

2) may, in assessing whether to grant the Customer’s credit application or whether to accept the Guarantor as a guarantor, seek and obtain information about them from a credit reporting body or another credit provider and may give information about them to another credit provider, including information about credit worthiness, history, standing or capacity which credit providers are permitted by Privacy Act 1988 (Cth) to obtain or receive; and

3) without limiting clauses 14(a)(1) and (a)(2), if M & J Chickens or any related body corporate considers it relevant to assessing whether to grant the Customer’s credit application or whether to accept the Guarantor as a guarantor, seek and obtain personal credit information, or a credit report containing personal credit information, about them from a credit reporting body or another credit provider and may give personal credit information about them to another credit provider.

18. Disclaimer

a) This disclaimer set out in these T&Cs does not attempt or purport to exclude liability arising under statute if, and to the extent, such liability cannot be lawfully excluded.

b) We do not accept responsibility for any loss or damage, however caused (including through negligence), which the Customer may directly or indirectly suffer in connection with the Customer’s order or any linked website, nor do we accept any responsibility for any such loss arising out of the Customer’s use of or reliance on information contained on or accessed through any form.

c) To the extent permitted by law, any condition or warranty which would otherwise be implied into these T&Cs is hereby excluded. If legislation implies any condition or warranty, and that legislation prohibits us from excluding or modifying the application of, or our liability under, any such condition or warranty, that condition or warranty will be deemed only to the extent that it is required by law then it will only be limited for a breach of that condition or warranty to one or more of the following in relation to if the breach relates to goods:

1) the replacement of the goods or the supply of equivalent goods; or

2) the payment of the cost of replacing the goods or of acquiring equivalent goods.

d) Except in relation to liability for personal injury (including sickness and death) capped at a maximum amount detailed in our insurance policies, and except as otherwise stipulated in these T&Cs, we will not accept liability to the Customer in respect of any loss or damage (including indirect, special, or consequential loss or damage) which may be suffered or incurred by the Customer or which may arise directly or indirectly in respect of goods supplied pursuant to an order placed on this website or in respect of any failure or omission on our part to comply with our obligations as set out in these T&Cs.

e) In the event we are held liable for whatever reason (which we deny), we will only be limited by our insurance cover. For the avoidance of doubt, we cannot be held liable for any amounts that are in excess of our capped insurance coverage.

f) Notwithstanding this clause and without affecting the transfer of title above, the risk of deterioration shall be the Customer’s from delivery. From delivery, the Customer shall properly handle and store the Goods so as to minimise deterioration.

g) In the event that the Customer breaches these T&Cs, then in addition to our rights on Breach, we may (at its option) enter the premises of the Customer and retake possession of the Goods without prior notice to the Customer.

h) The Customer hereby irrevocably grants the lawful representative of us access to the Customer’s premises for the purposes of repossessing the Goods as herein provided.

i) The Customer indemnifies us against any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment which we suffer, incur or is liable in respect of us exercising our right under this clause or in respect of the Customer breaching its obligations under these T&Cs.

19. Payment

a) Payment is to be made by way of a form at our discretion, unless we approved credit facilities for the Customer; and is to be made by the Customer to us unless otherwise specified in writing by us.

b) Payment is to be made for all deliveries by us to the Customer whether or not the Customer has signed the accompanying invoice and/or delivery docket.

20. Commercial Credit

Where the Customer is a natural person, the Customer warrants and declares that the credit provided under the credit account is to be applied wholly or predominantly for business or investment purposes (or for both purposes) and not for personal, domestic or household purposes.

21. Default on Payment

a) Should the Customer default in the payment of any monies due and payable to us, then the total of all monies due to us from the Customer shall immediately become due and payable. The Customer shall pay or reimburse any expenses, costs or disbursements incurred or paid by us in recovering outstanding monies including bank charges, debt collection agency fees and commissions and solicitor’s costs.

b) In consideration of M & J Chickens agreeing to supply goods and services to the customer, I/we agree to jointly and severally personally guarantee the performance of all obligations and payment of all debts incurred by the customer. This is a continuing and irrevocable guarantee for all monies which are now or may be from time to time owing or remain unpaid by the customer.

c) If any amount due and payable by the Customer:

1) under the sales conditions or Credit Terms; or

2) to any related body corporate of us, is not paid on or before the due date, all amounts actually or contingently owing under the Sales Conditions and Credit Terms, whether or not due and payable, become immediately due and payable to us.

22. Interest

When the Customer pays subsequent to delivery (or where credit facilities have been approved by us, then from expiration of the credit period allowed for payment), interest shall accrue on all monies payable but unpaid at the current bank rate plus 3% per annum simple interest calculated daily from the due date of payment until the date of actual payment.

23. Insurance

In the event the Customer is purchasing our Goods in bulk for business and commercial purposes, then the Customer warrants that our goods that we have delivered to the Customer are insured and protected by a mutual arrangement to our satisfaction. In the event we require such insurances, the Customer must deliver to us all insurance policies and certificates of insurance or schedule or certificate of mutual risk protection contribution at least three (3) Business Days after the Customer has signed this credit application and/or on request from us and not to do or permit anything to be done which prejudices any insurance policy or mutual risk protection (whether it prejudices our insurance policies or the Customer’s insurance policies).

24. Breach

If the Customer:

a) breaches the Credit Terms or sales conditions;

b) makes any false representation (whether by act or omission) in respect of the Customer’s application for credit, including any false representation (whether by act or omission) in relation to the Customer’s financial position; or

c) becomes subject to the provisions of clause 25 of these T&Cs, then, without limiting any other rights of us, we may:

1) terminate the Credit Terms; and/or

2) refuse to supply any Goods to the Customer.

25. Receiver

a) We may (whether or not they have exercised any other power) appoint any person or persons to be Receiver of all or any of the Collateral:

1) after a Default occurs; or

2) if the Customer requests.

b) We may remove any Receiver and may appoint a new Receiver in place of any Receiver who has been removed, retired or died.

c) In addition to, and without affecting, any other powers and authorities conferred on a Receiver (whether under the Corporations Act 2001 (Cth) or at law or otherwise), a Receiver has the power to do all things in relation to the Collateral and the Customer’s business as if the Receiver has absolute ownership of the Collateral and carried on the Customer’s business for the Receiver’s own benefit.

d) All amounts received by us or any Receiver, whether in the exercise of that person’s powers or otherwise, in relation to any Collateral will be applied in accordance with the provisions of the PPSA. All amounts received by us or any Receiver, whether in the exercise of that person’s powers or otherwise, in relation to any Other Property will (subject to the claims of all secured and unsecured creditors (if any) ranking in priority over that Other Property) be applied:

1) first, in payment of all expenses (including legal expenses on a full indemnity basis and all taxes thereon and the remuneration of the Receiver, but subject to any direction in respect thereof made by any court); and

2) secondly, in payment to us of the Secured Money.

26. GST

In addition to any GST included in the Purchase Price of the Goods, the Customer must pay to us on demand any GST payable in relation to any other Taxable Supplies which is subject to these conditions. a) If any part of the Purchase Price is referable to both a Taxable Supply and anything that is not a Taxable Supply, the GST-exclusive portion of the Purchase Price will be determined by us.

b) If we determine on reasonable grounds that the amount of GST referable to any Taxable Supply which is subject to these conditions differs for any reason from the amount of GST included in the Purchase Price, the amount of GST payable by the Customer will be adjusted accordingly and recovered from the Customer or credited to the Customer’s account as appropriate. Where we have paid the difference between the two amounts to the Commissioner of Taxation, whether or not as part of a larger sum, no amount will be paid to the Customer under this clause unless we are entitled to a refund or credit of such amount from the Commissioner of Taxation.

27. Containers

a) Containers owned by us at all times remain the property of ours. We retain the right of possession of any containers not owned by them. Property to the Containers does not pass to the Customer in any circumstances.

b) All Containers are delivered to the Customer at its risk and the Customer must ensure that the Containers are kept clean, not damaged, and are returned on request of us, or such other person as we may request, in good condition.

c) We will keep a record of the number and type of Containers delivered to the Customer (which the Customer agrees will be conclusive evidence of the number and type) and may charge the Customer for the replacement cost or such lesser amount determined by us for each Container not returned or damaged by the Customer.

d) The Customer indemnifies us against, and must pay us on demand, the amount of all losses, liabilities and expenses arising out of or in connection with the possession or use of all Containers (delivered by us) by the Customer . For the purpose of this indemnity, the Customer is deemed to be in possession of a Container from the time of delivery by us until we or the owner of the Container physically resumes possession. 

28. Force Majeure Events

a) We may suspend delivery or reduce the amount to be delivered if they are unable to deliver the Goods by reason of a Force Majeure Event.

b) If the effects of the Force Majeure Event continue for more than one calender month, we at our absolute discretion may terminate any agreement for supply of Goods to which these terms and conditions apply. c) The Customer will have no claim against us for any damages, loss, costs or expenses arising from delay or cancellation under this clause.

29. Governing Law

These T&Cs are governed by the laws in force in Australia. The Customer agrees to submit to the exclusive jurisdiction of the courts of New South Wales.

30. General

We accept no liability for any failure to comply with these T&Cs. 

If we waive any rights available under these T&Cs on one occasion (provided we have done so expressly in writing), this does not mean that those rights will automatically be waived on any other occasion. If any of the T&Cs are help to be invalid, unenforceable or illegal for any reason, the remaining T&Cs shall nevertheless continue in full force. 

I/We have read and accept the terms governed by M&J Chickens.

Applicant’s Name: ...................................................... Signature:............................................................... Date:

DECLARATION, AUTHORITY & CONSENT

The Applicant and signatories appearing below declare that all information supplied is true and correct in every detail and also that the signatories are authorised by the Applicant to complete this application and further acknowledge that if credit is granted by us to the Applicant that this will be done in reliance upon the information supplied by the Applicant. We cannot be held liable for any false information that has been provided by the Applicant on this Application.

The Applicant and signatories below acknowledge that they understand the T&Cs and Credit Terms in this Application (along with any other documentation provided by us), that they have had the opportunity of obtaining independent legal advice prior to submitting this Application and that they are separately and together bound by the Credit Terms and the T&Cs and any other relevant documentation.

The Applicant and signatories further authorise and consent to us obtaining and disclosing information about the Applicant’s credit worthiness (including identity particulars and details of overdue payments) to and from credit reporting agencies and other credit providers who have entered or intend to enter into a commercial or business dealing with the Applicant.

A copy of all relevant proof and evidence must accompany this Application for credit.

Signed on behalf of the Applicant by (please tick) SHAREHOLDERS PARTNERS SOLETRADER AUTHORISED OFFICER

Signature   Print Name and Title

CONTACT DETAILS - Personal Details Of Sole Trader/Partnership/Company Full Name

Date of Birth

Driver’s Lic. No.

State    Exp. Date