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ABOUT THESE TERMS
1.1 These terms and conditions together with your Order constitute the entire Contract between us and you for the supply of Products without prejudice to the rights of EcoCare Australia at common law or equity. No other terms and conditions will apply. The Contract cannot be varied unless EcoCare Australia and the Customer agree to vary it in writing or by email.
1.2 Words spelt with initial capital letters are defined terms which, for your ease of reference, are set out below.
“Australian Consumer Law” means the law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any corresponding provisions of state or territory fair trading legislation or the Australian Securities and Investments Commission Act 2001 (Cth).
“Contract” means these terms and conditions together with the Customer’s Order.
“Customer” means any party who purchases Products from EcoCare Australia.
“EcoCare Australia” means Insight Environmental Pty Ltd ACN 080 561 842 trading as EcoCare Australia and its successors, transferees or related companies.
“EcoCare Web Site” means our web site for customers in Australia located at https://www.ecocare.com.au/
“GST” means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time (‘GST Act’) or any replacement or other relevant legislation and regulations.
“Non-excludable Rights” means rights under the Australian Consumer Law or other rights the Customer may have in relation to the supply of the Products that cannot lawfully be excluded by EcoCare Australia.
“Order” means an order placed by the Customer in accordance with these terms and conditions.
“Product” means any goods, products or materials which EcoCare agrees to supply to the Customer on these terms and conditions.
‘Special Product” any custom-made or specially produced Product not considered as standard by EcoCare Australia.
2.1 All descriptions, specifications, illustrations, drawings and/or any other information contained in catalogues, price lists, the EcoCare Web Site or other advertising material of EcoCare Australia or elsewhere are approximations only. They are intended by EcoCare Australia to be a general description for information and identification purposes only and do not create a sale by description.
ORDERS AND PRICING
3.1 All offers or quotations from EcoCare Australia shall last no longer than (30) days unless otherwise specified in writing and shall become binding only upon receipt by EcoCare Australia of an unconditional acceptance from the Customer as EcoCare Australia may require.
3.2 EcoCare Australia may withdraw, revoke or vary any quotation at any time at its absolute discretion.
3.3 Prices quoted are on the basis of the whole quantity being supplied unless otherwise stated.
3.4 By placing an Order, the Customer makes an offer to EcoCare Australia to purchase the Products selected on these terms and conditions. EcoCare Australia may or may not accept the offer at its discretion and expressly rejects any conditional Orders. If the Order is accepted, EcoCare Australia will notify its acceptance by issuing an invoice.
3.5 Unless otherwise agreed in writing, Orders received for out of stock Products will be placed on back order. All backorders will be charged at the price prevailing at the time of the original Order. EcoCare Australia will not be liable for any loss or damage that the Customer may suffer in connection with Products being out of stock.
3.6 The prices and Product specifications contained in EcoCare Australia’s price lists or any information provided by EcoCare Australia to the Customer are subject to change at the absolute discretion of EcoCare Australia and without notice to the Customer.
3.7 Unless agreed otherwise, prices quoted include EcoCare Australia’s standard packing and freight arrangements.
3.8 The price of Products listed or payable is exclusive of GST and any other applicable taxes and charges, unless otherwise indicated.
3.9 All Orders, once accepted, are final. No Order may be cancelled except with EcoCare Australia’s written consent and on terms which will indemnify EcoCare Australia against all losses. The Customer acknowledges that the extent to which an Order can be modified or cancelled, if at all, will depend on the type of product and the stage that the Order has reached in EcoCare Australia’s system.
3.10 Orders accepted by EcoCare Australia cannot be delivery deferred except with the written consent of EcoCare Australia and upon terms that will reimburse and indemnify EcoCare Australia against all loss including profit on any part of the order that is cancelled. Any costs incurred by EcoCare Australia in connection with the storage of the Products shall be paid by the Customer.
4.1 Unless the Customer has an approved credit account with EcoCare Australia, payment for all Orders must be made by the Customer in the manner prescribed by EcoCare Australia and cleared prior to shipping. Payment may be processed by an agent appointed by EcoCare Australia.
4.2 The Customer undertakes that all details provided to EcoCare Australia for the purpose of ordering or purchasing Products or services are correct, that the credit or debit card used belongs to the Customer and that there are sufficient funds to cover the cost of the Products or services ordered.
4.3 Where the Customer has an approved credit account with EcoCare Australia, payment for the Products must be made by the Customer within 21 days from the date on which the invoice is issued by EcoCare Australia to the Customer (unless otherwise agreed in writing) and in accordance with the invoice requirements. If the Customer fails to pay within the required timeframe any early payment discounts offered will no longer apply. EcoCare Australia may, at its absolute discretion, require the Customer to pay a deposit.
4.4 If the Customer exceeds their approved credit account limit, all further Products provided by EcoCare Australia to the Customer must be paid on a cash-on-delivery basis.
4.5 EcoCare Australia reserves the right to amend or cancel the Customer’s credit account:
(a) at any time, at its absolute discretion, without any notice to the Customer; and/or
(b) if the Customer’s credit account remains inactive for more than 12 months;
(c) if the Customer does not comply with the approved account terms.
4.6 EcoCare Australia, at its absolute discretion, may refuse delivery of Products and acceptance of any other orders from the Customer until the Customer pays to EcoCare Australia any amounts owed or contingently owed for any reason whatsoever by the Customer to EcoCare Australia whether under this or any contract or otherwise.
4.7 If the Customer defaults in making payment to EcoCare Australia in accordance with these terms and conditions EcoCare Australia may in its absolute discretion require the Customer to reimburse EcoCare Australia for all collection costs including legal costs incurred by EcoCare Australia calculated on a solicitor and client basis as a consequence of EcoCare Australia instructing its solicitor to provide advice to it in connection with the default and/or to institute such recovery process as EcoCare Australia in its discretion decides.
5.1 EcoCare Australia may subcontract the fulfilment of any Order to any of its distribution partners.
5.2 Unless otherwise specified in writing, delivery is to the Customer’s business premises or delivery point provided access is reasonable in the opinion of EcoCare Australia.
5.3 The Customer may arrange to collect the Products at its own cost during EcoCare Australia’s normal business hours.
5.4 EcoCare Australia is deemed to have delivered the Products when they are made available for unloading at the Customer’s nominated delivery point or when they are collected by the Customer, or their agent or carrier (whichever occurs first).
5.5 Subject to any Non-excludable Rights:
(a) time of delivery is at the sole discretion of EcoCare Australia and any estimated delivery times are estimates only and EcoCare Australia is not liable for any delay in delivery; and
(b) EcoCare Australia shall not be liable for any losses, damages or expenses sustained by the Customer or any other person in consequence of delay in delivery or collection of the Products for any reason whatsoever. If such delivery or collection is delayed at the request of the Customer or owing to the Customer’s inability to accept the Products for any reason or owing to some other cause beyond the control of EcoCare Australia, where EcoCare Australia is able to deliver same, then the Customer shall be liable for extra charges, losses or expenses incurred by EcoCare Australia.
5.6 If EcoCare Australia is unable to supply the Customer’s total order these terms and conditions continue to apply to the Products supplied.
TITLE AND RISK
6.1 Products supplied by EcoCare Australia to the Customer are supplied on an ex-delivery basis and are at the Customer’s risk immediately upon being delivered to the Customer in accordance with clause 5.4.
6.2 Property in the Products supplied by EcoCare Australia to the Customer under these terms and conditions does not pass to the Customer until the money owing for those Products, and any other money owing by the Customer to EcoCare Australia, has been paid in full.
6.3 If the sale price of all Products sold by EcoCare Australia to the Customer is greater than the sum of the proceeds actually received by EcoCare Australia in respect of all dealings by the Customer with the Products the difference remains a debt owing by the Customer to EcoCare Australia. If the debt remains unpaid for a term longer than 45 days, EcoCare Australia reserves the right to bring in a third party to recoup costs or may commence legal action against the Customer if the Products are not paid for in accordance with these terms and conditions or any separate arrangement for credit made by EcoCare Australia with the Customer.
7.1 The Customer must inspect the Products immediately upon delivery and must within 3 days after the date of delivery give written notice to EcoCare Australia, with particulars, of any claim that the Products are not in accordance with the contract. If the Customer fails to give such notice within such period then to the extent permitted by statute the Products are deemed to have been accepted by the Customer and the Customer must pay for the Products in accordance with the provisions of these terms and conditions.
CHANGE OF MIND RETURNS
8.1 EcoCare Australia cannot accept change-of-mind returns of any Special Product.
8.2 EcoCare Australia will accept a change-of-mind return of any non Special Product if the Customer provides EcoCare Australia with written notice of the intention to make such a return within 48 hours of receipt of the Product. The Product must be returned in original condition and packaging within 14 days of the written notice. The purchase price for the returned Product will be refunded to the Customer less any transport costs incurred by EcoCare Australia and a 15% restocking fee. Refunds will be processed within 7 days of the return of the Product to EcoCare Australia.
8.3 For the purposes of clause 8.1 and 8.2 above, a ‘change-of-mind return’ is where the Customer decides that they do not wish to purchase the Products and is not otherwise entitled to return the Product due to any failure to comply with a consumer guarantee under the Australian Consumer Law or as a result of the Products otherwise being faulty, damaged or delivered incorrectly.
EXCLUSIONS AND LIMITATIONS
9.1 Subject to clause 9.2, EcoCare Australia does not make any guarantee, condition or warranty as to materials, workmanship or performance of the Products.
9.2 With the exception of Non-excludable Rights, and notwithstanding any other provision of these Terms and Conditions, the liability of EcoCare Australia to the Customer, whether arising under or in connection with these Terms and Conditions or the performance or non-performance thereof or anything incidental thereto, and whether by way of indemnity, by statute (to the extent that it is possible to exclude such liability), in tort (for negligence or otherwise), or on any other basis in law or equity is hereby limited and excluded as follows:
(a) EcoCare Australia shall not have any liability whatsoever to the Customer for the loss of use, production, profit, revenue, business, data, contract or anticipated saving, or for any financing costs or increase in operating costs or any economic loss or for any special, indirect or consequential loss or damage; and
(b) the total aggregate liability of EcoCare Australia is at all times limited to the amount equal to the purchase price of the Products.
9.3 To the maximum extent permitted by law, EcoCare Australia’s liability pursuant to:
(a) any warranty, term or condition implied in these Terms and Conditions; and
(b) any Non-excludable Right (including, for the avoidance of doubt, section 274 of the Australian Consumer Law or any similar or successor provision),
shall be limited, at EcoCare Australia’s option, to repair or replacement of the Products or the cost of repairing or replacing the Products.
9.4 Any advice, recommendation, information or representation provided by EcoCare Australia as to the quality or performance of the Products or their suitability for a particular purpose or otherwise in relation to the Products is given in good faith but without any liability or responsibility on the part of EcoCare Australia. The Customer acknowledges that it has not relied upon or been induced by any representation by EcoCare Australia.
10.1 The Customer indemnifies EcoCare Australia and its agents, regardless of any negligence on the part EcoCare Australia, on a full indemnity basis, from and against any costs, liability, damage, loss, expense or demand arising directly or indirectly from:
(a) breach of these terms and conditions by the Customer;
(b) any false, misleading or deceptive representation or statement made by the Customer in respect of the Products to any person.
10.2 Any expenses, costs or disbursements incurred by EcoCare Australia in recovering any outstanding monies owing by the Customer, including debt collection fees and solicitor-client legal costs, must be paid by the Customer on a full indemnity basis.
11.1 EcoCare Australia may collect information in relation to the Customer, for the purpose of providing the Products, in accordance with the laws relating to the collection and disclosure of personal information under the Privacy Act 1998 (Cth) as amended from time to time.
11.2 Where Products are supplied to the Customer on credit the Customer irrevocably authorises EcoCare Australia, its employees and agents to make such enquiries as it deems necessary to investigate the credit worthiness of the Customer including (without limitation) making enquiries from persons nominated as trade referees, the bankers of the Customer or any other credit providers and the Customer authorises these persons to disclose to EcoCare Australia all information concerning the Customer which is within their possession and which is requested by EcoCare Australia.
12.1 The Customer acknowledges and accepts that EcoCare Australia may add to, delete or otherwise modify these terms and conditions by giving written notice of the change to the Customer.
12.2 A change to these terms and conditions takes effect 7 days after it is notified to the Customer.
13.1 EcoCare Australia may by written notice immediately suspend or cancel performance of this contract if the Customer be declared bankrupt or if a company is subject to a winding-up order if a Receiver or Manager or Receiver and Manager of its assets be appointed or if any form of insolvency administrator or third party is appointed or if it shall breach or fail to perform any of these conditions or shall fail to rectify such breach or non-performance within seven (7) days after written notice and may by written notice terminate this contract forthwith but any such termination shall not affect any other rights or remedies which EcoCare Australia may have in consequence or any such breach or non-performance.
INSTALLATION & ASSEMBLY
14.1 Products sold by EcoCare Australia do not include installation or assembly. If a Customer requires installation or assembly services with respect to the Products it should notify EcoCare Australia and EcoCare Australia may, in its discretion, provide such services (or appoint an agent to provide such services) on terms to be agreed (including as to price) with the Customer.
SAFETY AND STANDARDS
15.1 The Customer agrees that:
(a) the Customer has received adequate information regarding the Products to ensure their safe use, handling, assembly, installation and storage; and
(b) the Customer will ensure that the Products are properly used, in accordance with any instructions provided as to use, handling, assembly, installation and storage.
16.1 Any failure or delay by EcoCare Australia to enforce any of its rights under these Conditions does not operate as a waiver of those rights.
16.2 The Customer agrees that all contracts made with EcoCare Australia for the supply of Products shall be deemed to be made in Western Australia and the Customer agrees to submit to the jurisdiction of that State.
16.3 If any term or condition is void or unenforceable, it shall be read down so as to be enforceable or, if it cannot be so read down, it shall be severed from these terms and conditions without affecting the enforceability of the remaining terms or conditions.
16.4 If a party is prevented from or delayed in complying with an obligation (other than to pay money) by an event beyond its reasonable control, performance by it of that obligation is suspended during the time, but only to the extent that, compliance is prevented or delayed.