Terms of Sale
In these Terms of Sale:
Account means an account with Taronga Almonds’ online portal which allows the Customer to place Orders;
Consequential Loss means any loss of revenue, loss or profit (whether direct or indirect), loss of reputation, loss of business, loss of opportunity or loss of goodwill, or any indirect, consequential or punitive loss or damage, irrespective of whether such loss or damage was within the contemplation of the parties at the time the Contract was formed or arises naturally from the event giving rise to the loss or damage;
Contract means the contract between Taronga Almonds and the Customer for the supply on the terms referred to in clause 5;
Credit Limit has the meaning given to that term in the Terms and Conditions (credit) – Taronga Almonds;
Customer means the person or entity who has Ordered products from Taronga Almonds;
delivered shall, in relation to the products or any part of them, mean delivery to the Customer in accordance with the arrangements for delivery set out in the Invoice provided to the Customer by Taronga Almonds under clause 4.1(a);
Force Majeure means anything beyond the control of Taronga Almonds which prevents Taronga Almonds from meeting its obligations under the Contract;
GST has the meaning given to that term in the GST Act;
GST Act means A New Tax System (Products and Services Tax) Act 1999 (Cth);
Invoice means a tax invoice provided by Taronga Almonds to the Customer relating to the supply of the products;
Order means a purchase order, request or order for the products issued, made or provided to Taronga Almonds by the Customer;
price means the price for the supply and delivery of the products (plus GST and any other taxes) as specified in the Portal, in an Invoice or as advised by Taronga Almonds;
products means such goods, stock, inventory or products which Taronga Almonds makes available for purchase by the Customer;
Taronga Almonds means Kris Trajanovski and Deborah Trajanovski as The Trustee for Taronga Trading Trust (ABN 84 281 792 625);
tax invoice has the meaning given to that term in the GST Act;
Wholesale Customer means a Customer who places an Order for products for the purposes of reselling those products or incorporating those products into other goods sold by that Customer and not for the purposes of that Customer’s own personal consumption.
- Taronga Almonds may permit the Customer to establish an Account.
- If the Customer establishes an Account, the Customer agrees to:
- keep its login details and password confidential;
- ensure the Customer’s details in the Account are updated so as to remain accurate at all times; and
accept responsibility for all Orders placed through the Account and any activity undertaken using the Account.
- The Customer may also complete a credit application through which the Customer requests Taronga Almonds to supply products to the Customer on the basis that payment for the products is deferred.
- If Taronga Almonds has granted credit to the Customer, then the Terms and Conditions (credit) – Taronga Almonds also apply in addition to these Terms of Sale.
- These Terms of Sale apply to any Orders placed by the Customer. Placing an Order will be deemed conclusive evidence of Customer’s acceptance of these Terms of Sale.
- The Customer may place an Order either:
- through the Customer’s Account; or
by sending an email to firstname.lastname@example.org.
- Before placing an Order, the Customer is responsible for checking the details of that Order, including the description of the products being ordered, the quantity of the products, the pricing and the shipping details.
- Where the Customer is a Wholesale Customer, each Order must be accompanied by a purchase order from that Wholesale Customer which correctly states the products being ordered and the price.
- Unless Taronga Almonds has granted credit to the Customer and the Customer has not exceeded the Credit Limit, at the time of placing an Order, the Customer must make full payment of the price.
- Where Taronga Almonds has granted credit to the Customer, the Customer must make payment of the price within the payment terms confirmed to the Customer by Taronga Almonds under the Terms and Conditions (credit) – Taronga Almonds.
Accepting or Rejecting Orders
- After receiving an Order, an automated email will be sent to the Customer to acknowledge the Order. Thereafter, Taronga Almonds will either:
- accept the Order, in which case Taronga Almonds will provide the Customer an Invoice which shows an order number and confirms the shipping and billing addresses; or
reject an Order, in which case Taronga Almonds will contact the Customer to make arrangements to promptly refund any price paid by the Customer when placing the Order.
- The decision to accept or reject an Order is completely at Taronga Almonds’ discretion. Taronga Almonds may reject an Order without giving reasons.
- Where an Order is accepted, the remaining provisions of these Terms of Sale apply in respect of that Order.
- Upon Taronga Almonds accepting an Order, a Contract for the supply of the ordered products is formed.
- The terms which apply to the Contract are:
- these Terms of Sale; and
- where Taronga Almonds has granted credit to the Customer, the Terms and Conditions (credit) – Taronga Almonds.
The above terms are referenced in order of priority such that the first referenced terms shall prevail over later referenced terms to the extent of any inconsistency.
- Any terms proposed by the Customer, including any set out or referred to in an Order, do not apply.
- These Terms of Sale may not be varied or amended except as agreed in writing and signed by a duly authorised representative of Taronga Almonds.
Supply, inspection and acceptance
- Taronga Almonds will provide, and Customer will accept, the supply of the products for the price.
- Taronga Almonds will ensure the products are dispatched for delivery to the Customer by the later of:
- the date confirmed on the Invoice;
- a date otherwise agreed between the Customer and Taronga Almonds; or
within 5 business days of the Order being accepted.
- The Customer acknowledges that any delivery date communicated to the Customer by Taronga Almonds is an estimated delivery date based on information received from Taronga Almonds’ delivery contractor and does not form part of the Contract.
- Taronga Almonds may partially perform or deliver the products and claim payment for such partial performance or delivery. Any such partial performance or delivery will not invalidate the remainder of the Contract.
- If the Customer fails to take delivery of any of the products when they are ready for delivery or to provide any instructions, documents or confirmation of receipt required to enable the products to be delivered, the products will be deemed to have been delivered and (without prejudice to its other rights) Taronga Almonds may:
- store or arrange for storage of the products until actual delivery or sale in accordance with this clause and charge the Customer for all related costs and expenses (including, without limitation, storage and insurance); and/or
following written notice to the Customer, sell any of the products at the best amount reasonably obtainable in the circumstances and charge the Customer for any shortfall below the price.
- The Customer will inspect all products upon delivery and will, within 48 hours of delivery, give notice to Taronga Almonds if the products do not meet the description of the products in the Order which has been accepted. If Taronga Almonds does not receive notice in accordance with this clause 6, then the products will be deemed delivered and accepted by the Customer.
- Where any products do not meet the description of the products in the accepted Order, Taronga Almonds will accept return of the products provided that the Customer arranges and pays for freight of the products to Taronga Almonds.
- Where the Customer otherwise wishes to return any products, it is at Taronga Almonds’ discretion as to whether it will accept return of such products.
- Notwithstanding the other parts of this clause 6, where the Customer is in default under the Contract, then Taronga Almonds shall be entitled to suspend the performance of its obligations under the Contract or terminate the Contract by providing written notice to that effect to the Customer.
- Overdue Payments
Interest accrues daily on all amounts overdue for payment from the day immediately following the relevant due date up to the date of actual payment. The rate of interest is a rate equal to 1.5% per month calculated on a daily basis.
Title and Risk
- Risk in the products passes from Taronga Almonds to the Customer on delivery.
- Ownership in, and title to, the products remains with Taronga Almonds and does not pass to the Customer until the later of:
- delivery of the products to the Customer; and
Taronga Almonds receiving full payment of the price for those products and any amount payable to Taronga Almonds under clause 7.
- The Customer irrevocably authorises and licences Taronga Almonds to enter onto any premises at which the products are stored to re-take possession of the products where the Customer has not paid the price for the products at the time that payment is due.
Changes to Products
- All samples, drawings, descriptions, illustrations and advertising provided, issued or published by Taronga Almonds are for the sole purpose of giving an approximate idea of the products represented by or described in them. They do not form part of the Contract.
- Taronga Almonds may make any changes to the products or their packaging provided such changes do not detrimentally affect the quality of the products.
- If Taronga Almonds’ performance of its obligations under the Contract is affected by Force Majeure it will advise the Customer, specifying the nature and extent of the Force Majeure and use reasonable endeavours minimise the impact of the Force Majeure.
- If a Force Majeure continues for more than 90 days, either party may terminate the Contract without liability to the other party by providing the other party with written notice to that effect.
- Where the Contract is terminated under clause 2, Taronga Almonds will refund any price which has been paid by the Customer for the products.
- The Customer acknowledges that:
- the products are perishable and are required to be consumed within a reasonable time of delivery;
- the products should be stored in a dark, dry location at less than 10 degrees and with less than 65% humidity in order to preserve the products and ensure they do not prematurely perish; and
the Customer is solely responsible for ensuring appropriate storage of the products.
- Where the Customer demonstrates to the reasonable satisfaction of Taronga Almonds that products delivered by Taronga Almonds had perished or were otherwise damaged or defective at the time of delivery (Defect), Taronga Almonds will, at its option, replace such products at no charge to the Customer or refund the price to the Customer. However, Taronga Almonds will be under no obligation to replace the products or refund the price where:
- the Customer fails to notify Taronga Almonds of such Defect within a reasonable time of delivery;
- the Defect is attributable to any improper handling or storage of the products after delivery; or
any instructions as to storage of the products have not been complied with.
- Taronga Almonds’ obligation in clause 2 is subject to the products being returned to Taronga Almonds at the Customer’s cost.
- Any products which have been replaced will belong to Taronga Almonds.
- To the extent permitted by law, any warranties, guarantees or terms which are not expressly stated or referenced in these Terms of Sale are excluded. Where any warranties, guarantees or terms are implied by law and are unable to be excluded (including any such warranties, guarantees or terms under the Competition and Consumer Act 2010 (Cth)), then Taronga Almonds’ liability in respect any such warranties, guarantees or terms shall be limited to replacing or re-supplying the products or refunding the price.
Insurance and Liability
- Taronga Almonds will hold public and products liability insurance for at least A$20,000,000.
- The parties agree that in no circumstances is either party liable for any Consequential Loss in connection with the Contract or the supply of the products, irrespective of how such Consequential Loss arises, including whether through breach of contract, tort (including negligence), under an indemnity, under statue or under any other cause of action.
- Any liability of Taronga Almonds in respect of a failure to supply products in accordance with the Contract shall be limited to Taronga Almonds (at Taronga Almonds’ option):
- replacing or re-supplying the products; or
refunding the price to the Customer.
- Any other liability of Taronga Almonds under the Contract which is unable to be excluded is limited in the aggregate to the higher of:
- the amount recoverable under Taronga Almonds’ public and products liability insurance; and
- the price received by Taronga Almonds from the Customer.
- All disputes between the parties in connection with the Contract, including any disputes relating to or following termination of the Contract, are subject to the provisions of this clause 13.
- If a party considers that a dispute exists in connection with the Contract, that party may give the other party written notice detailing the nature of the dispute (Notice of Dispute).
- Upon receipt of a Notice of Dispute, the Chief Executive Officer of Taronga Almonds and the Customer (or where the Customer is a corporation, the Chief Executive Officer of the Customer) must meet within 10 business days (or such other time as may be agreed) and use their best efforts to resolve the dispute.
- If the meeting referred to in clause 3 does not result in written agreement between the parties resolving of the dispute, then:
- if the dispute relates to an amount which is less than $40,000, each party may take whatever action they think fit toward a resolution of the dispute; or
if the dispute relates to an amount which is equal to or greater than $40,000, the parties shall refer the dispute to Resolution Institute (ACN 008 651 232) of Level 2, 13-15 Bridge Street, Sydney NSW 2000 for facilitation of a mediation in accordance with Resolution Institute's Mediation Rules.
- The parties agree that any mediation is to be held in Adelaide, South Australia.
- The parties must co-operate with Resolution Institute as facilitator.
- If within 10 business days after referral of the dispute to Resolution Institute the parties have not agreed upon the mediator or other relevant particular the mediator and any other relevant particular will be determined in accordance with Resolution Institute’s Mediation Rules.
- The parties agree that before a party may commence court or arbitration proceedings (other than for urgent interlocutory relief), that party must have complied with the requirements of this clause 13.
- This clause 13 will remain operative after the Contract has been performed and notwithstanding its termination.
If any part of these Terms of Sale is unenforceable, it shall be severed from these Terms of Sale and the remaining parts shall continue to apply.
- Governing Law
The Contract is governed by the laws of South Australia. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction in South Australia.
- Any notice under these Terms of Sale must be:
- in writing and addressed to the physical address or e-mail address of the recipient; and
delivered personally, sent by e-mail or posted and will be deemed to be received in the case of:
- personal delivery, when delivered;
- e-mail, at the time shown in the delivery confirmation report generated by the sender's e-mail system or if no such delivery confirmation report is received by the sender within 12 hours of the time the e-mail is sent, unless the sender receives a return e-mail notification that the e-mail was not delivered, undeliverable or similar; and
- post, 2 business days after it is posted, except where the time of dispatch is after 4:00 pm on a business day in which case the notice will be deemed not to have been sent until the next business day.