Terms and Conditions for Sale of Goods Online - Form Pro · AU-law
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________ (hereinafter "Seller")
ABN: ________
________
TERMS AND CONDITIONS FOR THE SALE OF GOODS
Please read the following important terms and conditions ("Terms") before you buy anything on our Website, and check that they contain everything which you want and nothing that you are not willing to agree to. By making a purchase on our Website, you agree to be bound by these Terms.
These Terms set out your legal rights and responsibilities; our legal rights and responsibilities; and certain key information required by law. Nothing in these Terms limits or excludes any rights you may have which cannot lawfully be limited or excluded under the Australian Consumer Law.
(1) DEFINITIONS
In these Terms, the following definitions apply:
"ACL" means the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
"Business Day" means a day which is not a Saturday, Sunday, public holiday or bank holiday in ________.
"Buyer", "you" or "your" means the person or organisation that is purchasing the Products through our Website.
"Confirmation" means an email which we send you to confirm that we have accepted your order, in accordance with the "Ordering From Us" clause of these Terms.
"Consumer" has the meaning given in section 3 of the ACL.
"Consumer Guarantees" means the guarantees that apply to the supply of goods and services under Division 1 of Part 3-2 of the ACL.
"Delivery Date" means any estimated date for delivery of your Products, as stated on our Website or otherwise communicated to you at the time of your purchase.
"GST" means Goods and Services Tax imposed on a supply of goods or services in Australia pursuant to the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or any other applicable law.
"Party" means either the Buyer or the Seller.
"Parties" means the Buyer and the Seller collectively.
"Price" means the price of our Products as published on our Website at the time that you make your purchase.
"Products" means the products that you choose to purchase through our Website, which may include but is not limited to goods.
"Seller", "we", "us" or "our" means ________ (ABN ________) of ________.
"Terms" means these terms and conditions as updated from time to time.
"Website" means our website located at ________ together with any affiliated websites or pages.
(2) INTERPRETATION
In these Terms, unless the context otherwise requires, the following rules of interpretation apply:
(2.1) Words referring to one gender include every other gender.
(2.2) Words referring to a singular number include the plural, and words referring to a plural include the singular.
(2.3) If a word or phrase is defined in these Terms, then any grammatical variations of that word or phrase have a corresponding meaning.
(2.4) Words referring to a person or persons include firms, corporations, associations, partnerships, joint ventures, authorities, government bodies, organisations and other legal entities, and vice versa.
(2.5) Any reference to time is a reference to time in ________.
(2.6) If something must be done under these Terms on or before a particular date, and that date falls on a day which is not a Business Day, then that thing must be done on or before the next Business Day.
(2.7) Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
(2.8) Headings and titles are included for convenience only and do not affect the interpretation of these Terms.
(2.9) Each Party must, at its own expense, take all reasonable steps and do all that is reasonably necessary to give full effect to these Terms.
(2.10) A reference to legislation or any part or provision of that legislation includes any subordinate legislation, amended legislation, and any substituted legislation issued under that legislation.
(2.11) A reference to an agreement or document is a reference to that agreement or document as amended, replaced, supplemented or novated from time to time.
(2.12) A reference to a Party also includes that Party's successors, assigns, legal personal representatives and/or any person substituted by way of novation.
(2.13) Any reference to money or currency, unless otherwise specified, is a reference to Australian dollars.
(3) SALE
By making a purchase through our Website, you are buying the Products subject to these Terms and you agree to be legally bound by these Terms.
(4) ORDERING FROM US
(4.1) This clause sets out how a legally binding contract between you and us is made.
(4.2) You place an order on our Website by doing the following:
________
(4.3) Please read and check your order carefully before submitting it. If you need to correct any errors, you can do so before submitting it to us.
(4.4) When you place your order at the end of the online checkout process (for example, when you confirm payment), we will acknowledge it by email. This acknowledgement does not, however, mean that your order has been accepted.
(4.5) We may contact you to say that we do not accept your order. This is typically for the following reasons:
(4.5.1) the Product(s) are unavailable;
(4.5.2) we cannot authorise your payment;
(4.5.3) you are not allowed to buy the Product(s) from us;
(4.5.4) we are not allowed to sell the Product(s) to you;
(4.5.5) the number of Product(s) you have ordered is too large; or
(4.5.6) there has been a mistake in the pricing or description of the Product(s).
(4.6) We will only accept your order when we send you an email to confirm this ("Confirmation"). At this point:
(4.6.1) a legally binding contract will be in place between you and us; and
(4.6.2) your order will be fulfilled.
(4.7) If you are under the age of 18 you may not buy Products from our Website.
(5) DELIVERY OF PHYSICAL PRODUCTS
(5.1) If you want to see your delivery options, visit our webpage ________ before you place your order.
(5.2) The estimated date and time window for delivery of the Products is set out in the Confirmation.
(5.3) If something happens which:
(5.3.1) is outside of our control; and
(5.3.2) affects the estimated date of delivery,
then we will give you a revised estimated date for delivery of the Products.
(5.4) Delivery of the Products will take place when we deliver them to the address that you gave to us.
(5.5) We may be unable to deliver the Products if we are unable to properly identify you. Please be prepared to provide a form of identification (such as a passport or driver licence) on delivery of the Products.
(5.6) Unless you and we agree otherwise, if we cannot deliver your Products within ________ days, we will:
(5.6.1) let you know;
(5.6.2) cancel your order; and
(5.6.3) give you a refund.
(5.7) If nobody is available to take delivery, please contact us using the email address set out below.
(5.8) You are responsible for the Products when delivery has taken place. The risk in the Products passes to you when you take possession of the Products.
(5.9) We may deliver your Products in instalments. To check whether your Products may be delivered in this way, please review the delivery details during the online checkout process.
(6) PAYMENT
(6.1) We accept the following means of payment:
________
(6.2) We will do all that we reasonably can to ensure that all of the information you give us when paying for the Products is secure by using an encrypted and secure payment mechanism. However, in the absence of negligence on our part, we will not be legally responsible to you for any loss that you may suffer if a third party gains unauthorised access to any information that you give us.
(6.3) Your credit card or debit card will only be charged when you confirm your order.
(6.4) All payments by credit card or debit card must be authorised by the relevant card issuer. From time to time we may also use extra security steps via Verified by Visa, Mastercard® SecureCode™ or equivalent services.
(6.5) If your payment is not received by us and you have already received any Products, you:
(6.5.1) must pay for such Products within ________ days; or
(6.5.2) must return them to us as soon as possible. If so, you must keep the Products in your possession, take reasonable care of them (including ensuring that you follow any instructions or manuals given with the Products) and not use them before you return them to us.
(6.6) If you do not return any Products (such as where you have not paid for them) we may collect the Products from you at your expense. We will try to contact you to let you know if we intend to do this.
(6.7) The Price of the Products:
(6.7.1) is in Australian dollars (AUD$);
(6.7.2) includes GST at the applicable rate; and
(6.7.3) does not include the cost of delivering the Products (delivery options and costs will be provided before you place your order).
(6.8) If you are a member of '________', and are completing a purchase which qualifies for the scheme, you will need to confirm the required information to qualify for any member benefits during the online checkout process. Please note that not all purchases may qualify for the scheme (please consult the '________' terms and conditions for further information).
(7) NOMINATED DELIVERY DATES
(7.1) We will use all reasonable endeavours to deliver the Products to you on or around the Delivery Date stated on our Website or otherwise communicated to you at the time of your purchase.
(7.2) Any Delivery Date provided to you is an estimate only and is not a guaranteed date for delivery. Time for delivery shall not be of the essence of these Terms, except to the extent required by the Consumer Guarantees.
(7.3) Subject to your rights under the ACL, we shall not be liable for any delay in delivery of the Products that is caused by an event outside of our control or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
(8) TAXES, DUTIES AND OTHER CHARGES
(8.1) Unless otherwise stated, our Prices do not include insurance, shipping and/or delivery costs and import charges (such as customs duties or levies) or other applicable taxes or duties.
(8.2) By making a purchase on our Website, you acknowledge that you are responsible for any insurance, shipping costs and import charges (such as customs duties or levies) or other applicable taxes or duties.
(9) SHIPPING AND DELIVERY COSTS
(9.1) Unless otherwise stated, you agree to pay any applicable shipping and/or delivery costs related to your Products.
(9.2) Shipping and/or delivery costs vary depending on your chosen delivery method and delivery location.
(9.3) Applicable shipping and/or delivery costs are published on our Website at the time of your purchase.
(9.4) By making your purchase, you agree to the applicable shipping and/or delivery costs as published on our Website or communicated to you at the time of your purchase.
(10) CONSUMER GUARANTEES
(11) TITLE
Title to the Products will remain with us until we have received the Price in full, together with any applicable taxes, duties, shipping or delivery costs or other fees or charges payable to us by you in relation to your Products. Until title passes, you hold the Products as fiduciary bailee for us, and we may register and enforce a security interest in the Products under the Personal Property Securities Act 2009 (Cth).
(12) LIMITATION OF LIABILITY
(12.1) The Buyer may have certain rights under the ACL, or under other similar or related consumer protection laws.
(12.2) The ACL may give the Buyer certain rights, guarantees and remedies regarding the provision of goods or services by the Seller, which cannot be excluded, modified or restricted by the Seller ("Statutory Rights").
(12.3) Subject to your Statutory Rights, and to the maximum extent permitted by law, the Seller excludes all conditions, warranties and guarantees implied by custom, law or statute.
(12.4) To the maximum extent permitted by law, and except where the Buyer's Statutory Rights apply, the Buyer agrees that the Buyer is solely responsible for evaluating the Products and for determining whether the Products are fit for the Buyer's purpose.
(12.5) To the maximum extent permitted by law, and except where the Buyer's Statutory Rights apply, the Buyer agrees that the Seller is not liable for any direct, indirect, consequential or incidental loss or damage which may result from the Buyer's use of the Products, including any damages for loss of revenue, profits, interruption of business, or loss of data.
(12.6) Where the goods or services supplied are not of a kind ordinarily acquired for personal, domestic or household use or consumption, and to the extent permitted by section 64A of the ACL, the Seller's liability for failure to comply with a Consumer Guarantee is limited, at the Seller's option, to:
(12.6.1) the repair of the Products;
(12.6.2) the replacement of the Products or the supply of equivalent Products;
(12.6.3) the payment of the cost of replacing the Products or acquiring equivalent Products; or
(12.6.4) a refund of the Price paid by the Buyer.
(12.7) The Seller's failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
(12.8) Subject to your Statutory Rights and to the sub-clause below titled "Exceptions", to the maximum extent permitted by law we shall not be liable for any of the following (whether direct or indirect):
(12.8.1) loss of profit;
(12.8.2) loss or corruption of data;
(12.8.3) loss of use;
(12.8.4) loss of production;
(12.8.5) loss of contract;
(12.8.6) loss of opportunity;
(12.8.7) loss of savings, discount or rebate (whether actual or anticipated); or
(12.8.8) harm to reputation or loss of goodwill.
(12.9) Exceptions:
(12.9.1) The limitations of liability set out above shall not apply in respect of any indemnities given by either Party under these Terms.
(12.9.2) Notwithstanding any other provision of these Terms, the liability of the Parties shall not be limited in any way in respect of the following:
(12.9.2.1) death or personal injury caused by negligence;
(12.9.2.2) fraud or fraudulent misrepresentation;
(12.9.2.3) any liability under the Consumer Guarantees or other provisions of the ACL that cannot lawfully be excluded;
(12.9.2.4) any other losses which cannot be excluded or limited by applicable law; or
(12.9.2.5) any losses caused by wilful misconduct.
(12.10) This clause will survive the termination or expiration of these Terms.
(13) CONFIDENTIALITY AND INTELLECTUAL PROPERTY
(13.1) For the purpose of this clause, "Intellectual Property" may include but is not limited to:
any and all inventions, patents, utility models, design rights, copyright, know-how, trade secrets, trade marks, trade names, confidential information, service marks and goodwill subsisting in, resulting from or relating to the Products, or any documents, drawings, specifications and/or patterns relating thereto, either:
(13.1.1) supplied by us to you in connection with the Products;
(13.1.2) supplied by us to you or disclosed to or obtained by you pursuant to or as a result of these Terms; or
(13.1.3) resulting from the Products, unless otherwise expressly agreed by the Seller in writing.
(13.2) You shall not, under any circumstances, acquire any right in or to any Intellectual Property.
(13.3) We have the right to apply any trade marks, trade names and/or service marks to the Products. You acknowledge that no rights are granted to you by your use of such trade marks, trade names and/or service marks. You shall not deface, remove or obliterate any trade marks, trade names or logos applied by the Seller on or in relation to the Products.
(13.4) If you in any way acquire any such rights in any Intellectual Property, then you shall immediately inform us and shall forthwith take such steps as may be required by the Seller to assign such rights or vest such title in us.
(13.5) The Parties each acknowledge and agree that, unless otherwise expressly agreed between the Parties, the terms of these Terms, and the fact that these Terms exist, are confidential.
(13.6) You shall keep confidential and not use, without our prior written consent, all or any information including without limit that information supplied by us to you or disclosed to or obtained by you pursuant to or as a result of these Terms, and shall not divulge the same to any third party, except to the extent that any such information is or becomes public through no fault of yours, or disclosure of the same is required by law or by any governmental or other regulatory body.
(13.7) Each Party agrees to comply with its obligations under the Privacy Act 1988 (Cth) and the Australian Privacy Principles in respect of any personal information collected, used or disclosed in connection with these Terms.
(13.8) This clause will survive the termination or expiration of these Terms.
(14) INDEMNITY AND INSURANCE
(14.1) To the maximum extent permitted by law, you shall indemnify us, and keep us indemnified, from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by us as a result of or in connection with your breach of any of your obligations under these Terms, except to the extent caused by our negligence or breach.
(14.2) Where applicable, you shall have in place contracts of insurance with reputable insurers incorporated in Australia to cover your obligations under these Terms. On request, you shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable.
(15) RIGHTS OF THIRD PARTIES
No one other than a Party to these Terms has any right to enforce any of these Terms.
(16) TERMINATION
(16.1) In addition to any other rights set out in these Terms, if either Party defaults in its obligations under these Terms ("Defaulting Party"), the other Party may terminate the contract created between us under these Terms by providing written notice to the Defaulting Party.
(16.2) If the contract created between us under these Terms is ended, it will not affect our right to receive any money which you owe to us under these Terms, nor any right or remedy of either Party accrued prior to termination.
(17) WARRANTIES REGARDING LEGAL ADVICE
(17.1) Each Party (which for the purposes of this clause shall be referred to as the "Warranting Party" as the context requires) hereby respectively warrants:
(17.1.1) that the Warranting Party fully understands the terms of these Terms;
(17.1.2) that the Warranting Party has had the opportunity to obtain independent legal advice in relation to the matters addressed by these Terms and the Warranting Party has either:
(17.1.2.1) taken such independent legal advice; or
(17.1.2.2) elected not to take such independent legal advice; and
(17.1.3) that the Warranting Party has not been induced to enter these Terms by any representation(s) made by the other Party or by any officer, employee, director, agent, contractor, assignee, successor or other representative of the other Party, except as provided in these Terms.
(17.2) This clause will survive the termination or expiration of these Terms.
(18) DISPUTES
(18.1) We will try to resolve any disputes with you quickly and efficiently.
(18.2) If you are unhappy with:
(18.2.1) the Product(s);
(18.2.2) our service to you; or
(18.2.3) any other matter,
please contact us as soon as possible using the details provided in the "Contact Us" clause below.
(18.3) Nothing in this clause prevents either Party from seeking urgent interlocutory relief, or from exercising any rights under the ACL or any other applicable consumer protection law.
(19) UPDATES TO THESE TERMS
(19.1) These Terms may be updated from time to time.
(19.2) The latest version of these Terms is displayed on our Website and/or at the bottom of these Terms.
(19.3) By making a purchase on our Website, you agree to these Terms, including any updates, as published on the Website at the time of your purchase.
(20) GENERAL PROVISIONS
(20.1) GOVERNING LAW: These Terms shall be governed in all respects by the laws of ________ and any applicable federal law of the Commonwealth of Australia. Both Parties submit to the non-exclusive jurisdiction of the courts of ________ and the courts competent to hear appeals from them.
(20.2) LANGUAGE: All communications made or notices given pursuant to these Terms shall be in the English language.
(20.3) ASSIGNMENT: These Terms, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or in part by either Party except with the other Party's prior written consent.
(20.4) AMENDMENTS: Subject to the "Updates to These Terms" clause, these Terms may only be amended in writing.
(20.5) RIGHTS, REMEDIES AND POWERS: Unless expressly provided in these Terms, any rights, remedies or powers which a Party acquires under these Terms are cumulative and apply in addition to any rights, remedies or powers which that Party may otherwise have.
(20.6) SURVIVAL OF OBLIGATIONS: At the termination or expiration of these Terms, any provisions which would by their nature be expected to survive termination or expiration shall remain in full force and effect, including any provisions explicitly stated to survive termination and/or expiration.
(20.7) NO WAIVER: No term of these Terms shall be deemed waived by any act or acquiescence of either Party. Only an additional written agreement can constitute a waiver of any of the terms of these Terms. No waiver of any term shall constitute a waiver of any other term or of the same term on a future date.
(20.8) SEVERABILITY: If any provision of these Terms is held to be unenforceable, these Terms will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of the Terms, valid and enforceable. If a court declines to amend these Terms as provided herein, the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the remaining terms and provisions.
(20.9) ENTIRE AGREEMENT: In relation to the subject matter of these Terms, these Terms constitute the entire agreement between the Parties and supersede any prior or contemporaneous understandings, whether written or oral. Nothing in this clause limits or excludes any liability for fraud or for any representation that cannot lawfully be excluded.
(20.10) FURTHER ACTS: Each Party must, and must ensure that its employees, agents and representatives do, all things and sign, execute and deliver all documents, agreements and instruments reasonably required in order to give effect to these Terms and to the rights and obligations of the Parties created under these Terms.
(20.11) FORCE MAJEURE: Neither Party is liable to the other for any failure to perform due to causes beyond its reasonable control, including but not limited to acts of God, acts of civil or military authorities, riots, embargoes, pandemics, acts of nature and natural disasters. The Seller is not liable for any delivery delay or non-performance caused by labour or transportation disputes or shortages, material delays, or delays or non-performance caused by any of the Seller's suppliers. If the Seller is unable to perform for any reason within ________ days after the expected date of delivery, the Seller may terminate these Terms in full and provide a complete refund to the Buyer of any fees paid. Nothing in this clause limits the Buyer's Statutory Rights.
(21) CONTACT US
(21.1) If you do not understand any of these Terms and want to talk to us about them, please contact us by:
email: ________
telephone: ________
postal address: ________
(22) LAST UPDATED
These Terms are current and up to date as of: ________
By making a purchase on our Website, you agree to be bound by these Terms.
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