Terms and conditions
TERMS AND CONDITIONS
TERMS AND CONDITIONS
1.
ACCEPTANCE
1.2
Acceptance: You have requested the Goods set
out in the Order Form. You accept these Terms by:
(a)
making part or full payment for the Goods
(b)
accepting the Order Form online;
(c)
signing and returning the Order Form; or
(d)
confirming in writing including by email that you accept the Order
Form.
1.3
You
agree that these Terms form the agreement under which we will supply Goods to
you. Purchasing Goods from us indicates that you have
had sufficient opportunity to read these Terms and contact us if needed, that
you have read, accepted and will comply with these Terms.
Our Contact
details:
Carolyn Schuler as The Trustee for Moffitt Family
Email:info@bootiblind.com.au
2.
GOODS
2.1
Unless otherwise agreed between Parties
in writing, we will not dispatch the Goods until we receive payment in full.
2.2
We may provide the Goods to you using our employees, contractors
and third-party providers, and they are included in these Terms.
2.3
Prices for our Goods are subject to change without notice.
2.4
We reserve the right at any time to modify or discontinue the Goods
(or any part or content thereof) without notice at any time.
2.5
We shall not be liable to you or to any third-party for any
modification, price change, suspension or discontinuance of the Goods.
2.6
We reserve the right to refuse any order
you place with us for any reason at any time. We may,
in our sole discretion, limit or cancel quantities purchased per person or per
order. We reserve the right to limit or prohibit orders
that, in our sole judgment, appear to be placed by dealers, resellers or
distributors.
2.7
Where the Goods are
unavailable, we may cancel any Order Form to which these Terms apply or cancel
delivery of Goods at any time before the Goods are delivered. On cancellation,
we shall repay to you any money paid by you in advance for the Goods. We shall
not be liable for any loss or damage whatsoever arising from such cancellation.
3.
PRICE
AND PAYMENT
3.1
You agree to pay us the amounts set out in our Order Form.
3.2
All amounts
are stated in Australian dollars.
3.3
Payment may be made by way of payment methods as set out in our Order
Form when purchasing our Goods.
you agree to pay our Invoices by
the payment date set out on the Invoice. If you do not pay by the payment date,
we may cease to provide the Goods to you until we receive payment.
3.5
We may charge interest at a rate equal to the Reserve Bank of Australia’s
cash rate from time to time plus 8% per annum, calculated daily and compounding
monthly, on any amounts unpaid after the payment date.
3.6
If invoices are unpaid after the payment date, we have the right
to engage debt collection services for the collection of unpaid and undisputed
debts, and the right to commence legal proceedings for any outstanding amounts
owed to us.
3.7
We reserve
the right to report bad debts to independent credit data agencies.
3.8
Online payment partner: We may use third-party payment
providers (Payment Providers) to collect payment of the Price. The processing
of payments by the Payment Provider will be, in addition to these terms,
subject to the terms, conditions and privacy policies of the Payment Provider
and we are not liable for the security or performance of the Payment Provider.
We reserve the right to correct, or to instruct our Payment Provider to
correct, any errors or mistakes in collecting payment of the Price.
4.1
You may apply a valid Discount Code on your Order Form which will
be deducted from the total Price.
4.2
Valid on full price Goods only, excludes sale and clearance items.
4.3
The Discount Code is only valid for one use with a minimum
purchase of $50 AUD.
4.4
The Discount Code cannot be used in conjunction with any other
offers and cannot be retrospectively applied to previous orders.
4.5
Discounts, promotions and coupons are offered at our sole
discretion.
4.7
Discount Codes may expire in accordance with its terms.
5.
YOUR
OBLIGATIONS AND WARRANTIES
5.1
You agree not to reproduce, duplicate, copy, sell, resell or
exploit any portion of the Goods without express written permission by us.
5.2
You warrant that:
(a)
there are no legal
restrictions preventing you from agreeing to these Terms;
(b)
you will
cooperate with us, and provide us with information that is reasonably necessary
to enable us to supply the Goods as requested from time to time, in a timely
manner;
(c)
the
information you provide to us is true, correct and complete, including but not limited to vehicle measurements,
purchase and delivery information;
(d)
you will follow any instruction provided by us to you when using
the Goods, including but not limited to any instructions set out in our website
www.bootiblind.com.au;
(e)
you agree and acknowledge that it is your responsibility to ensure
that your vehicle will not be damaged as a result of using the Goods and that
we are not liable for any damage to your vehicle such as scratches to
paintwork;
(f)
you will ensure that the vehicle is in a safe location and secured
before using the Goods;
(g)
you will not infringe
any third-party rights in working with us and receiving the Goods;
(h)
you will not employ, canvass,
solicit, entice, induce or attempt to employ our employees or contractors.
6.
DELIVERY
6.1
Delivery of the Goods is taken to occur at the
time that:
(a)
you (or your nominated carrier) takes
possession of the Goods at our address; or
(b)
we (or our nominated carrier) delivers the
Goods to your nominated address even if you are not present at the address.
6.2
Unless otherwise agreed between Parties in
writing, the cost of delivery is in addition to the Price.
6.3
Any delivery timeframe given by us to you is
an estimate only. You must still accept delivery of the Goods even if late and
we will not be liable for any loss or damage incurred by you as a result of the
delivery being late.
6.4
Unless notified otherwise by you, we will not
be obliged to obtain a signed receipt or other acknowledgement from any person
at the nominated place for delivery.
6.5
We reserve the right to refuse delivery to specific locations. In
this case, you may choose to have an item delivered using your own couriers, in
which case all insurance for loss or damage to the order caused by the delivery
will be your responsibility.
6.6
Where we are not obliged to obtain a signed
receipt or other acknowledgement from any person at the nominated place for
delivery or where we are instructed by you to leave Goods outside our premises
for collection then such Goods shall be left at your sole risk.
7.
TITLE
7.1
Title in any Goods we supply to you does not pass to you until
they have been paid for in full.
7.2
Risk of damage to or loss of the Goods passes
to you on delivery.
8.3
You must notify any other alleged
defect in the Goods as soon as reasonably possible after any such defect
becomes evident.
8.4
Upon such notification you must
allow us to inspect the Goods.
8.5
Under applicable State,
Territory and Commonwealth Law (including, without limitation the Competition
and Consumer Act 2010 (CCA)), certain statutory implied guarantees and
warranties (including, without limitation the statutory guarantees under the
CCA) may be implied into these Terms (Non-Excluded Guarantees). We acknowledge
that nothing in these Terms purports to modify or exclude the Non-Excluded
Guarantees.
8.6
Except as expressly set out in these
Terms or in respect of the Non-Excluded Guarantees, we make no warranties or
other representations under these Terms including but not limited to the quality
or suitability of the Goods. Our liability in respect of these warranties is
limited to the fullest extent permitted by law.
8.7
If you are a consumer within
the meaning of the CCA, our liability is limited to the extent permitted by
section 64A of Schedule 2.
8.8
If we are required to replace
the Goods under this clause or the CCA, but are unable to do so, we may refund
any money you have paid for the Goods.
8.9
If you are not a consumer
within the meaning of the CCA, our liability for any defect or damage in the
Goods is:
(a)
limited to the value of any
express warranty or warranty card provided to you by us at our sole discretion;
(b)
limited to any warranty to
which we are entitled, if we did not manufacture the Goods;
(c)
otherwise negated absolutely.
(b)
we have agreed that the Goods
are defective; and
(c)
you have completed a returns
form (if applicable);
(d)
the Goods are returned within a
reasonable time at your cost (if that cost is not significant); and
(e)
the Goods are returned in as
close a condition to that in which they were delivered as is possible.
(a)
you failing to properly
preserve or store any Goods;
(b)
you using the Goods for any
purpose other than for which they were intended;
(c)
you continuing to use any Goods
after any defect became apparent or should have become apparent to a reasonably
prudent user;
(d)
you failing
to follow any instructions or guidelines provided by us;
(e)
any accident or act of God.
8.12
We will not accept the return
of non-defective Goods such as change of mind, unless otherwise agreed between
Parties in our sole discretion.
8.13
To the extent permitted by law,
Goods custom ordered to your specifications are not acceptable for credit or
return.
8.14
Notwithstanding anything
contained in this clause, if we are required by law to accept a return then we
will only accept a return on the conditions imposed by that law.
9.
CONFIDENTIAL INFORMATION
9.1
We, including our employees and
contractors, agree not to disclose your Confidential
Information to any third party (other than where necessary, to third party suppliers,
or as required by law); to use all reasonable endeavours to protect your Confidential
Information from any unauthorised disclosure; and only to use your Confidential
Information for the purpose for which it was disclosed by you, and not for any
other purpose.
9.2
These obligations do not apply to Confidential Information that:
(a)
is authorised to be
disclosed;
(b)
is in
the public domain and/or is no longer confidential, except as a result of a breach of these Terms;
(c)
is
received from a third party, except where there has been a breach of confidence;
or
(d)
must be
disclosed by law or by a regulatory authority including under subpoena.
9.3
This clause will survive the termination of these Terms.
10.
OUR
INTELLECTUAL PROPERTY
10.1 We
own the Intellectual Property rights in:
(a) our
pre-existing Intellectual Property, including but not limited to copyright
which subsists in all creative and literary works incorporated into our
pre-existing Intellectual Property; and
(b) intellectual
Property that we create during the course of the services, including but not
limited to copyright which subsists in all creative and literary works in all
Intellectual Property that we create during the course of the services;
unless we assign or transfer this to you. This Intellectual Property is
protected by Australian and international laws.
10.2 Nothing
in these Terms constitutes an assignment or transfer of our Intellectual
Property rights, or a right to use our Intellectual Property, whether
registered or unregistered, except as stated in these Terms or with our written
permission.
10.3 You
must not breach our Intellectual Property rights by, including but not limited
to:
(a) altering or
modifying our Intellectual
Property;
(b) creating derivative
works from the Intellectual
Property; or
(c) using our Intellectual Property for commercial purposes such as on-sale to third
parties.
10.4
This clause will survive the termination of these Terms.
11.
FEEDBACK
AND DISPUTE RESOLUTION
11.1
Your feedback is important to us. We seek to resolve your concerns
quickly and effectively. If you have any feedback or questions about the Goods,
please contact us.
11.2
If there is a dispute between the Parties in
relation to these Terms, the Parties agree to the following dispute resolution
procedure:
(a)
The complainant must tell the
respondent in writing, the nature of the dispute, what outcome the complainant
wants and what action the complainant thinks will settle the dispute. The
Parties agree to meet in good faith to seek to resolve
the dispute by agreement between them at an initial meeting.
11.3
Any attempts made by the Parties
to resolve a dispute pursuant to this clause are without prejudice to other rights
or entitlements of the Parties under these Terms, by law or in equity.
12.
TERM
AND TERMINATION
12.1
Either Party may terminate these Terms if there has been a
material breach of these Terms, subject to following the dispute resolution
procedure.
12.2
We may terminate these Terms immediately, at our
sole discretion,
if:
(a)
you commit a non-remediable breach of these Terms;
(b)
you commit a remediable breach of these Terms and do not remedy
the breach within a reasonable time after receiving written notice of the
breach;
(c)
we consider that a request for the Goods is inappropriate,
improper or unlawful;
(d)
you fail to provide us with clear or timely instructions to enable
us to provide the Goods;
(e)
for any other reason outside our control which has the effect of
compromising our ability to supply the Goods within the required timeframe; or
(f)
you fail to pay an invoice by the
due date.
12.3
On termination of these Terms you agree that you are to pay for
all Goods provided to you prior to termination.
12.4
On termination of these Terms, we agree to promptly return (where
possible), or delete or destroy (where not possible to return), your
Confidential Information and Intellectual Property, and/or documents containing
or relating to your Confidential Information and/or Intellectual Property.
12.5
On completion, we will retain your documents (including copies) as
required by law or regulatory requirements. Your express or implied agreement
to these Terms constitutes your authority for us to retain or destroy documents
in accordance with the statutory periods, or on termination of these Terms.
12.6
The accrued rights, obligations
and remedies of the Parties are not affected by the termination of these Terms.
13.
LIMITATION
OF LIABILITY AND DISCLAIMERS
13.1
Delay: Where the provision of Goods
depends on your information or response, we have no liability for a failure to supply
the Goods, where it is affected by your delay in response or supply of
incomplete or incorrect information.
13.2
Referrals: We may provide you with contact
details of third party specialists. This is not a recommendation by us for you
to seek their advice or to use their Goods. We make no representation or
warranty about the third party advice or provision of Goods, and we disclaim
all responsibility and liability for the third party advice or provision of Goods,
or their failure to advise or provide Goods.
13.3
Availability: To the extent permitted by law, we
exclude liability for:
(a)
Orders being cancelled by us;
(b)
the Goods being unavailable; and
(c)
any Claims for loss of profits, revenue, production, opportunity,
access to markets, goodwill, reputation or any loss or damage relating to
business interruption or otherwise, suffered by you or made against you,
arising out of or in connection with your inability to access or use the Goods or
the late supply of Goods, even if we were expressly advised of the likelihood
of such loss or damage.
13.4 Disclaimers: To the extent permitted by law we disclaim all responsibility and
liability for:
(a)
any items in the order that are unavailable;
(b)
where you order an incorrect size based on incorrect vehicle measurements;
(c)
any damage or injury caused where you have failed to follow any
instructions or guidelines provided by us to you, e.g. using the Goods on a
vehicle whilst the vehicle is running;
(d)
any infringement of your privacy whilst using this product;
(e)
inclement weather;
(f)
any damage caused to vehicle paintwork;
(g)
any delays in
delivery of the Goods (all delivery dates are estimates).
13.5
This clause will survive the termination of these Terms.
14.
INDEMNITY
14.1
You are liable for and agree to indemnify, defend
and hold us harmless for and against
any and all Claims, liabilities, suits, actions and expenses, including costs
of litigation and reasonable legal costs, resulting directly or indirectly
from:
(a)
any information provided by you that is not accurate, up to date or complete
or is misleading or a misrepresentation;
(b)
your breach of these Terms;
(c)
any misuse
of the Goods by you, your employees, contractors or agents;
and
(d)
your breach of any law or third
party rights.
14.2
You agree to
co-operate with us (at your own expense) in the handling of disputes,
complaints, investigations or litigation that arise as a result of your use of the
Goods including but not limited to disputes, complaints, investigations or
litigation that arises out of or relates to incorrect information you have
given us.
14.3
This clause will survive the termination of these Terms.
15.
GENERAL
15.1
Privacy: We agree to comply with the legal
requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other
applicable legislation or privacy guidelines.
15.2
Publicity:
You
consent to us stating that we provided Goods to you including but not limited
to sharing photos and videos, to mentioning you on our website and social media
platforms and in our promotional material.
15.3
Email: You acknowledge that we are able
to send electronic mail to you and receive electronic mail from you. You
release us from any claim you may have as a result of any unauthorised copying,
recording, reading or interference with that document or information after
transmission, for any delay or non-delivery of any document or information and
for any damage caused to your system or any files by a transfer.
15.4
GST: If and when applicable, GST
payable on the Price for the Goods will be set out on our invoices. You agree
to pay the GST amount at the same time as you pay the Price.
15.5
Severance: If any provision (or part of it) under
these Terms is held to be unenforceable or invalid in any jurisdiction, then it
will be interpreted as narrowly as necessary to allow it to be enforceable or
valid. If a provision (or part of it) under these Terms cannot be interpreted
as narrowly as necessary to allow it to be enforceable or valid, then the
provision (or part of it) must be severed from these Terms and the remaining
provisions (and remaining part of the provision) of these Terms are valid and
enforceable.
15.6 Force Majeure: We
will not be liable for any delay or failure to perform our obligations under
these Terms if such delay is due to any circumstance beyond our reasonable
control, including any restrictions caused by a global pandemic.
15.7 Notices:
Any notice required or permitted to be given by either Party to the other under
these Terms will be in writing addressed to the relevant address in the Order
Form. Any notice may be sent by standard post or email, and notices will be
deemed to have been served on the expiry of 48 hours in the case of post, or at
the time of transmission in the case of transmission by email.
15.9
Entire Agreement: These
Terms and any document expressly referred to in them represent the entire
agreement between the Parties and
supersede any prior agreement, understanding or arrangement between the Parties,
whether oral or in writing.
16.
DEFINITIONS
16.2
Claim/Claims includes a claim, notice, demand,
right, entitlement, action, proceeding, litigation, prosecution, arbitration,
investigation, judgment, award, damage, loss, cost, expense or liability
however arising, whether present, unascertained, immediate, future or contingent,
whether based in contract, tort or statute, whether indirect, incidental,
special, consequential and/or incidental, and whether involving a third party
or a Party to the Terms or otherwise.
16.3
Confidential
Information
includes confidential information
about you, your credit card or payment details, and the business, structure,
programs, processes, methods, operating procedures, activities, products and Goods,
trade secrets, know how, financial, accounting, marketing and technical
information, customer and supplier lists (including prospective customer and
supplier information), ideas, concepts, technology, and other information of
either Party whether or not such information is reduced to a tangible form or
marked in writing as "confidential".
16.4 Discount
Code
means the code applied in the Order Form to receive a specified discount
deducted from the total Price.
16.5
Prices
are
set out in the Order Form.
16.6
GST
means
GST as defined in the A New Tax System
(Goods and Goods Tax) Act 1999 (Cth) as amended from time to time or any
replacement or other relevant legislation and regulations.
16.7
Intellectual
Property
includes any and all present
and future rights to intellectual and industrial property throughout the world,
and includes all copyright and analogous rights, all rights in relation to inventions (including patent
rights), patents, improvements, registered and unregistered trademarks,
designs, any corresponding property rights under the laws of any jurisdiction, discoveries, circuit layouts, trade names, trade
secrets, secret processes, know-how, concepts, ideas, information, processes,
data or formulae, business names, company names or internet domain names, and
any Confidential Information.
16.8
Party and Parties means a party
or parties to these Terms.
16.9
Order
Form means
the order form sent to you or the online checkout/order
form to which these Terms form part.
16.10
Goods are set out in the Order Form.
16.11
Terms means these terms and conditions.
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