TERMS AND CONDITIONS OF SALE
Jacqueline Evans Naturopathic Skin Care (ABN 23 589 025 184) (“JENSC”)
“Agreement” means these Terms & Conditions of Sale (“Terms”) and the Purchase Order;
“Customer” means the purchaser of the Goods specified in the Purchase Order, including a Retailer;
“Goods” means the JENSC product/s specified in the Purchase Order;
“Price” means the total price of all Goods as specified in a Purchase Order, including the cost of freight;
“Purchase Order” means a JENSC purchase order submitted by the Customer;
“Retailer” means a purchaser of Goods where the Price is greater than AUD$500 or where the Goods have been purchased for resale.
JENSC agrees to supply and the Customer agrees to purchase the Goods in accordance with this Agreement.
1. Orders & Acceptance
No Purchase Order for Goods submitted by Customer is deemed to be accepted by JENSC until confirmed in writing by JENSC. No Purchase Order which has been accepted by JENSC may be cancelled by Customer.
Unless otherwise agreed in writing by JENSC, the Price will be paid by the Customer upon submission of the Purchase Order. The Customer will pay to JENSC in addition to the Price any goods and services tax (GST) and any other taxes payable in respect of the sale of the Goods. JENSC will issue the Customer a tax invoice in relation to any GST.
In no event shall the Price be paid later than 15 days after delivery of the Goods. If payment is not made within 7 days of the due date of payment, the Customer will pay JENSC interest at the rate of 1.5% of the Price per month or part thereof for the period of late payment. Any collection costs incurred by JENSC as a result of an overdue account will be borne by the Customer.
JENSC will endeavour to deliver the Goods to the Customer within the specified timeframe. JENSC is not responsible for delays in estimated delivery times or for increases in postage delivery costs beyond its control.
JENSC may suspend or cancel deliveries and orders without prejudice to its rights under the Agreement if the Customer defaults in any payment, commits an act of bankruptcy or enters into voluntary or involuntary liquidation.
4. Refunds - Defects
Goods will be considered to have been delivered in full in good condition unless Customer notifies JENSC in writing of any shortfall, damage or defect within 2 business days of delivery. If Customer gives JENSC such notice, it must preserve the Goods in the state in which they were delivered for 14 days after notice and at JENSC's option, allow JENSC or its representative to inspect the Goods or return some or all Goods to JENSC in the same condition as delivered.
If Goods are not delivered for any reason or are damaged, JENSC’s entire liability and the Customer’s sole remedy is the refund of the Price paid by the Customer in relation to those Goods.
5. Returns – Personal Purchases
If a personal Customer (other than a Retailer) is not completely satisfied with Goods, JENSC will provide a refund, exchange or replacement on all Goods returned to JENSC within seven days of Customer’s receipt thereof provided that the Goods are in their original, unopened, unused and undamaged condition. JENSC will consider the condition of the Goods being returned when making a refund.
The Customer must return such Goods to JENSC in accordance with instructions provided by JENSC.
Other than in accordance with clause 4, Retailers are not entitled to return Goods. JENSC is not obliged to accept return of or allow credit for Goods not sold by the Retailer by the use-by date for the Goods.
Overseas Retailers are responsible for ensuring that they are permitted to import the Goods.
7. Title & Risk
Other than as specified, risk of loss or damage to the Goods passes to Customer upon postage. Title will pass to the Customer upon delivery following payment of the Price and delivery charges, taxes and any interest due under this Agreement.
Until the Retailer has paid all monies owed to JENSC on any account, the Retailer will hold the Goods as bailee in a fiduciary relationship. The Retailer will ensure that unpaid Goods are stored so that they remain recognisable and distinct as the property of JENSC. Retailer acknowledges that this Agreement constitutes a security agreement under the Personal Property Securities Act 2009 (PPSA), that JENSC has a security interest in the Goods and any proceeds, JENSC’s rights in the Goods established under this clause 7 are a ‘purchase money security interest’ (PMSI) and JENSC will have a PMSI in proceeds of those Goods.
8. Warranties and Liability
Customer may have certain rights under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth) or other applicable laws including consumer guarantees that the Goods will be of acceptable quality and fit for the purpose disclosed in writing by JENSC. These Terms do not exclude or limit these guarantees or any other statutory rights that Customer may have under applicable laws. To the extent permitted by law: (a) all guarantees, conditions and warranties, express or implied, by law, custom or otherwise are excluded; and (b) JENSC's liability for any loss arising from a breach of such guarantees, conditions and warranties, or these Terms, is limited to: either replacement of the Goods, the supply of products equivalent to the Goods, the repair of the Goods, or the cost of replacing the Goods or acquiring products equivalent to the Goods, or the payment of the cost of having the Goods repaired. To the extent permitted by law, JENSC will not be liable for any loss which Customer pays, suffers, incurs or is liable for any reason, including as a result of delay, negligence or any act, advice, matter or thing done or permitted or omitted to be done by JENSC, its employees or agents in any way connected with or arising out of these Terms.
9. Reservation of IP Rights
JENSC reserves all intellectual property rights in relation to its Goods. Customer’s may not use JENSC’s trade marks, branding and copyright without JENSC’s permission.
(a) Dispute. Before initiating proceedings in respect of a dispute between the parties arising out of this Agreement, a party must refer the dispute for mediation to the Australian Commercial Dispute Centre Limited. If the dispute has not been resolved within sixty (60) days of such referral, either party is free to initiate proceedings in a court. Nothing in this clause will prevent a party from seeking interlocutory relief through courts of appropriate jurisdiction.
(b) Governing Law. This Agreement is governed by the laws of the State of Victoria, Australia.
(c) Entire Agreement. This Agreement contains the whole of the Agreement between JENSC and the Customer regarding the supply of the Goods. Customer agrees that these Terms apply to the Agreement to the exclusion of any other terms, including any on printed documents issued by Customer at any time and are in addition to all other rights which JENSC may have at law.
(d) Waiver. Any failure by a party to compel performance by the other party of any of the terms and conditions of this Agreement will not constitute a waiver of those terms or conditions nor will it diminish rights arising from their breach.
(e) Amendment. This Agreement may only be amended in writing.
(f) Assignment. The Customer will not assign its rights under this Agreement without the prior written consent of JENSC.
(g) Force Majeure. JENSC will not be liable for any failure to carry out the supply of the Goods where that failure is due to any cause beyond the reasonable control of JENSC.
(h) Clause Severance. If any part of this agreement is invalid or unenforceable then, if possible, the offending part will be read down to be partially valid and enforceable. Otherwise, the offending part must be severed and the remaining provisions will operate as if the severed part had not been included.