Terms and Conditions of Sale

Effective 14 February 2022

1. Definitions and interpretation

1.1 Definitions

In these terms and conditions of sale (terms and conditions), unless the context clearly indicates otherwise:

Buyer means the purchaser of the Goods, whose details are set out in the invoice.

Goods means the products and, if any, services specified in the invoice.

Seller means Exersia Pty Ltd (ACN 655 647 715) or such other seller of the Goods whose details are set out in the invoice.

1.2 Interpretation

Nothing in these conditions exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010 (Cth)) and which by law cannot be excluded, restricted or modified.

2. General

These conditions (which will only be waived in writing signed by the Seller and Buyer) will prevail over all conditions of the Buyer’s order, to the extent of any inconsistency.

3. Terms of sale

The Goods and all other products sold by Seller are sold subject to these terms and conditions.

4. Seller’s quotations

Unless previously withdrawn, Seller’s quotations are an invitation to treat and orders may be submitted to the Seller within the period stated in them or, when no period is so stated, within 30 days only after its date. The Seller reserves the right to refuse any order based on its quotation following receipt of such order.

5. Packing

The cost of any special packing and packing materials used in relation to the Goods are at the Buyer’s expense, even if that cost has been omitted from any quotation.

6. Shortage

The Buyer waives any claim for shortage of any Goods delivered if a claim in respect for short delivery has not been lodged with the Seller within 2 business days from the date of receipt of Goods by the Buyer.

7. Specifications

(a) All specifications, images and particulars of weights and dimensions submitted to the Seller are approximate only and any deviation from any of these things does not vitiate any contract with the Seller or form grounds for any claim against the Seller.

(b) The descriptions, illustrations and performances contained in the website, catalogues, price lists and other advertising matter of the Seller do not form part of the contract of sale of the Goods or of the description applied to the Goods.

(c) Where specifications, drawings or other particulars are supplied by the Buyer for the purposes of the Goods order, the Seller’s price will be calculated on the basis of estimates of quantities required to provide the Goods as specified, drawn or otherwise particularised by the Buyer. If there are any adjustments in quantities above or below the quantities estimated by Seller as set out in a quotation, then any such increase or decrease will be adjusted on a unit rate basis according to unit prices set out in this document or in the quotation.

8. Conditions for ordering

(a) The Seller does not offer to sell any Goods for delivery or use outside of Australia.

(b) If Buyer purchases or uses any Goods, the Buyer:-

(i) warrants and represents that they are at least 18 years of age;

(ii) is ordering the Goods for consumption in Australia;

(iii) warrants, represents and agrees that the Buyer has sought, and will continue to seek, advice from independent, appropriately qualified and licensed health practitioners relating to the proposed use of any Goods;

(iv) warrants, represents and agrees that the Buyer will only use the Goods and any information obtained from the website in accordance with the advice and supervision of independent, appropriately qualified and licensed health practitioners; and

(v) warrants, represents and agrees that the Buyer will not re-sell or otherwise re-supply any Goods.

9. Performance

Any performance figures given by the Seller are estimates only. To the maximum extent permitted by law, the Seller is under no liability for damages for failure of the Goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.

10. Information

(c) All information provided by the Seller on the website or on or in respect of any Goods is provided by the Seller as general information and is not in the nature of advice. The Seller reserves the right to update or otherwise change this information at any time.

(d) Except for losses attributable to breaches of the consumer guarantees contained in the Australian Consumer Law, the Seller is not liable for any direct, indirect loss or consequential loss resulting from any action taken or reliance made by the Buyer on any information, content or material on the website, or the Buyer’s use of the website or any Goods.

(e) The Buyer’s use of information provided on the website, and any Goods, is entirely at your own risk.

11. Delivery

(a) The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery.

(b) The Seller will not be liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery or late installation of the Goods.

(c) The Seller may at its option deliver the Goods to the Buyer in any number of instalments unless there is an endorsement overleaf to the effect that the Buyer will not take delivery by instalments.

(d) If the Seller delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:

(i) this does not constitute a repudiation of the contract of sale formed by these conditions; and

(ii) the defective instalment is a severable breach that gives rise only to a claim for compensation.

(e) Subject to the Seller’s obligations under clause 18(b), under no circumstances will the Seller be liable for any direct, indirect or consequential losses arising due to:

(i) a failure or delay in the delivery of Goods;

(ii) delivery of Goods to an incorrect address; or

(iii) damage, loss or theft of Goods at any time after they are posted by the Seller.

12. Loss or damage in transit

(a) The Seller is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind or by any person (whether or not the Seller is legally responsible for the actions of that person).

(b) The Seller must provide the Buyer with such assistance as may be reasonably necessary to institute claims against a carrier for damages to Goods in transit so long as the Buyer:

(i) has notified the Seller and the carrier in writing immediately after loss or damage is discovered by the Buyer on receipt of Goods; and

(ii) serves a claim for compensation on the carrier within 3 days of the date of receipt of the Goods.

13. Disclaimer

(a) Except for losses attributable to breaches of the consumer guarantees in the Australian Consumer Law, we do not accept any liability for any direct loss, indirect loss, Consequential Loss or damage, however caused (including through negligence), which you may incur or suffer in connection with:

(i) our website;

(ii) the Goods; or

(iii) your use or reliance on information or content contained on or accessed through our website.

(b) Except for losses attributable to breaches of the consumer guarantees in the Australian Consumer Law, to the extent permitted by law, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise in connection with the Goods or our website are expressly excluded. The Seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of the Seller’s negligence or in any way.

(c) Where the Products are not acquired for personal, domestic or household use or consumption, our liability for any direct loss, indirect loss, Consequential Loss or damage, however caused (including through negligence), which you may incur or suffer in connection with:

(i) the website;

(ii) the Goods; or

(iii) your use or reliance on information or content obtained through our website;

is limited to (at our election) one or more of the following:-

(iv) replacement of the Goods or the supply of equivalent Goods; or

(v) the payment of the cost of replacing the Goods or of acquiring equivalent Goods.

(d) Nothing in these terms and conditions excludes any guarantees or liability arising under the Australian Consumer Law or any other statute if and to the extent that liability cannot be lawfully excluded.

14. Consumer guarantees

The Seller’s liability for a breach of a condition or warranty implied by Part 3-2 Division 1 of the Australian Consumer Law is limited to:

(a) in the case of Goods, any one or more of:

(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; or

(b) in the case of services:

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

15. Indemnification of suppliers by manufacturers

The Seller’s liability under section 274 of the Australian Consumer Law is expressly limited to a liability to pay to the purchaser an amount equal to:

(a) the cost of replacing the Goods;

(b) the cost of obtaining equivalent goods; or

whichever is the lowest amount.

16. Prices

(a) Unless otherwise stated all prices quoted by vendor are inclusive of Goods and Services Tax (GST).

(b) Prices quoted are calculated at the date of issue of a relevant quotation and include rates provided by third parties providers. These third party rates include the cost of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials and other charges affecting the cost of production (Third Party Rates). Third Party Rates may vary slightly from the date of the quotation to the time of delivery of the Goods. The Buyer will be liable for any increase in the Third Party Rates.

(c) If the Seller makes any alterations to the price of the Goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the Buyer’s account.

17. Payment

(a) The purchase price for the Goods plus GST where applicable is payable at the time the Customer places its order (Payment Due Date) unless other terms of payment are agreed in writing between the parties.

(b) The Buyer must pay interest on any outstanding amount not paid by Payment Due Date. Interest will be calculated on the basis of the Commonwealth Bank of Australia Business Indicator Rate as published from time to time plus 2%. Interest will accrue daily from the Payment Due Date until the outstanding amount is paid in full.

18. Buyer’s property

(a) Ownership and risk in the Goods will pass to the Buyer from the moment they are posted by the Seller.

(b) Goods will be posted to the address notified in the Buyer’s order.

19. Storage

The Seller reserves the right to charge a reasonable fee for storage if delivery instructions are not provided by the Buyer within 3 business days of a request by the Seller for such instructions. The parties agree that the Seller may charge for storage from the first day after the Seller requests the Buyer to provide delivery instructions.

20. Returned Goods

(a) Except for any provisions to the contrary contained in these terms and conditions, or as required by law, the Seller is not under any duty to accept Goods returned by the Buyer. The Seller will do so only on terms to be agreed in writing in each individual case.

(b) If the Seller agrees to accept returned Goods from the Buyer under clause 20(a) of this clause, the Buyer must return the Goods to the Seller at the Seller’s place of business referred to at the head of these conditions.

(c) Other than returns for faulty Goods or where the Seller is otherwise legally required to provide a full refund, the Seller may charge a restocking fee of 20% of the price of the relevant Goods.¬† Customer acknowledges that such fee is a genuine pre-estimate of Seller’s costs and expenses in connection with the supply and return of such Goods.

21. Goods sold

All Goods to be supplied by the Seller to the Buyer are as described on the purchase order agreed by the Seller and the Buyer and the description on such purchase order as so agreed prevails over all other descriptions of the Goods including any specification or enquiry of the Buyer.

22. Cancellation

No order may be cancelled by the Buyer except with the written consent of the Seller. If there is a cancellation of the order by the Buyer, the Seller has the right to claim indemnity against all losses suffered by the Seller as a result of such cancellation.

23. General

(a) The Seller is not liable for any failure to properly comply with the terms and conditions.

(b) If any clause or part of any clause of these terms and conditions is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal.¬† If this is not possible, the clause (or where possible, the offending part) is to be severed from these terms and conditions without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.

(c) A right created by these terms and conditions cannot be waived by the Seller except in writing signed by the Seller.¬† Delay by the Seller in exercising a right does not constitute a waiver of that right, nor will a waiver (either wholly or in part) by the Seller of a right operate as a subsequent waiver of the same right or of any other right of the Seller.

24. Governing law

These terms and conditions shall be governed by and construed in accordance with the laws of the State of Queensland, Australia and the parties submit to the non-exclusive jurisdiction of the Courts of Queensland.