TERMS and CONDITIONS
SPECIAL NOTE FOR TINTS OF NATURE and ORGANIC COLOUR SYSTEMS CUSTOMERS:
From 1st July 2016, our Terms and Conditions as they pertain to the sale and supply of all products manufactured by Herb UK (including all products branded 'Tints of Nature' and/or 'Organic Colour Systems') have changed. Insofar as we are obliged by Consumer Law in NSW to protect consumer rights in ordinary circumstances and as described herein, NTP Health Products does not accept liability for any issue arising from the sale, purchase, or use of any Herb UK products acquired via this website, or any other outlet. The Terms and Conditions that apply to HERB UK products are henceforth bound by the Terms and Conditions provided by HERB UK AUSTRALASIA: these have been included AFTER our Terms and Conditions below. Please read the HERB UK AUSTRALASIA Terms and Conditions BEFORE purchasing any HERB UK products.
If you have any questions about the extent of our liability, please read ALL Terms and Conditions before contacting us.
NTP HEALTH PRODUCTS TERMS AND CONDITIONS
1. TERMS AND CONDITIONS OF USE
This site www.ntphealthproducts.com ('website') is owned and operated by Goroncy Pty Limited, T/as NTP Health Products, ABN 44 001 654 771 ('NTP Health Products'). Your access to the website is conditional upon your acceptance and compliance with the terms and conditions contained in this document, the Privacy Statement and any other notices, disclaimers, terms and conditions or statements contained on this website (known collectively as 'Conditions of Use').
2. ACCEPTANCE OF CONDITIONS OF USE
By accessing, viewing or otherwise using this website, including purchasing goods or services through the website, you acknowledge and agree to be bound by these Conditions of Use. If you do not agree with any of the Conditions of Use, do not use this website.
NTP Health Products reserves the right to amend the Conditions of Use at any time with or without notice to you. The amended terms of Conditions of Use will be effective immediately. Continued use of the site following any change to these Conditions of Use will be deemed acceptance of those changes.
3. RESTRICTIONS OF USE
You must not use this website in any manner or for any purpose which is:
a) unlawful or in any manner which violates any right of NTP Health Products or third party ; or
b) is prohibited by the Conditions of Use.
4. ORDERING PROCEDURE
4.1 General Ordering Procedures
You may offer to purchase goods or services described on this website for the price specified on this website.
Your order must contain your name, email address, credit card details and any other ordering information specified on this website.
We give no undertaking as to the availability of products listed or advertised on this website.
Within seven days of receipt of your order, we will at our discretion accept or reject your offer to purchase.
You may not cancel an order once it has been submitted, even if our acceptance or rejection of your offer is still pending.
If we do not accept your offer to purchase the goods or services for any reason (for example, if the product is unavailable), neither of us will be under any further liability to the other arising out of your original offer or our non acceptance of that offer. We are not required to give reasons for rejecting your offer to purchase. If we have not responded to you within seven days, your offer will be deemed to be rejected.
Delivery of the goods or supply of the services to you will be effected in the manner described on this website or by a means as seen fit by NTP Health Products. We will endeavour to deliver the goods within the time periods described on this website, but accept no liability for failure to do so.
Payment must be effected in the manner described on the website. All prices are in Australian dollars. Prices are inclusive of goods and services tax. In all other respects, the price is exclusive of taxes, duties and charges imposed or levied in Australia or overseas in connection with the supply of goods or services.
The goods and services are offered for sale only to persons who can make legally binding contracts for the purchase of the goods or services offered.
4.2 Special Offers and/or Promotions
i) NTP Health Products may offer consumers the opportunity to purchase products by way of a Special Offer or Promotion (“Offer/s”) through our website, for example at a reduced price, increased quantity, or other similar offer. All such offers apply to a single product and may be used only once UNLESS OTHERWISE SPECIFIED. All offers expire 6 months from the date of initial publication UNLESS OTHERWISE SPECIFIED.
ii) Discounts offered to retail customers are not transferable to wholesale customers unless indicated. If discounts are applicable to wholesale accounts, the price will be adjusted accordingly. If you require clarification, please email us.
4.3 Marketing items
Marketing items are listed as free of charge, but NTP reserves the right to charge for these items at any time without notice. Limited items are available.
4.4 Coupon Codes
Submitted COUPON CODES will be accepted and applied at our discretion. They are not intended or permitted to be applied to already discounted products without our express prior approval. A coupon code may be accepted at our checkout but rejected upon processing at our discretion. You may be notified by phone or email if this occurs.
4.5 Free Postage Offers
Occasionally we may offer Free Postage as part of a promotional or reward campaign. Any Free Postage Offer is restricted to delivery within Australia only, and may be subject to other criteria - please email us if you have questions.
5. CANCELLATION DUE TO ERROR
You acknowledge that despite our reasonable precautions, products may be listed at an incorrect price or with incorrect information due to a typographical error or like oversight. In these circumstances, we reserve the right to cancel the transaction, notwithstanding that your order has been confirmed and your credit card has been charged. We reserve this right up until the time of delivery of goods or supply of the services to you. If a cancellation of this nature occurs after your credit card has been charged for the purchase, we will issue a credit to your credit card account for the amount in question at our earliest opportunity.
6. CHANGED YOUR MIND
If you have changed your mind about your purchase, we MAY decide to refund you under the following conditions:
i) You have clear proof of purchase (typically a receipt);
ii) The product/s and packaging is in its original condition including manuals and accessories;
iii) The item is in re-saleable condition, for example, it still in its original, unopened packaging, with original tags and labels, and has not been tampered with or used in any way;
iv) the items are returned within 30 days of purchase (refer to Section 20)
Furthermore, postage and/or freight costs of the returned item/s will be at the cost of the customer, NTP Health Products will accept no responsibility for lost or damaged items. Any items damaged in transit will be the responsibility of the purchaser.
PLEASE NOTE: Food items CANNOT be returned or refunded if you have changed your mind.
This section is to be read in conjunction with Section 20 (RETURNS POLICY) of the NTP Health Products Terms and Conditions.
Please return the product and proof of purchase to NTP Health Products at P. O. Box 34, Tea Gardens NSW 2324.
PLEASE NOTE that no refund can be provided without proof of purchase OR if any returned item is in an unsaleable condition.
Unless expressly indicated to the contrary, NTP Health Products or its licensors own all copyright in all texts, graphics and layouts ('Material') on this website. Except as indicated below, or as permitted under the Copyright Act 1968 (Cth) or applicable laws, you must not copy, modify, transmit or distribute any Material on this website. You acknowledge that you do not acquire any ownership rights by downloading Material from this website.
You may reproduce in whole or in part the Material only if:
a) the reproduction is not for public or commercial purposes; and
b) you do not remove or modify any notices of attribution of copyright or, if there are no such notices, you clearly attribute NTP Health Products as the copyright owner or licensee of the work.
Except as expressly provided above, nothing contained in this document shall be construed as conferring any license or right under any NTP Health Products copyright.
9. LINKS TO OTHER WEBSITES
From time to time, this website may contain links to web sites operated by third parties. NTP Health Products does not approve, endorse or sponsor any content or Material on third party websites. NTP Health Products is not responsible for and disclaims any liability arising in connection with the contents of any linked web site nor any hyperlink contained in the linked web site.
The Material on this website is intended to provide general information only and may not be accurate or current. Material is provided on an 'as is' and 'as available' basis. NTP Health Products does not warrant or make any representations concerning the completeness, timelines, suitability or accuracy of any Material on this website including, without limitation, the prices of products or services, contained on or accessible through this website, or that access to this website will be uninterrupted, timely or secure. To the maximum extent permitted by law, in no event shall NTP Health Products be liable for any damage of any kind related to the completeness, timeliness, suitability or accuracy of any Material. The use of the website and content is at your own risk.
We make no warranty that goods or services acquired from us over this website will meet your requirements.
Details contained on this website relating to goods or services have been prepared in accordance with Australian law and may not satisfy the laws of any other country. We do not warrant that the details on this website concerning those goods or services will satisfy the laws of any other country. It is your responsibility to determine whether these details satisfy the laws of the jurisdiction which you reside (if that jurisdiction is outside Australia) and if the details do not satisfy the laws of your jurisdiction, you may not order any goods or services from this website.
The Material is not intended for diagnosing, prescribing or for the treatment of any disease. If you require diagnosing, prescribing or treatment of any disease, you are advised to consult your doctor or a health care professional.
The Material on this web site is provided for product informational purposes only and is not intended as medical advice. In providing this information NTP Health Products in no way accepts liability for your decision to purchase any products, nor do we accept responsibility for your use or misuse of such products. Please refer to Section 11 (Limitation of Liability) section below.
This website may contain hypertext links, frames or other references to websites operated by third parties. We cannot control the contents of third party websites, and make no warranty about the completeness, timeliness, suitability or accuracy or subject matter of the Material located on third party websites. We do not approve of, endorse, or sponsor any content or Material on third party websites.
We make no warranties or representations that use of Material on third party websites to which this website is linked does not infringe the intellectual property rights of any person anywhere in the world.
We are not, and must not be taken to be, authorising infringement of any intellectual property rights contained in material on third party websites by linking to such Material or allowing such Material to link to this website.
11. LIMITATION OF LIABILITY
11.1. To the maximum extent permitted by law, and except as otherwise stipulated in these Conditions of Use, NTP Health Products will not accept liability to you for damages for loss of earnings or loss of profit, or for any indirect, special, or consequential loss or damage which may be suffered or incurred by you or which may arise directly or indirectly including in respect of:
a) the accessing, downloading, using or relying on any Material on this website or any material on a third party website;
b) personal injury (including sickness and death);
c) goods or services supplied pursuant to an order placed on this website; or
d) any failure or omission on our part to comply with our obligations as set out in these Conditions of Use,
whether caused by negligence of NTP Health Products or otherwise.
11.2. The liability of NTP Health Products for a breach of a condition or warranty implied by law and to which cannot be excluded, is limited, to the extent possible, at NTP Health Products option to:
a) the supply of the goods or services again; or
b) the repair of the goods; or
c) the payment of the cost of having the goods or services supplied again or repaired.
12.1. Any and all items purchased from this shopping cart or from NTP Health Product may attract custom duties and/or other fees in transit/upon reaching the final delivery address in that country of destination. Any taxes, duties or other fees imposed in the destination country will be the responsibility of the purchaser. Delays in shipping and/or receiving the purchased goods due to formalities in that country or due to unpaid duties, fees etc will NOT be the responsibility of NTP Health Products.
12.2. A request for Express Post delivery may be considered by arrangement, on the understanding that we accept no responsibility for any breakage, leakage or other damage that may occur during transit or on delivery; nor can we guarantee delivery will occur within the timeframe as described by the postal service.
12.3. Due to ongoing incidents of theft and fraud, we are unable to allow special instructions for delivery (including but not limited to "Please leave at door if nobody home"). Accordingly, ALL parcels MUST be signed for.
12.4. Please refer to our Shipping and Payments page for additional information. The information in this section also form part of our Terms and Conditions.
13. VIRUS WARNING
NTP Health Products does not represent or warrant that any files or other Material obtained from or through this website are free from computer viruses or other defects, including trojan hoses and worms. Any such files are provided, and may only be used, on the basis that the user of such files assumes all responsibility for any loss, damage or consequence resulting directly or indirectly from use of those files.
You agree to defend, indemnify and hold NTP Health Products, its directors, officers and employees, harmless from any and all liabilities, costs and expenses, including reasonable legal fees, related to any breach of these Conditions of Use by you, or (to the extent permitted by law) in connection with your use of this website or the placement or transmission of any Material on this website by you.
15. SECURITY OF INFORMATION
Unfortunately, no data transmission over the Internet can be guaranteed as totally secure. Whilst we strive to protect such information, we do not warrant and cannot ensure the security of any information which you transmit to us. Accordingly, any information which you transmit to us is transmitted at your own risk. Nevertheless, once we receive your transmission, we will take reasonable steps to preserve the security of such information.
NTP Health Products may, in its sole discretion, terminate or suspend your access to all or part of this website for any reason at any time without notice. In the event of termination, you are no longer authorised to access the website. All restrictions imposed by you, disclaimers and limitations or liability set out in the Conditions of Use will survive termination.
17. GOVERNING LAW
The Conditions of Use are governed by and construed in accordance with the laws of New South Wales, Australia. You irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New South Wales.
If any provision of the Conditions of Use is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the remainder of the Conditions of Use which will continue in full force and effect.
You consent to NTP Health Products using and disclosing your personal information for the purpose of contacting you, including but not limited to by telephone, email, SMS and MMS, for the purpose of offering you products and services or for other marketing purposes. Such consent is provided for an indefinite period, and may only be revoked by you contacting NTP Health Products and informing it that you no longer wish to receive such communications. NTP Health Products will not sell or provide your contact details to any other person/organisation except where such disclosure is necessary or required as we deem appropriate. Please refer to our Privacy Statement.
20. RETURNS POLICY
BEFORE READING THIS POLICY, please be sure that your product was purchased directly from us at NTP Health Products, and not from one of the many businesses around Australia that we distribute to. If you have purchased from a store (such as a health food store, gift store, pharmacy or similar) OR ANOTHER COMPANY'S WEBSITE, please contact them to discuss your issue.
20.1. Your rights under Australian Consumer Law
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonable foreseeable loss or damage. You are also entitle 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.
20.2. Returning Products to Us
ALL claims must be made within 5 days of receipt of delivery. Notification of the claim MUST be made to NTP Health Products. This can be done by contacting us on 02 4997 2530 or our tollfree number from landlines only 1800 22 55 00 (Australia only) or 02 4997 2530.
Products have a conditional 30 day money back guarantee.
For a full refund:
- on faulty goods, products are to be returned within 30 days of purchase. All returns must be accompanied by proof of purchase.
- if you've simply changed your mind or have made a wrong decision, goods are to be returned in their original and re-saleable condition (i.e. unopened and unused) within 30 days of purchase (Refer to Section 6).
Goods or Services will not be accepted for refund outside the 30 day period. All refunds will be credited by way of initial payment type (e.g. credit card) and refunds will be for the cost of goods only. Refunds for delivery expense will be offered should the product be faulty and you do not want the goods to be replaced. Any products that are not faulty and have been returned opened or used will be returned to the customer at their expense.
Products (except food items) can be returned after an authorisation has been given. Returning products to NTP Health Products is free within Australia.
To obtain a return authorisation or if you have any questions regarding this policy please call 02 4997 2530 or our tollfree number from landlines only 1800 22 55 00.
This guarantee is in addition to your statutory rights. Subject to change.
20.3 Returning Food
Food items cannot be returned unless specified.
HERB UK AUSTRALASIA TERMS AND CONDITIONS
CONDITIONS OF SALE OF HERB UK AUSTRALASIA PTY LTD
In these Conditions:
Acknowledgement of Order: means the Supplier’s written and signed acknowledgement, to which these Conditions are attached, of the Customer’s Order;
Conditions: are these terms and conditions of sale and any special terms and conditions on the face of the Acknowledgement of Order;
Contract: is the contract for the purchase and sale of the Products entered into between the Supplier and the Customer of which these Conditions and the Acknowledgement of Order form part;
Customer: is the person who places an order for the Products pursuant to the quotation of the Supplier and whose order for the Products is accepted by the Supplier;
Products: are the Products (including any instalment of the Products) which the Supplier is to supply;
Quotation: is the quotation given by the Supplier’s authorised representative.
Supplier: is Herb UK Australasia Pty Ltd, whose registered office is at Level 20, 68 Pitt Street, Sydney, NSW 2000, Australia.
1. BASIS OF THE SALE
1.1 All Products are sold subject to the Supplier‘s prior approval of the Customer’s credit and to the Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any Quotation is accepted or purported to be accepted, or any order is made or purported to be made, by the Customer.
1.2 No variation to these Conditions shall be binding unless agreed in writing by a director of the Supplier.
1.3 The Supplier's employees or agents are not authorised to make any representations concerning the Products unless confirmed by the Supplier in writing.
1.4 Any advice or recommendation given by the Supplier or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Products which is not confirmed in writing by the Supplier is followed or acted upon entirely at the Customer's own risk.
Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
2.1 The Supplier’s quotation shall be deemed to be an invitation to the Customer to make an offer to purchase the Products subject to the Conditions and such offer by the Customer shall not constitute a valid Contract until accepted by the Supplier’s authorised representative, which acceptance shall be conveyed to the Customer by service of an Acknowledgement of Order.
2.2 The quantity and description of and any specification for the Products shall be those set out in the Supplier's Quotation (if accepted by the Customer) or the Acknowledgement of Order. If there is any conflict between the provisions of the Quotation and those of the Acknowledgement of Order then the latter shall prevail.
3.1 The Products may, at the Customer’s option, be delivered by any one of the following methods:
(a) by collections from the works of the Supplier by the Customer, the Customer’s agent, or an independent contractor hired by the Customer;
(b) by delivery to the Supplier, the Supplier’s agent, or an independent contractor hired by the Supplier to a location reasonably designated by the Customer; or by any other method agreed in writing between the Supplier and the Customer.
3.2 The Customer warrants the details of any address for delivery stipulated by the Customer.
3.3 The Supplier shall use its best endeavours to ensure that the Products are delivered on or before the date specified on the Acknowledgement of Order, however any dates given for the delivery of the Products are approximate only and the Supplier shall not be liable for any loss, direct or indirect, which may arise from delay in delivery of the Products howsoever caused. Time for delivery shall not be of the essence.
3.4 The Products may be delivered in instalments. Each delivery shall constitute a separate contract and failure by the Supplier to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
3.5 If the Customer or other third party nominated by the Customer fails to take delivery of the Products within 14 days of being notified that the Products are ready for collection or delivery (as the case may be) or fails to give the Supplier adequate delivery instructions at the time stated for delivery or has requested a delay in delivery or the Customer is unable to give access to its premises for the purposes of delivery or installation then the Supplier may at the risk and expense of the Customer store the Products until actual delivery and charge the Customer for the costs (including insurance) of storage and redelivery; or sell the Products at the best price readily obtainable and (after deducting all storage, selling and other expenses) account to the Customer for the excess over sums owing by the Customer or charge the Customer for any shortfall. The date of the Products being put into storage shall be deemed to be the date of delivery and, unless the Products have already been paid for, the Customer shall be invoiced for the Products at that date. Once the Products are in storage, the Supplier will not have any obligation to take any further steps in relation to the Products, unless and until has received full written instruction from the Customer.
3.6 The Supplier shall not be liable in respect of any damage to the Products, discrepancy in the Customer’s order, shortage in the Products delivered, loss of the Products in transit or any claim that the Products delivered or collected do not otherwise comply with the Contract unless:
(a) a claim is made by the Customer in writing within 3 days of the date of delivery or collection (or if not delivered or collected within 7 days of the anticipated date of delivery or collection) and proof of damage occurring before delivery or collection (as the case may be) is established to the Supplier’s satisfaction. All Products and packaging must be retained and made available for inspection, by or on behalf of, the Supplier; and
(b) (where applicable) the Customer has complied and reasonably cooperated with the requirements of the carrier and of the insurer regarding damage, discrepancy, shortage or loss.
In no circumstances may the Products be returned to the Supplier by the Customer without the prior written consent of the Supplier.
Where Products are returned and no liability on the part of the Supplier under this Condition 3.6 or any warranty provision in these Conditions is found, a handling charge reasonably specified by the Supplier will, at the Supplier’s discretion, be either deducted from any credit allowed by the Supplier or be payable to the Supplier by the Customer upon demand.
3.7 Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of the Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of the Incoterms and these Conditions, the latter shall prevail.
4. PRICE & CANCELLATION
4.1 All prices are quoted subject to acceptance within any period specified and to any increase which may occur as a result of factors falling outside the control of the Supplier.
4.2 VAT and any other applicable customs or excise duties or taxes (where applicable) will be added to all invoices at the rate ruling at the date of despatch. Which will be added and shall be payable by the Customer in accordance with the law applicable from time to time against an appropriate invoice.
4.3 Quotations may be withdrawn at any time prior to Acknowledgement of Order.
4.4 No order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in writing of the Supplier and on terms that the Customer shall indemnify the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of cancellation.
5. PAYMENT AND INTEREST
5.1 Methods of Payment: The method of payment shall be at the sole discretion of the Supplier who shall notify the Customer in writing of the method to be adopted. The Supplier shall be under no obligation to deliver the Products where the Customer has failed to pay the full price for the Products without deduction or set off.
If the Supplier permits a period of credit payment shall be due within thirty days of the date of despatch of the Products unless a different period is agreed in writing by the parties. The Supplier shall at any time be entitled to bring an end to the granting of credit to the Customer where for example (without limitation) the Supplier is unable to obtain reasonable credit insurance which is cost effective to the Supplier. Whichever method of payment is adopted, time for payment shall be of the essence of the Contract and all payments shall be made in Pounds Sterling unless otherwise specified by the Supplier.
5.2 On the due date for payment the Customer shall pay to the Supplier 100% of the Price without any right of set-off, deduction, retention or withholding whatsoever.
5.3 Interest shall be payable by the Customer on any money which is not paid by it to the Supplier under the Contract by the due date for its payment (“the Due Date for Payment”). Such interest shall accrue and be calculated on a daily basis, both before and after any judgment and until the date on which it is actually paid., at a rate equivalent to the rate prevailing at the Due Date for Payment as prescribed by the Secretary of State pursuant to section 6 of The Late Payment of Commercial Debts (Interest) Act 1998. Interest shall be compounded quarterly and be payable on demand.
6. RETENTION OF TITLE AND RISK
6.1 The risk in the Products shall pass to the Customer on delivery. At that moment, the Customer shall become responsible for the care and protection of the Products and shall take out at its own expense adequate and comprehensive all risks cover on the Products (with a note of the Supplier’s interest endorsed therein until the Supplier has received payment of the price in full).
6.2 Notwithstanding delivery and the passing of risk in the Products, title in the Products (including full legal and beneficial ownership) shall not pass to the Customer until the Supplier has received (in cash or cleared funds) payment in full for all Products supplied by the Supplier to the Customer under all contracts between them. Payment of the full price for the Products shall include the amount of any interest or other sums payable under contracts between the Supplier and the Customer.
6.3 Until such time as the property in the Products passes to the Customer, the Customer shall hold the Products as the Supplier’s fiduciary agent and bailee, and shall keep the Products separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Supplier’s property. Until that time or until otherwise notified by the Supplier in writing or until the happening of any event set out in these Conditions entitling the Supplier to terminate this Contract the Customer shall be entitled to resell or use the Products in the ordinary course of its business, but shall account to the Supplier for the proceeds of the sale or otherwise of the Products, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
6.4 Until such time as the property in the Products passes to the Customer (and provided the Products are still in existence and have not been resold) the Supplier shall be entitled at any time to require the Customer to deliver up the Products to the Supplier and, if the Customer fails to do so forthwith, to enter upon any premises or vehicles of the Customer or any third party where the Products are stored and repossess the Products.
6.5 The Customer shall not be entitled to pledge or in any way charge by way of security for an indebtedness, any of the Products which remain the property of the Supplier.
7.1 The Supplier shall have the right immediately on notice (“Notice of Cancellation”) to the Customer to cancel or to suspend any further deliveries under the Contract or to terminate the Contract or any other contract with the Customer without any liability to the Customer and, if the Products have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary if:
7.1.1 the Customer informs the Supplier that it is unlikely or unable to make payment or threatens to suspend payments or fails to make any payment when due or breaches any provision of the Contract;
7.1.2 the Customer makes or threatens to make any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or an encumbrancer takes possession, or a receiver, administrative receiver or administrator or any similar official under any overseas jurisdiction is appointed in respect of the whole or any part of the assets of the Customer; or the Customer ceases, or threatens to cease, to carry on business, or suspends or threatens to suspend payment of its debts, or commences negotiations with any or all of its creditors with a view to rescheduling its debts, or a petition is filed, or a notice is given or a resolution is passed or an order is made for the winding up of the Customer (being a company); or the Supplier reasonably apprehends that any of these events is about to occur in relation to the Customer;
7.1.3 the Customer commits or is a party to dishonest or fraudulent conduct in relation to the Contract;
7.1.4 distress or execution being levied upon the Customer’s property or assets which is not discharged within 14 days.
7.2 The right of termination given by Condition 7.1 above shall be without prejudice to any other right or remedy of either party in respect of any breach committed under the terms of this Agreement, which are expressed to survive termination and any provisions of the Contract necessary for the interpretation or enforcement of the Contract.
7.3 If the Supplier serves a Notice of Cancellation to the Customer then the Supplier shall have the option to buy back at cost price any stock purchased and delivered to the Customer and which the Customer has paid for in full upon the Supplier giving to the Customer 14 days notice of its intention to do so. If no notice is given to the Customer then the Customer shall have a period of 3 months within which to dispose of any remaining stock in a manner which does not devalue the Products or the Intellectual Property Rights. Any unsold stock shall be returned without charge to the Supplier.
The Customer shall fully and effectively indemnify the Supplier against the total expense to the Supplier arising out of the Customer’s breach or breaches of these conditions of sale. Such expense shall include (without limitation) (1) all expenses incurred by the Supplier in sourcing and manufacturing the Products (2) all court fees (3) all amounts payable to the Supplier's professional advisers (payable on an indemnity basis) in pursuing claims against the Customer for breach or breaches of these conditions of sale and for enforcing any judgement/s and/or order/s (4) all amounts payable to the Supplier’s insurers and/or debt recovery agents, in each case including anticipated sums payable by the Supplier only after payment of any sums from the Customer.
9.1 Subject to fulfilment by the Customer of all the Conditions contained in this Condition 9 above the Supplier shall indemnify the Customer against any liability incurred by the Customer in respect of damage to the Customer’s property, death or personal injury arising from any fault or defect in the materials or workmanship of the Products and any reasonable costs, claims, demands and expenses arising out of or in connection with that liability (a “Relevant Claim”), except to the extent that the liability arises as a result of the action or omission of the Customer.
9.2 The Customer shall, immediately it becomes aware of a matter which may result in a Relevant Claim:
9.2.1 immediately give notice to the Supplier of the details of the matter;
9.2.2 afford access to the Supplier and permit copies to be taken of any materials, records or documents as the Supplier may require to take action under sub-clause 9.2.3;
9.2.3 allow the Supplier the exclusive conduct of any proceedings and/or take whatever action as the Supplier shall direct to defend or resist the matter, including the use of professional advisers nominated by the Supplier; and
9.2.4 not admit liability or settle the matter without the written consent of the Supplier.
9.3 The Customer undertakes to maintain appropriate up-to-date and accurate records to enable the immediate recall of any batches of the Products or any of them from the retail and/or wholesale markets. These records shall include records of deliveries to customers (including details of batch numbers, delivery date, name and address of customer, and telephone number and fax or telex number if available).
9.4 The Customer shall, at the Supplier’s cost, give such assistance as the Supplier shall require for the purpose of recalling as a matter of urgency any quantities of the Products or any of them from the retail and/or wholesale market.
9.5 The Supplier shall not be liable for any increased costs, expenses, economic loss, loss of profits, goodwill, business, contracts, revenues or anticipated savings or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) arising out of these Conditions or the supply of the Products generally even if such loss was reasonably foreseeable or the Supplier had been advised of the possibility of the Customer incurring the same. The Supplier does not attempt to limit liability for personal injury or death caused by its negligence or the negligence of its employees or agents.
9.6 For the avoidance of doubt the Supplier shall not be responsible for any claim, loss or damage which is caused by the Customer’s misuse or mishandling of the Products.
9.7 Subject to the provisions of the Unfair Contract Terms Act 1977, all warranties other than those expressly set out in this Agreement or the Supplier’s current Conditions of Sale, conditions, representations whether written or oral or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.8 To the extent the law does not permit the liabilities concerned to be excluded and save as otherwise expressly provided, the Supplier's entire aggregate liability for all claims shall be limited to damages of an amount equal to the price of Products in question.
9.9 The Customer accepts that the limitations and exclusions set out in the Agreement are reasonable having regard to all the circumstances including, without limitation, the price and that it has been given and has taken the opportunity to negotiate the Agreement.
10. CUSTOMER’ S OBLIGATIONS
10.1 The Customer shall be solely responsible for obtaining, paying for and complying with any necessary licences, approvals or consents of any government or other relevant authority, in respect of the Products including (without limitation) relating to its acquisition, importation, carriage or use of the Products (including where the Products are exported out of the UK), and shall produce evidence of the same to the Supplier upon demand. The Customer shall not be entitled to withhold or delay payment of the Price due to its failure to obtain such licences, approvals or consents. The Customer shall be responsible for the payment of any applicable customs duties and/or taxes on importation of the Product. The Customer shall indemnify the Supplier against all additional expenses or charges incurred by the Supplier resulting from such failure.
10.2 The Customer shall comply fully with all user instructions and safety recommendations issued by the Supplier in relation to the Products and the Supplier shall not be liable to the Customer as a result of the Customer failing fully to observe the provisions of this Condition, save where death or personal injury results from the negligence of the Supplier or its sub-contractors.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Ownership of Intellectual Property Rights: The Customer acknowledges that all intellectual property rights including (without limitation), copyright, moral rights, patents, registered design, formulas, design right, trademarks, know-how or other rights of a similar nature (“Intellectual Property Rights”) in the Products are and shall remain the sole property of the Supplier or such other party as may be identified therein or thereon, including those relating to any part of the Products manufactured by the Supplier in accordance with any instructions or specification of the Customer.
11.2 Customer to Indemnify Supplier: The Customer shall indemnify the Supplier at all times (both before and after the supply of the Products) against all claims, proceedings, actions, liabilities, losses, costs (including legal costs), expenses, penalties and damage of whatsoever nature brought against, suffered or incurred by the Supplier relating to any infringement or alleged infringement of any Intellectual Property Right, or other confidential information arising out of:
(a) the Supplier’s manufacture of, or carrying out of any other work in relation to, the Products in accordance with any instruction, specification, design, drawing or other data supplied by or on behalf of the Customer the supply of such Products to the Customer;
(b) the Customer’s use of the Products in any way except as permitted by this Contract.
11.3 Trade Marks: The Customer shall ensure that any trademarks of the Supplier or other words or marks affixed to or used in relation to the Products are not obliterated, obscured or omitted without the Supplier’s prior written consent. The Customer shall not add, affix or use any additional words or marks to or in relation to the Products without the Supplier’s prior written consent. The Customer shall not process or alter the Products with the Supplier’s prior written consent to the continued use on or in relation to the Products of any trade marks of the Supplier or any other words or marks affixed to or used in relation to the Products.
11.4 If the Supplier serves a Notice of Cancellation then:
11.4.1 any rights granted to the Customer to use the Intellectual Property Rights shall cease (provided that if the Supplier does not elect to buy back stock from the Customer in accordance with clause 7.3, then the Customer shall have a limited licence to use the Intellectual Property solely for the purpose of disposing of the stock within the 3 month period permitted by clause 7.3);
11.4.2 the Customer agrees not to manufacture, sell, distribute or to trade under the Intellectual Property Rights or under any other mark or symbol similar to the Intellectual Property Rights whether directly or indirectly through any connected businesses for a period of 5 years after the date of the Notice of Cancellation and the Customer agrees to indemnify the Supplier against all and any loss, cost (including legal costs), expense or damage which the Supplier may suffer and which may arise out of the Customer’s breach of this clause 11.4.
Save as otherwise permitted by the Contract, as required by law, as the same is or shall be in the public domain, is known by the Customer at the time of disclosure or is rightfully obtained by the Customer without restriction from third parties, the Customer shall keep strictly private and confidential all information and documentation disclosed by the Supplier to the Customer which relates to any drawings, designs, specifications or trade secrets of the Supplier (including without limitation the Supplier’s proprietary processes of manufacture, know how or methods of carrying on business) or which is designated by the Supplier as confidential and will not use, copy or disclose any of such information and documentation to any third party whatsoever.
13. FORCE MAJEURE
The Supplier shall (1) in any event not be liable for loss or damage and (2) be entitled to cancel or rescind the contract if the performance of its obligations under the contract is in any way adversely affected by any cause whatsoever beyond the Supplier’s control including (but not limited to) the delays or default of any sub-contractor, or caused by any act of God, war, strike, lock-out, trade dispute, hostility, riot, fire, explosion, flood, accident to plant or machinery, shortage of materials or labour sabotage, lack of adequate fuel, power, injunction, compliance with governmental laws, regulations or orders, breakage or failure of machinery or apparatus, or any other cause whether or not of the class or kind enumerated which affects performance of the Contract arising from or attributable to acts, events, non-happenings, omissions or accidents beyond the reasonable control of the Supplier
14.1 The Customer may not assign any of its rights under the Contract without the prior written consent of the Supplier. The Supplier may assign all or any of its rights under the Contract without any requirement to notify or obtain the further consent of the Customer.
14.2 No delay or failure by the Supplier in enforcing any provision of the Contract shall constitute a waiver of that provision or any other provision. No waiver by the Supplier of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision. No waiver by the Supplier shall be effective unless in writing.
14.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
14.4 These Conditions together with the Acknowledgement of Order constitute the entire agreement between the Supplier and the Customer concerning the supply of the Products and replace and supersede any prior arrangement, understanding, warranty or representation (other than any fraudulent misrepresentation).
14.5 Any notice, request, instruction or other document to be given hereunder shall be delivered, sent by first class post or facsimile to the address of the other party as set out in the Acknowledgement of Order (or such other address as may have been subsequently notified) and any such notice or other document shall be deemed to have been served, if delivered, at the time of delivery, if sent by first class post, upon the expiration of 48 hours after posting if the recipient of the notice is within the UK or 5 days if the recipient of the notice is outside the UK and if sent by facsimile shall be deemed to have been delivered upon transmission to the correct number provided such notice is confirmed within 48 hours by either delivery or posting a copy by first class post to the appropriate address.
14.6 Nothing in these Conditions shall confer on any third party any benefit or the right to enforce any term of these Conditions.
14.7 The parties agree that this Contract shall be constructed in accordance with Australian law and for the exclusive benefit of the Supplier that the Courts of New South Wales are to have the exclusive jurisdiction to settle any disputes which may arise in connection with this Contract; but the Customer agrees that the Supplier shall be entitled to bring proceedings in connection with this Contract in any other court of competent jurisdiction.