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PRIVACY POLICY | TERMS & CONDITIONS

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1. DEFINITIONS

 

CONDITIONS OF SUPPLY

 

PDH Goods or Services means goods or services

 

In these Conditions the following words have the following meanings, unless the context requires otherwise:

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.

Confidential Information means all information disclosed by the Supplier to the Purchaser and includes these Conditions and the prices of the Goods or Services but excludes information that:

(a) is public knowledge or becomes available to the Purchaser from a source other than the Supplier (otherwise than as a result of a breach of confidentiality by the Purchaser or any person to whom it has disclosed the information); and

(b) is rightfully known to, or in the possession or control of the Purchaser and not subject to an obligation of confidentiality in accordance with the terms of an Agreement.

Consequential Loss means:

(a) any form of indirect, special or consequential  loss, including loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunities; and

(b) any loss beyond the normal measure of damages.

Consumer has the meaning given to it in section 3 of the Australian Consumer Law.

Contract means the agreement formed between the Purchaser and the Supplier for the supply of the Goods on these Conditions in accordance with clause 2 and includes the details appearing on the Purchase Order which is accepted by the Supplier.

Delivery Address means the address for delivery of the Goods as set out in the Purchase Order.

Deposit means the amount (if any) set out in the Purchase Order as the deposit.

Goods means all goods ordered in the Purchase Order and to be supplied by the Supplier.

GST has the same meaning as in the GST Law.

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvency Event means, in relation to a body  corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; or in relation to an  individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; or the occurrence of any event that has substantially the same effect to any of the above events.

Loss means any loss, liability, damage, expense, charge, penalty or cost whatsoever and includes (without limitation) direct loss and Consequential Loss.

PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption. 

Purchase Order means a purchase order issued by the Purchaser to the Supplier.

Purchase Price means the total amount payable for the Goods as set out  in the  Purchase Order and includes the delivery fee (if any).

Purchaser means the person (including its successors, personal representatives and permitted assigns) who acquires the Goods from the Supplier, and where this consists of more than one person the obligations in the Contract are deemed to be joint and several.

Services means any services provided by the Supplier to the Purchaser as listed in the accepted Purchase Order, including (without limitation) delivery services.

Supplier means Horse Gym Australia Pty Ltd (ACN 150 100 539).

Tax or Taxes means any tax, levy, charge, impost, fee, deduction, compulsory loan or withholding (including corporate tax, personal income tax, fringe benefits tax, payroll tax, withholding tax, excise and import duties, GST, consumption tax, value added tax or any other taxes, levies or charges), which is assessed, levied, imposed or collected by any government agency, and includes any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any such amounts.

 

Warranty Period has the meaning given to it in clause 12.3 of this Contract.

2. FORMATION OF CONTRACTS

2. 1  The Purchaser acknowledges and agrees that:

 (a) the Purchaser may make an offer to the Supplier for the Supplier to supply it with the Goods or Services on the terms of these Conditions and the Purchaser Order by signing the Purchase Order and providing it to the Supplier (Offer); and

 (b) any Offer given by the Purchaser to the Supplier based on a Purchaser Order can only be given within 10 days of the date the Purchase Order is provided to the Purchaser, unless a Deposit is payable and has been received from the Purchaser by the Supplier.

2.2.  A contract will only be formed between the Supplier and the Purchaser in respect of each Offer upon the Supplier sending the Purchaser a notice confirming receipt of the Offer.

2.3  These Conditions apply to all supplies made by the Supplier to the Purchaser.  Where the Purchase Order  purports to be made  on  or subject to terms and conditions other than these Conditions, the Purchaser agrees that such other terms and conditions are disregarded and form no part of the Contract unless the Supplier agrees otherwise in writing.

3. TERMS OF PAYMENT

3. 1  Unless otherwise agreed in writing, the Purchaser must pay the Purchase Price to the Supplier as follows:

(a) the Deposit (if any) on the date specified for payment in the Purchase Order form; and

(b) the balance of the Purchase Price and any costs incurred under clause 5.3 upon delivery of the Goods to the Purchaser.

3.2.  Subject to clause 3.3, the Deposit shall not be refundable and the Supplier shall be entitled to keep the Deposit at the time it accepts the Offer.

3.3.  The Deposit shall be refundable only if the Supplier does not accept the Offer or otherwise cancels the Contract under clause 8.2 before providing the relevant Goods to the Purchaser.

3.4  Payment may be made by bank cheque, cash payment or direct bank deposit, unless otherwise agreed to by the Supplier in writing.

4. DEFAULT

If the Purchaser defaults in payment by  a due date referred to in clause 3.1, is the subject of an Insolvency Event or breaches a material term of the Contract, then, without prejudice to any other right or remedy available  to the Supplier, the Supplier may:

4. 1  terminate the Contract and may recover from the Purchaser, at a minimum, reasonable compensation for materials purchased and ordered and labour expended in complying with the Purchase Order;

4.2.  retain the Deposit (if any);

4.3.  cancel or suspend the Contract in respect of any Goods or Services not yet supplied to the Purchaser in whole or in part by the Supplier;

4.4 enter the property of the Purchaser in order to repossess the Goods;

4.5.  appoint a receiver or receiver and manager to do anything the law allows a receiver or receiver and manager to do; and

4.6  charge the Purchaser:

(a) interest (both before and after any judgement) on any unpaid amount at the interest rate fixed from time to time pursuant to section 2 of the Penalty Interest Rate Act 1983 (Vic)on any; and

(b) any amount incurred by the Supplier in recovering any unpaid amount from the Purchaser (including legal fees and the fees of any debt collection agency).

5. DELIVERY & RISK

5. 1  The Supplier will deliver the Goods to the Purchaser in the manner:

(a) specified in the Purchaser Order; or

(b) as otherwise agreed between the Supplier and the Purchaser.

5.2. The Supplier will deliver the Goods to the Delivery Address.  The Purchaser must unload the Goods at the Purchaser's risk.

5.3. If the Purchaser requests delivery by means other than the means normally used  by  the  Supplier, then the Purchaser must pay all additional costs associated with the means chosen. If, within four weeks after the Goods are available for dispatch,  the Supplier is unable or finds it impractical to transport the Goods by  the  means  requested  by the Purchaser, the Supplier may transport  the Goods by any means it considers suitable at the Purchaser’s expense.

5.4  While the Supplier will use all reasonable endeavours to deliver the Goods by any date specified in the Purchase Order, it does not guarantee delivery on that date and  is  not  liable for any Loss resulting from late or early delivery and late delivery of the Goods does not entitle the Purchaser to cancel or terminate the Contract in whole or in part.

5.5. Delivery of the Goods shall be effected when the Goods are unloaded from the delivery vehicle at the Delivery Address.

5.6  If no date for delivery has been specified, then the Supplier will use reasonable efforts to deliver the Goods to the Purchaser  as  soon  as  practicable after the Purchase  Order  has  been  accepted  by the Supplier and the Goods have been manufactured.

5. 7  Delivery may be made in one or more lots and at different times and by separate deliveries or shipments.

5.8. There must be a representative of the Purchaser present at the time delivery is made of the Goods and, if no such representative is present, a redelivery fee may be charged by the Supplier.

5.9. If:

(a) the Purchaser is unable or unwilling to accept delivery on or before the nominated delivery date;

(b) no delivery date is nominated and the Purchaser is unable to accept delivery when the Supplier gives notice that the Goods are available for delivery; or

(c) the Purchaser returns the Goods,

then the Supplier will hold the Goods in stock for 30 days after which time it may, at its discretion:

(d) continue to hold the Goods and charge the Purchaser for storage;

(e) invoice the Purchaser  and  deliver  the Goods in accordance with prior arrangements, notwithstanding that the Purchaser's representative or agent is not present or is unwilling to accept the Goods; or

(f) treat the Contract as having been repudiated by the Purchaser and invoice the Purchaser for the full contract price for the Goods and any other costs incurred by the Supplier less any amounts received by the Supplier from a bona fide sale of the Goods to a third party.

5.10 The Supplier will be entitled to store at the risk and cost of the Purchaser any Goods which the Purchaser refuses or fails to take delivery of, without limiting any other rights the Supplier may have.

5.11  Risk in the Goods passes to the Purchaser at the time of delivery. Delivery to the Purchaser is deemed to occur at the time of delivery to the Purchaser, its agent or carrier.

5.12 In the event that the Purchaser is required  to return any Goods to the Supplier, risk in the Goods passes to the Supplier if the Supplier has approved the return of the Goods and has confirmed receipt of the Goods.

6. PASSING OF PROPERTY

6. 1  The Purchaser agrees that title to, and property in, the Goods is retained by the Supplier and will only pass to the Purchaser once all moneys owing by the Purchaser to the Supplier whether under the Contract or otherwise are paid in full.

6.2. Until such time as full title, property and ownership of the Goods passes to the Purchaser in accordance with clause 6.1:

(a) the Purchaser must hold the Goods as the Supplier’s fiduciary agent and bailee;

(b) if the Purchaser sells or purports to sell any of the Goods supplied by the Supplier in which property has not passed to the Purchaser, then  the  Purchaser  does so as a fiduciary for the Supplier and the proceeds of such sale are the property of the Supplier to the extent of any money owed to it by the Purchaser and the Purchaser must account to the Supplier for that portion of the proceeds of sale;

(c) the Supplier may at any time after payment is overdue require the Purchaser to deliver up the Goods to the Supplier and, if the Purchaser fails to deliver up the Goods immediately, the Supplier may enter the premises of the Purchaser  or  any  third party where the Goods are stored and repossess them and, in order to enable the Supplier to exercise its rights under this clause 6,  the  Purchaser  expressly authorises and grants the Supplier an express, irrevocable licence to enter the premises of the Purchaser to remove or arrange for the removal of the Goods; and

(d) the Purchaser must not pledge or grant a security interest in or in any way charge by way of security for  any  indebtedness,  any of the Goods which remain the property of the Supplier. If the  Purchaser  does  pledge or in any way charge by way of security, for any indebtedness, any of the Goods  for which property and ownership has not  passed to  the  Purchaser,  the  Purchaser must remove the pledge, charge or security interest immediately and all moneys owing by the  Purchaser to the Supplier will (without prejudice to any other right or remedy of the Supplier) immediately become due and payable to the Supplier.

7. PPSA

7. 1  Words and expressions used in this clause 7 that are not defined in these Conditions but are defined in the Personal Property Securities Act 2009 (Cth) (PPSA) have the meanings given to them in the PPSA.

7. 2  Unless the Purchaser has fully paid the Purchase Price for the Goods before they are delivered to the Purchaser, the Purchaser acknowledges that:

(a) the Contract for the purchase and supply of the Goods is a security agreement (for the purposes of the PPSA) under which the Purchaser grants the Supplier a security interest in the Goods and over any amount owed to the Customer in respect of the Goods (Account) to secure all monies owing by the Purchaser to the Supplier from time to time;

(b) where the Supplier has other enforcement rights in addition to the enforcement rights provided for in the PPSA, those other enforcement rights will continue to apply; and

(c) the Supplier is not obliged to act in any way to dispose of or to retain any Goods  that have been seized by the Supplier or any person nominated by the Supplier in exercising its rights under the PPSA.

7.3. Without limiting anything else in these Conditions, the Purchaser consents to the Supplier effecting a registration on the Personal Property Securities Register (PPSR) in relation to any security interest created by or arising in connection with, or contemplated by, these Conditions, including in relation to the Goods and any Account. The Purchaser agrees to promptly do all things necessary to ensure that any security interest created under these Conditions is perfected and remains continuously perfected, the Supplier’s priority position is preserved or secured, and any defect in any security interest, including registration, is overcome.

7.4 The Purchaser must promptly take all reasonable steps that are prudent for its business under or in relation to the PPSA (including doing anything reasonably requested by the Supplier for that purpose in relation to the Goods or the Account). Without limiting the foregoing, the  Purchaser must:

(a) create and implement appropriate policies and systems to register a security interest in relation to the Goods where the Purchaser on sells the Goods to a third party; and

(b) where appropriate, take reasonable  steps to identify security interests in relation to the Goods in the Purchaser’s favour and to perfect and protect them, with the highest priority reasonably available;

(c) not register a financing change statement in relation to any registration made under paragraphs (a) or (b) without the Supplier’s prior written consent.

7.5. The Purchaser must indemnify, and on demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the PPSR, and for the enforcement of any rights arising out of any of the Supplier’s security interests.

7.6  The Purchaser must not change its name, address or contact details without providing prior written notice to the Supplier and must not register a financing change statement or a change demand without the Supplier’s prior written consent.

7. 7  To the extent that the PPSA permits, the Purchaser waives its rights to receive a copy of any verification statement or financing change statement; to receive any notice required under the PPSA, including notice of a verification statement; to reinstate the security agreement by payment of any amounts owing or by remedy of any default; and under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 127, 128, 129, 130, 132, 134(2), 135, 136(3), (4) and (5), 137, 142 and 143 of the PPSA.

7.8. The Purchaser may only disclose information or documents, including information of a kind referred to in section 275(1) of the PPSA, if the Supplier has given prior written consent.

8. CANCELLATIONS

8. 1  Any request by the Purchaser for cancellation of a Purchase Order and termination of the Contract must be in writing and may be delivered to the Supplier by post, hand delivery or facsimile or email. If the cancellation is accepted by the Supplier, the Contract is terminated and the Purchaser is liable to reimburse the  Supplier  for the costs it has incurred  including  without limitation labour, materials and shipment cost in fulfilling the Purchase Order up to the date the request for cancellation is  received  by  the Supplier.

8. 2  The Supplier may, by written notice to the Purchaser, cancel a Purchase Order  and terminate the Contract at any time and without cause prior to delivering the Goods to the Purchaser provided that where the Supplier does so it will refund to the Purchaser any Deposit paid by the Purchaser under that Purchaser Order.

9. FORCE MAJEURE

9. 1  Neither party is liable for any Loss incurred by the other party as a result of any delay or failure to observe any of these Conditions (other than an obligation to pay money) as a result of any circumstance beyond the party's control, including but not limited to any strike, lock-out, labour dispute, act of God, fire, flood, accidental or malicious damage or breakdown in machinery but not including a lack of finance or funds. The party affected must notify the other party as soon as possible of such circumstance.

9. 2  During the continuance of such circumstance the obligations of the party affected, to the extent they are affected by the circumstance, are suspended and resume as soon as possible after the circumstance has ceased to have effect.

10. SUPPLIERS LIABILITY

10. 1  If the Purchaser is a Consumer and the Supplier supplies PDH  Goods  or  Services  to  the Purchaser, the Supplier acknowledges that the Purchaser may have certain rights under the Australian Consumer Law in respect of the guarantees  provided under  Division 1 of Part 3-2 of the Australian Consumer Law (Consumer Guarantees) as they apply to the PDH Goods or Services supplied by the Supplier and nothing in these Conditions is  to  be  interpreted  as  having the effect of excluding, restricting or modifying the application of those rights or any guarantee, condition or warranty, or right or liability under any applicable legislation (including the Australian Consumer Law), if such exclusion, restriction or modification would be void or prohibited by the legislation.

10. 2  If the Purchaser is a Consumer in respect of the Contract and the Goods or Services are non PDH Goods or Services, the Supplier’s liability to the Purchaser in connection with any breach of the Consumer Guarantees in respect of those PDH Goods or Services is limited at the Supplier’s option to:

(a) in the case of the Goods, the:

(i) replacement of the Goods or supply of equivalent goods;

(ii) payment of the cost of replacing the Goods or acquiring equivalent goods;

(iii) repair of the Goods; or

(iv) payment of the cost of having the Goods repaired; and

(b) in the case of the Services, the:

(i) supply of the Services again; or

(ii) payment of the cost of having the Services supplied again.

10. 3  If the Purchaser makes a claim against the Supplier which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law, the Supplier expressly excludes all liability in respect of the Goods or Services supplied by the Supplier to the Purchaser.

10. 4 Subject to clauses 10.1 and 10.2, the Supplier is not liable to the Purchaser (or to any third party claiming through the Purchaser) for any Loss caused by any act or omission of the Supplier, its employees or agent, and whether based on negligence or other tort, contract or otherwise and in no event shall the Supplier be liable for any Consequential Losses suffered by the Purchaser (or any third party claiming through the Purchaser).

10. 5 Subject to clause 10.1 and the rest of this clause 10, the maximum aggregate liability of the Supplier to the Purchaser arising out of or in connection with this Contract will in no event exceed an amount equal to the amount of the Purchase Price.

10. SUPPLIERS LIABILITY

10. 1  If the Purchaser is a Consumer and the Supplier supplies PDH  Goods  or  Services  to  the Purchaser, the Supplier acknowledges that the Purchaser may have certain rights under the Australian Consumer Law in respect of the guarantees  provided under  Division 1 of Part 3-2 of the Australian Consumer Law (Consumer Guarantees) as they apply to the PDH Goods or Services supplied by the Supplier and nothing in these Conditions is  to  be  interpreted  as  having the effect of excluding, restricting or modifying the application of those rights or any guarantee, condition or warranty, or right or liability under any applicable legislation (including the Australian Consumer Law), if such exclusion, restriction or modification would be void or prohibited by the legislation.

10. 2  If the Purchaser is a Consumer in respect of the Contract and the Goods or Services are non PDH Goods or Services, the Supplier’s liability to the Purchaser in connection with any breach of the Consumer Guarantees in respect of those PDH Goods or Services is limited at the Supplier’s option to:

(a) in the case of the Goods, the:

(i) replacement of the Goods or supply of equivalent goods;

(ii) payment of the cost of replacing the Goods or acquiring equivalent goods;

(iii) repair of the Goods; or

(iv) payment of the cost of having the Goods repaired; and

(b) in the case of the Services, the:

(i) supply of the Services again; or

(ii) payment of the cost of having the Services supplied again.

10. 3  If the Purchaser makes a claim against the Supplier which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law, the Supplier expressly excludes all liability in respect of the Goods or Services supplied by the Supplier to the Purchaser.

10. 4 Subject to clauses 10.1 and 10.2, the Supplier is not liable to the Purchaser (or to any third party claiming through the Purchaser) for any Loss caused by any act or omission of the Supplier, its employees or agent, and whether based on negligence or other tort, contract or otherwise and in no event shall the Supplier be liable for any Consequential Losses suffered by the Purchaser (or any third party claiming through the Purchaser).

10. 5 Subject to clause 10.1 and the rest of this clause 10, the maximum aggregate liability of the Supplier to the Purchaser arising out of or in connection with this Contract will in no event exceed an amount equal to the amount of the Purchase Price.

11. USE OF THE GOODS AND ASSUMPTION OF RISK

Subject to, and without limiting, clause 10, the Purchaser acknowledges and agrees that:

11. 1 the Purchaser is  responsible for ensuring that only those persons who were instructed as to the maintenance and use of the Goods by the  Supplier use the Goods and that such use occurs in accordance with the operating manual that was supplied with the Goods or any updated operating manual;

11. 2 it is the responsibility of the operator to check the Goods in terms of potential defects before starting any operation of the Goods

11. 3 the Purchaser must only operate the Goods in fully functional condition;

11. 4 the Purchaser has satisfied itself that the Goods are fit for the purpose it requires them for;

11. 5 the Purchaser uses and operates the Goods at its own risk and that use of the Goods could result in injury (including illness) or death to a horse or person with which the Goods are used;

11.6 the Purchaser must ensure that the Goods:

(a) are operated in accordance with all laws and any standards, policies or procedures applicable to the Goods;

(b) are only used for the purpose and capacity for which they have been specifically designed;

(c) are used in a skilful and proper manner by competent and properly qualified and trained personnel; and

(d) are not modified or damaged in any way;

11. 7 the Purchaser must ensure that any horse with which the Goods are used is fit and healthy at the time of the use and does not have any pre- existing health condition which may adversely impact on its ability to use the Goods;

11. 8 the Purchaser must supervise and monitor the health of any horse which is using the Goods; and

11. 9 the Purchaser is responsible, at its cost, for the cleaning, maintenance and servicing of the Goods and must carry our any cleaning, maintenance  and servicing in accordance with any instructions or directions provided by the Supplier.

12. EXPRESS WARRANTY

12. 1  Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the services, you are entitled:

(a) to cancel your service contract with us; and

(b) to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for a major failure with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

12.2. Subject to this clause 12, the Supplier warrants that, during the Warranty Period, the Goods will, with normal use and service, be free from faulty parts, manufacture or workmanship. If a defect arises during the Warranty Period, the Supplier will, at its cost and option and subject to these terms and conditions, repair or replace the defective Goods (Express Warranty).

12.3 The period in which the defect in the Goods must appear for the Purchaser to be entitled to the benefit of the Express Warranty is:

(a) for all treadmills as shown in the Supplier’s product brochure and  standard accessories, 12 months from the date of purchase; and

(b) for all filtration devices as shown in the Supplier’s product brochure, 6 months from the date of purchase,

(Warranty Period). 

12.4 The Express Warranty is valid only:

(a) for Goods that are purchased new and unused in Australia from the Supplier or a reseller authorised by the Supplier and the Purchaser must provide the original proof of purchase in order to make any claim under the Express Warranty; and

(b) in respect of a treadmill if, within the 12 months since the  treadmill  was  acquired, the treadmill has  been  serviced  by  either the Supplier or, if agreed by the Supplier, a qualified technician engaged by  the Purchaser in accordance with the operating manual that was supplied with the treadmill.

12.5 The Express Warranty only applies where a defect has arisen, wholly or substantially, as a result of faulty manufacture, parts or labour. The Express Warranty does not apply where damage is caused by other factors, including without limitation:

(a) normal wear and tear;

(b) abuse, mishandling, accident or failure to follow operating instructions; 

(c) exposure to liquid or infiltration of foreign particles; 

(d) servicing or modification of the Goods other than by the Supplier or its authorised service agents;

(e) use of the Goods with other accessories, attachments, product supplies, parts or devices that do not conform to the Supplier’s specifications; or

(f) shipment and other transit or delivery.

12.6 The Express Warranty does not cover:

(a) the replacement of belt, sliding plate or rubber-coated drive roller;

(b) the cost of transit or delivery of the Goods to or from the Supplier

(c) repair or replacement of any Goods damaged during transit or delivery to or from the Supplier;

(d) any Loss incurred while the Goods are being repaired; or

(e) any Loss as a result of the use of a power supply other than the power supply specified by the Supplier (3-phase / 230V per phase).

12.7 Instructions for making a claim in respect of the Express Warranty are set out in clause 13. If a claim in respect of the Express Warranty is not accepted:

(a) the Supplier will inform the Purchaser that the claim is not successful;

(b) if requested to do so by the Purchaser the Supplier will repair the Goods provided the Purchaser pays the usual charges for such repair; and

(c) if applicable, the Purchaser will be responsible for all costs associated with collection of the Goods from the Supplier.

12.8 The person who gives the Express Warranty is:

(a) Name:           Horse Gym Australia Pty Ltd (ACN 150 100 539)

(b) Address:      Suite 336, 585 Little Collins Street, Melbourne, Victoria 3000

(c) Telephone: 1300 664577

(d) Email: info@horsegym.com.au

12.9 Benefits to the Purchaser given by the Express Warranty are in addition to other rights and remedies of the Purchaser under a law (including the Australian Consumer Law) in relation to the Goods.

13. MAKING A WARRANTY CLAIM 

13. 1 The process for making a claim in respect of the Express Warranty is as follows:

(a) the Purchaser must notify the Supplier in writing as soon as possible after the claim arises and provide a written description  of the fault which has given rise to the claim to the postal or  email  address  set  out  in clause 12.8;

(b) the Purchaser must, within 14 days of the claim arising, send to the Supplier the delivery note it received when the relevant Goods were delivered to it and the Supplier’s written description of the fault (including image samples and any other relevant material) to the postal or email address set out in clause 12.8; and

(c) the Purchaser must pay for all packing, freight and insurance costs for transit and delivery of the Goods to and from the Supplier.

13. 2 If a claim in respect of the Express Warranty is accepted the Supplier will, at its cost, repair or replace any faulty parts or rectify any faulty workmanship however all other expenses in making a claim under the Express Warranty will be borne by the Purchaser.

14. INDEMNITY 

The Purchaser indemnifies the Supplier and holds the Supplier harmless from and against all Losses (including all legal costs, and any other associated fees and costs) for which the Supplier incurs as a direct or indirect result of:

14.1  recovering any amounts the Purchaser owes to the Supplier;

14.2 any breach of the Contract by the Purchaser (including any breach of the warranties provided by the Purchaser); and

14.3 any negligent or wilful act or omission by the Purchaser, the Purchaser’s employees, agents, servants, contractors or others for whom the Purchaser is legally responsible.

15. TAXES & DUTIES 

The Purchaser is liable for all Taxes (including GST) in relation to the Goods.  Unless  specified  otherwise, prices stated do not include Taxes (including GST).

16. GOODS & SERVICES TAX

If GST is payable on any supply made by the Supplier under these Conditions, the Purchaser must pay to the Supplier, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply. Where the Purchaser is required by these Conditions to reimburse or indemnify the Supplier for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that the Supplier will be entitled to claim for the Loss or amount incurred and increased by the amount of any GST payable by the Supplier in respect of the reimbursement or payment. This clause does not merge on completion or termination of the Contract. In this clause, words and expressions which are defined in the GST Act have the same meaning given to them by the GST Act.

17. CLAIMS 

Subject to the Purchaser’s rights  under  law  (including the Australian Consumer Law), any claim by the Purchaser arising out of the Contract must be made in writing and may be delivered by post, hand delivery, facsimile or email as soon as practicable after discovery by the Purchaser of the claim and in any event no later than 7 days after  delivery of the Goods.  The  Supplier has the right at any time within 30 days after receipt of the claim to inspect the relevant Goods.

18. INSURANCE 

Unless otherwise instructed by the  Purchaser  in  writing or included in a Purchaser Order or price list by the Supplier, insurance cover for the Goods in transit will not be arranged by the Supplier. Instructions for insurance cover will only be accepted in writing at the time the Goods are ordered.  The Supplier  is not obliged  to give the Purchaser a notice referred to in section 35(3) of the Sale of Goods Act 1923 (NSW) (or any equivalent legislation).

19. CONFIDENTIALITY

19. 1 The Purchaser:

(a) may use Confidential Information solely for the purposes of the Contract;

(b) must keep confidential all Confidential Information; and

(c) may disclose Confidential Information only to (i) employees and contractors who (A) are aware and agree that the Confidential Information of the other party must be kept confidential and (B) either have a need to know (and only to the extent that each has a need to know), or have been specifically approved by the other party, or (ii) as required by law or securities exchange regulation.

19. 2 The Purchaser must notify the Supplier  immediately once it  becomes  aware  of  any breach of confidentiality in respect of the Confidential Information and must take all reasonable steps necessary to prevent further unauthorised use or disclosure of the Confidential Information.

20. MISCELLANEOUS

20.1 The Supplier may, to the extent permitted by law, vary these Conditions from time to time with the variation becoming effective as soon as the Supplier provides the Purchaser notice of the variation (Variation Date). Any variation to these Conditions will only apply to any Offer made after the Variation Date and the parties acknowledge that nothing in these Conditions requires the Purchaser to make any further Offers after the Variation Date.

20.2 The Supplier may set-off any amounts owed by it to the Purchaser under the Contract against amounts owed by the Supplier to the Purchaser on any account whatsoever.

20.3 The waiver by the Supplier of any provision, or breach of any provision, of the Contract is not to be construed as a waiver of any other provision or a breach of any other provision, or further breach of the same or any other provision of the Contract.

20.4 If any provision of the  Contract is unenforceable  or void either in whole or in part for any reason, then that provision (or part) is deemed to be  deleted without in any way affecting the validity or enforceability of any other provision.

20.5 Any dispute arising out of the Contract is governed by the laws of the State of New South Wales and the Purchaser submits to the jurisdiction of and agrees to be bound by the courts of that state.

20.6 The Purchaser must not assign or otherwise deal with any of its rights or obligations under these Conditions without the Supplier’s prior written consent. The Supplier may, to the extent  permitted by law, assign, subcontract or deal with any of its rights or obligations under these Conditions (including any right to be paid or chose in action) at any time in circumstances where, in the opinion of the Supplier acting reasonably, the assignment will not adversely affect the rights of the Purchaser.

20.7 Notices by a party must be delivered by hand, prepaid post, facsimile or email and sent to the address of the receiving party specified in the Contract or otherwise notified in writing. Notices shall be deemed to have been received by hand upon delivery, by post within three (3) days of sending, by facsimile upon receipt of a successful transmission report and by email one hour after the email is sent (unless the sender knows that email has failed to send).

20.7 The United Nations Convention on Contracts for the International Sale of Goods (1980) (The Vienna Convention) and any acts or regulations enacting The Vienna Convention will not apply to these Terms or any Agreement and are excluded.