Terms and Conditions of Sale
|ACL||The Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).|
|Buyer||The person/s purchasing the Products from Flavour Creations as specified in any proposal, quotation, Order, invoice or other documentation.|
|Flavour Creations||Flavour Creations Pty Ltd (ABN 73 078 198 320).|
|GST||Goods and Services Tax as defined within the A New Tax System (Goods and Services Tax) Act 1999 (Cth).|
|Order||An order for Products submitted by a Buyer, either via the Website, directly to Flavour Creations or otherwise.|
|Products||All products or services supplied by Flavour Creations to the Buyer at the Buyer’s request from time to time and which are as described in an Order, invoice, or any other forms as provided by Flavour Creations to the Buyer.|
|Terms||These terms and conditions.|
|Website||www.flavourcreations.com.au and any other websites on which these Terms appear.|
1 TERMS AND CONDITIONS OF SALE
1.1 These terms and conditions apply to the sale of Products by Flavour Creations to the Buyer. Flavour Creations may vary these Terms from time-to-time. The most recent version of these Terms that appear on the Website, or which is otherwise notified to the Buyer, will apply to any future Orders submitted by the Buyer.
1.2 These terms prevail over any terms in any document of the Buyer and contain the entire agreement between the parties. If the Buyer places an Order, accepts delivery of Products, makes any payments to Flavour Creations or performs any of these Terms, the Buyer is taken to have accepted these Terms.
1.3 If Flavour Creations and the Buyer have entered into a State Government contract, clause 1.2 does not apply and the terms of that contract prevail over the terms of this document.
2 PRICE AND GST
2.1 Prices quoted by Flavour Creations are those current at the date of issue of quotation. A price quotation is not an offer by Flavour Creations. Flavour Creations may alter prices without notice before Flavour Creations accepts the Buyer’s Order in accordance with clause 3.
2.2 All prices quoted by Flavour Creations are in Australian dollars and exclude GST unless otherwise stated. The Buyer must pay GST at the same time the Buyer pays the Price (under clause 5).
2.3 All prices quoted include standard packing for delivery within Australia, but do not include delivery charges which must be paid by the Buyer in addition to the price for the Products.
3.1 Orders for Products must be in units of measure as reflected in the Flavour Creations catalogue. The Buyer may place an Order with Flavour Creations in form required by Flavour Creations from time to time. Flavour Creations may accept or reject an Order in its sole discretion. Once Flavour Creations does accept an Order the Buyer must purchase the Products contemplated by the Order for the price notified by Flavour Creations, together with any additional delivery or other charges.
3.2 Orders for Products which are temporarily out of stock will be placed on backorder unless the Buyer has expressed in writing otherwise.
3.3 Flavour Creations reserves the right to change the prices at any time prior to acceptance of the Order by Flavour Creations. In the event of a variation of the price of the Products specified in an Order, the Buyer will be notified and must confirm its acceptance of such variation to proceed with the Order. If the Buyer does not accept such variation, Flavour Creations will not be obliged to complete the Order.
3.4 Flavour Creations aims to include up-to-date pictures and/or descriptions of all Products available for purchase. However, any pictures and/or descriptions of the Products may differ from the actual Products and the Buyer acknowledges that images are for illustration purposes only.
4.1 The Buyer must pay all delivery charges at the time of payment in accordance with clause 5. Flavour Creations will use reasonable endeavours to despatch available Products ordered for immediate delivery no later than two business days after receipt of the Order.
4.2 Any delivery time Flavour Creations gives the Buyer is only an estimate. Flavour Creations is not liable to the Buyer for any loss or damage (including consequential loss or damage) arising from late delivery.
4.3 The Buyer must still accept and pay for the Products even if Flavour Creations delivers after the indicated date or time, which are given as a guide only.
4.4 Products will be delivered during Flavour Creations’ normal business hours. If Flavour Creations agrees to deliver Products outside these normal business hours, Flavour Creations may impose an additional delivery charge.
4.5 The Products will be delivered using methods and carriers selected by Flavour Creations. If the Buyer requests other arrangements, the Products will be transported at the Buyer’s additional cost
a) the Buyer does not take delivery when the Products are ready; or
b) the Buyer orders the Products for collection and does not collect then within 10 business days after the specified collection date, Flavour Creations is entitled to store the Products (or deliver them to one of the Buyer’s addresses) without liability and at the Buyer’s cost and risk. In the event that the Buyer is unable to take delivery of the Products as arranged, Flavour Creations shall be entitled to charge a reasonable fee for redelivery.
5.1 The purchase price for the Products together with any delivery charges will be invoiced to the Buyer prior to dispatch by Flavour Creations, unless otherwise agreed between the parties.
5.2 The Buyer must make payment of the relevant invoice to Flavour Creations for an Order before the Products comprising that Order are dispatched from Flavour Creations’ warehouse.
5.3 If the Buyer has a credit account with Flavour Creations, the Buyer must pay all invoices in full (without set-off or deduction, including for any claims for credit) by the due date for payment as specified on the relevant invoice, or if no due date for payment is specified, within 30 days after the date of the invoice.
5.4 If the Buyer fails to pay an amount by the time required for payment:
a) Flavour Creations may charge interest on the overdue amounts calculated daily at 2% per annum above the maximum overdraft rate charged by Flavour Creations’ bankers;
b) Flavour Creations may cancel or suspend further delivery of Products to the Buyer until full payment of all money due from the Buyer to Flavour Creations; and
c) if applicable Flavour Creations may vary or withdraw the Buyer’s credit account at its discretion.
5.5 The Buyer must pay all expenses incurred by Flavour Creations in the recovery of overdue amounts.
5.6 Payments can be made either directly to Flavour Creations through the direct payment options made available by Flavour Creations, or through a third party payment system, such as Stripe, PayPal or Afterpay, as accepted by Flavour Creations from time-to-time. If you are paying by a third party payment system, you must abide by any terms and conditions applicable to the use of such payment systems.
5.7. The Buyer shall indemnify Flavour Creations from and against all costs and disbursements incurred by Flavour Creations in recovering any debt owed by the Buyer (including but not limited to internal administration fees, legal costs and bank dishonour fees).
6 RISK AND TITLE
6.1 Risk in the Products passes to the Buyer at the time of delivery to the Buyer, its carrier or agent. Title to and property in the Products does not pass from Flavour Creations to the Buyer until the Buyer pays in full all monies owing to Flavour Creations.
6.2 Until title to a Product passes to the Buyer:
a) the Buyer must hold the Product as fiduciary and bailee for Flavour Creations and store the Product properly and separately as to be identifiable as the property of Flavour Creations;
b) the Buyer must fully insure the Product against loss or damage, ensuring that Flavour Creations’ interest as owner is noted on the policy;
c) if the Buyer does not pay an invoice by the due date, Flavour Creations is entitled to enter any premises occupied by the Buyer and repossess the Product; and
d) the Buyer may only sell the Product as fiduciary (but not agent) of Flavour Creations, in the ordinary course of the Buyer’s business and must:
i) hold all proceeds separately in trust for Flavour Creations and account to Flavour Creations for the proceeds; and
ii) assign to Flavour Creations any book debt or claim against the third party acquirer of the Product for the proceeds.
7 CLAIMS AND RETURNS
7.1 Within 7 days after delivery of any Product, the Buyer must notify Flavour Creations if any Product has been damaged or spoilt before delivery, has been incorrectly sent, has been short delivered or has been incorrectly invoiced (a Product Claim).
7.2 Where a Product Claim is being made by the Buyer for items damaged prior to delivery, photographic evidence must be provided by the Buyer before Flavour Creations will consider acceptance of the Product Claim. In the event that photographic evidence can not be provided, acceptance of the Product Claim is at Flavour Creations absolute discretion.
If Flavour Creations does accept a Product Claim, it will either (at its discretion unless required by law), replace the Products the subject of the claim with similar or equivalent products, paying the cost of replacing the Products the subject of the Product Claim or reissuing the invoice so that it correctly reflects the Products delivered. Subject to clause 11.3, the Buyer has no other remedy in the event of a Product Claim.
7.3 Flavour Creations may, in its absolute discretion, (but is not obliged to) accept returns of products which the Buyer has incorrectly ordered (a Product Credit), provided that the Buyer requests the Product Credit within 7 days after delivery of the Product.
If Flavour Creations accepts a Product Credit, Flavour Creations will charge the Buyer a restocking fee equal to the higher of $25 or 10% of the price of the returned items.
7.4 Products being returned must comply with the following conditions:
a) They must be returned using a carrier nominated by Flavour Creations, at the cost of the Buyer.
b) They must be unopened, in their unit of measure and in their original manufacturer’s packaging which has not been marked, defaced, damaged or interfered with in any way (other than prior to delivery to the Buyer).
c) They must be returned with a Flavour Creations credit returns advice (which can be obtained from Flavour Creations by calling +61 7 3373 3000) duly completed and signed by the Buyer which:
i) itemises the Products being returned and explains the reasons for return;
ii) confirms that the Products have been stored at all times according to the label conditions and other applicable requirements imposed by law, regulation or recommendation by Flavour Creation; and
iii) attaches a copy of the original signed and dated invoice for the returned Products.
7.5 Products returned without the prior consent of Flavour Creations may be returned to the Buyer at the Buyer’s cost.
8 COMPLIANCE WITH LAWS, REQUIREMENTS AND GUIDELINES
8.1 The Buyer must hold all necessary licences and comply with all law and product manufacturer requirements relating to the purchase, storage, sale, marking or use of the Products, including complying with all relevant adverse event reporting requirements, Therapeutic Goods Administration regulations and guidelines and information issued by product manufacturers from time to time.
8.2 If the Buyer is directed to assist in any suspension of supply or recall of Products for any reason by Flavour Creations, the Therapeutic Goods Administration or a health authority, the Buyer will cooperate and comply with all such reasonable directions to ensure the most effective response to the suspension or recall. To the extent that Flavour Creations is entitled to recover the costs of the suspension or recall from the relevant product manufacturer or supplier, Flavour Creations will reimburse to the Buyer any reasonable and necessary costs incurred by the Buyer in connection with the suspension or recall.
9 PRODUCT ADVICE AND USAGE
9.1 Any description of Products used by Flavour Creations is for identification purposes only and not a description with which the Products must comply.
9.2 The Buyer acknowledges and agrees that any representation or advice given by or on behalf of Flavour Creations (or any of its employees or agents) in respect of the operation or use of a Product is offered for information purposes only and should not be relied upon. Flavour Creations assumes no obligation or liability whatsoever in respect of any such representation or advice.
9.3 The Buyer acknowledges and agrees that it is responsible for advising its customers or patients about the operation, application, appropriateness and use of the Products.
10 PRODUCT WARRANTIES
10.1 Flavour Creations will use reasonable endeavours to enforce, at the cost and for the benefit of the Buyer, any product warranties, guarantees and representations made to Flavour Creations by manufacturers and suppliers of Products sold by Flavour Creations to the Buyer.
10.2 Implied warranties and conditions as to the quality or fitness of the Products or as to the accuracy of information, advice or other services concerning the Products are expressly excluded to the maximum extent allowed by law.
11 LIMITATION OF LIABILITY
11.1 Subject to clauses 11.2 and 11.3, any liability of Flavour Creations for any loss or damage, however caused (including by the negligence of Flavour Creations), suffered by the Buyer in connection with a Product is limited to the monetary amount paid by the Buyer to Flavour Creations for that Product.
11.2 Subject to clause 11.3, Flavour Creations is not liable for any consequential loss however caused (including by the negligence of Flavour Creations), suffered or incurred by the Buyer in connection with a Product
11.3 Flavour Creations’ Products come with guarantees that cannot be excluded under the ACL. If the Buyer is a ‘consumer’ within the meaning of the ACL, the Buyer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Buyer is also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure.
11.4 Notwithstanding the above, but subject always to the requirements of the ACL, Flavour Creations shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
- a) the Buyer failing to properly maintain or store any Products;
- b) the Buyer using the Products for any purpose other than that for which they were designed;
- c) the Buyer continuing to use any of the Products after any defect became apparent or should have become apparent to a reasonably prudent user;
- d) the Buyer failing to follow any instructions or guidelines provided by Flavour Creations; and
- e) damage to the Products from any accident, alteration or misuse of the Product after delivery.
11.5 The Buyer indemnifies Flavour Creations for all liabilities, losses, damages, costs or expenses suffered or incurred by Flavour Creations as a result of any third party claim made against Flavour Creations in connection with the Buyer:
a) cancelling any Order or part of any Order other than in accordance with these Terms; b) unloading, storing or handling the Products; c) failing to comply with any manufacturer instructions regarding the Products or with any laws relating to the storage, handling, sale, marking or use of the Products; d) making, or allowing to be made, any statement in respect of the operation, application, appropriateness and use of the Products to a third party other than with the prior authorisation of Flavour Creations; or
e) breaching any of the Buyer’s obligations under these terms and conditions of sale.
11.6 Nothing in these Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of the ACL or any other State or Federal legislation applicable to the sale of goods or services, which cannot be so excluded, restricted or modified.
12 FORCE MAJEURE
12.1 Flavour Creations is not liable to the Buyer for any failure to comply with this document if the failure (directly or indirectly) arises out of any circumstances which are not within Flavour Creations’ reasonable control (including, for example, an act of war or terrorism, natural disaster, industrial action or failure of a supplier, public utility or common carrier) (a Force Majeure Event).
12.2 If a Force Majeure Event occurs, Flavour Creations’ obligations under these terms and conditions of sale are suspended to the extent they are affected by the relevant event as long as the event continues. Neither Flavour Creations nor the Buyer may terminate these Terms as a consequence of any Force Majeure Event.
13 CANCELLATION AND TERMINATION
13.1 The Buyer may not cancel any Order once lodged with Flavour Creations, unless Flavour Creations, in its absolute discretion, agrees otherwise. Flavour Creations will not agree to any cancellation unless the Buyer compensates Flavour Creations against all loss or damage arising from the cancellation.
13.2 Flavour Creations reserves the right to accept or decline in whole or in part any Order. Flavour Creations may discontinue supply of any Product without notice, unless otherwise required by legislation.
13.3 Flavour Creations may cancel any Order and terminate these Terms if:
a) any invoice due is unpaid;
b) the Buyer becomes or threatens to become insolvent or Flavour Creations obtains an unfavourable credit report on the Buyer’s financial standing, in which case, the Buyer must indemnify Flavour Creations for any costs and expenses incurred prior to cancellation and must pay any reasonable cancellation charges fixed by Flavour Creations. In these circumstances, Flavour Creations may require the Buyer to provide prepayments or other security as a condition of Flavour Creations resuming delivery of Products to the Buyer.
13.4 The Buyer has no claim against Flavour Creations for any damage, loss, cost or expense arising from any cancellation by Flavour Creations.
15.1 No conduct of Flavour Creations (including a failure to exercise, or delay in exercising, a right) operates as a waiver of a right of Flavour Creations or otherwise prejudices or prevents the exercise of a right of Flavour Creations.
15.2 The Buyer may only assign, dispose of or otherwise create an interest in its rights under these Terms with the consent of Flavour Creations. Flavour Creations may assign its rights under these Terms without the consent of the Buyer. Flavour Creations may elect to subcontract out any of its obligations but shall not be relieved from any liability or obligation under these Terms by so doing.
15.3 Any provision of these Terms which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make these Terms enforceable, unless this would materially change the intended effect of this document.
15.4 These Terms are governed by the law in force in Queensland, Australia and the parties agree to submit to the non-exclusive jurisdiction of the courts of Queensland, the Federal Court of Australia, and all other courts entitled to hear appeals from those courts.
15.5 These Terms represent that parties’ entire agreement, and supersedes all prior representations, communications, agreements, statements, conduct and understandings, whether oral or in writing, relating to its subject matter.