Standard Terms & Conditions

/Standard Terms & Conditions
Standard Terms & Conditions2016-12-19T18:08:27+00:00

Delivery Terms:

Please note: Free delivery to the below delivery zones is made every Thursday. Orders close Monday midnight for delivery Thursday.  Deliveries are made between 8am-5pm – exact delivery times are not available.

Please ensure that if you are not home on the day of delivery, Sunfresh will leave the delivery at your front door. It is your responsibility, as the purchaser, to ensure that you are available on the day of delivery, or give suitable alternative instructions for a safe/protected location for it to be left in your absence.

Sunfresh is not responsible for any theft or spoilage resulting in the event of an unattended delivery.

Delivery Zones:

We currently only deliver to zones with these postcodes:

4551, 4555 , 4556, 4557, 4558, 4559, 4560, 4561, 4562, 4564, 4566, 4567, 4572, 4573

To see itemised zone list see our Delivery Zone list


 

SUNFRESH MARKETING CO-OP LIMITED

PDF Version

STANDARD TERMS AND CONDITIONS

Interpretation

  1. In these terms and conditions:
    (a) Agreement means an agreement entered into between Sunfresh and the Buyer (and, where relevant, each Guarantor) to which these terms and conditions apply. For the avoidance of doubt, each time Sunfresh accepts an Order, a separate Agreement is formed incorporating the Order and these terms and conditions. Any other terms or conditions (e.g. appearing on the Buyer’s Orders, website or stationery) do not form part of an Agreement unless expressly agreed in writing to the contrary;
    (b) Buyer means the purchaser of Produce from Sunfresh as specified in any invoice, document or Order, and if there is more than one purchaser, is a reference to each purchaser jointly and severally.
    (c) CCA means the Competition and Consumer Act 2010 (C’th).
    (d) Delivery means delivery by Sunfresh to the Buyer at such location or place agreed between the parties and includes such other location or place as Sunfresh may at its sole discretion consider reasonable in the circumstances.
    (e) Descriptive Matter means and includes without limitation, descriptions, pictures, drawings, diagrams, particulars of varieties/weights/dimensions or any other form of description or measurement submitted with or prior to any offer or invitation by Sunfresh or contained in its catalogues, price lists or advertising matter.
    (f) Dispatched means Produce has been removed from the premises of Sunfresh for the purpose of Delivery to the Buyer, or any third party, pursuant to an Order and Dispatch has a corresponding meaning.
    (g) Financing Statement and Financing Change Statement have the same meanings as in the PPSA.
    (h) Grantor refers to the Buyer and has the same meaning as in the PPSA.
    (i) Guarantor means the person or persons, if any, who have agreed to guarantee the performance by the Buyer of any of its Obligations to Sunfresh.
    (j) Interest Rate means the rate which is 3% per annum above the rate charged by Sunfresh’s bank from time to time on unsecured overdrafts of $100,000 or more, conclusive evidence of which will be confirmation in writing by a manager of Sunfresh’s bank.
    (k) Non-Excludable Condition means any condition, warranty or guarantee provided or implied by any state, territory or commonwealth law, including but not limited to the statutory consumer guarantees described in the CCA, and the provisions of any state or territory legislation which cannot be lawfully excluded.
    (l) Obligation means any express or implied legal, equitable, contractual, statutory or other obligation, agreement, covenant, commitment, duty, undertaking or liability.
    (m) Order means any request by the Buyer for the supply of Produce by Sunfresh, whether that supply is to the Buyer or to any third party and whether the request amounts to an offer or an invitation to treat from the Buyer.
    (n) PMSI means a Purchase Money Security Interest within the meaning of section 14 of the PPSA.
    (o) PPSA means the Personal Property Securities Act 2009 (C’th).
    (p) PPSR means the Personal Property Securities Register established pursuant to the PPSA.
    (q) Price means the price payable for Produce as agreed between Sunfresh and the Buyer in accordance with clause 5 of these terms and conditions.
    (r) Produce means fruit, fruit products or other products sold or supplied by Sunfresh to the Buyer from time to time.
    (s) Right includes any legal, equitable, contractual, statutory or other right, power, authority, benefit, privilege, remedy, discretion or cause of action.
    (t) Security Agreement and Security Interest have the same meanings as in the PPSA.
    (u) Sunfresh means Sunfresh Marketing Co-op Limited ABN 54 160 042 896.
    (v) singular includes plural and vice versa and any gender includes every gender.
    (w) a reference to a person includes corporations, trusts, associations, partnerships, a government authority and other legal entities, and where necessary, include successor bodies.
    (x) references to sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes.
    (y) headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of these terms and conditions.
    (z) a reference to a party includes that party’s executors, administrators, substitutes, successors and permitted assigns.
    (aa) nothing in these terms and conditions may be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, Right or remedy implied by law (including the CCA) and which by law cannot be excluded, restricted or modified.

 

Terms of sale

  1. Produce sold or supplied by Sunfresh is sold or supplied strictly on these terms and conditions, which can only be waived or varied in writing by Sunfresh. Unless an Order expressly provides otherwise, these terms and conditions will prevail over all conditions expressed or implied in any Order placed by the Buyer (or in any standard terms and conditions of the Buyer) to the extent of any inconsistency.
  2. The Buyer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Buyer places an Order for or accepts Delivery of Produce.
  3. Produce to be sold or supplied by Sunfresh to the Buyer is as described on the Order accepted in writing by Sunfresh and the Buyer and the description of Produce on the Order as accepted (modified only as may be agreed in writing) will prevail over all other descriptions including any prior enquiry by the Buyer.

 

Price and Payment

  1. At Sunfresh’s sole discretion the Price shall be either:
    (a) as indicated on any invoice provided by Sunfresh to the Buyer; or
    (b) Sunfresh’s quoted prices (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of fourteen (14) days, unless earlier withdrawn. Sunfresh reserves the Right to refuse any Order based on any quotation within 14 days after the receipt of the Order.
  2. Sunfresh reserves the Right to change the Price if a variation to Sunfresh’s quotation is requested.
  3. At Sunfresh’s sole discretion, a non-refundable deposit may be required prior to acceptance of an Order.
  4. Time for payment for Produce will be of the essence and unless otherwise agreed by Sunfresh, the Price must be paid by the Buyer on or before Delivery of Produce or by such other date determined by Sunfresh in its sole discretion.
  5. Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (plus the maximum credit card bank fee, merchant fee and administration surcharge permitted by law), or by any other method as agreed to in writing between the Buyer and Sunfresh.
  6. Sunfresh may charge interest at the Interest Rate on all monies due and owing by the Buyer to Sunfresh from time to time for the period from the due date for payment of such monies until the date upon which payment is ultimately received by Sunfresh.
  7. Should Sunfresh become a creditor of the Buyer, the Buyer authorises Sunfresh to collect, retain, use, record, and disclose credit information about the Buyer for the purpose of assessing and reporting matters related to the Buyer’s credit-worthiness.
  8. If the Buyer breaches the payments terms, Sunfresh may, as its discretion, terminate the Agreement and report the breach to any credit provider or credit reference organisation. The Buyer understands that this may affect its credit rating.
  9. Unless otherwise stated the Price as charged includes GST. The Buyer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
  10. The cost of any permits, licence fees and/or toll charges incurred by Sunfresh, and any special packing and packing materials used in relation to Produce, will be charged to the Buyer despite that such cost may have been omitted from any quotation.

 

Descriptive Matter, etc

  1. The descriptions, illustrations and performances contained in any Descriptive Matter do not form part of the contract of sale or supply of Produce or of the description applied to any Produce. The Buyer acknowledges that it has not relied upon any descriptions, illustrations and performances contained in any Descriptive Matter as an inducement into entering into any contract of sale or supply with Sunfresh.

 

Performance

  1. Any quality standards, figures or representations as to quality given by Sunfresh are estimates only. Sunfresh is under no liability for damages for failure of and Produce to attain such quality standards, figures or quality unless specifically warranted in writing. Any such warranties are subject to recognised tolerances applicable to such standards, figures or quality.

 

Delivery

  1. Sunfresh will not be liable for any loss, damage or delay occasioned to the Buyer, its customers or any other person, arising from:
    (a) late Delivery or non-Delivery, or late utilisation of and Produce; or
    (b) any actions or Obligations conducted or incurred by the Buyer in reliance on any expected Delivery date.
  2. The Buyer must accept Delivery of Produce in accordance with any Order or in any other manner determined reasonable in the circumstances by Sunfresh.
  3. If the Buyer fails to accept Delivery of Produce, the Buyer will be liable for any costs or damages incurred by Sunfresh on account of such failure to accept Delivery.
  4. The Buyer waives any claim for shortage of any Produce Delivered if a claim in respect of short Delivery has not been lodged with Sunfresh within 48 hours from the date and time of Delivery.
  5. Should the Buyer fail to provide sufficient instructions to enable Delivery of Produce to the Buyer, Sunfresh may, without Obligation, arrange for suitable storage and insurance until such Produce is Dispatched. Charges for storage, insurance, transport and other incidental costs may be charged by Sunfresh to the Buyer.
  6. Delivery of Produce to a third party nominated by the Buyer is deemed to be Delivery to the Buyer.
  7. Sunfresh may deliver Produce in separate instalments. Each separate instalment is to be invoiced and paid in accordance with these terms and conditions.

Risk

  1. The risk in, and all attached liability for damage to, Produce passes to the Buyer at the point of Dispatch of the Produce even if Sunfresh Delivers Produce itself or Sunfresh’s premises are the intended Delivery location. The Buyer must insure the Produce on or before Dispatch.
  2. If any Produce is damaged or destroyed following Dispatch but prior to ownership passing to the Buyer, Sunfresh is entitled to receive all insurance proceeds payable for the Produce. The production of these terms and conditions by Sunfresh is sufficient evidence of Sunfresh’s Rights to receive the insurance proceeds without the need for any person dealing with Sunfresh to make further enquiries.

 

Loss or damage in transit

  1. Sunfresh is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Produce in transit caused by any event of any kind by any person (whether or not Sunfresh is legally responsible for the person who caused or contributed to that loss or damage).
  2. Sunfresh will endeavour to provide the Buyer with such assistance as may be necessary to press claims on carriers so long as the Buyer:
    (a) has notified Sunfresh and the carriers in writing immediately after loss or damage is discovered on receipt of Produce; and
    (b) lodges a claim for compensation upon the carrier within three (3) days of the date of receipt of Produce.

 

Defects, Warranties and Returns

  1. The Buyer must inspect Produce on Delivery and must immediately upon Delivery notify Sunfresh in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote or other grounds for rejection of the Produce. Upon such notification the Buyer must:
    (a) specify all grounds relied upon by it in its rejection of the Produce;
    (b) provide good quality evidence, including photographic and temperature readings, of the grounds for its rejection of the Produce;
    (c) allow Sunfresh the opportunity to inspect the Produce;
    (d) keep safe any and all rejected Produce in adequately temperature controlled cool rooms until Sunfresh has acknowledged acceptance of such rejection and has collected the rejected Produce from the place or location of their Delivery to the Buyer.
  2. Under applicable State, Territory and Commonwealth law (including, without limitation, the CCA), certain Non-Excludable Conditions may be implied into these terms and conditions.
  3. Nothing in these terms and conditions purports to modify or exclude the Non-Excludable Conditions.
  4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Conditions, Sunfresh makes no warranties or other representations under these terms and conditions or the Agreement generally including, without limitation, as to the quality, merchantability or suitability of and Produce. Sunfresh’s liability in respect of these warranties is limited to the fullest extent permitted by law.
  5. If the Buyer is a consumer within the meaning of the CCA, Sunfresh’s liability is limited to the extent permitted by section 64A of Schedule 2 or to similar remedies under any applicable state or territory fair trading legislation.
  6. If Sunfresh is required to replace and Produce under these terms and conditions or the CCA, but is unable to do so, Sunfresh may instead refund any money the Buyer has paid for that Produce.
  7. If the Buyer is not a consumer within the meaning of the CCA, Sunfresh’s liability for any defect or damage in any Produce is:
    (a) limited to the value of any express warranty provided to the Buyer by Sunfresh, at Sunfresh’s sole discretion;
    (b) limited to the extent of the benefit of any warranty to which Sunfresh is entitled; or
    (c) otherwise negated absolutely.
  8. Subject to these terms and conditions, returns will only be accepted provided that:
    (a) the Buyer has complied with the provisions of clause 28;
    (b) Sunfresh has agreed that the Produce is defective;
    (c) Produce is returned within a reasonable time at the Buyer’s cost (if that cost is not significant); and
    (d) Produce is returned in as close a condition to that in which it was Delivered as is possible.
  9. Despite clauses 28 to 35 but subject to the CCA, Sunfresh will not be liable for any defect or damage which may be caused or partly caused by or may arise as a result of:
    (a) the Buyer failing to properly maintain or store any Produce;
    (b) the Buyer using Produce for any purpose other than that for which it were obviously suited;
    (c) the Buyer continuing the use of any Produce after any defect became apparent or should have become apparent to a prudent operator or user;
    (d) any failure by the Buyer to follow any instructions or guidelines provided by Sunfresh; or
    (e) fair wear and tear, any accident, or act of God.
  10. Sunfresh may in its absolute discretion accept non-defective Produce for return in which case Sunfresh may require the Buyer to pay handling fees not exceeding twenty-five percent (25%) of the invoiced value of the returned Produce, plus any freight costs.
  11. Despite anything contained in these terms and conditions, if Sunfresh is required by a law to accept a return then Sunfresh will only accept a return on, and to the extent only, of the conditions imposed by that law.
  12. Except as provided in these terms and conditions and to the maximum extent permitted by law, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of Produce for any purpose or as to design, application of Produce, materials or workmanship or otherwise are expressly excluded.
  13. Sunfresh is not liable for any loss or damage, loss of income, loss of profits, loss of markets, loss of reputation, loss of Buyers, loss of use, loss of opportunity, loss of business, loss of reputation or goodwill, loss of value or use of intellectual property or other proprietary Rights even if Sunfresh had knowledge that such loss or damage might arise or for any other indirect, incidental, special or consequential loss or damage howsoever arising out of the sale or supply of Produce or out of the Buyers relationship with Sunfresh connected to the Agreement including, without limitation, Sunfresh’s breach of contract, negligence, wilful act or omission or other default including to the extent that such conduct or default is outside the “four corners” of the Agreement, or deviates from it or defeats its main object.

 

Rights in relation to Produce

  1. While Produce remains the property of Sunfresh (or of any grower or other supplier on behalf of whom Sunfresh is selling the Produce):
    (a) the Buyer has no Right or claim to any interest in Produce to secure any liquidated or unliquidated debt or Obligation Sunfresh owes to the Buyer;
    (b) the Buyer cannot claim any charge or lien over any Produce;
    (c) the Buyer will not create any absolute or defeasible interest in Produce in relation to any third party except as may be authorised by Sunfresh.
  2. Where the Buyer is in actual or constructive possession of Produce:
    (a) the Buyer will not deliver the Produce nor any document of title to it to any person except as directed by Sunfresh; and
    (b) it is in possession of Produce as a bailee of that Produce and owes Sunfresh the duties and liabilities of a bailee.
  3. Sunfresh and the Buyer agree that:
    (a) the property in Produce does not pass to the Buyer until Sunfresh has been paid in full for Produce under all individual agreements for the sale or supply of Produce between Sunfresh and the Buyer;
    (b) the Buyer is a bailee of Produce until such time as property in it passes to the Buyer and that this bailment continues in relation to all Produce until the price of that Produce has been paid in full;
    (c) pending payment in full for any Produce, the Buyer:
    (d) must not supply any Produce to any person outside its ordinary or usual course of business;
    (e) must not allow any person to have or acquire any Security Interest in any Produce.
  1. Despite clause 43(c), if the Buyer supplies any Produce to any person before all moneys payable by the Buyer have been paid to Sunfresh, the Buyer agrees that:
    (a) it holds the proceeds of re-supply of that Produce on trust for and as agent for Sunfresh immediately when they are receivable or are received;
    (b) it must either pay the amount of the proceeds of re-supply to Sunfresh immediately when they are received or pay those proceeds into an account with a bank, financial institution or deposit-taking institution as trustee for Sunfresh;
    (c) if the Buyer fails to pay for any Produce within the period of credit (if any) extended by Sunfresh to the Buyer, Sunfresh may at any time and with reasonable force enter any site owned, possessed, occupied or controlled by the Buyer and recover possession of the Produce and the Buyer agrees that Sunfresh has an irrevocable licence to do so.
  2. Sunfresh may recover possession of any Produce in transit whether or not Delivery has occurred.
  3. Sunfresh may commence proceedings to recover the Price of Produce sold notwithstanding that property in that Produce has not passed to the Buyer.

 

PPSA

  1. The Buyer acknowledges and agrees that each Agreement with Sunfresh constitutes a Security Agreement in writing and a PMSI for the purposes of the PPSA which will subsist in all Produce that has been supplied, and that will be supplied, by Sunfresh to the Buyer until that Produce has been paid for in full.
  2. The Buyer undertakes to:
    (a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Sunfresh may reasonably require to:
    (i) register a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPSR;
    (ii) register any other document required to be registered by the PPSA; or
    (iii) correct a defect in a statement or document referred to in clause 49(a)(i)or 49(a)(ii);
    (b) indemnify, and upon demand reimburse, Sunfresh for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPSR or releasing any Produce charged thereby;
    (c) not register a Financing Change Statement in respect of a Security Interest without the prior written consent of Sunfresh;
    (d) not grant a Security Interest nor register, nor permit to be registered, a Financing Statement or a Financing Change Statement in relation to Produce in favour of a third party without the prior written consent of Sunfresh;
    (e) immediately advise Sunfresh of any material change in its business practices of on-supply of Produce which would result in a change in the nature of proceeds derived from such supply.
  3. Sunfresh and the Buyer agree that sections 96 and 125 of the PPSA do not apply to the Security Agreement created by the Agreement.
  4. The Buyer waives its Rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
  5. The Buyer waives its Rights as a Grantor and/or a debtor under sections 142 and 143 of the PPSA.
  6. Unless otherwise agreed in writing by Sunfresh, the Buyer waives its Right to receive a verification statement in accordance with section 157 of the PPSA.
  7. The Buyer must unconditionally ratify any actions taken by Sunfresh under clauses 48 to 53.
  8. Subject to any express and permitted provisions to the contrary, nothing in these terms and conditions is intended to have the effect of contracting out of any other provisions of the PPSA.

 

Security and Charge

  1. In consideration of Sunfresh agreeing to supply Produce, the Buyer charges all of its Rights, title and interest (whether joint or several) in any land, realty or other assets owned by the Buyer either now or in the future and capable of being charged, to secure the performance by the Buyer of its Obligations under these terms and conditions (including, without limitation, the payment of any money).
  2. The Buyer indemnifies Sunfresh from and against all Sunfresh’s costs and disbursements, including legal costs on a solicitor and own client basis, incurred in exercising Sunfresh’s Rights under clause 55.
  3. The Buyer irrevocably appoints Sunfresh and each director of Sunfresh as the Buyer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of clause 55 including, without limitation, signing any document on the Buyer’s behalf.

 

Cancellation

  1. Sunfresh may cancel an Agreement or any Delivery of Produce at any time before the Produce is Delivered by giving written notice to the Buyer. On giving such notice Sunfresh will repay to the Buyer any money paid by the Buyer for Produce. Sunfresh will not be liable for any loss or damage whatsoever arising from such cancellation.
  2. In the event that the Buyer cancels Delivery of any Produce the Buyer will be liable for any and all loss incurred (whether direct or indirect) by Sunfresh as a direct result of the cancellation (including, without limitation, any loss of profits).
  3. Cancellation of Orders by the Buyer will not be accepted once Dispatch has commenced.

 

Guarantee

  1. In consideration of Sunfresh, at the request of the Buyer and of the Guarantor, entering into an Agreement the Guarantor unconditionally (and jointly and severally where there is more than one Guarantor):
    (a)      guarantees the Buyer’s Obligations to Sunfresh pursuant to the Agreement; and
    (b)      indemnifies Sunfresh against any loss or liability Sunfresh incurs arising from or connected with the Buyer’s Obligations to Sunfresh pursuant to the Agreement.
  1. Each of the Guarantor’s Obligations arising from this guarantee and the Agreement:
    (a)      is a principal Obligation and will not be treated as ancillary or collateral to any other Right or Obligation however created or arising;
    (b)      may be enforced against the Guarantor without Sunfresh first being required to exhaust any remedy it may have against the Buyer or to enforce any security it may hold with respect to the Buyer’s Obligations;
    (c)      is a continuing guarantee and indemnity for the whole of the Buyer’s Obligations and is irrevocable and remains in full force and effect until discharged; and
    (d)      will not be considered as wholly or partially discharged by the performance at any time of any of the Buyer’s Obligations or by any settlement of account or by any other matter or thing whatsoever and will apply to the present and future scope of the Buyer’s Obligations.
  1. The liability of the Guarantor is absolute and will not be affected by any act, omission, matter or thing which but for this provision might operate to release or otherwise exonerate the Guarantor from the Guarantor’s Obligations in whole or in part including:
    (a)      the grant to the Buyer or any other person of any time, waiver or other indulgence or concession, or the discharge or release of any other security held by Sunfresh in respect of the Buyer’s Obligations;
    (b)      any transaction or arrangement that may take place between Sunfresh and the Buyer, the Guarantor or any other person;
    (c)      the insolvency of the Buyer;
    (d)      Sunfresh exercising or refraining from exercising any other security or any of the Rights, powers or remedies conferred on it by law or by the Agreement or any other agreement with any person, or taking or failing to take any other security;
    (e)      the variation (including a variation which increases the Buyer’s Obligations), extinguishment, unenforceability, failure, loss, release, discharge, abandonment or transfer either in whole or in part of the Agreement, or any security now or in the future held by Sunfresh from the Buyer, the Guarantor or any other person;
    (f)       the Buyer’s Obligations or any part of them being or becoming wholly or partially illegal, void, voidable, or unenforceable;
    (g)      the failure by Sunfresh to give notice to the Guarantor of any default by the Buyer under the Agreement;
    (h)      any legal limitation, disability, incapacity or other circumstances related to the Buyer;
    (i)       the failure of any Guarantor to execute the Agreement containing this guarantee, or the granting of this guarantee by any Guarantor being or becoming void or voidable; or
    (j)       the expiry or termination of this Agreement.
  1. This Guarantee extends to cover any Agreement between Sunfresh and the Buyer as amended, varied or replaced, either with or without the consent of the Guarantor.
  2. If the Buyer becomes insolvent, the Guarantor authorises Sunfresh to prove for all monies which the Buyer or any other person will have paid under the Agreement and to retain and to carry into a suspense account and to appropriate at the discretion of Sunfresh any dividends received in the insolvency of the Buyer and all other moneys received in respect of the Buyer’s Obligations until Sunfresh has been paid in full in respect of the Buyer’s Obligations.

 

Confidentiality

  1. The Buyer must keep strictly confidential all financial, technological, strategic and other business information of Sunfresh which has been divulged or become known in the course of its dealings with Sunfresh and which is not generally known outside Sunfresh’s and the Buyer’s respective organisations. The Buyer must only use such confidential information for the purpose for which it was disclosed, and only disclose the confidential information to those in its organisation who need to know in connection with the purpose for which it was disclosed. No disclosure may be made to anyone else without the consent of Sunfresh (with the exception of disclosure required by law, in which case prior notice of the disclosure must be given to Sunfresh).

 

Notices

  1. Any formal notice by one party to the other required by these terms and conditions or an Agreement must be in writing, and sent to the address for a party with which it normally deals (or to such other address for service of notices that a party has advised to the other). Notices are taken to be received:
    (a) if hand delivered, at the time of delivery;
    (b) if posted, on the 3rd day after posting within Australia or the 5th day after posting for international mail;
    (c) in the case of email or facsimile transmission, at the time of successful transmission.

 

General

  1. The failure by Sunfresh to enforce any provision of these terms and conditions will not be treated as a waiver of that provision, nor will it affect Sunfresh’s Right to subsequently enforce that provision. If any provision of these terms and conditions is invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
  2. These terms and conditions and the Agreement will be governed by the laws of the state of Queensland, Australia, and are subject to the exclusive jurisdiction of the courts in that state.
  3. The Buyer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Buyer by Sunfresh nor to withhold payment of any invoice because part of that invoice is in dispute.
  4. Sunfresh may assign, license or sub-contract all or any part of its Rights and Obligations without the Buyer’s consent.
  5. Sunfresh may alter these terms and conditions at any time. If Sunfresh makes a change to these terms and conditions, then that change will take effect from the date on which Sunfresh notifies the Buyer of such change. The Buyer will be taken to have accepted such changes if the Buyer makes a further request for Sunfresh to provide Produce to the Buyer.
  6. Neither party will be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of that party.
  7. The Buyer warrants that it has the power to enter into the Agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that the Agreement creates binding and valid legal Obligations on it.
  8. Neither these terms and conditions nor an Agreement based on them will be interpreted, construed or applied adversely to Sunfresh by reason of their having been drafted by or on behalf of Sunfresh.
  9. The parties expressly exclude from any Agreement the application of all provisions of the Vienna Convention on the International Sale of Goods.

 

 

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