By accessing or using this Pellelucent (the Supplier) website, which is hosted in Australia, you (the Customer) are acknowledging that you have read, understand, and agree, without limitation or qualification, to be bound by these Terms and Conditions. These Terms and Conditions and no others will apply to any order for and any supply of Goods by the Supplier to the Customer.
2. Order for Goods
2.1 Any quotation by the Supplier does not constitute an offer to supply.
2.2 Unless otherwise stated by the Supplier, any quotation by the Supplier will remain valid for 30 days from the date of the quotation provided that the Supplier may withdraw or vary a quotation at any time prior to the Supplier’s acceptance of an Order.
2.3 Any Order by the Customer to the Supplier and/or any acceptance of any Goods by the Customer will constitute agreement to these Terms and Conditions by the Customer.
2.4 No Order by the Customer will be binding on the Supplier unless the Supplier accepts the Order.
2.5 If the Supplier accepts an Order, the parties will have created a binding Contract and the Supplier will supply the Goods to the Customer and the Customer will pay the Price to the Supplier in accordance with the terms of the Contract (which will include these Terms and Conditions), but the Contract will be subject to the availability of the materials necessary to supply the Goods.
2.6 The Customer is not entitled to cancel any Order or Contract and must pay to the Supplier any costs associated with the Customer purporting to cancel any Order or Contract.
2.7 The Customer must ensure the Goods will be fit for the intended purpose of the Goods.
2.8 The Supplier may cancel any Contract at any time prior to delivery of the Goods, with no liability other than to repay any amount of the Price paid in advance of the cancellation.
3.1 Unless otherwise agreed by the Supplier in writing, the Price will be the Supplier’s published price on the date of the Order and is subject to variation (whether before or after the acceptance of an Order or before or after the formation of a Contract or during the term of a Contract).
3.2 Unless otherwise stated by the Supplier in writing, the Price is exclusive of any delivery charges and exclusive of government taxes.
3.3 The Customer must not withhold, make deductions from, or set-off, payment of any money owed to the Supplier for any reason.
3.4 The Supplier may charge, in addition to the Price, any other fees, charges and surcharges that the Supplier notifies to the Customer from time to time.
4. Delivery of Goods
4.1 If the Supplier agrees to deliver Goods:-
(a) the Supplier will charge delivery charges and other charges as published by the Supplier or otherwise nominated by the Supplier from time to time;
(b) all deliveries will normally be by way of post, and
(c) the Supplier may charge further delivery charges if required or in accordance with any other delivery arrangements.
4.2 The Supplier will not be liable for any delay in the delivery of Goods to the Delivery Address.
4.3 The Supplier may deliver Goods in separate instalments.
4.4 The Customer’s receipt of the Goods will represent the Customer’s acknowledgement that the Goods comply with the Contract and these Terms and Conditions.
4.5 A certificate signed by a director or secretary of the Supplier in relation to delivery of the Goods will be prima facie evidence of the fact and the Customer will not object to the admissibility of such a certificate in any legal proceedings.
4.6 The Customer must inspect any Goods immediately on collection or delivery of the Goods.
If the Supplier agrees to deliver Goods, the risk in the Goods will pass to the Customer, and the Customer will be deemed to have accepted the Goods immediately on the delivery to the Delivery Address regardless of whether the customer is at the Delivery Address at the time of delivery,
The Customer will not receive title to the Goods until the Customer makes full payment of the Price and any other amounts payable to the Supplier.
The Customer must make full payment of the Price and any other amounts payable to the Supplier before the Supplier supplies Goods to the Customer.
8. Force Majeure
The Supplier will not be liable to the Customer for any failure to perform, or delay in performing the Supplier’s obligations under these Terms and Conditions, if the failure or delay is due to any cause beyond the Supplier’s reasonable control and if any such failure or delay continues for a period of 14 days the Supplier may terminate any affected Contract.
9. Confidential Information and Intellectual Property
All Confidential Information and Intellectual Property Rights in relation to the Goods will remain with the Supplier.
10.1 While the Goods have been manufactured in Australia by an accredited chemist at an International Standards Organization facility and the ingredients have been certified as safe under Australian law, the Supplier does not warrant the Goods are fit for any purpose whether or not made known to the Supplier or any member of the Supplier’s Personnel.
10.2 The Supplier excludes all express and implied conditions and warranties in relation to the Goods except those conditions or warranties that cannot be excluded by law and the Supplier’s liability under any such conditions or warranties is limited to, at the Supplier’s option, arranging to replace the Goods or resupplying the Goods.
10.3 Nothing in these Terms and Conditions are intended to have the effect of contracting out of any applicable provisions of the Australian Competition and Consumer Act 2010 or any Fair Trading Act except to the extent permitted by such Acts.
10.4 The Supplier’s liability for any Liability or Claim in relation to these Terms and Conditions, any Contract and any supply of Goods (whether under statute, contract, tort, negligence or otherwise) will be limited to the amount of the Price paid by the Customer to the Supplier.
10.5 The Supplier will not be liable to the Customer for any Liability or Claim of any kind arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any remote, abnormal or unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the parties.
11. Release and Indemnity and Warranties
The Customer indemnifies the Supplier and each member of the Supplier’s Personnel from and against any Liability or Claim arising directly or indirectly in relation to:
(a) the accuracy of all information provided by the Customer to the Supplier;
(b) the Customer’s breach of these Terms and Conditions or any Contract;
(c) the Supplier or any member of the Supplier’s Personnel delivering the Goods in accordance with the Customer’s instructions;
(d) any spillage, breakage or contamination of Goods during any transport or delivery;
(e) the Goods not being fit for any particular purpose;
(f) the Customer purporting to cancel any Order or Contract.
The Customer warrants that:
(a) they are aged 18 years or older;
(b) they are purchasing Goods for personal use only and that they will not sell or resell any of the Goods. The Supplier reserves the right, with or without notice, to cancel or reduce the quantity of any Order it believes, in its sole discretion, may result in the violation of these Terms and Conditions;
(c) they are the owner of any debit or credit card used to purchase Goods.
12.1 The Supplier may immediately terminate, or suspend the performance of any Contract and the Customer must immediately pay any money owed to the Supplier if:
(a) the Customer breaches a term of these Terms and Conditions or any Contract and does not remedy the breach within 7 days of receiving a notice from the Supplier requiring the Customer to do so;
(b) the Customer breaches a term of these Terms and Conditions which is not capable of remedy;
(c) there is any change in the Control of the Customer; or
(d) an Insolvency Event arises in relation to the Customer.
In these T&Cs:
“Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
“Confidential Information” means information, whether in visual, oral, documentary, electronic, machine-readable, tangible, intangible or any other form, relating to the Supplier or any related entity of the Supplier including but not limited to any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter;
“Contract” means a contract formed as a result of the acceptance of an Order by the Supplier;
“Corporations Act” means the Australian Corporations Act 2001;
“Customer” means the customer set out in any quotation, offer or other document provided by the Supplier (or, in the absence of such information, the customer who placed the Order);
“Delivery Address” means the address for the delivery of the Goods as entered online;
“Goods” means the goods in a Contract;
“Intellectual Property Rights” means any present or future rights conferred by statute, common law or equity in any part of the world in relation to any confidential information, copyright, trademarks, service marks, designs, patents, circuit layouts, plant varieties, business names, domain names, inventions, trade secrets or other results of intellectual activity in any industrial, commercial, scientific, literary or artistic fields;
“Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
“Order” means any written or verbal order by the Customer to the Supplier for Goods and/or Services;
“Personnel” means any employee, servant, contractor, subcontractor, agent, partner, director or officer of a party;
“Price” means the price of the Goods and/or Services as nominated by the Supplier from time to time;
“Supplier” means the entity that accepts the Order to supply Goods and/or Services to the Customer; and
“Terms and Conditions” means these terms and conditions of Supply.
14.1 The parties agree:
(a) no Contract will create any partnership, joint venture, agency or relationship of employment between the parties;
(b) these Terms and Conditions or any Contract may only be amended by the Supplier and such change will be effective upon publication of the amendment by the Supplier;
(c) these Terms and Conditions constitute the entire agreement between the parties;
(d) any waiver by the Supplier must be express and in writing;
(e) the Supplier’s rights under these Terms and Conditions or any Contract do not exclude any other rights of the Supplier;
(f) no Contract will be a sale by sample;
(g) in the event of any dispute, the Supplier’s records will be conclusive evidence;
(h) the actions of any person claiming to have the Customer’s authority will bind the Customer to the extent permitted by law;
(i) if any provision of these Terms and Conditions or any Contract is unenforceable, the provision will be severed and the remaining provisions will continue to apply;
(j) the Supplier may assign any rights or benefits under any Contract or these Terms and Conditions to any third party;
(k) the Customer may only assign any rights or benefits under any Contract or these Terms and Conditions with the Supplier’s prior written consent; and
(l) these Terms and Conditions and any Contract will be governed by the laws of Australia and the State of New South Wales and the parties submit to the jurisdiction of the courts of that state.
14.2 In these Terms and Conditions:
(a) the headings will not affect interpretation;
(b) the singular includes the plural and vice versa;
(c) any other grammatical form of a word or expression defined in these Terms and Conditions has a corresponding meaning;
(d) a reference to a document includes the document as novated, altered, supplemented or replaced;
(e) a reference to a party includes the party’s executors, administrators, heirs, successors in title, permitted assigns and substitutes;
(f) a reference to a person includes a natural person, body corporate, partnership, trust, association or any other entity;
(g) a reference to a statute, ordinance, code or law includes regulations, rules and other instruments under the statute, ordinance, code or law and any consolidations, amendments, re-enactments or replacements;
(h) a word or expression defined in the Australian Corporations Act has the meaning given to the word or expression in that legislation;
(i) the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;
(j) any agreement, representation, warranty or indemnity by two or more parties binds those parties jointly and severally;
(k) any undertaking by a party not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or thing;
(l) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these Terms and Conditions.