INTRODUCTION TO THE TERMS AND CONDITIONS
We draw your attention to the following salient matters included in the Terms and Conditions:
- Interest is charged on overdue accounts;
- All prices quoted exclude freight and GST;
- Returns are not accepted other than for defects or as required under law;
- Product defects should be reported in writing within 5 business days following delivery and evidenced photographically;
- Our products may not be marketed on third party websites such as Amazon, eBay, etc.; and
- We may upon request, and at our discretion, provide images for products already purchased.
TERMS AND CONDITIONS
1. INTRODUCTION The Customer wishes to appoint the Supplier to provide the Products and the Supplier wishes to accept that appointment on the basis of the Terms and Conditions, set out herein, which apply until Termination.
2. DEFINITIONS 2.1 In these Terms and Conditions, except to the extent otherwise indicated by the context:
Business Day means a day that is not a public holiday, Saturday or Sunday;
Claim means any claim, demand, action, proceeding, notice, litigation, investigation or judgment whether based in contract, tort, and statute or otherwise;
Confidential Information means existing and future information in the possession of the party who owns it which is provided to the other party for the stated purpose. The Confidential Information includes both existing data and knowledge and concepts, ideas and developments.
The Confidential Information does not include information:
- (a) which is or becomes generally available to the public;
- (b) which can be proved to have been known by either party or its advisers prior to disclosure by the other party for the stated purpose; or
- (c) which is required by law to be disclosed.
Customer means the person or entity to whom an order quotation or invoice or Products have been supplied or are to be supplied by the Supplier;
Delivery Date means the estimated date/s communicated by the Supplier on an Order, or individual parts of the Order, whether verbal or in writing, for delivery or collection of Products;
Delivery Address means the address of delivery specified in the Order by the Customer;
Intellectual Property means all patents, designs, copyrights, formulations, trademarks, photographs and similar industrial or intellectual property rights;
Losses means all losses, damages (including damage to persons or property), fines, Claims, liabilities and all expenses and costs, legal or otherwise of any kind and nature;
Order means a verbal (e.g. telephonic) or written order given by the Customer, and accepted in writing by the Supplier, specifying the Product/s, price of Product/s, freight cost and Delivery Address;
Product/s mean the products the Customer requests the Supplier to provide as listed in an Order;
Structure means the frame of a Product item;
Supplier means Aromadrive Pty Ltd trading as Darcy and Duke or any other brand owned by Aromadrive Pty Ltd;
3. Opening of trading accounts 3.1 Approval of trading accounts are exclusively granted to the party listed in the related account application documentation submitted by the Customer to the Supplier.
3.2 Approval is effective from the date of written approval by the Supplier and ends when terminated in writing by either party.
4. Orders 4.1 Once an Order is received from the Customer and confirmed in writing by the Supplier, it is binding on both the Supplier and the Customer.
4.2 The Customer may not cancel an Order after it has been acknowledged by the Supplier without the Supplier’s consent in writing.
4.3 The Supplier may, at its discretion, reject or cancel any Order, whether paid or not. The Supplier will not be liable for any loss arising from such cancellation or any delay.
5. Delivery 5.1 The Supplier will deliver the Products that constitute an Order or part of an Order (as the case may be) to the Delivery Address on the Delivery Date or as the parties may agree in writing.
5.2 The Customer may arrange for the Order to be collected from the premises of the Supplier on any Business Day between 9am and 4pm, at the Customer’s cost.
5.3 Where the Supplier arranges delivery, the freight cost as determined by the Supplier, is borne by the Customer and is invoiced by the Supplier as part of the Order.
5.4 The Supplier may refuse to arrange delivery where the Delivery Address poses unreasonable logistical challenges, in which event the Customer will arrange collection of the Order.
5.5 Times quoted for delivery by the Supplier are given in good faith and are estimates only.
5.6 The Supplier will not be liable for failure to deliver any of the Products arising from any cause beyond the Supplier’s control. The Customer will not be relieved of any obligation to accept or pay for the Products by reason of a delay in delivery.
5.7 If the Customer fails to accept delivery or fails to provide delivery instructions for the Products to the Supplier for their delivery within five (5) Business Days after notification in writing that the Products are ready for delivery, the Customer may be liable to pay to the Supplier all reasonable costs for storage, protection and insurance of the Products after expiration of such period.
5.8 No defect or claim in respect of some of the Products delivered will entitle the Customer to reject delivery of other Products, which are not subject to any defect or claim, delivered as part of the Order.
5.9 All delivery costs are based on a ground floor/front door basis and delivery by one delivery person, unless agreed otherwise. For bulky items requiring a two person delivery, the Customer will provide a second person at the Delivery Address for assistance with the delivery, unless a two person delivery is specifically requested by the Customer prior to delivery, which will be arranged if possible and at an additional cost.
5.10 The Customer is responsible for ensuring that the items ordered are capable of being delivered and can fit through doors and in goods lifts.
5.11 If a delivery is booked and needs to be re-scheduled a re-delivery fee may apply.
6. Inspection and defects 6.1 The Customer must inspect the Products upon delivery.
6.2 The Customer will be deemed to have accepted the Products free of defect or any non-conformity unless the Supplier receives a written claim within 5 Business Days from Delivery.
6.3 The Supplier will not approve any claims that: 6.3.1 result from transit damage, where the relevant Products were not shipped by the Supplier or the Supplier’s approved freight carriers;
6.3.2 are due to the natural characteristic of the relevant Product (e.g. imperfections in natural wood); and/or
6.3.3 arise from the improper use or care of the relevant Product.
6.4 If the Supplier accepts a claim by the Customer for a defect, error, omission, shortage, damage or failure to comply with description of an Order, the Customer must return the relevant Product/s to the Supplier at its place of business in its original packaging.
6.5 The Supplier’s maximum liability to the Customer will then be to supply a replacement of the relevant Product/s or refund to the Customer the cost of the relevant Product/s.
6.6 The Supplier is not responsible for Products damaged in transit by the Customer’s nominated carrier. In the event of damage/faulty delivery by the Supplier’s carrier, the damage/faulty delivery must be pointed out to the Supplier’s carrier on arrival, and the Customer must report such damage/faulty delivery to the Supplier as soon as possible, but no later than 5 Business Days from delivery.
7. Pricing and invoicing 7.1 Pricelists issued by the Supplier are subject to change without notice.
7.2 The Supplier will endeavour to provide 30 days’ notice of price changes if practicable given the circumstances.
7.3 Unless otherwise stated, all prices are exclusive of GST and freight cost.
7.4 The Customer may not disclose any Pricelists to any third party.
7.5 The Customer acknowledges that the Supplier is entitled to sell the Products to other customers at prices which are different to the prices which are charged to the Customer.
7.6 In the event that the Customer requests that the Supplier arrange delivery, the Customer will receive an invoice for the Order together with the delivery.
7.7 In the event that the Customer requests to collect the Order, the Customer will receive an invoice for the Order together with collection.
7.8 The invoice date will be the dispatch date in the case of 7.6 or the date the Customer is notified that the Order is available for collection in the case of 7.7 (the “Invoice Date”).
7.9 If the Customer does not wish to have the delivery accompanied by an invoice, it will notify the Supplier in writing prior to the Order.
8. Payment 8.1 The Customer must pay the Supplier as follows: 8.1.1 If the Customer’s account is approved on upfront payment terms, then the Customer must pay the Supplier as follows: 18.104.22.168 Where an Order is placed for delivery, and the Supplier has the Product/s in stock, then payment is required in full upon placement of the Order.
22.214.171.124 Where an Order is placed for Products which are considered a custom order, a 50% deposit is required to reserve the relevant Order Product/s upon placing the Order, with the balance payable on the Invoice Date.
8.1.2 if the Customer’s account is approved on 14 or 30 day payment terms, then the Customer must pay the Supplier within 14 or 30 days, as the case may be, from the Invoice Date.
8.2 Overdue invoices will attract interest at a rate of 10% per annum. Alternatively, the Supplier may charge a late payment fee of $25 once an invoice has become overdue, which late payment fee will then also apply to every 30 days it remains overdue until settled. Any payment made by the Customer to the Supplier will first be applied to accrued interest or late payment fee and thereafter the relevant invoice amount.
8.3 Account payments, not prepayments, made by credit card will be subject to a surcharge listed on the invoice, which may change from time to time, given 30 days’ notice by the Supplier.
8.4 The Customer will be liable for all costs incurred in the recovery of any unpaid invoices, including without limitation legal fees, court costs and interest.
9. Intellectual Property 9.1 The Customer acknowledges that the Supplier is the sole owner of all Intellectual Property which vests in the Products.
9.2 All branding, photography, catalogues and marketing material of any Product or the Supplier’s business will not be reproduced in any form without the Supplier’s written authority.
9.3 The Customer must not use any images of the Products, whether sourced from the Supplier’s website or obtained by other means, to sell the Products on-line without first obtaining the written approval of the Supplier.
9.4 The Customer may display on its website any images of Products which it has previously purchased from the Supplier.
9.5 The Customer must comply immediately with any request by the Supplier to remove from its website any images of the Products.
10. Warranties and Representations 10.1 The Supplier provides a 12 month structural warranty, unless otherwise specified. This warranty will be void if there is a failure to follow the Supplier’s care instructions or the damage is caused by more than normal domestic wear. The Structure fails if the product cannot be used for its fundamental purpose, with fair wear and tear excluded.
10.2 The Products are also subject to warranties which cannot be excluded as set out under Australian consumer law.
10.3 Improper use, abuse, negligence, commercial use or use within a rental environment will void the warranty.
10.4 The Customer acknowledges that if the Products are of an organic nature, then surface details may vary from imagery or equivalent products and this is not considered a defect, nor will it be deemed to be a defect, and that minor variations may also be present in the touch, feel, or dimensions of products.
10.5 Customers should consider the product design and use: 10.5.1 the Customer must only use the Products as they are intended.
10.5.2 the Customer must take all reasonable precautions to ensure that no damage is caused as a result of its use (or the use by a third party) of the Products.
10.5.3 Customers should consider whether the product could cause damage to a surface prior to use e.g. metal legs could damage wood floors.
The Supplier or Customer may terminate these Terms and Conditions at any time on written notice.
12. Ownership of the Supplier’s Information
The Supplier’s Confidential Information belongs to the Supplier and shall remain its property.
13. Confidential Information
The Customer and the Supplier must not disclose or allow each other’s Confidential Information to be disclosed to any other person without prior consent from the other.
All notices to be given under these Terms and Conditions must be in writing.
15. Property 15.1 Property and ownership in any Products sold by the Supplier to the Customer remains with the Supplier until the Customer meets all of its obligations pursuant to these Terms and Conditions, including without limitation payment in full of amounts owing to the Supplier by the Customer.
15.2 The Products are at the Customer’s risk and responsibility from the time at which they are dispatched to the Customer in the event that the Customer’s carrier is used; or when delivered in the case where the Supplier’s carrier is used; or upon collection by the Customer.
16. Limitation of Liability 16.1 Notwithstanding any other provision of these Terms and Conditions: 16.1.1 in no circumstances will the Supplier be liable to the Customer, or any assigned party in contract, tort (including without limitation negligence or breach of statutory duty) or otherwise (whatsoever the cause) to compensate the Customer or any assigned party for any special, indirect or consequential loss or any loss of production, loss of revenue, loss of profit or anticipated profit, or business interruption.
16.1.2 the Supplier, its servants, agents and sub-consultants will be deemed to have been discharged from all liability whatsoever in respect of the Products, whether under the law of contract, tort or otherwise, at the expiration of one year from the receipt of the Products.
16.1.3 the total liability of the Supplier in relation to these Terms and Conditions or to the Customer for any reason is limited to the amount payable by the Customer to the Supplier in respect of the Product giving rise to the liability.
17. Release and Acknowledgement 17.1 To the full extent permitted by law, the Customer releases the Supplier from any liability or obligation to the Customer or any assigned party arising out of the Supplier’s performance or non-performance of any obligation under these Terms and Conditions and/or any Products supplied to the Customer in respect of: 17.1.1 loss (including consequential loss) in relation to property or otherwise;
17.1.2 personal injury, disease or illness to, or death of, persons;
17.1.3 economic loss; and
17.1.4 loss in relation to the environment.
18. Indemnity 18.1 The Customer at all times indemnifies and holds harmless the Supplier, its employees and agents and any Related Body Corporate of the Supplier from and against any loss (including without limitation actions, proceedings, judgments, legal fees and charges) that may be incurred by, billed, made or recovered against the Supplier in connection with the performance or non-performance of the Customer’s obligations under these Terms and Conditions and/or the supply of any Products, including without limitation: 18.1.1 loss (including consequential loss) in relation to property, including without limitation the Supplier’s property;
18.1.2 loss in respect of personal injury, disease, illness or death;
18.1.3 economic loss; and
18.1.4 loss in relation to the environment.
18.2 The indemnity in clause 18.1 does not apply to the extent that any claims, damages, expenses, losses or liabilities are caused by: 18.2.1 any negligent act or omission of the Supplier or the Supplier’s employees, agents or contractors, as the case may be; or
18.2.2 a breach by the Supplier of these Terms and Conditions.
18.3 The indemnity contained in clause 18.1 does not in any way limit or affect any other rights that the Supplier may have arising out of any default by the Customer in the performance of the Customer’s obligations under these Terms and Conditions.
19. Customer’s Liability 19.1 The Customer’s liability for the performance of obligations under these Terms and Conditions is not released, discharged or relieved by anything, including without limitation: 19.1.1 the grant of a waiver or other indulgence to the Customer or any assigned party by the Supplier;
19.1.2 any transaction or arrangement between the Supplier and the Customer or any assigned party;
19.1.3 the Customer being subject to an Insolvency Event;
19.1.4 the Supplier being subject to an Insolvency Event;
19.1.5 the Supplier exercising, delaying or refraining from exercising any right, power or remedy given to it by law, by these Terms and Conditions, or by any other document or agreement with the Customer or any assigned party;
19.1.6 the Supplier obtaining a judgment against the Customer or any assigned party for the payment of any money under these Terms and Conditions and/or any other document or agreement between the Supplier and the Customer or any assigned party; and
19.1.7 any change in circumstance of the Supplier or the Customer or any assigned party (including a change of circumstance of a person, the members of a partnership or the composition of a Supplier).
20. General 20.1 The Customer cannot assign or otherwise transfer the benefit of these Terms and Conditions without the prior written consent of the Supplier.
20.2 In the event of any conflict between these Terms and Conditions and those that may be included in or implied by any document forming part of any enquiry, specification, order or contract, then these Terms and Conditions will prevail, except in so far as they are expressly varied by the Supplier in writing or otherwise by law.
20.3 To the extent permitted by law, the Supplier’s liability for a breach of a condition or warranty which is required or implied by law is limited to, at the Supplier’s discretion: 20.3.1 the replacement of the Products; or
20.3.2 the refunding to the Customer the cost of the Product.
20.4 To the extent permitted by law, any warranties provided or implied or required by law do not apply if: 20.4.1 the Products have not been used or stored in accordance with instructions provided by the Supplier or that would otherwise be reasonable in all the circumstances;
20.4.2 the Products have been subject to any alteration or repair by any person other than authorised in writing by the Supplier;
20.4.3 the Customer fails to notify the Supplier of the Customer’s claim within 5 Business Days of the defect becoming apparent or fails to return the relevant Product to the Supplier upon being requested to do so by the Supplier; or
20.4.4 the Products have not been used for the purpose for which they were designed.
20.5 All Products are sold on the understanding that all licenses, permits and the like required under relevant statutes, ordinances, rules and regulations have been obtained by the Customer.
21. Privacy 21.1 The Customer’s personal and company data may become known to the Supplier when voluntarily submitted to the Supplier. The Supplier may use this data for ongoing marketing purposes to the Customer. If at any point the Customer no longer wish to receive communication from the Supplier, it will notify the Supplier in writing.