Terms & Conditions
Terms & Conditions
These Terms and Conditions comprise a legal agreement ("Agreement") between you (either an individual or a single entity) ("You" or "Your") and Detmold Australia Sales Pty Ltd (ABN 71 005 331 466) trading as The Cup & Carry Co of 55 East St, Brompton SA 5007, its nominees, successors and assigns (“Company”) in relation to Your purchase of the products offered for sale by Company ("Products") on www.cupandcarry.com.au ("Website") and Your use of the Website.
Membership of the Website
- You will create an account that shall be used by You for all your transactions on the website.
- The products and services provided through the website are only available to persons over the age of 18. By using this website you warrant that You are over the age of 18.
- Membership is country and area specific and the website is intended for users residing in Australia.
Ordering of Products
- You may place an order at any time to purchase products from The Cup & Carry Co by completing the electronic order form on the website ("Order").
- Within a reasonable time of receipt of an order, The Cup & Carry Co will provide You with an email confirming receipt of the order.
- By placing an order for the supply of products via the website you are deemed to accept these Terms and Conditions.
- The Company may cancel an order at any time before delivery by giving written notice to You.
- The Company shall not be liable for any loss or damage, including any consequential loss or damage, arising from such cancellation.
- All products are available for purchase at published minimum order quantities only.
- Colours of products displayed on the website are computer generated images only and may not be a true representation of the actual product.
Price and Payment
- The amounts payable for the products will be specified on the website at the time of placing an Order ("Purchase Price"). The Cup & Carry Co reserves the right to vary the Purchase Price for any product from time to time, such variation to take effect immediately upon posting of the amended price on the website.
- Freight charges are payable in addition to the Purchase Price.
- The Purchase Price and freight charges are due and payable upon the placing of an order via the website. The Purchase Price and freight charges may be paid by accepted credit card only.
- The Cup & Carry Co shall not be obligated to accept any order for which the applicable Purchase Price and freight charges have not been paid in full.
- All amounts specified on the website or payable under this Agreement are in Australian dollars (AUD).
- The Cup & Carry Co will use best endeavours to deliver the products to You in the timeframes as stated on each product page and with subsequent transit time calculations conducted by you via the Startrack website link provided.
- The Cup & Carry Co will deliver products during business hours only. No deliveries will be made on weekends or public holidays.
- You must provide a delivery address within Australia.
- The Cup & Carry Co reserves the right to amend freight charges for Orders which have specified the incorrect freight charges. You will be notified by telephone or email prior to dispatch of your Order if amendments to freight charges are required. You must accept the amended freight charges within 2 Business Days of receiving notification from the Company. Upon such acceptance, the Company will adjust the total amount charged to Your credit card in accordance with clause 4.3. If You do not accept the amended freight charges, the Order will be deemed to have been cancelled. The Company reserves the right to delay delivery of the Products until such time that the amended freight charges have been fully paid.
- You shall be responsible for providing correct delivery details and for making all necessary delivery arrangements.
- The Cup & Carry Co shall not be liable for any loss or damage, including consequential loss or damage, arising from delay in delivery or failure to deliver Products, either whole or in part, due to circumstances beyond its control.
- The failure of The Cup & Carry Co to deliver shall not entitle either party to treat the contract as cancelled.
- The Cup & Carry Co’s obligation to deliver shall be discharged on arrival of the Products at Your nominated delivery destination, nominated agent or carrier or the address appearing on the Order. You shall unload the Products upon delivery. If You are unable or unwilling to accept physical delivery of the Products when the Products are ready for delivery, the Company shall be entitled to charge a fee for any delay suffered, or to arrange for storage of the Products at Your risk and cost including all transportation, storage and other consequential costs. Products will not be left unattended at the delivery address.
- The Cup & Carry Co may, at its discretion, make and invoice partial deliveries and each partial delivery shall be a separate sale pursuant to this Agreement. Payment of any invoice issued by the Company in accordance with this clause 5 must be paid within 10 Business Days of the date of the invoice. The Company reserves the right to delay delivery of the Order until such time that the invoice for partial delivery has been fully paid.
Retention of Title
- Property in all the Products supplied shall remain vested in the Company and shall not pass to You until the later of full payment of monies owing to the Company by You (including all collection, repossession and/or legal costs incurred) or delivery.
- The Products, whether as separate chattels or as components, shall be stored in such a manner as to be clearly identifiable as the property of the Company until title has passed to You.
- The Company may demand at any time until title has passed to You that You return the Products or any part of them.
- In the event that You default in the payment of any monies owing, the Company and its employees or agents shall have the right to enter without notice upon Your premises or any other premises where the Products are known to be stored to repossess the Products and for this purpose You shall grant reasonable access rights and the Company, its employees or agents shall be entitled to do all things required to secure repossession.
- Notwithstanding clause 6, the risk in Products purchased shall pass to You upon delivery to You or Your agent or a carrier nominated by You.
- If any of the Products are damaged or destroyed prior to the title in them passing to You, the Company is entitled, without affecting any other rights and remedies under any agreement, to any insurance proceeds payable for the Products.
- In using the Website, You must not provide information that is false or misleading in any way.
- You agree that The Cup & Carry Co may use Your personal information for the purpose of operating this website and for direct marketing purposes.
- You must advise Company of any changes to Your personal details. The Company excludes any liability resulting from or in connection with any failure by You to advise Company of any change to Your personal details.
Conditions of Use
- You must not, in any form or by any means:
- use or register as a trademark, business name or domain name any trade mark, name or logo similar to those used by or associated with the Company;
- use, adapt, reproduce, store, distribute or copy any of the material or content located on the website;
- do anything that would cause the Company or the Website to be brought into disrepute; or
- copy, reverse engineer or decompile any component of the Website, without the Company's prior written consent, such consent to be provided or withheld in the Company's absolute discretion.
- You hereby indemnify the Company in respect of any loss or damage suffered by You or a third party as a result of Your use of the Website.
- You must not, in any form or by any means:
- You must inspect the Products upon delivery and notify the Company in writing within five (5) Business Days of any defects, short deliveries or any failure to fulfil any Order.
- The Company will, within a reasonable time following delivery and upon receiving notice of a defect, short delivery or failure, be given access to the Products in order to inspect for any alleged defects.
- Should You fail to notify the Company within the specified period then the Products shall be deemed to be in compliance with the Order and free from any defect whatsoever.
- The Company warrants that Products supplied shall be of merchantable quality.
- The Company does not warrant that the Products are fit for a particular purpose and, except or unless otherwise stated herein, warranties relating to title, defects or conformity of the Products are expressly excluded.
- Any costs associated with the return of Products for the purpose of a warranty claim shall be Your responsibility.
Limitation of Liability
- To the fullest extent permitted by law, the Company disclaims all liability (including any indirect, special, incidental or consequential damage or loss) suffered or incurred by any person, whether directly or indirectly by reason of any use or misuse of, or reliance upon, the Website, or any of the information on the Website being incomplete, incorrect or misleading or deceptive.
- To the maximum extent permitted by law, all terms, conditions and warranties expressed or implied by any legislation, the common law, equity, trade, custom or usage are expressly excluded from this Agreement.
- If You become entitled to obtain any legal remedy for breach of this Agreement then that remedy will be limited to the right to:
- if the breach relates to goods, the replacement of the goods, the supply of equivalent goods, the repair of such goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- if the breach relates to services, the supplying of the services again or the payment of the cost of having the services supplied again.
- The Company will not be liable to You for any indirect, special, economic or consequential loss or damage or loss of revenue, profits, goodwill, bargain or opportunities or loss or corruption of data or loss of anticipated savings incurred or suffered by You, whether caused by a breach by the Company, negligence on the part of the Company or any of its representatives and whether the Company was aware or should have been aware of the possibility of such loss or damage.
- Any notice given by the Company to You will be served in writing by personal delivery or to the addresses given by You in your Member Profile.
- Any such notices shall be deemed to be effectively served as follows:
- In the case of service by personal delivery, at the time of delivery;
- In the case of service by email, two (2) Business Days after sending;
- A party may change its address for the purpose of service of notices by giving notice of that change to each other party.
- Unless provided otherwise in this Agreement, if a party has any dispute in relation to this Agreement ("Dispute") that party must, before resorting to external dispute resolution mechanisms (except for urgent interlocutory relief), notify the other party in writing setting out the reasons for the Dispute.
- Where a notice has been given under clause 14.1, the parties will attempt to resolve the Dispute by good faith negotiations within ten (10) Business Days of the date of the receipt of the Dispute.
- If the Dispute has not been resolved between the parties within ten (10) Business Days of the commencement of the negotiation process, the parties are free to pursue any other rights or remedies available to it.
- Each party will continue to perform this Agreement notwithstanding the existence of a Dispute.
- Nothing in this clause operates to prevent a party from seeking urgent interlocutory relief.
Goods and Services Tax
- In this clause:
- GST Law means A New Tax System (Goods & Services Tax) Act 1999 and Regulations and any other similar or related Act or Regulation; and
- taxable supply, tax invoice, recipient, supplier and supply have the same meaning as defined in the GST Law
- Unless otherwise provided for in this Agreement, any amount payable pursuant to this Agreement is expressly inclusive of GST.
- If a supply made pursuant to this Agreement is a taxable supply, the recipient shall pay on demand to the supplier any GST payable on that supply in addition to any other amount that may be payable by the recipient to the supplier for that supply pursuant to this Agreement, provided that the supplier provides to the recipient a valid tax invoice in the form prescribed by the GST Law within fourteen (14) days of such payment.
- In this clause:
- This Agreement is governed by the laws of South Australia and the parties submit to the non-exclusive jurisdiction of the courts of that State.
- This Agreement may be amended by the Company at any time, such amendments to take effect immediately after posting of the amendments on the Website. Your continued use of the Website following such posting of amendments will represent an agreement by You to be bound by this Agreement as amended.
- You must not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Company. The Company may assign or transfer its rights or obligations under this 16.4. Agreement at any time without obtaining Your consent.
- Each party must do everything necessary or reasonably required by another party to give full effect to the purposes, and transactions contemplated by, this Agreement.
- The relationship between the parties is and will remain that of independent contractors, and nothing in this Agreement constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or gives rise to any other form of fiduciary relationship between the parties.
- No waiver by a party of any breach or default by any other party is effective unless reduced to writing and signed by the party making such waiver, and any such waiver does not constitute a waiver of any other continuing breach or default under this Agreement.
- This Agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and had no further effect.
Definitions and Interpretation
- In this Agreement:
- Business Day means any day on which trading banks are open for the conduct of general banking business in South Australia.
- In this Agreement unless the contrary intention appears:
- a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements or any of them;
- singular includes the plural number and vice versa and a reference to any one gender includes each other gender (as the case may require);
- headings are for convenience only and do not affect interpretation;
- the word "person" includes a firm, corporation, body corporate, unincorporated association or any governmental authority, and includes a reference to the person's executors, administrators, legal personal representatives, successors and permitted assigns;
- an agreement on the part of, or in favour of, two or more persons binds or is for the benefit of them or any one or more of them jointly and severally;
- "includes" means includes without limitation;
- where a word or phrase is given a defined meaning in this document, any other part of speech or grammatical form in respect of such word or phrase has a corresponding meaning;
- "$" or "dollars" means the currency used in Australia; and
- if the day on which any act, matter or thing is to be done under or pursuant to this Agreement is not a Business Day, that act, matter or thing must be done on the next succeeding Business Day.
- In this Agreement: