SUPPLY TERMS AND CONDITIONS FOR SINGLE USE PLASTIC FACE SHIELDS
These terms apply when you order or otherwise acquire the Goods from Berley Pro Pty Ltd as trustee for The Gittens Family Trust ABN 55 621 387 095.
In these terms, Goods means a quantity of single use PET plastic face shields (300mm wide and 240mm long), with an open cell or closed cell foam (depending on supply) head band, secured by elastic.
- When you place an order for Goods, this constitutes an offer by you to acquire the Goods from us on these terms. Where you pay for or otherwise accept the Goods, you agree to do so on these terms.
- These terms apply to the exclusion of all other terms, including any terms and conditions in purchase orders or documents issued by you.
- Once you place an order, unless you are permitted to do so pursuant to the Australian Consumer Law, you must not vary or cancel it unless we agree in writing.
Using the Goods
- You acknowledge that we are not typically a supplier of medical PPE and that we have not performed any analysis as to the effectiveness of the Goods in any setting, including a medical setting. We are typically a manufacturer of consumer products, responding to assist those on the frontline of the COVID-19 pandemic to the best of our ability. Therefore, we make no guarantees or representations about the use of, fitness for purpose of, or the effectiveness of the Goods.
- You must, as soon as possible after receiving a sample of the Goods or delivery of the order of Goods (whichever is the earlier) and in any event, prior to using the Goods, arrange for a suitably qualified medical professional to assess whether the Goods are suitable for the use intended by you. If, as part of this check, you determine that the Goods are not suitable for the use intended by you or you become aware of any damage or defect, you must not use the Goods and you must notify us within ten business days of delivery.
- If you give us notice under clause 5, you must:
- (A) preserve the Goods in the state in which they were delivered; and
- (B) if requested by us, cooperate with us to effect the return of Goods, within ten business days of our request, in the condition in which they were delivered.
- If you had already received a sample of the Goods before placing an order, we are not required to refund you for the order of Goods if you subsequently change your mind or determine that the Goods are not suitable for the use intended by you. Except where you have rights under the Australian Consumer Law which cannot be lawfully excluded, restricted or modified, Goods may only be returned due to change of mind, with our prior agreement.
Price and payment
- All prices quoted for Goods are in Australian dollars and except as otherwise stated, exclusive of insurance, delivery charges and GST.
- You must pay for the Goods within the time stated on our invoice. If no time is stated, you must pay for Goods prior to delivery of the Goods.
- We reserve the right to vary prices quoted any time before we accept an order. If you have placed an order and the relevant price is changed, we will notify you and give you the opportunity to cancel your order.
- We may require payment of a deposit, which must be paid by you upon us accepting the order. If you do not pay the deposit within the time we reasonably request, we may cancel the order.
- If we take action to recover any amount due to us by you, you must pay us all loss and expense incurred by us in recovering the monies due, including penalty interest at the rate fixed under the Penalty Interest Rate Act 1983 (Victoria).
- We reserve the right to cancel your order if we are unable to fulfil your order due to events beyond our reasonable control.
- We will use all commercially reasonable efforts to deliver the Goods within a reasonable time.
- You acknowledge that there may be delays due to the COVID-19 pandemic.
- Except where our liability may not be excluded under the Australian Consumer Law, we are not liable for any loss due to our failure to deliver the Goods promptly or at all, other than to refund any price paid by you where the Goods are not delivered at all.
- Where we personally deliver the Goods to you or where we use our nominated transport provider, risk in the Goods passes to you upon the Goods being accepted at the delivery location. In all other circumstances, risk in the Goods passes to you when the Goods are loaded at our warehouse for delivery to you. Delivery of the Goods to a third party nominated by you is deemed to be delivery to you.
- Title to the Goods passes to you on payment in full of the price for the Goods.
Claims and limitation of liability
- Our Goods may come with consumer guarantees that cannot be excluded under the Australian Consumer Law. You may be entitled to remedies including a replacement, repair, refund and compensation for any other reasonably foreseeable loss or damage should our Goods fail to comply with the consumer guarantees. The limitations of liability set out in these terms are therefore subject to, and will not apply to the extent that they limit or exclude such consumer guarantees.
- If you are acquiring Goods which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then our liability for any loss suffered or incurred by you which arises out of or in connection with our supply of the Goods is limited to, at our election, the replacement of the relevant Goods or the payment of the cost of replacing the relevant Goods again.
- Except only for those rights and remedies that you have in respect of the Goods under the Australian Consumer Law which cannot be lawfully excluded, restricted or modified:
- (A) our liability for any loss suffered or incurred in connection with the supply of the Goods is limited to the price of the Goods;
- (B) we exclude any liability for Consequential Loss; and
- (C) we exclude all conditions, warranties and implied terms, whether statutory or otherwise, in relation to the Goods.
- In these terms, Force Majeuremeans an act of God; war, revolution or any other unlawful act against public order or authority; an industrial dispute including strike or other labour disturbances; a governmental restraint; a shortage or unavailability of raw materials, production capacity or transportation; and any other event not within the reasonable control of us.
- Where Force Majeure prevents or delays us from performing any obligation under this agreement, the requirement to perform that obligation is suspended as long as the Force Majeure continues.
- Our agreement is governed by the laws of Melbourne, Australia. We both submit to the non-exclusive jurisdiction of the courts of Melbourne, Australia and courts entitled to hear appeals from those courts.
- If a provision in these terms is wholly or partly void, illegal or unenforceable in any relevant jurisdiction that provision or part must, to that extent, be treated as deleted from this agreement for the purposes of that jurisdiction.
In these terms:
(A) Australian Consumer Lawmeans Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the relevant State and Territory fair trading acts;
(B) Consequential Lossmeans any loss, damage or costs incurred by a party or any other person that is indirect or consequential, as well as loss of revenue; loss of income; loss of business; loss of profits; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third parties; loss of or damage to credit rating; loss of anticipated savings and/or loss or denial of opportunity
(C) you means the person or other entity that acquires Goods from us pursuant to these terms; and
(D) we, us and our means Berley Pro Pty Ltd as trustee for The Gittens Family Trust ABN 55 621 387 095.