Terms & Conditions of Supply | Pure Dairy Food Service

Definitions
1. Contract means an Order accepted by Pure Dairy Food Service to the Customer, together with these Terms and Conditions.
2. Customer means the person or entity acquiring or ordering Products from Pure Dairy Food Service.
3. Pure Dairy Food Service means Pure Dairy Food Service Pty Ltd (ACN 682 213 958).
4. Products mean all products to be supplied by Pure Dairy Food Service to the Customer.
5. Terms and Conditions means these terms and conditions of supply (as amended) and the Credit Application.
6. Pure Dairy Food Service’s Policies include Pure Dairy Food Service’s Customer Credit Information Policy and Privacy Policy (each as amended from time to time).
Quotations And Orders
1. The Customer may request a quote for supply of Products. Any quotation made by Pure Dairy Food Service is not an offer to sell Products, it is an invitation to treat, only valid if in writing and valid for a period of 7 days from the date specified on such quotation. Prices quoted by Pure Dairy Food Service are subject to changes necessary to correct errors.
2. If the Customer wishes to proceed with a quote and order Products, it will submit an order for those Products in writing. An order for Products is accepted by Pure Dairy Food Service when Pure Dairy Food Service accepts the Customer’s order in writing, at which point a Contract for supply of the relevant Products is formed. Pure Dairy Food Service may refuse to accept any order.
3. No order may be cancelled after acceptance by Pure Dairy Food Service without Pure Dairy Food Service’s prior written consent.
4. Pure Dairy Food Service may terminate a Contract at any time by providing the Customer at least 30 days prior written notice.
Prices
1. Unless otherwise agreed by Pure Dairy Food Service in writing, the price to be paid by the Customer for Products will be:
  1. Pure Dairy Food Service’s then prevailing price for the supply of such Products to the Customer; and
  2. any applicable taxes or charges (including any goods and services or similar taxes) levied by any governmental authority upon the supply or use of the Products.
2. If the Customer requests any variation to the Contract, to the extent permitted by Applicable Laws, Pure Dairy Food Service may increase the price to account for the variation.
3. Unless otherwise specified in a Contract, prices do not include transportation costs.
4. If:
  1. a raw material, component, or service provider raises its prices, or imposes a surcharge on Pure Dairy Food Service; or
  2. any tax is imposed or increased in connection with the supply of any Products by Pure Dairy Food Service (including any carbon or emissions related tax); or
  3. Pure Dairy Food Service otherwise incurs an increase in costs in supplying Products to the Customer, Pure Dairy Food Service will notify the Customer in writing of the price increase as soon as reasonably practicable in writing.
  If the Customer does not accept such price increase, it must notify Pure Dairy Food Service within 7 days of receiving notice of the price increase that it is cancelling the relevant order. If the Customer does not notify Pure Dairy Food Service within the foregoing period, it will be deemed to accept such price increase.
Payment
1. Payment must be in a form acceptable to Pure Dairy Food Service and without any deduction, withholding, set-off or counter claim of any nature. Unless otherwise agreed in writing and as specified in a Contract, full payment for the Products must be paid within 30 days from the date of Pure Dairy Food Service’s invoice.
2. Should the Customer default in payment of any amount due to Pure Dairy Food Service by the due date of such amount, then:
  1. all amounts due to Pure Dairy Food Service (including any amounts that would become payable by the Customer to Pure Dairy Food Service at a later date on any account) become immediately due and payable without the requirement of any notice to the Customer; and
  2. Pure Dairy Food Service may (without prejudice to any of its other accrued or contingent rights): (i) charge the Customer for, and the Customer must indemnify Pure Dairy Food Service from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Contract or to recover any Products; (ii) terminate any uncompleted Contract with the Customer on written notice to the Customer; and (iii) charge interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4% for the period from the due date until the date of payment in full.
Delivery
1. Pure Dairy Food Service will make all reasonable efforts to deliver the Products to the Customer on the date(s) applicable under a Contract in accordance with this clause 5, but shall be under no obligation or liability to the Customer for failing to do so.
2. Delivery shall be effected upon:
  1. physical delivery of the Products to the address specified in the Contract or as otherwise requested by the Customer in writing; or
  2. pick up by Customer from Pure Dairy Food Service’s nominated address; or
  3. physical delivery to the Customer’s nominated carrier.
3. In the case of delivery in accordance with clause 2(a) or (c), notation by Pure Dairy Food Service’s carrier on the delivery docket shall be conclusive evidence of delivery. The Customer shall be responsible for any loss or damage occurring during unloading of the Products at the Customer’s premises.
4. If the Customer refuses to accept delivery of Products or, if the Customer is picking up the Products, does not collect the Products within 7 days of being advised they are ready then the risk in the Products passes to the Customer from the time of such refusal or failure to collect the Products within the foregoing period. In such event, Pure Dairy Food Service may (without limiting any of its other rights) arrange to store the Products at the Customer’s
Title And Risk
1. Title in and to all Products delivered to the Customer will remain with Pure Dairy Food Service and will not pass to the Customer until such time as the Products have been paid for in full.
2. Risk in and to the Products will pass to the Customer upon delivery of the Products to the Customer, or in the circumstances described in clause 5.4.
3. Until Pure Dairy Food Service has received payment in full for the Products:
  1. the Customer holds the Products as bailee for Pure Dairy Food Service;
  2. the Customer shall safely and securely store the Products separately from the other goods on the premises of the Customer in such a manner as to show clearly that the Products are the property of Pure Dairy Food Service;
  3. the Customer shall, upon request from Pure Dairy Food Service, deliver up such Products to Pure Dairy Food Service (or as directed by Pure Dairy Food Service);
  4. in addition to any rights under the PPSA, representatives of Pure Dairy Food Service will be entitled and permitted at any time to enter any place where the Products are situated to repossess the Products, and to remove the Products from any vessel or vehicle, and for this purpose Pure Dairy Food Service is hereby appointed as the Customer’s agent. The Customer agrees to indemnify Pure Dairy Food Service and keep Pure Dairy Food Service indemnified against all costs incurred by Pure Dairy Food Service in removing the Products and against losses, and liabilities incurred by, and any claims against, Pure Dairy Food Service in removing the Products and arising from such removal; and
  5. if the Products in part or in full are mixed with the Products that have been paid for, the Customer bears the onus of proving that the Products in its possession (whether mixed with other goods or not) have been paid for in full by the Customer. If the Customer is unable to prove, to the satisfaction of Pure Dairy Food Service that the goods identified as Products have been paid for in full, then those Products shall be deemed to relate to unpaid invoices outstanding from time to time and are deemed to be the property of Pure Dairy Food Service. Pure Dairy Food Service reserves the right to repossess those goods without having to prove that the goods relate to specific unpaid invoices outstanding at the time of repossession.
Security Interest
1. Unless otherwise stated, a term contained in these Terms and Conditions that is defined in the Personal Property Securities Act 2009 (Cth) (PPSA) (but not otherwise defined in these Terms and Conditions) has the meaning given to it in the PPSA. The PPSA applies to these Terms and Conditions.
2. The Customer:
  1. agrees these Terms and Conditions are a security interest, which is a continuing security interest in the relevant Products with priority over any registered or unregistered general (or other) security and any unsecured creditor (even if the Products become fixtures before paid for in full);
  2. grants to Pure Dairy Food Service a purchase money security interest (PMSI) all present and future Products supplied by Pure Dairy Food Service to the Customer and the proceeds of the Products; and
  3. will, until title in the Products pass to it, keep all Products free of any charge, lien or security interest except as created under these Terms and Conditions, and not otherwise deal with Products in a way that will or may prejudice any rights of Pure Dairy Food Service under these Terms and Conditions or the PPSA.
3. The security interest arising under this clause 7 attaches to the Products when the Products are collected or dispatched from Pure Dairy Food Service’s premises.
4. Pure Dairy Food Service reserves the right to register a financing statement under the PPSA in respect of the Products. Costs of registering a financing statement (or a financing change statement) will be paid by the Customer.
5. The Customer waives its right to receive a copy of any financing statement, financing change statement or verification statement that is or may be registered, issued or received at any time.
6. The Customer irrevocably grants Pure Dairy Food Service the right to enter any premises or property (without notice) and without being in any way liable to the Customer or any other person if Pure Dairy Food Service has cause to exercise any of its rights under the PPSA.
7. The Customer hereby waives its rights to receive the notifications, verifications, disclosures or other documentation specified under the following sections of the PPSA, or otherwise agrees the following provisions of the PPSA will not apply to the enforcement of a security interest: section 95 (notice of removal of an accession) to the extent that it requires the secured party to give a notice to the grantor; section 96 (when a grantor may retain an accession); section 121(4) (Enforcement of security interests in liquid assets – notice to higher priority parties and grantor); section 123 (right to seize collateral); section125 (obligation to dispose of or retain collateral); section 126 (apparent possession); section 128 (secured party may dispose of collateral); section 129 (disposal by purchase); section 130 (notice of disposal) to the extent that it requires the secured party to give notice to the grantor; paragraph 132(3)(d) (contents of statement of account after disposal); subsection 132(4) (statement of account if no disposal); subsection 134(1) (retention of collateral); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).
Termination
1. A Contract may be terminated at any time immediately on written notice by a party to the other party if:
  1. where the other party is the Customer, the Customer fails to comply strictly with the terms of the Contract;
  2. an application or order is made, a resolution is made or proposed or other steps are taken for the winding up, dissolution, official management or voluntary administration of the other party (other than a voluntary liquidation for the purpose of amalgamation or reconstruction);
  3. where the other party is the Customer, the Customer enters into any arrangement, compromise or composition or assignment for the benefits of its creditors or any class of them;
  4. a receiver, a receiver and manager, administrator or other officer is appointed to the other party or any part of its property, or a third party attempts to levy execution against the Customer’s property or the goods;
  5. the other party ceases, suspends or threatens to cease or suspend the conduct of its business or disposes of or threatens to dispose of its assets other than in the ordinary course of business;
  6. the other party is or is deemed (including under any applicable law) unable to pay its debts as and when they fall due, or stops or suspends the payments of its debts;
  7. in the case of the Customer being a natural person, the Customer commits an act of bankruptcy.
2. If Pure Dairy Food Service terminates a Contract in accordance with:
  1. clause 8, all amounts due and payable to Pure Dairy Food Service, whether or not invoiced, as at the date of termination become a debt due and payable on the effective date of termination; or
  2. clause 4, it will refund the Customer any amounts paid by the Customer under that Contract on request.
3. Termination of a Contract does not affect the rights of a party which have accrued up to the date of such termination.
Warranties
1. The Customer:
  1. warrants to Pure Dairy Food Service that it has read and understood these Terms and Conditions;
  2. warrants to Pure Dairy Food Service that all information supplied by or behalf of it to Pure Dairy Food Service in connection with the supply of Products is true and accurate and not misleading;
  3. warrants that it has not relied on any representation or statement made by or on behalf of Pure Dairy Food Service in connection with the supply of Products that has not been clearly and expressly stated in the Contract;
  4. acknowledges that Pure Dairy Food Service has relied on the information supplied by or on behalf of the Customer to it in supplying the Products; and
  5. warrants that the supply of the Products by Pure Dairy Food Service to the Customer, and the use of Products by the Customer, will not make Pure Dairy Food Service liable to any prosecution, claim or other action under any applicable law.
2. Pure Dairy Food Service’s goods come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, Customer is entitled: (a) to cancel its service contract with Pure Dairy Food Service; and (b) to a refund for the unused portion, or to compensation for its reduced value.
3. The Customer is also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, the Customer is entitled to have the failure rectified in a reasonable time. If this is not done the Customer is entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. The Customer is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
4. To the extent permitted by Law and subject to this clause 9, Pure Dairy Food Service excludes all conditions, warranties and terms not expressly set out in a Contract. Where applicable law provides any consumer guarantee, condition or warranty which cannot be excluded, Pure Dairy Food Service’s liability for any breach of such consumer guarantee, condition or warranty will be limited to the extent permitted by applicable law to, at its option to the provision of the entitlements set out in clauses 2 or 9.3.
Indemnity
1. Pure Dairy Food Service indemnifies the Customer and holds the Customer harmless against all fines, penalties, damages, loss, costs or expenses (including but not only legal expenses of any nature and payable to or on behalf of any person) suffered or incurred by Pure Dairy Food Service in connection with:
  1. a claim by a third party that the Pure Dairy Intellectual Property infringes the intellectual property rights of that third party;
  2. personal injury (including sickness or death) caused by an act or omission of Pure Dairy Food Service or its Personnel, including through negligence; and
  3. damage to tangible property.
2. The Customer indemnifies Pure Dairy Food Service and holds Pure Dairy Food Service harmless against all fines, penalties, damages, loss, costs or expenses (including but not only legal expenses of any nature and payable to or on behalf of any person) suffered or incurred by Pure Dairy Food Service in connection with any breach of the warranties of the Customer set out in clause 1.
3. Without limiting the liability of the Customer under the indemnity above, Pure Dairy Food Service may at its sole discretion by itself or in conjunction with the Customer defend, settle or compound any action, suit, proceeding, claim or demand brought or made against it by any person in connection with any breach of the warranties given by the Customer under these Terms and Conditions.
4. Pure Dairy Food Service reserves the right to refuse to do or to omit to do any thing, or to refuse to comply with any request or direction of the Customer, which in the reasonable opinion of Pure Dairy Food Service would constitute or result in a breach of any warranty given by the Customer under these Terms and Conditions or a breach by the Customer of a Contract.
Intellectual Property
1. All intellectual property rights, whether or not registered, including current and future rights in respect of trade marks, trade secrets, drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights and other information or industrial or intellectual property (Intellectual Property) that disclosed or otherwise provided to the Customer by Pure Dairy Food Service or otherwise subsisting in the Products and all rights therein (collectively Pure Dairy Intellectual Property) will remain the property of Pure Dairy Food Service and its licensors, and will be kept confidential by the Customer. The Customer shall have no claim to, nor ownership interest in, any Pure Dairy Intellectual Property. The Customer acknowledges that no license or rights of any sort are granted to the Customer in respect of any Pure Dairy Intellectual Property, other than the limited right to use Products purchased from Pure Dairy Food Service for the purpose they are supplied by Pure Dairy Food Service.
2. The Customer warrants that any Products in Customer Packaging (as defined in clause 3) supplied to Pure Dairy Food Service by or on behalf of the Customer shall not infringe the Intellectual Property rights of any person.
Confidential Information
1. All information furnished or made available by Pure Dairy Food Service to the Customer in connection with the subject matter of these Terms and Conditions or the supply of Products shall be held in the strictest confidence by the Customer. The Customer agrees not to use such information or disclose such information to others without Pure Dairy Food Service’s prior written consent. The obligations in this paragraph will not apply to any information which:
  1. at the time of disclosure was or thereafter becomes, generally available to the public by publication or otherwise through no breach by the Customer of any obligation herein;
  2. the Customer can show by written records was in the Customer’s possession prior to disclosure by Pure Dairy Food Service; or
  3. is legally made available to the Customer by or through a third party having no direct or indirect confidentiality obligation to Pure Dairy Food Service with respect to such information.
Claims and Returns
1. Examination of the Products shall be made by or on behalf of the Customer, and unless the Customer gives written notice that the Products do not comply with the applicable Contract within 48 hours of delivery of the Products, the Products shall be deemed to have been in all respects supplied in accordance with the relevant Contract, and the Customer shall be bound to accept and pay for the Products accordingly.
2. Claims by the Customer in respect of Products which have allegedly not been supplied in accordance with the relevant Contract will only be considered by Pure Dairy Food Service if: (a) the claim is made in writing within 48 hours of the date of delivery of the Products; and (b) representatives of Pure Dairy Food Service have been afforded a reasonable opportunity to inspect the Products.
3. Pure Dairy Food Service is not obliged to accept any return of Products that have been supplied (or are deemed to have been supplied) in accordance with the relevant Contract. If Pure Dairy Food Service determines that it will accept a return of Products that have been supplied in accordance with the relevant Contract:
  1. Pure Dairy Food Service is not obliged to accept any Products which have been used, damaged or altered in any way;
  2. all Products must be returned in their original packaging;
  3. Products returned will be subject to a rehandling charge as determined by Pure Dairy Food Service; and
  4. Products are to be returned at the Customer’s expense.
Limitation of Liability
1. Except as expressly provided to the contrary in writing in a Contract and to the maximum extent permitted by applicable law:
  1. Pure Dairy Food Service gives and makes no warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Products; and
  2. all conditions and warranties implied at law (whether by statute, common law, equity or otherwise) are (to the extent permitted by law) expressly excluded from the Contract.
2. Pure Dairy Food Service will not be responsible for any failure to supply Products on the date agreed between the parties and the Customer is not entitled to cancel any order as a result of that failure.
3. If Products are supplied by Pure Dairy Food Service in packaging that is designed or specified by the Customer (including containers that bear the name or trade mark of the Customer or a person specified by the Customer) (Customer Packaging), the Customer:
  1. is solely responsible for the design of, and information included on, the Customer Packaging;
  2. must ensure that the Customer Packaging complies with all relevant laws of any jurisdiction in which the Products are sold and does not contain any information, statement or representation that is false or misleading;
  3. must not use Pure Dairy Food Service’ name or Pure Dairy Intellectual Property on any Customer Packaging or in connection with the promotion or sale of the Products without the prior written consent of Pure Dairy Food Service; and
  4. indemnifies Pure Dairy Food Service (and must keep Pure Dairy Food Service indemnified) against loss, cost or expense and other liability (including but not only legal expenses of any nature and payable to or on behalf of any person) suffered or incurred by Pure Dairy Food Service in connection with a breach of any obligation of the Customer under this clause 3.
4. To the extent permitted by law, and except as otherwise expressly agreed in writing as part of a Contract, Pure Dairy Food Service will not be liable for any personal injury, incidental damages, consequential losses, loss of profit, costs of business interruption, loss of opportunities or any other loss, damage, cost, expense or liability whatsoever arising from any use of, or incidental to, the Products or their use, or arising out of Pure Dairy Food Service’ or its personnel’s negligence or breach of a Contract.
Excusable Delays
1. Pure Dairy Food Service shall not be liable for any failure to comply with a Contract to the extent that it is prevented from acting by events beyond its reasonable control, including any of the following: (a) fire, storm, tempest, earthquake, inevitable accident, pandemic, epidemic or other act of God; (b) any act of public enemy; (c) any act of any government or any government authority or instrumentality; (d) any act of any person engaged in subversive activity or sabotage; (e) epidemics or quarantine restrictions; (f) strikes, slow-downs, lockouts or labour stoppages or disputes of any kind or freight embargoes; (g) any shortfall, delay or failure to supply by any of Pure Dairy Food Service’s suppliers; (h) severe or prolonged inclement weather conditions (including drought or flood); (i) contamination or destruction of any raw materials used in connection with the Products; or (j) any other cause or event whatsoever which is beyond the control and without the fault or negligence of Pure Dairy Food Service.
Other Policies
The Customer acknowledges that it has read and understood Pure Dairy Food Service’s Customer Credit Information Policy and Privacy Policy each of which are incorporated into and form part of these Terms and Conditions.
Credit Application
1. An Australian Customer wishing to purchase Products from Pure Dairy Food Service on credit must submit an application to Pure Dairy Food Service in accordance with Pure Dairy Food Service’s standard credit application form from (Credit Application). Customers outside of Australia should contact their sales contact or email accounts@puredairy.com to arrange payment terms.
Governing Law and Dispute Resolution
1. These Terms and Conditions are governed by and construed in accordance with the laws of the State of Victoria, Australia (regardless of the place in which the Products are to be delivered). The Customer submits to the jurisdiction of the courts of the State of Victoria and of the courts competent to hear appeals from the courts of that State.
2. Without limiting a party’s right to terminate, if a dispute arises between the parties concerning a Contract (Dispute), the parties may not commence any court proceedings unless it has complied with this clause 18, except where a party seeks urgent interlocutory relief.
3. A party claiming a dispute has arisen must first serve written notice of the Dispute on the other party specifying the nature of the dispute (Dispute Notice).
4. On receipt of a Dispute Notice, the parties’ chief executive officers or appointed senior management representatives will endeavour in good faith to resolve the Dispute by negotiation.
5. If the parties cannot resolve the Dispute by negotiation in accordance with clause 18.3 within 30 days from the date of service of the Dispute Notice, or such other period as agreed between the parties in writing, either party may submit the Dispute to the Resolution Institute (ACN 008 651 232) for arbitration under that organisation’s arbitration rules (Rules).
6. Such proceedings will be:
  1. conducted by one arbitrator appointed by the parties or, failing agreement on an arbitrator by the parties, appointed pursuant to the Rules;
  2. held in Melbourne, Victoria, Australia; and
  3. conducted in the English language.
7. Despite the existence of a Dispute, each party must continue to perform its obligations under a Contract.
Acceptance
1. The Customer declares that the information provided by it in support of or in connection with the Contract is true and correct and not misleading.
2. The Customer agrees to be bound solely by the Contract and further agrees that any terms or conditions of purchase that may be incorporated in any order, acceptance of quotation or other document issued by the Customer shall, unless expressly agreed to in writing by Pure Dairy Food Service’s duly authorised representative, have no legal force or effect.
3. The Customer acknowledges that the Policies of Pure Dairy Food Service referred to in these Terms and Conditions may change without prior consent.
General
1. Pure Dairy Food Service may vary or amend these Terms and Conditions at any time by posting an updated version of the Terms and Conditions on its website located at [insert link]. Pure Dairy Food Service may also provide written notice to the Customer of any material changes to the Terms and Conditions. Any variations or amendments to the Terms and Conditions only apply to Customer orders placed after the date of the change as identified on the Supplier website or as stated in the Customer notice.
2. If any part or provision of a Contract is judged invalid or unenforceable in a jurisdiction, it is severed for that jurisdiction, and the remainder of that Contract will continue to operate in full force.
3. A provision of a Contract or a right created under it, may not be waived or varied except in writing, signed by the party or parties to be bound.
4. The Customer may not assign or transfer its rights and obligations under a Contract without the prior written consent of Pure Dairy Food Service. Pure Dairy Food Service may assign, transfer or novate its rights and obligations under a Contract without the prior written consent of the Customer.
5. The rights of a Party under this Agreement are cumulative and not exclusive of any rights provided by law.
6. The Contract constitutes the entire agreement between the parties about its subject-matter and supersedes any previous understandings or agreements on that subject-matter.
7. Nothing in the Contract is intended to create a partnership, joint venture, or agency relationship between the parties, and each of the parties agree that they are entering into the Contract only as independent contractors.
8. The Contract may be executed in any number of counterparts, all of which taken together are deemed to constitute the same instrument. A party may execute the Contract by electronic means and bind itself accordingly.