1. INTERPRETATION
1.1 The definitions and rules of interpretation in this condition 1 apply to these conditions.
“Customer” The person, firm or company who purchases the Products from the Seller;
“Incoterms” The 2020 revision of the International Chamber of Commerce Incoterms;
“Seller” Vitaflo Australia Pty. Limited, FY 3 119-121 Balliang Street, South Geelong, Victoria 3220 Australia;
“Contract” Any contract between the Seller and the Customer for the sale and purchase of the Products, incorporating these conditions;
“Products” Any Products agreed in the Contract to be supplied to the Customer by the Seller (including any part or parts of them).
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes the other gender.
1.5 Condition headings do not affect the interpretation of these Conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3 the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all the Seller’s sales of the Product to the Customer and any variation to these conditions and any representations about the Products shall have no effect unless expressly agreed in writing and signed by an authorised signatory of the Seller. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract. Nothing in this condition shall exclude or limit the Seller’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Products by the Customer from the Seller shall be deemed to be an offer by the Customer to buy Products subject to these conditions.
2.5 Orders placed by the Customer is accepted when the Customer receives from the Seller an order acknowledgment in writing or if writing is not received, acknowledgment verbally or delivery, whichever first occurs.
3. DESCRIPTION
3.1 To the extent permitted at law, all samples, descriptive matter, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract and this is not a sale by sample.
4. DELIVERY
4.1 In relation to Customers in Australia, the Seller shall deliver the Products to the Customer’s address as stated in the order unless the Seller has agreed otherwise in writing. In relation to Customers outside Australia, delivery of the Products shall be EXW (Incoterms 2020).
4.2 Any dates specified by the Seller for delivery of the Products are intended to be an estimate and time for delivery of the Products shall not be made of the essence by notice. If no dates are specified, delivery shall be within a reasonable time.
4.3 Subject to the other provisions of these conditions, the Seller shall not be liable for any direct, indirect or consequential loss (all three of which include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Products. Delay in delivery of the Products does not entitle the Customer to terminate or rescind the Contract unless such delay exceeds 30 days.
4.4 Any reasonable costs incurred by the Seller due to any failure by the Customer to accept the Products at time of delivery will be reimbursed by the Customer to the Seller.
4.5 The Customer shall provide at its expense adequate and appropriate equipment and manual labour for loading or unloading the Products as appropriate.
4.6 The Seller may deliver the Products by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.7 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract shall entitle the Customer to repudiate or cancel any other contract or instalment.
5. NON-DELIVERY
5.1 The Seller will make reasonable efforts to have the Goods delivered to the Customer as agreed between the parties (or if there is no specific agreement then at the Seller’s reasonable discretion), but the Seller will not be liable for any failure to deliver or delay in delivery. Any reasonable costs incurred by the Seller due to any failure by the Customer to accept the Goods at time of delivery will be reimbursed by the Customer to the Seller. Except as required by law, the Seller will be under no obligation to accept Goods returned for any reason.
5.2 The Customer must inspect the Goods as soon as possible after delivery. Where the Goods are not in accordance with the order the Customer must notify the Seller in writing of that fact and reasons as soon as possible. The Customer cannot refuse to accept Goods merely because they are not delivered by any given date or dates.
5.3 To the extent permitted at law, any liability of the Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or issuing a credit note at the pro-rata contract rate against any invoice raised for such Products.
6. RISK/TITLE
6.1 The Products are at the risk of the Customer from the time of delivery.
6.2 Ownership of the Products shall not pass to the Customer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of the Products.
6.3 Until ownership of the Products has passed to the Customer, the Customer shall:
(a) hold the Products on a fiduciary basis as the Seller’s bailee;
(b) store the Products (at no cost to the Seller) separately from all other Products of the Customer or any third party in such a way that they remain readily identifiable as the Seller’s property.;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and
(d) maintain the Products in satisfactory condition and keep them insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request, the Customer shall produce the policy of insurance to the Seller.
6.4 The Customer may resell the Products before ownership has passed to it solely on the condition that any sale shall be effected in the ordinary course of the Customer’s business; and
6.5 The Customer’s right to possession of the Products shall terminate immediately if:
(a) the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors or (being a body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator and/or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer, or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder, or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
(b) the Customer fails to observe or perform any of his/its obligations under the Contract or any other Contract between the Seller and the Customer, or is unable to pay its debts or the Customer ceases to trade; or
(c) the Customer encumbers or in any way charges any of the Products.
6.6 The Seller shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from the Seller.
6.7 Upon the Customer’s right to possession of the Products terminating pursuant to condition 6.6, the Customer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
6.8 Where the Seller is unable to determine whether any Products are the Products in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all Products of the kind sold by the Seller to the Customer in the order in which they were invoiced to the Customer.
6.9 On termination of the Contract, howsoever caused, the Seller’s (but not the Customer’s) rights contained in this condition 6 shall remain in effect.
7. PRICE
7.1 Unless otherwise agreed by the Seller in writing, the price for the Products shall be the price set out in the Seller’s price list published on the date the order is accepted.
7.2 Unless stated otherwise, the price for delivery shall be exclusive of any goods and services tax and all costs and charges in relation to packaging, loading, unloading, carriage and insurance, and any import or export duties. Any of these additional costs and charges payable by the Customer will be notified to the Customer upon the Customer placing an order with the Seller.
7.3 The Seller shall be entitled to increase the price for the Products or its charges in relation to packaging, loading, unloading, carriage and insurance (except for orders that have already been accepted by the Seller pursuant to condition 2.5). The Seller shall give the Customer no less than 10 days’ notice of such increase.
8. PAYMENT
8.1 The Seller shall be entitled to invoice the Customer for the price of the Products and for the costs referred to in condition 7.2 on or at any time after their despatch by the Seller for delivery to the Customer, unless the Customer wrongfully fails to take delivery of the Products, in which case the Seller shall be entitled to invoice the Customer at any time after the Seller has tendered delivery of the Products.
8.2 Subject to condition 8.4, payment of the price for the Products is due within 30 days of the date of the Seller’s invoice, notwithstanding that delivery may not have taken place and the property in the Products has not passed to the Buyer.
8.3 Time for payment shall be of the essence. No payment shall be deemed to have been received until the Seller has received cleared funds.
8.4 All payments payable to the Seller under the Contract shall become due immediately on its termination despite any other provision.
8.5 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Customer.
8.6 In the event of any payment becoming overdue then, without prejudice to any other right or remedy available to it, the Seller may:
(a) suspend all further deliveries on any Contract or Contracts between the Seller and the Customer without notice;
(b) charge interest on the unpaid amount from the due date at the annual rate of 3% above the base lending rate from time to time of HSBC Bank accruing on a daily basis until payment is made, whether before or after any judgment;
(c) notwithstanding the terms of condition 8.2, treat at its discretion all or any outstanding amounts owed by the Customer (whether such amounts or any of them are due and payable or not) as immediately due and payable.
8.7 If the Customer’s payment is returned by the Seller’s bank uncleared, the Seller shall charge the Customer an administration fee of AUD $25.
9. WARRANTIES
9.1 Subject to the provisions of Conditions 9.2 to 9.5, and to the extent permitted by law:
(a) all guarantees, warranties and conditions implied by law are excluded;
(b) the Seller’s liability arising from this Contract, any Products provided under it or any guarantee, warranty or condition implied by law that cannot be excluded, is limited to:
(i) replacement of the Products or supply of equivalent Products;
(ii) repair of the Products;
(iii) payment of the cost of replacing or of acquiring equivalent Products; or
(iv) payment of the cost of having the Products repaired.
9.2 The Seller has no liability for indirect, consequential or special damages including without limitation loss of income, profit, business, goodwill or opportunity.
9.3 The Australian Consumer Law provides that consumer guarantees may apply in some circumstances. Generally, they do not apply when goods are purchased for resupply or for use in manufacturing or production. Nothing in this Contract should be interpreted as excluding, restricting or modifying any consumer guarantees if that is not permitted.
9.4 The Seller shall not be liable for any breach of the warranties contained or implied into these Conditions or otherwise implied or incorporated into any Contract (the “Warranties”):
(a) unless the Customer has paid to the Seller all monies payable on or by the date(s) for payment;
(b) unless the Customer has inspected the Products on delivery and given notice of the alleged non-compliance or alleged defect within a reasonable period of the time from when the Customer has discovered or ought to have discovered the defect;
(c) unless the Customer gives the Seller an opportunity to inspect the Products;
(d) unless the Customer makes no further use of the relevant Products;
(e) if the Products have been modified, altered or otherwise tampered with in any way other than by a duly authorised representative of the Seller; or
(f) if the defect arises from the Customer’s misuse, wilful damage, neglect, carelessness, lack of proper care, failure to follow any instructions given by the Seller (or any agent, employee servant of or third party who is acting on behalf of or performing any service for the Customer) or other commotion or disturbance of whatever nature whether affecting the Products directly or indirectly as a result of any such matter affecting the place where the Products are situate.
9.5 All warranties, conditions and other terms implied by statute or by common law are, to the fullest extent permitted by law, excluded from the contract.
9.6 If a valid Warranty claim shall arise which is properly notified to the Seller in accordance with these Conditions, the Seller will at its option and expense either:
(a) take back the non-complying or defective Products and replace them as soon as reasonably practicable or refund the appropriate part of the Contract price; or
(b) require the Customer to retain the Products and grant to the Customer an appropriate allowance against the Contract price; or
(c) take such steps as the Seller considers necessary to make the Products comply,
and performance of any one of the above options shall constitute discharge of the Seller’s entire liability under the Warranties.
10. RETURN OF NON-DEFECTIVE PRODUCTS
10.1 Products may only be returned by the Customer for a change of mind reason with the prior agreement of the Seller. The Customer must notify the Seller within 72 hours of receipt of the Products that it wishes to return them.
10.2 The Customer, at the Customer’s risk and expense, must return any products agreed by the Seller to be returned under condition 10.1 in their original condition and in their original packaging. On receipt of the Products and subject to the Seller’s reasonable satisfaction that this condition 10.2 has been complied with by the Customer, the Seller shall refund the Contract Price less any charges for delivery fee, or otherwise as agreed by the parties.
10.3 Resellers must not re-shelve and/or re-sell consumer returns.
10.4 Retailers must document consumer returns, train employees on the proper handling of returned goods, designate a separate storage area in the store for consumer returns, supervise the returned goods process, and periodically audit the returns process for the proper storing and handling of distressed, damaged, returned Products and Products left at checkout counters.
11. PACKAGING
11.1 If the Customer re-sells or otherwise supplies the Products to any third party:
(a) such Products must be re-sold or supplied in the packaging in which they were purchased from the Seller and with any and all identification and other product numbers and/or marks unamended and clearly shown; and
(b) the Customer must not remove, separate or detach from the Products any accompanying inserts or instruction leaflets, unless otherwise agreed in writing by the Seller.
12. PRODUCT RECALL AND CUSTOMER COMPLAINTS
12.1 In the event that at the requirement, instruction, instigation, recommendation or suggestion of any governmental body (whether local or national) examination of any of the Products is required to be undertaken to investigate the fitness for purpose of such Products and/or the parties otherwise agree that such Products should be withdrawn from sale and/or recalled after sale the Seller and the Customer shall bear in equal shares all costs, charges and expenses properly and reasonably incurred by either or both of them. In the event that any such examination, withdrawal or recall is carried out at the sole instigation of the Seller or the Customer, the costs, charges and expenses thereof shall be borne by that party unless otherwise agreed in writing or unless and to the extent that the reason for such examination, withdrawal or recall was attributable to the act or default of the other party in which case such costs, charges and expenses shall be borne by that other party.
12.2 The Customer shall maintain a proper and efficient procedure for reporting and dealing with consumer complaints, but shall not settle any such complaints or otherwise compromise the position of the Seller in respect thereto without the Seller’s prior written consent. Full details of such complaints must be referred to the Seller forthwith upon notification together with the packaging and/or batch code of the relevant Products without which no complaint shall be considered. Nothing in this condition shall restrict, or is intended to restrict, the Customer from dealing with any consumer rights and guarantee claims by a consumer under Australian Consumer Law.
13. LIMITATION OF LIABILITY
13.1 Subject to condition 4, condition 5 and condition 9, the following provisions set out the entire liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of these conditions;
(b) any use made or resale by the Customer of any of the Products, or of any products incorporating any of the Products; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
13.2 Nothing in these conditions excludes or limits the liability of the Seller for death or personal injury caused by the Seller’s negligence, or for any matter which it would be illegal for the Seller to exclude, or attempt to exclude, its liability or for fraud or fraudulent misrepresentation.
13.3 Subject to condition 9.5 and condition 13.2;
(a) the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the Contract Price; and
(b) the Seller shall not be liable to the Customer for loss of profit, loss of business, loss of revenue or depletion of goodwill, in each case whether direct or indirect (howsoever caused) which arise out of or in connection with the Contract; and
(c) the Seller shall not be liable to the Customer for any indirect losses (howsoever caused) which arise out of or in connection with the Contract.
14. ASSIGNMENT
14.1 The Seller may assign the Contract or any part of it to any person, firm or company. The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
15. FORCE MAJEURE
15.1 The Seller reserves the right to defer the date of delivery or to cancel the Contract or to reduce the volume of Products ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Seller, including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riots, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce) or restraints or delays affecting couriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a period in excess of 60 days, the Customer shall be entitled to give notice in writing to the Seller to terminate the Contract.
16. GENERAL
16.1 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
16.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable, it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
16.3 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
16.4 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
16.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by any person who is not a party to it.
16.6 The termination, construction, existence, performance, validity and all aspects of the Contract shall be governed by the laws of New South Wales, Australia and the parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia.
17. NOTICES
17.1 Any notices to be served hereunder shall be delivered by hand or sent by registered mail or facsimile to the relevant party at its last known address. Notice shall be deemed served on delivery if delivered by hand, on the third working day after posting if sent by registered mail or 24 hours after despatch by facsimile (weekends and bank holidays excepted).