Terms of Sale

1. ACCEPTANCE OF TERMS

1.1 Unless otherwise agreed in writing, the supply of all products offered by Sahan Jayatillake BodyTalk Practitioner and/or its successors and assigns (collectively referred to as “Seller”) to any Purchasers shall be governed by the terms and conditions of sale (TCS) set herein.

1.2 The Purchaser acknowledges and agrees to be bound by this TCS and the Seller will not be bound by any terms and conditions contained in any document issued by the Purchaser.

2. DEFINITIONS AND INTERPRETATION

2.1 In this TCS, the following terms have the following meanings:

(a) “Account” means a Purchaser’s credit account with the Seller in which approval for credit purchases to be made by the Purchaser has been granted by the Seller;

(b) “Account Holder” means a Purchaser who holds an Account;

(c) “Care Instructions” mean the instructions of the Seller for caring and maintaining the Products contained in the Seller’s care instructions leaflet or in any documents or materials supplied, or required to be supplied, by the Purchaser to the Consumer;

(d) “Contract of Sale of Goods” has the meaning given to it under the Sale of Goods Act 1985 (WA) (as amended);

(e) “Credit Account Application Form” means the application form required to be completed by a Purchaser requesting to be an Account Holder;

(f) “Consumer” means an individual who is a consumer within the meaning of section 3 of the Australian Consumer Law (Schedule 2 Competition and Consumer Act 2010 (Cth));

(g) “Delivery Address” means the address specified by the Purchaser as the address to which the Products purchased shall be delivered to and in any event, unless otherwise agreed by the Seller, shall be the address listed in a Quotation or in an Order or Invoice, as appropriate;

(h) “Delivery and Administrative Charges” means the fee charged by the Seller to the Purchaser for the delivery and handling of Products to the Purchaser;

(i) “Delivery Recipient” means the Purchaser or its representative present at the Delivery Address who is 18 years and over;

(j) “Force Majeure Event” means: (i) an act of God, war, war-like condition, embargoes, riots, strike, lock-out and other events beyond the Seller’s reasonable control; and (ii) where such event is not reasonably foreseeable and its effects cannot be overcome without unreasonable expense and/or loss of time to the Seller;

(k) “GST” means GST within the meaning of the GST Act;

(l) “GST Act” means, with respect to supplies made by the Seller in Australia, A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended);

(m) “Insolvent” means with respect to the Purchaser that: (i) it is (or states that it is) insolvent; (ii) it is in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration or wound up or has had a receiver appointed to any part of its property; (iii) it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute, or dissolved (other than to carry out a reconstruction or amalgamation while solvent on terms approved by Seller); (iv) an application or order has been made (and, in the case of an application, it is not stayed, withdrawn or dismissed), resolution passed, proposal put forward, or any other action taken, in each case in connection with the Purchaser, which is preparatory to or could result in any of the circumstances detailed in any of paragraphs (i), (ii) or (iii) above; (v) it is taken to have failed to comply with a statutory demand; (vi) it is otherwise unable to pay its debts when they fall due; (vii) something having a substantially similar effect to any of the circumstances detailed in any of paragraphs (i) to (vi) above happens in connection with the Purchaser under the law of any jurisdiction; or (viii) it is (or states that it is) bankrupt;

(n) “Intellectual Property” means all intellectual property rights in Australia and throughout the world, including: (i) patents, copyrights, rights in circuit layouts, registered designs, trade or service marks, trade, business or company names or logos, indication of source or appellation of origin, and any right to have confidential information kept confidential; (ii) any application or right to apply for registration of, or assert or waive, any of the rights referred to in paragraph (i); and (iii) trade secrets, ideas, concepts, materials, know-how and techniques;

(o) “Invoice” means an invoice issued by the Seller in respect of Products ordered by the Purchaser pursuant to an Order or a part or modified Order, as the case may be;

(p) “Invoiced Amount” means the total amount specified by the Seller which is payable by the Purchaser;

(q) “Manufacturer’s Warranty” means any form of warranty, guarantee, policy or support offered by a manufacturer of a Product to a Purchaser;

(r) “Non-Account Holder” means any Purchaser other than an Account Holder;

(s) “Order” means an order made by the Purchaser, whether orally, in writing or in any other format, for the purchase of any Products from the Seller;

(t) “Personnel” of a Party means the officers, employees or contractors of that Party;

(u) “Price” means the selling price of Products as specified by the Seller, denominated in Australian currency;

(v) “Products” mean any or all products and services offered by the Seller for sale or supply to a Purchaser from time to time;

(w) “Purchaser” means a Consumer or any other persons purchasing a Product from the Seller for any personal or commercial purpose or any other purpose;

(x) “Purchaser Initiated Return” means the return of a Product initiated by a Purchaser for reasons other than those specified in clause 7.2(a)(i) or 7.2(a)(ii), including reasons such as the Product not being of the correct size or the Purchaser not liking the Product;

(y) “Quotation” means a written document issued by the Seller to the Purchaser in respect of information and details of specific Products offered to the Purchaser, including Prices, the amount representing Delivery and Administrative Charges, or any other amount specified in the document;

(z) “Release Form” means the any form or document required to be signed by the Purchaser or any other persons acting or purported to be on the Purchaser’s behalf for the purposes of 6.1(a) and 6.1(b);

(aa) “Clinic” means the Seller’s premises located at 239 Grand Promenade, Dianella, WA, 6059; and

(bb) “Website” means www.bodytalkperth.com.au.

2.2 Unless the context otherwise requires:

(a) headings are for ease of reference only and do not affect the meaning of this TCS;

(b) words importing the singular include the plural and vice versa;

(d) an expression importing a natural person includes a company, partnership, joint venture, association, corporation, or other body corporate and a government agency;

(e) a reference to a law includes a constitutional provision, treaty, decree, convention, statute, regulation, by-law, judgment, rule of common law or equity, or a rule of an applicable stock exchange and is a reference to that law as amended, consolidated, or replaced;

(f) a reference to a document includes all amendments or supplements, replacements and novations of it and covers electronic documents;

(g) a reference to a party to a document includes that party’s executors, administrators and permitted assigns;

(h) other grammatical forms of defined words have corresponding meanings;

(i) where the day on or by which something must be done is not a Business Day, it must be done by the next Business Day.

3. FORMATION OF CONTRACT OF SALE OF GOODS

3.1 For the purposes of this TCS:

(a) all Quotations (if any) issued by the Seller and all information displayed on the Website or contained in catalogues provided by the Seller, including types, colours and prices of Products represent an invitation to treat; and

(b) all Orders made by the Purchaser, whether or not such Orders were made in response to a Quotation or otherwise, represent an offer to purchase the Products.

3.2 The Seller is not bound by any Quotations, information or Orders and the Purchaser acknowledges and agrees that supply of the Products pursuant to an Order is subject to availability. The Seller reserves the right to accept Orders in whole or in part, vary such Orders and/or suspend or discontinue the supply any of Products in respect of any Order.

3.3 Orders may be placed by the Purchaser in the following manner:

(a) through the Website;

(b) by way of email or fax notice directed to the Seller specifying the Product codes and Product quantity ordered;

(c) by telephone with a representative of the Seller; and(d) by personally attending the Clinic of the Seller by appointment.

3.4 For the purposes of this TCS, an “Order Confirmation” shall be deemed to have occurred on the happening of one of the following, whichever is applicable:

(a) if the Purchaser is a Non-Account Holder, when the Seller accepts, whether orally or in writing or otherwise, an Order or part or modified Order, as the case may be AND full payment of the Invoiced Amount has been made by the Purchaser in accordance with clause 4.2;

(b) if the Purchaser is an Account Holder, when the Seller accepts, whether orally or in writing or otherwise, an Order or part or modified Order.

3.5 A Contract of Sale of Goods based on the terms and conditions of this TCS is formed on Order Confirmation.

4. PRICES AND PAYMENT TERMS

4.1 All Prices specified in a Quotation or pursuant to an Order or otherwise made known to the Purchaser prior to an Order Confirmation are subject to change. Such Prices include GST and other government imposts that may be payable in respect of the supply of Products to the Purchaser.

4.2 If the Purchaser is a Non-Account Holder, the Purchaser must make full payment of the Invoiced Amount immediately upon the Seller’s acceptance of an Order or part or modified Order, as the case may be. If the Purchaser is an Account Holder, the Purchaser must make full payment of the Invoiced Amount within 30 days from the date of issuance of the Invoice. For both Non-Account Holders and Account Holders, a copy of the Invoice shall be included by the Seller as part of the Delivery of Products and unless previously agreed by the Seller, the Purchaser shall not be entitled to the copy prior to such time.

4.3 Payments may be made by way of cash, EFTPOS, credit card, PayPal, bank deposit or any other methods specified by the Seller.

4.4 Without limiting any other rights Seller may have under this TCS or by force of law or equity, if the Purchaser fails to make full payment of the Invoiced Amount by the due date in accordance with clause 4.2, the Seller may:

(a) charge interest at the rate of 10% per annum calculated daily on all overdue monies (excluding interest under this clause) until the same is paid in full;

(b) charge an administrative fee for any administrative costs incurred in respect of the Purchaser’s failure to make full payment hereof;

(e) terminate any contracts between the Seller and the Purchaser and demand immediate payment of monies due and owing under such contracts;

(f) cancel any rebate, discount or allowance due or payable by the Seller as at the date of the event; or

(g) institute any recovery process as the Seller in its discretion thinks fit at the Purchaser’s cost and expense.

4.5 The Purchaser shall not be entitled to set off or deduct any amounts due and owing by the Purchaser to the Seller under this TCS, whether or not an existing dispute or claim has been made by the Purchaser against the Seller or for any reason whatsoever.

5. COLLECTION AND DELIVERY

5.1 All Products purchased by the Purchaser may be collected by the Purchaser or by any other persons authorised by the Purchaser from the Clinic at a time and date specified by the Seller to the Purchaser.

5.2 Alternatively, the Purchaser may request for the Products purchased to be delivered by the Seller to the Purchaser. If such request is made, the Seller may, at its sole and exclusive discretion, impose Delivery and Administrative Charges as may be necessary for the delivery of such Products. All Delivery and Administrative Charges shall be included in the applicable Invoice and shall represent part of the Invoiced Amount which must be paid by the Purchaser in accordance with clause 4.2.

5.3 Unless otherwise informed by the Purchaser in writing, delivery shall be made through a service provider nominated by the Seller. If the Purchaser chooses to nominate its own service provider, the Purchaser shall be liable for any additional costs or charges imposed by its nominated service provider, with such additional costs and charges being included in the applicable Invoice and representing part of the Invoiced Amount which must be paid by the Purchaser in accordance with clause 4.2.

5.4 All deliveries shall be made to the Delivery Address and shall not be made to any other addresses unless the Seller provides written notification otherwise prior to the date of delivery. The Seller has the sole and exclusive discretion to decide whether such other addresses may be used for delivery and whether any additional charges should be imposed in respect of the change. Any additional charges imposed must be paid by the Purchaser prior to the delivery of the Products.

5.5 All deliveries are anticipated to be made within two (2) weeks from the date of Order Confirmation. Notwithstanding the aforesaid, time shall NOT be of the essence in respect of delivery and Delivery may not be refused by the Purchaser, whether such deliveries were made in whole or in part. Any dates for delivery specified by the Seller orally or in any written communications made to the Purchaser are only estimates and the Seller shall not be liable for any loss or damage arising from, or incurred in respect of, any Deliveries made after such estimated dates.

5.6 In the event that the Seller anticipates that it is unable to make Delivery of the Products within the two (2) week time period, the Seller may, at its sole and exclusive discretion, notify the Purchaser in writing that the Purchaser may either continue waiting for Delivery of the Products or cancel its Order or part or modified Order, as the case may be, and obtain a refund of amounts paid (if any) in respect of the same.

6. RISK, TITLE AND INSURANCE

6.1 Risk of damage to or loss of the Products shall pass to the Purchaser on each of the following applicable event:

(a) if the Products are collected by the Purchaser under clause 5.1, the time the Purchaser signs the Release Form;

(b) if the Products are collected by any other persons authorised by the Purchaser or appearing to have the authority of the Purchaser to collect the Products, including any third party delivery service providers nominated by the Purchaser, the time such persons sign the Release Form;

(c) if the Products are delivered by the Seller through a delivery service provider nominated by the Seller, the time the Products are delivered to the Purchaser, such time being specified in clause 6.2.

6.2 For the purposes of clause 6.1(c), “delivery” shall be deemed to have occurred when any one of the following applies:

(a) when the Delivery Recipient accepts delivery of the Products by signing on the relevant page of the delivery docket of the delivery service provider and/or on any other documents required as proof of the said Delivery; or

(b) if applicable by reason of clause 6.3, when the Delivery Recipient collects the Products from the Delivery service provider’s premises by signing on the relevant page of the delivery docket and/or on any other documents required as proof of the said collection.

6.3 For the purposes of clause 6.2(b), if the Delivery service provider is unsuccessful in making delivery of the Products to the Purchaser at the first attempt upon arriving at the Delivery Address, the Purchaser must comply with any instructions left by the same for the Delivery of the Products, including any requirements to collect the Products from the Delivery service provider’s premises. The Seller shall not be liable for any loss or damage arising from, or in connection with, the Seller’s failure to comply with the aforesaid instructions or from its failure to accept Delivery of the Product at the Delivery Address.

6.4 Title in the Products shall pass to the Purchaser only on the Purchaser discharging in full its indebtedness to the Provider under this Agreement.

6.5 If the Purchaser is an Account Holder, the Purchaser must insure, at its own cost, the Products against risk of loss and damage and such other risks as are usual or common to insure against in a business of a similar nature to the Purchaser from time of risk is passed to the Purchaser until title is passed accordingly.

7. RETURN POLICY

7.1 The following provisions of this clause are based on the rights and entitlement conferred on the Purchaser under applicable legislation. In the event that any provisions herein contradict such applicable legislation, the latter shall prevail.

7.2 Subject to the other provisions of this clause, the Purchaser may only reject, or return, a Product on the following conditions:

(a) either:

(i) the Product has been damaged, or is defective or unmerchantable;

(ii) the Product is not in accordance with the Order or modified Order; or

(iii) a Purchaser Initiated Return is made by a Purchaser at its sole discretion;

(b) notification of the Purchaser’s intention to return the Product has been made in writing or by way of telephone to the Seller prior to the return;

(c) the Product must be returned by way of registered post or any other traceable method of delivery nominated by the Purchaser;

(d) with respect to:

(i) a damaged, defective or unmerchantable Product or a Product otherwise not in accordance with the Order or modified Order, cost of the registered post shall be borne by the Seller;

(ii) Purchaser Initiated Returns: the Product is to be returned at the Purchaser’s own cost and expense; and either: (aa) the Products are returned together with an appropriate return delivery fee as may be notified by the Seller to the Purchaser; or (ab) prior written authorisation has been granted by an Account Holder for the cost of the return, the restocking fee and return delivery fee to be charged to its Account;

(e) when returned, the Product is in its original packaging, unopened or otherwise “as-new” and in a saleable condition;

(f) the Product is returned on the basis that risk in the Product shall remain with the Purchaser until the Product is received by the Seller, its Personnel or its authorised representative.

7.3 The Seller shall not be required to accept any return Product:

(a) where the Purchaser or its Personnel or agents caused the Product to become damaged, defective or unmerchantable or failed to take steps to prevent the Product from becoming damaged, defective or unmerchantable, through any abnormal use whilst in the possession of the Purchaser, its Personnel or agents; or

(b) where the Product has been customised specifically to the requirements of the Purchaser, and the Product was made in accordance with the Purchaser’s Order or modified Order, as the case may be.

7.4 To the extent permitted by law, the Seller’s liability arising in respect of a return made pursuant to this clause shall be limited to:

(a) the replacement or supply of Products of equivalent value;

(b) the repair of the Products; or

(c) the refund of the Price paid for the Products if, at the Seller’s sole and exclusive opinion, it is unable to resolve the defect by repair or replacement.

8. MANUFACTURER’S WARRANTY

8.1 Certain Products sold or supplied by the Seller may be covered by a Manufacturer’s Warranty which represents additional guarantees to the compulsory obligations imposed on manufacturers and sellers under applicable consumer protection legislation. Under such consumer protection legislation:

“You [the Consumer] are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You [the Consumer] are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”

8.2 All claims by Purchasers pursuant to a Manufacturer’s Warranty should be made in accordance with the instructions and/or details contained in the Manufacturer’s Warranty card supplied together with the Product.

8.3 The Seller is not liable for any claims or inability to claim against a Manufacturer’s Warranty save for any obligations imposed on the Seller under applicable consumer protection legislation.

9. EXCLUSION AND LIMITATION OF LIABILITY

9.1 SAVE FOR THE MANUFACTURER’S WARRANTY AND FOR ANY OTHER OBLIGATIONS WHICH CANNOT BE EXCLUDED BY LAW, THE SELLER EXCLUDES TO THE FULLEST EXTENT PERMITTED BY LAW, ALL OTHER CONDITIONS, WARRANTIES, REPRESENTATIONS, LIABILITIES AND OBLIGATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY CONDITIONS OR WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR PURPOSE OR CORRESPONDENCE WITH DESCRIPTION, INCLUDING ANY REPRESENTATIONS AS TO THE PERFORMANCE OF THE PRODUCTS AND THE RESULTS OF ANY LABORATORY TESTS CONDUCTED ON THE PRODUCTS.

9.2 TO THE EXTENT PERMITTED BY LAW, THE SELLER SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR THE PURCHASER’S INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE THAT MAY ARISE IN RESPECT OF THIS TCS OR LOSS OF PROFIT, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS, AND ITS LIABILITY UNDER THIS TCS IS LIMITED TO REPLACING, REPAIRING OR RESUPPLYING THE PRODUCTS OR REFUNDING THE PRICE PAID FOR THE PRODUCTS.

9.3 THE PURCHASER INDEMNIFIES THE SELLER AGAINST ALL CLAIMS, DEMANDS, LIABILITIES, LOSS, EXPENSES, COSTS AND DAMAGES INCURRED BY OR MADE AGAINST THE SELLER ARISING OUT OF ANY BREACH OF OBLIGATIONS BY THE PURCHASER UNDER THIS TCS.

10. INTELLECTUAL PROPERTY RIGHTS

10.1 All Intellectual Property rights, including names, logos, trademarks, designs, drawings, techniques and concepts, embodied in, or present in relation to the Products are the proprietary rights of, and are, and shall remain, owned or controlled by, Seller or its licensors.

10.2 The Purchaser agrees and acknowledges that it will receive no right, title or interest whatsoever in respect of the Intellectual Property rights under this TCS.

10.3 The Purchaser further agrees that it shall not use, reproduce or incorporate, or allow the use, reproduction or incorporation by any third party of any such Intellectual Property rights in any statement, presentation, document, signage, or sales advertising or promotional material unless such use, reproduction or incorporation:

(a) has first been authorised in writing by Seller; or (b) is required by law.

11. TERMINATION

11.1 The Seller may, in its sole and exclusive discretion, terminate this TCS at any time if:

(a) the Purchaser: (i) materially breaches its obligations under this TCS; (ii) ceases, or threatens to cease to conduct business in the normal manner; or (iii) becomes Insolvent; or(b) a Force Majeure Event occurs to the Seller.

11.2 Upon termination, the Seller shall be entitled to all remedies available to it in this TCS or in law or equity or otherwise.

12. ASSIGNMENT AND SUBCONTRACTING

12.1 The Seller may assign or subcontract its rights and obligations contained in any part of this TCS to any associated entities, related parties or any third parties at any time without the prior written consent of the Purchaser.

13. NOTICES

13.1 A Party notifying or giving notice under this TCS must give notice:

(a) in writing; (b) if addressed to the Seller, to the postal address, fax number or email address listed on the Website at hello@bodytalkperth.com.au or any other address as notified in writing by the Seller to the Purchaser from time to time; and (c) if addressed to the Purchaser, to the postal address, fax number or email address specified on a Quotation, an Order or Invoice, as appropriate, or any other address as notified in writing by the Purchaser to the Seller from time to time.

13.2 A notice given in accordance with this clause is received:

(a) If left at the recipient’s address, on the date of delivery; (b) if sent by prepaid post, three (3) days after the date of posting; (c) if sent by fax, when the sender’s facsimile system generates a message confirming successful transmission of the total number of pages of the notice; and (d) if sent by email, when the sender does not receive any failed delivery email notification from either its, or the recipient’s, mail server within two (2) days after the date of the email.

14. GOVERNING LAW

14.1 This TCS is governed by the laws applicable in the state of Western Australia and each party submits to the exclusive jurisdiction of the courts of that State.

15. ENTIRE AGREEMENT AND AMENDMENTS

15.1 This TCS:

(a) constitutes the entire agreement between the parties as to its subject matter; (b) in relation to that subject matter, supersedes any prior understanding or agreement between the parties and any prior condition, warranty, indemnity or representation imposed, given or made by a party.

15.2 This TCS may be amended at any time by the Seller without prior notification to the Purchaser. The most current version of the Terms as posted on this page shall supersede all previous versions.

16. READING DOWN

16.1 If part or all of any clause of this TCS is illegal, invalid or unenforceable:

(a) it will be read down to the extent necessary to ensure that it is not illegal, invalid or unenforceable, but if that is not possible; and(b) it will be severed from this TCS and the remaining provisions of this TCS will continue to have full force and effect, and the parties will attempt to replace that severed part with a legally acceptable alternative clause that meets the parties’ original intention in relation to the subject matter severed.