Terms and Conditions of Sale
LA’ BAKEHOUSE EXQUISITE PTY LIMITED ABN 18 152 717 694
Terms and Conditions of Sale
The following words shall have the meanings respectively assigned to them below:
“Consequential Loss” means loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise.
“Customer” means the person, partnership, Company or Trustee ordering Products from the Supplier.
“Food Service Industry” means the use of the Products purchased by the Customer from the Supplier in a catering business, cafeteria, a restaurant, café, drink establishment, take-away food store, or any other store in which the Products purchased are intended to be used in food preparation or offered for consumption at the Customer’s place of business.
“Insolvency Event” means, for the Customer, as applicable, being in liquidation or provisional liquidation, bankruptcy or under administration, having a controller (as defined in the Corporations Act 2001) or analogous person appointed to the Customer or any of the Customer’s property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay the Customer’s debts, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing the Customer’s own affairs for any reason, taking any step that could result in the Company becoming an insolvent under administration (as defined in section 9 of the Corporations Act 2001), entering into a compromise or arrangement with, or assignment for the benefit of, any of the Customer’s members or creditors, or any analogous event.
“Loss” means any expense, cost or damage of any kind and includes Consequential Loss and a fine or penalty imposed by a statutory or other authority.
“Products” means gluten free bread, cakes, sweets and other food items made by La’Bakehouse.
“Retailer” means a Customer that purchases the Products from the Supplier for the purpose of on-selling the Products.
“Supplier” means La’ Bakehouse Exquisite Pty Limited, ABN 18 152 717 694.
- 2.1 These Terms and Conditions of Sale shall apply to every order by the Customer under which the Supplier supplies the Products at the request of the Customer, whether for cash or on credit.
(AXG) Terms Conditions for sale – Final
- 2.2 The Terms & Conditions and supply of Products shall be governed by and construed in accordance with the laws from time to time applying in the Australian Capital Territory, Australia (‘the Jurisdiction’). La’Bakehouse and you submit to the exclusive jurisdiction of the courts of the Jurisdiction and, where available, the Commonwealth of Australia, and those that have jurisdiction to hear any appeals from them.
- 3.1 The price for the Products will be in accordance with the Supplier’s schedule of fees applying at the time the Products are ordered, unless otherwise agreed by the Supplier and the Customer.
- 3.2 The price for the Products will vary according to whether the Customer is a Retailer or in the Food Service Industry. The Customer agrees that the Supplier may determine whether the Customer is a Retailer or in the Food Service Industry at its sole discretion.
- 3.3 The Customer acknowledges that the schedule of fees will vary from time to time, without notice.
- 4.1 The Customer acknowledges that the Products are hand-made. Variations and irregularities may occur in the size, shape and colour of the Products.
- 4.2 The ownership of the Products will remain with the Supplier until such time as the Supplier has been paid in full for the Products.
- 4.3 The Customer must not re-package or tamper with the Products in any way.
- 4.4 Once an order is placed for Products, the order cannot be cancelled, except by speaking directly to an authorised representative of La’Bakehouse, or by emailing email@example.com. Cancellations will only be effective, and the customer entitled to receive a refund, upon written or verbal confirmation from La’Bakehouse or its authorised representatives.
- 4.5 The Supplier will use its best endeavours to supply the Products according to the orders in so far as not prevented or hindered by limitations of availability, production hold ups, or shortages of raw materials or labour.
5. Minimum order requirement
- 5.1 The Customer shall comply with the Minimum Order Requirements:
- 5.1.1 For food service Customers, a minimum of four (4) units must be purchased in any one order;
- 5.1.2 For retailers, a minimum of six (6) units must be purchased in any one order.
- 5.2 A unit is defined as one packet or box.
- 6.1 Credit to the Customer is subject to the acceptance of the Supplier’s Commercial Credit/Account Application.
- 6.2 Payment by the Customer is strictly required 14 days from the date of the Supplier’s Tax Invoice, without any deduction or setoff, failing which the Supplier shall be entitled to take such steps as the Supplier considers necessary to obtain payment together with legal expenses, debt collection commission and all other expenses and fees incurred by the Supplier.
- 6.3 Any amount not paid by the due date will incur interest at a rate of 5% above the Reserve Bank of Australia Cash Rate calculated daily and compounded monthly but in no circumstances will the interest charged exceed 18% per annum. The Supplier and the Customer agree that the interest payable is a genuine and honest pre-estimate of loss to the Supplier for the delay in payment.
- 6.4 The granting of any credit by the Supplier to the Customer shall be at the Supplier’s absolute discretion and may be revoked at any time by the Supplier whereupon any amounts owing by the Customer to the Supplier shall be paid immediately by the Customer.
- 6.5 A statement in writing, signed by an authorised officer of the Supplier, setting out the moneys due or owing by the Customer to the Supplier at the date of the statement shall be sufficient evidence of the amount due or owing until the contrary is proven.
- 6.6 The Customer must advise the Supplier in writing of the occurrence of any Insolvency Event, any change in its name, ownership or control as soon as practicable and not later than within two (2) business days of such event, change or step occurring. The Customer acknowledges that, despite any such event or change, the Customer remains liable to pay the price for the Products supplied.
- 6.7 With regard to the Commercial Credit/Account Application, the Customer authorises the Supplier to make such inquiries that it wishes and to receive any information for which authorisation is required under the Privacy Act 1988 (“the Act”).
- 6.8 The Customer acknowledges that the Supplier is allowed to –
- 6.8.1 give a credit reporting agency information about this Commercial Credit/Account Application;
- 6.8.2 notify a credit reporting agency the status of the Customer’s account together with any defaults with that account;
- 6.8.3 inform the credit reporting agency that the Supplier is a current credit provider to the Customer or, where applicable, that the Supplier is no longer a credit provider to the Customer.
- 6.9 The Customer agrees that the Supplier may –
- 6.9.1 obtain a report as to the Customer’s commercial activities from an entity providing information of that nature where the Supplier considers it relevant to this Commercial Credit/Account Application;
- 6.9.2 obtain a credit report containing personal information about the Customer from a credit reporting agency in relation to this Commercial Credit/Account Application; and
- 6.9.3 exchange personal information contained in reports relating to the Customer’s credit worthiness with other credit providers.
- 7.1 Risk in relation to the Products passes to the Customer immediately upon delivery or collection of the Products from the Suppliers premises.
- 7.2 The Supplier undertakes to ensure that all Products are gluten free at the time when they leave the Supplier’s premises, or are delivered by the supplier.
- 7.3 It is the responsibility of the Customer to ensure that the Product is not cross-contaminated by incorrectly storing or handling the Products. La’Bakehouse does not accept any liability in relation to claims of cross-contamination where the Product has not been stored or handled correctly.
- 7.4 If the Customer notifies the Supplier of any defect in the Products upon delivery, the Supplier will be obliged and entitled to take all necessary steps to remedy the defect.
- 7.5 Unless otherwise authorised by the Supplier, defective Products will not be exchanged or replaced until such time as they are returned to the Supplier for inspection and verification.
8. Exclusion of implied terms
- 8.1 The Customer may have the benefit of consumer guarantees under the Australian Consumer Law. Otherwise, to the maximum extent permitted by law, all terms, conditions or warranties that would be implied into these Terms and Conditions of Sale or in connection with the supply of any of the Products by the Supplier under law or statute or custom or international convention are excluded.
9. Limitation of liability
- 9.1 To the maximum extent permitted by law and subject to clauses 8 and 9 of these Terms and Conditions of Sale, the total liability of the Supplier arising out of or in connection with its performance of its obligations pursuant to these Terms and Conditions of Sale, or arising out of or in connection with the supply of the Products is limited as follows:
- 9.1.1 the Supplier shall have no liability to the Customer for any Consequential Loss;
- 9.1.2 the Supplier’s total aggregate liability for Loss, however arising, shall not exceed the GST exclusive aggregate price paid by the Customer to the Supplier for the specific Products that gave rise to the Loss in question. The limitations and exclusions in this subclause 9.1.2 do not apply to the extent that any Loss is directly attributable to:
- 18.104.22.168 the personal injury or death caused by the Supplier’s default, breach of these Terms and Conditions of Sale or negligence; or
- 22.214.171.124 by the Supplier.
- 9.2 Each party must take reasonable steps to mitigate any Loss it suffers or incurs.
10. Guarantee & Indemnity
- 10.1 Consideration
- 10.1.1 The Guarantor has requested the Supplier to sell the Products to the Customer and the Supplier does so in consideration of this guarantee and indemnity.
- 10.1.2 The Guarantor acknowledges having been given a copy of these Terms and Conditions of Sale and has had full opportunity to consider its provisions before entering into this guarantee and indemnity.
- 10.2 Guarantee
- 10.2.1 The Guarantor guarantees to the Supplier the prompt performance of all the obligations of the Customer contained or implied in these Terms and Conditions of Sale.
- 10.2.2 If the obligation is to pay money, the Supplier may immediately recover the money from the Guarantor as a liquidated debt without first commencing proceedings or enforcing any other right against the Customer or any other person.
- 10.3 Indemnity
Where it is determined that the Customer is not bound by some or all of its obligations under these Terms and Conditions of Sale, then the Guarantor agrees, by way of indemnity and principal obligation, to pay to the Supplier the amount which would have been payable by the Customer.
- 10.4 Continuing security
This guarantee and indemnity is a continuing security, and is not discharged or prejudicially affected by any settlements of accounts, but remains in full force until a final release is given by the Supplier.
- 10.5 Matters not affecting Guarantor’s liability
The Guarantor’s liability under Subclauses 10.2 and 10.3 is not affected by:
- 10.5.1 the granting of time, forbearance or other concession by the Supplier to the Customer or the Guarantor;
10.5.2 any delay or failure by the Supplier to take action against the Customer or the Guarantor;
- 10.5.3 an absolute or partial release of the Customer or the Guarantor or a compromise with the Customer or the Guarantor;
- 10.5.4 a variation, novation, renewal or assignment of these Terms and Conditions of Sale by the Supplier;
- 10.5.5 the fact that these Terms and Conditions of Sale are wholly or partially void, voidable or unenforceable; or
- 10.5.6 the exercise or purported exercise by the Supplier of its rights under these Terms and Conditions of Sale.
- 10.5.1 the granting of time, forbearance or other concession by the Supplier to the Customer or the Guarantor;
- 10.6 Payment later avoided
The Guarantor’s liability is not discharged by a payment to the Supplier which is later avoided by law. If that happens, the Supplier, the Customer and the Guarantor will be restored to their respective rights and obligations as if the payment had not been made.
- 10.7 Indemnity on disclaimer
If a liquidator or trustee in bankruptcy disclaims part or all of the Terms and Conditions of Sale, the Guarantor indemnifies the Supplier against any resulting loss.
- 10.8 Guarantor not to prove in liquidation or bankruptcy
Until the Supplier has received all money payable to it by the Customer:
- 10.8.1 the Guarantor must not prove or claim in any liquidation, bankruptcy, composition, arrangement or assignment for the benefit of creditors of the Customer; and
- 10.8.2 the Guarantor must hold any claim it has and any dividend it receives from the Customer on trust for the Supplier.
- 10.9 Guarantor not to claim benefits or enforce rights
Until the Guarantor’s liability under these Terms and Conditions of Sale is discharged the Guarantor may not, without the consent of the Supplier:
- 10.9.1 claim the benefit or seek the transfer (in whole or in part) of any other Guarantee, indemnity or security held or taken by the Guarantor;
- 10.9.2 make a claim or enforce a right against the Customer or any other guarantor or against the estate or any of the property of any of them (except for the benefit of the Supplier);
- 10.9.3 raise a set off or counterclaim available to it or the Customer against the Supplier in reduction of its liability under these Terms and Conditions of Sale.
- 10.10 Costs and Expenses
- 10.10.1 The Guarantor agrees to pay or reimburse the Supplier for:
- 10.10.1.1 its costs, charges and expenses of making, enforcing and doing anything in connection with this guarantee and indemnity, including all costs actually payable by the Supplier to its legal representative (whether under a costs agreement or otherwise); and
- 10.10.1.2 all taxes (except income tax) which are payable in connection with these Terms and Conditions of Sale or any payment, receipt or other transaction contemplated by it.
- 10.10.2 Money paid to the Supplier by the Guarantor must be applied first against payment of costs, charges and expenses under this Subclause 10.10.1 and then against other obligations under these Terms and Conditions of Sale.
- 10.11 The execution of this Commercial Credit/Account Application Form by the Guarantor is an acknowledgement of the Guarantor’s obligations pursuant to this Subclause 8.