Terms and Conditions
In these terms and conditions:
Defect means a defect, flaw or imperfection in the Product which prevents the Product from being used for the purposes intended for such Product or which makes the use of the Product dangerous, but does not include anything which has been disclosed as a feature or limitation of the Product by us prior to the date of purchase, or any defect, flaw or imperfection that is trivial or insubstantial;
GST has the meaning given to that term in the GST Law;
GST Law means A New Tax System (Goods and Services Tax) Act 1999(Cth);
Insolvency Event means circumstance where you are unable to pay your debts as they fall due or otherwise takes any corporate action or any steps are taken or legal proceedings are started for: (a) its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by us; (b) the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or (c) seeks protection or is granted protection from its creditors, under any applicable legislation;
Instructions has the meaning given to that term in clause 3(a);
Order has the meaning given to that term in clause 2(b);
Price has the meaning given to that term in clause 2;
Product means Venetian Plasters, Binders, Metal Powders and tools and accessories or any other product supplied by us to you under these terms and conditions of sale;
Us or We means Lustre FX Pty Ltd ACN 638 855 704 and each of our agents, servants and employees and any related bodies corporate as defined in the Corporations Act 2001 (Cth) (if such related body corporate is named as the party making or accepting your order of Product);
You or Your means any person that places an Order with us and its employs, contractors or officers; and
Website means http://www.lustrefx.com.au
(a) You agree to purchase, and we agree to sell, the Product to you in accordance with our Terms of Service: Delivery Policy terms and conditions.
(b) To place an order to purchase the Product, you must complete the order form set out on our Website (or any other method as agreed by us) (“Order”). Once an Order has been accepted by us, an Order cannot be cancelled, varied or modified without our prior written consent.
(c) Once an Order has been accepted by us, a separate contract of sale will arise and will comprise of the accepted Order and these terms and conditions. By placing an Order with us through our Website you are agreeing to be bound by these terms and conditions.
(d) You must not resell any Product without our prior written consent. We reserve the right to reject any Order if you are found to be reselling the Product without our prior written consent or we consider you are purchasing the Product for the purpose of resale. In the event you do resell the Product to any third party, we exclude all liability for any damage or loss suffered by the third party as a result of using the Product.
2. Price and payment
The price payable for the Product shall be the price as advertised on our Website at the date an Order is placed by you (“Price”). You are required to pay the Price immediately upon placing an Order with us.
3. Use of product
(a) You must only the use the Product as directed and comply with all instructions for application, usage provided with the Product or as otherwise set out on the Website and Product Data Sheets. We reserve the right at any time at our sole discretion to amend or vary the Application Instructions. It is your responsibility to ensure that you remain aware of any amendment or variation to the Application.
(b) We exclude any liability whatsoever for any loss or damage you or any third party may suffer as a result of a failure by you or that third party to comply with the Application Instructions.
4. Returns and defects
(a) We will not accept returns or refunds for ‘change of mind’. However, if a Product is found to have a Defect, the remedies set out in clause 4(b) will apply.
(b) You must notify us within 7 days of receiving product/s and maintain any Product that is found to have a Defect in the state in which it was delivered and allow us (or our nominated agent) access to the Product (either by attending your premises to inspect the Product or by returning the Product to us). If upon inspection we agree that the Product has a Defect, we at our sole discretion will either (i) refund the Price of the Product; or (ii) replace the Product and pay for the shipping of the new product/s to you.
(a) We will make reasonable efforts to have the Product delivered to you on the date and at the location advised to us upon completing an Order. However, if time is not of the essence we will not be liable for any failure to deliver or delay in delivery for any reason.
(b) If you fail to take or accept delivery of the Product, then the Product will be deemed to have been delivered when we leave them at the delivery location advised in the Order. We exclude any liability for any theft, loss or damage caused to the Product in the event the Product is left at the delivery location in accordance with this clause 5(b).
(c) You will be liable for all costs associated with the delivery of Product to You, including (without limitation) any import customs, duty or taxes applicable to the delivery of the Product.
(d) All risk in and to the Product purchased by you shall pass to you upon delivery to you or any agent or other carrier commissioned by you to take possession of the Product. Legal and equitable title in and to the Product shall not pass to you until you have paid for the Product in full.
(a) We may terminate this agreement by written notice to you, without prejudice to any rights accrued under these terms and conditions, if (a) you breach these terms and conditions and the breach is not capable of remedy or you do not remedy the breach within 7 days of written notice by us; (b) you are subject to an Insolvency Event; or (c) we notify you we wish to terminate these terms for convenience, at our sole discretion.
(b) Where this agreement is terminated for any reason, we will either deliver any Product already paid for in accordance with clause 5 or provide a refund for any Product not delivered.
7. Intellectual Property
The purchase of Product under these terms and conditions does not confer on you any licence or assignment of any copyright, patent, design or trade mark, or any other intellectual property right (whether registered, registrable or not) that subsists in the Product.
8. Force Majeure
(a) We are not liable for any failure to perform any of its obligations under these terms and conditions as a result of any event beyond its reasonable control including, without limitation, where we are prevented or hindered from manufacturing, delivering or supplying the Product as a result of any strikes, lockouts or other labour difficulty, inability to obtain any necessary materials, products, equipment, facilities or services from usual suppliers on usual terms, epidemic, pandemic or quarantine, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication network. In such circumstances, we may suspend performance of any obligations under these terms and conditions while the event continues. We shall not incur any liability to you in respect of such suspension.
(b) If any of the above events occur for more than 30 days, we may, without liability, terminate any affected Order and/or these terms and conditions immediately by notice in writing to you in accordance with clause 8.
(a) Unless we otherwise agree in writing, these terms and conditions along with the Warranty and Exclusion terms and conditions apply to the sale of Product to you. You agree that both terms and conditions documents will in all circumstances prevail over any other document, Order or other terms, including your terms and conditions of purchase (if any).
(b) If any provision of these terms and conditions or its application to any person or circumstance is or becomes invalid, illegal or unenforceable the provision shall, so far as possible, be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of these terms and conditions shall not in any way be affected or impaired.
(c) We may vary these terms and conditions by updating the terms and conditions as set on our Website. You are responsible for ensuring you remain aware of any variation to these terms.
(d) You may not assign your rights under these terms and conditions without our prior written consent.
(e) These terms and conditions are governed by and construed under the law in The Australian Capital Territory, Australia. Any legal action in relation to these terms and conditions against any party or its property may be brought in any court of competent jurisdiction in the State of Australian Capital Territory Each party irrevocably, generally and unconditionally submits to the non-exclusive jurisdiction of any court specified in this provision in relation to both itself and its property.
(f) Notwithstanding any other clause in these terms and conditions, to the extent that any supply made under or in connection with these terms and conditions is a taxable supply (as defined by the GST Law), you must pay us, in addition to the consideration provided for under these terms and conditions, for that supply (unless it expressly included GST) an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. You must pay to us the additional amount at the same time as the consideration to which it is referable. You are responsible for paying any other duties, taxes or charges, including any stamp duty (if applicable), in relation to the Product.
(g) Waiver by us of a breach of these terms and conditions or of any right or power arising on a breach of these terms and conditions must be in writing and signed by us. A right or power created or arising on a breach of these terms and conditions is not waived by any failure to exercise or delay in exercising, or a partial exercise of, that or any other right or power.