TERMS AND CONDITIONS OF SALE
In these terms and conditions:-
"Application" means an application submitted by a Buyer for an account with the Company.
"Buyer" means a person, business or company who submits an Order for the purchase of Goods.
"Company" means Masterpet Australia Pty Limited ABN 80 000 333 353.
"Goods" means the goods to be sold and delivered by the Company to the Buyer.
"Order" means a request by the Buyer to the Company for the supply of Goods.
"Statement" means the statement of invoices rendered by the Company to the Buyer during the preceding calendar month.
"Website" means the website and all web pages located at www.masterpet.com.au.
1. These terms and conditions and any other document referenced herein govern the sale or supply of all goods by the Company to the Buyer ("Agreement").This Agreement (which shall only be waived in writing signed by the Company) shall prevail over any previous agreements and all terms and conditions of the Buyer to the extent of any inconsistency.
2. Each Order placed by the Buyer with the Company is deemed confirmation and acceptance by the Buyer that the terms and conditions of this document will apply to the offer made by the Buyer to purchase the relevant Goods, even if this Agreement has not been signed by the Buyer at such time.
3. The Buyer hereby waives any right it may have to challenge the validity or enforceability of the contracts entered into on the Company's website on the grounds that it was made in electronic form instead of by paper and/or signed or sealed.
4. Any Order placed by the Buyer shall be deemed to be an offer made by the Buyer to purchase the relevant Goods subject to this Agreement. The Company reserves the right in its absolute discretion to accept or decline, in whole or in part, any Order placed by the Buyer. Orders cannot be cancelled without the consent of the Company which may be withheld in its discretion.
5. The Buyer may submit an Order to the Company electronically through the Website, by facsimile or by telephone.
6. If the Buyer submits an Order electronically through the Website, the Buyer may choose to pay for the Goods through the secure credit card payment facility provided on the Website. When using the secure credit card payment facility, the Buyer:
(a) acknowledges and agrees that the Company is authorised to charge the credit card for the full amount of the price for the Goods the subject of the Order;
(b) warrants that he or she is using wither their own credit card or another credit card the use of which has been expressly granted for the purpose of paying for the Goods; and
(c) indemnifies, and will keep indemnified, the Company from all or any claims made by any persons claiming such transactions to be unauthorised.
7. If the Buyer wishes to submit an Order by facsimile or over the telephone, or if the Buyer does not wish to pay by credit card when submitting an Order through the Website, the Buyer must complete an Account Application in such form as provided by the Company from time to time ("Application"). For the avoidance of doubt, except as described in paragraph 6:
(a) the Buyer is not permitted to place Orders for Goods with, or receive Goods from, the Company until an Application has been submitted and accepted by the Company; and
(b) an Application must be submitted to and accepted by the Company regardless of the method the Buyer proposes to use to place Orders for Goods.
8. The Buyer warrants that all information and data provided by the Buyer in the Application (if applicable) is accurate, complete and up to date. The Buyer must promptly inform the Company if there is any change to this information or data.
9. The prices for the Goods and all other products sold by the Company are the prices quoted to the Buyer by the Company at the time the Buyer submits an Order. Prices are subject to change without notice and are net of all direct and indirect taxes, including GST, imposed on the sale of the Goods that are the responsibility of the Buyer
10. There is a minimum order value of $ $250 on each Order containing accessories and $500 containing Premium Food. The minimum order value is for the price of the Goods only and does not include taxes, fees or other charges associated with an Order for Goods. The Company reserves the right, at its sole discretion, to accept an Order which is below the minimum order value at any time. An exercise of this right by the Company from time to time does not oblige the Company to accept an Order which is below the minimum order value at any other time.
11. Except where the Buyer has purchased the Goods in accordance with paragraph 6 and unless otherwise agreed by the Company in writing, payment for the Goods shall be governed by the following conditions:
(a) Goods will be invoiced by the Company at the price applicable at the date of invoicing..
(b) Amounts set out in invoices issued in accordance with paragraph 11(a) are payable by the Buyer to the Company within 14 days of the Statement date. The amount shown in the Statement is payable by the Buyer without deduction, set off or cross claim.
(c) In the event the Buyer does not pay the Company the amount shown in the Statement within 14 days of the date of the Statement, the Buyer shall pay interest on that amount from the date of the Statement to the date of payment at the rate of 20% per annum.
(d) An administration fee of $55.00 for each transaction will be payable by the Buyer to the Company if any payment tendered by the Buyer is not met on presentation but is met on re-presentation.
12. In the event the Buyer is in breach of any of these terms and conditions, the Company, in its discretion, may either suspend or withdraw credit facilities without notice and require the Buyer to trade on a COD or pre-payment basis only.
13. Notwithstanding delivery of the Goods, ownership of Goods delivered only passes to the Buyer upon receipt by the Company of payment in full of all outstanding amounts from the Buyer to the Company. This includes payment of all taxes, duties and delivery charges. Until the Buyer has paid in full for the goods:
(a) ownership of the Goods remains with the Company;
(b) the Buyer must keep the unpaid for Goods separate to all other products of the Buyer and the Goods must be clearly labelled as goods owned by the Company;
(c) the Buyer holds the goods as bailee and fiduciary for the Company; and
(d) the Buyer may only dispose of the goods as the Company's fiduciary and agent and provided that the entire proceeds of the sale of those goods are held by the Buyer on trust for the Company.
14. In the event of non-payment in accordance with this Agreement, or if the Buyer enters into administration, bankruptcy, receivership or liquidation, then the parties agree that the Company reserves the following rights in relation to the Goods until all accounts owed by the Buyer to the Company are fully paid:
(a) enter the Buyer's premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and recover possession of the Goods. In this instance, the Buyer must make available for collection by the Company all such Goods if directed to do so in writing by the Company. The Buyer may not revoke this permission or licence; and
(b) to keep or resell any Goods recovered pursuant to sub-clause (b) without incurring any liability to the Buyer or any person claiming through the Buyer. If the Goods are resold by the Buyer, the Buyer shall hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold in a separate identifiable account as the beneficial property of the Company and shall pay such amount to the Company upon request.
Notwithstanding these provisions the Company shall be entitled to maintain an action against the Buyer for the purchase price.
15. (a) The Company is not under any duty to accept, or provide a credit, refund or reimbursement for, Goods returned by the Buyer and will do so only as set out in this Agreement or on terms to be agreed in writing in each individual case.
(b) If the Company agrees to accept returned Goods from the Buyer under sub-clause (a), the Goods must be returned by the Buyer to the Company in the original packaging, unsoiled and undamaged and the Buyer shall state the invoice number and the date of purchase of the Goods.
(c) In the event that the Buyer does not comply with subclauses (a) and (b) or if the returned Goods are not in the original packaging, unsoiled and undamaged the Company will not accept the returned Goods and the Buyer must pay the delivery costs of returning the Goods and a restocking fee of 15% of the invoice amount for those Goods.
16. Risk in the Goods passes to the Buyer upon delivery by the Company to the Buyer. If the Buyer nominates a preferred carrier, the Buyer assumes risk in the Goods when the Goods are delivered by the Company to the Buyer's nominated carrier and the nominated carrier signs a receipt for delivery of the Goods.
17. (a) The Buyer may not assign or transfer any of its rights or obligations under this agreement without the prior written consent of the Company. If, contrary to this clause, the Buyer purports to assign or transfer any of its rights or obligations to any third party or there is a change of control of the Company within the meaning of Section 50AA of the Corporations Act 2001 (Cth), the Buyer will guarantee the performance of the new controllers obligations under this Agreement including, without limitation, the payment of all invoices rendered by the Company to the new controller after the date of change of control.
(b) All legal costs, disbursements and other expenses incurred by the Company in the recovery of any moneys outstanding under this Agreement shall be paid by the Buyer on a solicitor and client basis.
18. Where the Buyer is a corporation each director of the Buyer must guarantee the Buyer's obligations in accordance with this Agreement.
19. The Company makes no representation and gives no warranty in relation to any of the information supplied on any the Company's website(s). No warranty is made that any information on or linked to any the Company website(s) is complete and/or accurate. To the extent that the list of Goods available for purchase by the Buyer on the Company's website are accompanied by pictures of the goods, the Company will take reasonable care to provide up-to-date pictures of the goods, however, the pictures may differ from the goods supplied to the Buyer.
20. Except as provided in these Terms and Conditions and to the extent permitted by law, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. To the extent permitted by law, the Company is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of the Company's negligence or in any way whatsoever.
21. To the extent permitted by law, the Company's liability for a breach of a condition or warranty implied by Division 2 and Division 2A of Part V of the Trade Practices Act is limited to any one or more of the following:-
(a) the replacement of the Goods or the supply of equivalent Goods;
(b) the repair of the Goods;
(c) the payment of the cost of replacing the Goods or of acquiring equivalent Goods;
(d) the payment of the cost of having the Goods repaired;
Subject to the foregoing, in no case will the Company be liable to the Buyer in either contract or in tort for damaged exceeding the sale price of the Goods the subject of the invoice relating to the supply and delivery of the Goods.
22. The Buyer must indemnify, and keep indemnified, the Company and its directors, officers, employees and agents, from and against any and all claims, losses, damages, costs, judgments, expenses and liabilities of any kind (including, without limitation, personal injury or property damage) arising out of or in connection with the Buyer's purchase, marketing, distribution or use of the Goods whether in the Good's present form or as processed or combined with other materials into another form.
23. If any provision of this Agreement is or will be illegal, invalid or unenforceable, then that provision will be severed and the validity and enforceability of the remaining provisions will not be affected.
24. No waiver by the Company of any default shall be deemed a waiver of any prior or subsequent default.
25. The Company may at any time amend the terms of this Agreement upon written notice to the Buyer. The Buyer's placement of any Order after receipt of such notice will constitute deemed acceptance by the Buyer of the amended Agreement.
26. The Company may terminate this Agreement at any time by delivering written notice (Termination Notice) to the Buyer. Termination of this Agreement is effective the date of the Termination Notice or such later date as specified in the Termination Notice
27. This Agreement will be governed by and construed in accordance with the laws of the State of New South Wales, Australia.