“Australian Consumer Law” means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
“Company” means HealthyNest (Australia) Pty Ltd (ACN 57 144 907 844) or any of its associated and subsidiary companies in existence now or in the future, or any other agent thereof (whether disclosed or not).
“Conditions of Sale” means these Conditions of Sale, as applied on the date of sale.
“Customer” means the party placing the Order with or purchasing Products from the Company.
“Order” means an offer by a Customer to purchase Products from the Company.
“Products” includes all products listed on the Company price list as published at the time of the Customer placing an order, and any products sold or delivered to the Customer by the Company.
“Writing” includes quotes, letters, fax, email and other similar electronic communication methods.
1. SALE TERMS
1.1 The Conditions of Sale apply to all supplies by the Company to the Customer including all Orders or other sales and will prevail over all prior conditions previously agreed between the parties or which the Customer puts forward at any time without the Company’s express written agreement.
1.2 The Conditions of Sale may be amended from time to time by the Company without prior notice. Publication of the amended Conditions of Sale on the website of the Company shall be deemed to amend the Conditions of Sale and be notice of that amendment and the amended Conditions of Sale shall apply to any Order or part of an Order from the time of amendment. The Company may, but shall not otherwise be required or responsible to notify the Customer of the existence or content of any amendments to the Conditions of Sale
2. ORDER AND ACCEPTANCE
2.1 Any Order submitted to the Company by a Customer shall be deemed to be made pursuant to the terms of the Conditions of Sale. Any Order placed or made by the Customer for the purchase of the Products shall be an irrevocable offer under those terms.
2.2 The Company may accept any Order in whole or in part by providing confirmation of the Order. Acceptance may be oral, by conduct or in writing at the Company’s discretion. Accepted Orders may not be varied or cancelled by the Customer without the Company’s written consent and there is no right of return, with the exception of conditions stated in Section 14: Claims and Refunds.
2.3 In the event of a variation or cancellation that is not initiated by the Company, the Customer is responsible for any and all transaction fees that are incurred by the Company for the initial acceptance and variation of the Order, or the initial acceptance and cancellation of the Order respectively.
3.1 The price of the Products shall be as agreed between the parties and where there is no written confirmation of the price, the price shall be the amount indicated on Invoices provided by the Company to the Customer regarding Products ordered.
3.2 Prior to acceptance of an Order, the Company may change its published prices at any time without notice. The customer is not entitled to any credit for stock on hand in the event of a price reduction after the Order has been invoiced.
3.3 The price of the products will not include shipping fees, and a shipping fee will be added to every order except where an offer or promotion for free shipping has been published by the Company.
3.4 Any discount or rebate will only apply if the Customer and the Company agree in writing.
4. PAYMENT PROCESS
4.1 When the Company accepts an Order, payment for all Products supplied is required before delivery (cash, credit card or cleared funds).
4.2 In certain circumstances, the Company may, while bank funds have not been cleared, deliver Products to customers with a long and reliable history of purchases with the Company.
5. GOODS AND SERVICES TAX (GST)
5.1 The Company reserves the right, upon production of an Invoice, to recover from the Customer any Goods and Services Tax (GST) payable in respect of supply of Products.
5.2 Unless expressly excluded, all amounts of consideration expressed or described in any quotation or agreement are inclusive of GST, including where the Products are GST-free (i.e. where the amount of GST calculated is $0.00).
6.1 Delivery of the Products shall be deemed to have taken place when the Products are delivered at the Customer’s nominated address.
6.2 Delivery of Products may not be refused by the Customer after an Order has been accepted by the Company. Where delivery fees have been paid by the customer, delivery is to the Customer’s nominated address accepted by the Company at the time the Order is made.
6.3 The Customer shall make all arrangements necessary to accept delivery of the Products whenever they are tendered for delivery.
6.4 Delivery of Products to a third party or place nominated in any way by the Customer is deemed to be delivery to the Customer pursuant to these Conditions of Sale.
6.5 The Company shall not be liable for any loss or damage or expense arising from failure by the Company to deliver the Products at a specified time, promptly or at all and the failure of the Company to deliver at a specific time or at all shall not entitle either party to treat this contract as repudiated.
6.6 Where the Company, the Company’s carrier or agent enters the Customer’s premises to make deliveries, the Customer releases the Company from claims for damage to the premises or personal injury. The Customer also indemnifies the Company against losses relating to damage to third party’s premises or personal injury in making deliveries to the Customer.
7. PASSING OF RISK
7.1 The risk (but not title) in respect of Products sold passes to the Customer immediately upon delivery to the customer, the Customer’s agent or courier as the case may be.
8. RETENTION OF TITLE TO THE PRODUCTS PENDING PAYMENT
8.1 Legal and beneficial ownership of the Products shall remain with the Company and shall not pass to the Customer until the Company has received in full (cash or cleared funds) all sums due to it in respect of the Products.
8.2 Until ownership of the Products has passed to the Customer, the Customer shall keep the Products in question as fiduciary agent and bailee for and on behalf of the Company.
9. CLAIMS AND RETURNS
9.1 Refunds or returns will only be given to the extent there is a non-excludable right to return or refund under the Australian Consumer Law or the Sale of Goods Act NSW or other applicable legislation.
9.2 The Customer will inspect and check all Products received and within 48 hours of receipt notify the Company in writing of any shortage in quantity, defect, incorrect specification, damage or Products not in accordance with the Customer’s Order. The Customer is responsible for checking that Products correspond with those Ordered prior to use. After use or expiry of the time stated herein the Product shall be deemed to be free from any defect or damage at delivery.
9.3 The Customer agrees that it will not return any of the Products without first informing the Company and obtaining approval from a duly authorised officer of the Company. Returned Products must be unmarked, in a saleable condition and must include the original packaging, Invoice, and/or delivery document.
9.4 No credit or replacement will be given unless and until Products so returned have been verified as being valid for return or are defective and are returned with approval from a duly authorised officer of the Company. An administration and restocking fee shall be debited from the Customer’s account where the returned Products prove to be not defective or not otherwise valid for return. Returned Products must be returned to the Company at the address notified by the Company.
9.5 All freight, handling, transaction fees and other charges in relation to returning Products (other than Products defective or not ordered) are the responsibility of the Customer.
10. PRODUCT INFORMATION, PHOTOS AND IMAGES
10.1 The Product range on the Company website may vary from printed catalogues. Product information, photos and images may differ from the actual Products. Photos and images on the website and in printed material are for general illustration purposes only.
11. WARRANTIES, DISCLAIMER AND LIMITATION OF LIABILITY
11.1 Subject to clause 11.2 and except as expressly provided in these Conditions of Sale or as set out in the Company’s acceptance, and to the extent permitted by law, no guarantee, warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the condition, quality, performance, aesthetic appearance, merchantability or fitness for purpose of any Products provided pursuant to these Conditions of Sale is given or assumed by the Company and all such guarantees, conditions, warranties and liabilities (including liability as to negligence) express or implied relating to such Products are hereby excluded.
11.2 The Company acknowledges that certain legislation in Australia, including the Australian Consumer Law, provides guarantees and rights which cannot be excluded, restricted or modified or which may in certain cases only be modified or restricted to a limited extent. Nothing in these terms and conditions excludes, restricts or modifies, or is intended to exclude, restrict or modify, any guarantee, condition, warranty, right or liability implied by law (including any guarantee, condition, right or liability imposed under the Australian Consumer Law) to the extent it cannot lawfully be excluded, restricted or modified.
11.3 To the full extent permitted by law, the liability of the Company, including liability for any consequential loss which the Customer or any other entity or person may sustain or incur, will be limited, at the Company’s option, to:
- if the breach relates to supply of goods:
(a) the provision of a refund;
(b) replacement of the goods;
(c) repair of the goods; or
(d) the payment to the Customer of the reasonable cost of having the goods repaired or replaced.
ii. if the breach relates to services:
(a) the provision of a refund; or
(b) re-supply of the services; or
(c) the payment to the Customer of the reasonable cost of having the services re-supplied.
11.4 The Customer acknowledges and agrees that in entering into an agreement the subject of the Conditions of Sale it has not relied in any way on the Company’s representations and that it has satisfied itself as to the suitability of the Products for the Customer’s purposes.
11.5 Subject to clause 11.2, and to the full extent permitted by law the Company will not be liable to the Customer for any loss or damage including loss of profits or any other indirect or consequential loss or damage, arising directly or indirectly, and whether or not as a result of negligence, in any way in respect of anything done or supplied under these Conditions of Sale including:
(a) the supply to or use by the Customer of any Product; or
(b) delayed or non-delivery of the Products for any reason including but not limited to loss, damage, theft of the Products whilst in transit; or
(c) any breach by the Company of its obligations under this agreement.
12.1 Payments must be made in Australian dollars. Payments remitted in foreign currency must include all related bank charges and currency conversion costs both on the payment and receiving end.
13. FORCE MAJEURE
13.1 The Company will have no liability to the Customer in relation to any loss, damage or expense caused by the Company’s failure to complete an Order or delivery or contract as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lock‑out, war or the inability of the Company’s suppliers to supply necessary products or any other matter beyond the Company’s control.
14. WAIVER OF TERMS OF AGREEMENT
14.1 The failure or indulgences by the Company to exercise, or delay in exercising, any right, power or privilege available to it under an agreement the subject of the Conditions of Sale will not operate as a waiver thereof or preclude any other or further exercise thereof or the exercise of any right or power and the Company shall be entitled to require strict compliance at all times.
15. PROPER LAW
15.1 An agreement the subject of the Conditions of Sale is governed by and will be construed in accordance with the laws of the State of New South Wales, Australia.
15.2 The parties agree to submit to the non-exclusive jurisdiction of the Courts of the State of NSW. If the Local Court has jurisdiction the parties consent to the non-exclusive jurisdiction of the Local Court closest to the Company’s place of business.
15.3 An agreement formed pursuant to the Conditions of Sale shall be deemed to have been entered into at the Company’s place of business.
16. GENERAL PROVISIONS
16.1 This document represents the entire agreement between the parties and no agreement or understanding varying or extending the terms of these Conditions of Sale shall be legally binding upon either party unless in writing and signed by both parties or allowed by these Conditions of Sale.
16.2 The Company may serve any notice or Court document on the Customer by hand or by forwarding it by post to the address of the Customer last known to the Company, or where a fax number or an email address has been supplied by the Customer, by sending it to that number or address. Such notices shall be deemed to be given:
(a) where delivered by hand, on the day of delivery;
(b) where sent by post, two (2) business days after the day of posting; and
(c) where sent by facsimile or email on the day of dispatch, provided that a clear transmission report is obtained.
16.3 If any term of an agreement the subject of the Conditions of Sale shall be invalid, void, illegal or unenforceable, it shall be severed from the agreement and the remaining provisions shall not be affected, prejudiced or impaired by such severance.
16.4 The Company may assign or license or subcontract all or any parts of its rights and obligations hereunder without the Customer’s agreement or consent.
CHANGES TO OUR TERMS AND CONDITIONS
Any changes to our terms and conditions in the future will be posted to the website and, where appropriate, through e-mail notification.
All comments, queries and requests relating to these terms and conditions are welcomed and should be addressed to:
HealthyNest Australia, PO BOX 238, Cammeray, NSW 2062 Australia. Phone: +61 2 9967 9889. Email: firstname.lastname@example.org