Terms of Sale
1. Definitions
In these Terms of Sale the following terms have corresponding
meanings:
“Consequential Loss” means any special, indirect or consequential
loss or damage and any loss of profits, loss of production, loss of
revenue, loss of use, loss of contract, loss of opportunity, loss of
goodwill, whether direct or indirect;
“Consumer Law Provisions” means the provisions of the Australian
Consumer Law in Schedule 2 to the Competition and Consumer Act
2010 (Cth) and any other relevant applicable State and/or
Commonwealth consumer legislation for the time being in force;
“Customer” means the purchaser or intending purchaser of Goods or
Services and includes any agent, contractor or representative;
“Goods” means any product or goods supplied by Bubs;
“GST” has the same meaning given to that term in the A New Tax
System (Goods and Services) Act 1999 (Cth);
“Bubs” means The Infant Food Company Pty Ltd ABN 53 164 765
360 and each of its divisions and Related Bodies Corporate and any
successors and assigns;
“PPSA” means the Personal Property Securities Act 2009 (Cth);
“PPS Register” means “the register” as defined in the PPSA;
“Related Entity” has the same meaning given to that term in the
Corporations Act 2001 (Cth);
“Related Body Corporate” has the same meaning given to that term
in the Corporations Act 2001 (Cth); and
“Services” means any services supplied by Bubs.
The plural includes the singular and vice versa.
2. General
Unless Bubs otherwise agrees in writing, these Terms of Sale:
(a) apply to the purchase of all Goods by and supply of all
Services to the Customer and are the only terms of sale to
which Bubs will be bound and the Customer agrees that these
terms will in all circumstances prevail over the Customer’s
terms and conditions; and
(b) supersede and exclude all prior and other discussions,
representations (contractual or otherwise) and arrangements
relating to the supply of the Goods and the supply of the
Services including, but not limited to, those relating to the
performance of the Goods or Services or the results that ought
to be expected from using the Goods or Services.
3. Quotations and Purchase Orders
Any brochure, catalogue, price list, quotation or other communication
published or provided by Bubs constitutes only an invitation by Bubs
to the Customer to do business. Any purchase order placed by the
Customer constitutes only an offer to purchase Goods or Services.
Bubs may accept an offer to purchase Goods or Services made by a
Customer but is under no obligation to do so.
4. Price and Taxes
Unless Bubs has agreed in writing to a fixed price or fee (or the basis
for determining such), Bubs’s list prices and fees at the time of order
will apply. Bubs may alter all such prices and fees without notice.
The Customer will pay all taxes, levies and other charges including
GST in respect of the sale and purchase of the Goods and supply of
Services.
5. Payment and Interest
Cash purchases must be paid for at the time of the order or prior to
delivery, as required by Bubs. Credit purchases must be paid for by
cash, cheque or electronic funds transfer, within thirty days from the
date of the invoice, unless otherwise notified to the Customer by
Bubs, without deduction or deferment on account of any claim,
counterclaim or set-off. Except as otherwise agreed in writing by
the parties, any payment made by the Customer to Bubs must be
applied by Bubs in accordance with section 14(6)(c) of the PPSA.
Interest may be charged by Bubs at its election on overdue
amounts at the rate for the time being fixed under section 2 of the
Penalty Interest Rates Act 1983 (Vic).
Interest will accrue daily and compound monthly from the due date
until payment has been received by Bubs in cleared funds.
Payment will be applied first to interest accrued and then to the
overdue amount.
6. Delivery
Unless otherwise agreed in writing, delivery of Goods by Bubs to
the Customer will occur when the Goods are collected at Bubs’
nominated despatch point by the Customer or uplifted from
transport arranged by Bubs to the Customer.
Bubs will make all reasonable efforts to have the Goods delivered
to the Customer on the date agreed between the parties, but Bubs
will be under no liability for any loss associated with late delivery
of the Goods.
7. Risk
Unless otherwise agreed in writing, all risks associated with the
Goods purchased will pass to the Customer upon delivery to the
Customer.
8. Retention of Title
The Customer acknowledges and agrees that:
(a) title in any Goods does not pass to the Customer until the
purchase price for the Goods has been paid in full, and
until then Bubs will have a purchase money security
interest in the Goods and in any proceeds;
(b) Bubs may register its security interest in any Goods on the
PPS Register in any manner it chooses (including by
registering one or more financing statements, with such
expiry dates as it determines, subject to any mandatory
requirements of the PPSA);
(c) Bubs need not give any notice under the PPSA (including
a notice of a verification statement) or comply with any of
the provisions referred to in section 115(1) of the PPSA,
unless such obligation cannot be excluded;
(d) all information relating to the Goods or these Terms of
Sale is subject to a duty of confidence in favour of Bubs.
Separately, and without derogating from the Customer’s
duty of confidence, Bubs and the Customer agree that
neither of them will disclose information of the kind
described by section 275(1) of the PPSA, except as
permitted by any other provision of this clause or required
by any other law or regulation.
9. Liability where the Consumer Law Provisions do not
apply
If the Consumer Law Provisions do not apply to the Customer:
(a) all warranties, liabilities or representations in relation to the
Goods and Services are excluded. Bubs’ liability for
breach of any of these Terms of Sale is limited to any one
of the following, as determined by Bubs:
i. the replacement or repair of the Goods, the re-supply of
the Services, the supply of equivalent Goods or the cost
of re-supplying the Services or replacing or repairing the
Goods or of acquiring equivalent Goods or Services; or
ii. the refund of the price paid by the Customer for the
Goods or Services; and
(b) Bubs is not liable to the Customer for any Consequential Loss
in connection with these Terms of Sale and/or any related
order or contract (whether or not the Consequential Loss was
foreseeable).
Any claim by the Customer for short or wrongful delivery of Goods
must be notified to Bubs in writing and received within 24 hours of
delivery. Any other claims must be notified to Bubs in writing and
received within 7 days of the date of the relevant invoice. Any claim
which the Customer does not notify within that time (time being of the
essence) will be taken to have been absolutely waived.
10. Liability where Consumer Law Provisions apply
If the Consumer Law Provisions apply to the Customer:
(a) nothing in these Terms of Sale is to be construed as
excluding, restricting or modifying any express or implied
guarantee, condition, warranty, right or remedy conferred by
any of the Consumer Law Provisions;
(b) to the extent permitted by law, Bubs’ liability for breach of
these Terms of Sale (including breach of any condition or
warranty implied into these Terms of Sale by the Consumer
Law Provisions) or for breach of a consumer guarantee
contained in the Consumer Law Provisions is limited to any
one of the following as determined by Bubs:
i. the replacement or repair of the Goods, the re-supply of the
Services, the supply of equivalent Goods or the cost of resupplying the Services or replacing or repairing the Goods
or of acquiring equivalent Goods or Services; or
ii. the refund of the price paid by the Customer for the Goods
or Services; and
(c) Bubs is not liable to the Customer for:
i. in circumstances where Bubs has breached a consumer
guarantee contained in the Consumer Law Provisions, any
loss that was not reasonably foreseeable; and
ii. in all other circumstances any Consequential Loss arising
out of or in connection with these Terms of Sale and/or any
related order or contract (whether or not the Consequential
Loss was foreseeable).
11. Excluded Terms
All terms, conditions, warranties and representations expressed or
implied by statute, common law, equity, trade, custom or usage or the
general law are expressly excluded to the maximum extent permitted
by law.
12. Suitability of Goods and Services
Neither Bubs nor any person purporting to act on its behalf has made
any representation or given any promise or undertaking which is not
expressly set out in writing, whether as to the fitness of the Goods
and the Services for any particular purpose or any other matter.
13. Correct Handling
Bubs is not responsible or liable for any Goods to the extent that they
are utilised, stored, handled or maintained incorrectly or
inappropriately after delivery to the Customer.
The Customer must ensure that all Goods comply with all applicable
requirements of standards and regulatory bodies before use, on-sale
or application and must use or apply the Goods in accordance with
all manufacturer or Bubs recommendations and directions and good
commercial practice.
14. Set Off
Bubs can set off any amount which the Customer or any of its Related
Entities owe to Bubs under these Terms of Sale or any related or
unrelated order or contract, or on any other account, against any
amount which Bubs owes to the Customer or any of its Related
Entities (whether under these Terms of Sale, any related order or
contract, in relation to any milk supply payment or otherwise).
15. Default
Upon the Customer's breach or default of any of these Terms of
Sale or any related or unrelated order or contract with Bubs, Bubs
may, at its discretion and without prejudice to its other rights:
(a) retain all monies paid by the Customer;
(b) cease further deliveries of Goods;
(c) seek to recover from the Customer all direct loss and costs
suffered or incurred;
(d) take possession of any Goods not fully paid for; and
(e) otherwise suspend its obligations under or terminate these
Terms of Sale and/or any related or unrelated order or
contract with Bubs.
Without limiting any other provision of these Terms of Sale, the
Customer is in default under these Terms of Sale for the
purposes of section 123(1) of the PPSA if any other secured
party seizes the Goods (whether under section 123 of the PPSA
or otherwise) for the purposes of enforcement or becomes
entitled to seize the Goods.
16. Insolvency
If the Customer commits or is involved in any act of insolvency,
then Bubs may deem this to be a default under these Terms of
Sale and may, at its election and with immediate effect, suspend
its obligations under or terminate these Terms of Sale and/or any
related order or contract without prejudice to any rights it may
have.
An act of insolvency includes bankruptcy, liquidation, receivership,
administration, failure to comply with a statutory demand, a
suspension of payment of debts or the bringing of a winding up
application which is not dismissed within 7 days.
17. Variation
Bubs can amend these Terms of Sale at any time by notice to the
Customer (which, for the avoidance of doubt, may be satisfied by
the publication of the revised terms of sale on Bubs’s website –
https://www.bubsaustralia.com) and the amended terms will apply
in respect of all purchases made or orders placed by the Customer
after receiving that notice.
18. Intellectual Property
The Customer acknowledges that the sale and purchase of Goods
or Services under these Terms of Sale does not confer on the
Customer any licence or rights under any patent, trademark or
copyright which is the property of Bubs.
19. Waiver
Failure by Bubs to insist on strict performance of any term,
warranty or condition of these Terms of Sale or any related order
or contract will not be taken as a waiver of it or of any rights Bubs
may have and no waiver will be taken as a waiver of any
subsequent breach of any term, warranty or condition.
20. Severability
Any part of these Terms of Sale being a whole or part of a clause,
shall be capable of severance without affecting any other part of
these Terms of Sale.
21. Jurisdiction
These Terms of Sale shall be governed and construed in
accordance with the laws of the State of Victoria. Each party
submits to the non-exclusive jurisdiction of courts of the State of
Victoria.