Terms of Trade for PRODUCTS
PART A - INTRODUCTION
1. Terms of Trade for PRODUCTS
1.1 THIS TERMS OF TRADE FOR PRODUCTS (the “Terms of Trade”) creates an understanding between Australian Dairy Industries Pty Ltd (ACN: 138 940 422) of Unit 2/35 Logistics Street, Keilor Park, Victoria, AUSTRALIA 3042 (the “SELLER”) and YOU (the “BUYER”) concerning the supply of PRODUCTS, namely aPLUS+ TM Baby food, Beverages made from milk and Beverages consisting principally of milk, (the “PRODUCTS”). THEREFORE, for good and valuable consideration, and to be legally bound, the BUYER of the PRODUCTS agrees with these Terms of Trade.
1.2 This Terms of Trade is for the sale of PRODUCTS using a website identified as www.australiandairyindustries.com.au.
1.3 The Terms of Trade is an Electronic Agreement expressly recognised by common law and the Electronic Transactions (Victoria) Act 2000 (Vic) s 13, s 13A and s 13B.
1.4 The BUYER agrees that they have read, they understand, and they agree to the Terms of Trade, by digitally acknowledging these terms. The digital acknowledgement is by way of Clickwrap, that is, by clicking on the appropriate tick-box I AGREE. By clicking, I AGREE it will record the time and date acknowledged by the BUYER.
PART A - INTRODUCTION
2. Website Purchase Services
2.1 Welcome to www.australiandairyindustries.com.au (the 'Website'). The Website provides you with an opportunity to browse and purchase the PRODUCTS that have been listed for sale through the Website. The Website provides this service by way of granting you access to the content on the Website (the 'Purchase Services').
2.2 The Website is operated by Australian Dairy Industries Pty Ltd (ACN 138 940 422). Access to and use of the Website, or any of its associated PRODUCTS is provided by Australian Dairy Industries Pty Ltd.
2.3 Australian Dairy Industries Pty Ltd reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Australian Dairy Industries Pty Ltd updates the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication.
3. Registration to use the Purchase Services
3.1 In order to access the Purchase Services, you must first register as a user of the Website. As part of the registration process, or as part of your continued use of the Purchase Services, you may be required to provide personal information about yourself (such as identification or contact details), including:
(a) Email address
(b) Preferred username
3.2 You warrant that any information you give to Australian Dairy Industries Pty Ltd in the course of completing the registration process will always be accurate, correct and up to date.
3.3 Once you have completed the registration process, you will be a registered BUYER on the Website and agree to be bound by the Terms. As a BUYER you will be granted immediate access to the Purchase Services.
3.4 You may not use the Purchase Services and may not accept the Terms if you are not of legal age to form a binding contract with Australian Dairy Industries Pty Ltd.
4. Your obligations as a BUYER
4.1 As a BUYER, you agree to comply with the following. The SELLER will use the Purchase Services only for purposes that are permitted by:
(i) the Terms;
(ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
(iii) you have the sole responsibility for protecting the confidentiality of your password and/or email address.
Use of your password by any other person may result in the immediate cancellation of the Purchase Services;
(iv) any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Australian Dairy Industries Pty Ltd of any unauthorised use of your password or email address or any breach of security of which you have become aware;
(v) access and use of the Website is limited, non-transferable and allows for the sole use of the Website by you for the purposes of Australian Dairy Industries Pty Ltd providing the Purchase Services;
(vi) you will not use the Purchase Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of BUYERs by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website; and
(vii) you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Website without notice and may result in termination of the Purchase Services.
Appropriate legal action will be taken by Australian Dairy Industries Pty Ltd for any illegal or unauthorised use of the Website.
PART C – OPERATIVE PROVISIONS
5. Agreement to buy & sell
5.1 The BUYER wishes to buy PRODUCTS from the SELLER by orders placed from time to time.
5.2 The SELLER has agreed to sell and the BUYER has agreed to buy PRODUCTS on the terms and conditions set out in this agreement.
6. Packing of orders
6.1 The SELLER must ensure each order is safely and securely packed for transportation to the BUYER having regard to:
(a) the fragility and perishability of the PRODUCTS;
(b) the distance the PRODUCTS are likely to travel; and
(c) the method of transportation used to transport the PRODUCTS.
7. Passing of risk
Risk in each order passes to the BUYER upon delivery of that order to the BUYER or collection of that order by the BUYER's agent or courier as the case may be.
8. Invoicing and payment
The amount payable by the BUYER will be the amount set out in the invoice generated by the website.
9. Exclusions and limitation of liability
9.1 All information (including specifications) provided by the BUYER to the SELLER are subject to guarantees under the Australian Consumer Law. Small deviations or slight variations which do not substantially affect the use of the PRODUCTS will not entitle the BUYER to reject the PRODUCTS upon delivery or to make any claim in respect of them.
9.2 Under no circumstances is the SELLER liable or responsible in any way to the BUYER, or any other person, for any loss of profits or loss of revenue as a result, direct or indirect of any defect, deficiency or discrepancy in the PRODUCTS.
9.3 Any advice, recommendation or information given by the SELLER about the PRODUCTS, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. The SELLER does not accept any liability or responsibility for any loss suffered as a result of the BUYERS reliance on such advice, recommendation or information.
9.4 To the fullest extent permissible at law, the SELLER is not liable for any direct, indirect, punitive, incidental, special, or consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide the PRODUCTS, or otherwise arising out of the provision of the PRODUCTS, whether based on the Terms of Trade, negligence, strict liability or otherwise.
9.5 The Australian Consumer Law may give to the BUYER certain guarantees. Where liability for breach of any such guarantee can be limited, the SELLERS liability (if any) arising from any breach of those guarantees is limited concerning the supply of the PRODUCTS, to the replacement of the PRODUCTS or the cost of resupply or replacement of the PRODUCTS.
10. Indemnity
10.1 The BUYER indemnifies and keeps indemnified the SELLER, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the BUYER) against the SELLER or, for which the SELLER is liable, in connection with any loss arising from or incidental to the provision of the PRODUCTS.
10.2 This includes, but is not limited to, any legal costs incurred by the SELLER about meeting any claim or demand of any legal costs for which the SELLER is liable in connection with any such claim or demand.
11. Dispute resolution
11.1 If a dispute arises between the BUYER and the SELLER, the following procedure applies:
(a) A party must give the other party a notice of the dispute and the dispute must be dealt with by the procedure set out in this clause.
(b) A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution under this clause.
(c) A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this clause.
11.2 Any dispute, controversy or claim arising out of, relating to or in connection with this Terms of Trade, including any question regarding its existence, validity or termination, will be resolved by arbitration. The seat of arbitration will be in Melbourne, Australia, and the number of arbitrators shall be one.
11.3 Notwithstanding the existence of a dispute each party must continue to perform its obligations under these Terms of Trade.
11.4 The parties must hold confidential unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement according to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to resolve the dispute between the parties.
PART D - GENERAL PROVISIONS
5. Agreement to buy & sell
5.1 The BUYER wishes to buy PRODUCTS from the SELLER by orders placed from time to time.
5.2 The SELLER has agreed to sell and the BUYER has agreed to buy PRODUCTS on the terms and conditions set out in this agreement.
6. Packing of orders
6.1 The SELLER must ensure each order is safely and securely packed for transportation to the BUYER having regard to:
(a) the fragility and perishability of the PRODUCTS;
(b) the distance the PRODUCTS are likely to travel; and
(c) the method of transportation used to transport the PRODUCTS.
7. Passing of risk
Risk in each order passes to the BUYER upon delivery of that order to the BUYER or collection of that order by the BUYER's agent or courier as the case may be.
8. Invoicing and payment
The amount payable by the BUYER will be the amount set out in the invoice generated by the website.
9. Exclusions and limitation of liability
9.1 All information (including specifications) provided by the BUYER to the SELLER are subject to guarantees under the Australian Consumer Law. Small deviations or slight variations which do not substantially affect the use of the PRODUCTS will not entitle the BUYER to reject the PRODUCTS upon delivery or to make any claim in respect of them.
9.2 Under no circumstances is the SELLER liable or responsible in any way to the BUYER, or any other person, for any loss of profits or loss of revenue as a result, direct or indirect of any defect, deficiency or discrepancy in the PRODUCTS.
9.3 Any advice, recommendation or information given by the SELLER about the PRODUCTS, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. The SELLER does not accept any liability or responsibility for any loss suffered as a result of the BUYERS reliance on such advice, recommendation or information.
9.4 To the fullest extent permissible at law, the SELLER is not liable for any direct, indirect, punitive, incidental, special, or consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide the PRODUCTS, or otherwise arising out of the provision of the PRODUCTS, whether based on the Terms of Trade, negligence, strict liability or otherwise.
9.5 The Australian Consumer Law may give to the BUYER certain guarantees. Where liability for breach of any such guarantee can be limited, the SELLERS liability (if any) arising from any breach of those guarantees is limited concerning the supply of the PRODUCTS, to the replacement of the PRODUCTS or the cost of resupply or replacement of the PRODUCTS.
10. Indemnity
10.1 The BUYER indemnifies and keeps indemnified the SELLER, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the BUYER) against the SELLER or, for which the SELLER is liable, in connection with any loss arising from or incidental to the provision of the PRODUCTS.
10.2 This includes, but is not limited to, any legal costs incurred by the SELLER about meeting any claim or demand of any legal costs for which the SELLER is liable in connection with any such claim or demand.
11. Dispute resolution
11.1 If a dispute arises between the BUYER and the SELLER, the following procedure applies:
(a) A party must give the other party a notice of the dispute and the dispute must be dealt with by the procedure set out in this clause.
(b) A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution under this clause.
(c) A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this clause.
11.2 Any dispute, controversy or claim arising out of, relating to or in connection with this Terms of Trade, including any question regarding its existence, validity or termination, will be resolved by arbitration. The seat of arbitration will be in Melbourne, Australia, and the number of arbitrators shall be one.
11.3 Notwithstanding the existence of a dispute each party must continue to perform its obligations under these Terms of Trade.
11.4 The parties must hold confidential unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement according to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to resolve the dispute between the parties.
PART D - GENERAL PROVISIONS
5. Agreement to buy & sell
5.1 The BUYER wishes to buy PRODUCTS from the SELLER by orders placed from time to time.
5.2 The SELLER has agreed to sell and the BUYER has agreed to buy PRODUCTS on the terms and conditions set out in this agreement.
6. Packing of orders
6.1 The SELLER must ensure each order is safely and securely packed for transportation to the BUYER having regard to:
(a) the fragility and perishability of the PRODUCTS;
(b) the distance the PRODUCTS are likely to travel; and
(c) the method of transportation used to transport the PRODUCTS.
7. Passing of risk
Risk in each order passes to the BUYER upon delivery of that order to the BUYER or collection of that order by the BUYER's agent or courier as the case may be.
8. Invoicing and payment
The amount payable by the BUYER will be the amount set out in the invoice generated by the website.
9. Exclusions and limitation of liability
9.1 All information (including specifications) provided by the BUYER to the SELLER are subject to guarantees under the Australian Consumer Law. Small deviations or slight variations which do not substantially affect the use of the PRODUCTS will not entitle the BUYER to reject the PRODUCTS upon delivery or to make any claim in respect of them.
9.2 Under no circumstances is the SELLER liable or responsible in any way to the BUYER, or any other person, for any loss of profits or loss of revenue as a result, direct or indirect of any defect, deficiency or discrepancy in the PRODUCTS.
9.3 Any advice, recommendation or information given by the SELLER about the PRODUCTS, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. The SELLER does not accept any liability or responsibility for any loss suffered as a result of the BUYERS reliance on such advice, recommendation or information.
9.4 To the fullest extent permissible at law, the SELLER is not liable for any direct, indirect, punitive, incidental, special, or consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide the PRODUCTS, or otherwise arising out of the provision of the PRODUCTS, whether based on the Terms of Trade, negligence, strict liability or otherwise.
9.5 The Australian Consumer Law may give to the BUYER certain guarantees. Where liability for breach of any such guarantee can be limited, the SELLERS liability (if any) arising from any breach of those guarantees is limited concerning the supply of the PRODUCTS, to the replacement of the PRODUCTS or the cost of resupply or replacement of the PRODUCTS.
10. Indemnity
10.1 The BUYER indemnifies and keeps indemnified the SELLER, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the BUYER) against the SELLER or, for which the SELLER is liable, in connection with any loss arising from or incidental to the provision of the PRODUCTS.
10.2 This includes, but is not limited to, any legal costs incurred by the SELLER about meeting any claim or demand of any legal costs for which the SELLER is liable in connection with any such claim or demand.
11. Dispute resolution
11.1 If a dispute arises between the BUYER and the SELLER, the following procedure applies:
(a) A party must give the other party a notice of the dispute and the dispute must be dealt with by the procedure set out in this clause.
(b) A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution under this clause.
(c) A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this clause.
11.2 Any dispute, controversy or claim arising out of, relating to or in connection with this Terms of Trade, including any question regarding its existence, validity or termination, will be resolved by arbitration. The seat of arbitration will be in Melbourne, Australia, and the number of arbitrators shall be one.
11.3 Notwithstanding the existence of a dispute each party must continue to perform its obligations under these Terms of Trade.
11.4 The parties must hold confidential unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement according to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to resolve the dispute between the parties.