By clicking the ‘I accept’ button or otherwise submitting the Order, the Customer agrees that they have read, understood and will be bound by these Terms.
1. Dictionary
In these Terms and Conditions, the words below have the following meanings:
Agreement has the meaning provided to it in clause 2.2.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.
Business Day means any day except a Saturday, Sunday or public holiday in Victoria.
Change in Control means, in relation to a party:
- the person who Controls the party at the date that party first became bound by these Terms subsequently ceases to have Control of the party;
- a person who does not Control the party at the date that the party first became bound by these Terms subsequently obtains Control of the party; or
- if the party is Controlled by a group or consortium of persons, or if the group or consortium could Control the party were they to act collectively, any material change in the composition of that group or consortium.
Company means Almo Milk Pty Ltd (ACN 604 082 117).
Confidential Information means all information disclosed by the Company to the Customer and includes these Terms and the prices of the Goods or Services but excludes information that:
- is public knowledge or becomes available to the Customer from a source other than the Company (otherwise than as a result of a breach of confidentiality by the Customer or any person to whom it has disclosed the information); or
- is rightfully known to, or in the possession or control of the Customer and not subject to an obligation of confidentiality in accordance with the terms of the Agreement.
Consequential Loss means loss beyond the normal measure of damages and includes indirect loss, loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunities.
Consumer has the meaning provided to it in section 3 of the Australian Consumer Law.
Consumer Guarantee means a guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law.
Control has the meaning given in section 50AA of the Corporations Act 2001 (Cth).
Customer means the entity or person requesting that Goods and/or Services be supplied to it by the Company.
Default Rate means the interest rate which is fixed from time to time under section 2 of the Penalty Interest Rate Act 1983 (Vic).
Delivery Fee means the delivery or freight fee set out in the Order.
Force Majeure Event means any event arising from, or attributable to, acts, events, omissions or accidents which are beyond the reasonable control of a party including any fire, failure or shortage of power supplies or raw ingredients, abnormally inclement climate or weather conditions, flood, lightning, storm, explosion, earthquake, subsidence, structural damage, epidemic or other natural physical disaster, riot, disease, civil commotion, insurrection, political instability, armed conflict, war, terrorist action, strike or other labour difficulty or shortage, unavailability of transport providers, failure or inability to obtain any licence or the threat of any of the foregoing.
Goods means the goods specified in the Order which are to be supplied by the Company to the Customer under the Agreement.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended, varied or replaced from time to time.
Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control; or the occurrence of any event that has substantially the same effect to any of the above events.
Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world, including but not limited to the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar right whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets and know how, throughout the world for the full period of the rights and all renewals and extensions.
Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss.
Order means the order submitted through the website located at www.almomilk.com.au by the Customer to the Company for the Company to supply to the Customer Goods and/or Services.
Personnel means any employee, agent, or contractor of the Company who assists the Company in the delivery of Goods and/or provision of Services under the Agreement.
PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.
Premises means the premises of the Customer where, from time to time, Goods are delivered, and/or Services are provided, by the Personnel.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Policy means the Company’s privacy policy, located at www.almomilk.com.au/privacy.
Services means the services specified in the Order which are to be supplied by the Company to the Customer under the Agreement.
Terms means these Terms and Conditions.
2. Formation of Agreement
2.1 The Customer acknowledges and agrees that by submitting the Order the Customer has made an irrevocable offer to the Company for the Company to supply it with the Goods and/or Services on the terms of these Terms and the Order (Offer).
2.2 An agreement will be formed between the Company and the Customer in respect of the Offer upon the earlier of the Company:
- notifying the Customer, either verbally or in writing, that it accepts the Customer’s Offer;
- making delivery of the Goods the subject of the Offer to the Customer; or
- performing the Services the subject of the Offer,
(Agreement).
2.3 The Agreement formed under clause 2.2 will comprise these Terms, the Order and the Invoice.
2.4 The Company is not bound to accept any Offer and may not accept any Offer for any reason and in the sole discretion of the Company.
3 Price and payment
3.1 Unless otherwise agreed by the parties, the price the Customer must pay for the Goods and/or Services under the Agreement will be:
- the price for the Goods and/or Services specified in the Order; and
- the Delivery Fee,
(Purchase Price).
3.2 The Company may invoice the Customer for the Purchase Price at any time following formation of the Agreement (Invoice).
3.3 The Customer must pay for all Goods and/or Services in full at the time the Customer places an Order. Payment must be made by the Customer using the payment methods (or Paypal or credit card) as accepted by the Company.
3.4 If the Customer pays by credit card, a credit card service fee may be payable. The Customer will be notified of the relevant credit card service fee prior to the Customer’s payment being processed.
4 Delivery of Goods and provision of Services
4.1 The Company will deliver the Goods and provide the Services to the Customer in the manner:
- determined by the Company; or
- as otherwise agreed between the Company and the Customer (including collection by the Customer).
4.2 The Company will endeavour, but is not obliged, to deliver the Goods and provide the Services in a timely manner.
4.3 In the event of the Customer returning or failing to accept any delivery of the Goods, the Company shall be entitled to payment for those Goods and to treat the obligation to supply the remainder of the Goods (if any) as cancelled by the Customer.
4.4 The Company will use its reasonable endeavours to deliver the Goods and provide the Services on any date specified or estimated by the Company or set out in the Order, however, such dates are estimates only and the Company will not, in any circumstances or for any reason (including the occurrence of a Force Majeure Event), be liable for late or part delivery of the Goods or provision of the Services and later delivery of Goods or provision of the Services does not entitle the Customer to cancel any order for the Goods or Services.
4.5 Goods which are not in stock or require configuration may take longer to deliver than other Goods.
4.6 Without limiting clause 4.4, the Company may deliver a portion of the Goods or Services and may invoice or otherwise charge the Customer for that portion. The Customer may not refuse to accept delivery of the Goods or to pay for the Goods or Services because only a portion of the quantity ordered was delivered and the Customer agrees that the Company will not be liable for any Loss that the Customer suffers as a result of any delay or cancellation.
4.7 There must be a representative of the Customer present at the delivery location at the time delivery is made of the Goods and, if no such representative is present, a redelivery fee may be charged by the Company.
5. Return of Goods
Subject to any applicable provisions of the Australian Consumer Law and clause 7, the Customer may only return Goods that are the subject of a product recall or withdrawal as may be notified by the Company to the Customer from time to time.
6. Title and risk of Goods
6.1 Title to, and property in, any Goods supplied under the Agreement remain with the Company and will only pass to the Customer once all money owing by the Customer to the Company in respect of the Agreement or any other agreement or arrangement between the Customer and the Company has been paid in full.
6.2 Risk in the Goods passes to the Customer upon the earlier of the time the Goods are collected by the Customer from the Company’s premises (or that of the Company’s supplier) or delivered to the Customer, and:
- the Customer is responsible for arranging, and taking out in its own name and its own cost, any insurance in respect of the Goods from the time risk passes to the Customer under this clause; and
- the Customer indemnifies the Company against any Loss or damage to the Goods, however caused, occurring after risk in the Goods has passed to the Customer.
6.3 In the event that the Customer is required to return any Goods to the Company, risk in the Goods passes to the Company on confirmation of receipt of the Goods by the Company.
7. Warranties and liability
7.1 If the Customer is a Consumer and the Company supplies PDH Goods or Services to the Customer, the Company acknowledges that the Customer may have certain rights under the Australian Consumer Law in respect of the Consumer Guarantees as they apply to the PDH Goods or Services supplied by the Company and nothing in these Terms should be interpreted as attempting to exclude, restrict or modify the application of any such rights.
7.2 If the Customer is a Consumer and any goods or services supplied by the Company to the Customer are non PDH Goods or Services, the Company’s liability to the Customer in connection with any breach of the Consumer Guarantees in respect of those non PDH Goods or Services is limited (at the Company’s discretion) to the cost of the Company resupplying those non PDH Goods or Services or payment of the cost of having the non PDH Goods or Services supplied again.
7.3 If:
- the Customer is not a Consumer; or
- the Australian Consumer Law does not apply,
then to the extent permitted by law, the Company expressly excludes all liability in respect of the Goods or Services supplied by the Company to the Customer.
7.4 If the Company is liable to pay damages to a Consumer under the Australian Consumer Law in relation to the supply of Goods which are non PDH Goods or Services, the Company’s liability to the Customer is limited to an amount equal to the lower of:
- the cost of replacing the Goods;
- the cost of obtaining equivalent Goods; or
- the cost of having the Goods repaired.
7.5 If the Customer makes a claim against the Company which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee, the Company expressly excludes all liability in respect of the Goods or Services supplied by the Company to the Customer.
7.6 Subject to this clause 7, the aggregate liability of the Company to the Customer arising out of or in connection with the Agreement will in no event exceed an amount equal to the amount of the Purchase Price received by the Company under the Agreement.
8. Intellectual Property
Unless expressly stated by the Agreement, the parties acknowledge and agree that nothing in these Terms shall be construed as a transfer from the Company to the Customer of the ownership of, or title to, any of the Intellectual Property Rights in the Goods, material created as part of the Services or any other Intellectual Property Rights owned by or licensed to the Company and the Customer agrees that it must not infringe or use the Intellectual Property Rights of the Company or any other third party which exist in the Goods or materials created as part of the Services for anything other than for the sole purpose of using the Goods.
9. Notification of claims
The Customer shall notify the Company immediately if it becomes aware of:
- any claim; or
- any death, serious injury or serious illness,
in respect of, or caused by, the Goods and the Customer will take all reasonable steps to mitigate any Loss arising as a consequence of the claim, death, serious injury or serious illness.
10. No representations
The Customer acknowledges and agrees that it has not relied on any representations, inducements or statements made to it by the Company regarding the supply of the Goods or Services and it has satisfied itself that the Goods and Services are fit for the purpose it requires them for.
11. Privacy
11.1 The Company complies with its privacy obligations to the extent required by law, and in accordance with its Privacy Policy.
11.2 The Customer acknowledges and agrees that personal information (as that term is defined in the Privacy Act) regarding the Customer if the Customer is an individual, or the employees, contractors, officers and agents of the Customer if the Customer is an organisation, may be collected, held, used and disclosed by the Company in accordance with the Privacy Act.
11.3 Online payments are handled by Paypal.
11.4 The Customer acknowledges and agrees that where personal information is collected in relation to an Order, that personal information will be collected, held, used and disclosed by the Company’s payment provider, subject to that payment providers’ terms and conditions and privacy policies,
11.5 The terms and conditions and privacy policies referred to in clause 13.4 may be accessed in respect of Paypal, at:
www.paypal.com/au/webapps/mpp/ua/useragreement-full and www.paypal.com/au/webapps/mpp/ua/paypalhereterms-full.
11.6 The Customer consents, and where applicable will make all reasonable endeavours to have its employees, contractors, officers and agent consent, to the Company collecting, holding, using and disclosing any such personal information for all purposes specified in the Company’s Privacy Policy.
12. GST
12.1 All amounts payable by the Customer in connection with the Agreement are inclusive of GST, unless stated otherwise.
12.2 Where the Customer is required by these Terms to reimburse or indemnify the Company for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that the Company will be entitled to claim for the Loss or amount incurred and increased by the amount of any GST payable by the Company in respect of the reimbursement or payment. This clause does not merge on completion or termination of the Agreement or contract. In this clause, words and expressions which are defined in the GST Act have the same meaning given to them by the GST Act.
13. Force Majeure
13.1 The Company will not be liable for any failure to perform or delay in performing its obligations under the Agreement if that failure or delay is due to a Force Majeure Event.
13.2 If a Force Majeure Event under clause 13.1 exceeds 20 Business Days, the Company may immediately terminate the Agreement by written notice to the Customer.
14. Termination
14.1 Without limiting the Company’s other rights under these Terms, the Company may terminate the Agreement with immediate effect by written notice to the Customer if:
- the Customer is the subject of an Insolvency Event;
- the Customer has breached any term of the Agreement (including these Terms); or
- in accordance with clause 13.2.
14.2 Each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.
15. Acknowledgements and representations
Any price list, goods lists or other similar documents issued by or on behalf of the Company do not constitute an offer by the Company to supply Goods appearing in those lists or catalogues or an offer by the Company to supply Goods at the prices set out in those lists or catalogues. The Company’s price lists and catalogues may be changed by the Company at any time without notice.
16 Inconsistency
16.1 Unless otherwise specified in these Terms, in the event of an inconsistency between any of the documents listed in clause 2.3, the following order of precedence shall apply to the extent of the inconsistency:
- (a) the prices and quantity of Goods and/or Services set out in the Order;
- (b) these Terms;
- (c) the Invoice; and
- (d) without limiting clause 16.2, any terms in the Order which are accepted by the Company in writing.
16.2 These Terms shall prevail over any Customer terms and conditions, except to the extent specifically agreed by the Company in writing and any terms or conditions included in the Order or other document provided or issued by the Customer will only be binding on the Company if expressly agreed by the Company in writing.
17. Miscellaneous
17.1 In these Terms:
- (a) the singular includes the plural and vice versa;
- (b) the word person includes a firm, a body corporate, an unincorporated association, body or organisation established pursuant to international treaty, intergovernmental body, or government authority and other official authority;
- (c) a reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time;
- (d) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns;
- (e) headings are inserted for convenience and do not affect the interpretation of these Terms;
- (f) no provision will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Terms or the inclusion of the provision in the Terms; and
- (g) unless otherwise provided, all monetary amounts are in Australian dollars and a reference to payment means payment in Australian dollars.
17.2 The Customer must not assign or otherwise deal with any of its rights or obligations under these Terms without the Company’s prior written consent. The Company may, to the extent permitted by law, assign, subcontract or deal with any of its rights or obligations under these Terms (including any right to be paid or chose in action) at any time and without any requirement to notify the Customer.
17.3 The Company may, to the extent permitted by law, vary these Terms from time to time with the variation becoming effective as soon as the Company provides the Customer notice of the variation.
17.4 A failure to exercise or delay in exercising any right under these Terms does not constitute a waiver and any right may be exercised in the future. Waiver of any of these Terms must be in writing and is only effective to the extent set out in that written waiver.
17.5 If any provision of these Terms is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from these Terms without affecting the validity or enforceability of the remaining provisions.
17.6 These Terms and the accepted Agreement constitute the entire agreement between the Customer and the Company in respect of the supply of the relevant Goods or Services the subject of the Agreement and supersede all previous communications, representations, understandings or agreements.
17.7 These Terms are governed by the laws in force in Victoria, and the Customer and the Company submit to the non-exclusive jurisdiction of the courts of Victoria.
17.8 The provisions of clauses 1, 6, 9, 12, 14, 11, 14, 16 and 20 of these Terms survive the expiry or termination of the Agreement.
17.9 Each party must:
- (a) do all acts necessary or desirable to give full effect to the Agreement; and
- (b) refrain from doing anything which might prevent full effect being given to the Agreement.
17.10 The relationship between the parties is and will remain that of independent contractors, and nothing in the Agreement constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or gives rise to any other form of fiduciary relationship between the parties.
17.11 Notices by a party must be delivered by hand, prepaid post, facsimile or email and sent to the address of the receiving party specified in the Agreement. Notices shall be deemed to have been received by hand upon delivery, by post within two (2) Business Days of sending, by facsimile upon receipt of a successful transmission report and by email one hour after the email (unless the sender knows that email has failed to send).