(a) These Terms apply to any Order for Goods placed with Sense2. These Terms take precedence over any terms and conditions contain in any of your documents (such as any terms and conditions in your standard purchase order) or elsewhere.
(b) These Terms commence on the date that you place an Order with us, and continue until terminated in accordance with clause 4.
2. ORDERS AND DELIVERY
(a) You must submit an Order to us either:
(i) By email to
sense2@sense2.com.au
or to our staff directly (using their Sense 2 email address); or
(ii) Through the Website.
(b) You acknowledge and agree that our Goods have minimum order quantities, which we display on our Website or otherwise will notify you of in writing or verbally. We may vary our minimum order quantities from time to time.
(c) When we accept an Order, we will send you an Order Confirmation. If there are any errors in the Order Confirmation you must notify us in writing at sense2@sense2.com.au, or to the Sense2 staff member you have been dealing with, within twenty four (24) hours.
(d) Notwithstanding that we may have accepted an Order, we may in our absolute discretion refuse to provide you Goods where:
(i) Goods are unavailable for any reason whatsoever; or
(ii) We have not received payment for Goods previously provided to you.
(e) We will use best endeavours to fulfil Orders by the dates requested by you, but time is not of the essence. The production times we make known to you are estimates only. We are not liable to you in any way for late delivery.
(f) Delivery of the Goods is Ex-works our warehouse or the particular place of manufacture (as applicable). We will arrange for transportation of the Goods to the delivery address you nominate in your Order, at your cost. The risk of loss of, or damage to, the Goods passes to you as soon as the Goods are picked up from our warehouse or particular place of manufacture (as applicable).
(g) An Order cannot be cancelled or varied at any time after you have approved the artwork proof for the Goods, without our prior written consent (such consent not unreasonably withheld).
(h) You must inspect the Goods on delivery, and if you fail advise us in writing of any fault or defect in Goods, or failure of Goods to accord with an Order within seven (7) days of delivery, you are deemed to have accepted the Goods. However, nothing in this clause affects or restricts your rights for any alleged failure of a guarantee under the Australian Consumer Law if that law applies to you.
(i) Where you advise use that Goods are defective or not in accordance with an Order under clause 2(h), and where we have conducted reasonable testing to verify your claim, then we will either collect the Goods and replace the Goods or provide a reimbursement or credit for the Goods. However, nothing in this clause affects or limits your rights for any alleged failure of a guarantee under the Australian Consumer Law if that law applies to you.
3. PRICE AND PAYMENT TERMS
(a) The price of the Goods payable by you for any Order is the price set out the Invoice, or where you are purchasing Goods through the Website then the price specified in your “cart” when you are completing your purchase.
(b) We may vary the prices displayed on our Website, or in our standard price list, from time to time.
(c) We offer a “Best Price Guarantee”, which means that if you show us evidence of an Australian competitor’s advertised price for an identical product, then once we verify the price is genuine, we will match the Australian competitor’s advertised price. This guarantee excludes:
(i) Competitors not operating and located in Australia;
(ii) Prices of manufacturers - we will only match prices of promotional material/merchandise resellers;
(iii) Clearance, seconds or refurbished lines, or display offers;
(iv) Advertising errors (either ours or competitors).
(d) If you are placing an Order on our Website, you have the option to pay for the full amount of the Order by credit card. Alternatively, you can confirm the Order and receive an Invoice.
(e) Payment of the Order must be in AUD, unless we otherwise permit you to pay in your local currency.
(f) Upon receiving an Invoice (whether through the Website or not), you must pay a deposit of 50% of the total Invoice amount. The deposit is refundable where we have agreed that you may cancel an Order, otherwise the deposit is non-refundable
(g) Prior to delivery of the Goods, you must pay to us the remaining amount of the relevant Invoice (Remaining Amount).
(h) We may, at our absolute discretion, permit you to pay the Remaining Amount within seven (7) days of delivery (or such other time period agreed to by us in writing). You agree to pay the Remaining Amount within the payment terms we grant you.
(i) Title to the Goods delivered to you remains with us, and will not pass to you, until you have fully paid for the Goods.
(j) Prices exclude Taxes. You are liable to pay any and all Taxes applying to an Order.
(k) Notwithstanding subclause (j), unless otherwise indicated the prices for Goods are exclusive of any GST imposed under the GST Law. Where GST is payable on a supply made by us under these Terms, we may charge you an additional amount equal to the GST payable on that supply.
(l) You may pay an Invoice by Electronic Funds Transfer to our nominated bank account, or by credit card. You acknowledge that credit card surcharges may apply.
4 ARTWORK AND PROOFS
(a) You acknowledge our following minimum standards for all graphic files (for your logo and branding) that you submit to us:
(i) Files must be vector EPS, PDF, or Adobe Illustrator AI files;
(ii) Resolution must be at minimum 300 dpi;
(iii) You must specify the relevant Pantone PMS colours (as applicable).
(b) We will send you an artwork proof for the Goods you ordered, for you to approve, prior to manufacture of the Goods. You must promptly reply to our request to approve an artwork proof. We will not be liable to you in any way for any artwork errors in the finished Goods delivered to you which have been manufactured in accordance with the artwork proof approved by you.
(c) If you do not submit your graphic files in accordance with our minimum standards and request our assistance in enhancing your graphic files to meet our standards, or otherwise request our assistance in modifying artwork, then we can offer you a facility to redraw the files and artwork for a fee (the amount of which we will advise you of, and you can choose whether to proceed). Any fees we charge will be added to your Invoice.
5 INTELLECTUAL PROPERTY
(a) You provide to us a non-exclusive, royalty free and world-wide licence to use any of the Intellectual Property you submit to us for the purpose of us supplying you the Goods ordered.
(b) You indemnify us and must keep us indemnified at all times, from and against all claims, proceedings, liabilities, loss, damages, cost (including legal costs on a full indemnity basis) and expenses, suffered or incurred by us, directly or indirectly, arising from or in connection with our use of the Intellectual Property you submit to us for the purpose of supplying the Goods, and our use breaching the Intellectual Property Rights of any third party.
6 TERMINATION
(a) Each of the following occurrences constitutes an Event of Default:
(i) A party breaches these Terms, and fails to remedy the breach within ten (10) Business Days of receiving a notice from the other party identifying the breach and requiring the breach to be remedied;
(ii) A party suffers an Insolvency Event.
(b) A party may terminate these Terms immediately, without notice, if an Event of Default occurs.
(c) On the occurrence of an Event of Default, in addition to the right of termination at clause 6(b), we may elect to terminate or suspend any or all Orders with you until such time as we are satisfied that you default has been remedied.
(d) Upon termination of these Terms, all Invoices for Goods (whether provided to you prior to or on the date of termination), become immediately due and payable.
7 LIMITATION OF LIABILITY
(a) Nothing in these Terms is intended to exclude, restrict or modify any guarantees under the Australian Consumer Law which apply and cannot be excluded, restricted or modified. Otherwise, all terms, conditions, warranties and representations, express or implied by statute or otherwise are excluded.
(b) To the extent permitted under the Australian Consumer Law (if the Australian Consumer Law applies), our liability for a breach of any guarantee or warranty imposed under the Australian Consumer Law or otherwise in respect of a breach of any other guarantee or warranty imposed by statute or common law in any jurisdiction which cannot be excluded, is limited at our election to:
(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; and
(iv) the payment of the cost of having the Goods repaired.
(c) To the maximum extent permitted by law, including the Australian Consumer Law (if the Australian Consumer Law applies), we will not be liable to you for any indirect, punitive, incidental, special or consequential damages including, without limitation, damages for loss of use, data, profits or revenue, arising as a result, directly or indirectly, or in any way connected with the provision of or failure to provide Goods, whether based on these Terms, negligence, statue or otherwise.
8 FORCE MAJEURE
(a) We will not be liable for any loss, damages, cost or expense arising from any failure of or delay in performance of our obligations under these Terms, where the failure is wholly or substantially due to a Force Majeure Event, provided that as soon as reasonably practical, we notify you in writing the details of the Force Majeure Event and the extent to which we are unable to perform our obligations.
(b) Where the Force Majeure Event prevents us from performing a material obligation under these Terms for a period in excess of 30 days, then either party may by notice terminate these Terms, which will be effective immediately unless otherwise stated in the notice.
9 GENERAL
9.1 International Arbitration
If you are a customer in a jurisdiction other than Australia, then any dispute, controversy or claim arising out of or relating to these Terms, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules for the time being in force. The appointing authority shall be the Australian Centre for International Commercial Arbitration. The number of arbitrators shall be one (1). The place of arbitration shall be Sydney, Australia. The language to be used in the arbitral proceedings shall be English.
9.2 Entire Agreement
These Terms, Invoices and Order Confirmations, and variations pursuant to clause 9.3, represent the whole agreement between the parties relating to the subject matter of these terms.
9.3 Amendment
No variation or waiver of, or any consent to any departure by a party from, a provision of these Terms is of any force or effect unless it is confirmed in writing signed by the parties.
9.4 Assignment and Agency
(a) We may at any time appoint or engage an agent or subcontractor to perform any of our obligations under these Terms.
(b) You cannot assign any of your obligations or rights under these Terms without our prior written consent.
9.5 Severance
If any provision of these Terms at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect
9.6 Governing law and jurisdiction
These Terms is governed by, and is to be construed in accordance with, the laws of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any court hearing appeals from those courts (subject to clause 9.1). The United Nations Convention on Contracts for the International Sale of Goods is excluded from these Terms.
9.7 Notices
A notice or other communication connected with these Terms has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this Terms or in any Invoice, or sent by email or fax to the email the addressee as set out in these Terms or in any Invoice. Our email address is sense2@sense2.com.au.
10. DEFINITIONS AND INTERPRETATION
10.1 Definitions
Unless otherwise defined in these Terms, the following capitalised words are defined as follows:
(a) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth);
(b) Business Day means any day which is not Saturday, Sunday or a public holiday in New South Wales;
(c) Claims means actions, suits, causes of action, arbitrations, debts, dues, costs, claims, demands, verdicts, orders and judgments either at law or in equity or arising under a statute;
(d) Event of Default means an event of default set out in clause 6(a);
(e) Force Majeure Event means any event beyond the reasonable control of Sense2, in consequence of which Sense2 cannot reasonably be required to perform its obligations under these Terms including but not limited to unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, acts of hostility, terrorist activity, national emergency, Government action, transport difficulties and failures or malfunctions of computers or other information technology systems;
(f) Goods means any goods offered by Sense2 and ordered by you;
(g) GST has the same meaning given to the term in the GST Law;
(h) GST Law means A New Tax System (Goods & Services Tax) Act 1999 (Cth),;
(i) Insolvency Event means the occurrence of any one or more of the following events in relation to a party:
(i) a party enters into any composition or arrangement with its creditors or has a receiver, administrator or liquidator appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of amalgamation or reconstruction), or is declared bankrupt; or
(ii) anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraph of this definition.
(j) Intellectual Property means all copyright, designs, trade mark, trade secrets, know-how, patents, invention and discoveries;
(k) Intellectual Property Rights means all rights in the Intellectual Property, including current and future registered and unregistered rights conferred by statute, common law or equity;
(l) Invoice means a valid tax invoice in respect of an Order, which specifies the price payable for the Goods, any applicable GST and any applicable delivery or freight charges;
(m) Loss means, in relation to any person, any damage, loss, cost (including legal costs), expense or liability incurred by the person or any claim, action, proceeding or investigation made against the person however arising and whether present or future, fixed or unascertained, actual or contingent;
(n) Order means an order placed by you with Sense2 for Goods;
(o) Tax means all taxes, duties, customs duties, excise duties, import taxes, tariffs, stamp duty, indirect taxes, value added tax, and goods and services tax;
(p) Terms means these Terms and Conditions of Sale.
(q) we, us or our or Sense2 is a reference to Sense2 Pty Limited (ACN 098 740 777); and
(r) Website means the Sense2 websites located at www.sense2.com.au, www.sense2.de, www.jp.sense2.com, www.sense2.com, and www.sense2.co.nz;
(s) you or your is a reference to the customer that is ordering Goods from Sense2.
10.2 Interpretation
In the construction of these Terms:
(a) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(b) the word person includes a firm, a body corporate, an unincorporated association or an authority;
(c) a reference to a day, month and year means a calendar day, month and year;
(d) a reference to dollars, AUD or $ is to an amount in Australian currency; and
(e) Headings are for convenience of reference only and do not affect the interpretation of these Terms.
