TERMS AND CONDITIONS OF SALE
Your purchase of any Goods is subject to these Terms. If you do not accept these Terms, you must refrain from using this Website or otherwise submitting any Orders for Goods.
In these Terms, unless the context requires otherwise, the following terms have the following meanings:
Contract means a contract (whether or not in writing) between you and Only Mine for the supply of Goods by Only Mine to you, to which these Terms apply under clause 1.1, and includes any quotation or invoice given by Only Mine to you, and any Order to the extent it is accepted by Only Mine;
Goods means any goods supplied (or to be supplied) by Only Mine to you as described in an Order;
Prescribed Rate means the rate that is 2% per annum above the rate specified from time to time under section 2 of the Penalty Interest Rates Act 1983 (Vic);
Prices has the meaning given in clause 4.1;
Only Mine means Only Mine Pty Ltd ACN 608 736 858;
Order means any order, instruction, specification or requisition from you to Only Mine relating to your proposed purchase of any Goods, including an electronic instruction submitted through the Website;
PPSA means the Personal Property Securities Act 2009 (Cth);
Terms means these terms and conditions of sale; and
Website means the Only Mine website located at www.onlymine.com.au.
2. APPLICATION OF THESE TERMS
- Unless otherwise agreed in writing, these Terms apply to all Goods supplied (or to be supplied) to you by or on behalf of Only Mine, and are taken to be incorporated in and form part of each Contract.
- Each Contract constitutes the whole agreement and understanding between you and Only Mine in relation to the relevant Goods.
- If there is any inconsistency between the terms set out in an Order and these Terms, then these Terms prevail to the extent of the inconsistency.
3. ACCEPTANCE AND CANCELLATIONS
- You are taken to have acknowledged and accepted these Terms by doing any one or more of the following:
- ordering Goods from Only Mine;
- taking delivery of Goods;
- making and/or facilitating payment to Only Mine in respect of purchased Goods; or
- by agreeing to any other document provided by Only Mine that incorporates these Terms by reference.
- Only Mine reserves the right to refuse to accept any Order at its sole discretion. Unless acceptance of an Order has been communicated by Only Mine to you in writing, an Order by you will only be taken to be accepted by Only Mine on delivery of the relevant Goods to you.
- Once an Order has been issued by you to Only Mine, it may only be amended or cancelled by you with the written consent of Only Mine. If such consent is given, then you must reimburse Only Mine on demand for all losses, damages and expenses directly or indirectly incurred by Only Mine in the preparation, procurement, storage, handling and/or delivery of the relevant Goods to fulfil the relevant Order before it was amended or cancelled.
- Only Mine may cancel any Contract at any time before the relevant Goods are delivered by giving written notice to you. On giving such notice, Only Mine must promptly repay to you any money paid by you to Only Mine for any Goods not yet delivered to you at that time.
Any quotation given to you by Only Mine for the supply of any Goods to you:
- is subject to change or withdrawal by Only Mine giving written notice to you at any time before receipt by Only Mine of written acceptance of the quotation by you; and
- unless Only Mine states otherwise in the quotation, will be taken to have been rejected by you if it is not accepted by you giving written notice to Only Mine within 30 days after the date of the quotation.
- All prices payable by you to Only Mine for Goods supplied (or to be supplied) by Only Mine to you (Prices) are:
- in the case of Orders submitted using the Website, as set out on the Website as at the time of submission of your Order; and
- in all other cases, are as set out in the relevant Contract.
- Only Mine reserves the right to change the Prices without notice to you. However, if you have submitted an Order at a particular Price which is accepted by Only Mine, then Only Mine will supply the relevant Goods under that Order at that Price.
- Unless specified otherwise by Only Mine, the Prices do not include:
- any applicable GST (as that term is defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth));
- any other taxes (other than income tax), duties, levies and other government fees and charges (Other Taxes); and
- any delivery, packaging, freight, insurance, installation and/or commissioning costs, expenses or surcharges (Delivery Charges).
- Unless specified otherwise by Only Mine, the amount any applicable GST, Other Taxes and Delivery Charges will be added to, and must be paid by you to Only Mine, in the same way and at the same time as the Price for the relevant Goods is payable under or in connection with the relevant Contract.
6. TERMS OF PAYMENT
- Payment of the Price, the Delivery Charges and any other amounts payable in respect of the relevant Goods must be made in full by you to Only Mine:
- for an Order submitted using the Website, at the time of submission of the Order using the payment method as specified on the Website; and
- in all other cases, by the date specified in the relevant invoice from Only Mine for those Goods (Payment Date), notwithstanding the fact that those Goods may not have been manufactured or delivered by the date of submission of the Order or the Payment Date (as the case may be).
- In relation to Orders submitted using the Website, you:
- acknowledge that payment must be cleared by Only Mine before the relevant Goods are dispatched;
- authorise Only Mine to debit the amount that is payable for an Order from your nominated credit card;
- acknowledge that if your payment cannot be processed by Only Mine, your Order may be rejected by Only Mine; and
- represent and warrant that, in paying or attempting to pay for the relevant Goods, you have not engaged in any fraudulent conduct or contravened any law.
- The Goods will be delivered (or taken to be delivered) when they are delivered to the delivery place specified in the Order.
- Without limiting clause 6.1, if:
- you are unable to take delivery of the Goods at the delivery place specified in the relevant Contract or it is unmanned at the time of delivery; or
- the Goods are delivered to an incorrect address provided by you, then Only Mine may charge you a reasonable fee for redelivery and you must pay that charge to Only Mine on demand.
- Any times quoted for delivery are estimates only. Only Mine will not be liable to you for any failure to deliver or for delay in the delivery of the Goods. Any failure to deliver or delay in delivery does not entitle you to terminate any Contract.
- RISK AND TITLE
- Capitalised terms used in this clause 7 that are not otherwise defined in these Terms have the meaning given in the PPSA.
- Risk in the Goods will pass to you at the time delivery to you occurs (or is taken to have occurred) in accordance with clause 6.1.
- Legal title and property in any Goods is retained by Only Mine (and Only Mine retains a Security Interest in all Proceeds relating to those Goods) until the last to occur of risk in those Goods passing under clause 7.2 and payment being received in cleared funds from you of all sums owing to Only Mine in relation to those Goods.
- You acknowledge and agree that each Contract constitutes a Security Agreement under the PPSA and secures Only Mine’s right to recover all amounts from time to time owing by you to Only Mine under these Terms and any such Contract.
- You must promptly do anything required by Only Mine to ensure that the relevant Security Interest is a perfected Security Interest and has priority over all other Security Interests in the Goods and any Proceeds relating to the Goods.
- Until legal title and property in any Goods has passed to you, you must keep those Goods separate from other products and must store those Goods so that they are readily identifiable as being supplied by Only Mine.
- If you fail to pay any amount to Only Mine in relation to any Goods by the due date required under these Terms or the relevant Contract for that payment, then Only Mine may (without prejudice to any other rights and remedies) do any one or more of the following:
- recover those Goods, any Proceeds relating to those Goods and any other Goods in which title has not yet passed to you;
- retain for its own benefit absolutely any of those Goods, any Proceeds relating to those Goods and any other Goods in which title has not yet passed to you; and
- resell any of those Goods and any other Goods in which title has not yet passed to you.
- In exercising any of its rights under clause 7.7 and in addition to any other rights it may have under Chapter 4 of the PPSA, Only Mine may, without notice, enter any premises where it suspects the relevant Goods and/or any Proceeds in respect of those Goods may be located and remove them without committing a trespass, and you authorise Only Mine (or any officer, employee, contractor or agent of Only Mine) to enter on to those premises to take possession of those Goods and those Proceeds for that purpose at any time.
- The Security Interest arising under this clause 9 attaches to the Goods when you obtain possession of the Goods and the parties confirm that they have not agreed that any Security Interest arising under this clause 7 attaches at any later time.
- You agree to waive any right to receive any notice or statement from Only Mine under the PPSA, except to the extent that the giving of that notice or statement is required by the PPSA and cannot be excluded by agreement.
- To the maximum extent permitted by law:
- for the purposes of sections 115(1) and 115(7) of the PPSA:
- Only Mine need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4); and
- sections 142 and 143 are excluded;
- for the purposes of section 115(7) of the PPSA, Only Mine need not comply with sections 132 and 137(3); and
- if the PPSA is amended at any time to permit Only Mine and you to agree to not comply with or to exclude other provisions of the PPSA, then Only Mine may notify you that any of those provisions are excluded, or that Only Mine need not comply with any of those provisions, as notified to you by Only Mine, and that notice will be binding on you.
- If Only Mine exercises a right, power or remedy in connection with these Terms or any Contract, then that exercise is taken not to be an exercise of a right, power or remedy under the PPSA, unless Only Mine states otherwise at the time of exercise. However, this clause 7.12 does not apply to a right, power or remedy that can only be exercised under the PPSA.
- If you fail to pay to Only Mine any amount when due under a Contract, then Only Mine may (at its sole discretion and without limiting its other rights and remedies):
- suspend performance of its obligations under or in connection with that Contract until the amount outstanding is paid in full; and
- charge interest on the amount outstanding at the Prescribed Rate, calculated from and including the date on which the relevant payment became due until but excluding the date on which the relevant payment is made, which interest is payable by you to Only Mine on demand.
- Without limiting any other right or remedy Only Mine may have, Only Mine may terminate a Contract with immediate effect by providing written notice to you if you breach any of your obligations under that Contract (including the obligation to pay any amounts when due under that Contract) and if the breach is capable of remedy, you do not remedy the breach within 7 days after being notified in writing by Only Mine.
- On termination under clause 8.2, Only Mine may at its option exercise any one or more of the following rights (in addition to any other rights it may have under the relevant Contract or at law):
- suspend deliveries of further Goods to you;
- terminate any other Contract in relation to any Goods that have not been delivered or supplied to you; and
- issue an invoice for, and demand immediate payment of, Goods ordered by you but not delivered (and you must comply with that demand).
9. RETURN OF PRODUCTS
To the maximum extent permitted by law, and subject to clause 10, Only Mine may, but will not be required to, accept a return of any Goods and no return will be accepted by Only Mine unless it is authorised in writing by Only Mine. Any return of Goods by you to Only Mine will be at your risk and at your cost.
- Any warranty, guarantee, condition, representation, undertaking or other right that would be implied in or otherwise required in connection with these Terms or any Contract by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law. However, Only Mine does not exclude, restrict or modify any warranty, guarantee, condition, representation, undertaking or other right under any statute (including the Competition and Consumer Act 2010 (Cth)) where to do so would contravene that statute or cause any part of these Terms to be void.
- To the maximum extent permitted by law:
- Only Mine is not liable to you or to any other person for any indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, or loss or damage resulting from wasted management time, irrespective of whether the loss or damage is caused by or relates to breach of contract, statute, tort (including negligence) or otherwise, or Only Mine or any other person was previously notified of the possibility of that loss or damage; and
- without limiting the previous paragraph, the maximum aggregate liability of Only Mine for all proven losses, damages and claims arising out of these Terms or any Contract, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the sum of the amounts paid by you to Only Mine under the relevant Contract to which the relevant breach, negligence, tort or common law or statutory action relates.
11. FORCE MAJEURE
- Where any failure or delay by Only Mine in the performance of its obligations under a Contract is caused, directly or indirectly, by an event or occurrence that is beyond the reasonable control of Only Mine (Force Majeure Event), Only Mine is not liable for that failure or delay and Only Mine’s obligations under that Contract are suspended, to the extent to which they are affected by the relevant Force Majeure Event, for the duration of the Force Majeure Event.
- A Force Majeure Event includes the failure or inability of any suppliers of Only Mine to supply any goods or services required by Only Mine in order to supply Goods to you.
12. ELECTRONIC ORDERS
- You acknowledge and agree that:
- the transmission of an Order or the confirmation of any payment, made through an electronic instruction using the Website, may not be received by Only Mine for reasons beyond either parties’ reasonable control, including any electronic, mechanical, software, computer or telecommunications failures, or the acts or omissions of third party website or other providers;
- to the maximum extent permitted by law, Only Mine is not liable to you in any way for any loss or damage arising directly or indirectly from or in connection with the transmission of an electronic instruction through the Website or any failure to receive an electronic instruction for whatever reason;
- Only Mine may act on and process all completed Orders transmitted or issued through the Website without further consent from or reference to you; and
- Only Mine may treat an electronic instruction as authentic and is under no obligation to investigate the authenticity or authority of persons issuing or transmitting such electronic instructions, or to verify the accuracy and completeness of such electronic instructions.
- You represent and warrant that:
- all information and data provided by you to Only Mine through the Website is true, accurate, complete and up to date; and
- you have and will comply with all relevant law relating to your use of the Website and the submission of any Order made using the Website.
13. CONSENTS AND PRIVACY
- You agree that personal information of and relating to you may be collected and used for the purposes of providing you with the Goods, to administer and manage the supply of Goods (including collecting and processing payments), and to market to you any products or services that Only Mine believes may be of interest to you.
- Headings are used for convenience only and do not affect the interpretation of any Contract.
- Any notice to be given to you by Only Mine under these Terms or any Contract may be given personally, by post, by fax or by email.
- Words importing natural persons include partnerships, bodies corporate, associations, governments, and governmental and local authorities and agencies.
- A reference to either Only Mine or you includes its/your respective executors, administrators, successors and permitted assigns.
- You must not transfer, assign, create an interest in or deal in any other way with any of your rights under any Contract without the prior written consent of Only Mine.
- Wherever “include” or any form of that word is used, it must be construed as if it were followed by “(without being limited to)”.
- If any provision of these Terms or a Contract is or becomes invalid, void, illegal or unenforceable, then the validity, existence, legality and enforceability of the remaining provisions will not be affected.
- A failure or delay by Only Mine in exercising any right conferred on Only Mine under any Contract does not operate as a waiver of the right.
- You must not set off against or deduct from any Price or other amounts owing to Only Mine, any amounts owed or claimed to be owed to you by Only Mine, nor withhold payment of any amount due to Only Mine because that amount or any part of it is in dispute.
- These Terms and each Contract are governed by and must be construed in accordance with the laws in force in Victoria. You submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to these Terms and each Contract.