STANDARD TERMS AND CONDITIONS FOR SALE OF GOODS OF YARDart.
In this document the following words shall have the following meanings:
1.1 “Buyer” means the entity including persons who buys Goods from the Seller (herein after YARDart);
1.2 “Goods” means the articles to be supplied to the Buyer the Seller;
1.3 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.4 “List Price” means the list of prices of the Goods maintained by the Seller as amended at YARDart’s discretion.
2.1 These Terms and Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Buyer, unless the Buyer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been acknowledged by the Seller in writing.
2.2 Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable there has been an agreement by YARDart before the sale of goods.
3 PRICE AND PAYMENT
3.1 The price shall be that in the YARDart’s current “List Price”. The price is exclusive of GST. The “List Price” does not include a delivery fee. The delivery fee is determined by YARDart.
3.2 Full payment of the price and GST and any other applicable costs including shipping/ delivery shall be due and payable prior to the commencement of work for the purchased item/s. The payment method includes a electronic transfer, bank cheque or cash.
3.3 Upon receiving the funds, YARDart will provide an estimated time for manufacturing and make contact prior to the shipping/delivery/pickup stage.
4.1 Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract. Should the buyer require clarification of the described goods, photographs will be sent to the Buyer for their consideration.
5.1 Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the bulk, and not so as to constitute a sale by sample.
6.1 Unless otherwise agreed in writing, delivery of the Goods shall take place at the address specified by the Buyer on the date specified by the Seller. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
6.2 The date of delivery specified by the YARDart is an estimate only. Time for delivery shall not form a “time is of the essence” clause.
6.3 If YARDart is unable to deliver the Goods for any reasons, YARDart shall be entitled to place the Goods in storage until such times as delivery may be effected and the Buyer shall be liable for any expense associated with such storage.
6.4 The Buyer shall be entitled to replacement Goods where the Goods have been damaged during transportation. The Buyer must notify the YARDart of the damage within 24 hours of delivery. The Buyer is not entitled to replacement of Goods if the goods are taken from YARDart’s place of business.
7.1 Risk in the Goods shall pass to the Buyer at the moment the Goods are dispatched from the Seller`s place of business. Where the Buyer chooses to collect the Goods itself, risk will pass when the Goods are entrusted to it or set aside for its collection, whichever happens first.
7.2 It is the buyer’s responsibility to read and abide by the safety and maintenance guide. The safety and maintenance guide is purely a “guide” only. Futher, YARDart accepts no liability for any injury whatsoever due to misuse, accidents, handling of the goods following the purchase of any YARDart product.
8.1 Title in the Goods shall not pass to the Buyer until the Seller has been paid in full for the Goods.
9.1 Where the Goods have been manufactured by the Seller and are found to be defective, YARDart shall repair, or in its sole discretion, replace defective Goods free of charge within six months from the date of the purchase of the Goods in accordance with the following:
9.1.1 the Buyer notifying the YARDart in writing immediately upon the defect becoming apparent;
9.1.2 the defect being due to the faulty design, materials or workmanship of the Seller.
9.2 Any Goods to be repaired or replaced shall be returned to YARDart at the Buyer’s expense.
9.3 Where the Goods have been manufactured and supplied to YARDart by a third party, any warranty granted to YARDart in respect of the Goods shall be passed on to the Buyer waiving any warranty with YARDart.
9.4 YARDart shall be entitled in its absolute discretion to refund the price of the defective Goods in the event that such price has already been paid.
10.1 No liability of any nature shall be incurred or accepted by YARDart in respect of any representation made by YARDart, or on its behalf, to the Buyer, or to any party acting on its behalf, prior to the making of this contract where such representations were made or given in relation to:
10.1.1 the correspondence of the Goods with any description;
10.1.2 the quality of the Goods; or
10.1.3 the fitness of the Goods for any purpose whatsoever.
10.2 No liability of any nature shall be accepted by YARDart to the Buyer in respect of any express term of this contract where such term relates in any way to:
10.2.1 the correspondence of the Goods with any description;
10.2.2 the quality of the Goods; or
10.2.3 the fitness of the Goods for any purpose whatsoever.
10.3 All implied terms, conditions or warranties as to the correspondence of the Goods to any description or the satisfactory quality of the Goods or the fitness of the Goods for any purpose whatsoever (whether made known to YARDart or not) are hereby excluded from the contract.
11 LIMITATION OF LIABILITY
11.1 Where any court or arbitrator determines that any part of Clause 10 above is, for whatever reason, unenforceable, the Seller shall be liable for all loss or damage suffered by the Buyer but in an amount not exceeding the contract price.
11.2 Nothing contained in these Terms and Conditions shall be construed so as to limit or exclude the liability of YARDart for death or personal injury as a result of the YARDart’s negligence.
12 INTELLECTUAL PROPERTY RIGHTS
12.1 All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of YARDart, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in YARDart by the execution of appropriate instruments or the making of agreements with third parties.
13 FORCE MAJEURE
13.1 The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may, without liability on its part, terminate the contract.
14 RELATIONSHIP OF PARTIES
14.1 Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.
15 ASSIGNMENT AND SUB-CONTRACTING
15.1 The contract between the Buyer and YARDart for the sale of Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Buyer.
16.1 The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
17.1 If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
18 GOVERNING LAW AND JURISDICTION
18.1 This Agreement shall be governed by and construed in accordance with the Commonwealth Jurisdiction and the parties hereby submit to the exclusive jurisdiction of the Australian Legal System.