1.1 The Customer acknowledges and agrees that:
- the Goods are of a size, quality, nutrition, description, manufacture, and material suitable to the Customer;
- the Customer is fully satisfied that the Goods are suitable for all the Customer's purposes;
- the Customer in ordering the Goods has relied entirely on its own judgment and not on any statements, written or oral, made by Fodbods, its employees or agents;
- all promises, warranties, and conditions express or implied by law or otherwise with respect to the Goods are hereby expressly negated and extinguished to the extent permitted by law; and
- Fodbods will not be liable to the Customer for any liability, claim, loss, damage or expense of any kind (direct or indirect) suffered by the Customer or any third party in connection with the Goods or any inadequacy or deficiency in the Goods.
1.2 Where the Customer on-sells the Goods the Customer must not:
- misrepresent to anyone the specifications, performance or purpose of the Goods; or
- make or give any warranties, guarantees or representations in relation to the Goods whatsoever without Fodbods' prior written consent.
2) Limitation of Liability
2.1 The liability of Fodbods is limited, to the extent permissible by law and at the sole option of Fodbods:
- in relation to Goods, to;
- replacing the Goods or the supply of equivalent goods;
- the repair of the Goods;
- the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
- the payment of the cost of having the Goods repaired; and
- in relation to services, to:
- the supply of the services again; and
- the payment of the cost of having the services supplied again.
10.2 To the extent permitted by law, all other warranties whether implied or otherwise, not set out in these Terms or in specific warranties accompanying the Goods, are excluded and Fodbods is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for:
- any increased costs or expenses;
- any loss of profit, revenue, business, contracts or anticipated savings;
- any loss or expense resulting from a claim by a third party;
- any loss or damage whatsoever in connection with any information, written or oral, or assistance given to the Customer, whether by way of advice, instruction, technical information, demonstration or otherwise; or
- any special, indirect or consequential loss or damage of any nature whatsoever in connection with the Customer's purchase, on-sale or use of the Goods in any way.
3.1 To the full extent permitted by law, Customer will indemnify Fodbods and keep Fodbods indemnified from and against any liability and any loss or damage Fodbods may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Terms by the Customer or its representatives.
4) Entire Agreement
4.1 These Terms apply (unless otherwise previously agreed in writing) to the supply of Goods by Fodbods to a Customer from time to time. Any supply of Goods by Fodbods to the Customer made after the date of acceptance of these Terms is a supply pursuant to the supply agreement constituted by these Terms and the relevant order accepted by Fodbods and any such supply does not give rise to a new or separate agreement.
4.2 The Customer and Fodbods acknowledge and agree that these Terms supersede any prior agreement, arrangement or understanding between the Customer and Fodbods. No local, general or trade custom will affect in any way the Terms.
4.3 No waiver or variation of these Terms will be binding on the Customer or Fodbods unless signed by both the Customer and Fodbods.
5.1 In respect of any matter or thing which must be done by the Customer within a stipulated time frame, time shall be of the essence, consequently, the Customers failure to comply with such time frame shall constitute a breach by the Customer of an essential term of these Terms.
5.2 If any provision of these Terms is held to be illegal, unenforceable or void then to the extent of such illegality, unenforceability or invalidity that provision will be considered independently of and severable from the other provisions.
5.3 A certificate by an employee of Fodbods as to any act or omission of the Customer shall be accepted by the Customer in all courts and at all times to be prima facie evidence of the matters stated therein.
5.4 These Terms shall be construed and interpreted in accordance with the laws of Victoria and the Customer irrevocably agrees to submit to the non-exclusive jurisdiction of the courts of that state.
5.5 All notices given under these Terms must be in writing. A notice given by Fodbods to the last known place of business of the Customer will be deemed received on delivery or the business day in Victoria following posting, whichever is the earlier.
5.6 Fodbods shall not be liable for any failure of or delay in the performance of these Terms for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or industrial disputes, embargoes, government orders or any other force majeure event.