1.2. “Back Order” means an Order placed by the Buyer for Goods that are out of stock, and which the Seller specifically orders at the Buyer’s request only.
1.3. “Buyer” means the person/s enquiring, buying, or obtaining the Goods as specified in any quote, invoice, document, proposal, or order, and if there is more than one Buyer is a reference to each Buyer jointly and severally.
1.4. “Confidential Information” means any information or data in whatever form, nature or media disclosed by the Seller in providing a quote for or delivering the Services. This includes but is not limited to information relating to the Buyer’s products, pricing, processes, financial records, reports, personal information, franchise arrangements, market research, and client lists.
1.5. “Goods” means any and all goods and/or services supplied by the Seller to the Buyer from time to time and includes any advice or recommendations, and as may be described on any invoice, quotation, work authorisation or any other order forms as provided by the Seller to the Buyer.
1.6. “Order” means any order for Goods, placed on the Website.
1.7. “Party” or “Parties” include each the Seller, the Buyer, and/or their Related Entities.
1.8. “Price” shall mean the cost of the Goods as agreed between the Seller and the Buyer subject to clause 4 of this contract.
1.9. "Related Party" or “Related Entities” has the meaning set out in section 9 of the Corporations Act 2001 (Cth).
1.10. “Seller” shall mean ISHOPTECH PTY LTD (ACN 645 619 209), its Related Entities, its successors and assigns or any person acting on behalf of and with the authority of ISHOPTECH PTY LTD or its Related Entities.
1.11. “Third-Party Supplier” means any external entity, organisation, partnership, or individual/s that the Seller receives products or services from, for the purposes of suppling Goods to the Buyer.
1.12. “Website” means ishoptech.com.au
(a) they need to create an Account before placing an Order, unless they utilise a “guest checkout” function provided by the Seller on the Website.
(c) they are responsible for entering all information carefully when creating an Account. The Buyer warrants that all information provided in relation to the Buyer’s Account is complete, true and accurate.
(d) They must notify the Seller immediately if the Buyer become aware of any actual or potential unauthorised use of their Account.
(e) Except to the extent otherwise required by law (including, without limitation, the Australian Consumer Law), the Seller will not be liable to the Buyer, or any other person, for any loss, damage, cost or expense suffered as a direct or indirect result of:
(i) the Buyer’s Account information being incomplete or inaccurate; or
(ii) any unauthorised use of the Buyer’s Account which takes place before they notify the Seller, whether in contract, negligence or any other tort, equity, restitution, strict liability, under statute or otherwise at all.
(e) If the Seller suffers any loss, damage, cost or expense as a result of any unauthorised use of the Buyer’s Account which takes place before the Buyer notifies the Seller, then the Buyer must pay the Seller the amount of that loss, damage, cost or expense on receipt of a written demand.
3.2. Each Order is a separate agreement between the Buyer and the Seller.
3.3. Where more than one Buyer has entered into an agreement under these Terms and Conditions of Sale, the Buyer shall be jointly and severally liable for all payments of the Price.
4. Price and Payment
(a) as indicated on any invoices provided by the Seller to the Buyer; or
(b) the Seller’s current Price, at the date of delivery of the Goods, according to the Seller’s current price list, or
(c) the Seller’s quote Price (subject to clause 4.2) which shall be will be valid for the period stated in the quotation or otherwise for a period of seven (7) days; or
(d) any written price submitted to the Buyer after the date of the quoted price and which the Buyer is deemed to accept by accepting Delivery of the Goods.
4.2. The Seller reserves the right to change the Price if:
(a) a variation to the Seller’s quotation is requested; or
(b) the Goods are replaced with alternative Goods; or
(c) the Seller identifies an error or omission on the website.
4.3. Time for payment for the Goods being of the essence, the Price will be payable by the Buyer on the date/s determined by the Seller, which may be:
(a) when placing an order for Goods;
(b) the date specified on any invoice or other form as being the date for payment;
(c) by way of instalments/progress payments in accordance with the Seller’s schedule; or
(d) if no date is specified on an invoice, the date which is seven (7) days following the date of any invoice given to the Buyer by Seller.
4.5. The Seller may accept payment through a third-party payment provider (including but not limited to PayPal, LatitudePay, POLi, ZIP Pay), and if the Buyer elects to pay through these providers, the Buyer agrees that they are bound by the relevant party’s terms and conditions. The Seller is not liable for any issues arising from the Buyer electing to pay through an optional third-party payment provider.
4.6. Unless otherwise stated the Price does not include GST. In addition to the Price the Buyer must pay to the Seller an amount equal to any GST. The Seller must pay for any supply by the Seller under this or any other agreement for the sale of the Goods. The Buyer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Buyer pays the Price. In addition, the Buyer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Delivery of Goods
(a) the Buyer’s nominated shipping address; or
(b) the relevant Third-Party Supplier, on the Buyer’s nomination
5.2. The Buyer must make all arrangements necessary to take and sign for Delivery whenever they are tended for Delivery by the Seller.
5.3. The Buyer is responsible for including the correct information in any Order for Delivery to occur. The Seller is not liable for any error made by the Buyer in placing an Order.
5.4. The Buyer must not nominate a PO Box or Parcel Locker for Delivery of the Goods.
5.5 The costs of carriage and any insurance which the Buyer responsibly directs the Seller to incur shall be reimbursed by the Buyer (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Buyer’s agent.
5.6. The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.7. The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
5.8. Any time or date given by the Seller to the Buyer is an estimate only. The Buyer must still accept Delivery even if late and the Seller will not be liable for any loss or damage incurred by the Buyer as a result of the delivery being late. 5.9. The Buyer is responsible for contacting the nominated carrier concerning delivery status, issues, or delays.
The Buyer acknowledges that timeframes given for a Back Order are indicative only, and are subject to change.
5.10. The Buyer acknowledges that if they order multiple Goods in one Order, Delivery of Goods may occur separately.
6.2. If any Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Sale (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these Terms and Conditions of Sale by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquires.
7. Buyer’s Disclaimer
8. Defects/ Returns
8.2. The Buyer shall inspect any Goods provided on Delivery and shall notify the Seller in writing within forty-eight (48) hours of Delivery of any alleged defect, shortage in quantity, damage, or failure to comply with the description quote. The Buyer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident within twelve (12) months. Any notification must include proof of purchase.
8.3. The Buyer acknowledges that they must allow the Seller to inspect the Goods and make an assessment.
8.4. The Seller will provide directions to the Buyer to return any allegedly defective or incorrect Goods within fourteen (14) days of the Buyer’s written notice for assessment.
8.5. The Buyer is responsible for the cost of returning the Goods, and must return the Goods with all items, fittings, and documentation.
8.6. The Seller will assess the condition of the Goods, and any alleged defects with the Goods or Order, within a reasonable time.
8.7. Goods returned under warranty will be repaired or replaced at the discretion of the Seller, and as required under the Australian Consumer Law.
8.8. If the Seller is required to replace the Goods, but is unable to do so, the Seller may refund any money the Buyer has paid for the Goods.
8.9. The Buyer acknowledges that they may be required to pay labour, assessment and/or freight fees, in circumstances where:
(a) Goods are returned with no fault; or
(b) are assessed to have been damaged by misuse or accident; or
(c) where the Buyer’s rights under the Australian Consumer Law or any manufacturer’s warranty do not apply.
8.10. The Buyer acknowledges that:
(a) the Seller is not responsible for damage to the packaging of the Goods;
(b) the Seller is not responsible for damage or default caused by misuse or accident;
(c) the Buyer is responsible for the backup of any user generated data, and that data may be required to viewed in assessing and/or repairing goods; and
(d) the Seller is not be responsible for any data loss.
9.2. The Buyer acknowledges that the warranty is managed through the Third-Party Supplier, and the Third-Party Supplier’s terms and conditions.
10. Fitness for Purpose
11. Compliance with Laws
12. Lien & Stoppage in Transit
(a) a lien on any goods provided under the Goods;
(b) the right to retain them for the Price while the Seller is in the possession of them;
(c) a right of stopping goods in transit whether or not Delivery has been made or ownership has passed;
(d) a right of resale; and
(e) the forgoing right of disposal, provided that the lien of the Seller shall continue despite the commencement of proceedings or judgment for the Price having been obtained.
13. Default & Consequences of Default
13.2. If the Buyer owes the Seller any money, the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a full solicitor-client indemnity basis, the Seller’s contract default fees, and bank dishonour fees).
13.3. Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment); the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under these Terms and Conditions of Sale. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
13.4. Without prejudice to the Seller’s other remedies at law, the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to make a payment when it falls due; or
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.
(a) The Buyer has paid all amount owing for the Goods, and
(b) The Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Parties, and that any Goods shall be kept separate until the Seller shall have received payment and all other obligations of the Buyer are met.
14.2. It is further agreed that:
(a) Until such time as ownership of any Goods shall pass from the Seller to the Buyer, the Seller may give notice in writing to the Buyer to return any Goods to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
(b) If the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into the land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
(c) The Buyer is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of any Goods on trust for the Seller.
(d) The Buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller.
(e) Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared, or recognized and until then the Seller’s ownership of rights in respect of any Goods shall continue.
(f) The Buyer shall not charge any Goods in any way nor grant nor otherwise give any interest in any Goods while they remain the property of the Seller.
(g) The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Buyer to the Seller, and the Seller may take any lawful steps to require payment of the amounts due.
(h) The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.
(i) Until such time the Buyer has the Seller’s authority to convert the goods into other products and if the goods are converted, the parties agree that the Seller will be the owner of the end products.
14.3. In the event that:
(a) the Seller retains possession or control of Goods for a minimum period of four (4) weeks after tendering the Goods for Delivery; and
(b) payment of the Price remains due to the Seller; and
(c) the Seller has made written demand of the Buyer for payment of the Price,
Then, under this clause 13.3, title to any Goods shall remain with the Seller, and the Seller may dispose of the Goods at their discretion and claim from the Buyer any loss suffered.
(a) a Third Party Supplier is unable to supply Goods that they have previously promised to supply;
(b) an event beyond the Seller’s control, such as storm, fire, flood, earthquake, terrorism, power failure, war, strike or failure of computer systems, means that the Seller is unable to supply the Goods within a reasonable time;
(c) Goods ordered were subject to an error on the Website, for example, in relation to a description, price or image, which was not discovered prior to the Order being accepted;
(d) (at the Seller’s discretion) the Buyer asks the Seller to cancel the Order within twenty-four hours of submitting an Order and only if the Goods have not already been shipped for Delivery;
15.2. Where the Seller cancels an Order after acceptance it will send you an e-mail notifying you of cancellation.
15.3. In the event of the Seller cancels an Order after payment has been processed, the Seller will refund any money paid in respect of that Order.
15.4. Except to the extent otherwise required by law or as expressly set out in these terms and conditions, the Seller will not be liable to you, or any other person, for any loss, damage, cost or expense suffered as a direct or indirect result of cancellation of an Order, whether in contract, negligence or any other tort, equity, restitution, strict liability, under statute or otherwise at all.
15.5. The Buyer acknowledges that they cannot cancel a Back Order once placed, and that they cannot receive a refund for a Back Order.
15.6. In the event that the Buyer cancels an order or delivery of Goods, the Buyer agrees to:
(a) pay a 10% cancellation fee (including GST); and
(b) be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits).
16. Privacy Act 1988 (Cth)
16.2. The Seller may collect information from the Buyer, or a person authorised to provide this information on the Buyer’s behalf.
16.3. The Buyer warrants that, where the Buyer provides the Seller with personal information about another person, the Buyer has ensured that the Buyer has advised the third person what information was provided, and that the Buyer has their consent to do so.
16.4. The Buyer hereby provides its written consent to the Seller to disclose the Buyer’s personal information to people or organisations in Australia where required by law or to deliver the Goods.
17. Confidentiality and Non-Disclosure
17.2. All Confidential Information and any copies of that information shall remain the property of the Seller.
17.3. The Buyer agrees that the Seller may disclose the Buyer’s confidential information to the extent necessary to perform the Goods or as agreed under these Terms and Conditions of Sale.
18. Dispute Resolution
(a) referred to a single arbitrator to be nominated by the President of the Resolution Institute; and
(b) conducted in accordance with the rules of the Resolution Institute as in place from time to time.
18.2. The unsuccessful party will be liable for the costs of the arbitration.
18.3. Any decision of an arbitrator will be binding and will be registrable as a judgment in a Court of competent jurisdiction.
19.2. All Goods supplied by the Seller are subject to the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
19.3. The Seller takes no responsibility for changes in the laws which affect the Goods supplied.
19.4. The Seller shall be under no liability whatsoever to the Buyer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Buyer arising out of:
(a) a breach by the Seller of these Terms and Conditions of Sale.
(b) Any damage or claim however so arising to the Buyer’s or a third parties’ goods or property while the Seller delivers any Goods, (including by the Seller’s officer’s, agent’s, contractor’s, or employees).
(c) Alternatively, the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods
19.5. The Buyer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Buyer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
19.6. The Seller may license or sub-contract all or any part of its rights and obligations without the Buyers consent.
19.7. The Buyer agrees that the Seller may amend these Terms and Conditions of Sale at any time. If the Seller makes a change to these Terms and Conditions of Sale, then that change will take effect from the date on which the Seller notifies the Buyer of such change. The Buyer will be taken to have accepted such changes if the Buyer makes a further request for the Seller to provide Goods.
19.8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either Party.
19.9. The Buyer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.