• “Customer” means the party named as applicant in this credit application
• “Goods” are items in an order, and include packaging and services
• “Order” is an order by your to purchase goods from A Kinder Way
1. THE AGREEMENT
This agreement is a contract between you and Walis Investments Pty Ltd (ABN 78109872193) trading as A Kinder Way. An agreement exists once A Kinder Way accepts an Order from you which occurs when your order and payment is accepted.
The Customer agrees that the following terms and conditions of sale have been read and understood and redeemed to be incorporated in every contract for the supply of goods between A Kinder Way and the Customer.
These terms and conditions of sale shall apply to the exclusion of all others, including any terms and conditions of the customer, with the exception of any terms and conditions necessarily implied by statute.
3. CUSTOMER APPLICATION
Accurate information – Information provided by you in your application must be accurate and complete. You must inform A Kinder Way if there’s a change to your details.
4. PRODUCT INFORMATION
Product information, dietary information, photos & pack sizes are all for illustrative purposes and general advice. From time to time packaging, dietary classifications and ingredients vary and we may not always be as up to date as we would like to be, so please always check the details on the packaging before using. This is especially important if there is a possibility of an allergic reaction.
5. ALLERGEN CAUTION
We pack a wide range of natural food products on shared equipment including nuts, seeds, grains and cereals. This includes sesame, peanuts, soya protein and gluten containing products. While we do our best to avoid any kind of cross contamination this can occasionally occur and any of our products may contain traces of these.
6. ORDERS & DELIVERY
A Kinder Way will deliver the Goods to you at the Delivery Address within the time agreed with you.
Delivery address is the address where the goods are to be delivered as stated on the order.
As we cannot anticipate or control the conditions under which the goods we sell will be used, A Kinder Way and its associated entities cannot be responsible for damages of any nature resulting from the use and/or reliance on the delivery of our goods. No expressed or implied warranties are given other than those implied mandatorily by Commonwealth, State or Territory legislation.
No goods will be supplied by A Kinder Way on any terms or conditions other than those set out herein and by taking delivery of goods the Customer is deemed to be bound by these terms and conditions.
Any times quoted for delivery of goods are estimates only and A Kinder Way is not subject to any liability whatsoever for failure to deliver or for delay in delivery arising from any cause whatsoever. The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery or dispatch. A Kinder Way reserves the right to deliver in instalments and each such instalment is deemed to be sold under a separate contract. Failure to deliver any instalment does not entitle the Customer to repudiate, rescind or terminate the contract.
All Goods must be checked on delivery. The Customer is deemed to have accepted any Goods delivered as being in conformity with the Customer’s order and merchantable quality unless the Customer notifies A Kinder Way in writing within 48 hours of delivery. For a credit note to be issued by A Kinder Way against damaged goods, proof will be required. Returning the damaged product or providing photos of the damaged product to /a Kinder Way is deemed as sufficient proof.
A Kinder Way assumes no responsibility or liability for any loss or damage occurring by reason of delay or inability to deliver as a result of fire, strikes, accidents, war, embargoes, accidents, riot, or from any other cause which is unavoidable or beyond our reasonable control and if delays from such causes do occur our delivery period shall be correspondingly extended.
All prices and terms quoted by A Kinder Way are based on the cost prevailing at the date of quotation; such prices are subject to change due to seasonal and market variations. However, the price listed on the website is the price that you will be charged at the time of ordering. If an item becomes out of stock prior to delivery we will contact you by email or phone to let you know and will recommend an alternative where available. As we only debit your credit card after the order is picked we can also just subtract the cost of the item from your order.
Payment is to be made within the agreed payment terms as indicated on the invoice. Unless otherwise nominated by A Kinder Way, the Customer must pay for all Goods ordered by the Customer from A Kinder Way by the 15th of the month following the month during which the Goods were delivered.
A statement stating the sum due and owing by the Customer to A Kinder Way at the date specified in the statement is prima facie evidence that the sum is due and owing at that date.
If the Customer makes default on any payment or otherwise fails to fulfil the terms of this or any other contract with A Kinder Way, or, if the Customer stops payment or calls a meeting of creditors or becomes insolvent or subject to bankruptcy laws, or as a company calls a meeting for the purpose of going into liquidation, or has a winding up petition presented against it, or has a receiver appointed to any of its assets, A Kinder Way reserves the right to suspend or cancel any existing contracts between A Kinder Way and the Customer or require payment in cash prior to the delivery of the goods notwithstanding
the specified payment terms or may take over the goods and dispose of them without prejudice to any claim for damages from the Customer for any loss resulting from such resale or otherwise.
9. IMPLIED TERMS AND LIABILITY
A Kinder Way will use reasonable care and skill in providing the A Kinder Way online website for your use.
A Kinder Way acknowledges that, under applicable State, Territory and Commonwealth laws, certain conditions and warranties maybe implied in the contract between A Kinder Way and the customer and rights and remedies conferred upon the customer and other parties in relation to goods which cannot be excluded, restricted or modified by agreement (“Non excludable rights”). The limitations below are subject to those Non Excludable Rights;
Subject to the above, A Kinder Way disclaims all conditions and warranties expressed or implied, and rights and remedies conferred on the customer or other parties, by statue the common law, equity, trade, custom or usage or otherwise howsoever and all such conditions and warranties and such rights and remedies are hereby expressly excluded other than any Non excludable Rights
A Kinder Way’s liability is expressly limited to a liability to pay to the customer an amount equal to:
1) The cost of replacing the goods;
2) The cost of obtaining equivalent goods; or
3) The cost of having the goods repaired, where repair, such as re processing is an option, whichever is the lowest amount
Where so permitted the liability of A Kinder Way for a breach of a Non excludable Right is limited, at A Kinder Way’s option, in the case of goods, to the replacement or repair of the goods or the supply of equivalent goods or the cost of replacing or repairing the goods or of acquiring equivalent goods.
10. INDIRECT LOSS
In no event shall A Kinder Way be liable (whether before or after discharge of the contract or otherwise) for any loss or damage to the customer howsoever arising including any loss or damage arising from or caused or contributed to by negligence by A Kinder Way, its servants or agents, nor shall A Kinder Way be liable for special, incidental, indirect or consequential, or economic loss or damage suffered by the customer as a result of a breach by A Kinder Way of its obligations or otherwise including but not limited to economic or moral loss, loss of profits or revenue or costs arising from such breach.
The Customer shall indemnify and keep indemnified and hold A Kinder Way harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by A Kinder Way, and from and against all actions, proceedings, claims or demands made against A Kinder Way, arising from one or more of the following:
a) As a result of the customer’s failure to comply with an laws, rules, standards or regulations applicable in relation to the goods or the use of the goods;
b) As a result of any other negligence, breach of contract or other breach of duty by the customer
c) As a result of A Kinder Way’s adhering to instructions that the customer has given HA Kinder Way about the goods.
12. INTEREST – OVERDUE PAYMENT
Interest charges at the rate of 2% per month will be charged on all overdue amounts and such interest is recoverable as a liquidated debt. A Late payment Account keeping fee of $5 per month will be charged on any amount that is overdue on the Customers monthly statement.
The Customer is liable for any expenses, including all legal expenses, incurred in connection with recovery of any overdue amounts and these expenses are recoverable as a liquidated debt.
13. DISHONOUR FEE
If the Customer makes payment to A Kinder Way by way of cheque or other negotiable instrument, which is not honoured upon presentation for whatever reason, A Kinder Way
may charge the Customer an administration fee of $50.00 together with any further fee that is incurred by A Kinder Way.
14. TITLE AND OWNERSHIP
Title and ownership of goods does not pass to the Customer but remains with A Kinder Way until payment in full (which includes payment of all cheques and negotiable instruments) of the invoiced amount of the Goods together with all other amounts owing to A Kinder Way by the Customer.
Until the title passes to the Customer:
a) The Customer must store the Goods on behalf of A Kinder Way without charge;
b) The goods must be stored separately and in a manner to enable them to be identified and crossed-referenced to particular invoices and the Customer must permit a representative of A Kinder Way to enter into and upon premises owned by or under the control of the Customer where the goods are held, so that A Kinder Way can ascertain whether the customer is complying with this clause;
c) Ensure that the Goods are kept in good and serviceable condition;
d)Secure the Goods from risk, damage and theft
e)Keep the Goods fully insured against such risks that are usual or common to insure against in a business of a similar nature to that of the Customer and supply A Kinder Way with a copy of the ‘Certificate of Insurance’
f) The Customer must return the Goods to A Kinder Way if requested.
15. CREDIT TERMS
The Customer acknowledges that A Kinder Way may vary or terminate credit terms to the Customer at any time without notice.
A Kinder Way is not liable to the Customer for any loss or damage which the Customer suffers as a result of A Kinder Way cancelling credit terms or by refusing to supply goods.
Upon credit terms being cancelled, all amounts, including interest, owing by the Customer to A Kinder Way becomes immediately due and payable.
All contracts are subject to the credit approval of the Customer by A Kinder Way.
16. CHANGE OF DETAILS
The Customer must immediately inform A Kinder Way in writing of any change of contact details, in the ownership operation, legal entity or structure of the Customers business or of any change in the information provided in this application. Until such notification is received by A Kinder Way, the liability for any unpaid amounts remains with the Customer as disclosed in the application.
Returned Goods will not be accepted by A Kinder Way without A Kinder Way’s authorisation. Please refer to our Credit and Returns Policy for further information.
A Kinder Way may terminate or suspend this Agreement at any time by delivering notice advising you that your shopping privileges have been removed. Termination of this Agreement is effective the day the notice is received, or such later date as specified in the notice.