1 Definitions and interpretation
1.1 Definitions
Account Holder means a wholesale or bulk Buyer with an agreed credit terms account with Calabro Olive Grove.
Additional Charges means charges that are separate from the price for the Goods, and may include but are not limited to shipping costs, courier fees, storage costs and Calabro Olive Grove administration costs where default or variations occur.
Buyer or You means the purchaser of the Goods and/or the User where the context requires.
Calabro Olive Grove means Paolo Calabro (ABN 60 873 314 436) trading as Calabro Olive Grove being the seller of the Goods.
Goods means the olive oil and related products sold by Calabro Olive Grove to the Buyer.
Intellectual Property means all intellectual property rights owned by Calabro Olive Grove or licenced exclusively to Calabro Olive Grove including but not limited to all “Calabro Olive Grove Powerfoods” branding, trademarks, service marks, logos, trade names, domain names and URLs, product designs, product packaging designs, product catalogues and imagery, discoveries, inventions, present and future patent and patent applications, rights to inventions, copyright and related rights, rights in good will or to sue for passing off, rights in designs, rights in processes, recipes, ingredient combinations, flavours, registered designs, database rights, rights in confidential information (including know-how and trade secrets), any technical materials and user manuals associated with the use or supply of the Goods and any other intellectual property rights. These rights may be registered or unregistered.
Invoice means a tax invoice issued by Calabro Olive Grove to the Buyer specifying the price for the Goods ordered by the Buyer and any Additional Charges payable by the Buyer to Calabro Olive Grove for the Goods and any services.
Order means a confirmed order for purchase of the Goods by the Buyer from Calabro Olive Grove.
Terms means the terms and conditions set out in this document.
User means a viewer or user of the Website, whether for purchases, research, recreation or other personal or commercial use.
Website means the Calabro Olive Grove Powerfoods website at the following domain: www.calabroolivegrove.com.au
1.2 Interpretation
(a) A singular word includes the plural, and vice versa.
(b) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(c) The parties agree that time is of the essence in the performance of their duties.
(d) Any stipulation or act having legal effect which binds or benefits two or more persons under this contract binds or benefits those persons jointly and severally.
(e) A reference to any legislation includes:
(i) any replacement or amending legislation; and
(ii) any regulations, by-laws or other instrument issued under it.
(f) A reference to a period of time means:
(i) in the case of a day, the period of time commencing at midnight and ending 24 hours later;
(ii) in the case of a month, a calendar month; and
(iii) that period of time is calculated exclusive of the day on which any event occurs or on which the thing relates to.
(g) Where the performance by any party of any duty expressed in or implied into this contract requires the cooperation of the other party, that party must cooperate with the first party to assist the first party to perform that duty.
(h) The headings and notes in this contract do not control the meaning of the stipulations to which they relate.
(i) Nothing in these Terms 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 Competition and Consumer Act 2010 (Cth)) and which by law cannot be excluded, restricted or modified.
2 Acceptance of Terms
(a) The Goods and all other products sold by Calabro Olive Grove are sold pursuant to these Terms. These Terms (or any part of them) can only be waived in writing signed by Calabro Olive Grove and the Buyer.
(b) The Buyer is deemed to have agreed to these Terms if the Buyer:
(i) submits an Order for Goods (whether via the Website or otherwise);
(ii) accepts a quotation for the supply of Goods from Calabro Olive Grove verbally or in writing; or
(iii) otherwise provides instructions to Calabro Olive Grove in relation to the supply of Goods.
(c) If Calabro Olive Grove accepts an Order for Goods from the Buyer, the parties will have created a binding contract and Calabro Olive Grove will supply the Goods and/or services to the Buyer, and the Buyer will pay the purchase price together with any Additional Charges to Calabro Olive Grove as specified in any quotation and/or Invoice in accordance with these Terms.
(d) By making use of the Website, Users are deemed to have accepted all of the terms and conditions herein which are relevant to use of the Website.
3 Ordering & Payment
(a) For all Orders via the Website:
(i) Calabro Olive Grove requires payment in full for the Goods and any Additional Charges prior to shipping; and
(ii) payment will only be accepted electronically, using the payment methods available on the Website.
(b) You understand that personal information (not including credit card information), may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
(c) The Buyer agrees to provide current, complete and accurate purchase and account information for all Orders submitted to Calabro Olive Grove. You agree to promptly update account and other information which may have changed, including email address, telephone number and credit card numbers / expiration dates, so that Calabro Olive Grove can process Orders effectively and contact You in relation to your Order if required.
(d) Sales of Goods via the Website is for personal consumption Buyers only. Calabro Olive Grove reserves the right to limit or prohibit orders that, in Calabro Olive Grove’s sole judgment, appear to be placed by dealers, resellers or distributors. Wholesale or retail resellers are encouraged to contact Calabro Olive Grove directly in order to become an Account Holder.
(e) For Account Holders, payment in full is required in full as indicated by the due date nominated on the Invoice unless otherwise agreed in writing.
(f) If an Account Holder fails to make payment of any amount on the due date for payment, the Account Holder Buyer must pay to Calabro Olive Grove:
(i) interest on the full amount outstanding at the rate equal to 4% higher than the penalty interest rate fixed by the Attorney-General of Victoria pursuant to s2(1) of the Penalty Interest Rate Act 1983 (Vic), calculated monthly for the period from the due date until payment is received; and
(ii) any reasonable administration costs incurred by Calabro Olive Grove associated with or incidental to the failure to make payment including but not limited to one-off charges of $25 for the issuing of financial statements, payment reminders and debtor telephone calls.
(g) If notice of outstanding amounts has been given to the Account Holder Buyer and, notwithstanding the notice, the Buyer fails to pay any amount due to Calabro Olive Grove, Calabro Olive Grove will be at liberty to suspend the supply of Goods or performance of services (whether as part of the supply of Goods or any other engagement) until such time as outstanding amounts have been paid in full.
(h) The Buyer must reimburse Calabro Olive Grove for the full amount of any bank or other fees associated with any dishonoured payments or cheques and hereby indemnifies Calabro Olive Grove against any legal, debt recovery or other expense associated with any action by Calabro Olive Grove to recover money from the Buyer.
(i) The Buyer may not withhold, make deductions from, or set-off payment of any monies due to Calabro Olive Grove for any reason.
4 Placing Orders Online & Use of the Website
(a) Buyers are restricted to one designated Website account each. It is prohibited to set up multiple accounts for the one Buyer.
(b) Prices for Goods on the Website can be impacted by a range of factors such as ingredient seasonality and availability, labour costs, and other production related factors. Prices displayed on the Website are subject to change without notice.
(c) The Buyer expressly agrees and acknowledges that prices quoted for the Goods on the Website do not include costs of despatch, transport, and delivery of the Goods which will be added at checkout (prior to payment) and be at the expense of the Buyer.
(d) Calabro Olive Grove makes reasonable efforts to display as accurately as possible the colours and images of Goods that appear on the Website, however, cannot guarantee that computer monitor's display of any colour or shapes of Goods will be render an accurate representation.
(e) Calabro Olive Grove reserves the right to:
(i) limit the sale of our Goods;
(ii) prevent the sales of our Goods; or
(iii) cancel an Order for any Goods
to any person, geographic region or jurisdiction where it determines (in its absolute discretion) that it is not legal, reasonably practical, economically viable or sufficiently safe to process the Order as requested by the Buyer. Calabro Olive Grove also reserves the right to discontinue any Goods at any time.
(f) Whilst Calabro Olive Grove makes reasonable efforts to ensure the information contained on the Website is accurate and current, it cannot accept responsibility if information displayed on the Website is not accurate, complete or current.
(g) Any nutrition related material or data displayed on the Website is provided for general information only and should not be relied upon or used as the sole basis for making health related decisions. Users are encouraged to always consulting primary, more accurate, more complete or more timely sources of information and, where reasonable, seek the professional opinion of a medical practitioner or dietician. Any reliance on nutrition related information on the Website is at the Buyer’s own risk.
(h) Any offer for Goods made on the Website is strictly subject to availability which cannot be reasonably assessed until after the Order is processed. Where Goods are not available, a refund, credit or substitution of Goods will be offered to the Buyer.
(i) Third-party links on the Website may direct you to third-party websites that are not affiliated with us. Calabro Olive Grove shall not be responsible for examining or evaluating the content or accuracy of third party sites and does not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties. Please review carefully the third-party's policies on such third-party and websites make sure You understand them before you engage in any transaction with a third party. Complaints, claims, concerns, or questions regarding third-party products should be directed to that third-party.
5 Packing
The cost of any Account Holder special packing and packing materials used in relation to the Goods which are specifically requested by the Buyer shall be at the Buyer's expense, even if that cost has been omitted from any estimate or quotation issued by Calabro Olive Grove.
6 Shortage
The Buyer waives any claim for shortage of any Goods delivered if a claim in respect of short delivery has not been lodged with Calabro Olive Grove in writing within 3 days from the date of receipt of Goods by the Buyer.
7 Storage
Calabro Olive Grove reserves the right to charge a reasonable fee for storage if delivery instructions are not provided by the Buyer within 7 days of a request by Calabro Olive Grove for such instructions. The parties agree that Calabro Olive Grove may charge for storage from the 8th day after Calabro Olive Grove requests the Buyer to provide delivery instructions.
8 Delivery Policy
(a) For Buyers of Goods on the Website:
(i) It is the Buyer’s obligation to enter the correct delivery address details at the time of ordering. If You enter the wrong address, Calabro Olive Grove shall not be liable to re-send the Order or bear any expense associated with the error.
(ii) If You are not at the delivery address at the time of delivery, the Order may be left at the front door or in an area specified by You in the ‘special delivery instructions’ when placing the Order. Calabro Olive Grove recommends that care be taken by the Buyer in nominating appropriate drop areas as Calabro Olive Grove will not be liable for any damage to the Goods if left outside for extended periods of time or if the Goods are damaged or stolen after delivery has occurred.
(iii) If You request Goods to be delivered to a secured apartment complex, please ensure You are home to receive the Order. If no one is available to collect the Order, we reserve the right to drop the Order at an appropriate position at the premises or return the Order to our warehouse, at the entire discretion of the designated courier.
(b) Calabro Olive Grove will provide the Buyer with an estimated date of delivery at the time of the Order and will make every reasonable effort to deliver by this date. However, sometimes unforeseen circumstances occur which cause delays. The Buyer thus acknowledges that the stated delivery times are estimates only and Calabro Olive Grove will not be liable for any loss, damage, expense or delay occasioned to the Buyer arising from late or non-delivery of the Goods at the estimated time.
(c) It is the responsibility of the Buyer to inform Calabro Olive Grove by contacting us on orders@calabroolivegrove.com.au or calling us on 0403 219 151 if an Order does not arrive. Once Calabro Olive Grove learns an Order has not arrived on the due date, it will make necessary enquiries and, in circumstances where the Order has not been delivered for some reason, will ensure delivery occurs as soon as possible.
(d) Sometimes delivery by instalments may be necessary, for example, where Orders are too large to be delivered together or stocks of an ordered item are unavailable at the time of the Order. Calabro Olive Grove may at its option deliver the Goods to the Buyer in any number of instalments unless there is an endorsement on the Order to the effect that the Buyer will not take delivery by instalments.
(e) If Calabro Olive Grove delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:
(i) this does not constitute a repudiation of the contract of sale formed by these Terms; and
(ii) the defective instalment is a severable breach that may give rise only to a claim for replacement of that instalment.
9 Returns & Warranties
(a) Please take care when ordering Goods. Calabro Olive Grove recommends that the Buyer choose carefully prior to placing Orders including by checking ingredients for potential allergens, sizes, and that the Goods are fit for their intended purpose.
(b) After placing an Order please review the Goods ordered carefully and contact us immediately if You believe a mistake has been made.
(c) Calabro Olive Grove is not able to offer refunds if You simply change your mind or dislike, but we may be able to correct any errors in the Order process prior to shipment.
(d) If the Goods You receive are different from what You Ordered, are damaged, or are otherwise not as expected, please contact us immediately at: orders@calabroolivegrove.com.au. Due to food safety issues and strict standards relating to food storage during transport, Calabro Olive Grove cannot accept the physical re-shipment of Goods by You to Calabro Olive Grove (regardless of their packaging condition). However, Calabro Olive Grove may (at its discretion) nominate a designated courier to retrieve Goods which You seek to return.
(e) All requests for returns must be accompanied by a copy of the Calabro Olive Grove invoice or proof of purchase.
(f) Calabro Olive Grove reserves the right to use their nominated courier for returned Goods and any refunds granted will be made in the same mode as original payment for the Goods was received unless otherwise determined by Calabro Olive Grove.
10 Consumer guarantees
Calabro Olive Grove's liability for a breach of a condition or warranty implied by Part 3-2 Division 1 of the Australian Consumer Law is limited to:
(a) in the case of Goods, any one or more of:
(i) the replacement of the Goods or the supply of equivalent goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent goods; and
(iv) the payment of the cost of having the Goods repaired; or
(b) in the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
11 Depictions, product imagery
The Buyer acknowledges and agrees that:
(a) all depictions, drawings, photos, product imagery provided by Calabro Olive Grove are approximate only and any deviation from any of these things does not vitiate any contract with Calabro Olive Grove or form grounds for any claim against Calabro Olive Grove; and
(b) the photos, illustrations and serving suggestions contained in catalogues, price lists, the Website and other advertising matter are not intended to form part of the contract of sale of the Goods or of the description applied to the Goods.
12 Liability & Indemnity
(a) The Buyer warrants that they will only use the Goods for their intended purpose in accordance with any guidance or recommendations appearing on the Goods.
(b) Calabro Olive Grove will not be liable for any damage, loss, cost or expense suffered by the Buyer in circumstances where the Buyer has:
(i) failed to use or consume the Goods in accordance with Calabro Olive Grove’s instructions and generally prudent or reasonable food handling or storage practice; or
(ii) used the Goods for a purpose or in a way for which they were not designed, sufficiently rated or expressly recommended.
(c) Calabro Olive Grove will not be liable to the Buyer or any other person for any lability or claim of any kind whatsoever arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any consequential loss or any other remote abnormal or unforeseeable loss whether or not in the reasonable contemplation of the parties, in relation to the Goods.
(d) The Buyer agrees to indemnify and keep indemnified Calabro Olive Grove against any loss, liability, actions, claims, demands, damages, costs and expenses incurred or suffered by Calabro Olive Grove in connection with or arising in any way out of a breach by the Buyer of the provisions of these Terms.
13 Rights in relation to Goods - Account Holder Sales
(a) Prior to title in the Goods passing to the Buyer under these Terms, the Buyer agrees that:
(i) the Buyer has no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation Calabro Olive Grove owes to the Buyer;
(ii) the Buyer cannot claim any lien over the Goods; and
(iii) the Buyer will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by Calabro Olive Grove.
(b) Calabro Olive Grove and the Buyer agree that:
(i) the property of Calabro Olive Grove in the Goods remains with Calabro Olive Grove until Calabro Olive Grove has been paid in full for the Goods under all individual contracts for the supply of the Goods between Calabro Olive Grove and the Buyer; and
(ii) the Buyer is a bailee of the Goods until such time as property in them passes to the Buyer and that this bailment continues in relation to each of the Goods until the price of the Goods has been paid in full.
(c) Account Holders may from time to time order larger quantities of Goods which may extend the expected delivery time.
14 Intellectual Property
(a) The Buyer acknowledges and agrees that:
(i) the Intellectual Property is the sole property of Calabro Olive Grove or Calabro Olive Grove has the exclusive right to exploit the Intellectual Property; and
(ii) these Terms do not confer on the Buyer any property right or title to any of the Intellectual Property.
(b) The Buyer agrees that it will not:
(i) publish, disseminate or release any material (whether in print or electronic form) that contains any of the Intellectual Property; and/or
(ii) utilise, display or portray any of the Intellectual Property (including logos and branding),
without Calabro Olive Grove’s approval in writing which can be withheld by Calabro Olive Grove in its absolute discretion.
(c) Account Holder Buyers agree to comply with any reasonable request by Calabro Olive Grove for the return of any item containing the Intellectual Property (whether in physical or digital form) held by the Buyer.
(d) The Buyer hereby agrees, both during and beyond the duration of these Terms, not to challenge or attempt to procure for itself or third parties ownership or registrations of any of the Intellectual Property.
(e) In circumstances where the Buyer is a reseller of Goods, it will comply with the reasonable directions of Calabro Olive Grove regarding the display and promotion of the Goods and not do any act or thing which will diminish the goodwill or reputation of Calabro Olive Grove or the perceived quality of the Goods.
15 Termination
(a) Either party may terminate these Terms if the other party is in material breach of any of its obligations under these Terms and, if the breach is capable of remedy, fails to remedy the breach for a period of 10 days after receipt of a written notice by the other party requiring rectification of the breach.
(b) Exercise of the right of termination afforded to either party under this clause will not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of these Terms. Notwithstanding any termination, nothing shall prejudice the rights of Calabro Olive Grove to recover payment in full (plus applicable interest) for Goods delivered to the Buyer but not yet paid for.
(c) This agreement will automatically terminate if a party enters into any composition or arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of amalgamation or reconstruction).
(d) The obligations of the parties that by their nature could reasonably be construed as being intended to continue to apply beyond the termination of these Terms will continue to apply.
16 Dispute Resolution
(a) If any dispute arises between the parties in connection with this contract (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
(i) includes or is accompanied by full and detailed particulars of the Dispute; and
(ii) is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
(b) Within 10 Business Days after a Dispute Notice is given, a representative from each of the parties with the authority to resolve the dispute, must meet (either in person, via electronic means or otherwise) and seek to resolve the Dispute.
(c) Subject to clause 16(d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
(d) Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
(e) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this contract and any related agreements.
17 Privacy
(a) Calabro Olive Grove takes seriously the parties’ obligations to safeguard personal information. Calabro Olive Grove takes all reasonable steps to comply with the Privacy Act 1988 (Cth).
(b) It is a condition of these Terms that the Buyer take all reasonable steps to comply with the Privacy Act 1988 (Cth) in its interactions with Calabro Olive Grove.
18 Conflict with Policies
Calabro Olive Grove may maintain certain policies in abridged form on its Website for the convenience of Website visitors. The abridged polices are not intended to substitute these Terms and, in circumstances of any inconsistency, these Terms shall prevail.
19 Severability & Waiver
A term or part of a term of these Terms that is illegal or unenforceable may be severed from these Terms and the remaining terms or parts of terms continue in force. The failure of Calabro Olive Grove to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect Calabro Olive Grove’s right to subsequently enforce that provision.
20 Variation
Calabro Olive Grove may change these Terms from time to time via updates to the Terms published on its Website. Calabro Olive Grove encourages the Buyer to review the Terms on each occasion on which it places an Order.
21 Force Majeure
Calabro Olive Grove will not be liable to the Buyer for any failure to perform, or delay in performing Calabro Olive Grove’s obligations under this contract if the failure or delay is due to an act of war, revolution or terrorism, pandemic, an act of God, weather events, or any other event beyond the control of Calabro Olive Grove. If such a failure or delay continues for a period of 30 days Calabro Olive Grove may terminate this contract by giving written notice to the Buyer.
22 Entire agreement
These Terms contains the whole agreement between the parties in respect of the subject matter of the agreement. The parties confirm that they have not entered into these Terms on the basis of any representation that is not expressly incorporated into this contract.
23 Governing Law
This contract shall be governed by and construed in accordance with the laws of Victoria. The parties submit to the non-exclusive jurisdiction of the courts and tribunals of Victoria, Australia.
