SOFTUB AUSTRALIA PTY LTD – TERMS AND CONDITIONS
In these Terms and Conditions (Terms) Softub Australia Pty Ltd ACN 612 731 085, its successors and assignees, is referred to as “we”, “us”, or “our” and you, the person, organisation or entity that purchases products or related services from us is referred to as “you” or “your”, and collectively the Parties. These Terms apply to all sales made by us to you including related services. These Terms are available at www.softub.com.au (Site).
These Terms form the agreement under which we will supply products and related services to you. Please read these Terms carefully. If you have any questions, please contact us using the contact details below, before you purchase products or related services from us.
You accept our Terms by making a purchase from us. Your purchase from us indicates that you have had sufficient opportunity to access these Terms and contact us, that you have read, accepted and will comply with these Terms, and that you are 18 years or older, or have the consent of a legal guardian who is 18 years or older. You must not order products or services from us if you are under 18 years of age or do not have the consent of a legal guardian who is 18 years or older. If you do not agree to these Terms, you should not purchase from us.
1. Registration: You are required to register on the Site to purchase our products. We will provide a confirmation of account registration when you register on the Site. It is your responsibility to keep your account details confidential. You are liable for all activity on your account, including purchases made using your account details.
2. Products and Orders:
(a) You may view products at our showroom by appointment only, subject to our approval and availability.
(b) You may order from us as set out on the Site. We may at our discretion accept or reject an order depending on factors including availability of products and our ability to validate payment for the products.
(c) It is your responsibility to check the order details, product and pricing, before you complete your order on the Site.
(d) We will provide you with order details, including an order number, when you order and pay on the Site and your payment has been validated.
(e) A binding agreement comes into existence between you and us once we have given you an order number. No changes to these Terms will be effective unless we both agree to the changes in writing.
(f) We may provide a related service to you, such as repairs or installation of the products (Services). A quote for providing these Services will be given to you on request. You must pay the invoice for our Services, before we commence work. We may provide the Services to you using our employees, contractors and third party providers and they are included in these Terms.
(g) Third parties who are not our employees or our direct contractors (Third Parties) will be your responsibility. We are not responsible for the products or services provided by Third Parties.
3. Price and Payments:
(a) You agree to pay the purchase price specified on the Site at the time that you place your order for the purchase of a product, plus any applicable delivery and insurance charges based on the delivery options selected by you. All amounts are stated in Australian dollars. All purchase prices include GST. Any delivery and insurance charges will be separately shown.
(b) For special orders you may be required to pay a deposit before the order can be processed. This will be notified to you at the time of purchase.
(c) You must pay for the product via Paypal or another payment method set out on the Site. Your payment will be processed upon receipt of your order. You must not pay, or attempt to pay, for an order through any fraudulent or unlawful means. If your payment is not able to be successfully processed then your order may be cancelled.
(d) In the absence of fraud or mistake, all payments made are final. If you make a payment by
debit card or credit card, you warrant that the information provided is true and complete, that you are authorised to use the debit card or credit card to make the payment, that the payment will be honoured by the card issuer, and that you will maintain sufficient funds in the account to cover the purchase price and any accrued interest.
(e) We may charge interest at the rate of 2% per month on any amounts unpaid. If amounts owing are unpaid for 10 business days after payment is due, we have the right to engage debt collection services for the collection of unpaid and undisputed debt, and the right to commence legal proceedings for any outstanding amounts owed to us.
4. Wholesale Orders:
(a) If you are a wholesale client you must place orders for products with us in accordance with any additional processes and procedures, as notified by us from time to time.
(b) We will not accept any other terms and conditions that may accompany your purchase request/order.
(c) If invoices are overdue, you acknowledge and agree that you are liable for and will pay all costs including debt collection, commission, solicitor’s fees and any out of pocket expenses, and that we may place a default against you with a credit reporting agency. You will indemnify us for the full amount of our legal and debt recovery costs.
(d) If invoices are overdue, you also grant us the right to access the premises where the products are situated at any time for the purpose of reclaiming the products.
(e) Immediately upon your insolvency or an insolvency event taking place in relation to you, the total payment of the debts and payments due under these Terms will be due, unless otherwise agreed upon.
(f) You may cancel your wholesale order at any time prior to collection or dispatch of the products provided that you will be liable for any loss incurred by us, including but not limited to any loss of profits up to the time of cancellation.
5. Availability and Cancellation:
(a) All purchases made with us are subject to availability. We do our best to keep in stock most products that are advertised by us, and to keep the Site up to date with availability of products.
(b) You have no right of action against us in respect of any loss occurring to you by reason of any delay in delivery caused by or contributed to by shortage of stock or delays in transit or delays caused by accidents or strikes. If there is a considerable delay in dispatching your order, or if for any reason we cannot supply a product you have ordered, we will contact you using the contact details provided by you when you placed the order. You can choose a refund, store credit or to put your order on backorder. If you choose a refund or store credit, any delivery costs you have paid for the product will be refunded to you. If you choose to put your order on backorder, we will contact you to arrange for delivery once the product is available.
(c) If certain products are out of stock or discontinued, we will obtain your permission to substitute the item or you may choose to cancel your order.
6. Delivery:
(a) Location: We deliver Australia wide. We do not deliver internationally (to areas outside Australia).
(b) Cost: We offer free delivery to some areas, as set out on the Site If free delivery does not apply, a delivery fee will apply, as set out on the Site.
(c) Timing: We will normally dispatch the product within 48 hours from the receipt of your order and confirmation of payment, unless otherwise noted on the Site. Any delivery periods displayed on the Site are estimates only, based on the information provided by the delivery company. We will deliver the product to our depot (unless another location is agreed in writing (including via email) between the Parties).
(d) Change: If you need to change a delivery date or the delivery address, please contact us as soon as possible to see if this is possible. If you are not available to take delivery on the agreed delivery date, you may be charged a delivery fee for each additional attempt for delivery.
(e) Collection: We will contact you when your order arrives at our depot using the contact details provided through the Site or via email. All collections must be signed for by either you or your authorised representative. If for any reason you or your authorised representative is unable to collect the order on the nominated collection date, you must contact us to arrange another collection time and date. If you are not available to take collection on the agreed collection date and you have not collected your order within 14 days of being notified by us that your order has arrived at the collection point, we may charge a daily storage fee notified to you (Storage Fee) at our absolute discretion.
(f) Storage: You agree to remove the product from our storage facility within 30 days of us issuing you with a written notice. If you do not remove the product from our storage facility within 30 days, you provide consent for us to sell any or all of the products that we are holding for you. This notice is provided in accordance with the Disposal of Uncollected Goods Act 1970 (WA).
(g) Title: Title in the products will not pass to you until the later of delivery or your payment has been processed or otherwise received by us. If your payment is declined for any reason we reserve the right to reclaim the products from your possession, custody or control even if they have been delivered to you or moved from the delivery address. We reserve the right to keep or sell the products. Risk of loss, damage or deterioration to any products will pass to you on delivery.
(h) Installation: You must collect the product at our depot and arrange transport from the depot to the installation site. You must pay for any costs related to further delivery and installation. It is your responsibility to ensure that the site chosen by you for the installation of the products is suitable, prior to ordering. It is your responsibility to ensure that any installation or set up of the product complies with applicable building regulations, standards and/or legislation. If we are providing you with Services in relation to installation of the products we are not responsible for compliance with any applicable building regulations, standards and/or legislation in respect of the fencing or surrounding works required.
7. Discount Codes and Promotions:
We may from time to time offer promotional discount codes, which may be applicable to products on the Site, and must be entered at the time of submitting your order. The conditions of use relating to any discount code will be specified at the time that it is issued.
8. Intellectual Property
(a) Intellectual Property includes but is not limited to:
i. all present and future rights to intellectual property including inventions and improvements, trade marks (whether registered or common law trade marks), patents, designs, copyright, any corresponding property rights under the laws of any jurisdiction;
ii. all rights in respect of an invention, discovery, trade secret, secret process, know-how, concept, idea, information, process, data, formula or work product; and
iii. all work product developed in whole or in part by us.
(b) We own all Intellectual Property rights in the Site, business, products and branding, as between us and you. The products contain material which is owned by or licensed to us and is protected by Australian and international laws (Materials). We own the copyright which subsists in all creative and literary works incorporated into our Materials.
(c) You must not breach our Intellectual Property rights by, including but not limited to altering or modifying any of the Materials, creating derivative works from the Materials or using our Materials for commercial purposes such as on-sale to third parties.
9. Dispute
Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about our products, please contact us. If there is a dispute between the Parties in relation to these Sale 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 (Initial Meeting).
(b) If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Western Australia to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
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.
10. Consumer Law, Return, Refund and Exchange Policy
(a) ACL: Seller’s goods come with consumer guarantees that cannot be excluded under the Australian Consumer Law in the Consumer and Competition Act 2010 (ACL). Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the ACL or any liability under the ACL, which may not be limited or excluded.
(b) If you are a consumer as defined in the ACL, the following notices applies to you:
i. Goods: “Our goods come with warranties and guarantees that cannot be excluded under the Australian Consumer Law (Consumer Guarantees). You are entitled to a replacement or a refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”
ii. Services: “We guarantee that the Services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the Services for or for a result which you have told us you wish the Services to achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are to exclude liability; our total liability for loss or damage you suffer or incur from our Services is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.”
(c) Warranties: Seller: To the extent permitted by law, we exclude all express and implied warranties, and all material and work is provided to you without warranties of any kind, either express or implied. We expressly disclaim all warranties including but not limited to implied warranties of merchantability and/or fitness for a particular purpose. Manufacturer: The product may come with a manufacturer’s warranty. The manufacturer’s warranty is in addition to but may overlap with any rights and remedies you may have under applicable law, including any Consumer Guarantees. If you are not considered a “consumer” within the meaning of the ACL, the manufacturer’s warranty may be your sole remedy. You should check the manufacturer’s warranty, as many manufacturers’ warranties do not apply in a business or commercial setting. Please contact the manufacturer if you would like to make a claim under the manufacturer’s warranty.
(d) Repair, replacement or a refund: If you wish to seek repair, replacement or a refund for a product, please contact us and we will explain the requirements to you. This may include you providing proof of purchase and evidence of the faulty product to us.
(e) Refund: If you are entitled to a refund, we will only give you the refund once evidence of the faulty product is received by us, or we have received the product at our warehouse and inspected it and assessed whether it is eligible for a refund under these Terms. Any refund we make will be by the same payment method used to purchase the product.
(f) Installed: Subject to this clause, we will not accept or return any product that has been used, connected, installed, attempted to be connected or installed, or if your product is custom-made or is a special buy product.
(g) Packaging: You must adequately package any product you are returning for our collection to ensure that it is not damaged during return delivery to our warehouse. You must arrange and pay for the collection of any product you want returned, to be collected by us. This will usually take place within 2 business days, upon receipt of notice to us that the product is ready to be collected.
(h) Duty of care: You have a duty of care for the product while it is in your possession. If you damage products, then subsequently return the products, you may be liable to pay to repair the product to its original condition. In these circumstances, where a repair is not economically viable, no refund will be made.
(i) Change of mind: We do not accept refunds for change of mind or circumstances including but not limited to the unsuitability of the product for your installation site.
11. Limitation of Liability and Disclaimers:
(a) While the information and material contained on the Site is believed to be accurate and current, it is provided by us in good faith on an “as is” basis, and we and our directors, officers, employees, contractors and agents accept no responsibility for and make no representations or warranties to you or to any other person as to the reliability, accuracy or completeness of the information contained on the Site.
(b) Certain legislation including the ACL and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of goods or services to you by us via the Site which cannot be excluded, restricted or modified. Our liability is governed solely by the ACL and these Terms.
(c) To the extent permitted by law, we exclude all conditions and warranties, except for your Rights including but not limited to:
i. we expressly disclaim any implied or express guarantees, representations or conditions of any kind, which are not stated in these Terms;
ii. we take no responsibility for your use or set up of the product, or your compliance with applicable building standards, regulations and/or legislation in respect of the product being installed or located on the installation site;
iii. we take no responsibility for, and will not be liable for the Site or the products being unavailable; and
iv. we will not be liable for any loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, loss of programs or other data on your information systems or costs of replacement goods, or otherwise, suffered by you or claims made against you, arising out of or in connection with the Site, inability to access or use the Site, the products, the Services, the late supply of products, or these Terms, use or misuse of the products, even if we were expressly advised of the likelihood of such loss or damage.
(d) Limitation: Our total liability arising out of or in connection with the products, the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the total price paid by you for the purchase of products and/or services under these Terms.
(e) This clause will survive termination of these Terms.
12. Amendment: These Terms may be amended from time to time without prior notice. Your purchase from us following any such amendments will be deemed to be confirmation that you accept those amendments. We recommend that you check the current Terms before purchase. Our agents, employees and third parties do not have authority to change these Terms.
13. Indemnity: You indemnify us from and against all claims, suits, demands, actions, liabilities, costs and expenses (including legal costs and expenses on a full indemnity basis) resulting from your breach of these Terms. 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 our products including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us. The obligations under this clause will survive termination of these Terms.
14. General:
(a) 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.
(b) Accuracy: While we endeavour to keep the information up to date and correct, we make no representations, warranties or guarantee, express or implied, about the completeness, accuracy, reliability, suitability or availability of any information, images, products, services, or related graphics contained on the Site for any particular purpose. You hereby acknowledge that such information and materials may contain mistakes, inaccuracies or errors and we expressly exclude any liability for such to the fullest extent permissible by law.
(c) Termination: We reserve the right to refuse supply of the products ordered by you, terminate your account, terminate our contract with you, and remove or edit content on the Site at our sole discretion, without incurring any liability to you.
(d) GST: If and when applicable, GST payable on our services or products will be set out in our invoices. By accepting these Terms you agree to pay us an amount equivalent to the GST imposed on these charges.
(e) Relationship of Parties: These Terms are not intended to create a relationship between the Parties of partnership, joint venture, or employer-employee.
(f) 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. If we are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, we may terminate our agreement with you by giving you 5 business days’ notice in writing.
(g) Notice: Any notice in connection with these Terms will be deemed to have been duly given when made in writing and delivered or sent by email, facsimile or post to the Party to whom such notice is intended to be given or to such other address, email address or facsimile number as may from time to time be notified in writing to the other Party.
(h) Waiver: Any failure by a Party to insist upon strict performance by the other of any provision in these Terms will not be taken to be a waiver of any existing or future rights in relation to the provision. No waiver by us of any of these Terms shall be effective unless we expressly state it is a waiver and we communicate to you in writing.
(i) Assignment: You must not assign any rights and obligations under these Terms, whether in whole or in part, without our prior written consent.
(j) Severability: If any of these Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
(k) Jurisdiction and Applicable Law: Your use of the Site and any dispute arising out of your use of it is subject to the laws of Western Australia and the Commonwealth of Australia. These Terms are governed by the laws of Western Australia and the Commonwealth of Australia and subject to the exclusive jurisdiction of the courts operating in Western Australia. The Site may be accessed throughout Australia and overseas. We make no representation that the Site complies with the laws (including intellectual property laws) of any country outside Australia. If you access the Site from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place where you access the Site.
(l) Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.
For any questions or notice, please contact us at:
Softub Australia Pty Ltd ACN 612 731 085
Lot 222 Cowen Street, Mundijong, 6123, WA Australia
info@softubaustralia.com.au
Last update: 15 December 2021
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