In these Terms the following terms have the meanings indicated:
‘Stony Chute Herbals’ means Stony Chute Herbals together with its agents, servants and employees.
‘Contract’ means any agreement for the sale of Goods entered into between Stony Chute Herbals and the Purchaser.
‘Goods’ means Equipment sold by Stony Chute Herbals.
‘Order’ shall include any acceptance by the Purchaser of a tender, quotation or offer made by Stony Chute Herbals.
‘Offer’ means any formal offer made by Stony Chute Herbals to the purchaser including tenders or quotations.
‘Purchaser’ means any person who acquires or agrees to acquire Goods from Stony Chute Herbals and any successor in title to those Goods.
‘Terms’ means these terms and conditions of sale.
‘GST’ means the goods and services tax imposed by a government in which the Purchaser resides.
2.1 Stony Chute Herbals has set out in this document our basic terms of business (the “Terms”), which, together with our Offer, when accepted by the Purchaser constitutes a Contract of Sale. If there is any conflict between these Terms of Business and Stony Chute Herbals’s offer then the Offer shall prevail.
3. Formation and Scope of the Contract
3.1 Unless there is express written agreement to the contrary, Stony Chute Herbals contracts upon terms that any Contract is subject to the Terms and Conditions of Sale. Any Order placed by the Purchaser shall be conclusively deemed to have been made subject to the Terms and Conditions in force as at the date the Order is received by Stony Chute Herbals, irrespective of any contrary terms printed on or accompanying the Purchaser’s order documentation, and such contrary terms shall in no circumstance prevail.
3.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
4. Confirmation of Orders
4.1 No Order placed by the Purchaser shall be binding on Stony Chute Herbals unless and until Stony Chute Herbals accepts the Order. Acceptance of any Order may be made by Stony Chute Herbals taking any steps to satisfy the Order. Any Order which has been accepted by Stony Chute Herbals may not be cancelled by the Purchaser except with the agreement of Stony Chute Herbals and, in such circumstances, only on the basis that the Purchaser shall indemnify Stony Chute Herbals in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Stony Chute Herbals as a result of such cancellation.
5.1 All Orders will be invoiced at the quoted prices in effect at the time of delivery of the Goods.
5.2 GST inclusive amounts. For the purposes of these Terms and Conditions where the expression ‘GST inclusive’ is used in relation to a price, an amount payable or other consideration to be provided for a supply under these Terms and Conditions, the amount or consideration will not be increased on account of any GST payable on that supply.
5.3 Consideration is GST exclusive. Any consideration to be paid or provided to Stony Chute Herbals for a supply made by Stony Chute Herbals under or in connection with these Terms and Conditions unless specifically described in these Terms and Conditions as ‘GST Inclusive’, does not include an amount on account of GST.
5.4 Gross up of consideration. Despite any other provision in these Terms and Conditions, if Stony Chute Herbals makes a supply under or in connection with these Terms and Conditions on which GST is imposed (not being a supply the consideration for which is specifically described in these Terms and Conditions as ‘GST inclusive’):
a) the consideration payable or to be provided for that supply under these Terms and Conditions but for the application of this clause (‘GST’ exclusive consideration’) is increased by, and the Purchaser must also pay to Stony Chute Herbals an amount equal to the GST payable by Stony Chute Herbals on that supply; and
b) the amount by which the GST exclusive consideration is increased must be paid to Stony Chute Herbals by the Purchaser without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
5.5 Reimbursements (net down). If a payment to a party under these Terms and Conditions is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.
5.6 Purchaser Warranty and Indemnity. The Purchaser warrants that where GST is imposed on a supply made by Stony Chute Herbals under or in connection with these Terms and Conditions and the consideration for that supply was not increased under this clause 5 as the parties mistakenly regarded the supply as GST-free, the Purchaser will indemnify Stony Chute Herbals for and in respect of the GST (including any interest or penalty) imposed on or in respect of that supply.
6. Payment and Default
6.1 Unless otherwise expressly agreed in writing, or specified in a separate dealership or agency agreement, the full purchase price shall be paid to Stony Chute Herbals upon installation of the Goods.
7. Delivery Times
7.1 Subject to clause 8, Stony Chute Herbals will use reasonable endeavours to achieve any delivery times stated by Stony Chute Herbals.
7.2 Times stated by Stony Chute Herbals for delivery are estimates only. Stony Chute Herbals does not guarantee that the delivery of the Goods will be within the delivery times stated by Stony Chute Herbals and no liability shall attach to Stony Chute Herbals in the event of delivery being delayed by any circumstances. In no circumstances shall delay amount to, or be deemed to be a breach of the Contract and the Purchaser shall not be entitled to treat the Contract as repudiated by reason of any delay in delivery.
8. Delivery and Risk
8.1 In circumstances where the product is being shipped to a region where the purchaser is arranging installation and unless expressly agreed otherwise by Stony Chute Herbals in writing, or specified in a separate dealership or agency agreement, all Goods sold to Purchaser are delivered on an Ex-Works basis meaning the Purchaser is responsible for arranging freight and insurance of the Goods from Stony Chute Herbals’s premises to the Purchaser. Should the Purchaser request Stony Chute Herbals to arrange freight and insurance on behalf of the Purchaser;
a) Stony Chute Herbals shall advise the Purchaser of the estimated cost of freight and insurance prior to despatch of the Goods.
b) Stony Chute Herbals shall include the cost of freight and insurance on the overall invoice for the Goods which is payable in full prior to despatch of the Goods.
c) Freight terms remain Ex-Works.
8.2 The Purchaser is responsible for complying with any legislation or regulations governing the importation of the Goods in the country of destination and for all local taxes and any customs or import duties payable for Goods delivered outside Australia.
9. Title to Goods
9.1 Irrespective of the time when risk in the Goods shall pass, passing of property in these Goods shall be determined as follows:
a) Property in the Goods shall remain with Stony Chute Herbals until the Purchaser has made payment in full to Stony Chute Herbals of the purchase price and any other indebtedness of the Purchaser to Stony Chute Herbals;
10. Purchaser’s Representations and Acknowledgments
10.1 In circumstances where the product is being shipped to a region where the purchaser is arranging installation The Purchaser acknowledges that it is responsible for informing Stony Chute Herbals of all requirements the Purchaser has relating to the use of the Goods in the country or state of intended use, including, but not limited to, all statutory or other like requirements relating to marking, labelling and/or packaging.
10.2 In circumstances where the product is being shipped to a region where the purchaser is arranging installation the Purchaser shall not be entitled to refuse to accept the Goods or pay the purchase price, nor shall Stony Chute Herbals be liable in any way whatsoever if the Goods fail to comply with any local requirements not disclosed by the Purchaser in writing to, and accepted by, Stony Chute Herbals prior to the formation of the Contract. The Purchaser indemnifies Stony Chute Herbals in full against any loss or damage suffered by Stony Chute Herbals howsoever arising out of any failure to comply with any requirements not disclosed by the Purchaser in writing to, or not accepted by, Stony Chute Herbals prior to the formation of the Contract.
10.3 The Purchaser acknowledges that:
a) It has selected the Goods from a range of products offered by Stony Chute Herbals and the Purchaser has satisfied itself that the Goods meet the Purchaser’s requirements;
b) no oral or written information, representation or advice given by or on behalf of Stony Chute Herbals, other than as contained in the Terms and Conditions, creates a warranty or in any way increases the scope of the Terms and Conditions, and;
c) unless expressly agreed otherwise in writing, the Purchaser has not relied on any information, representation or advice given by or on behalf of Stony Chute Herbals in selecting the Goods; and Stony Chute Herbals makes no representation that its Goods conform to country, state or local laws, ordinances, regulations, codes or standards (except as may otherwise be agreed to in writing by Stony Chute Herbals) and the all local laws relating to the use of the goods at its own cost and expense.
11. Use of Goods
11.1 Where the Purchaser is an end-user of the Goods, it warrants that it will use the Goods in conformity with:
a) Practices that are consistent with industry practice;
b) All applicable laws and regulations, guidelines and decisions of judicial or regulatory bodies;
c) Any patent or other proprietary rights of third parties; and
d) Stony Chute Herbals’s instructions, including only in conjunction with accessories and consumables recommended by Stony Chute Herbals.
11.2 Where the Purchaser is a Distributor or Agent of the Goods, it warrants that it will use its best efforts to procure that the end-user(s) of the Goods will use the Goods in conformity with paragraphs 11.1(a) to (d) above and will, in any event inform any end-user in writing of the above requirements for the use of the Goods.
12. Product Warranty
12.1 Stony Chute Herbals warrants that, subject to clause 12.3, Goods manufactured by Stony Chute Herbals will be free from defects caused by manufacture for a period of 12 months from the date an invoice is issued by Stony Chute Herbals. Should any fault occur within that period as the result of such defect, Stony Chute Herbals will make all necessary repairs, or at Stony Chute Herbals’s sole discretion, replace the Goods at no charge to the Purchaser except for delivery.
12.2 To the fullest extent permitted by laws relevant to the sale and supply of Goods by Stony Chute Herbals to the Purchaser, in the case of Goods not manufactured by Stony Chute Herbals, Stony Chute Herbals’s warranty in clause 12 shall be limited to the warranties implied by law and any further warranty contained in any manufacturer’s warranty for those Goods.
12.3 The warranty contained in clause 12 shall not apply in the following circumstances:
b) In respect of loss or damage caused by an act of God or any other cause not within
Stony Chute Herbals’s control or otherwise not related to the Goods;
c) The use of accessories or consumables with the Goods which are not approved of or recommended by Stony Chute Herbals;
d) Modification of any software in the Goods without the written approval of Stony Chute Herbals;
e) The use of spare parts other than those supplied by Stony Chute Herbals.
12.4 To the fullest extent permitted by laws relevant to the sale and supply of the Goods by Stony Chute Herbals to the Purchaser, Stony Chute Herbals’s liability for breach of a condition or warranty implied by such laws, including any incidental or consequential loss which the Purchaser may sustain or incur shall be limited to one of the following, at the sole discretion of Stony Chute Herbals:
a) Replacement of the Goods;
b) Repair of the Goods;
c) Payment of the cost of replacing the Goods or acquiring equivalent Goods; or
d) Payment of the costs of having the Goods repaired.
12.5 Stony Chute Herbals shall not be liable (whether for breach of the Terms and Conditions, negligence or otherwise) for loss of profits or special, consequential or indirect loss or damage.
12.6 Save for the express conditions and warranties herein contained all other conditions and warranties (whether as to the quality, fitness for purpose or any other matter) expressed or implied by statute, the common law, equity, trade custom, usage or otherwise are hereby expressly excluded provided that nothing in these Terms and Conditions shall exclude or limit the liability of any breach of a term or condition implied by law, the exclusion or limitation of which is not permitted by law.
12.7 Goods returned under warranty for repair or testing will incur a charge, to be fixed by Stony Chute Herbals, if no fault is found.
12.8 Warranty delivery, insurance and custom responsibilities are as follows:
a) The Purchaser shall bear the cost of delivery and insurance of any Goods returned to Stony Chute Herbals under warranty and any customs or import duties payable on the return of such Goods from Stony Chute Herbals to Purchaser after replacement or repair.
b) Stony Chute Herbals shall pay any customs or import duties payable on goods returned under warranty from Purchaser to Stony Chute Herbals; and
c) Provided the warranty in clause 12 applies, Stony Chute Herbals shall bear the costs of delivery and insurance of any repaired or replacement goods from Stony Chute Herbals to the Purchaser.
12.9 Where Goods are returned under warranty or where the Purchaser has advised Stony Chute Herbals in writing that the Goods are faulty but has not as yet returned the Goods, Stony Chute Herbals may, at its sole discretion and subject to clause 12.10, provide to the Purchaser a replacement item with specifications that are not less than those of the Goods returned or to be returned.
12.10 Stony Chute Herbals shall be entitled to invoice the Purchaser in respect of a replacement item provided to the Purchaser in accordance with clause 12.9 at the full price of that replacement item if the Goods to be returned by the Purchaser are not received by Stony Chute Herbals within 30 days of the despatch of the replacement item.
12.11 Notwithstanding the provisions of this clause 12 nothing contained in any written warranty or in these Terms and Conditions shall have the effect of restricting or excluding the liability of Stony Chute Herbals in respect of death or personal injury resulting from the proven negligence of Stony Chute Herbals or under the applicable Consumer Protection Act. In addition, nothing in these Terms and Conditions affects the liability of either party for fraudulent misrepresentation.
13.1 No claims will be recognised in respect of any mistake or shortage or over supply of Goods after seven (7) days from the delivery date.
13.2 Unless otherwise expressly agreed in writing, Stony Chute Herbals shall not accept any conditions providing for the payment by Stony Chute Herbals of liquidated damages or other penalties for delayed delivery of Goods or provision of information or for any other reason whatsoever.
14. Return of products
14.1 Goods are not supplied on a sale or return basis. At Stony Chute Herbals’s sole discretion, Stony Chute Herbals may accept the return of Goods supplied, subject to the following conditions:
a) Goods must be returned to Stony Chute Herbals or a nominated agent in good order and condition, be resalable and be returned within seven (7) days of the date of delivery;
b) Before returning Goods the Purchaser must first obtain a Return Authorisation Number (RAN) from Stony Chute Herbals;
c) When returning Goods the Purchaser shall quote the invoice number, RAN and date;
d) The Purchaser shall pay freight charges to return the Goods to the place of business of Stony Chute Herbals;
e) The Purchaser shall pay a restocking fee of an amount determined by Stony Chute Herbals at its sole discretion for handling; and
f) Subject to the provision of clause 12 the return of Goods for credit will not be accepted except upon prior written agreement from Stony Chute Herbals.
14.2 If Purchaser returns any Goods to Stony Chute Herbals either under warranty (clause 12) or under clause 14 above it must use its best efforts to prepare the Goods for shipping in strict compliance with any instructions or guidelines provided to Purchaser by Stony Chute Herbals.
15. Intellectual Property Rights
15.1 The Purchaser acknowledges Stony Chute Herbals’s licence to use or ownership of the patents, trademarks, designs and any other intellectual property rights contained within the Goods manufactured or supplied by Stony Chute Herbals and in particular agrees that neither the Purchaser, nor its servants or agents, will attempt to do anything with any of Stony Chute Herbals’s intellectual property rights which will render the Purchaser liable to Stony Chute Herbals for violation or infringement of its intellectual property rights.
16.1 The Purchaser indemnifies and holds Stony Chute Herbals harmless from and against any and all losses, costs and expenses of Stony Chute Herbals, including legal fees and expenses, in any way relating to:
a) Any use of Goods not in compliance with these Terms and Conditions;
b) Any violation or infringement of any patent or other proprietary rights of third parties by the Purchaser in the handling or use of the Goods; or
c) Any other use or misuse of the Goods by the Purchaser.
17. Modifications to Goods
17.1 Where the Purchaser provides information and / or instructions in writing to Stony Chute Herbals and where Stony Chute Herbals makes any modifications, alterations or adjustments to any Goods as a result of or in reliance upon the information or instructions provided by the Purchaser, the Purchaser indemnifies Stony Chute Herbals in full against any loss or damage suffered by Stony Chute Herbals howsoever arising out of any reliance by Stony Chute Herbals on the information or instructions provided by the Purchaser.
18. Data Protection
By completing this Contract and submitting personal information (‘Information’) to Stony Chute Herbals, the Purchaser consents to its Information being processed by Stony Chute Herbals as follows:
a) Stony Chute Herbals will use the Information to supply Goods requested by the Purchaser and to supply marketing, administration and related services, including such transfer of Information to employees, agents and third parties as required for these purposes;
(i) Stony Chute Herbals may maintain a database or similar record of Information for marketing purposes and to enable Stony Chute Herbals to send the Purchaser relevant Information from time to time. Stony Chute Herbals may transfer its business assets (which include Information) on re-organisation, sale or merger of the whole or any part of its business;
(ii) Stony Chute Herbals reserves the right to transfer such Information as required to obtain legal advice, comply with legal requirements, enforce or apply this Contract and other agreements, or protect the rights, property or safety of Stony Chute Herbals, its clients, customers and others;
b) If Stony Chute Herbals intends to transfer Information other than as set out above, the Purchaser will receive notice and be given the opportunity to decline the transfer.
19.1 No Waiver. Failure by Stony Chute Herbals to insist upon strict performance of any term, warranty or condition of this Contract shall not be deemed a waiver of any term, warranty or condition, or of any rights.
20. Governing Law
20.1 A Contract between the Purchaser and Stony Chute Herbals is subject to the laws of New South Wales and the Commonwealth of Australia and the Client submits to the jurisdiction of the Courts of New South Wales and the Commonwealth of Australia