TERMS AND CONDITIONS
1 Application of Terms
- These Terms apply to and govern the supply of all Goods and/or Services by Nutricia to the Customer purchased via the MumStore website (www.mumstore.com.au). All Purchase Orders received by Nutricia from the Customer will constitute an offer by the Customer to acquire the Goods and/or Services on these Terms. A contract is made only on acceptance (in whole or part) of the Purchase Order by Nutricia in accordance with these Terms. Each Purchase Order will constitute a separate contract for the particular Goods and/or Services on these Terms.
- Unless expressly agreed in writing by Nutricia, these Terms take precedence over any other terms and conditions, and any other terms and conditions proposed or issued by the Customer shall have no effect.
Amount Owing means any amount owed by the Customer to Nutricia from time to time under these Terms or in respect of a Purchase Order;
Business Days means any day other than Saturday, Sunday, a public holiday in New South Wales, Australia;
Customer means the customer named as such in the Purchase Order;
Delivery Address means the Australian delivery address specified in the Purchase Order or such other address that is in the general locale of the Australian delivery address specified in the Purchase Order, or is notified to Nutricia in writing from time to time and is accepted by Nutricia as being an appropriate new delivery address;
Delivery Date means the date on which the relevant Goods are ready for dispatch from Nutricia’s, or its agent’s, premises and, for the avoidance of doubt, may not be the same date as the date on which the Goods are delivered to the Delivery Address;
Event of Default means any event where:
- any Amount Owing by the Customer to Nutricia is overdue; or
- the Customer (in any capacity) fails to comply with any other obligation under these Terms or any other agreement with Nutricia; or
- the Customer fails to comply with the Purchasing Policy; or
- the Customer fails to take delivery of the Goods.
Force Majeure Event means an event or circumstance beyond the reasonable control of either party, which makes it difficult or illegal to perform, or prevents compliance with or the performance of, a party’s obligations under these Terms, including:
- acts of God, fires, floods, storms and earthquakes;
- strikes, lockouts or industrial dispute;
- riots, explosions, insurrection or war, governmental action, epidemics, disease, accidents or emergency;
- interruptions to transportation or telecommunications, cyber security threats, delay in obtaining licenses, embargo, or damage caused by a third party to the party's works or business or those of its suppliers; or
- any other cause of the kind specifically stated above and outside the party’s reasonable control.
Goods mean any goods or products supplied by Nutricia pursuant to a Purchase Order;
GST means goods and services tax payable on supplies in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Intellectual Property means any patent, copyright, design right, database right, topography right, trade mark, service mark, name, domain name, logo, application to register any of the aforementioned rights or materials in which they may subsist, know-how, rights of confidence and any other intellectual property or industrial property right of any nature whatsoever in any part of the world, whether or not registered or capable of registration or existing now or in the future, including customer lists, specifications, formulae and processes;
Non-Excludable Rights means rights and remedies conferred on the Customer by applicable law (such as by consumer protection legislation), which cannot be excluded, restricted or modified or which may only be excluded, restricted or modified to a limited extent;
Nutricia means Nutricia Australia Pty Limited (ABN 99 076 246 752);
Price List means the list of prices for Nutricia’s Goods and/or Services on the mumstore.com.au website;
Purchase Order means an order for Goods and/or Services submitted to Nutricia by the Customer in writing using Nutricia’s standard order form whether online via the mumstore.com.au website;
Purchasing Policy means the MumStore purchasing policy;
Services mean any services supplied by Nutricia pursuant to a Purchase Order, including delivery services; and
Terms means these Terms and Conditions of Sale.
- Orders for Goods must be made via the order form on the mumstore.com.au website. The Customer must ensure that the Purchase Order and the Customer's Delivery Address comply with the Purchasing Policy.
- When the Customer places a Purchase Order, the Customer is making an offer to purchase the particular Goods for the price specified on the Price List at the time the Customer places the Purchase Order (plus any applicable delivery, insurance and/or payment surcharges). No contract for the purchase of Goods will come into existence until a Purchase Order has been reviewed and accepted by Nutricia and Nutricia has notified the Customer of such acceptance. A Purchase Order may be declined where there are reasonable grounds for doing so, for example, the Goods are no longer available or if there is an error in the Price List or the description of the Goods listed on mumstore.com.au.
- Nutricia may apply differing delivery charges to Customer Purchase Orders, depending on whether the Customer has a registered account on mumstore.com.au, or is using the guest checkout option. The delivery charge applicable to the Customer's Purchase Order will be displayed at the time of checkout. Nutricia may also apply a limit to the number of Goods Customers may order (either in a single transaction or over a period of time) and may reduce or decline a Purchase Order which exceeds an applicable limit.Nutricia will notify a Customer whether the Customer's Purchase Order has been accepted, reduced or declined as soon as reasonably practicable.
- Nutricia may cancel a Customer's Purchase Order after it has already been accepted if the Customer is suspected of acting fraudulently (such as using a credit card without proper authorisation) or is in breach of these Terms or the Purchasing Policy.
- The Customer may cancel a Purchase Order if Nutricia is in breach of these Terms and Conditions. Otherwise, once Nutricia has accepted a Purchase Order, it cannot be cancelled by the Customer without Nutricia’s prior written approval. Any modifications or variations to a Purchase Order by the Customer will not be accepted unless notified to Nutricia within a reasonable time prior to delivery or performance and agreed to in writing by Nutricia. Nutricia will not unreasonably withhold its approval of a request to amend a Purchase Order. The Customer may cancel their Purchase Order at any time prior to when the Goods are shipped by notifying Nutricia in writing.
- The Goods Nutricia agrees to supply to the Customer are the Goods described in the Purchase Order as accepted by Nutricia. To the maximum extent permitted by applicable law and without affecting the Customer's Non-Excludable Rights, the Customer acknowledges that all descriptions, specifications, statements or visual representations provided by Nutricia to the Customer or otherwise contained in any catalogues, advertising material or other documentation are approximate only and are intended to be merely a general description of the Goods and/or Services and are not incorporated in any contract with the Customer nor form part of the description of the Goods and/or Services provided under these Terms unless expressly agreed otherwise in writing by Nutricia.
4 Purchase Price
- Unless expressly agreed otherwise by Nutricia, the purchase price of the Goods and/or Services is the price specified in the Price List at the date the Customer places their Purchase Order.
- Unless otherwise specified, Nutricia’s prices are stated inclusive of any applicable GST (or similar taxes, tariffs, duties or impositions imposed by any government or other authority).
- The Customer must pay all Amounts Owing at the time Nutricia accepts the Customer's Purchase Order.2 The Customer will be required to pay for Goods using the payment methods specified on mumstore.com.au or otherwise accepted by Nutricia from time to time. Nutricia will process the transaction upon acceptance of the Customer's Purchase Order. A surcharge may apply for the use of certain credit cards, and where this is the case this will also be notified before the Customer's transaction is processed.
6 Delivery of Goods and Performance of Services
- Goods can only be delivered to Australian addresses.
- Unless otherwise agreed in writing:
- subject to clause6.3, Nutricia is responsible for arranging delivery of the Goods; and
- the Goods shall be delivered to the Delivery Address.
- Delivery will be completed by the Goods being left, or made available to the Customer, at the Delivery Address. The Customer shall be responsible for:
- payment of all charges to enable delivery of the Goods; and
- accepting the Goods at the Delivery Address, promptly on arrival of the Goods at the Delivery Address. To the maximum extent permitted by applicable law and subject to the Customer's Non-Excludable Rights, Nutricia will not be responsible for any loss or damage to Goods caused by the Customer providing an incorrect Delivery Address or for non-compliance with the Customer's delivery instructions (for example, leaving a product outside or unattended).
- If Nutricia is unable to deliver the Goods to the Customer on a first attempt, Nutricia will make one further attempt at delivery (after giving the Customer a reasonable opportunity to advise Nutricia of a revised Delivery Address). If a Customer refuses to accept delivery of the Goods promptly on their arrival, or Nutricia is unable to deliver the Goods by the second-attempted delivery, then Nutricia will cancel the Customer's Purchase Order and refund the purchase price of the Goods, less Nutricia's freight and handling costs for the failed delivery/ies.
- Subject to Nutricia accepting a Purchase Order, Goods will normally be shipped from Nutricia's warehouse by the end of the next Business Day of receipt of that Purchase Order, unless otherwise noted in the description of the Goods on mumstore.com.au. However, any delivery times displayed or otherwise notified to the Customer are estimates only, based on the information provided by Nutricia's shipping company. Nutricia will use reasonable commercial endeavours to meet any agreed Delivery Date and, if there is a delay in shipping the Goods ordered by the Customer, Nutricia will contact the Customer to advise of the reason for the delay. If this occurs, the Customer may cancel their Purchase Order at any time prior to when the Goods are shipped.
- The relevant Delivery Date, where specified, is subject to Nutricia’s suppliers’ stock levels and/or order production schedules and/or shipping dates, and accordingly Nutricia reserves the right to alter Delivery Dates. Nutricia will notify the Customer in writing of anticipated material changes to Delivery Dates. In the event that a Delivery Date is extended by more than 10 Business Days, the Customer may cancel their Purchase Order by giving written notice to Nutricia.
- A signed consignment or other proof of delivery note will constitute evidence that all Goods shown on the consignment or other proof of delivery have been accepted by the Customer as delivered and bearing no visible damage. Anything to the contrary must be noted on the consignment or delivery note. Where the Customer did not have a representative available at the Delivery Address to sign the carrier’s consignment note or other proof of delivery, then the carrier’s confirmation of delivery shall constitute evidence of complete delivery and acceptance.
7 Risk and Insurance
Risk of any loss, damage or deterioration in the Goods shall pass from Nutricia to the Customer when the Goods are delivered to the Customer in accordance with clause6.3.
8 Property in Goods
Title to the Goods will pass to the Customer upon the later of the Delivery Date, and the date Nutricia has received full payment in cleared funds of the Amount Owing in respect of the Goods. Until that time, all Goods supplied by Nutricia will remain the property of Nutricia and title in them will not pass to the Customer.
9 Force Majeure
Neither party will be liable for any failure or delay in performing any obligations under these Terms (other than an obligation to pay money) to the extent that such delay or failure is caused or contributed to by a Force Majeure Event. In the event that Nutricia's delivery of Goods is affected by a Force Majeure Event, Nutricia shall be entitled, at its option and on giving notice to the Customer, to amend the relevant Delivery Date by a reasonable period of time, or to terminate a Purchase Order. In the event that a Delivery Date is extended by more than 10 Business Days, the Customer may cancel their Purchase Order by giving written notice to Nutricia.
10 Quality issue reporting, refund claims and return requests
- Certain laws provide Non-Excludable Rights in connection with the supply of certain goods or services. If you purchase Goods that you believe do not meet your Non-Excludable Rights (e.g. because they are not of acceptable quality or do not match our description of the Goods) then you may have rights to a remedy under applicable laws including the Australian Consumer Law. Nothing in this clause 10 or elsewhere in these Terms is to be taken to exclude, restrict or modify any of your Non-Excludable Rights.
- Subject to clause 10.1, the Customer must inspect the Goods immediately following delivery to the Customer and promptly report any material quality issues to Nutricia in writing. To the maximum extent permitted by applicable law and subject to the Customer's Non-Excludable Rights, the following conditions apply to all refund claims and return requests:
- a written refund claim or return request (via email, letter or fax) must be received by Nutricia (and any claims or requests initially made by phone call must be confirmed in writing) within ten (10) Business Days after delivery of the Goods and in accordance with any additional conditions reasonably required by Nutricia;
- the original Purchase Order reference number and date must be quoted in all correspondence relating to quality issues, claims or return requests;
- Nutricia will only issue a refund or accept a return where it approves the Customer's refund claim or return request. The Customer must promptly provide all information reasonably requested by Nutricia to enable Nutricia to assess the Customer's refund claim or return request;
- where Nutricia notifies the Customer that the Goods need to be returned (and not otherwise):
- the Customer must return the Goods for review and assessment to the Australian address notified to the Customer by Nutricia. Goods will not be accepted for returns where Nutricia has not requested they be returned;
- on Nutricia's approval of the return claim, Nutricia will issue a returns authorisation form and/or number which is to be attached to the Goods when returned;
- where the Goods were originally supplied in a special manufacturer’s carton, any return must be made in that original carton, and otherwise all Goods must be in their original and unmarked condition;
- subject to clause 14.2(d), the Customer will be responsible for paying outward and inward delivery charges, and if not pre-paid by the Customer, such cost of delivery will be deducted from the amount of any refund or credit Nutricia gives to the Customer, and if no refund or credit is available, then such cost will be invoiced to and payable by the Customer;
- the Goods must be returned within 20 days of the date of Nutricia notifying the Customer that the Goods need to be returned; and
- if the Goods were not faulty and supplied in accordance with the Customer's Purchase Order, Nutricia may charge a reasonable re-stocking fee;
- no responsibility will be accepted by Nutricia for any delays in refunding or crediting the Customer where such delay is caused by the Goods being incorrectly branded or returned contrary to clause 10.2(b) or without adequate identification of both the Customer and of the Goods returned;
- the Customer cannot return or request a refund in respect of any Goods altered or damaged by the Customer; and
- all refund claim payments will be made by Nutricia by payment refund to the original payment method.
- To the maximum extent permitted by applicable law and subject to any Non-Excludable Rights the Customer may have:
- any claim that the Goods are defective, damaged, faulty, short delivered or not supplied in accordance with these Terms and Conditions and/or the relevant Purchase Order must be made in writing to Nutricia within ten (10) Business Days after delivery of the Goods to the Customer; and
- if the Customer fails to make a claim within this timeframe, the Goods will be deemed to have been accepted by the Customer and Nutricia will not be liable (and the Customer waives any rights to seek remedies) in relation to any later claim for any damage to, discrepancy or other non-compliance of the Goods.
- If an Event of Default occurs and:
- the Event of Default is not capable of remedy; or
- the Event of Default is capable of remedy but the Customer has not remedied the Event of Default within 10 days of being requested to do so by Nutricia,
Nutricia may (without limiting any other right or claim it may have against the Customer) upon giving written notice to the Customer suspend or terminate all or any part of any Purchase Order with the Customer under these Terms that remains unperformed.
- To the maximum extent permitted by applicable law and subject to the Customer's Non-Excludable Rights, in the event that Nutricia suspends or terminates any Purchase Order under these Terms any amounts paid by the Customer will be retained by Nutricia save that a refund will be provided where Goods have not already been delivered.
- Purchase Orders which do not comply with our Purchasing Policy may be cancelled by Nutricia. Without affecting any rights Nutricia may have in respect of losses resulting from your breach of our Purchasing Policy or these Terms and Conditions, we will refund any amounts paid in respect of cancelled orders. If Nutricia has not suffered any loss, damage or expense as a consequence of the Customer’s failure to comply with the Purchasing Policy issued by Nutricia, Nutricia shall provide a refund to the Customer.
12 Additional Rights of Termination
In addition to Nutricia’s general rights of termination under these Terms, Nutricia reserves the right to terminate any Purchase Order if Nutricia ceases to have rights to distribute the Goods or to provide the Services. Any amounts paid in respect of terminated Purchase Orders will be refunded to the Customer.
13 Governing law and disputes
These Terms are governed by the laws of New South Wales, Australia, and any dispute, difference or question arising out of or in connection with these Terms, the Goods or the Services shall be subject to the non-exclusive jurisdiction of the courts in and of the State of New South Wales, Australia.
14Warranties and liability
- Certain laws provide Non-Excludable Rights in connection with the supply of certain goods or services. Nothing in these Terms is to be taken to exclude, restrict or modify any Non-Excludable Rights.
- To the maximum extent permitted by law and subject to the Customer's Non-Excludable Rights:
- Nutricia's maximum aggregate liability to you for all claims of any kind (whether arising in contract, tort including negligence, statute, equity or on any other basis) in connection with these Terms or their subject matter, is the greater of: (i) AUD$100; and (ii) the total amounts paid or payable by the Customer to Nutricia in respect of Goods and Services supplied, or to be supplied, to the Customer pursuant to these Terms;
- all express or implied guarantees, warranties, representations, or other terms and conditions relating to these Terms or its subject matter, not contained in these Terms, are excluded;
- neither party is liable to the other in respect of any loss or profits, loss of revenues, or consequential, indirect or special damage, loss or injury of any kind; and
- Nutricia is not liable for the cost of transportation of returned or rejected Goods, except in cases where the Goods supplied are defective, damaged or faulty. All defective, faulty or otherwise rejected Goods received by Nutricia or its nominee will be the property of Nutricia to dispose of as it sees fit.
15 Intellectual Property
- All Intellectual Property in the Goods and/or Services or created incidentally shall remain the sole and exclusive property of Nutricia, and nothing in these Terms will give the Customer any interest in any Intellectual Property belonging to Nutricia.
- Except to the extent that the Customer has Non-Excludable Rights to do so, the Customer will not copy, modify, alter, reproduce, reverse engineer, or enhance Nutricia’s Intellectual Property nor do any act that would or might invalidate or be inconsistent with Nutricia’s rights to its Intellectual Property.
- The provisions of this clause15 will survive any termination or expiry of these Terms.
16 Privacy and Personal Information
- Nutricia may amend these Terms on notice to the Customer. Any Purchase Order submitted after such notice will be deemed to be acceptance of the updated Terms. No amendment or variation of these Terms proposed by the Customer is effective unless it is in writing and signed by both parties.
- The Customer must not assign its rights or obligations under or in connection with these Terms without the prior written consent of Nutricia.
- The rights, powers and remedies provided for in these Terms are in addition to, and do not limit or exclude (or otherwise adversely affect), any right, power or remedy provided to the parties by law.
- These Terms, the Purchasing Policy and the relevant Purchase Order together constitute the entire agreement of the parties concerning their subject matter, and supersede and cancel any previous representations, agreements, understandings or arrangements (whether written or oral) between the parties in relation to that subject matter. Any catalogues, leaflets, promotional material and other documents supplied by Nutricia are supplied only for information purposes and do not alter or vary these Terms.
- A waiver of any breach of these Terms or of any right, power or remedy under, or in connection with, these Terms (including a right of termination) is not effective unless that waiver is in writing and is signed by the party granting the waiver. A failure to exercise, a delay in exercising, or a partial exercise of, any right, power or remedy under, or in connection with, these Terms does not operate as a waiver of such right, power or remedy. A waiver of any breach is not, and is not deemed to be, a waiver of any other or subsequent breach.
- If any provision of these Terms is illegal, invalid or unenforceable then:
- where that provision can be modified to give it a valid and enforceable operation of a partial nature, it must be modified to the minimum extent necessary to achieve that result; and
- in any other case, the provision must be severed from these Terms, in which event the remaining provisions of these Terms operate as if the severed provision had not been included.
- Termination or expiry of these Terms will not affect any provisions of these Terms that are expressed to, or by implication are intended to, survive termination or expiry of these Terms including clauses5 (payment), 8 (property in Goods), 10 (quality issue reporting, refund claims and return requests), 13 (governing law and disputes), 14 (warranties and liability) and 15 (intellectual property).
- Notices or other communications given by one party to the other in connection with this Agreement are to be in writing and sent by personal delivery, post or electronic mail to the address of the relevant party as notified to the other party from time to time. Any notice or other communication is deemed to be received and sufficiently served if:
- personally delivered, on receipt;
- posted by pre-paid official postal service, on the fifth Business Day after posting; and
- if sent by electronic mail, on the on the date and time at which it enters the recipient’s information system (as shown in a confirmation of delivery report from the sender’s information system, which indicates that the email was sent to the email address of the addressee notified for the purposes of this clause17.8).
- In this Agreement:
- a reference to approval, agreement or confirmation means approval, agreement or confirmation in writing at the relevant party’s discretion;
- when a thing is required to be done or money required to be paid under these Terms on a day that is not a Business Day, the thing must be done or the money paid on the next Business Day;
- all currency amounts are in Australian dollars unless expressly stated otherwise; and
- in the event of an inconsistency between these Terms and Conditions and a Purchase Order, unless expressly agreed otherwise in writing, these Terms and Conditions will prevail to the extent of the inconsistency.