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Terms & Conditions

Please read these terms and conditions of use carefully. These General Terms and Conditions should be read in conjunction with the all other policies and terms and conditions published from time to time on the KALORA website (collectively the “Terms”).  When the Company / Individual agrees to purchase from KALORA, the Company / Individual enters into a contract with KALORA, and the Company / Individual accepts that the Company / Individual will be bound by the Terms.

1. GENERAL

  1. Any order placed by with KALORA is deemed to incorporate these Terms & Conditions and all other terms and conditions published from time to time on the KALORA website (collectively the “Terms”)
  2. No variation to these Terms can be effected unless such variation is in writing and signed by KALORA.
  3. These Terms are binding on the Company / Individual, its heirs, assignees, executors, trustees, agents employees, sub-contractors and any liquidators, receivers or administrators.
  4. In these Terms, the singular shall include the plural, words importing persons shall apply to corporations, heirs, assignees, executors, trustees and where applicable, any liquidators, receivers or administrators and the masculine shall include feminine and neuter.
  5. Where more than one Company / Individual completes enters into these Terms each Company / Individual is bound by the Terms and jointly and severally liable.
  6. The Company / Individual acknowledges that each order is an irrevocable offer, subject to acceptance by us and subject to the these Terms, particularly the Cancellation Policy.
  7. KALORA may decline to accept an order in whole or in part in its absolute discretion. A binding contract for the sale of services or products (“products”) is formed when KALORA acknowledges in writing or otherwise, acceptance of an order (a “Contract”).
  8. If KALORA gives a quotation, KALORA is not making an offer. If KALORA does not withdraw the quotation, it is valid for the period stated. If no period is stated it is valid for 14 days from the date the quotation was given.

2. PRODUCTS AND SERVICES TAX 

  1. GST refers to Products and Services tax under the Products and Services Act 1999 (“GST Act”) and terms used herein have the meanings contained within the GST Act.
  2. It is hereby agreed between the Company / Individual and KALORA that the consideration for KALORA expressed in these Terms and published on the KALORA website is inclusive of KALORA’s liability of GST.
    1. On sale:
      1. The Company / Individual will pay to KALORA, in addition to the pre-GST price, the amount payable by KALORA of GST on the taxable supply made by KALORA;
      2. KALORA shall deliver to the Company / Individual a Tax Invoice for the supply in a form which complies with the GST Act and Regulations.

3. DISHONOUR OF CHEQUE

  1. If any cheque issued by the Company / Individual or by any third party in payment is dishonoured:
    1. KALORA may refuse supply of further services or products until satisfactory payment is received in full;
    2. KALORA is entitled to treat the dishonour of the Company / Individual’s cheque as a repudiation of all agreement to purchase and may at its discretion elect between terminating all or any agreement to purchase or affirming all or any agreement to purchase and in each case claim and recover compensation for loss or damage suffered from the Company / Individual .
    3. The Company / Individual may be liable for a dishonoured cheque fee of $40.00.
    4. KALORA may enforce any rights it has including without notice.

4. DEFAULT IN PAYMENT

  1. Account Invoices issued by KALORA for payment are due and payable within thirty (30) days from the date of issue.
  2. If any payment remains outstanding beyond thirty (30) days, KALORA may forward the Company / Individual’s account to a debt collection agency for further action or take any enforcement measures it sees fit. KALORA is entitled to charge the Company / Individual for all expenses incurred in relation to the collection of the debt which may include any fees or charges without being limited to the debt collection agency’s fees, commission charges, legal costs on an indemnity basis and disbursements.
  3. If any payment remains outstanding beyond thirty (30) days of any Company / Individual invoice, then KALORA may at its option cease to provide products required by the Company / Individual.
  4. If, at any time, KALORA considers at its own discretion that the Company /  Individual’s credit is unsatisfactory or in any way impaired, KALORA may, among other remedies, terminate any contract concerned and suspend further deliveries or products, or require payment in advance, on delivery or otherwise as specified by KALORA.
  5. The Company / Individual agrees that any claim regarding overpayment must be asserted within one year from the date products concerned were invoiced to the Company / Individual. All claims not asserted within such one-year period are irrevocably waived.
  6. The Company / Individual must pay all expenses incurred by KALORA in enforcing its rights under the Terms.
  7. KALORA may enforce any thing enforceable against the Company / Individual against the Guarantors or one or either of them pursuant to the Guarantee.
  8. KALORA reserves the right to charge interest to the Company / Individual on overdue accounts at the interest rate of 10% per annum.

5. SET-OFF

  1. The Company / Individual shall have no right of set-off in any suit, claim or proceeding brought by KALORA against the Company / Individual for default in payment.
  2. The Company / Individual acknowledges that KALORA can produce this clause in bar of any proceeding for set-off.

6. RISK

  1. Risk in any products passes to the Company / Individual upon the earlier of:
    1. actual or constructive delivery of the product to the Company / Individual; or
    2. collection of the product from KALORA or any bailee or agent of KALORA by the Company / Individual’s agent, carrier or courier.
  2. KALORA retains title and ownership of any Products until the Company / Individual has paid all monies owed to KALORA in respect of the products (“Amount Due”) and cleared funds on all cheques or negotiable instruments have been received by KALORA (the date these funds are received is the “Relevant Date”). Until the Relevant Date, the products are held by the Company / Individual as bailee. KALORA retains ownership of any reusable packaging and pallets.
  3. If the Company / Individual fails to pay an amount due when it is due and payable or becomes or, in the reasonable opinion of KALORA, is in danger of becoming insolvent or bankrupt, KALORA may retake possession of the products by entering the Company / Individual’s premises (or any other place where the products are located) or appoint a third party acting on KALORA’s behalf, without liability for trespass or otherwise. If KALORA retakes possession of the product, KALORA may sell or otherwise dispose of the product at the absolute discretion of KALORA who may set-off any amount paid to KALORA for the product against the Amount Due.
  4. Until such time when title passes to the Company / Individual, the Company / Individual must ensure that the product is readily identifiable as belonging to KALORA (by separate storage or other means) and will deal with the product as directed by KALORA.
  5. Notwithstanding any provisions in these Terms, KALORA is entitled to maintain an action against the Company / Individual to recover any losses KALORA incurs in retaking possession of the product or recovering any Amount Due, or balance thereof.
  6. Where products are supplied by KALORA to a Company / Individual without payment in full of all moneys payable in respect of the products, the Company / Individual acknowledges that KALORA has a right to register and perfect a personal property security interest.
  7. Where products are supplied by KALORA to the Company / Individual without payment in full of all moneys payable in respect of the products provided by KALORA, in respect of those products, the Company / Individual:
    1. is a bailee of the products until property in them passes to Company / Individual;
    2. irrevocably appoints KALORA its attorney to do all acts and things necessary to ensure the retention of title to products including the registration of any security interest in favour of KALORA with respect to the products under applicable law;
    3. must be able upon demand by KALORA to separate and identify as belonging to KALORA products supplied by KALORA from other products which are held by Company / Individual;
    4. must not allow any person to have or acquire any security interest in the products;
    5. agrees that KALORA may repossess the products if payment is not made within seven (7)  days (or such longer time as KALORA may, in its complete discretion, approve in writing) of the supply of the products; and
    6. grants an irrevocable licence to KALORA or its agent to enter its / his / her premises in order to recover possession of products pursuant to this paragraph and indemnifies KALORA in respect of any damage to property or personal injury which occurs as a result of KALORA entering the premises.
  8. If:
    1. a PPS Law applies or commences to apply to these Terms of Trade or any transaction contemplated by them, or KALORA determines (based on legal advice) that this is the case; and
    2. in KALORA’s opinion, the PPS Law:
      1. does or will adversely affect KALORA’s security position or obligations; or
      2. enables or would enable KALORA’s security position to be improved without adversely affecting Company / Individual –

    KALORA may give notice to the Company / Individual requiring the Company / Individual to do anything (including amending the Terms or execute any new terms and conditions) that in KALORA’s opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in paragraph (ii)(A) or improve the security position as contemplated in paragraph (ii)(B). The Company / Individual must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this paragraph, in KALORA’s opinion KALORA’s security position or obligations under or in connection with these Terms have been or will be materially adversely affected, KALORA may by further notice to the Company / Individual cancel these Terms, in which case the Company / Individual must pay to KALORA any money owed to KALORA by the Company / Individual immediately.

7. PROVISION OF PRODUCT

  1. KALORA reserves their right to:
    1. decline requests for any product requested by the Company / Individual.
    2. cancel or postpone orders without prior notice.
  2. Where relevant, the Company / Individual shall ensure that KALORA, its servants and agents have full and safe access to the designated site/delivery point and any necessary equipment, materials and information, failing which hire charges will accrue until such access has been provided.
  3. Unless specified by KALORA to the contrary in any quotation, KALORA does not warrant that it will be capable of providing the product at specific times requested by the Company / Individual.
  4. Subject to otherwise complying with its obligations under the Terms, KALORA shall exercise its independent discretion as to its most appropriate and effective manner of providing the product and of satisfying the Company / Individual’s expectations.

8. INSURANCE

  1. The Company / Individual is responsible to effect whatever insurance cover required at its own expense.

9. DISPUTE RESOLUTION

If a dispute arises between the Company / Individual and KALORA, the following procedure applies:

  1. A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this paragraph.
  2. A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.
  3. A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.
  4. If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 5 Business Days (or other period as agreed).
  5. Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian  Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation which are operating at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these Terms of Trade. This paragraph survives termination of these terms.
  6. Notwithstanding the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these Terms of Trade.
  7. The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.

10. JURISDICTION

  1. This agreement is deemed to be made in the State of Victoria and all disputes hereunder shall be determined by the relevant Victorian Court.

11. ENTIRE AGREEMENT

  1. The conditions set out in the Terms constitute the whole agreement made between the Company / Individual and KALORA.
  2. The Terms can only be amended in writing signed by each of the parties.
  3. All prior discussions and negotiations are merged within this document and KALORA expressly waives all prior representations made by it that are in conflict with any of the Terms in any way.