- "Soulfresh" means Soulfresh APAC Pty Ltd (ACN 603 119 688); "Customer" means the persons or entity which has been approved by Soulfresh to obtain goods, materials and services on credit on these Terms and Conditions of Trade as authorised by Soulfresh.
- Soulfresh agrees to provide the Customer a continuing credit account ("the Facility") to enable the Customer to purchase goods, materials and services from Soulfresh from time to time as authorised by Soulfresh.
- The purchase price of products, goods and services purchased by the Customer shall be as agreed between the Customer and Soulfresh, or as otherwise set by Soulfresh, from time to time.
- Soulfresh will issue Invoices for purchases and other charges at the end of each calendar month (or at such other times as Soulfresh notifies the Customer). The Invoices shall specify the amounts owed to Soulfresh as at the date indicated on the Invoice together with any additional charges and fees applicable thereto. Payment in full of all monies claimed in the Invoice must be received by Soulfresh by the due date on the Invoice or within the credit terms of the Customer’s account as approved by Soulfresh.
- Soulfresh reserves the right to require payment in full upon delivery of the goods or completion of the services.
- All payments must be made in Australian dollars in either cash, cheque, credit card, EFTPOS, bank draft, irrevocable letter of credit or telegraphic transfer. Payment by cheque is not deemed made until the proceeds of the cheque have cleared. Payment terms may be revoked or amended at Soulfresh’s sole discretion immediately upon giving the Customer written notice.
- The time for payment is of the essence.
- If the Customer is in default of any payment of any invoice or debt if payment is not received by 5:00pm of the due date.
- If the Customer defaults in payment by the due date of any amount payable to Soulfresh, then without prejudice to any of its other accrued or contingent rights, Soulfresh shall be entitled to:
- Cancel the Facility or any uncompleted contract by giving written notice to the Customer;
- Cease or suspend supply of any further goods or services to the Customer;
- Charge interest on the amount of monies outstanding from the day following the date due for payment until the date payment is made at the prevailing rate pursuant Section 2 of the Penalty Interest Rates Act 1983 (Vic) calculated on a daily basis. The parties agree that this amount is a genuine pre-estimate of Soulfresh's damages and is not a penalty;
- Claim from the Customer all costs, expenses and charges incurred on any account whatsoever on an indemnity basis including but not limited to any action taken by Soulfresh to recover monies owing by the Customer, including but not limited to debt collection and mercantile agent's costs and commission fees, skip trace and location fees, and legal costs and disbursements on a solicitor/client basis; and
- Credit any payments received from the Customer first against any interest charges and costs and all such charges shall be payable upon demand.
- The Customer hereby charges all its right, title and interest in any real property that the Customer owns currently or may acquire in the future solely or jointly or have come to have a beneficial interest in, in favour of Soulfresh, with the due and punctual observance and performance of all obligations of Soulfresh. The Customer indemnifies Soulfresh against all expenses and legal costs (on a solicitor/own client basis) for preparing, lodging and removing any caveat.
- The Customer hereby agrees and acknowledges that Soulfresh, may at its discretion, register and lodge a caveat(s) on such property or properties in respect of the interests conferred on it under this clause. Such registration of a caveat by Soulfresh over the Customer’s property or properties must not be challenged by the customer in any way whatsoever, and the Customer agrees not to take any steps in filing a "lapsing notice" via the Land Tittles Office to have the caveat removed until such time that the Customer has paid all monies owing by the Customer to Soulfresh as claimed from time to time.
Personal Properties Securities Act ("PPSA)
- Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
- To the extent permitted by the PPSA, the Customer must immediately, upon Soulfresh’s request, do all things and execute all documents necessary to give effect to the security interest created under these Terms, and procure from any person considered by Soulfresh to be relevant to its security position such as agreements and waivers as Soulfresh may at any time require.
- Soulfresh may allocate amounts received from the Customer in any manner that Soulfresh determines, including in any manner required to preserve any purchase money security interest it has in goods supplied by Soulfresh.
Risk and insurance
- The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately upon the goods being delivered to the Customer or taken from Soulfresh’s premises.
- The goods and sold and services provided to the Customer on the basis that the Customer and/or its agents have obtained all necessary licences or permits under all relevant laws and regulations in relation to the goods and services.
- The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties, arising out of us or possession of any of the goods sold by Soulfresh to the Customer, unless recoverable from Soulfresh on the failure of any statutory guarantee under the Australian Consumer Law.
- Soulfresh will use its reasonable endeavours to meet any estimated dates or times for delivery of the goods or services but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date or time.
- A completed driver manifest or delivery docket whether signed by the driver or by the Customer or its employee or agent will be proof of delivery of the goods invoiced.
- If Soulfresh cannot complete the services by any estimated date, it will complete the services within a reasonable time.
- Subject to clause 25, Soulfresh will arrange for the delivery of the goods to the Customer.
- The Customer will be responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the goods to the Customer to the point of delivery.
- The Customer authorises Soulfresh to subcontract delivery in its absolute discretion.
- Soulfresh may make part delivery of goods or provision of services and Soulfresh may invoice the Customer for the goods and services provided.
- The Customer indemnifies Soulfresh against any loss or damage suffered by Soulfresh, its sub-contractors or employees as a result of delivery, except where the Customer is a consumer and Soulfresh has not used due care or skill.
- If delivery is attempted and is unable to be completed, the Customer is deemed to have taken delivery of the goods. The Customer is liable for storage charges payable fortnightly on demand.
- If the parties agree that the Customer will collect the goods:
- The Customer must collect the goods within 3 days of being advised that the goods are ready for collection;
- If the Customer does not collect the goods within this time, the Customer is deemed to have taken delivery of the goods and is liable for storage charges payable fortnightly on demand.
- If the Customer is a consumer, nothing in these Terms restricts, limits or modifies the Customer’s rights or remedies against Soulfresh for failure of a statutory guarantee under the Australian Consumer Law.
- If Soulfresh is unable to deliver or provide the goods or services, then it may cancel the Customer’s order (even if it has been accepted) by written notice to the Customer.
- No purported cancellation or suspension of an order or any part of it by the Customer is binding on Soulfresh once the Customer has accepted the order.
- Soulfresh, in its absolute discretion may review, alter or terminate the Customer’s credit limit or payment terms by giving notice in writing. Soulfresh may request additional information or the provision of further security to the Facility and may suspend or cancel the Facility if the information or security requested is not provided within a reasonable time.
- Returns and exchanges
- Subject to clause 35, Soulfresh will not be liable for any shortages, damage or non-compliance with the specifications with the order unless the Customer notifies Soulfresh with full details and description within 7 days of delivery, otherwise the Customer is deemed to have accepted the goods.
- When any shortages, claim for damaged goods or non-compliance with the order specifications is accepted by Soulfresh, Soulfresh may, at its sole discretion, replace the goods, or refund the price of the goods.
- Soulfresh will not accept goods for return that are discontinued goods or no longer stocked by Soulfresh, have been altered in any way, have been used, or are not in their original condition and packaging.
- If Soulfresh accepts goods for return, the Customer will receive a credit for the returned goods equal to the price charged by Soulfresh less a 20% deduction for handling and restocking charges. Goods can only be returned to Soulfresh with a Return Authorisation number.
- Subject to the provisions of the Australian Consumer Law, the Customer must obtain Soulfresh’s prior written approval for return of the goods and pay all charges and costs associated with return of goods.
- The Customer must, as soon as practicable, notify Soulfresh in writing of any change of address.
- Soulfresh reserves the right to vary these Terms and Conditions of Trade at any time by prior notice in writing. Soulfresh shall give the Customer not less than seven (7) days’ written notice of any variation of these Terms and Conditions of Trade.
- These Terms shall be governed by and construed in accordance with the laws of the State of Victoria. The parties submit to the non-exclusive jurisdiction of the courts and tribunals exercising jurisdiction there.
- These Terms express and incorporate the entire agreement between the parties in relation to its subject matter, and all the Terms of this agreement, and supersede and exclude any prior or collateral negotiation, understanding, communication, agreement, representation or warranty by or between the parties in relation to that subject matter or any term of that agreement. Neither party shall, after execution of these Terms, be entitled, as against the other party or other officers of any party, to bring a claim on the basis of any verbal or written communications, representations, inducements, undertakings, agreements or arrangements except as expressly as provided by these Terms.