STANDARD TERMS AND CONDITIONS OF SALE ROOTBARK.COM.AU
In these terms and conditions and in any contract to which these conditions apply, unless inconsistent with the context:
a) the Act means the Competition & Consumer Act 2010.
b) Claim means any claim, demand, action or proceeding;
c) Contract means the contract between Root Bark Australia and the Purchaser for or in relation to the sale and purchase of goods;
d) goods means any item of whatsoever nature which is sold or to be sold by Root Bark Australia to the Purchaser;
e) Prescribed Terms means any terms, conditions, guarantees and warranties which the Act and any other law expressly provides may not in respect of the Contract be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent;
f) Purchaser means the person or corporation who buys or has agreed to buy the goods from Root Bark Australia.
g) If any provision of these Terms is invalid, illegal or unenforceable, these Terms take effect (where possible) as if they did not include that provision.
h) A reference to dollars is to Australian Dollars.
i) Standard Specifications means Root Bark Australia’s standard specification for the goods current at the time the goods are delivered to the Purchaser. Copies of the Standard Specifications are available on the the product order page.
j) Words importing the singular number shall be deemed to include the plural and vice versa. Words importing the male gender shall be deemed to include the female and neuter gender and vice versa; and
k) The headings in these terms and conditions are provided for convenience only and do not effect the interpretation thereof.
l) the word “including” and similar expressions are not words of limitation;
m)These Terms do not create a relationship of agency, partnership, joint venture or employment between the parties. Neither party has any authority to act for or incur any liability or obligation on behalf of the other party in any manner.
n) RBA / Root Bark Australia means FG Supplies PTY LTD (ACN 168 294 639) or such other company related to FG Supplies Pty Limited which accepts the Purchaser’s order by the issue of a Order Confirmation Email.
o) Order Confirmation means the document so titled issued by RBA that formally accepts the order for goods from the Purchaser.
p) Customer must comply with all applicable laws, regulations, industry standards and codes of conduct in Australia and any other relevant jurisdiction in relation to all matters contemplated (whether expressly or implicitly) by these Terms.
a) Subject to any Prescribed Terms, this document together with the relevant Sales Confirmation embodies the sole terms and conditions of the Contract between RBA and the Purchaser and supersedes all other conditions and agreements between the parties, unless expressly amended in writing by RBA.
b) These terms and conditions shall without further notice apply to all future transactions between RBA and the Purchaser in relation to the sale and purchase of goods, whether or not this document is delivered or executed in the course of the transaction.
c) For the avoidance of doubt, none of the terms and conditions contained in any document or other instrument supplied by or on behalf of the Purchaser (including without limiting the foregoing those included in any purchase order or like document from the Purchaser) shall apply to or form part of the Contract, except and to the extent otherwise agreed in writing by RBA.
d) All purchase orders supplied by the Purchaser are subject to acceptance by RBA and no Contract between RBA and the Purchaser comes into existence until RBA issues a Sales Confirmation in relation to the order.
e) No variation or abrogation of these terms and conditions shall be effective unless it is evidenced in writing signed on behalf of RBA.
a) Unless otherwise agreed by the parties in writing payment shall be made prior to the order being processed and shipped.
b) Time for payment of the price of the goods shall be of the essence of the Contract and if the Purchaser fails to pay the price when due RBA may treat the Contract as repudiated by the Purchaser or may, unless payment in full is made, suspend delivery of the goods the subject of the Contract and any goods the subject of any other Contract with the Purchaser without incurring any liability whatsoever to the Purchaser in respect thereof.
c) Notwithstanding any rights of lien to which RBA may otherwise be entitled, RBA shall have a specific lien (including a right of sale) over the goods the subject of the Contract and any goods the subject of any other contract with the Purchaser until the price of the goods has been paid in full. The Purchaser shall not be entitled to make any deduction from the price of the goods in respect of any off-set or counter claims.
a) Any time or date named and accepted by RBA for completion, delivery, dispatch, shipment or arrival of the goods or for tender of any documents is an estimate only and does not constitute a condition of the Contract or part of the description of the goods and is not of the essence of the Contract.
b) Unless otherwise stated in writing RBA may make partial deliveries or deliveries by instalments in any amount
it may determine and each such partial delivery or delivery by instalments shall be deemed to be a separate Contract and these conditions shall apply to each partial delivery or delivery by instalments.
c) The Company may deliver up to 5% more or less of the amount specified for delivery, subject only to an appropriate adjustment to the price payable, in full satisfaction of RBA’s obligations pursuant to the Contract.
d) The Purchaser shall notify RBA within 7 days of delivery of any short fall in or loss or damage to goods delivered. Failure to so notify shall, subject to the requirements of any Prescribed Terms, disentitle the Purchaser to any remedy in respect to the shortage, loss or damage.
5. Risk and Title
a) Except as otherwise provided herein, the goods supplied by RBA to the Purchaser shall be at the Purchaser’s
sole risk immediately on their dispatch to the Purchaser.
b) Property and title in the goods supplied by RBA to the Purchaser will not pass to the Purchaser until such time as the goods the subject of the Contract and all other goods supplied by RBA to the Purchaser have been paid for in full.
6. Warranties and Exclusions of Liability
a) The Company warrants that the goods when delivered to the Purchaser will comply with any description for the goods contained in the relevant Sales Confirmation (if any) and with the Standard Specification for the goods. RBA is not required to supply goods with any specification or characteristics that are outside any such description for the goods (if any) or the Standard Specifications.
b) The Purchaser acknowledges, agrees, represents and warrants that:
i) as the use of the goods is outside the control of RBA, the Purchaser is satisfied that the goods when supplied in accordance with clause 6a) will have the condition, characteristics, quality and attributes that will make them suitable or fit for any ordinary or special purpose required for those goods, even if that purpose is made known to RBA at any time;
ii) the Purchaser has or will in a timely manner conduct all mandatory or prudent tests and apply all mandatory or prudent quality control checks and procedures to ensure the goods and any product that is produced from them will be without defect and suitable or fit for any purpose required for them; and
iii) the Purchaser has not relied upon any statement, representation, warranty, guarantee, condition, advice, recommendation, information, assistance or service provided or given by Root Bark Australia or anyone on its behalf in respect of the goods, other than those that are expressly contained in the Contract.
c) The Purchaser releases and indemnifies RBA and its officers, employees, consultants and agents from and
against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with the Purchaser and whether at common law, under tort (including negligence), in equity, pursuant to statute or otherwise, in respect of any loss, death, injury,illness, cost or damage arising out of any breach by the Purchaser of any warranty provided by it under paragraph b) of this clause.
d) Except as expressly set out in the Contract and except for liability under any Prescribed Terms, to the full extent
permitted by law:
i) all conditions, warranties, guarantees, terms and obligations expressed or implied by law or otherwise relating to the Contract or the performance of RBA obligations under the Contract or to any goods or services supplied or to be supplied by RBA under the Contract are excluded, except for those conditions and warranties as to title in the goods; and
ii) without limiting the generality of the foregoing, RBA gives no condition, warranty or guarantee whatsoever as to the suitability, performance or fitness of the goods for their ordinary or any special use or purpose, and the description of the goods in any Contract or any other document shall not import any such condition, warranty or guarantee on the part of RBA.
e) Notwithstanding anything to the contrary herein contained but subject to the provisions of any Prescribed Terms, RBA’s liability in respect of any Claim arising in any way out of the Contract or its performance or from any failure to perform the Contract including (without limiting the generality of the foregoing) for breach of any condition, warranty or guarantee contained in the Contract or in any Prescribed Term implied into or applying to the Contract and whether that liability arises under contract, tort (including negligence), breach of statutory duty
or otherwise, is limited as follows:
i) if any guarantee under the Act is applicable to any good or service supplied by RBA and RBA’s liability is due to a failure to comply with the guarantee and such failure cannot be remedied or is a major failure as defined in the Act (each such failure hereafter referred to as a Relevant Failure), RBA’s liability is as stated in the Act in respect of that Relevant Failure;
ii) if the liability is due to a failure to comply with any condition, warranty or guarantee in respect of any good or service supplied by RBA under the Contract and such failure is not a Relevant Failure, RBA’s liability is limited as follows in respect of such failure:
(A) if the failure is in respect of goods, RBA’s liability is limited to replacement of the goods or the supply of equivalent goods, payment of the cost of replacing the goods or of acquiring equivalent goods, as determined by RBA in its sole discretion; and
iii) in respect of all other liability (if any), RBA’s liability is limited in the aggregate to the amount of $500.
f) To the extent permitted by law, RBA will have no liability to the Purchaser, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit(whether direct or indirect) or loss of business opportunity arising out of or in connection with the Contract or its performance.
7. Return of Goods
a) Goods supplied to the Purchaser are not returnable except as provided in clause 6 above.
b) If the goods are in accordance with clause 6a) and all Prescribed Terms and are otherwise in compliance with the provisions of the Contract, RBA may from time to time under exceptional circumstances choose to accept the return of the goods from the Purchaser. A cancellation fee will apply and the Purchaser will also reimburse RBA for all costs associated with the delivery and return of the goods.
The Purchaser shall keep RBA indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature, including, without prejudice to the generality of the foregoing, claims of death, personal injury, damage to property and consequential loss (including loss of profit) which may be made against the Purchaser or which the Purchaser may sustain, pay or incur as a result of or in connection with the manufacture, sale, export, import, consumption or use of the goods unless such costs, claim, demand, expense or liability shall be directly and solely attributable to any breach of contract or guarantee by, or negligence of, RBA or its duly authorised employee or agent.
9. Licenses, Duties, etc.
The payment of any taxes and the obtaining and maintenance in full force and effect of any necessary export or import licenses, authorisations or consent in respect of the goods is the sole responsibility of the Purchaser and RBA shall be under no liability whatsoever in respect of goods exported or imported without any necessary licenses, authorisations or consent.
10. Health and Safety
It is the Purchaser’s responsibility to ensure that all applicable health and safety regulations are observed and other appropriate steps taken in relation to the storage, handling and the use of the goods and, where information is supplied to the Purchaser on potential hazards relating to the goods, to bring such information to the attention of its employees, agents, sub-contractors, visitors and customers. Without prejudice to the foregoing, it is also the
Purchaser’s responsibility to provide safe facilities for the reception of goods into storage.
11. Goods and Services Tax (GST)
Goods and Services Tax (GST) will be charged on those products that attract GST at the applicable rate.
12. Force Majeure
RBA shall not be under any liability whatsoever for the consequences of any failure on its part to perform or delay in performing any obligation under the Contract when due, whilst and to the extent that such failure or delay is due directly or indirectly to any event of force majeure. Without limiting the generality of the foregoing, this includes any liability whatsoever for any delay in completion, delivery, despatch, shipment or arrival of the goods or in the tender of any documents or the like.
“event of force majeure” includes any acts of God, war, riots, strikes, lock outs, trade disputes, fires, break downs, mechanical failures, interruptions of transport, Government action or any other cause whatsoever, whether or not of a like nature to those specified above, outside the reasonable control of RBA.
If there is an event of force majeure, RBA will notify the Purchaser of the event and the likely impact on its performance under the Contract. If the event affect the capacity of RBA to complete its material obligations under the Contract in a timely manner, RBA may by notice to the Purchaser terminate the Contract without any liability whatsoever on its part arising from such termination.
Any notice to be given to the Purchaser shall be deemed to be given upon its being posted or sent by email to the email address of the Purchaser set out in the Contract or to the Purchaser’s registered office or to the Purchaser’s last known address.
The Purchaser may not assign or transfer or purport to assign or transfer any of its rights or obligations under or in connection with the Contract to any other person or corporation whatsoever.
RBA reserves the right to sub-contract the performance of any Contract or part thereof to any other party or person or corporation it may determine.
16. Proper Law and Jurisdiction
All Contracts made between RBA and the Purchaser shall be governed by and construed in accordance with the laws of New South Wales, Australia. The Purchaser agrees to submit to the non-exclusive jurisdiction of the New South Wales Courts and courts of appeal therefrom for all purposes of or in connection with such Contracts.
17. Cost Recovery
Any expenses, costs or disbursements incurred by RBA in recovering any outstanding monies owing by the Purchaser including debt collection fees and solicitors costs shall be paid by the Purchaser, providing that those fees do not exceed the scale charges as charged by that debt collection agency or solicitor plus any out of pocket expenses.