PONDFIELD EQUESTRIAN Pty. Ltd.
TERMS & CONDITIONS OF SALE
1. APPLICABILITY AND ACCEPTANCE OF THESE CONDITIONS
1.1 These Conditions apply to each order that Pondfield Equestrian Pty. Ltd. ACN: 160 297 558 (we) accept from a trade customer (you) for the supply of goods to you.
1.2 Your acceptance of goods from us means that you accept these Conditions. No variation by you of these Conditions will be valid unless our authorised representative gives you written confirmation that that variation is accepted.
1.3 We may make changes to these Conditions from time to time to accommodate changes in law, business practice or the introduction of new goods. If we do, we will notify you in writing at least 30 days before those changes take effect. Your acceptance of further goods and/or payment of further instalments due after the date we notify you of a change is deemed acceptance of those changes. If you do not want to accept the changes, you are entitled to terminate the agreement affected by written notice to us before the changes take effect.
1.4 For the purposes of these Conditions:
(a) a reference to writing includes any method of representing words, figures or symbols in a permanent and visible form including online or in an electronic communication;
(b) a reference to online or to an electronic communication includes a communication of information in the form of data, text or images by means of guided and/or unguided electromagnetic energy, including by means of the Internet.
1.5 You may purchase goods from us pursuant to these Conditions.
2 BASIS OF SALE
2.1 Each Purchase Order constitutes a separate offer by the Buyer to purchase the Goods from the Seller subject to these Conditions.
2.2 Each Purchase Order must detail: the Goods and quantity ordered; the requested Delivery Address; and must be sent to the Seller by email.
2.3 A Purchase Order shall be deemed to be accepted on the occurrence of the earlier of:
(a) the issue by the Seller of an acceptance of the Purchase Order; or
(b) delivery of the Goods.
2.4 Acceptance of an order is not a guarantee by the Seller of the availability of the Goods. All acceptances are conditional upon the availability of the Goods ordered.
2.5 These Conditions shall apply to the Contract to the exclusion of all other terms and conditions (except those which the Seller cannot lawfully exclude) including, but without limitation, any endorsed on a Purchase Order provided by the Buyer.
2.6 Any Purchase Order accepted by the Seller pursuant to clause 2.3 may (subject to clause 3.3) only be cancelled, postponed or varied by the Buyer with the prior written consent of the Seller and on the condition that the Buyer will indemnify the Seller in full against all costs and expenses incurred (directly or indirectly) by the Seller as a result of such cancellation, postponement or variation.
3.ORDER AND DELIVERY
3.1 All orders for goods must be in writing and addressed to:
3.2 You agree that delivery will be complete when the goods are dispatched to your nominated address. Delivery by us to a carrier will be deemed to be delivery to you.
3.3 The Seller will use reasonable endeavours to deliver the Goods by any agreed delivery date or, if no delivery date is agreed with the Buyer, then within 7-10 Business Days of the Seller accepting a Purchase Order received from the Buyer.
3.4 The Buyer may cancel an order if the Seller fails to deliver the Goods in question within 15 days of the date of delivery referred to in clause 3.2. Notice of cancellation must be provided by the Buyer to the Seller in writing. In the event of such cancellation the relevant Purchase Order shall be deemed cancelled and the Seller will refund any sums paid by the Buyer in respect of the cancelled Purchase Order.
3.5 The rights of the Buyer pursuant to clause 3.4 shall be the sole and exclusive remedy of the Buyer with respect to any delay or failure in the delivery of any Goods.
3.6 The Buyer shall ensure that the Seller (or its agents) will be able to deliver the Goods to the Delivery Address on the date referred to in clause 3.2.
3.7 If the Buyer refuses or fails to take delivery (including as a result of the Buyer’s failure pursuant to clause 3.2) of any of the Goods at the time stated for delivery (otherwise than by reason of any Force Majeure Event or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller will be entitled to:
(a) store the Goods until actual delivery and charge the Buyer for the cost of storage, transport any related insurance and a handling fee; and/or
(b) sell the Goods at the best prices obtainable in all the circumstances, after deducting all storage, insurance, transport and selling expenses and invoice the Buyer for the difference between the sum obtained by the Seller and the Price and the Buyer shall pay such sum immediately.
4. RISK AND TITLE
4.1 The risk in any goods that you order from us will pass to you on delivery irrespective of when payment is completed.
4.2 You agree that all goods remain our property until you have paid for them in full. Until then, you acknowledge that we remain the equitable and legal owner and that you are in possession of those goods only as our bailee until you have completed payment.
4.3 You are liable to pay in full the price of any goods delivered to you, subject to any agreed discounts. If you fail to pay for goods by the due date for payment, we will be entitled to retake possession of the goods, resell them and keep the proceeds of the sale. Any shortfall remaining in the amount owing after resale will remain a debt owed by you.
Pondfield Equestrian Pty. Ltd. Terms & Conditions 23/00/2012 Page 3 of 6
5. RETURNS POLICY
Due to the nature of the goods and costs associated with re-stocking and freight, Pondfield Equestrian Pty. Ltd. do not accept returns of any nature without prior consultation. Any claims for damage in transit must be advised in writing to firstname.lastname@example.org within 24 hours of receipt. We will then review with the carrier and agree a suitable resolution.
6. UNANTICIPATED EVENTS
6.1 We may cancel or suspend delivery of any ordered product in the event of any delay or non-performance due directly or indirectly to wars, terrorism, strikes, lockouts, delays or defaults of manufacturers or suppliers, act of God, or any other cause beyond our reasonable control.
7.1 If you default in performing your obligations under these Conditions and we incur expenses in enforcing our rights under these Conditions (for example and without limitation, expenses incurred by us in recovering any moneys owed by you to us), you must pay to us any reasonable costs on demand (including all legal costs on a full indemnity basis).
7.2 In the event that payment is not received within the specified credit terms, Pondfiled Equestrian Pty. Ltd. Reserves the right to charge interest on the overdue amounts at 3% above the published CBA lending rate at that time
8.1 If you are one or more individuals, this clause 8 applies. You acknowledge that personal information concerning you collected or held by us may be used for a variety of purposes including:
(a) to supply products and services that you have ordered;
(b) to administer your account and to enforce this contract; and
8.2 You also agree that if you provide us with personal information about any other individual, you will ensure that the individual is aware:
(a) that you have supplied their personal information to us and the reason; and
(b) of the details in this clause 8 which apply to information we collect about them as well as information we collect about you
8.4 If you fail to provide any information requested by us, we may be unable to supply the products that you order or request.
8.5 If you apply to us for credit terms we may give certain information about you including identity particulars to a credit reporting agency and we will tell you separately about other uses and disclosures of your personal information relevant to your application for, or our provision of, credit.
9.1 In these Conditions the terms “GST”, “supply” and “tax invoice” have the meaning given to those terms in the A New Tax System (goods and Services) Tax 1999 (Cth) and the term “GST” also includes any penalties or additional tax imposed in relation to the GST payable in relation to the supply of goods under these Conditions.
9.2 Any amount payable by you under clause 2 is inclusive of GST.
10. DISCLAIMER OF LIABILITY AND WARRANTIES
10.1 If any law or regulation including but not limited to the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law, confers rights and remedies on you in relation to the provision by us of products or services ordered by you which cannot be excluded, restricted or modified (Non-excludable Rights), we do not exclude any Non-excludable Rights but we do exclude all other conditions and warranties implied by custom, law or statute.
10.2 Except as provided for by the Non-excludable Rights:
(a) all products ordered by you are provided without warranties of any kind, either express or implied;
(b) we do not warrant that those products and will be complete or free from all errors;
(c) all representations are expressly excluded and you have not relied on any representations in ordering products from us.
10.3 Subject to clause 10.1, under no circumstances (including but not limited to any act or omission on our part) will we be liable for any loss or damages (including, without limitation, indirect, incidental, special or consequential or punitive damages and damages for loss of profits) whatsoever which result from any use, or any inability to use, our products.
10.4 To the fullest extent permitted by law, our liability for breach of any implied warranty or condition which cannot be excluded, but can be limited, is limited, at our option to supply of the good or service ordered by you again or paying for their resupply.
11 LIMITATION OF LIABILITY
11.1 The Seller does not attempt to exclude any liability:
(a) for breach of the Seller’s obligations arising under Sale of Goods Act 1979 or section 2 Sale and Supply of Goods and Services Act 1982;
(b) for personal injury or death resulting from the Seller’s negligence;
(c) under section 2(3) Consumer Protection Act 1987; or
(d) any matter for which it would be illegal for the Seller to exclude or to attempt to exclude its liability.
11.2 The Seller shall not be liable to the Buyer for any loss of profit, loss of anticipated profit, loss of business, loss of contract, economic loss, overhead recovery, anticipated savings, loss of data, loss of production, depletion of goodwill, product recall, nor for any special, indirect or consequential loss or damage, or otherwise for any costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) and, subject to clause 6.1, the Seller’s total aggregate liability under the Contract shall be limited to the Price the Seller has received under the Contract.
11.3 Products being used outside the sellers control, this product is sold on the express condition that the producers or importers give no warranty, expressed or implied and are not responsible for damage arising out of its use whether in accordance with the directions or not.
12. GOVERNING LAW
12.1 These Conditions will be governed by and construed according to the law of Western Australia and the parties agree to submit to the jurisdiction of the courts and tribunals of or exercising jurisdiction in that State.
Goods are not insured by us unless a specific request to do so is made in writing.
Pondfield Equestrian Pty. Ltd. Terms & Conditions 23/00/2012 Page 5 of 6
14 FORCE MAJEURE
14.1 If we are prevented from giving delivery of any goods under this contract due to any circumstances caused by War, Act of God, Strike, Fire, Storm, Tempest, Breakdown, Shortage of Raw Materials, Scarcity of Labour, Government Actions, Riots, Civil Commotion’s, Stoppage of Machinery or from any causes or other circumstances beyond our control, the balance of the goods not delivered may, at our option, be cancelled without claim by you upon us giving written notice of the event or circumstance.
1.1 In these Conditions the following words have the following meanings:
(a) “Business Day” means any day other than a Saturday, Sunday, or bank or other public holiday in Australia.
(b) “Buyer” means the buyer of the Goods.
(c) “Conditions” means these terms and conditions of sale.
(d) “Contract” means a legally binding contract between the Seller and the Buyer for the sale and purchase of Goods ordered under a Purchase Order which is accepted by the Seller in accordance with these Conditions.
(e) “Delivery Address” means the delivery address agreed between the Buyer and Seller.
(f) “Force Majeure Event” means any event affecting the performance of any provision of the Contract arising from acts, events, omissions or accidents which are beyond the reasonable control of a party including, but without limitation, any abnormally inclement weather, flood, lightning, storm, fire, explosion, earthquake, subsidence, structural damage, epidemic or other natural physical disaster, failure or shortage of power supplies, traffic, road accident, delay of a third party carrier, breakdown of plant and/or machinery, military operations, riot, crowd disorder, strike, terrorist action, civil commotion and any legislation, regulation, ruling or omissions (including failure to grant any necessary permissions) of any relevant government, court or authority.
(g) “Goods” means the goods as detailed in a Purchase Order accepted by the Seller in accordance with these Conditions.
(h) “Intellectual Property Rights” means any patents, trademarks, service marks, registered designs, database rights, applications for any of the foregoing, copyright, unregistered design rights, knowhow and any other similar protected rights in Australia, UK or any other country.
(i) “Price” means the price for the Goods as set out in the price list published by the Seller in force at the time a Purchase Order is accepted by the Seller in accordance with these Conditions.
(j) “Purchase Order” means a written order for Goods provided by the Buyer.
(k) “Seller” means Pondfield EquestrianPty. Ltd. ACN: 160 297 558
(l) “Site” means the Seller’s website with the URL www.fibregenix.com.au
1.2 Any reference in these Conditions to: a statute or statutory provision shall be construed as a reference to that statute or provision as amended, re-enacted or extended from time to time; a clause is to a clause in these Conditions; a person includes an individual, a company, firm or any other legal personality; the singular includes the plural and vice versa and any reference to a gender includes all other genders.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.