I. SUPPLY OF PRODUCT
These Terms and Conditions form part of an agreement between eTheory Pty Ltd ACN 654 496 830 trading as Stoke Foiling (“Stoke Foiling”) and CUSTOMER for the supply of the Product.
Stoke Foiling will provide the Product as purchased, subject to availability.
I.3 Effective Date
The agreement between Stoke Foiling and CUSTOMER comes into effect upon the Effective Date. If CUSTOMER subsequently decides to cancel the order, Stoke Foiling may at its discretion provide a refund, but subject to a deduction of any costs incurred in preparing the Product for sale. The foregoing does not preclude any cancellation right or refund entitlement arising under the Australian Consumer Law or other applicable consumer protection legislation.
If so agreed between the parties, Stoke Foiling will arrange delivery of the Product to the address specified by CUSTOMER. Any delivery date specified by Stoke Foiling is an estimate only, and CUSTOMER will be advised in the event that a delay in delivery is anticipated. Delivery and shipping costs are additional unless it has been agreed in writing that they are incorporated into the Purchase Price.
2.1 Title and Risk
Title and risk in the Product pass to CUSTOMER upon payment, save that if Stoke Foiling is required to deliver the Product to CUSTOMER, risk passes upon shipment.
2.2 Intellectual Property
CUSTOMER agrees that nothing in these Terms and Conditions transfers or grants any right, title or interest in or to CUSTOMER in any existing Stoke Foiling Intellectual Property in the Product or accompanying user guides or other materials.
III. DATA PROTECTION
3.1 Personal Information
Stoke Foiling will take reasonable steps to ensure the security of CUSTOMER’s Personal Information. In the event of a breach of security which affects or potentially affects CUSTOMER’s Personal Information and which may have a material adverse effect on CUSTOMER, Stoke Foiling will:
(a) notify CUSTOMER; and
(b) comply with any statutory mandatory data breach reporting obligations.
IV. CHARGES AND PAYMENT
CUSTOMER agrees to pay the Purchase Price.
All pricing quoted is exclusive of GST which will be levied on all taxable invoice items for products or professional services supplied in Australia.
4.3 Payment Timing
Payment is a pre-condition of delivery (if applicable) and transfer of ownership.
5.1 Direct and Indirect Loss
Stoke Foiling’s liability arising out of or in connection to the supply of the Product will be limited to a refund of the Purchase Price paid by CUSTOMER (“Extent of Liability”). CUSTOMER hereby releases Stoke Foiling from all claims arising in connection with the Product to the extent that Stoke Foiling’s liability would exceed the Extent of Liability.
5.2 Reliance on sales representations
Except to the extent that such liability cannot by law be excluded, Stoke Foiling will not be liable for any loss, claims, demands, damages, expenses or liabilities or any other proceedings resulting from relying on any information provided by CUSTOMER in the course of
pre-sale discussions between customer and Stoke Foiling or any representative of Stoke Foiling. CUSTOMER agrees to independently determine whether the Product meets CUSTOMER’s requirements.
5.3 Consequential loss
Stoke Foiling will not be liable to CUSTOMER for any special, indirect or consequential loss or damage of any kind, arising out of the purchase or use of the Product.
5.4 Third Party Claims
CUSTOMER will indemnify Stoke Foiling against all costs loss or liability suffered or incurred by Stoke Foiling resulting from any claims or demands by third parties with respect to any loss or damage sustained by a third party user of the Product.
5.5 Consumer rights
The limitations and disclaimers set out in this clause are subject to any rights or remedies available to CUSTOMER under the Australian Consumer Law or other consumer protection legislation.
VI. WARRANTY AND ACKNOWLEDGEMENT
6.1 Due care and skill
Stoke Foiling warrants that the Product will be manufactured and supplied with due care and skill.
6.2 Warranty period
If CUSTOMER notifies Stoke Foiling of a defect in the Product during the Warranty Period, and if Stoke Foiling accepts the validity of the claim, Stoke Foiling will at its discretion repair or replace the Product.
6.3 Warranty exclusions
Stoke Foiling is not required to repair or replace a malfunctioning or damaged Product if the defect is attributable to:
(a) normal wear and tear;
(b) mistreatment, accidental damage or negligence, including (i) transport, handling, inappropriate storage or exposure to extreme climatic conditions, (ii) failure to maintain and care for the Product in accordance with any operating instructions provided by Stoke Foiling; (iii) use in an environment suffering from interference from other wireless devices or electromagnetic interference, (iv) damage attributable to user error, use in unsafe conditions (including inclement weather) or (v) continued use after a report of a warranty issue or after a warranty issue should reasonably have been identified by CUSTOMER;
(c) damage attributable to non-recreational use;
(d) third party acts or omissions, including maintenance, repairs or modifications;
(e) damage caused by improper installation or set-up;
(f) damage caused to the Product, or to the foil or board, in the course of installation of the Product;
(g) damage caused by an unauthorised service provider;
(h) damage attributable to a Force Majeure Event;
(i) use of unauthorised accessories in conjunction with the Product; including cleaning products not specifically approved by Stoke Foiling; or
(j) use of the Product for purposes other than those for which it is designed.
6.4 Non-excludable consumer guarantees
Notwithstanding and in addition to clause 6.2, the Product may come with guarantees that cannot be excluded under the Australian Consumer Law. CUSTOMER is entitled in such circumstances to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. CUSTOMER is also entitled to have the Product repaired or replaced if it fails to be of acceptable quality and the failure does not amount to a major failure.
6.5 Limited liability for consumer guarantees
Subject to clause 6.4, Stoke Foiling provides no warranty nor does it accept any liability in relation to the effectiveness of the Product in meeting CUSTOMER’s expectations. Notwithstanding the foregoing, in the event that the Product is subject to consumer guarantees implied by the Australian Consumer Law, the liability of Stoke Foiling for a breach of such a guarantee will at Stoke Foiling’s discretion be limited to resupply of the Product or meeting the cost of having the Product resupplied.
6.6 CUSTOMER Acknowledgement
CUSTOMER acknowledges that:
(a) use of the Product is not and cannot be free from the risk of injury or death;
(b) the Product must at all times be used in conformity with Product instructions, user guides, specification and other materials made available to CUSTOMER either in hard copy or online;
(c) CUSTOMER is responsible for procuring any licence, approval or authorisation for its use of the Product;
(d) CUSTOMER waives any legal right of action against Stoke Foiling, and fully indemnifies Stoke Foiling, in respect of injury, death, loss or
damage arising out of CUSTOMER’s use of the Product;
(e) CUSTOMER is solely responsible for authorising or enabling the use of the Product by a third party, and fully indemnifies Stoke Foiling in
respect of injury, death, loss or damage arising out of any third party’s use of the Product.
7.1 Termination for breach or insolvency
Stoke Foiling may terminate this agreement, and recover any losses sustained as a result of such termination, if:
(a) CUSTOMER is in breach of these Terms and Conditions and such breach is not rectified within 5 Business Days of notification by Stoke
Foiling, or such shorter period as is reasonable and necessary in the circumstances; or
(b) CUSTOMER becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration.
VIII. FORCE MAJEURE
8.1 Force Majeure Event
If a Force Majeure Event occurs and Stoke Foiling is not able to perform its obligations under these Terms and Conditions in whole or in part, then Stoke Foiling’s obligations will be suspended to the extent that it is prevented from performing its obligations.
8.2 Notice of Force Majeure Events
Stoke Foiling will notify CUSTOMER as soon as practicable of the occurrence of a Force Majeure Event, the effect of the Force Majeure event and the expected duration of the Force Majeure Event.
8.3 Cancellation due to a Force Majeure Event
If the Force Majeure Event continues for more than 30 days, either party may immediately terminate the agreement by written notice to the other party.
Should Stoke Foiling require a specialist contractor with skills/experience outside its field of expertise in order to meet its obligations under these Terms and Conditions, then Stoke Foiling may engage such a contractor without the prior approval of CUSTOMER.
Notices associated with this contract will be deemed to have been properly served if in writing and sent to the usual business address or residential address (as the case may be) of the other party by certified mail.
These Terms and Conditions will not be varied, except by agreement in writing signed by the parties.
9.4 Governing Law
All aspects of the contract will be governed by the laws of the Victoria, Australia, and the parties are bound to submit to the jurisdiction of courts of that State.
For the purposes of this document:
“CUSTOMER”; means the person purchasing the Product, whether for their own use or on behalf of a third party.
“Effective Date”; means the date upon which CUSTOMER agrees to purchase the Product.
“Force Majeure Event” means any event (including the unavailability of the Product) which is beyond the control of Stoke Foiling, was not foreseeable by Stoke Foiling, and cannot reasonably be mitigated or avoided by Stoke Foiling, including damage to the Product caused by hail,rain, flooding, wind, sands or other environmental or natural conditions or other Act of God.
“Personal Information” has the meaning contained in the Privacy Act 1988 (Cth).
“Product” means the Product which the customer has agreed to purchase from Stoke Foiling.
“Purchase Price” means the charge payable by CUSTOMER in order to purchase the Product. “Warranty Period” means a period of 12 months from the Payment Date.
“Warranty Period” means a period of 12 months from the Effective Date