TERMS AND CONDITIONS OF SALE
Thank you for purchasing our Products!
1.1 All purchases made through our website are governed by these Terms and Conditions. These Terms and Conditions replace any previous or contemporaneous agreements or terms and conditions of sale or negotiation, understanding or communication (whether written or oral) in relation to the supply of Products.
1.2 Unless otherwise agreed in writing by us, any terms and conditions of your order deviating from or inconsistent with these Terms and Conditions are expressly rejected by us. Any variations to these Terms and Conditions not expressly agreed to in writing by us are expressly rejected by us.
1.3 Particulars in leaflets, catalogues, drawings, brochures and other printed material are illustrations only and form no part of these Terms and Conditions between the parties, nor are they binding on us.
2. Quotes and orders
2.1 Before an order is placed, a quote will be displayed on the screen confirming the details of your order including the price of the Products. A quote is not to be construed as an obligation by us to sell, but merely an invitation to treat and no contractual relationship will arise until an order has been placed by you and accepted by us.
2.2 Receipt of full payment of your order by us constitutes a binding and enforceable agreement between both parties.
2.3 An order which has been accepted (in whole or in part) by us cannot be cancelled by you unless you have obtained our prior written approval, which we may refuse at our discretion.
2.4 In the event that any Products are out-of-stock or otherwise unavailable, we will notify you to offer you an alternative item or if requested a full refund.
2.5 Minimum order values or quantities may apply to particular orders from time to time. Orders below a minimum order value or quantity may incur additional service charges.
2.6 We process purchases on Business Days. If you purchase our Products on a day that is not a Business Day, we will process the purchase on the following Business Day.
2.7 We reserve the right at any time and for any reason to modify, suspend or cancel any purchase.
2.8 All clerical errors are subject to correction and will not bind us.
3. Price and payment
3.1 By completing a purchase, you agree to pay all amounts related to the purchase including any transportation, freight, postage, packaging, handling and GST, as applicable.
3.2 All amounts payable by you must be made in full in cash or cleared funds without set-off, deduction or counterclaim of any kind. All payments must be made by you in advance.
3.3 We reserve the right to vary the prices displayed on the website from time to time and without notice to you. In addition, we reserve the right to alter the contract price as a consequence of currency fluctuations, taxes, customs duty or other government imposts.
3.4 Payment may be made by cash, electronic funds transfer, direct credit or credit card. Payments made by credit card may incur a merchant handling fee which will be shown in the total purchase price payable upon checkout, if charged.
3.5 You represent and warrant that: (a) any credit card information you supply is true, correct and complete; (b) you are using your own credit card or if not you have express authority from the card holder to use this credit card; (c) charges incurred by you will be honoured by your credit card company; and (d) you will pay the charges incurred by you at the posted prices including any transportation, freight, postage, packaging, handling and GST, as applicable.
3.6 If you fail to pay any amounts outstanding to us in full in accordance with this clause, then, without prejudice to any of our other rights under these Terms and Conditions or available at law, you will be liable to pay interest on overdue amounts calculated at the rate of 1.75% per month (or part of a month) on amounts overdue, from the due date until the date full payment is received by us. We may suspend or cancel performance (including the supply/dispatch of the relevant Products) of any of our contractual obligations to you without prejudice to any of our other rights and/or we may cancel all discounts or rebates previously extended by us to you.
3.7 You will be deemed to be in default immediately if any payment to us is not made promptly on or before the due date for payment.
3.8 In the event of a default by you, then, without prejudice to any other rights which we may have at law or under these Terms and Conditions, at our election we may without notice to you: (a) enter your premises or any premises under your control for the purposes of recovering the Products; and/or (b) recover and resell the Products.
3.9 We use all reasonable commercial efforts to ensure that purchases occur in a secure environment. However, you acknowledge and accept that internet transactions carry with it inherent risks. Accordingly, we assume no Liability in respect of unauthorised interception, modification or diversion of a purchase request or access or copying of details relating to a purchase.
4. Cancellation of orders
4.1 Subject to your rights under the Australian Consumer Law, once we receive full payment of your order you may not cancel, refund and/or modify your order except with our prior written consent, which is at our discretion. In particular, we do not offer refunds in the event that you change your mind or make a wrong decision.
4.2 Notwithstanding clause 4.1, should you wish to cancel an order in whole or in part you must serve a cancellation request on us. We may accept or reject such request at our discretion.
4.3 If we accept a cancellation request served by you, we will refund any amounts paid by you less any administration fees and any other costs incurred by us up to the date that such notice is received by us. If we have incurred costs in excess of any amounts paid by you, you must on request reimburse us for all such costs.
5.1 Products will be delivered or deemed to be delivered when they are delivered to the delivery place nominated by you including to any third party’s address. If no such address is nominated, then delivery will be deemed to occur at the time when the Products are ready for collection at our premises.
5.2 You authorise us to deliver Products to the place nominated by you and to leave the Products at such place whether or not any person is present to accept them.
5.3 We will not be obliged to obtain a signed receipt or other acknowledgement from any person at the nominated place for delivery, but if a signed receipt or other acknowledgement is obtained from someone believed by us to be authorised by you to sign or otherwise take delivery, then such signed receipt or other acknowledgement will be conclusive evidence of your acceptance of the Products delivered.
5.4 Where we cannot access your address to deliver the Products, the Products will be delivered and left as close as practicable to your address. In the event that you request us to enter a property to deliver Products, then we accept no responsibility for any damage caused by us in doing so.
5.5 In the event that you enter any incorrect delivery details or instructions, we will not be obliged in any way to resend the order at our own expense. We reserve the right to make a reasonable charge for storage if correct delivery instructions are not provided by you.
5.6 You acknowledge that any time quoted to you by us for delivery of Products is an estimate only and actual delivery times may vary. We may suspend delivery or extend delivery time, in whole or in part for any reason whatsoever.
5.7 We assume no Liability in respect of any failure or delay in delivery of Products or in connection with any loss or damage to the Products during or after delivery.
5.8 If the Products ordered are not available to be delivered all at once, we may at our discretion and on our selected terms and conditions deliver such Products in instalments. In the event that delivery is arranged in instalments, these Terms and Conditions will apply to the supply of each instalment separately and independently of any other instalment. In particular, you must pay us for each instalment so supplied irrespective of the failure or delay in delivery of any other instalment.
5.9 In this clause 5, a reference to us may also be taken to include a reference to our Carrier, as the context requires.
6. Risk, title and inspection
6.1 The Products will be at your sole risk from the moment they are dispatched from our premises.
6.2 Legal and beneficial title to the Products will not pass to you until such time as the Products have been paid in full in cash or cleared funds and in accordance with these Terms and Conditions.
6.3 You undertake to examine the Products immediately upon delivery prior to their opening. You must notify us in writing of any shortfall, defect, incorrect order, incorrect delivery (or otherwise) strictly within twenty-four (24) hours of delivery. If you fail to provide such notice within such time, then the Products will be deemed to have been accepted by you in good order and condition and, subject to any rights you may have under the Australian Consumer Law, you will not be entitled to make any claim against us.
7. Returns and refunds
7.1 This clause applies where we at our discretion accept the return of Products from you. The return of Products will be assessed strictly on a case by case basis. We reserve the right to make a reasonable charge for Products accepted for return by us, which, if charged, will be deducted from the amount or credit allowed.
7.2 Notwithstanding any right you may have to return the Products to us, to the extent permitted by law, we will not accept returns in the following circumstances: (a) where the Products have been incorrectly ordered by you; (b) where the Products cannot be returned for health and/or safety reasons; (c) if the Products have been damaged or are defective as a result of your negligence in dealing with the Products or mishandling or misuse of the Products; (d) where you have purchased the Products from a wholesaler, broker or other unauthorised supplier; or (e) where you have purchased the Products from a trustee, administrator, receiver or liquidator sale or auction.
7.3 All claims by you must be made strictly within twenty-four (24) hours of delivery of the relevant Products subject to the claim.
7.4 We will not be obliged to accept Products returned by you or grant a credit for such Products unless: (a) the returned Products are accompanied by the relevant reference number designated by us (if applicable); (b) the returned Products are accompanied by our packing reference and original invoice or the original invoice number; and (c) the Products are returned unsoiled, undamaged, unopened and in the original packaging and condition in which they were delivered.
7.5 We agree to replace any Products purchased from us that are not of acceptable quality, have been erroneously described or do not otherwise meet the consumer guarantees contained in the Australian Consumer Law.
7.6 We may agree to the return of Products where incorrect Products have been received by you or where Products have been damaged in transit. In the event that Products have been damaged in transit you must notify the Carrier and us of such claim immediately upon receiving the Products.
7.7 We reserve the right to request proof of any alleged fault, defect, damage, incorrect supply (or otherwise) as a condition of any refund. You must pay all postage, delivery and freight costs when returning any Products to us.
7.8 After confirming claims when receiving the returned Products at our premises, we will endeavour to promptly resupply the item(s) or credit or refund the relevant invoice as appropriate.
7.9 Any discount or allowance (however determined) authorised by us to you in respect of the Products will be credited against the price of the Products and will represent a reduction of that price. Should any refund be payable by us to you, we will endeavour to repay such refund within thirty (30) days.
8. Confidentiality and Intellectual Property
8.1 If any Confidential Information and/or Intellectual Property is supplied to you for any purpose whatsoever, then: (a) it remains our sole and exclusive property; (b) you acquire no right or interest in or to it other than a non-exclusive, non-assignable licence at no fee to use it solely for the purposes for which it was supplied to you; (c) it must not be disclosed by you to any other person or company; and (d) none of it may be used by you in any way which might harm or prejudice our interests.
8.2 The licence referred to in clause 8.1 may be terminated immediately by us by notice in writing to you at any time with or without cause.
8.3 If the licence referred to in clause 8.1 is terminated, all Confidential Information and/or Intellectual Property must immediately be returned to us at your expense. In that event, all copies and extracts of the Confidential Information and/or Intellectual Property in your possession or control (including in electronic or written form) must also be returned to us at your expense.
9. Your warranties
9.1 You warrant that: (a) you have read and fully understand and comprehend these Terms and Conditions; (b) you have the full power and authority to enter into these Terms and Conditions; and (c) we will rely on all information given to us by you and such information is true and correct.
9.2 You further warrant that: (a) the Products are of a size, quality, nutrition, description, manufacture and material suitable to you; (b) you are fully satisfied that the Products are suitable for all your purposes; (c) in ordering the Products, you have relied entirely on your own judgement and not on any statements (written or oral) made by us or any of our Personnel; (d) all promises, warranties, and conditions express or implied by law or otherwise with respect to the Products are hereby expressly negated and extinguished to the fullest extent permitted by law; and (e) we will not be Liable to you in respect of any advice given by us or our Personnel in relation to the suitability for any particular purposes of the Products.
9.3 Where you on-sell the Products, you must not misrepresent to anyone the specifications, performance or purpose of the Products or make or give any warranties, guarantees or representations in relation to the Products whatsoever without our prior written consent.
9.4 If you carry on business as a trustee of a trust, then you warrant that: (a) you enter into these Terms and Conditions as trustee of a trust and that you will be bound by these Terms and Conditions both personally and in your capacity as trustee, irrespective of whether or not you disclose to us that you are a trustee at the time of entering into any agreement with us; (b) you have all requisite powers to enter into these Terms and Conditions on behalf of the trust; (c) the beneficiary of the trust approves the purchase of Products on these Terms and Conditions; and (d) the assets of the trust are available to us in satisfaction of any debt incurred by you and the trust has agreed to indemnify the trustee in respect of all liability incurred by the trustee pursuant to these Terms and Conditions.
10. Force Majeure and termination
10.1 If an event of Force Majeure occurs: (a) we will notify you of that event and of the extent to which we are unable to comply with our obligations under these Terms and Conditions; (b) our obligations will be suspended to the extent that we are wholly or partially precluded from complying with them; and (c) you will not be entitled to any reduction of the price of any Products nor will you be entitled to any damages, costs or expenses in connection with the Force Majeure event.
10.2 If we are unable to perform our affected obligations under these Terms and Conditions for a period of three (3) consecutive months despite our reasonable endeavours to do so, then we may terminate these Terms and Conditions. Upon such termination, the obligations of the parties will end and no party will have any Liability to or a claim against the other party in respect of such termination, other than in respect of rights and obligations which accrued prior to the notified event of Force Majeure. You will be liable to us for the payment of Products supplied up to the date of the notified event of Force Majeure.
10.3 We may immediately terminate these Terms and Conditions by written notice to you if: (a) you fail to make due and punctual payment to us of any moneys owing by you; (b) you suffer an Insolvency Event; (c) you or your Personnel engage in Wilful Misconduct; (d) you or your Personnel breach any of these Terms and Conditions; or (e) you or your Personnel offer the Products for sale through the internet on eBay or any like website without our consent.
10.4 We may at any time for our sole convenience terminate these Terms and Conditions by giving you not less than five (5) Business Days’ written notice. Termination effected by us under this clause 10.4 is without prejudice to any of our other rights and remedies and will not be deemed a breach of any of our obligations under these Terms and Conditions.
10.5 You may terminate these Terms and Conditions on giving not less than ten (10) Business Days’ written notice to us if we suffer an Insolvency Event.
10.6 If these Terms and Conditions are terminated, all monies payable by you to us will become immediately due and payable notwithstanding the due date of payment may not have expired and we may without prejudice to any other rights we may have do any or all of the following: (a) withhold any further deliveries of Products; (b) in respect of Products already delivered onto your premises, enter onto those premises and recover and resell the Products; (c) recover from you the cost of materials or products acquired for the purposes of future deliveries to you; (d) any discount, markdown, reduction or special price previously offered by us to you may be withdrawn or cancelled and the price will become our standard price; and/or (e) cease to supply Products to you.
10.7 Subject to clause 10.6, upon termination or expiry of these Terms and Conditions each party will be released and discharged from all further obligations and Liabilities under these Terms and Conditions. However, termination or expiry does not affect the rights and obligations of the parties: (a) which accrued prior to the date of termination or expiration; or (b) under any clause of these Terms and Conditions which, expressly or by implication from its nature, is intended to survive the termination or expiry.
11. Indemnity and limitation of Liability
11.1 You indemnify us and our Personnel (as a continuing obligation) from and against all Liabilities in respect of: (a) personal injury, death or disease (including mental illness) to you, your Personnel and any third parties arising in connection with the supply of Products; (b) loss of or damage to property arising in connection with the supply of Products; (c) acts or omissions by us and our Personnel; (d) acts or omissions by you and your Personnel; (e) any failure or delay in delivery of the Products, or any damage to the Products during or after delivery; and (f) the repossession or attempted repossession of the Products by us or our Personnel.
11.2 Your indemnities will not apply to and may not be relied upon by you to the extent that the Liability was caused by your Wilful Misconduct or that of your Personnel.
11.3 Our Liability is limited, to the fullest extent permitted by law and at our election, to: (a) replacing the Products or supplying equivalent Products; (b) repairing the Products; (c) paying the cost of replacing the Products or of acquiring equivalent Products; or (d) paying the cost of having the Products repaired.
11.4 To the fullest extent permitted by law, all other terms, conditions and warranties (whether implied or otherwise) not set out in these Terms and Conditions are expressly excluded and we assume no Liability in respect of the supply of Products or any possession, defect, use or disposal of the Products.
11.5 Neither party will be Liable to the other party for any Indirect Loss.
12.1 We display our stockists on our website for the purposes of providing our customers with greater access to Products. By becoming a stockiest of our Products, you acknowledge and consent that we may display your name, address and contact details on our website. If you do not consent, you must notify us in writing. We assume no Liability in respect of your information being displayed on our website.
12.2 You must immediately notify us of any variation to any of the information supplied by you to us concerning the structure or nature of your business (including without limitation conversion to or from a company or trust). If this information is not provided, and we suffer loss as a result, you agree to compensate us for an amount that is no less than the amount of loss that we suffered.
12.3 In respect of any matter or thing which must be done by you within a stipulated timeframe, time is of the essence. Accordingly, your failure to comply with such timeframe will constitute a breach by you of an essential term of these Terms and Conditions.
12.4 Any provision of these Terms and Conditions which is or becomes illegal, invalid or unenforceable is only ineffective to the extent of that illegality, invalidity or unenforceability without invalidating the remaining provisions.
12.5 A failure by us to insist upon or enforce strict performance of any part or parts of these Terms and Conditions will not constitute a waiver of any right or remedy which we may have, and is not a waiver of any existing or subsequent breach of these Terms and Conditions by you. A waiver of any right must be in writing signed by us.
12.6 We may vary these Terms and Conditions at any time and without notice to you, effective immediately upon posting on the website. Please check the website periodically, as the purchase of any Products by you after the date of such variation will be deemed to be an acceptance by you of such varied terms.
12.7 All notices and claims given by you to us must be via email to email@example.com and you must keep an electronic or printed copy of the notice sent. A notice will be taken to be duly received by us on return of a receipt produced by the system to which the email was sent which indicates that the email was sent to our email address or, where no return receipt is produced by our email system, by the end of the day the email was sent, if a Business Day and otherwise on the next Business Day. All notices given by us to your last known place of business will be deemed received by you on delivery or on the Business Day following posting, whichever is the earlier.
12.8 Nothing contained in these Terms and Conditions will be construed as creating any agency, partnership or other form of joint enterprise between the parties.
12.9 In the event of a dispute arising under or in connection with these Terms and Conditions or any agreement between the parties, the parties agree to attempt to settle the dispute amicably by engaging in good faith in a process of mediation prior to commencing any proceedings.
12.10 We may at our discretion assign, novate or otherwise dispose of or deal with our rights and obligations under these Terms and Conditions and any other applicable agreements. You may not assign, encumber or otherwise deal with any of your rights or obligations under these Terms and Conditions or any other applicable agreement without our prior written consent, which may be withheld at our discretion.
12.11 You agree that a statement in writing signed by us certifying that monies are payable by you to us will be prima facie evidence of the monies so payable.
12.12 In the interpretation of these Terms and Conditions, no rule of construction applies to the disadvantage of the party preparing these Terms and Conditions on the basis that it prepared or put forward this document or any part of it.
12.13 Your obligations under these Terms and Conditions which by their nature would continue beyond the termination or expiration of these Terms and Conditions, including but not limited to those contained in clauses 3.5, 8, 9, 11, 12, will survive any termination or expiry of these Terms and Conditions.
12.14 A reference to Australian dollars, dollars, $, A$ or AUD is a reference to the lawful currency of the Commonwealth of Australia.
12.15 A reference to a clause is a reference to a clause in these Terms and Conditions.
12.16 A singular word includes the plural and vice versa.
12.17 If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
12.18 A reference to a legislative provision or legislation (including subordinate legislation) is to that provision or legislation as amended, re-enacted or replaced and includes any subordinate legislation issued under it.
12.19 A reference to a document or agreement (including these Terms and Conditions) or a provision of a document or agreement is to that document (including these Terms and Conditions), agreement or provision as amended, supplemented, replaced or novated.
12.20 A reference to a person will be construed as references to an individual, firm, body corporate, association (whether incorporated or not), government and governmental, semi-governmental and local authority or agency.
12.21 A reference to a party to this document or to any other document or agreement includes a successor in title, permitted substitute or a permitted assign of that party.
12.22 A reference to time is to local time in Melbourne, Australia.
12.23 Headings are used for convenience only and do not affect interpretation of these Terms and Conditions.
12.24 These Terms and Conditions are governed by and construed in accordance with the laws applying in the State of Victoria, Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and the courts of appeal from them.
In these Terms and Conditions:
Australian Consumer Law means the Competition and Consumer Act 2010 (Cth);
Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Australia;
Carrier means any person or business used to deliver Products to you, whether all or part of the distance of the delivery;
Confidential Information means all information (in whatever form) relating to us and the Products including without limitation all contractual, financial, business, sales, marketing and operational information, affairs or activities of the business, customer and supplier lists and pricelists but does not include information which: (a) is or becomes public knowledge other than by breach of these Terms and Conditions; (b) is in your possession, without restriction in relation to disclosure, on or before the date on which it is disclosed to or acquired by you; or (c) has been independently developed or acquired by you;
Force Majeure means an event or circumstance which is beyond our reasonable influence and which delays or prevents performance of these Terms and Conditions by us including without limitation transport stoppages or delays, mechanical or equipment breakdown, fuel shortages, supplier shortages or delays, shortages in raw materials or stock, shortage of labour or skilled labour, lack of funds or inability to use funds, fire, flood, earthquake, severe weather, acts of God, strikes, lockouts, work stoppages, wars, riots or civil commotion, explosion or accident, intervention of public authority, restraints of trade and acts of state or government;
GST has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Indirect Loss means loss of profits, revenue, opportunity, business, goodwill, anticipated profits or savings and all other economic, special, remote, indirect, incidental and consequential loss or damage;
Insolvency Event means, in relation to any party, any of the following events: (a) that party commits an act of bankruptcy or an order is made for that party to be wound up (other than for the purpose of solvent restructuring or amalgamating); (b) a controller, liquidator or provisional liquidator, administrator or receiver or receiver and manager is appointed in respect of any material part of that party’s assets; (c) that party takes any steps such as calling a meeting of its shareholders or creditors (or both) or an application is made to a court with the aim of effecting one of the circumstances in paragraphs (a) or (b) above; or (d) any event analogous to the events listed in paragraphs (a), (b) or (c) above occurs;
Intellectual Property means Confidential Information and all intellectual property rights in any part of the world including copyright and similar rights subsisting in works or any subject matter in relation to any invention, design, discovery or product (including the Products) (including all patents and applications for patents), trade secrets, know-how and information pertaining to the manufacture of products (including the Products), rights in relation to designs (registered or unregistered), rights in relation to trademarks (registered or unregistered), names and domain names, circuit layout designs or other rights in respect of any information, process, work, material or method;
Liability means damages, claims, actions, suits, proceedings, demands, losses, liabilities, costs and expenses of any kind (including legal costs on a full indemnity basis), whether arising by way of breach of contract, tort (including negligence), equity, statute or otherwise at law;
Personnel means, in relation to a party, the officers, directors, employees, consultants, contractors, agents or representatives of that party;
Products means all goods offered for sale by Smart Diet Solutions, from time to time;
Terms and Conditions means these Terms and Conditions of Sale;
we, us, our means Smart Diet Solutions;
Wilful Misconduct means any act of fraud, fraudulent concealment or dishonesty, wanton or reckless act or omission of a party or any of its Personnel with reckless indifference to the possible harmful consequences arising from that act or omission or any illegal or malicious act or omission of a party or any of its Personnel; and
you, your means our customers, whether individuals or businesses.