1. In these warranty terms and conditions:
(1) “PO Box Designs” or “Bubbalooba” means Bubbalooba Pty. Ltd. A.B.N. 15 151 030 796 trading as PO Box Designs (its successors and assigns) which is the seller of the Goods;
(2) “Purchaser” means the purchaser of the Goods;
(3) “Goods” means the product and, if any, the services sold or provided;
(4) Nothing in these warranty terms and conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying, any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010) and which by law cannot be excluded, restricted or modified.
(5) GST Act and GST are given the meanings referred to in a New Tax System (Goods and Services Tax) Act 1999.
2. (1) These warranty terms and conditions and the terms and conditions incorporated herein by virtue of clause 3 hereto (which shall only be waived in writing signed by a Director of Bubbalooba Pty Ltd) shall prevail over all other terms and conditions of the purchaser or otherwise to the extent of any inconsistency.
(2) This warranty may not be modified or added to without the expressed written consent endorsed hereon of the Managing Director of Bubbalooba Pty Ltd.
Terms and conditions of sale and warranty.
3. The Goods and all other products sold and, if any, services sold or provided by PO Box Designs are contained in these terms and conditions.
PO Box Designs quotations.
4. Unless previously withdrawn, PO Box Designs’ quotations are open for acceptance within the period stated therein or, when no period is stated, within 14 days only of the quotation date. PO Box Designs reserves the right to refuse any order based on any quotation within 7 days of receipt of the order.
5. The cost of any special packing and packing materials used in relation to the Goods shall be at the purchaser’s expense notwithstanding that such cost may have been omitted from any quotation.
6. The purchaser waives any claim for shortage of any Goods delivered if a claim in respect thereof has not been lodged with PO Box Designs within (7) seven days from the date of receipt of the Goods by the purchaser.
Specifications, etc: Catalogues, etc: Quantities
7. All specifications, (without limiting the generality of same – including: drawings, particulars of weights, volumes, capacities, dimensions, load factors) are approximate only and any deviation shall not be taken to vitiate any contract with PO Box Designs or form any claim against PO Box Designs. The descriptions, illustrations, and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the Goods. Where specifications, drawings or other particulars are supplied by Purchaser, PO Box Designs price is made on estimates of quantities required. Should there be any adjustments in quantities above or below the quantities estimated by PO Box Designs and set out in a quotation, then any such increase or decrease shall be adjusted on a unit rate basis according to unit prices set out herein.
Where a rusted finish has been requested, the customer accepts that rusting is a natural process and no guarantees can be made regarding the final finish. The rusting process can become effected by weather, time and the steel specifications factors which are out of the control of PO Box Designs.
Performance, Capacities, Chemicals, Liquids, Application Methods, Environmental Effects
8. Any performance, volumes, and/or capacity figures given by PO Box Designs are estimates only. PO Box Designs shall be under no liability for damages for failure to obtain such figures unless specifically guaranteed in writing and any such written guarantee shall be subject to the recognised tolerances applicable to such figures. PO Box Designs shall be under no liability for damages arising out of the leaching/running or transfer of rust from naturally rusted products, nor for the environmental effects, which may result from the use of the Goods.
9. The delivery times and service times made known to the purchaser are estimates only and PO Box Designs shall not be liable for late delivery, non-delivery or delay and under no circumstances shall PO Box Designs be liable for any loss, damage or delay occasioned by the purchaser or its customers arising from the late or non-delivery or late installation of the Goods.
Loss or damage in transit
10. PO Box Designs is not responsible for any loss or damage to Goods in transit. PO Box Designs shall render the purchaser such assistance as may be necessary to press claims on carriers provided that the purchaser shall have notified PO Box Designs and the carriers immediately the loss or damage is discovered on receipt of Goods and shall lodge a claim on the carrier within three days of the date of receipt of the Goods. Insurance of Goods in transit is the responsibility of the purchaser.
Limit of Liability
11. (1) PO Box Designs liability for Goods manufactured by it is limited to:
1.1 where the law implies consumer guarantees into these terms and conditions pursuant to Part 3.2 Division 1 of Schedule 2 to the Competition and Consumer Act 2010 (C’th”) (“consumer guarantees”) which cannot be excluded and PO Box Designs breaches a consumer guarantee, the loss and damage the purchaser is entitled to at law which cannot be excluded by these terms and conditions; and, in all other cases
1.2 Making good any defects by repairing the same or at PO Box Designs option by replacement within a period not exceeding two calendar months after the Goods have been dispatched provided that:
(a) the defects have arisen solely from faulty materials or workmanship;
(b) the Goods have not received maltreatment inattention or interference;
(c) accessories of any kind used by the purchaser are manufactured or approved by PO Box Designs;
(d) where applicable, the seals on the Goods remain unbroken;
(e) there has been no improper adjustment, calibration or operation;
(f) the use of accessories including consumables, hardware or software (not manufactured by PO Box
Designs) has been approved in writing by PO Box Designs;
(g) no contamination or leakage has been caused or induced;
(h) any modification to the Goods have been authorised in writing by PO Box Designs;
(i) there has been no inadequate or incorrect use, storage, handling or application of the Goods;
(j) there has been no use or operation of the Goods outside of the physical, electrical or environmental specifications of the Goods;
(k) there has been no inadequate or incorrect site preparations;
(l) there has been no inadequate or improper maintenance of the Goods;
(m) it has not been caused by fair wear and tear; and
(5) PO Box Designs shall not be liable for and the purchaser releases PO Box Designs from any claims in
respect of faulty or defective design of any Goods supplied unless such a design has been wholly prepared
by PO Box Designs and the responsibility for any claim has been specifically accepted by PO Box Designs
in writing and in any event PO Box Designs liability hereunder shall be strictly limited to the replacement of
defective parts in accordance with paragraph 11 (1) of these conditions provided always that this clause does
not seek to exclude the consumer guarantees;
(6) except as provided herein, all express and implied warranties, guarantees and conditions under statute
or general law as to the merchantability, description, quality, suitability or fitness of the Goods for any
purpose or as to design, assembly, installation, materials or workmanship or otherwise are hereby expressly
excluded and PO Box Designs shall not be liable for physical or financial injury, loss or damage or for consequential
loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of
the Goods or arising out of PO Box Designs negligence or in any other way whatsoever;
(7) Warranty shall only be available to the Purchaser and shall not be transferable by the Purchaser;
(8) Labour costs involved in any repair are limited to $200 inc GST and PO Box Designs shall not be liable for any labour involved in troubleshooting or fault finding where applicable unless expressly agreed to by the Managing Director of Bubbalooba Pty Ltd.
(9) Warranty in no way extends to any used Goods.
12. PO Box Designs liability for breach of a consumer guarantee is hereby limited (in the case of goods and services not used for personal, domestic or household purposes) to:
(1) in the case of Goods, any one or more of the following:
(a) the replacement of the Goods or the supply of equivalent Goods;
(b) the repair of the Goods;
(c) the payment of the cost of replacing the Goods or acquiring the equivalent Goods;
(d) the payment of having the Goods repaired; or
(2) in the case of services;
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again.
13. Already stated
(1) Unless otherwise stated in writing by PO Box Designs, all prices quoted by PO Box Designs are inclusive of GST for supplies within Australia and exclusive of GST for exports outside of Australia. Prices quoted are those ruling at the time of quotation or the date the price is given and are based on rates of freight, insurance, customs, duties, taxes, exchange, shipping expenses, sorting and stacking charges, cartage, cost of materials and other charges affecting the cost of production ruling on that date and any alterations thereto either before acceptance of or during currency of the contract shall be to the purchaser’s account.
(2) For the purpose of 38-185 of the GST Act, the day upon which the seller gives the invoice for the supply shall be the date of the invoice.
14. Already stated
(1) The purchase price in relation to the Goods and the cost of the service shall be payable without deduction
and or set off and payment thereof shall be made on or before the thirteenth day of the month following
the delivery of the Goods or performance of the services unless other terms of payment are expressly stated in writing.
(2) A decreasing or increasing adjustment and or the issuing of an adjustment note, pursuant to Division 21 and Division 29-C of the GST Act, shall not, in any way, constitute a release, waiver, and or forgiveness of the debt incurred by the purchaser.
Interest on overdue payments
15. If PO Box Designs is not paid for any goods or services on the due date specified in this agreement without prejudice to any other right or remedy, all outstanding money shall bear interest at the rate set, pursuant to the Penalty Interest Rates Act, Victoria, 1986, as such money, together with interest shall be recoverable forthwith from the purchaser.
Rights in relation to Goods.
16. PO Box Designs reserves the following rights in relation to the Goods until all accounts owed by the purchaser to PO Box Designs are fully paid.
(1) Legal ownership of the Goods
(2) To enter the purchasers premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods;
(3) To keep or resell any Goods pursuant to (2) above;
If the Goods are resold, or products manufactured using the Goods are sold, by the purchaser, the purchaser shall hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold or used in the manufacture of the Goods sold on a separate and identifiable account as the beneficial property of PO Box Designs and shall pay such amount to PO Box Designs on request. Notwithstanding the provisions
above PO Box Designs shall be entitled to maintain an action against the purchaser for the purchase price and the risk of the Goods shall pass to the purchaser upon delivery.
17. Any property of the purchaser under PO Box Designs’ custody or control shall be entirely at the purchaser’s risk as regards loss or damage caused to the property or by it.
18. PO Box Designs reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the purchaser within (14) fourteen days of a request by PO Box Designs for such information.
19. PO Box Designs shall not be under any obligation to accept Goods returned by the purchaser and will do so only on terms to be agreed in writing in each individual case.
20. All Goods to be supplied by PO Box Designs shall be described on the purchase order agreed by PO Box Designs and purchaser and the description on such purchase order modified as so agreed shall prevail over other descriptions including any purchaser’s specification or enquiry.
21. No order may be cancelled except with the consent in writing and on terms, which will indemnify PO Box Designs against all losses.
22. The failure of any party to enforce the provisions of this agreement or to exercise any rights expressed in this agreement shall not be a waiver of such provisions or rights and shall not affect the enforcement of this agreement. The exercise by any party of any of its rights expressed in this agreement shall not preclude or prejudice such party from exercising the same or any other rights it may have irrespective of any previous
action taken by that party.
23. If by reason of any fact, circumstance, matter or thing beyond the reasonable control of PO Box Designs is unable to perform in whole or in part any obligation under this agreement then PO Box Designs shall be relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and shall not be liable to the purchaser in respect of such inability.
Passing of risk
24. Risk in the Goods shall pass to the purchaser upon delivery of the Goods to the purchaser or collection of the goods by the purchaser’s agent or carrier as the case may be.
Exclusion of liability
25. To the extent permitted by law PO Box Designs shall not be liable to the purchaser in contract or in tort arising out of, or in connection with, or relating to, the performance of the Goods or any breach of these conditions or any fact, matter or thing relating to the Goods or error (whether or not it is negligent or
a breach of contract) in information supplied to the purchaser or a user before or after the date of the purchaser’s or user’s use of the Goods and PO Box Designs shall be under no liability for damages arising out of the use of any chemicals, liquids, or mixtures in the Goods, nor for any application, not for the application methods nor for the environmental effects, which may result therefrom or from the use of the Goods.
Exclusion of representations and arrangements
26. To the extent permitted by law the terms and conditions supersede and exclude all prior and other discussions,
representations (contractual or otherwise) and arrangements relating to the supply of the Goods or any part thereof including, but without limiting the generality of the foregoing, those relating to the performance of the Goods or any part thereof or the results that ought to be expected from using the Goods.
Place of contract
27. The contract for sale of the Goods and the provision of the services is made in the State of Victoria and the purchaser agrees to submit all disputes arising with PO Box Designs to the courts of such State and any court competent to hear appeals therefrom.