TERMS OF TRADE

1. Introduction

These Terms of Trade (Terms) have been prepared by Montas Pty Ltd (Australian Business Number 29 650 576 597) trading as ‘Australian Pitching Development’ (we, us and our) of 18B Beckenham Street, Beckenham, Western Australia 6107. To contact us, please email us at info@australianpitchingdevelopment.com.au.

2. Application of Terms

2.1 These Terms apply to the order by you and supply of products or goods (Goods), to the performance/supply of services (Services), or both by us to you (Contract), to the exclusion of any other terms put forward by you. 

2.2 All other terms which would otherwise be implied by trade, custom, practice or course of dealing into the Contract are excluded to the maximum extent permitted by law.

2.3 The Contract is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.

3. Ordering

3.1 Orders for Goods or Services (Order) must be placed through the Site using the onscreen prompts.  

3.2 Each Order is an offer by you to buy the Goods or Services specified in the Order, on and subject to these Terms.

3.3 The Order process allows you to check and amend any errors before submitting your Order to us. Please check the Order carefully before confirming it. You are responsible for ensuring that your Order and any specification submitted by you is complete and accurate.

3.4 After you place your Order, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your Order has been accepted.  Our acceptance of your Order will take place as described in clause 3.5.

3.5 Our acceptance of your Order takes place when we send an email to you to accept it (Order Confirmation), at which point and on which date (Commencement Date) the Contract between you and us will come into existence.  The Contract will relate only to those Goods and Services confirmed in the Order Confirmation.

3.6 If we are unable to supply you with the Goods or Services requested in your Order for any reason, we will inform you of this by email and we will not process your Order. If you have already paid for the Goods or Services, we will refund you the full amount.

4. Cancellations and Refunds

4.1 You may cancel the Contract and receive a refund, if you notify us in accordance with clause 4.2 within 3 business days of the date of the Order Confirmation. However, you cannot cancel the Contract once we have delivered/dispatched the Goods to you or completed the Services, even if the 3 business days period is still running.

4.2 To cancel the Contract, you must complete the cancellation form on the Site OR you must complete the cancellation form and return it to us by email using the contact details in clause 1. A link to the cancellation form will be included in our Order Confirmation. We will email you to confirm we have received your cancellation. Your cancellation is effective from the date you send us cancellation form. Cancellation forms must not be submitted by post or in person. 

4.3 If you cancel the Contract, we will pay any refund by the method you used for payment. We may deduct from any refund an amount for any Goods or Services supplied up to the time when you give notice of cancellation in accordance with clause 4.2. Where the cancelled Contract relates to Services, the amount we deduct will reflect the Services that have been supplied as a proportion of the entirety of the Contract. 

5. Supply of Goods

5.1 Any descriptions, photographs or illustrations of Goods on the Site are published for the sole purpose of giving an approximate idea of the Goods described in them.

5.2 We will supply the Goods to you in accordance with the specification for the Goods appearing on the Site at the date of your Order in all material respects.

5.3 We warrant to you that the Goods will be new (unless expressly advertised as being second hand), free from material defects, and of merchantable quality.  We also warrant that we have the right to sell and transfer title in the Goods to you.

5.4 We will use all reasonable endeavours to arrange delivery of the Goods to you at the delivery location requested by you in your Order (Delivery Location). We may engage third party couriers to effect delivery of the Goods. We will use all reasonable endeavours to meet any delivery dates specified in the Order Confirmation, but any such dates are estimates only and we do give any assurance that they will be met. Failure to deliver the Goods by such dates will not give you the right to terminate the Contract or make any claim for loss, damages or costs. 

5.5 You must ensure that you are able to take delivery of Goods at the Delivery Location without undue delay and at any time reasonably specified by us. Our couriers may contact you via SMS prior to delivery to provide you with different delivery options, including giving ‘authority to leave’ the item at the Delivery Location, or have delivery re-routed to a collection point. Alternatively, the courier may leave a card requesting your instructions on either re-delivery or collection from the carrier or a collection point.  

5.6 In any event, you authorise us and our couriers to leave Goods at the Delivery Location. If the courier deems the Delivery Location unsafe in their discretion, the Goods will be redirected to a collection point, redelivered in the next delivery run (where available) or returned back to us.  If delivery or collection is delayed through your unreasonable refusal to accept delivery or if you do not (within two weeks of our first attempt to deliver the Goods to you) accept delivery or collect the Goods from the courier, then we may (without affecting any other right or remedy available to us) do either or both of the following:

(a) charge you for our reasonable storage fees and other costs reasonably incurred by us; or

(b) no longer make the Goods available for delivery or collection, and notify you that we are cancelling the applicable Contract, in which case we will refund to you any money paid to us (subject to clause 4), less our reasonable administration charges (including for attempting to deliver and then returning the Goods, and any storage fees and other costs).

5.7 It may not be possible for us to deliver to some locations. If we are unable to deliver to the Delivery Location which you nominate, we will inform you on Site, or alternatively use the contact details that you provide to us when you make your Order and arrange for cancellation of the Order or delivery to an alternative delivery address.

5.8 All risk in Goods passes to you upon delivery. If delivery is delayed, risk passes at the date when delivery would have occurred.  From the time when risk passes to you, we will not be liable for loss or destruction of the Goods.

5.9 Ownership and title in Goods remains with us until the later of the time that risk in those Goods passes under clause 5.8, and the time payment for those Goods is received by us in full.

5.10 We are not required to supply any Goods if and for so long as you are in breach of your obligations under the Contract. In such case, we will not be responsible for any losses, damages or costs you sustain or incur arising directly or indirectly from our failure or delay in supplying the Goods. Further, it will be your responsibility to reimburse us on written demand for any losses, damages or costs we sustain or incur arising directly or indirectly from your breach.

6. Supply of Services

6.1 Any descriptions, photographs or illustrations of Services on the Site are published for the sole purpose of giving an approximate idea of the Services described in them.

6.2 We will supply the Services to you in accordance with the specification for the Services appearing on the Site at the date of your Order in all material respects.

6.3 We warrant to you that the Services will be provided using reasonable care and skill.

6.4 We will use all reasonable endeavours to meet any performance dates specified in the Order Confirmation, but any such dates are estimates only and we do give any assurance that they will be met.  Failure to perform the Services by such dates will not give you the right to terminate the Contract or make any claim for loss, damages or costs. 

6.5 We are not required to perform the Services if and for so long as you are in breach of your obligations under the Contract.  In such case, we will not be responsible for any losses, damages or costs you sustain or incur arising directly or indirectly from our failure or delay in performing the Services.  Further, it will be your responsibility to reimburse us on written demand for any losses, damages or costs we sustain or incur arising directly or indirectly from your breach.

6.6 We will only perform any Services in person at addresses in Australia.

7. Your Obligations

It is your responsibility to ensure that:

(a) the terms of your Order are complete and accurate;

(b) you cooperate with us in all matters relating to the Goods and/or Services; 

(c)  you provide us with such information and materials we may reasonably require in order to supply the Goods and/or Services, and ensure that such information is complete and accurate in all material respects;

(d) you obtain and maintain all necessary licences, permissions and consents which may be required for the Goods and/or Services before the date on which the Goods and/or Services are to be provided;

(e) you comply with all applicable laws, including health and safety laws.

8. Prices and Fees

8.1 In consideration of us agreeing to supply Goods or Services, you must pay the applicable prices or fees for the same (Charges), calculated in accordance with this clause 8.

8.2 The Charges for Goods are the prices for those Goods quoted on the Site at the time you submit your Order. The Charges for Services are the fees for those Services quoted on the Site at the time you submit your Order.

8.3 Our Charges are inclusive of goods and services tax (GST), unless expressly stated otherwise.  

8.4 You will be responsible for the cost of delivering Goods to you, including insurance costs. We may include delivery costs in our Charges, in addition to the price of the Goods. 

9. Payment

9.1 You must pay our Charges for Goods and Services in advance.  Our obligation to supply the Goods or Services will be conditional upon receipt of such Charges. 

9.2 You can pay our Charges using a debit card or credit card. We accept Visa and MasterCard. You may also make payment of our Charges by direct debit.  

9.3 Your debt card, credit card or nominated bank account will be charged when your Order is accepted by us.

9.4 We will send you an electronic tax invoice within 5 business days of payment being received.  

9.5 For any failed, dishonoured or cancelled payments, we may charge you an administration fee of up to $20.

10. Intellectual Property Rights

10.1 All intellectual property rights in or arising out of or in connection with the Goods, the Services or both (other than intellectual property rights in any materials provided by you) will be owned by us.

10.2 You agree to grant us a non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the term of the Contract for the purpose of supplying the Goods and/or the Services to you.

11. Privacy

11.1 We will use any personal information you provide to us to:

(a) supply the Goods and/or Services;

(b) process your payment for Goods and/or Services; and

(c) inform you about similar products or services that we provide, but you may stop receiving this information at any time by contacting us.

Further details of how we may collect, hold, handle, use, disclose, process, transfer, access, destroy and otherwise deal with personal information are set out in our Privacy Policy, a copy of which may be obtained using the following link: www.australianpitchingdevelopment.com.au/privacypolicy.

12. Limitation of Liability

12.1 Nothing in the Contract limits or excludes our liability:

(a) for death or personal injury caused by its negligence or wilful misconduct or that of its employees, as applicable;

(b)  for fraud or fraudulent misrepresentation by us; or

(c)  where liability cannot be limited or excluded by applicable law.

12.2 Subject to clause 12.1, we will not be liable to you, whether in contract, tort (including negligence), statute, or otherwise, for any special, indirect or consequential loss arising under or in connection with the Contract, including any loss of profits, loss of sales or business, loss of production, loss of agreements or contracts, loss of business opportunity, loss of anticipated savings, loss of or damage to goodwill, damage to reputation, or loss of use or corruption of software, data or information.

12.3 Subject to clause 12.2, our maximum aggregate liability to you for any loss or damage or injury arising out of or in connection with the Contract, including any breach by us of the Contract however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the amount of $10,000.  

12.4 Nothing in the Contract is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services (Consumer Guarantee).

12.5 If we are liable to you in relation to a failure to comply with a Consumer Guarantee that cannot be excluded by contract, our total liability to you for that failure is limited to, at our option: 

(a) if the failure relates to goods, replacement or repaid of the goods, supplying equivalent goods, or paying the costs of replacing, repairing, procuring or hiring equivalent goods; or

(b) if the failure relates to services, repair or reperforming the services, supplying equivalent services, or paying the costs of repairing, reperforming or procuring equivalent services.

12.6 Without limiting this clause 12, for the purpose of section 102(1) of the ACL, we provide the following warranty where you are a “consumer” under the ACL:

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 compensation for any other reasonably foreseeable loss or damage. You 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.

12.7 Nothing in the Contract limits or affects the exclusions and limitations set out in our Website Terms of Use which can be found using the following link: www.australianpitchingdevelopment.com.au/websitetermsofuse

12.8 This clause 12 will survive termination of the Contract.

13. Termination

13.1 Without affecting any of our other rights, we may suspend the supply of Goods or Services, or terminate the Contract with immediate effect by giving written notice to that effect. Termination of the Contract does not give you any right to claim for loss, damages or costs in relation to the same. 

13.2 Termination of the Contract does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages for any breach of the Contract that existed at or before the date of termination.

13.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.

14. Force majeure

We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control, including:

(a) act of God, unusually severe weather (including a cyclone/hurricane), earthquake, fire, subsidence, land slide, mud slide, wash-out, explosion, radioactive contamination or natural disaster; 

(b) terrorism, insurrection, revolution or civil disorder, act of public enemies, malicious damage, sabotage, vandalism, war (whether declared or undeclared) or a military operation, blockade or riot; 

(c)  any failure, delay or suspension by any third party supplier of the supply in whole or in part of electricity, equipment, internet service, telecommunications services or materials to us; 

(d)  adverse application of any law or enforcement actions of any court or governmental agency; or

(e)  industrial dispute of any kind, strike, lock-out, ban, limitation or other industrial disturbances.

15. General Provisions
15.1 Governing law

These Terms, their subject matter and their formation, are governed by the laws applicable in the State of Western Australia.  You agree that the courts of that State, as well as the courts of the Commonwealth of Australia, sitting in Perth, Western Australia will have exclusive jurisdiction for all matters related to these Terms and the Site.

15.2 Variation

We reserve the right to review and amend these Terms at any time at our absolute discretion. We will notify you of any amendment to these Terms and such amendment will only apply to any future Orders.

15.3 Severability

(a) If any provision of these Terms is invalid, illegal or unenforceable, that provision must be severed from and ignored in the interpretation of these Terms to the minimum extent necessary and to the intent that the remaining provisions remain in full force and effect.  

(b) If a provision is severed due to it being unenforceable against you (including due to your age or lack of legal capacity) but is or may be enforceable against other persons, that provision will be severed in respect of you and will remain in full force in respect of those other persons.  

 

15.4 Assignment

(a) You must obtain our prior written consent before you assign, transfer, licence or otherwise dispose of a right or obligation under these Terms, and any purported assignment, transfer, licence or other disposal contrary to this clause is void.

(b) We assign or novate any rights or obligations to a third party by giving you written notice to that effect.  Your consent is not required for such assignment or novation.

15.5 Notices and communications 

(a) We may provide communications (including notices, consents, approvals, requests, demands and tax invoices) to you using internal messaging or communication function through the Site, or by pre-paid post, email or hand delivery using the contact information (including SMS) that you provide to us from time to time.

(b) You must provide communications (including notices, consents, approvals, requests and demands) to us using the contact details in clause 1 of these Terms.

(c) Each communication:

(i)must be in the English language;

(ii)if sent through any internal messaging or communication function through the Site, is taken to be received immediately; 

(iii)if sent by email, is taken to be received at the time it is delivered to the recipient party’s host server; 

(iv)if sent by post to a party in the same country as the sender, is taken to be delivered on the 3rd business day after posting; and

(v)if sent by post to a party in a different country as the sender, is taken to be delivered on the 7th business day after posting.

(d) Notwithstanding the above, if a communication is taken to be received on a day that is not a business day or after 5.00pm in the place where the communication is received, it will be taken to be received at 9.00am on the next business day.

16. Interpretation

In these Terms, headings are for convenience only and do not affect interpretation, and unless the context otherwise requires:

(a) a reference to a “party” or to “parties” is a reference to you, to us or to both, as the context requires;

(b) a reference to “you” or “your” is a reference to a user of the Site, including a Member;

(c) if a word or phrase is defined, then its other grammatical forms have a corresponding meaning;

(d) the singular includes the plural, and vice versa;

(e) a reference to a gender includes any gender;

(f)  a reference to an inanimate thing includes a living thing, and vice versa;

(g) the word “including” and similar words are not words of limitation;

(h)  a reference to a statute includes its subordinate legislation, proclamations, ordinances and a modification, replacement or re-enactment of the same; 

(i)  a reference to person, includes a reference to:

(i) an individual, a body corporate, a trust, a partnership, a joint venture an unincorporated body or other entity, whether or not it is a separate legal entity; and

(ii) the person’s personal representatives, successors and assigns (as applicable);

(j)  a term, condition or warranty in favour of or on the part of two or more people, benefits or binds them jointly and severally;

(k) a reference to currency is to Australian dollars;

(l)  a reference to time is to the time in Perth, Western Australia;

(m)  a reference to a “business day” is a reference to a day other than a Saturday, Sunday or public holiday in Western Australia;

(n)  if the date on which an act, matter or thing must be done or take place is not a business day, then that act, matter or thing must be done or take place on the next business day;

(o)  if a period of time runs from a given date, act or event, then the time is calculated exclusive of the date, act or event;

(p)  a clause must not be construed adversely to a party solely on the ground that the party was responsible for the preparing these Terms or that clause;

(q)  a reference to “writing” or “written” includes any electronic transmission or communication by facsimile; and

(r)   a reference to a right includes a benefit, remedy, discretion or power.

 

17. Version

These Terms were most recently updated on 5th December 2021.