TERMS AND CONDITIONS
1. Artisanal Australia terms and conditions of supply
1.1 The Customer agrees that until otherwise notified by Artisanal Australia or as otherwise agreed in writing, all Goods ordered by the Customer will be supplied on these terms and conditions if Artisanal Australia accepts the order.
1.2 These terms and conditions replace any previous terms and conditions of sale between the Customer and Artisanal Australia.
1.3 Artisanal Australia may vary these terms and conditions by notice in writing to the Customer.
1.4 The Customer agrees that the purchase of any Goods after the date of a notice of variation will be deemed to be an acceptance of such varied terms and conditions.
2. Operation of the Australian Consumer Law and Artisanal Australia's liability to Customer
2.1 Nothing in these terms and conditions limits or excludes or is intended to limit or exclude any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
4. Product information and allergic conditions
4.1 The Customer agrees that this clause is most important if there is a possibility of an allergic reaction by a consumer of the Goods.
4.2 Advertised product information, dietary information, photos & pack sizes are all for illustrative purposes and general advice.
4.3 The Customer must check the details on the packaging of the Goods before using them to ensure that the Goods meet the advertised description.
5. Allergen caution
5.1 Artisanal Australia packs a wide range of natural food products on shared equipment including nuts, seeds, grains and cereals including sesame, peanuts, soya protein and gluten containing products.
5.2 Artisanal Australia does its best to avoid any kind of cross contamination but this can happen.
5.3 The Customer acknowledges that any of the Goods may contain traces of nuts, seeds, grains and cereals including sesame, peanuts, soya protein and gluten containing products and accepts the risks associated with that.
6. Orders for supply of Goods to Customer by Artisanal Australia
6.1 When the Customer places an order they will receive from Artisanal Australia an order confirmation by email transmission. This email will only be an acknowledgement that we have received your Order and will not constitute acceptance of the Customer's order. A contract between the Customer and Artisanal Australia for the purchase of Goods will not be formed until Artisanal Australia accepts the order by issuing an invoice to the Customer.
6.2 Artisanal Australia may accept or refuse any order for Goods in its sole and absolute discretion.
6.3 Once an order from a Customer has been accepted by Artisanal Australia, the order cannot be cancelled by the Customer without the written consent of Artisanal Australia.
6.4 Unless otherwise agreed in writing by Artisanal Australia, any terms and conditions of the Customer's order varying, deviating from or inconsistent with these terms and conditions are expressly rejected by Artisanal Australia unless Artisanal Australia expressly agrees otherwise in writing.
6.5 A quotation by Artisanal Australia to the Customer will not be an offer to sell Goods to the Customer.
6.6 Artisanal Australia may make its acceptance of an order conditional upon it receiving a satisfactory credit assessment of the Customer or any other term or condition it decides to impose for the purpose of supply of the Goods.
6.7 The terms and conditions can only be varied in accordance with these terms and conditions.
6.8 Artisanal Australia's agents or representatives are not authorised to vary these terms and conditions.
6.9 Artisanal Australia's agents or representatives are not authorised to make any representations, statements or enter into agreements on behalf of Artisanal Australia.
6.10 Artisanal Australia will not be liable for any representations, statements or purported agreements made by Artisanal Australia's agents or representatives to the Customer.
7. Promotional products, goods and materials
7.1 Artisanal Australia may provide the Customer with promotional products, goods and materials.
7.2 They must not be sold by the Customer without the written approval of Artisanal Australia.
7.3 They must be returned to Artisanal Australia by the Customer on the demand of Artisanal Australia.
8. Goods to be supplied by Artisanal Australia to the Customer
8.1 The Goods to be supplied by Artisanal Australia to the Customer are only those Goods and as described in the invoice provided by Artisanal Australia to the Customer.
9. Price to be paid for the Goods
9.1 All prices for Goods that are quoted by Artisanal Australia to the Customer are based on the cost prevailing at the date of quotation but such prices are subject to change due to seasonal and market variations.
9.2 However, the price listed on the website at the time of invoicing is the price that the Customer will be charged at the time of invoicing.
9.3 If an item is out of stock before delivery to the Customer, Artisanal Australia will contact the Customer to advise and recommend an alternative where available.
9.4 If Artisanal Australia has taken payment and the item is subsequently found to be unavailable or unsuitable for delivery, a store credit will be applied to the Customer account registered with the same email address used to place your order. Store credits cannot be transferred to other Customer accounts. Refunds may be processed at our discretion via the Customer's original payment method.
9.5 The Price to be paid as referred to in this clause is subject to the Customer's obligations to Artisanal Australia to pay other costs and charges that are referred to in clauses 11, 13 and 16.
9.6 Subject to the next sub clause of this clause, the Price to be paid for the Goods will be as set out in the invoice provided by Artisanal Australia to the Customer for the Goods to be supplied by Artisanal Australia to the Customer.
9.7 The invoice will be deemed to have been received by the Customer when sent by email in accordance with the notice provisions of these terms and conditions.
9.8 Artisanal Australia will be entitled to alter the Price of Goods in the invoice as a consequence of currency fluctuations, taxes, customs duty or other government imposts.
10. Payment of the Price for the Goods
10.1 Unless otherwise previously agreed in writing by Artisanal Australia, the Customer will pay for all Goods on invoice after which delivery can take place.
10.2 Payment for Goods may be made by cash, personal cheque, bank cheque, direct credit, electronic funds transfer or by any other method as agreed to between the Customer and Artisanal Australia.
10.3 Artisanal Australia will be entitled to set off against any money owing to the Customer amounts owed to Artisanal Australia by the Customer on any account whatsoever.
10.4 The Customer will be entitled to set off against the Price amounts due from Artisanal Australia to the Customer.
11. Charges payable by the Customer arising from late payment for the Goods
11.1 If the Customer does not pay Artisanal Australia by the due date 1 day after invoice, the Customer will pay interest on monies due, charged on a daily basis at the rate calculated by adding 4% to the rate charged at the time by Artisanal Australia's bank on overdraft amounts over $100,000 per annum from the due date for payment until the actual date of payment.
11.2 If the Customer does not pay Artisanal Australia for the Goods by the due date, the Customer will pay to Artisanal Australia an administration fee which will be the greater of $50 or 10% pa of the amount overdue on an unpaid invoice.
11.3 The Customer agrees that the above charges are a reasonable liquidated cost of administering an abnormal payment.
11.4 The Customer agrees that the above charges are a genuine pre-estimate of the loss that will be suffered by Artisanal Australia if the Customer does not pay Artisanal Australia by the due date.
11.5 The Customer will also pay:
(a) any legal costs (on an indemnity basis);
(b) any other expenses payable and arising under or arising from these terms and conditions;
(c) all collection or recovery costs including legal fees (on an indemnity basis),
incurred by Artisanal Australia in connection with the supply of Goods by Artisanal Australia to the Customer.
12. Delivery of the Goods
12.1 Goods will be delivered or deemed to be delivered when they are delivered to the Customers nominated address or in the care, custody and control of the Customers or its agent, carrier or contractor.
12.2 If no delivery address is nominated, delivery will be deemed to occur at the time when the Goods are ready for collection at Artisanal Australia's premises.
12.3 The Customer authorises Artisanal Australia to deliver the Goods to the place nominated by the Customer and to leave the Goods at such place whether or not any person is present to accept delivery when the delivery method is Authority to Leave (ATL).
12.4 Artisanal Australia will not be liable on any basis whatsoever for loss or damage to the Goods suffered by the Customer after delivery to the nominated delivery place.
12.5 Artisanal Australia will not be obliged to obtain a signed receipt or other acknowledgement from any person at the nominated place for delivery.
12.6 If a signed receipt or other acknowledgement is obtained from someone believed by Artisanal Australia to be authorised by the Customer to sign or otherwise take delivery, the signed receipt or other acknowledgement will be conclusive evidence of the Customer's acceptance of the Goods delivered.
12.7 Any notified times for delivery are estimates only.
12.8 The Customer will not be relieved of any obligation to accept or pay for Goods by reason of any delay in delivery.
12.9 Artisanal Australia reserves the right to deliver Goods by instalments and each instalment will be deemed to be sold under a separate contract.
12.10 Failure to deliver any instalment or deliver any instalment on time will not entitle the Customer to end the contract in whole or in part.
12.11 The Buyer will take delivery of the Goods despite the quantity delivered being greater or less than the quantity purchased if:
(a) the difference in quantity is not more than 5%; and
(b) the Price will be adjusted pro rata by reference to the affected class of Goods to account for the difference.
12.12 Artisanal Australia will not be liable to the Customer for any Loss or Consequential Loss attributable to failure by Artisanal Australia to deliver the Goods.
13. Charges for delivery of the Goods
13.1 Artisanal Australia reserves the right to charge the Customer for the cost of freight to deliver the Goods from Artisanal Australia to the Customer in accordance with Artisanal Australia's current advertised rates, as at the date of delivery, which may be more than what Artisanal Australia is charged by its freight delivery service.
13.2 If there is no current advertised rate, then a reasonable delivery charge will be paid by the Customer.
13.3 The cost of freight will appear on the Customer's invoice. If there is no cost of freight on the Customer's invoice, there is no charge for the cost of freight to deliver the Goods.
13.4 Artisanal Australia reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Customer within 7 days of a request by Artisanal Australia for such information.
14. Risk in the Goods
14.1 The Goods will be at the sole risk of the Customer as soon as they are loaded to leave Artisanal Australia's premises.
14.2 The Customer will insure the Goods against theft or any damage until such Goods have been paid for, or until they are sold by the Customer, whichever occurs first and Artisanal Australia will be entitled to call for and be provided with the details of the insurance policy.
14.3 If the Customer does not insure the Goods or fails to supply details of its insurance policy, the Customer will reimburse Artisanal Australia for the cost of any insurance which Artisanal Australia may reasonably arrange in respect of the Goods supplied to the Customer.
14.4 If any of the Goods are damaged or destroyed prior to title to the Goods passing to the Customer, the Customer assigns to Artisanal Australia all insurance proceeds payable to the Customer for the loss or damage of the Goods.
14.5 The Customer will at the time that it makes any claim on an insurer in connection with the loss or damage to the Goods notify that insurer of the assignment of rights pursuant to this clause.
15. Title in the Goods
15.1 Property in and title to the Goods will not pass to the Customer until those Goods and all other amounts owed to Artisanal Australia by the Customer in respect of those Goods have been paid for in full.
15.2 Until the Goods have been paid for in full:
(a) the Customer must secure the Goods from risk, damage and theft;
(b) the Customer must keep the Goods in good condition;
(c) the Customer must keep the Goods fully insured against all risks that are normally insured against by a business of a similar nature to the Customer;
(d) Artisanal Australia may require the Customer to return the Goods to Artisanal Australia or its authorised representative on demand;
(e) the Customer will without charge hold the Goods as trustee and agent for Artisanal Australia;
(f) the Goods must be stored separately and in a manner enabling them to be:
(i) identified as Goods of Artisanal Australia; and
(ii) cross-referenced to particular invoices;
(g) the Customer acknowledges that if it processes or mixes the Goods with other products or items so that the Goods are no longer separately identifiable, the Customer and Artisanal Australia will be joint owners of the new product;
(h) the Customer may sell the Goods in the ordinary course of its business as trustee and agent of Artisanal Australia and will hold the proceeds of sale in a separate account on trust for Artisanal Australia and account to Artisanal Australia for those proceeds;
(i) Artisanal Australia may enter the premises of the Customer to inspect or repossess the Goods;
(j) if the Goods are not stored on the premises of the Customer, the Customer must procure access to the premises where the Goods are stored so that Artisanal Australia can inspect or repossess the Goods.
15.3 To secure the payment of all monies owing by the Customer to Artisanal Australia, the Customer grants to Artisanal Australia a Security Interest in:
(a) all Goods supplied to the Customer under these terms and conditions (Collateral); and
(b) over the proceeds arising from the sale of the Collateral by the Customer whether or not that sale is permitted by these terms and conditions.
15.4 The Customer agrees that the Security Interest referred to in the prior sub clause is a Purchase Money Security Interest in respect of any Goods for which Artisanal Australia has not been paid in full.
16. Return of Goods absent a claim by the Customer
16.1 Except as set out in the next clause:
(a) unless agreed in writing by Artisanal Australia, Artisanal Australia will not accept any return of Goods; and
(b) any Goods that may be accepted for return by Artisanal Australia will attract a charge to the Customer to cover restocking and repackaging charges.
16.2 The amount of the charge will be:
(a) determined by Artisanal Australia but will be not less than 60% or $50 of the price of the Goods whichever is greater;
(b) deducted from any credit allowed.
16.3 The original invoice number and a copy of the original invoice must accompany all Goods returned to Artisanal Australia under this clause.
16.4 The Customer agrees that the above charges are a reasonable liquidated cost of administering a return of Goods.
17. Claims from the Customer against Artisanal Australia about the Goods
17.1 Nothing in these terms and conditions, including under this clause, limits or excludes or is intended to limit or exclude any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
17.2 Artisanal Australia warrants that, except as may be required by law, when Goods are delivered to the Customer they will comply with:
(a) the description name for the Goods in the invoice issued for them;
(b) the guaranteed values (if any) that are set out in the invoice provided to the Customer by Artisanal Australia for those Goods;
17.3 The Customer agrees that, except as may be required by law, in respect of the descriptions, values, specifications or characteristics referred to in the prior sub clause:
(a) Artisanal Australia is not required to supply Goods otherwise than in accordance with the prior sub clause;
(b) typical values for the Goods in the invoices issued for them, on the Goods packaging and/or as then listed for those Goods on the Artisanal Australia website are not guaranteed values;
(c) the Customer accepts variations to typical values from batch to batch.
17.4 The Customer acknowledges, agrees, represents and warrants that:
(a) except to the extent otherwise required by law, as the use of the Goods is outside of the control of Artisanal Australia, unless agreed otherwise in writing between Artisanal Australia and the Customer prior to purchase, in purchasing the Goods, the Customer is satisfied that the Goods will be suitable or fit for any ordinary or special purpose required for the Goods by the Customer and that Artisanal Australia has not made any representations about those things;
(b) the Customer has or will in a timely way conduct all prudent or mandatory tests and apply prudent or mandatory quality control checks and procedures to ensure that the Goods (whether for using the Goods in the course of production or manufacture) and any product that is produced from them will be without defect and suitable or fit for any purpose required by the Customer.
17.5 The Customer releases and indemnifies Artisanal Australia and its officers, employees, contractors and agents from and against all claims or actions and costs arising from them (including those brought by third parties) which may be brought against Artisanal Australia and/or its officers, employees, contractors and agents, whether alone or jointly with the Purchaser in respect of any Loss and/or any Consequential Loss arising out of any breach by the Customer of any representation or warranty in the prior sub clause of this clause.
17.6 Otherwise, to the extent permitted by law, all guarantees, warranties, representations or conditions are expressly excluded.
17.7 All claims by the Customer for failure by Artisanal Australia to comply with an accepted order of the Customer, whether due to shortfall, defect, incorrect delivery or otherwise, must be made by the Customer by written notice to Artisanal Australia (together with accompanying evidence including photographic) at the later of 24 hours of the date of delivery or any longer reasonable time allowed by law.
17.8 If the Customer does not give that notice, the Customer will be deemed to have accepted the Goods and will not be entitled to make any claim against Artisanal Australia.
17.9 The Customer agrees that Artisanal Australia will have the right to inspect on site any Goods notified by the Customer as failing to comply with an order of the Customer.
17.10 Until that inspection takes place or is waived by Artisanal Australia, the Goods must not be used.
17.11 Except as required by law, the liability of Artisanal Australia in respect of a breach of a consumer guarantee or any warranty made under these terms and conditions for any Goods not of a kind ordinarily acquired for personal, domestic or household use or consumption, is limited to, at the option of Artisanal Australia:
(a) replacing the Goods or the supply of equivalent Goods;
(b) the repair of the Goods;
(c) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(d) the payment of the cost of having the Goods repaired.
17.12 To the extent permitted by law all other warranties whether implied or otherwise, not set out in these terms and conditions, an invoice provided to the Customer by Artisanal Australia or otherwise in writing between Artisanal Australia and the Customer prior to the Customer placing an order for Goods are excluded.
17.13 Artisanal Australia will not be liable to the Customer for:
(a) any failure to deliver or for delay in delivery of Goods arising from strike, lockout or other industrial dispute, shortage of stock, shortage of labour, lack of skilled labour, delays in transit, fire, flood, hostility, civil commotion or any other cause whatsoever whether or not beyond the control of Artisanal Australia; or
(b) any claim in connection with Goods which arises from fault or failure due to external causes including accident, abuse, misuse, any act of God including hail, problems with electricity including outages or power surges, problems caused by parties other than Artisanal Australia or any act or omission by the Customer or the Customers officers, employees, contractors and agents or any third party.
18. Personal Property Securities Act 2009 (Cth)
18.1 The Customer acknowledges that Artisanal Australia as Secured Party, is entitled to register on the Personal Property Securities Register, Artisanal Australia's Security Interest that arises under clause 15 of these terms and conditions.
18.2 The Customer waives its rights to any of the following under the PPSA:
(a) receive notice of removal of an Accession under section 95 of the PPSA;
(b) receive a notice which section 144 or 157(3) of the PPSA permit the Customer to waive;
(c) receive notice of an intention to seize Collateral under section123 of the PPSA;
(d) receive notice of disposal of Collateral under section 130 of the PPSA;
(e) receive a Statement of account if there is no disposal under section 132(4) of the PPSA;
(f) receive a Statement of account under section 132(3)(d) of the PPSA following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged;
(g) receive notice of retention of Collateral under section 135 of the PPSA;
(h) redeem Collateral under section 142 of the PPSA;
(i) reinstate the Security Agreement under section 143 of the PPSA; and
(j) object to the purchase of the Collateral by the Secured Party under section 129 of the PPSA.
18.3 The Customer agrees that, to the extent permitted by law, nothing in sections 130 to 143 of the PPSA will apply to or the Security Interest granted under these terms and conditions
18.4 The Customer agrees that if it grants a ‘non purchase money security interest' in the Proceeds (within the meaning contained in s64 of the PPSA) to a third party as original collateral for new value, the Customer will:
(a) on the direction of Artisanal Australia, purchase new inventory from Artisanal Australia with the proceeds of sale within 7 days of Artisanal Australia receiving notice under s64 of the PPSA; or
(b) on the direction of Artisanal Australia, pay Artisanal Australia all outstanding amounts in the account
18.5 Capitalised terms in this clause which are not separately defined, have the same meaning given to them in the PPSA.
19. Goods and Services Tax
19.1 Unless otherwise expressly stated, all amounts stated to be payable by the Customer to Artisanal Australia under these terms and conditions, including as part of the Price, are inclusive of GST.
19.2 If GST is imposed on any supply otherwise made under or in accordance with these terms and conditions, the recipient of the taxable supply must, without deduction or set off, pay the supplier an additional amount equal to the GST payable on or for the taxable supply.
19.3 Payment of the additional amount will be made at the same time as payment for the taxable supply subject to the provision of a tax invoice.
20. Trust and trustees
20.1 Where the Customer is a trustee:
(a) the Customer agrees to produce a stamped copy of the trust deed (with all amendments) if and when requested by Artisanal Australia;
(b) the Customer warrants that it has full power and authority to enter a contract to purchase Goods under these terms and conditions on behalf of the trust;
(c) the Customer warrants that it will be bound by these terms and conditions both personally and in their capacity as trustee irrespective of whether or not it discloses to Artisanal Australia that it is a trustee at the time of entering into any credit agreement with Artisanal Australia;
(d) the Customer warrants that the trust has agreed to indemnify the trustee in respect of all liability incurred by the trustee pursuant to a contract to purchase Goods under these terms and conditions;
(e) the trustee of the trust acknowledges that it has entered into the contract to purchase Goods under these terms and conditions in its capacity as trustee of the trust and also in its own capacity.
21. Acknowledgement about opportunity to get legal advice
21.1 The Customer agrees that:
(a) a copy of these terms and conditions have been offered to them online via the Artisanal Australia website to enable them to take them away and read them so that they may fully understand them;
(b) they have read and fully understand these terms and conditions;
(c) in accepting these terms and conditions, they have been advised by Artisanal Australia to get prior independent legal advice and they have either taken that advice or declined the opportunity to take it.
22. Termination by Artisanal Australia
22.1 Artisanal Australia may suspend or end supply to the Customer under these terms and conditions without prior notice, given at any time, in Artisanal Australia's sole and absolute discretion, without cause, effective immediately or at a later time nominated by Artisanal Australia.
23. Default by Customer
23.1 If any of the following happen:
(a) there is a breach by the Customer of any of these terms and conditions;
(b) an administrator, liquidator or provisional liquidator is appointed in respect of the Customer;
(c) a receiver and manager, administrator or controller is appointed in respect of any assets or groups of assets of the Customer;
(d) the Customer goes into bankruptcy or is wound up;
(e) the Customer becomes, admits in writing that it is, or is declared by a court to be unable to pay it debts as and when they fall due,
all monies payable by the Customer to Artisanal Australia will become immediately due and payable despite the due date for payment not having happened and Artisanal Australia may without prejudice to any other rights it may have do any or all of the following:
(f) withdraw any credit facilities which may have been extended to the Customer;
(g) withhold any further deliveries of Goods;
(h) in respect of Goods already delivered onto the Customer's premises, recover and resell the Goods; and
(i) recover from the Customer the cost of materials or Goods acquired for the purposes of future deliveries;
(j) cease to supply Goods to the Customer.
24.1 Except as otherwise specifically set out in or provided for in these terms and conditions:
(a) Artisanal Australia is liable to the Customer for any Loss suffered by the Customer and arising under a supply of Goods by Artisanal Australia to the Customer under these terms and conditions except to the extent that the Loss is caused by the Customer or its officers, employees, contractors or agents;
(b) the Customer releases and indemnifies Artisanal Australia and its officers, employees, contractors and agents from and against all claims or actions and costs arising from them in respect of any Loss (including those brought by third parties) and suffered by the Customer and arising under a supply of Goods by Artisanal Australia to the Customer under these terms and conditions to the extent that the Loss is caused by the Customer or its officers, employees, contractors or agents;
(c) Artisanal Australia is not liable to the Customer at any time for any Consequential Loss suffered by the Customer and arising under a supply of Goods by Artisanal Australia to the Customer under these terms and conditions no matter how it arises including if it arises from or is caused or contributed to by breach of contract by or the negligence of Artisanal Australia or its officers, employees, contractors or agents.
25. Dispute resolution
25.1 If any dispute (Dispute) arises:
(a) out of or in relation to these terms and conditions; or
(b) out of or in relation to the operation or construction of the contract arising under these terms and conditions; or
(c) in connection with the transaction contemplated by these terms and conditions,
subject to the last sub clause of this clause, the parties must comply with this clause.
25.2 A party claiming that a Dispute has arisen must give written notice (Dispute Notice) to the other party setting out the nature of the Dispute.
25.3 The parties must endeavour in good faith to settle the Dispute between themselves within 28 days of receipt of the Dispute Notice.
25.4 If the Dispute has not been settled within 28 days (or such other period as agreed to between the parties) after the giving of the Dispute Notice, the Dispute must be submitted to arbitration administered by the Australian Disputes Centre (ADC) and conducted in accordance with the ADC arbitration rules.
25.5 The costs of the arbitrator and of the arbitration under this clause will be paid in accordance with the decision of the arbitrator.
25.6 The arbitration will be held in Sydney or such other place as the parties may agree.
25.7 The arbitrator's decision will be final and binding on the parties.
25.8 Nothing in this clause prevents a party from seeking urgent interlocutory injunctive relief before an appropriate court.
26. Entire agreement
26.1 Except as may be set out in any credit application by the Customer to Artisanal Australia:
(a) these terms and conditions are the entire agreement of the parties on the subject matter;
(b) the only enforceable obligations and liabilities of the parties in relation to the subject matter are those that arise out of these terms and conditions.
26.2 All representations, communications and prior agreements in relation to the subject matter are merged in and superseded by these terms and conditions.
27.1 If a provision of these terms and conditions or a right or remedy of a party under these terms and conditions is invalid or unenforceable in a particular jurisdiction:
(a) it is read down or severed in that jurisdiction only to the extent of the invalidity or unenforceability; and
(b) it does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions in any jurisdiction.
27.2 This clause is not limited by any other provision of these terms and conditions in relation to severability, prohibition or enforceability.
28. Variation of these terms and conditions
28.1 These terms and conditions may only be varied in writing signed by the parties.
29.1 The Customer must not assign or encumber the Customer's rights under these terms and conditions without the prior written consent of Artisanal Australia which must not be unreasonably withheld.
29.2 Artisanal Australia may assign its rights under these terms and conditions without the Customer's consent.
30.1 The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right.
30.2 No single exercise of a power or right precludes any other or further exercise of it or the exercise of any other power or right.
30.3 A power or right may only be waived in writing, signed by the party to be bound by the waiver.
31. Governing law
31.1 These terms and conditions are governed by the law in force in New South Wales.
32.1 The parties submit to the exclusive jurisdiction of the:
(a) Courts of the New South Wales; and
(b) Courts exercising federal jurisdiction over matters arising in the New South Wales;
(c) any Court that may hear appeals from those Courts,
in respect of any proceedings in connection with these terms and conditions.
33.1 All notices required or permitted to be given by one party to another under these terms and conditions must be in writing, addressed to the other party or their lawyer; and:
(a) delivered to that party's address or their lawyer's; or
(b) posted to a party's address or the lawyer's;
(c) transmitted by e-mail to that party's e-mail address or their lawyer's.
33.2 A notice given to a party under subclause 1 of this clause is treated as having been given and received:
(a) if delivered to a party's address or their lawyer's on the day of delivery if a business day, otherwise on the next business day; and
(b) if posted to a party's address or their lawyer's, on the second business day after posting, if a business day, otherwise on the second business day after the next business day;
(c) if transmitted by electronic mail to a party's e-mail address or their lawyer's and no message is received stating that the transmission has failed, on the day of transmission if a business day, otherwise on the next business day.
33.3 For the purposes of this clause:
(a) in the case of an address not otherwise set out in these terms and conditions, the address is an address which that party or their lawyer may from time to time give notice of to each other party or their lawyer;
(b) in the case of an e-mail address, is an e-mail address which:
(i) that party or their lawyer may from time to time give notice of to each other party or their lawyer; or
(ii) which that party or their lawyer may use from time to time to send communications to the other party or lawyer.
34. Interpretation and definitions
34.1 In these terms and conditions, the following definitions and expressions have the stated meaning unless the context otherwise requires or permits.
34.2 Consequential Loss means any Loss that does not arise naturally or ordinarily in the course of things from the event or circumstance giving rise to the Loss even if a party had previously been advised of the possibility of it, including loss of production, downtime costs, loss of use, loss of contract, loss of opportunity, loss of goodwill, loss of business, loss of revenue, increase in cost and loss of profit.
34.3 Customer means a person or entity whose order for the purchase of Goods is accepted by Artisanal Australia and Customers means each of them.
34.4 Goods means the Goods supplied by Artisanal Australia to the Customer when Artisanal Australia issues an invoice to the Customer.
34.5 Artisanal Australia means Artisanal Australia as supplier of the Goods, ABN 48 504 048 066.
34.6 Loss means any judgment, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, liquidated or unliquidated, fixed or unascertained, actual or contingent whether at law, in equity, or otherwise as the natural and ordinary direct damage from the event or circumstance giving rise to such judgment, debt, damage, loss, cost, expense or liability.
34.7 Purchase Money Security Interest or PMSI has the meaning given to it in the PPSA;
34.8 Price means the cost of the Goods as agreed between Artisanal Australia and the Customer subject to clause 9 of these terms and conditions.
34.9 Security Interest has the meaning given to it in the PPSA;
34.10 The headings do not form part of these terms and conditions and are for convenience only.
34.11 Words importing the singular will include the plural and vice versa.
34.12 Words importing a gender will include other genders.
34.13 References to a person will be read as references to an individual, firm, body corporate, association (whether incorporated or not), government and governmental, semi- governmental and local authority or agency.
34.14 A reference to a party includes references to the party's executors, administrators, successors, substitutes (including, without limitation, persons taking by novation), assigns, contractors, agents, employees, invitees and licensees.
34.15 A right or obligation of 2 or more persons gives that right or imposes that obligation jointly and severally.
34.16 A reference to an association or body which has ceased to exist includes the organisation established in the place of that association or body to serve substantially the same purposes.
34.17 A reference to the president of a body or authority is a reference, if there is no such person, to the senior officer of the body or authority or to the person who fulfils the duties of president.
34.18 A reference to any statute, regulation, proclamation, ordinance or by law includes all statutes, regulations, proclamations, ordinances or by laws varying, consolidating or replacing them, and a reference to a statute includes all regulations, proclamations, ordinances and by laws issued under that statute.
34.19 No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these terms and conditions or any part of them.
34.20 Where the day or last day for doing something or on which an entitlement is due to arise is not a business day, that day or last day will be the immediately following business day.
34.21 If these terms and conditions prohibit a party from doing a thing, then that party may not allow or cause any person to do that thing.
34.22 A reference to conduct includes any omission and any statement or undertaking, whether or not in writing.
34.23 Expressions used in these terms and conditions that have been defined in the A New Tax System (Goods and Services Tax) Act 1999 have the meaning given to that expression in that Act.
34.24 A reference to guaranteed values and typical values is a reference to that expression as used in Australian Standards.