Terms & Conditions
1. DEFINITIONS AND INTERPRETATION
1.1 In this Contract:
(a) Australian Standards means any applicable Australian and New Zealand Standards and related documents as amended from time to time.
(b) Australian Consumer Law means the Australian Consumer Law set out in the Competition and Consumer Act 2010 (Cth), and all other relevant legislation and regulations.
(c) Claim means any claim, demand, suit, action, proceedings or any other related matters.
(d) Company means OzPump – Pump Products.
(e) Contract means the agreement recorded by this document including any schedule to it.
(f) Force Majeure Event includes:
(i) any natural disaster, lightning, earthquake or other act of God;
(ii) war, terrorist act, riot, insurrection or civil commotion;
(iii) fire or explosion; or
(iv) industrial or other action beyond the control of the Company.
(g) Goods means any goods or services purchased from the Company by the Purchaser or the subject of the Contract.
(h) GST means goods and services tax.
(i) Insolvency Event means, for a person, being in liquidation or provisional liquidation or under administration, having a controller (as defined in the Corporations Act 2001 (Cth)) or analogous person appointed to it or any of its property, being taken under section 459F(1) of the Corporations Act 2001 (Cth) to have failed to comply with a statutory demand, being unable to pay its debts as and when they fall due or otherwise insolvent, the taking of any step that could result in the person becoming an insolvent under administration (as defined in section 9 of the Corporations Act 2001 (Cth)), entering into a compromise or arrangement with, or assignment for the benefit of, any of its creditors, or any analogous event. However, a compromise or arrangement is not an Insolvency Event if it does not prejudice the interests of any creditors.
(j) Notice means a notice in accordance with clause 25.
(k) Order means the Purchaser’s offer to the Company to purchase the Goods.
(l) Price has the meaning stated in clause 4.
(m) Purchaser means any purchaser of Goods from the Company.
(n) Warranty has the meaning stated in clause 9.
(o) Work Health and Safety Laws includes:
(i) all applicable work health and safety legislation, including regulations; and
(ii) all applicable standards, codes and other guidance material relating to work health and safety.
(p) You shall mean the Purchaser where the Purchaser is a “consumer” within the meaning of the Australian Consumer Law.
1.2 Headings are for convenience only and do not affect interpretation.
1.3 A reference to a “person” includes a natural person, corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity.
1.4 A reference to legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
1.5 Each indemnity provided by the Purchaser in this Contract is a separate and continuing indemnity which survives the termination of this Contract and the delivery and supply of the Goods.
1.6 If the Purchaser is made up of more than one person:
(a) an obligation of those persons is joint and several;
(b) a right of those persons is held by each of them severally; and
(c) any reference to the Purchaser is a reference to each of those persons separately, and any warranty, covenant or indemnity is given by each of them separately.
1.7 The parties agree that in this Contract, a reference to “dollars”, “$”, a value or a payment amount, is to an amount or value (as the case may be) in the Currency.
1.8 Any modifications made to this Contract without the written consent of the Company are void.
2. ORDER, ACCEPTANCE AND APPLICATION
2.1 If the Purchaser places an Order, accepts delivery of the Goods, makes any payment in respect of the Goods or performs any obligation under this Contract, then the Purchaser shall be taken to have agreed to and accepted the terms of this Contract.
2.2 Subject to clause 2.3, the Order is accepted by the Company on the basis that this Contract constitutes the entire agreement between the Purchaser and the Company for the sale, purchase, delivery and supply of the Goods.
2.3 Unless otherwise agreed in writing in accordance with clause 1.8 and clause 23 of this Contract, the Contract constitutes the entire agreement between the Purchaser and the Company and supersedes and will prevail over all prior discussions, representations, agreements and arrangements in relation to the sale, purchase, delivery and supply of the Goods.
2.4 To the fullest extent permitted by law any prior representations, agreements and arrangements, including representations as to the suitability of the Goods, and any descriptions, illustrations and material contained in any advertisement, website, catalogue, price list or brochure are excluded from, and do not form part of, this Contract unless specifically stated in this Contract to the contrary.
2.5 All specifications, drawings, and particulars of weight and dimensions of the Goods are approximate only. Unless the accuracy of such specifications, drawings, and particulars of weight and dimensions of the Goods has been confirmed by the Company to the Purchaser in writing in respect of a particular Order, the Purchaser cannot claim against the Company for any deviation in such specifications, drawings, or particulars of weight or dimensions.
2.6 Unless specifically agreed in writing with the Purchaser, the Company does not make any promises, assurances, guarantees or representations whatsoever that the Goods comply with Australian Standards.
3.1 Any performance figures in relation to the Goods given to the Purchaser by the Company are estimates only. The Company is not liable to the Purchaser or any other person for any loss or damage, including any consequential loss or damage (including for example, loss of profits or business opportunity), in connection with a failure of any Goods to attain such figures, unless the Company gives a written guarantee in relation to such figures.
3.2 The Purchaser may inspect and test the Goods at the premises of the Company or at other premises with the prior written approval of the Company to verify any of the estimated performance figures. The Purchaser must bear the costs of the inspection and any tests except to the extent that inspection or testing is expressly included in the Price.
3.3 No performance figures other than performance figures obtained under such inspection and/or testing may be used by the Purchaser to support any claim by the Purchaser.
4.1 The Price of the Goods:
(a) is the amount, appearing in advertisements, catalogues, price lists, websites, or brochures prepared by the Company, that the Purchaser is required to pay to the Company to purchase the Goods;
(b) excludes the cost of carriage;
(c) includes the cost of packaging;
(d) is GST inclusive.
4.2 The Company may vary the Price in the event of price changes or mistakes made by the Company or suppliers on provision of reasonable notice to you. If the Company requests payment for increased prices, the Purchaser may cancel the order by giving notice to the Company, which must be received within 7 days of the announcement of the increase.
5.1 The Purchaser agrees to accept and pay for the Goods and any due cartage in accordance with this Contract.
5.2 Payment of any order accepted by the Company must be made in full, prior to despatch of Goods.
5.3 Payment in full is a condition precedent to future deliveries and services under this Contract or any other contract between the Purchaser and the Company.
5.4 The Purchaser indemnifies the Company for any and all expenses incurred by the Company in enforcing the Company’s rights against the Purchaser under this Contract or any guarantee provided by a Guarantor and will reimburse the Company as a debt due and payable for such expenses when requested to do so by the Company.
5.5 Time of payment is of the essence of the Contract.
6.1 Delivery is taken to occur when the Company despatches the Goods at the direction of the Purchaser.
6.2 The Purchaser must provide the Company with adequate delivery instructions for the Goods at the time of purchase.
6.3 The Company must use its best endeavours to deliver the Goods within the time agreed with the Purchaser, or if no such time is agreed, then at the Company’s reasonable discretion.
6.4 The delivery time is an estimate only and the Company shall not be responsible for any loss or damage suffered as a result of the failure to meet any delivery date, whether agreed to by the parties to this Contract or otherwise. The Purchaser shall not be relieved of performance because of the Company’s failure to meet any estimated delivery dates.
6.5 If by any reason of any event beyond the reasonable control of the Company, including any Force Majeure Event, the delivery of Goods becomes impracticable or impossible in the Company’s opinion, the Company may terminate this Contract by Notice to the Purchaser.
6.6 All export orders are delivered Ex Works, which expression has the meaning assigned to it by the current version of Incoterms.
6.7 If the Contract provides for the Goods to be specified by the Purchaser by schedule from time to time, any schedule is subject to acceptance by the Company.
6.8 Where a schedule is accepted by the Company under clause 6.7, any requirements stated in the schedule to be “firm” are deemed to form part of this Contract and may only be cancelled upon written approval of the Company.
7. COST OF CARRIAGE AND PACKING
7.1 The Price does not include the cost of carriages from the premises of the Company or another location nominated by the Company to the Purchaser unless otherwise agreed in writing between the Purchaser and the Company.
7.2 The Purchaser may nominate, arrange or retain the carrier.
7.3 The Company will notify the Purchaser of the cost of carriage at the time of Purchase. The cost of carriage will be in addition to the Price and is to be borne by the Purchaser.
7.4 If there is no-one at the Purchaser’s delivery address or no-one of appropriate age to receive the delivery, the Company may charge the Purchaser additional delivery fees.
7.5 The Price includes standard packing unless otherwise agreed in writing between the Purchaser and the Company.
8. TITLE AND RISK
8.1 Title in the Goods passes to the Purchaser only on payment by the Purchaser of the Price in full.
8.2 Notwithstanding clause 8.1 above, risk in the Goods passes to the Purchaser from the first occurrence of:
(a) the passing of title in the Goods to the Purchaser;
(b) the physical delivery of the Goods to the Purchaser;
(c) the time when the Goods arrive at the premises of the Purchaser (prior to being taken off the carrier) where the carrier which is to effect delivery of the Goods from the Company to the Purchaser has been nominated, arranged or retained by the Company.
8.3 The Company is not liable for any loss or damage or deterioration of the Goods after risk in the Goods has passed to the Purchaser.
9.1 The Company gives the warranty contained in Schedule 1 in respect of the Goods.
9.2 Subject to clause 10:
(a) Where You are a consumer, our Goods come with guarantees that can not be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
(b) Where You are not a “consumer” within the meaning of the Australian Consumer Law, the guarantees referred to in clause 9.2(a) above do not apply.
(c) The Warranty is given in addition to all statutory rights conferred on the Purchaser.
(d) The Company does not make any promise, for example, that any part or repair facility in respect of the Goods will be available at any time or at any specified location, other than as expressly provided for in the Warranty.
9.3 The Company will use its reasonable endeavours to make available to the Purchaser the benefit of any guarantee or warranty given by the manufacturer to the Company in respect of any Goods not manufactured by the Company.
10. LIMITATION OF LIABILITY
10.1 To the fullest extent permitted by law except to the extent expressly agreed by the Company in the Warranty:
(a)the Company is not liable for any Claim, loss, damage, cost or expense, however caused (including, but not limited to, by the negligence of the Company), suffered by the Purchaser or any other person in connection with or arising from:
(i) this Contract or its performance;
(ii) the Goods;
(iii) any misrepresentation by the Company, its directors, officers, employees, former directors and/or employees and/or officers, agents and/or subcontractors; or
(iv) any statement by a third party accepted in good faith by the Company and repeated by it, in connection with the Goods.
(b) the Company is not liable for all express and implied terms, conditions, representations and warranties relating to the Goods including without limitation all conditions or warranties as to the merchantability, quality, description, condition, safety, performance or fitness for purpose of any of the Goods.
(c) the Company shall not be liable to the Purchaser or to any other person for any loss of profit or other economic loss, indirect, special, consequential, general or other similar loss or damage how so ever arising.
10.2 Nothing in this Contract is intended to exclude, restrict or modify any rights which the Purchaser may have under the Australian Consumer Law, or any other legislation which cannot be excluded, restricted or modified by agreement.
11. WARRANTY, COVENANT AND INDEMNITIES BY THE PURCHASER
11.1 The Purchaser warrants the accuracy of any specification or information relating to the Goods or this Contract provided to the Company including via any third party who is the Purchaser’s customer, supplier, contractor, subcontractor or agent.
11.2 The Purchaser covenants not to make any Claim against any employee, director, agent or subcontractor of the Company in connection with this Contract including in connection with any misrepresentation by, or negligence of, them or the Company.
11.3 Without limitation to any other right or remedy of the Company under this Contract or at common law, to the fullest extent permitted by law, the Purchaser must indemnify and hold harmless the Company and its employees, directors, officers, agents and subcontractors in respect of any and all Claims, losses and liabilities incurred by the Company and its employees, directors, officers, agents, contractors and subcontractors as a result of, or arising directly or indirectly from:
(a) a breach by the Purchaser of clause 11.1 or clause 11.2; and/or
(b) the supply or delivery of Goods by or on behalf of the Company, except to the extent such Claims, losses or liabilities arise directly from a breach of this Contract by the Company or, the gross negligence or wilfully wrongful act or omission of the Company or its employees, directors, officers, agents, contractors and subcontractors.
11.4 If the Purchaser fails to accept or to pay for the Goods in accordance with this Contract, then the Purchaser must (without prejudice to any other rights of the Company) indemnify the Company and hold it harmless in respect of any Claim, loss, damage, cost of labour or other overhead or expense, that is attributable to such failure.
11.5 The benefit of this clause 11 is held on trust by the Company for the benefit of its employees, directors, agents, contractors and subcontractors and can be enforced by the Company on their behalf.
12. WORK HEALTH AND SAFETY
12.1 To the fullest extent permitted by law, the Company is not liable in any Claim regarding the Goods brought under or in relation to Work Health and Safety Laws.
12.2 The Purchaser warrants that it has provided the Company with all relevant information required for the Goods to comply with Workplace Health and Safety Laws.
12.3 The parties agree that the Company is entitled to rely fully on the information provided by the Purchaser in relation to the design and specification of the Goods.
12.4 If the Goods are manufactured to the design or specification of the Purchaser, the Purchaser warrants that the design, specification and Goods comply with Work Health and Safety Laws.
12.5 The Purchaser covenants that it is responsible for, and will not threaten to make or initiate, or make or initiate any Claim against the Company in relation to:
(a) loss or damage caused by errors or omissions in the information provided by the Purchaser, or any third party who is the Purchaser’s customer, supplier, contractor, subcontractor or agent, to the Company; or
(b) any modifications to the Goods made or caused by the Purchaser or any other person.
12.6 Nothing in this clause is intended to exclude or limit any duties imposed on the Company by Work Health and Safety Laws.
13. SUSPENSION AND TERMINATION
13.1 If the Purchaser:
(a) defaults in any of its obligations under this Contract;
(b) suspends or ceases to carry on business; or
(c) is the subject of an Insolvency Event; then the Company may immediately upon notifying the Purchaser, do one or more of the following:
(i) terminate this Contract or any other contract between the parties to this Contract;
(ii) suspend the performance of any or all of its obligations under this Contract until the end of the period in which the Purchaser has suspended or ceased to carry on business;
(iii) demand immediate payment for any Goods ordered by the Purchaser but not yet delivered or provided by or on behalf of the Company, other than that contained in the Warranty.
13.2 The rights of the Company provided for in clause 13.1 shall be without prejudice to any other rights the Company may have against the Purchaser.
14. RETURN OF GOODS
14.1 The Purchaser must not return Goods to the Company except upon the written consent of the Company obtained in advance of such return.
14.2 Any request by the Purchaser to return Goods to the Company must be made within 7 days of receipt of Goods by the Purchaser and must be returned to the Company within 14 days of the date of written consent.
14.3 Goods specially procured or procured on indent, manufactured for the Purchaser or Goods advertised as used, aged or clearance are not returnable.
14.4 Responsibility for the return carriage of Goods rests solely with the Purchaser and returned Goods are subject to a 25% restocking fee.
14.5 Any consent given under this clause may specify further terms and conditions and charges upon which a return may be made.
14.6 The provision of written consent to the return of Goods by the Company does not assure any acceptance of rights against the Company by the Purchaser or any other party.
14.7 If any of the Goods are returned by the Purchaser to the Company, or the Company inspects the Goods for the purposes of a potential Warranty claim at a particular location, then the Company shall determine whether the Purchaser has any rights against the Company in relation to those Goods under the Warranty. If the Company in its sole discretion determines that the Purchaser has no such rights, then the Purchaser must:
(a) reimburse the Company for all related shipping and other costs incurred by the Company; and
(b) pay to the Company an amount equal to the Company’s standard service charge in effect at the time; and
(c) pay to the Company any other amounts representing the Company’s costs associated with undertaking any warranty inspection or testing, including reasonable labour costs and travel costs associated with travelling to a particular location to inspect or test the Goods; and
(d) pay any of the amounts listed in clause 14.7 (a) to (c) by the due date specified by the Company.
15. LAWFUL USE OF GOODS
15.1 The Purchaser must:
(a) acquaint itself with the requirements of all relevant Government and statutory bodies or other authority (including, but not limited to, a manufacturer’s technical, copyright and operational requirements) in relation to the Goods and to the application(s) to which the Goods are put; and
(b) comply with such requirements at all times while the Goods are in its possession or under its control; and
(c) procure that any purchaser of the Goods from the Purchaser acquaints itself with and complies with such requirements.
15.2 The Purchaser must:
(a) comply with any instructions by the Company relating to the Goods; and
(b) indemnify the Company in respect of any breach of this clause 15.
16. INTELLECTUAL PROPERTY RIGHTS
16.1 No right or licence is granted to the Purchaser under any patent, copyright, registered design or other intellectual or industrial property right or interest other than the right to install, operate or resell the Goods.
16.2 Copies of documents in relation to the Company or the Goods such as drawings, plans and specifications the Company submits to the Purchaser, remain the property of the Company. The Purchaser must treat the information contained in those documents as strictly confidential. The Purchaser must use the information contained in those documents only to install or operate the Goods. The Purchaser must not use this information in any other way to the advantage of the Purchaser or the detriment of the Company.
16.3 By purchasing the Goods, the Purchaser does not gain any licence or right under any of the Company’s intellectual or industrial property such as a patent, registered design, trademark or copyright, or confidential information, and shall indemnify the Company in respect of any breach of this clause 16.
17.1 By accessing a Company website, the Purchaser warrants and represents to the Company that it is legally entitled to do so, and legally entitled to make use of information made available via the website.
17.2 A Company website is owned by the Company and subject to copyright. Except as permitted by the Copyright Act 1968 (Cth), the Purchaser may not reproduce, transmit, disseminate, sell or publish information on a Company website without prior written authorisation from the Company, provided that such information may be used for the Purchaser’s internal purposes only.
17.3 The Purchaser agrees to take responsibility for the safekeeping of any user name and password assigned thereto. The Purchaser is liable if its user name or password is used by an unauthorised person. The Purchaser agrees to release and indemnify the Company in connection with any use (whether authorised or unauthorised) of any user name or password. The Company may suspend or cancel the Purchaser’s account, or change the Purchaser’s user name and password at any time without prior notice.
17.4 Unauthorised use of a Company website may give rise to a claim for damages and/or be a criminal offence.
17.5 By placing an Order via a Company website, the Purchaser makes an offer to purchase the Goods selected according to the terms of this Contract. The Company reserves the right to refuse service or supply, or cancel Orders at its sole discretion.
17.6 It is the Purchaser’s responsibility to ensure that any Goods or information available via a Company website meet the specific requirements of the Purchaser, including but not limited to, fitness for purpose.
17.7 The content of the pages of a Company website are subject to change at any time and without notice. The Company includes pictures or photographs from time to time of Goods on its websites however the picture of the Goods may differ from the actual Goods.
17.8 The trademarks, names, logos and service marks (collectively “trademarks”) displayed on a Company website are registered and unregistered trademarks of the Company or trademarks licensed to the Company. Nothing contained on a Company website should be construed as granting any license or right to use any trademark without the prior written permission of the Company.
17.9 Links to other websites may be provided for the Purchaser’s convenience, however they are beyond the control of the Company and no representation is made as to their content. Use or reliance on any external links and the content thereon provided is at the Purchaser’s risk.
17.10 The Company makes no warranties, representations, statements or guarantees (whether express, implied in law or residual) as to the accuracy, timeliness, performance, completeness or suitability of the information or Goods found or offered on a Company website, for any particular purpose. The Purchaser acknowledges that such information and materials may contain inaccuracies or errors and the Company expressly excludes liability for any such inaccuracies or errors to the fullest extent permitted by law.
17.11 To the fullest extent permitted by law, the Company excludes all liability for damages arising out of or in connection with a Purchaser’s use of a Company website. This includes, without limitation, direct loss, loss of business or profits (whether or not the loss of such profits was foreseeable, arose in the normal course, or the Purchaser advised the Company of the possibility of such potential loss), damage caused to a Purchaser’s computer, computer software, system and programs and the data thereon, or any other direct or indirect, consequential and incidental damages.
18. GOODS MADE TO THE PURCHASER’S SPECIFICATION
18.1 If the Goods are manufactured to the design or specification of the Purchaser, the Purchaser warrants that the design, specification and Goods do not infringe any intellectual property right of a third party (such as a patent, copyright, trademark or registered design) or other like protection of any other person, and comply with any applicable statute, statutory instrument or regulation.
18.2 The Purchaser must indemnify the Company and hold it harmless in respect of any breach of clause 18.1.
19. ASSIGNMENT AND SUBCONTRACTING
19.1 The Company may assign, sub-contract or sub-let this Contract or the production, manufacture or supply of the whole or any part of the Goods without seeking the consent of the Purchaser.
20.1 Any waiver by the Company must be in writing signed by the Company.
20.2 Failure by the Company to enforce any right or remedy is not a waiver of any right or remedy, or a waiver in respect of a continuing breach.
21.1 If any provision of this Contract is invalid or unenforceable in any jurisdiction, it is, to the extent possible, to be read down so as to be valid and enforceable. The read down provision will only apply in the relevant jurisdiction. If the provision cannot be read down, and it can be severed to the extent of the invalidity or unenforceability, it is to be severed. The rest of the provisions, and the validity or enforceability of the affected provision in any other jurisdiction, will not be affected.
22. GOVERNING LAW AND JURISDICTION
22.1 The Purchaser agrees that the Contract shall be construed according to the laws of the state or territory as the Company may in its sole discretion determine.
22.2 The Purchaser agrees that a Claim by either the Company or the Purchaser may be commenced and/or continued in the specific court or tribunal in such state or territory as the Company may in its sole discretion determine.
22.3 Failing such determination under clause 22.1 or clause 22.2, the Purchaser consents to any Claim being commenced and heard by any appropriate court or tribunal in the state of New South Wales applying the laws of that state.
22.4 The Purchaser indemnifies the Company for any and all Claims, losses, costs and expenses suffered or incurred by the Company in connection with a breach by the Purchaser of clause 22.1, clause 22.2 or clause 22.3 and/or in connection with the Purchaser seeking to pursue or defend a Claim or otherwise enforce its rights:
(a) in a state or territory other than the state or territory determined by the Company in its sole discretion, or failing such determination, in a state or territory other than the state of New South Wales; or
(b) pursuant to the laws of a state or territory other than the state or territory determined by the Purchaser, or pursuant to the laws of a state or territory other than the state of New South Wales in the situation where the Purchaser has failed to make a determination per clause 22.3.
22.5 So far as it is consistent with this Contract, the Convention on Contracts for the International Sale of Goods 1980 (sometimes known as the Vienna Convention) applies to any export order.
23.1 Any variation of this Contract must be in writing and authorised by a Director of the Company, the Company Secretary, or the Company’s appointed legal representative, and must refer expressly to the provision(s) being amended.
23.2 From time to time, the Company may review and amend the terms of the Contract and the Purchaser shall be bound by any variation which shall apply to any new Order placed following the effective date of the variation.
24. PERSONAL PROPERTY SECURITIES ACT 2009 (PPS ACT)
24.1 The Purchaser agrees that this Contract constitutes a security agreement for the purposes of the PPS Act and creates a security interest (as defined in the PPS Act) in all Goods previously supplied by the Company to the Purchaser and all future Goods supplied to the Purchaser.
24.2 The Purchaser agrees to do all such things, including providing any necessary consents, signing all necessary documents, and providing any further information, as reasonably required by the Company from time to time, to enable the Company to register a perfected security interest in respect of all Goods supplied by the Company to the Purchaser, or exercise any rights in connection with any security interest.
24.3 The Purchaser acknowledges that it shall be liable for the costs and expenses incurred by the Company in relation to the registration, maintenance, enforcement or discharge of any security interest, and must make payment to the Company for any such reasonable costs incurred by the Company on demand by the Company.
24.4 The Purchaser acknowledges that it shall assist the Company, to the extent required, in relation to the registration, maintenance, enforcement or discharge of any security interest.
24.5 The Purchaser agrees not to register, or permit to be registered, a security agreement in relation to the Goods in favour of a third party without the prior written consent of the Company.
24.6 The Purchaser acknowledges that it shall not, without prior written notice to the Company, change its corporate or trading name or amend any registration documentation, or act in any manner, which would adversely impact on the Company’s registered security interest.
24.7 To the extent permissible, the Purchaser agrees to waive its rights to receive notices under the PPS Act.
25.1 Any Notice must be in writing and delivered by hand or sent by post, email or facsimile as follows:
(a) if the Company: the registered office of the Company as per the Corporations Act 2001 (Cth).
(b) if the Purchaser: as per the Order details or any registered office of the Purchaser, if the Purchaser is a registered business or operating under a registered business name or is a company.
25.2 A Notice is regarded as given by the sender and received by the addressee:
(a) if the Notice is delivered by hand, when delivered to the addressee;
(b) if the Notice is sent by post, on the 2nd business day following the date of postage or when delivered to the addressee, whichever occurs first;
(c) if sent by facsimile, when the transmission is successfully completed (as reported by the sender’s machine), unless the addressee informs the sender that the transmission is illegible or incomplete by telephone or Notice within 2 hours of the transmission being received; and
(d) if sent by electronic mail, when the addressee opens the message (as reported by the sender’s machine), unless the addressee informs the sender that the transmission is illegible or incomplete or corrupted by telephone or Notice within 2 hours of the transmission being received.
25.3 A Notice delivered or received:
(a) on a day which is not a business day or after 4.00 pm (recipient’s time) is regarded as received at 9:00 am on the following business day; and
(b) before 9.00 am (recipient’s time) on a business day it is regarded as received at 9.00 am that day.
26.1 The Company will comply with its Privacy Statement.
26.2 The Company may use and disclose to third parties personal information held by the Company, including information relating to the Purchaser’s commercial dealings and transactions with the Company for reasons including to:
(a) arrange for the delivery of the Goods;
(b) facilitate the Company’s internal business operations, including fulfilment of any legal requirements;
(c) arrange or facilitate any Warranty repairs or services; and
(d) provide the Purchaser with information and promotional material about products and services that may be of benefit to the Purchaser.
26.3 The Purchaser can request access at any time to personal information held by the Company relating to the Purchaser, and the Company will process the request within a reasonable time. The Purchaser may ask the Company at any time to correct personal information held by the Company relating to the Purchaser which the Purchaser believes is incorrect. Access and correction requests will be granted in accordance with the Privacy Act 1988 (Cth).
SCHEDULE 1 – WARRANTY (Clause 9 – Warranty)
This Warranty forms part of and is to be read in conjunction with the Contract.
1. Definitions in this Schedule 1
(a) Warranty Period means the period of twelve months from the date of delivery of the Goods to the Purchaser. The Warranty Period may be subject to terms outside this Contract and will be listed on the items “Specifications” tab located on the items product page on the Company website: http://ozpump.com.au/.
(b) Normal Wear and Tear means the gradual reduction in performance of Goods having regard to the age of the Goods and the nature and frequency of use of the Goods.
2.1 Subject to clauses 3 and 4 of this Warranty, and in the absence of a third party manufacturer warranty, the Company agrees, in relation to any faulty workmanship or material defect in Goods that are purchased by the Purchaser and reported by the Purchaser to the Company during the Warranty Period, to any one or more of any the following:
(a) in the case of goods:
(i) to replace the goods or supply equivalent goods;
(ii) to repair the goods;
(iii) to pay the cost of replacing the goods or acquiring equivalent goods; or
(iv) to pay the cost of having the goods repaired; and
(b) in the case of services:
(i) to supply the services again; or
(ii) to pay the cost of having the services supplied again.
2.2 To avoid doubt, the Company has sole discretion as to any one or more of the alternatives specified in clauses 2.1(a) or 2.1(b).
2.3 This Warranty does not cover anything which is not expressly included in the Warranty.
3.1 To the extent permissible by law, the Warranty does not cover:
(a) Any Goods specifically defined, described, advertised or categorised as:
(ii) Aged Assembly;
(iii) Aged Component,
on any company websites, catalogues, price lists or other point of sale or promotional merchandise.
(b) anything caused or contributed to by:
(i) Normal Wear and Tear and the gradual reduction in operating performance of the Goods;
(ii) the Company being the subject of a Force Majeure Event;
(iii) an accident, abuse, neglect of a person other than of the Company, including any wilful, negligent or inappropriate act or omission of a person other than of the Company which occurs during transportation of Goods, the loading and/or unloading of Goods, installation of Goods, or moving of Goods;
(iv) vandalism, power outages, surges, inadequate or improper voltage or current, or use and instalment of Goods contrary to any instruction or manual;
(v) repair or modification of the Goods carried out:
(A) without the proper written consent of the Company; or
(B) by a person other than the Company or its agent;
(vi) any criminal, deliberate, wilful, dishonest or fraudulent act, error or omission of the Purchaser or any of its officers, employees or agents;
(vii) any breach by the Purchaser of a law or regulatory requirement;
(c) costs of removal, re-installation, recommissioning or shipping of the Goods;
(d) damage occurring during transportation, freight, installation of the Goods or while moving the Goods;
(e) any defect or faulty workmanship in relation to the Goods:
(i) not notified to the Company within the Warranty Period; or
(ii) where the Purchaser continues to use the Goods after the Purchaser knew or discovered or ought reasonably to have known or discovered the defect or faulty workmanship.
4. Warranty Claims and Associated Costs
4.1 If a Purchaser wishes to lodge a claim under this Warranty in relation to the Goods then the Purchaser must notify the Company immediately and during the Warranty Period. Further information regarding the Warranty claim procedure can be obtained by contacting the Company via email: firstname.lastname@example.org .
4.2 The Company may, under this Warranty, direct that the Purchaser returns the Goods to:
(a) the location from which the Goods were originally dispatched to the Purchaser; or
(b) another location, provided that the cost of returning the Goods to such a location does not exceed the cost of returning the Goods to the location from which the Goods were originally dispatched to the Purchaser.
4.3 Where the Company directs the Purchaser under clause 4.2 of this Warranty, the Purchaser must return the Goods in accordance with such direction.
4.4 The Company may at its discretion require the Purchaser to issue a purchase order with respect to additional assessment, testing and/or inspection required in order for the Company to assess a Warranty claim and the Purchaser shall be obliged to issue such documentation prior to any further assessment, testing and/or inspection being undertaken by the Company under the Warranty terms.
4.5 In the event that the Company determines at its sole discretion that a claim is not accepted under this Warranty, the Purchaser shall be liable for any costs incurred by the Company associated with a Warranty claim, including all costs incurred by the Company in assessing, inspecting and/or testing the Goods as part of any claim, including reasonable labour costs and travel costs associated with travelling to a particular location to assess, test and/or inspect the Goods.
4.6 In the event that the Purchaser at its sole discretion does not accept a Warranty Claim, the Purchaser shall be notified of the Company’s decision and will be issued with an invoice for costs incurred by the Company associated with a Warranty claim pursuant to clause 4.5.
4.7 Where a third party manufacturer warranty applies, the Purchaser agrees to comply with any applicable warranty terms and conditions, to the extent that they contain additional warranty requirements.
4.8 The Purchaser shall be required to pay any invoice issued to the Purchaser pursuant to clause 4.6 by the due date specified by the Company.
4.9 The Purchaser shall indemnify the Company in respect of any and all Claims, losses, expenses and liabilities incurred by the Company arising indirectly or directly out of any Warranty Claim not accepted by the Company acting in its sole discretion.