Terms and Conditions of Purchase

1.1. The Customer has agreed to purchase the Product from the Supplier in accordance with these Terms of Purchase (Terms).
1.2. The Customer accepts these Terms on the earlier of (a) communicating to the Supplier that it accepts these Terms; or (b) paying the Price or part thereof (Commencement Date).

2.1. Subject to the Customer’s compliance with clause 4.2 and in accordance with the Invoice, the Supplier will:

2.1.a. procure delivery of the Product to the Customer’s Site; or

2.1.b. organise for the Customer to pick up the Product. (Delivery)

2.2. If agreed in the Invoice, the Supplier will install the Product for the Installation Fee.
2.3. The Customer acknowledges that Delivery and installation under clause 2.2 are subject to the Supplier receiving the Product from the Manufacturer.

2.4. The Supplier will, as soon as practical, notify the Customer of any actual or anticipated delay.
2.5. If applicable, the Customer will provide the Supplier with access to the Customer’s Site and all reasonable assistance to allow the Supplier to supply and install the Product without delay or disruption, and free from harm or injury.
2.6. Where the Customer has engaged the Supplier for installation, the Customer acknowledges that such installation includes assembly of the Product only and does not include any ongoing maintenance or support.
2.7. Where the Customer has not engaged the Supplier for installation, the Customer acknowledges and agrees that any materials provided to assist the Customer with installation of the Product are guidance only.
2.8. Title and risk in the Product passes to the Customer on the earlier of (a) Delivery of the Product to the Customer; or (b) payment by the Customer of the Price in full.
2.9. The Supplier may use third party freight services to effect Delivery and despite clause 2.8, is not responsible or liable for any delay, damage or loss that occurs in transit.

3.1. The Product comes with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Product repaired or replaced if the Product fails to be of acceptable quality and the failure does not amount to a major failure.
3.2. In addition to the Customer’s rights under the Australian Consumer Law, the Product comes with a Manufacturer Warranty in relation to a Product that does not comply with law or that fails due to a manufacturing defect (Defects).
3.3. The Supplier only passes on the Manufacturer Warranty and provides no additional warranty.
3.4. The Manufacturer Warranty only covers Defects and provides no protection against normal wear and tear.
3.5. If the Customer notifies the Supplier of any Defects during the relevant Warranty Period (Warranty Claim), the Supplier will inspect the Defect and, subject to the Customer’s compliance with clause 3.6, the Supplier will (at its election):

3.5.a. repair the Defects;

3.5.b. replace the Product; or

3.5.c. refund the Price paid in respect of the relevant Product.

3.6. The Customer acknowledges and agrees that in order to make a Warranty Claim in accordance with clause 3.5, the Customer must:

3.6.a. keep the Product secure and in good condition, and in accordance with the Directions.

3.6.b. if the Customer has not engaged the Supplier for installation, warrant that it has installed the Product in accordance with the Directions.

3.6.c. not, and will procure that any other person will not, damage or destroy the Product;

3.6.d. not, and will not engage anyone other than the Supplier to, repair, improve, change, or otherwise deal with the Product; and

3.6.e. ensure that the Supplier has access to the Customer’s Site, and all other facilities and resources necessary to inspect, un-install, repair, and retrieve the Product as required.

3.7. If the Customer has failed to comply with clause 3.6 the Supplier may charge a fee to address any Warranty Claim.

4.1. the Supplier will issue an Invoice for the Price.
4.2. The Customer will pay the Price, without any set-off, counterclaim or deduction as follows:

4.2.a. the Customer will pay the Deposit (if any) in advance, as specified in the Invoice; and     

4.2.b. the Customer will pay the balance of the Price, including any Delivery Fee or Installation Fee, prior to Delivery as specified in the Invoice.

4.3. Each amount payable by a Party under these Terms in respect of a taxable supply by the other Party is expressed as a GST exclusive amount and the recipient of the supply must, in addition to that amount, and at the same time, pay the GST payable in respect of the supply.

5.1. Subject to clause 5.2, the Parties agree that an Invoice may be cancelled within [seven (7)] days after the payment of the Deposit (the Returns Period), and the Supplier will refund the Deposit. If the Customer cancels an Invoice after the Returns Period, the Deposit, and any other payment made is non-refundable.
5.2. Despite clause 5.1, any Deposit for a Special Order is non-refundable.
5.3. The Supplier may cancel an Invoice immediately upon notice to the Customer if the Customer commits a material breach of these Terms which is incapable of being remedied or is not remedied by the Customer within 10 days after being required in writing to do so.
5.4. If the Supplier is unable to supply the Product in accordance with the Invoice, the Supplier may cancel the Invoice, and in such a case will refund the Customer any fees paid for that Product, including the Deposit.

6.1. Nothing in these Terms affects the ownership of any Intellectual Property Rights owned or created by either Party before, or independently from, entering into these Terms.
6.2. The Customer must not seek to register itself or any other person as the owner of the Supplier’s brand, business name, or Product name (Brand).
6.3. The Customer must promptly advise the Supplier in writing of any infringement, legal proceeding (actual or threatened) it becomes aware of in relation to the Product or the Brand, and the Customer will take all steps necessary (if requested by the Supplier) to assist the Supplier in addressing and/or prosecuting any such action in respect of the infringement.

7.1. The Customer may advertise the Brand in connection with the Product in accordance with any instructions and guidelines notified by the Supplier from time to time.
7.2. The Customer agrees that it will not disparage or defame the Brand or the Supplier’s reputation.
7.3. The Customer must not make any claims about the health effects of the Product without the prior written consent from the Supplier.
7.4. The Supplier may, at any time, require the Customer to remove, destroy, or take down, any advertisement or information that relates to the Product, which the Customer must comply with immediately.
7.5. The Customer will not use, or allow the Product to be used, other than in accordance with the Directions.

8.1. Each Party warrants and represents to the other that:

8.1.a. it is able to pay its debts as and when they fall due;

8.1.b. it has all necessary rights, licenses, permits, and consents to perform its obligations under these Terms and will comply with all applicable laws in doing so; and

8.1.c. it will not do anything that may adversely affect the other Party’s goodwill, brand, or reputation.

8.2. The Supplier does not guarantee, warrant or represent that:

8.2.a. the Product will be fit for the Customer’s purpose;

8.2.b. the timber of any Product will be of a particular quality or standard;

8.2.c. the Product will withstand any and all weather conditions or normal wear and tear; or

8.2.d. the Saunas will reach any particular temperature, as this depends on environmental factors.

9.1. Each Party agrees to keep the other Party’s Confidential Information secret and safe, and not use it or disclose it to any person (or allow anyone else to do so) without the other Party’s written consent, except to the extent necessary to: (a) comply with these Terms; (b) obtain professional advice in relation to these Terms; or (c) comply with applicable law, provided that the other Party is given reasonable notice of the required disclosure.

10.1. To the maximum extent permitted by law, the Supplier:

10.1.a. excludes all representations, warranties, or terms implied by law, and any and all liability for any loss, cost, damage, or claim (including in negligence) suffered or incurred by the Customer, its Affiliates or any third party in connection with these Terms, and the Customer releases the Supplier from any liability that may arise, however caused;

10.1.b. will not be liable for Consequential Loss; and

10.1.c.  imits any liability of the Supplier that cannot be excluded, to (at the Supplier’s option) the replacement, repair, or refund of the Product that is subject to the claim or liability.

10.2.  The Customer indemnifies the Supplier and its Affiliates for any loss, cost, damage, or claim suffered or incurred by the Supplier, the Supplier’s Affiliates or any third party (including in negligence) in relation to: (a) injury, death, or property damage, including damage to the Product; (b) fraud, wilful misconduct, or gross negligence; (c) loss of or damage to the Product; (d) use of the Product that is not compliant with the Directions; or (e) breach of these Terms or applicable law, by or arising from an act or omission of the Customer or its Affiliates in connection with these Terms, except to the extent that such loss, cost, damage, or claim was caused by the negligent or unlawful act or omission of the Supplier.
10.3. Nothing in this clause 10 excludes any right or implied term which cannot be excluded by law, including, without limitation, a Party’s rights under the Australian Consumer Law which are incapable of exclusion.

11.1. Dispute resolution: A Party must not commence court proceedings in relation to a dispute arising from, or in connection with, these Terms without first giving notice to the other Party of the dispute and the Parties meet to resolve the dispute in good faith. If the dispute is not resolved within 14 days from the notice of dispute, the Parties must instruct the Law Institute of Victoria to appoint an independent mediator to attempt to resolve the dispute by mediation and the Parties must participate in the mediation in good faith. The costs of the mediation must be equally shared by the Parties. Nothing in this clause will prevent a Party from seeking urgent injunctive or interlocutory relief.
11.2. Force majeure: Neither Party will be liable for any delay or failure to perform its obligations under these Terms, except for the obligation to pay, if such delay or failure is due to any circumstances beyond that Party’s reasonable control.
11.3. Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
11.4. Relationship of Parties: Nothing contained in these Terms constitutes the relationship of a joint venture, agency, partnership or employment between the Parties.
11.5. Assignment: The Customer must not assign, transfer, or novate, in whole or in part, its rights under these Terms except with the prior consent of the Supplier. The Supplier may transfer or novate its rights under these Terms by prior written notice to the Customer.
11.6. Governing law: These Terms will be governed by the laws of Victoria, Australia and the Parties hereby submit to the exclusive jurisdiction of the courts of Victoria, Australia in relation to any claim or matter arising from or in connection to these Terms.
11.7. Entire agreement: These Terms contain the entire understanding between the Parties, and supersede and replace any prior representations, negotiations, understandings, or agreements, in respect of this subject matter. These Terms may only be amended or modified by a document in writing signed by the Parties.
11.8. Survival: Clauses 6.2, 6.3, 7.4, 8.2, 9, 10.2, and 11.1 will continue in force notwithstanding the termination of these Terms for any reason.

12.1. In these Terms, unless the contrary intention appears:
Affiliate means directors, officers, employees, contractors, successors, and related entities and related body corporate, as defined in the Corporations Act 2001 (Cth).

Confidential Information means the terms of these Terms and all information of a confidential or sensitive nature (including Intellectual Property Rights) disclosed before or after the Commencement Date, whether in writing or otherwise of or concerning a Party or its Affiliates under, in contemplation of or in connection with the Products, or these Terms. Confidential Information will not include any information that is in the public domain, or is intended to come into the public domain through the performance of these Terms (other than through breach of these Terms).

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

Delivery Fee means the amount charged for delivery of the Product, as listed in the Invoice.

Delivery means the delivery of the Product into the Customer’s possession, whether by delivery to the Customer or by the Customer picking up the Product.

Deposit means a percentage of the Price payable in advance, as specified in the Invoice.

Directions means any instructions or guidelines provided by the Supplier to the Customer from time to time.

Installation Fee means the amount charged for installation of the Product, as listed in the Invoice.

Intellectual Property Rights means all present and future intellectual property or related rights, including improvements, whether registered or unregistered, including copyright, trade mark, patents, designs, circuit layouts, software, business or domain names, inventions, know-how, confidential information, trade secrets, recipes, and formulations, arising anywhere in the world, and any associated moral rights.

Invoice means the document sent by the Supplier to the Customer setting out:

(a)    the Price for the Product including any Delivery Fee or Installation Fee; and

(b)    any other terms.

Manufacturer means any entity that manufactures or supplies any Product to the Supplier.

Manufacturer Warranty means the warranty that comes with each Product and is provided by the Manufacturer and is communicated to the Customer.

Parties means the Supplier and the Customer, each a Party, and together the Parties.

Price means the total price to be paid by the Customer to the Supplier as specified in the Invoice, including the Deposit and any Delivery Fee or Installation Fee.

Product means the product(s) supplied by the Supplier to the Customer as specified in the Invoice.

Customer’s Site means the Customer’s location, as specified in the Invoice or otherwise agreed between the Parties.

Special Order means an order for a Product identified by the Supplier as a Special Order.

Terms means each Invoice read together with these Terms including any variations in writing signed by both Parties.

Warranty Period means the period specified in the relevant Manufacturer Warranty in which the Customer may make a Warranty Claim.

12.2. In these Terms, unless the context requires otherwise:

12.2.a. capitalised terms that are not defined in clause 12.1 are given their meaning in context;

12.2.b. the singular includes the plural and vice versa;

12.2.c. the headings are used for convenience only and do not affect the interpretation of these Terms;

12.2.d. other grammatical forms of defined words or expressions have corresponding meanings;

12.2.e. the word 'person' includes a natural person and anybody or entity whether incorporated or not;

12.2.f. the words 'in writing' or 'written' include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;

12.2.g. a reference to a thing includes a part of that thing; and

12.2.h.  money amounts are stated in Australian currency unless otherwise specified.

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