E-NANNY Australia PTY LTD Terms and Conditions of Trade
1.1 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.2 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Customer if a limited liability Customer on a principal debtor basis.
1.3 “Goods” means all Goods or services supplied by E-NANNY Australia to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between E-NANNY Australia and the Customer in accordance with clause 4 below.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with E-NANNY Australia’ consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and E-NANNY Australia, including, for clarity, any terms and conditions attached to any purchase order of the Customer.
2.3 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on E-NANNY Australia’ website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
2.4 E-NANNY Australia retains the right to change specifications without notice in accordance with its policy of continued product development.
2.5 The Customer accepts and acknowledges that supply of certain species of timber may be restricted from time to time due to lack of resource and circumstances beyond E-NANNY Australia control.
2.6 The Customer accepts that it shall be the sole responsibility of the Customer (or the Customer’s agent) to ascertain prior to placement of any order with E-NANNY Australia any specific standards, requirements or ratings that any Goods to be supplied by E-NANNY Australia are expected to comply with (particularly in respect of any application that the Goods are to be used for, or any specific end result that the Customer expects the Goods to achieve), and must advise E-NANNY Australia of the same (in writing) when placing any order. Under no circumstances whatsoever will any liability be accepted by E-NANNY Australia should Goods supplied subsequently prove to be unsuitable for the end result that the Customer is trying to achieve or does not meet any standard or rating that the Customer is required to comply with, except where it can be clearly determined that the Goods supplied did not meet the Customer’s requirements as were specified in the Customer’s order.
3. Change in Control
3.1 The Customer shall give E-NANNY Australia not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by E-NANNY Australia as a result of the Customer’s failure to comply with this clause.
4. Price and Payment
4.1 At E-NANNY Australia’ sole discretion the Price shall be either:
(a) as indicated on any invoice provided by E-NANNY Australia to the Customer; or
(b) the Price as at the date of delivery of the Goods according to E-NANNY Australia’ current price list; or
(c) E-NANNY Australia’ quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 At E-NANNY Australia’ sole discretion a non-refundable deposit may be required.
4.3 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by E-NANNY Australia, which may be:
(a) thirty (30) days following the date of the invoice;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by E-NANNY Australia.
4.4 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of one and a half percent (1.5%) of the Price), or by any other method as agreed to between the Customer and E-NANNY Australia.
4.5 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to E-NANNY Australia an amount equal to any GST E-NANNY Australia must pay for any supply by E-NANNY Australia under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Delivery of Goods
5.1 Subject to clause 5.2 it is E-NANNY Australia’ responsibility to ensure that the services commence as soon as it is reasonably possible after order acceptance.
5.2 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) The Customer or the Customer’s nominated carrier takes possession of the Goods at E-NANNY Australia’ address; or
(b) E-NANNY Australia (or E-NANNY Australia’ nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
5.3 At E-NANNY Australia’ sole discretion the cost of delivery is in addition to the Price.
5.4 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then E-NANNY Australia shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.5 Any time or date given by E-NANNY Australia to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and E-NANNY Australia will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
6.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, E-NANNY Australia is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by E-NANNY Australia is sufficient evidence of E-NANNY Australia’ rights to receive the insurance proceeds without the need for any person dealing with E-NANNY Australia to make further enquiries.
7. Customers Disclaimer
7.1 The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to him by any servant or agent of E-NANNY Australia and the Customer acknowledges that he buys the Goods relying solely upon his own skill and judgement and that E-NANNY Australia shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Customer and shall not be transferable to any subsequent Customer.
8. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
8.1 The Customer must inspect the Goods on delivery and must within seven (7) days of delivery notify E-NANNY Australia in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow E-NANNY Australia to inspect the Goods.
8.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
8.3 E-NANNY Australia acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
8.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, E-NANNY Australia makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. E-NANNY Australia’ liability in respect of these warranties is limited to the fullest extent permitted by law.
8.5 If the Customer is a consumer within the meaning of the CCA, E-NANNY Australia’ liability is limited to the extent permitted by section 64A of Schedule 2.
8.6 If E-NANNY Australia is required to replace the Goods under this clause or the CCA, but is unable to do so, E-NANNY Australia may refund any money the Customer has paid for the Goods.
8.7 If the Customer is not a consumer within the meaning of the CCA, E-NANNY Australia’ liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by E-NANNY Australia at E-NANNY Australia’ sole discretion;
(b) limited to any warranty to which E-NANNY Australia is entitled, if E-NANNY Australia did not manufacture the Goods;
(c) otherwise negated absolutely.
8.8 Subject to this clause 13, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 13.1; and
(b) E-NANNY Australia has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
8.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, E-NANNY Australia shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by E-NANNY Australia;
(e) fair wear and tear, any accident, or act of God.
8.10 E-NANNY Australia may in its absolute discretion accept non-defective Goods for return in which case E-NANNY Australia may require the Customer to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
8.11 Notwithstanding anything contained in this clause if E-NANNY Australia is required by a law to accept a return then E-NANNY Australia will only accept a return on the conditions imposed by that law.
9. Intellectual Property
9.1 Where E-NANNY Australia has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of E-NANNY Australia.
9.2 The Customer warrants that all designs, specifications or instructions given to E-NANNY Australia will not cause E-NANNY Australia to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify E-NANNY Australia against any action taken by a third party against E-NANNY Australia in respect of any such infringement.
9.3 The Customer agrees that E-NANNY Australia may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which E-NANNY Australia has created for the Customer.
10.1 E-NANNY Australia may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice E-NANNY Australia shall repay to the Customer any money paid by the Customer for the Goods. E-NANNY Australia shall not be liable for any loss or damage whatsoever arising from such cancellation.
10.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by E-NANNY Australia as a direct result of the cancellation (including, but not limited to, any loss of profits).
10.3 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.