Terms & Conditions

1 Interpretation

In these terms:

(a) Affiliate means, in relation to a party, its directors, officers, employees, contractors, agents, representatives, Related Party, Related Body Corporate and Associate (as defined in the Corporations Act 2001) and anyone acting for or on behalf of that party in any capacity.

(b) Buyer means any person or entity who buys Goods from the Seller, and that person or entity's Affiliates.

(c) Claim means a claim, action, proceeding, notice, litigation, investigation, judgment, liability or demand made against the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or deferred whether based in contract, tort or statute and whether involving a third party or party to the Contract.

(d) Contract means the contract between the Buyer and the Seller for the sale and purchase of Goods and includes the Terms and any valid quotation.

(e) Copyright Act means the Copyright Act 1968.

(f) Goods means any goods or services sold or negotiated to be sold by the Seller to the Buyer.

(g) GST has the meaning given to that term in the GST Law.

(h) GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(i) Insolvent means one or more of the following events occurring to the Buyer: (i) an application is made, or a resolution is passed, to wind up the Buyer; (ii) a liquidator, receiver, controller or administrator is appointed in respect of the Buyer or any of its assets; (iii) the Buyer is unable to pay its debts when they become due and payable; (iv) the Buyer commits any act of bankruptcy within the meaning of the Bankruptcy Act 1966 (Cth); or (v) the Buyer dies, ceases to be of full legal capacity or becomes incapable of managing its own affairs for any reason.

(j) Loss means a damage, loss, cost, expense or liability incurred by the person concerned however arising, including without limitation penalties, fines, and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.

(k) Seller means Convert Technologies Pty Ltd (ACN 627 908 301) trading as "Send Jolly" (ACN 125 605 290).

(l) State means New South Wales, Australia.

(m) Terms means these standard terms and conditions of sale (as may be changed from time to time by the Seller by notice) set out in this document.

(n) Warranties mean any warranties, conditions, terms, representations, statements and promises of whatever nature, whether express or implied.

(o) Website means the Seller's website accessible at sendjolly.com.au.

2 Acceptance

(a) The Seller agrees to sell and the Buyer agrees to purchase the Goods in accordance with the terms and conditions of these Terms.

(b) These Terms apply to any sale of Goods between the Seller and Buyer. Each time the Buyer places an order (including without limitation, by accepting a quote, placing an order through the Website, making any payment, accepting delivery of the Goods, or performing any of these Terms) the Buyer is taken to have accepted these Terms and entered into a Contract with the Seller.

(c) These Terms may be varied from time to time by the Seller with variation effected by the Seller publishing amended Terms on the Website. The Terms as published on the Website, at the time of placing an order or part of an order will apply to such order. The Seller may choose, but will not be required, to notify the Buyer of the existence or content of any variations of this Contract by any means. Any such variations do not apply to existing Contracts.

3 Quotations

(a) Seller may withdraw or alter any quotation at any time.

(b) Unless Seller withdraws it, a quotation is valid for the period stated in it, or if no period is stated, for 30 days after the date of the quotation. Seller is not required to honour any expired quotation.

(c) Prices contained in any quotation are conditional on the supply of all quoted items and on all the terms and conditions contained in the quotation being included in the Contract and complied with. The Seller reserves the right to alter any price or any part of the quotation if the Buyer requests any modification (including without limitation, changing the quantities of the Goods) or fails to comply with all of the terms of the quotation.

(d) Buyer must keep the quotation confidential. Buyer must not share any part of the quotation, including, without limitation, pricing or product information, specifications, drawings or other technical information relating to the Goods with any third-parties without the Seller's express prior written consent.

4 Descriptions and specifications

(a) Photos, images, descriptions and prices on the Website, printed material and communications between the parties are for general illustration purposes only. The Buyer acknowledges that any information about Goods, their photos and images may differ from the actual Goods. The Goods may not look exactly as described.

(b) All specifications, drawings, and particulars of weight and dimensions are approximate only (unless they expressly and unequivocally state otherwise). The Buyer cannot claim against the Seller for any deviation.

5 Variations

(a) Any accepted quotations or orders may not be varied or modified in any way without the Seller's written consent, which is at the Seller's sole discretion.

6 Storage

At the Buyer's request, the Seller will store at its premises any excess Goods or Goods that the Buyer does not yet wish to take delivery of on the following conditions:

(a) storage will be up to a maximum period of 6 months, unless the Seller agrees otherwise at its sole discretion;

(b) storage is subject to availability of space at the Seller's premises; and

(c) storage is at the Buyer's risk.

7 Delivery

(a) Any delivery time the Seller gives the Buyer is only an estimate. The Seller is not liable to the Buyer for any loss or damage (including any consequential loss or damage) arising from late delivery. The Buyer must still accept and pay for the Goods even if the Seller delivers late.

(b) Delivery times will be subject to an extension of time where the Buyer seeks alterations or additions to the Goods, or if circumstances beyond the reasonable control of the Seller (including those specified in clause 17) occur.

(c) Delivery of the Goods will be deemed to have taken place when the Goods are delivered to the Buyer's nominated address or addresses.

(d) The Buyer must make all arrangements necessary to accept delivery of the Goods whenever they are tendered for delivery.

8 Acceptance of Goods and Returns of defective Goods

(a) The Buyer will inspect and check all Goods received and within 7 days of receipt notify the Seller in writing of any shortage in quantity, defect, incorrect specification, damage or Goods not in accordance with Buyer's order. The Buyer is responsible for checking that Goods comply with those ordered prior to use. After use or expiry of such time, the Buyer will be deemed to have accepted the goods.

(b) If the quantity of goods delivered is more than the amount the Buyer ordered, the Buyer must immediately inform the Seller in writing and the Seller is entitled to recover the excess from the Buyer at the cost of the Seller.

(c) The Buyer may only return goods if they are materially defective or not compliant with the quotation. If the Buyer wishes to reject and/or return the Goods, he must notify the Seller within 7 days. The Seller will inspect the Goods and agree to a return or replacement of the Goods provided that: (i) the Seller is reasonably satisfied that the Goods are materially defective or not compliant with the quotation; (ii) the Goods are unused, unmarked, in a saleable condition and must include the original packaging, delivery document and invoice.

(d) The Buyer acknowledges and agrees that minor or cosmetic defects in the Goods do not constitute grounds for a claim or return.

(e) The Seller reserves the right to recover its costs where the returned Goods prove not to be valid for return or are not defective. Returned Goods must be returned to the Seller at an address agreed by the Seller.

9 Price and payment

(a) Unless the Seller otherwise agrees in writing, the price of the Goods will be the price stated in any applicable and valid quotation or order form. If the order is made directly from the Website, the price will be as per the Website unless the Seller notifies otherwise.

(b) The prices for the Goods are exclusive of delivery costs. The Buyer must pay for delivery. Quotations will generally estimate delivery costs however this is subject to change based on the nominated address or addresses of the Buyer, and actual delivery costs paid by the Seller.

(c) Unless otherwise stated, all prices are in Australian dollars and must be paid in Australian dollars.

(d) The price for the Goods must be paid in full prior to the Seller producing or delivering the Goods. The Seller is not obligated to do anything under this Contract until the price is paid in full. Time is of the essence in respect of payment of the Seller's invoices.

(e) The Buyer will not be entitled to set off against or deduct from the price of Goods any sums owed or claimed to be owed to the Buyer by the Seller.

(f) Where the Buyer disputes a portion of any invoice, the Buyer must provide the Seller within 30 days of the invoice date, a written notice of the disputed amounts, together with a statement of particulars of the dispute, including calculations with respect to any errors or inaccuracies claimed. Invoiced amounts not objected to in writing within 30 days of the invoice date will be deemed to be correctly charged and accepted by the Buyer and the Buyer will be deemed to have waived all claims against the invoice.

(g) Notwithstanding that the Buyer objects to any invoiced item or amount within the stipulated time, the Buyer will be required to pay the invoice in full.

10 GST

(a) Unless otherwise stated, the price is GST exclusive. Any pending or future changes to GST, Government imposts or any other taxes have not been included in the price, and consequently will be added or subtracted as the case may be.

(b) In addition to the price for the Goods, the Buyer must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this Contract or under any agreement for the sale of Goods.

(c) The Buyer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Buyer pays the price (or the corresponding first part of it if the Seller agrees to the Buyer paying the price by instalments).

11 Default

(a) If the Buyer or its Affiliates default in the payment of any money:

(i) the Buyer or its Affiliates must pay the Seller: (A) interest at the rate equivalent to 1.5% per month (calculated daily) on any amounts owing to it under the Contract; and (B) all expenses including, without limitation, legal expenses on a full indemnity basis, and all debt collection agency costs incurred by the Seller in enforcing the Seller's rights under this Contract;

(ii) the Seller may suspend any further deliveries of the Goods to the Buyer (including under other Contracts) and terminate any other agreement with the Buyer; and/or

(iii) the Seller may terminate the Contract.

12 Cancellation

(a) The Buyer is not permitted to cancel or terminate this Contract except with the Seller's written consent (on a case by case basis) and subject to any conditions that the Seller may specify in this regard.

(b) If the Buyer purports to cancel or terminate this Contract, the Buyer must fully indemnify the Seller for any loss, damage, cost or expense (including loss of profits) expected by the Seller.

(c) The Seller may cancel or terminate the Contract in either of the following events: (i) The Buyer breaches any term of the Contract and fails to remedy such breach within 7 days; (ii) The Seller, through no fault of its own, is unable to source or produce the Products; (iii) The Buyer is unable to take delivery of the Goods (subject to clause 6); (iv) the Buyer is, or reasonably suspected by the Seller to be, Insolvent.

(d) The Buyer has no claim against the Seller for any damage, loss, cost or expense arising from cancellation under this clause 12.

13 Title and risk

(a) Until the Buyer has paid all amounts owing by the Buyer to the Seller (and all cheques or negotiable instruments have been paid) the title and property in the Goods does not pass to the Buyer.

(b) Subject to clause 6, risk in the Goods passes to the Buyer when delivery occurs pursuant to clause 7 or when the Goods are in the Buyer's custody, whichever is first.

14 Warranty, liability and indemnity

(a) To the maximum extent permitted by law, the Seller excludes all Warranties in respect of the Goods and any Contract.

(b) To the extent that any law including Competition and Consumer Act 2010 (Cth) ("CCA") restricts the Seller's right to exclude Warranties under this Contract, the Contract must be read subject to those provisions and nothing in this Contract is intended to alter or restrict the operation of such provisions.

(c) The Seller's liability in connection with the Goods or the Website is further limited as follows: (i) Seller excludes all liability for consequential, special, indirect, non-economic or remote loss, including loss of opportunity or business; (ii) Seller's maximum total liability is limited to the price of Goods for that order; (iii) Seller's liability is excluded to the extent that the Buyer contributed to the liability or the Buyer was aware of anything for longer than six months but did not commence a claim in a court of competent jurisdiction; and (iv) Seller's liability is subject to the Buyer's duty to mitigate loss.

(d) The Seller provides the Website on an "as is" and "as available" basis without any Warranties as to continuous, uninterrupted or secure access to the Website, that its servers are free of computer viruses, bugs or other harmful components, that defects will be cured, or that the Buyer will not have difficulties or disruption in using the Website.

(e) To the maximum extent permitted by law, the Buyer agrees to release the Released Parties from all Loss or Claims arising out of or in any way connected with any Relevant Matter. The Buyer further waives any and all such rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that will purport to limit the scope or any release or waiver.

(f) To the maximum extent permitted by law, the Buyer agrees to indemnify, defend and hold harmless the Released Parties from any Loss or Claim arising out of or in any way connected with any Relevant Matter.

(g) In this clause: (i) Released Parties means the Seller and the Seller's officers, directors, shareholders, agents, employees, consultants, associates, affiliates, subsidiaries, sponsors, and other third-party partners. (ii) Relevant Matter means anything in connection with: (A) any damage to a person, property, personal injury or death, arising in connection with the Goods; (B) Buyer's breach of the Contract or any applicable law; (C) any matter for which the Seller has purported to disclaim liability for under this Contract; (D) Buyer's use, misuse, or abuse of the Website.

15 Intellectual Property Rights

(a) Unless otherwise indicated or implied by context, the Seller is the owner or licensee of all intellectual property comprised in the Website and Website content. Nothing in this Contract constitutes a transfer of any intellectual property rights in or related to the Website or Website content by the Seller to the Buyer.

(b) The Buyer acknowledges and agrees that the Website and the content contained therein are protected by copyright, trademarks, service marks, patents, design registrations, and other proprietary rights and laws, and the Buyer agrees to comply with and maintain all copyright notices and other restrictions on content accessed on or via the Website.

(c) The Buyer must not do anything which breaches or otherwise interferes with the Seller's intellectual property rights or those of any third-party licensors. The Buyer may not distribute, reproduce, publish, alter, modify or create derivative works from the Website content without the Seller's prior written permission or that of the relevant third-party licensor or exploit such content for commercial benefit.

(d) In the course of designing the Goods, the Buyer may provide to the Seller its logos, trademarks, branding guidelines and other material (Buyer IP). The Buyer grants the Seller a royalty-free licence to use the Buyer IP for the purpose of producing and supplying the Goods in accordance with this Contract.

(e) The Buyer acknowledges and agrees that damages may not be an adequate remedy for a breach of this clause 15 and that equitable or injunctive relief may be necessary.

16 Website

(a) Any Buyer accessing and using the Website must: (i) strictly comply with this Contract and any policy displayed on the Website; (ii) not breach any law (including international law) which may apply in respect of the Buyer's use of the Website; (iii) not conduct vulnerability tests or scans on the Website or attempt to make unauthorised modifications to the Website; (iv) not interfere with the proper working of the Website or any activities conducted via the Website including by using any automated or manual software or process to "crawl", "spider" or engage in similar conduct in relation to the Website; (v) except to the extent the Copyright Act allows the Buyer to do so, not reverse engineer or otherwise seek to obtain any source code forming part of the Website.

(b) If the Buyer creates an account on the Website, the Buyer acknowledges and agrees that: (i) it is responsible for keeping its username and password secure; (ii) it is responsible for all use and activity carried out under this account; (iii) it must not share its account credentials with any third party. The Seller does not authorise anyone to use the Website on the Buyer's behalf, and the Seller will not be liable for any loss or damage arising from any kind of unauthorised activity that takes place under the Buyer's account; (iv) it must not impersonate some other individual, business or company.

(c) The Website may contain links to websites that are owned and operated by third parties. We have no control over these external websites, which are governed by terms and conditions and privacy policies independent of us.

(d) You acknowledge and agree that when you access a third party website available via a link contained on the Website: (i) you do so at your own risk and understand that you should review the privacy policy and terms and conditions of that website; (ii) we are not liable for the content, accuracy, lawfulness, appropriateness, or any other aspect of that third-party website; and (iii) you acknowledge and agree that to the full extent permitted by applicable law, we will not be liable for any loss or damage suffered by you or any other person as a result of or in connection with your access or use of any third-party website available via a link on the Website.

17 Force majeure

(a) The Seller is not liable for failure to comply with this Contract, any Contract or an agreement for the sale of Goods if the failure (directly or indirectly) arises out of any circumstances which are not within the Seller's reasonable control. If such circumstances occur, the Seller may delay or cancel delivery of the Goods or reduce the quantity to be delivered.

(b) The circumstances taken to be beyond the Seller's reasonable control include, without limitation, strikes, lock-outs, pandemic, epidemic, any government ordered shut-downs, accidents, war, fire, flood, explosion, shortage of power, breakdown of plant or machinery, shortage of materials from the normal source of supply, stoppage of means of transportation following an order of government, act of God or any order or direction of any local, state or federal government, government authority or instrumentality.

18 General

(a) A notice, consent or other communication under this Contract is only effective if it is in writing, signed and either left at the addressee's address or sent to the addressee by mail or email. If it is sent by mail, it is taken to have been received 3 working days after it is posted. Notices sent by email are taken to be read on the day they are received, unless they are received after 5 PM or not on a business day in the State, in which case they are deemed to be received on the next business day in the State. A person's address, email and fax number are those set out in the quotation. The Seller may send a notice to the Buyer's last known address.

(b) A right of the Seller may only be waived in writing, signed by the Seller. No other conduct of the Seller (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right. A waiver of a right by the Seller on one or more occasions does not operate as a waiver of that right if it arises again. The exercise of a right by the Seller does not prevent any further exercise of that right or of any other right.

(c) This Contract constitutes the entire agreement between the parties.

(d) This Contract is governed by the law in force in the State. Each party submits to the exclusive jurisdiction of the courts exercising jurisdiction in State, and any court that may hear appeals from any of those courts, for any proceedings in connection with this Contract, and waives any right it might have to claim that those courts are an inconvenient forum.

(e) The Buyer agrees that the Seller is entitled to recover any monies owed to it by the Buyer or its Affiliates by setting off such amounts (together with interest and costs of collection) against any sum owed to the Buyer or its Affiliates by the Seller.

(f) Any right that the Seller may have under this Contract is in addition to, and does not replace or limit, any other right that the Seller may have.

(g) Any provision of this Contract which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make these terms enforceable, unless this would materially change the intended effect of this Contract.

(h) The Buyer must not assign its rights and/or its obligations under the Contract without the Seller's prior written permission, which will not be unreasonably withheld.