Last updated: 23 April 2020
These Terms of Sale (“Terms of Sale”) cover your purchase of the products (“Goods”) provided by us, The Peak Group Pty Ltd, trading as Safearth (“Safearth”). Safearth is a registered trademark and business name of The Peak Group Pty Ltd. Your use of our website and store is covered by our Terms of Service (www.safearth.com/terms-of-service).
By visiting our site and/or purchasing something from us, you engage in our “Service” and agree to be bound by these Terms of Sale and also those additional terms and conditions and policies referenced herein and/or available by hyperlink, including the Terms and Conditions of Trade below. These Terms of Sale apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.
We reserve the right to update, change or replace any part of these Terms of Sale by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
Payments must be made via credit card at the checkout. A fee may be applicable and is indicated at the time of payment. Some types of credit card may not be accepted (e.g. American Express, Diners, JCB). Payments must be made before the order can be processed. Credit card information is not stored by us, and is only shared with our payment processor. Credit card information is always encrypted during transfer over networks.
If we have agreed to credit terms with you, we may allow, at our discretion, payment by purchase order. In these cases, orders can be placed at checkout, but will not be processed until a valid purchase order has been received.
Cancellations and Returns
Provided goods have not shipped, we will generally accept your request to cancel an order. In some cases, for example, where goods are made to order, or where other costs have already been incurred by Safearth, a cancellation may not be possible. All cancellations will be at the discretion of Safearth alone. Where an order is cancelled, a refund payment will be made via the same credit card, typically within 7 days. This refund will be subject to any fees charged by our payment processor.
Returns are generally not accepted other than for repair or replacement as detailed in the Terms and Conditions of Trade below.
Products are typically shipped via Australia Post and depending on your location, you may have the option to select regular or express shipping at the checkout.
Products that are in stock are typically shipped within 3 business days. Shipping typically takes less than 1 week within Australia, depending on your location, but is dependent on the shipping carrier.
At checkout, you have the option of arranging your own shipping. In these cases, you need to make all arrangements for your selected carrier to collect your order from our Warners Bay office at a time that we agree to.
Pricing and other product information made available on our site are made available to you alone. You may not share pricing or other product information with any third party without our written permission.
We reserve the right to refuse service to anyone for any reason at any time.
Prices for our products are subject to change without notice. We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
Terms and Conditions of Trade
Last updated: April 2014
1.1 These Terms apply to all supplies of Goods by Safearth to You, subject to any terms Safearth specifically agrees with You in writing, or unless qualified in an Order.
2 PERFORMANCE AND DELIVERY
2.1 You may request Safearth to provide You with Goods. Your request is an offer to purchase the Goods on these Terms. Safearth may accept Your offer by creating an Order or by delivering or supplying the Goods. Safearth may accept Your offer in whole or in part.
2.2 Safearth will deliver Goods to the address specified in the Order. Safearth will use reasonable endeavours to deliver the Goods by any delivery date stated in the Order but does not guarantee that it will do so.
2.3 You must not return any Goods to Safearth without obtaining Safearth’s written consent or a return authorisation number from Safearth.
2.4 Safearth is not liable for any loss or damage to Goods in transit. But if any Goods are lost or damaged in transit, Safearth may in its absolute discretion assist You to press a Claim on the carrier, replace the Goods or give You a credit for the Goods.
3 CHARGES AND PAYMENT
3.1 Unless Safearth has agreed to credit terms with You, You must pay Safearth all Charges, freight, Taxes and other amounts for the supply and delivery of a Goods to You in cash or other immediately available funds on ordering the Goods without set-off, counter-claim or demand in Australian dollars and otherwise as Safearth directs.
3.2 Notwithstanding any direction You may make regarding payment, unless otherwise expressly agreed in writing, Safearth will allocate amounts received from You in the following order: Firstly, in or towards payment of any part of the Charges which is not part of the purchase price of any Goods, in the order in which those amounts were incurred; and secondly, in or towards payment of the purchase price of Goods in the order in which those Goods were invoiced.
4 TITLE AND RISK
4.1 Risk in the Goods passes to You once the Goods leave Safearth’s premises. Title in the Goods only passes to You once You have paid the Charges plus any interest applicable to the Charges for all Goods supplied to You by Safearth. Until title passes to You, You hold the Goods as bailee and fiduciary for Safearth and You must store the Goods in a manner which makes it clear that they are the property of Safearth.
4.2 You must not sell, rent, transfer, distribute or otherwise supply the Goods to any third party; unless You have first offered to sell the Goods to Safearth. If we reject Your offer You may sell, rent, transfer, distribute or otherwise supply the Goods to a third party on terms that are no more favourable to the third party than the terms that were offered to Safearth.
4.3 Until such time as you have complied with clause 4.2, You must not combine, incorporate, manufacture or transform the Goods with or into other products.
4.4 If You breach clause 4.2, an amount of $50,000 plus any proceeds You receive as a result of the breach will be immediately due and payable by You to Safearth as liquidated damages.
4.5 In order to secure the performance of Your obligations under these Terms, including without limitation clause 4.2, You grant Safearth a security interest over the Goods.
5 Use of the Goods
5.1 The Goods are designed and intended for commercial and industrial use only, and You must not use the Goods for personal, domestic or household use.
5.2 You must use and maintain the Goods strictly in accordance with Safearth’s instructions and directions for use.
6 SAFEARTH’S LIABILITY
6.1 If You are a Consumer under the ACL in respect of the supply of Goods, then these Terms are subject to Your non-excludable rights under the ACL.
6.2 Subject to clause 6.1 and except as expressly provided in these Terms, an Order or an applicable express warranty against defects, Safearth and its Associates exclude all conditions or warranties (implied or otherwise) from the supply of the Goods to the extent permitted by law. Where such a condition or warranty cannot be excluded, the liability of Safearth for any breach of such a condition or warranty is limited, at Safearth’s option, to the re-supply of the relevant Goods to You or the repair of the relevant Goods.
6.3 Safearth is not liable to You (or any person claiming through You) for any liability, cost or loss You incur, arising directly or indirectly out of any act or omission of Safearth or Safearth’s Associates, whether negligent or not, or use of the Goods.
7 YOUR LIABILITY
7.1 You warrant when deciding to enter into an Order, You have not relied on any written or oral representation made by Safearth which has not been stated expressly in these Terms or in the Order.
7.2 You indemnify and hold each of Safearth and its Associates harmless against any liability, cost or loss (including legal costs on a solicitor-client basis and consequential loss) incurred by Safearth or any of its Associates arising from Your breach of these Terms or an Order, and from any Claim against Safearth or any of Safearth’s Associates by any third party, including Your customers and Associates, in connection with the Goods.
8 SECURITY AND PPSA
8.1 These Terms provide for Security Interests in all Goods supplied to You and Safearth may register one or more Financing Statements in respect of such Security Interests.
8.2 The Security Interests in the Goods secure payment of the all monies owed by You to Safearth at any point in time and extend to all Proceeds of the Goods and are Purchase Money Security Interests to the extent which they secure payment of that part of the Charges which comprises the aggregate unpaid purchase price of the Goods.
8.3 You must do anything which Safearth reasonably considers necessary to ensure its Security Interests are at all times enforceable, perfected and otherwise effective.
8.4 You must give Safearth prior written notice of any change to Your name or business that would require lodgement of a Financing Change Statement on the PPSA register.
8.5 You waive the right to receive a copy of any Verification Statement under section 157 of the PPSA and, to the extent permitted by law, You contract out of Your rights to receive any other notice or statement under any other provision of the PPSA (including for the avoidance of doubt, any of the provisions specified in clause 8.7).
8.6 To the extent permitted by the PPSA, the Parties agree to contract out of sections 95, 117, 118, 120, 121(4), 125, 126(2), 129(2), 129(3), 130, 132(3)(d), 132(4), 135, 142 and 143, and any other provisions of the PPSA which may be excluded in Safearth’s discretion and which would otherwise confer rights on You.
8.7 You must pay all costs and expenses incurred by Safearth in connection with registering, maintaining or releasing any Security Interest in connection with these Terms.
9 Intellectual property
9.1 Safearth owns all intellectual property rights (including without limitation copyright, patent, design, trademarks and confidential information) in the Goods and no transfer of any such rights to You occurs as a result of the supply of Goods.
9.2 You must not do or permit any act or thing which might in any way impair, damage or prejudice Safearth’s intellectual property rights or goodwill – including seeking to reverse engineer the Goods or any part of the Goods.
10.1 Safearth’ may terminate an Order immediately by notice in writing if to You if You:
(a) are in breach of Your payment obligations as set out in clause 3;
(b) breach these Terms or an Order, and the breach is not remedied within 14 days of Safearth giving You notice to rectify the breach;
(c) commit an Act of Insolvency; or
(d) cease or threaten to cease conducting Your business in the normal manner.
10.2 If Safearth terminates an Order, Safearth may at its option:
(a) suspend the supply of further Goods and Safearth will not be liable to You for such suspension;
(b) terminate any other Order in accordance with this clause;
(c) enter the Premises to re-possess any Goods in respect of which title has not yet passed to You and for this purpose You grant Safearth an irrevocable licence to enter the Premises;
(d) may seize, retain and dispose of the Goods in any way permitted under the PPSA, including disposal by way of lease, and may claim from You any loss incurred by Safearth due to such disposal.
11.1 You may not vary these Terms or an Order without Safearth’s written consent. Safearth may vary these terms on 30 days written notice to You.
12.1 These Terms and all Orders are governed by the law of New South Wales. The Parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any court hearing appeals from those courts. The United Nations Convention on Contracts for the International Sale of Goods and the Sale of Goods (Vienna Convention) Act 1986 (NSW) are excluded from these Terms and all Orders.
13.1 Safearth can assign these Terms without Your consent. You may not assign these Terms without Safearth’s consent.
14 LIABILITY OF PARTIES
14.1 If a Party consists of more than one person then the liability of those persons in all respects under these terms is a joint liability of all those persons and a separate liability of each of those persons.
15.1 In these Terms, unless the contrary intention appears, words in italics are defined as follows:
|ACL||means the Australian Consumer Law which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth);|
|Act of Insolvency||means becoming subject to external administration within the meaning of Chapter 5 of the Corporations Act 2001 Cth, having an application for bankruptcy made against You, or You entering into a composition or arrangement with Your creditors generally.|
|Associates||means a Party’s employees and agents, contractors and sub-contractors or consultants.|
|Charges||means the Charges, prices and fees payable by You to Safearth’ as set out in an Order.|
|Claim||means any claim, notice, demand, debt, action, expense, lien, liability, proceeding, litigation (including legal costs) or judgment.|
|Consumer||means a consumer within the meaning of the ACL (or comparable state or federal legislation imposing non excludable consumer protections).|
|Party||means You or Safearth.|
|PPSA||means the Personal Property Securities Act 2009 (Cth) its subordinate legislation as amended from time to time and includes any replacement legislation.|
|Premises||means each address or building to which Goods are delivered, stored or located at. .|
|Goods||means the Goods described in an Order and Goods has a corresponding meaning.|
|Order||means any document issued or created by Safearth (whether in printed or electronic form) under which Safearth agrees to provide Goods (including without limitation an order, invoice or Safearth’s record of telephone communication with You).|
|Terms||means these terms and conditions.|
|You, Your||means the person or entity Safearth has agreed to supply the Goods, as specified in the Order.|
and the terms “Financing Statement”, “Proceeds”, “Purchase Money Security Interest”, “Security Agreement”, “Security Interest” and “Verification Statement” have the respective meanings given to them under, or in the context of, the PPSA