PRODUCT SUPPLY TERMS
1 Your agreement with us
(a) When you complete and sign an order form, and we accept it, an agreement will be formed between us which governs the supply of the Products. The agreement will be made up of the following documents:
(i) these Product Supply Terms;
(ii) the signed and accepted order form(s); and
(b) If there is a conflict between any of the documents or terms forming part of the agreement, the conflict will be resolved by giving the documents or terms the order of priority set out in clause 1(a).
2 Supply of Products
2.1 Order for Products
(a) We will provide the Products set out in a completed order form which we have accepted.
(b) You warrant to us that the information you have included in the order form is true, accurate and complete to the best of your knowledge. You agree that:
(i) if any of the information is not true, accurate and complete; and
(ii) that information is material to us in providing the Products to you,
we may terminate this agreement immediately by giving you notice.
2.2 Delivery of Products
(a) Following our acceptance of your order form, we will deliver the Products to you at the delivery location set out in the order form or otherwise agreed by you and us (Delivery Location) and in the timeframe(s) set out in the order form or as otherwise notified by us to you.
(b) The timeframe for delivery is an estimate only and, although we will use all reasonable efforts to deliver within that timeframe, we are not liable to you for any reasonable delay in delivery of the Products.
2.3 Risk and title to Products
(a) Title to the Products passes to you upon the later of:
(i) delivery of the Products to the Delivery Location; and
(ii) payment by you of the Price for the Products.
(b) Risk of loss of or damage to the Products passes to you upon delivery of the Products to the Delivery Location unless otherwise agreed.
3 Changes to the agreement
(a) We will not change any terms and conditions of this agreement for an existing order for Products which has been made by you and accepted by us.
(b) We may otherwise change the terms and conditions of this agreement at any time.
4 Your obligations in using the Products
(a) You must co-operate with, and provide any reasonable assistance required by, us or a supplier of ours in relation to the supply of the Products.
(b) When using the Products, you must comply with:
(i) our reasonable instructions;
(ii) any User Guides which apply to the Products;
(iv) in recognition of any disclaimers which apply to the Products, including those disclosed on our Website.
(c) You must not:
(i) use the Products in contravention of any applicable Law or rights of any third parties; or
(ii) re-sell, re-supply, distribute or otherwise commercially exploit the Products.
5 Price and payment
5.1 Price for the Products
(a) The Price for the Products are as set out in in the order.
(b) The Price are inclusive of GST, if any, applicable to the supply of the Products to you.
5.2 Our right to increase Price
(a) We may increase the Price for the Products, at any time before you place an order for the Products.
(b) We will give you as much notice as is possible in the circumstances if we increase the Price.
(c) Any Products you order after we have increased the Price for those Products will be charged at the increased Price.
You must pay the amounts payable under this agreement by credit card or other means of electronic funds transfer upon acceptance of your order by us, in the manner referred to in the order. We will not process your order or deliver you Products prior to receiving full payment.
6 Your rights to cancel Products
You cannot cancel the supply of any Products once you have ordered those Products and that order has been accepted by us, unless:
(a) we agree that you can cancel; or
(b) the Products have not yet been delivered and our cancellation policy specifically allows you to cancel Products in those circumstances.
7 Our rights to cancel the Products
7.1 Cancelling for cause
We can cancel the supply of the Products and terminate this agreement immediately by giving you notice in any of the following circumstances:
(a) if you fail to pay any amount owing to us within 7 calendar days from the date on which the payment is due, or, if there is a dispute about an amount that is owing, within 7 calendar days from the date on which the dispute is resolved;
(b) if you breach your obligations under this agreement and:
(i) the breach is material and cannot be remedied; or
(ii) the breach can be remedied, but you do not remedy it within 14 calendar days of receiving a notice from us specifying the breach and requiring the breach to be remedied;
(c) if you suffer an Insolvency Event and we have a reasonable belief that we are unlikely to receive or retain payment for amounts owing to us;
(d) if you, in our reasonable opinion, bring any member of our Group into disrepute;
(e) if we have reasonable grounds to suspect fraud or other illegal conduct in relation to the Products by you or conduct that breaches the prohibitions in clause 4(c) or clause 9;
(f) if we, or any of our Suppliers, is required or instructed to do so by a governmental body or statutory authority or by Law; or
(g) if we are otherwise entitled to do so under this agreement.
7.2 Cancelling to protect our legitimate interests
(a) We may cancel any part of an order for Products (including any orders that we have accepted) without any liability to you for that cancellation at any time if:
(i) the Products in that order are not available;
(ii) there is an error in the Price or the Product description;
(iv) the Product(s) in that order have been recalled.
(b) If we cancel an order or any part of an order in accordance with:
(i) Clause 7.2(a)(i)or 7.2(a)(ii) (where the Product is unavailable or there is a pricing or product description error) or clause 7.2(a)(iv) (where the Product has been recalled), we will provide you with reasonable notice of that cancellation, and will not charge you for the cancelled part of the order. If any payment has been taken, then:
(A) for a wholly cancelled order, the full payment amount, including the delivery fee and any other fees and charges; or
(B) for a partly cancelled order, the amount paid in respect of cancelled Products, will be refunded to your original payment method or through an alternative means.
(ii) Clause 7.2(a)(iii) (where you are in breach of these terms and conditions), we will provide you with reasonable notice of that cancellation. Provided we are not also in breach of these terms and conditions, a cancellation fee of the lesser of $25 or the value of the payments made may apply. If any payment has been made in excess of $25, we will refund that excess amount to your original payment method or through an alternative means.
8 Consequences of cancellation and termination
On expiry or termination of this agreement:
(a) you must immediately pay to us all Price due and owing to us in relation to the Products, including all Prices incurred up to and including the time cancellation;
(b) subject to clause 7.2(b)(ii), we will refund any Price paid by you for Products which we have cancelled before delivering those Products to you; and
(c) each of us must promptly return, or at the other’s direction destroy, any Confidential Information of the other in its possession, custody or control.
9 Intellectual Property
We are the owner or licensee of various Intellectual Property Rights in or relating to the Products, including the registered Intellectual Property Rights that are described on our Website (if any) (Quobba IP). You must not reverse engineer, copy, or otherwise use the Products in any way which infringes the Quobba IP, or supply to or otherwise allow third parties to use the Products for those purposes.
10 Your indemnities to us
You indemnify us and our Related Companies from and against all losses, expenses, damages, fees, fines and costs suffered or incurred by us and our Related Companies in connection with or arising out of any breach of clause 9 (Intellectual Property).
11 Our liability to you
11.1 Your rights under law
Nothing in this agreement will be construed as excluding, restricting or modifying rights you may have under the ACL (including any consumer guarantees provided, and any rights you may have to make claims against manufacturers of goods, under the ACL) or any other Law in relation to the Products or services provided under this agreement.
11.2 Implied conditions or warranties
Subject to clause 11.1, no condition or warranty in relation to any Products or services supplied by us to you under this agreement is implied in this agreement.
11.3 Our liability generally
Subject to clause 11.1:
(a) to the maximum extent permitted by the ACL or other Law, we are not liable to you for any loss or damage suffered by you in connection with this agreement (whether the claim in relation to the loss or damage arises under statute, in contract, in tort (including negligence) or otherwise); and
(b) to the maximum extent permitted by the ACL or other Law, we are not liable for any Excluded Loss suffered in connection with this agreement, whether arising under contract, tort (including negligence) or otherwise.
12 Confidential Information
Each party agrees to keep confidential, and not to use or disclose, any Confidential Information of the other party, except:
(a) as permitted under this agreement;
(b) where required by Law;
(c) to its officers, employees, agents, advisers, contractors, insurers and auditors;
(d) where the permission of the other party has been obtained in advance; and
(e) in respect of your Confidential Information, to any member of our Group.
14 Extraordinary Events
(a) Neither of us are liable for any delay or failure to perform our respective obligations under this agreement if the delay or failure is due to an Extraordinary Event.
(b) Where an Extraordinary Event prevents or delays either of us from performing any obligation under this agreement:
(i) the party who is affected by the Extraordinary Event will notify the other of the Extraordinary Event as soon as practicable in the circumstances; and
(ii) the relevant obligation is suspended as long as the Extraordinary Event subsists.
15.1 Governing Law and jurisdiction
(a) This agreement is governed by the laws of Western Australia, Australia.
(b) Each of us submits to the non-exclusive jurisdiction of the courts of Western Australia, Australia.
15.2 Assignment and novation
(a) Except as set out in clause 15.2(b), neither of us may assign any of our rights or novate our rights and obligations under this agreement without the other’s prior written consent.
(b) We may, in our absolute discretion, assign our rights or novate our rights and obligations under this agreement to a Related Company or to any purchaser of all or a substantial part of our business without your consent. We may only do so if the assignment or novation could not reasonably be expected to detrimentally affect your rights.
(c) You agree that you will enter into a novation deed if we request, and in the form specified by us, if required to enable us to formalise an assignment or novation under clause 15.2(b).
If any term (or part of a term) in this agreement is void or unenforceable, that term (or part) is taken to be removed from this agreement and not to form part of it. The remaining terms continue to have full effect.
15.4 Entire agreement
To the extent permitted by the ACL or other Law, this agreement, and any document referred to in it, contains the entire agreement of the parties with respect to its subject matter, and supersedes all previous agreements, proposals, representations, correspondence and discussions.
15.5 How to give notice
(a) We may give you notice under this agreement in any of the following ways:
(i) By email to the email address provided by you in any applicable order, or in any account registration;
(ii) In writing to the address provided by you in any applicable order, or in any account registration.
(b) You can give us notice under this agreement by contacting us using the details set out on our Website. If you contact us by telephone, we may ask you to confirm your request in writing.
16 Meaning of words and interpretation
16.1 Meaning of words
In this document these terms have the following meanings:
ACL The Australian Consumer Law which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Business Day- A day on which banks are open for business in Perth, Western Australia, Australia, excluding a Saturday, Sunday or a public holiday.
Confidential Information – Of a party means any information:
(a) regarding the business or affairs of that party or its Related Companies;
(b) regarding employees or contractors of, or other persons doing business with, that party or its Related Companies;
(c) which is by its nature confidential or which is designated as confidential by that party; or
(d) which the other party knows, or ought to know, is confidential.
Corporations Act – The Corporations Act 2001 (Cth).
Excluded Loss – Any loss, not arising naturally (that is, according to the usual course of things), from the relevant breach, whether or not such loss is to reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the relevant breach.
Extraordinary Event – An event or circumstance beyond the reasonable control of a party, including any act of God, civil disorder, war, terrorism, riots, rebellions, revolution or any other unlawful act against public order or authority, national or local emergency, elements of nature, fire, flood, earthquake, cyclone, explosion, loss of power, strike, lockout, industrial action, or the act or omission of any Government Agency.
Government Agency – Any government or any governmental, semi-government, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.
GST Products and services tax or similar value added tax levied or imposed in Australia under the GST Law or otherwise on a supply.
GST Act- A New Tax System (Products Tax) Act 1999 (Cth).
GST Law – The same meaning as in the GST Act.
Insolvency Event – In relation to a party (insolvent party) means:
(a) a judgment in an amount exceeding $100,000 is obtained against the insolvent party, or any distress, attachment, execution or other process of a Government Agency in an amount exceeding $100,000 is issued against, levied or enforced on any of the insolvent party’s assets, and is not set aside or satisfied within five Business Days;
(b) the insolvent party suspends payment of its debts generally, or is or becomes unable to pay its debts when they are due, or is or becomes unable to pay its debts within the meaning of the Corporations Act;
(c) the insolvent party enters into, or resolves to enter into, any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
(d) the insolvent party ceases, or threatens to cease, to carry on business; or
(e) a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the insolvent party’s assets or undertakings, an application or order is made for the winding up or dissolution of the insolvent party, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the insolvent party, except for the purpose of an amalgamation or reconstruction which has the other party’s prior consent.
Law – Any:
(a) legislation, including regulations, determinations, by-laws, declarations, ministerial directions and other subordinate legislation;
(b) common law;
(c) Government Agency requirement or authorisation (including conditions in respect of any authorisation);
(d) mandatory codes, standards and guidelines;
(e) writ, order, injunction, or judgment; or
(f) local government legislation, including regional plans, district plans, regulations, by-laws, declarations, ministerial directions and other subordinate legislation.
our Group – Quobba Pty Ltd, any Related Company of Quobba Pty Ltd, and any company in which any foregoing company (directly or indirectly) owns more than 15 percent of the issued share capital.
our Supplier – Any supplier of goods or services which is used directly or indirectly by us in the supply of the Products.
Price – The charges for the Products payable by you under this agreement.
Products – Quobba fins and any other accessories or equipment supplied by us under this agreement.
Quobba IP – As defined in clause 9.
Related Company- A related body corporate as that expression is defined in the Corporations Act.
User Guide – Any user guide which relates to the Products available on our Website, as may be varied by us from time to time.
we or our – Quobba Fins Pty Ltd ACN 610 348 359 of PO Box 1235, Margaret River, Western Australia, 6285, Australia.
Website – www.quobbafins.com and all subdomains thereof
you or your – The person identified as the customer in the signed order form.
(a) In this agreement, headings and bold type are for convenience only and do not affect the interpretation of this agreement and, unless the context otherwise requires:
(i) words importing the singular include the plural and vice versa;
(ii) other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning;
(iii) words importing a gender include any gender;
(iv) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any Government Agency;
(v) a reference to a clause, party, annexure or schedule is a reference to a clause of, and a party, annexure and schedule to, this agreement and a reference to this agreement includes any annexure and schedule;
(vi) a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, whether passed by the same or another Government Agency with legal power to do so, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
(vii) a reference to a party to a document includes that party’s successors and permitted assigns;
(viii) a reference to an agreement includes an undertaking, deed, agreement or legally enforceable arrangement or understanding whether or not in writing;
(ix) a reference to this agreement means these Product Supply Terms;
(x) a reference to A$ and $ means the lawful currency of Australia; and
(xi) a reference to time is to the time in Perth, Australia.
(b) No provision of this agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this agreement or that provision.
(c) Unless otherwise expressly stated, including means ‘including but not limited to’ and ‘include’ and ‘includes’ have corresponding meanings.
(d) Where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next Business Day.