Terms & Conditions
Peek A Blue Pty Ltd, ABN 74 631 333 527. Full Terms & Conditions of Trade October 2020
1. Definitions
1.1 Seller” shall mean Peek A Blue Pty Ltd and its successors and assigns.
1.2 “Buyer” shall mean the Buyer or any person acting on behalf of and with the authority of the Buyer.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Buyer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6 “Price” shall mean the cost of the Goods as agreed between the Seller and the Buyer subject to clause 4 of this contract.
2. Acceptance
2.1 Any instructions received by the Seller from the Buyer for the supply of Goods and/or the Buyer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
2.2 The Seller reserves the right to refuse supply of any or all products to any Buyer without explanation.
2.3 Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
2.4 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in
accordance with these terms and conditions or with the written consent of the manager of the Seller.
2.5 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
2.6 The Buyer undertakes to give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s address, facsimile number, email address or business practice).
3. Goods
3.1 In entering into a contract to purchase Goods supplied by the Seller, the Buyer accepts that the product supplied is a natural product with inherent individual variations in form, shape, quality, size, colour, appearance and availability.
3.2 While every effort will be taken by the Seller to supply Goods in good condition, the Seller will take no responsibility for any variation in the quality, size and description of natural products between sale samples, photographs, written descriptions and the final product supplied, nor the does the Seller guarantee the availability of such products from itself or its suppliers.
3.3 As coral is a protected species, we do not sell coral for presentation or sale on a customer website, Facebook, Ebay, Etsy or any other media, unless by prior written agreement. We do not sell coral for sale at markets and other similar venues.
3.4 Where average size ranges are displayed, these are approximate and are offered only as a general indication of the size relative to a particular price. There may be variations where the size of individual goods may be less than or exceed the average size range for that price. When purchasing, the Buyer accepts that there is no obligation on the Seller to measure each and every item supplied.
3.5 If the Seller is unable to supply the Goods as ordered the closest alternative will be supplied unless otherwise instructed by the Buyer.
3.6 The Seller may apply minimum quantities to specific items. Orders placed for less than the stated minimum applicable to an item will be automatically increased so that the minimum quantity is supplied.
4. Price And Payment
4.1 All prices quoted are in Australian dollars and are subject to change without notice.
4.2 All orders are to be placed either via the website, fax or email. Telephone orders are usually not accepted. The Seller will not be responsible for incorrect supply of orders placed by telephone.
4.3 The Price shall be as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied.
4.4 Payment for the Goods purchased from Peek A Blue must be made by cleared funds with placement of the order unless otherwise agreed by Peek A Blue.
4.5 The Seller may withhold delivery of the Goods until the Buyer has paid for them, in which event payment shall be made before the
delivery date.
4.6 If Peek A Blue has agreed to provide a credit account to the customer, the customer must pay Peek A Blue by way of cleared funds within the agreed payment terms which are either 7, 14 or 30 days from the date of the issue of a Tax Invoice.
4.7 Failure to pay a credit account by the due date, may result in automatic cancellation without notification of the credit account with arrangements reverting back to proforma status.
4.8 The Seller will accept and supply orders of less than one hundred and fifty dollars ($150) value only by prior arrangement. A small order handling charge may be charged by the Seller.
4.9 The Seller may agree to prioritise orders for urgent delivery at the request of the Buyer. An urgent order handling charge may be charged by the Seller.
4.10 Payment will made by cheque, bank cheque, credit card, direct credit, or by any other method as agreed to between the Buyer and the Seller.
4.11The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable.
5. Delivery Of Goods / Services
5.1 Whilst the Seller will endeavor to supply orders as soon as possible the Buyer acknowledges that the delivery of orders placed may be impacted by coral harvesting constraints and the volume of sales following trade fairs or the extent of artisan expertise required for the creation of certain manufactured product.
5.2 The Seller will dispatch simple orders where all stock is available within 7 days of receipt of the order.
5.3 If orders require an extended time to supply, as in the case of artworks or specialty coral, the Seller will make extended delivery and payment arrangements with the Buyer that are mutually acceptable to both parties.
5.4 By ordering coral, the Buyer acknowledges the fragile nature of coral. The Seller undertakes to pack the coral securely to minimize the risk of damage, and the goods will always leave the Seller's premises in the best possible condition. Some damage may occur during transit. The loss of minor tips of coral is a normal event that does not detract from the overall appearance of the coral, in which case the coral is not considered to be damaged or defective goods.
5.5 The Seller shall determine the safest method of dispatch for the Goods. If alternative instructions are received from the Buyer, then the Buyer accepts all risk associated with carriage of the goods.
5.6 Insurance of goods in transit is the responsibility of the Buyer.
5.7 The Buyer must ensure the Seller has provided the Seller with the current delivery address and that a person is available to accept the delivery.
5.8 Delivery of the Goods shall be made to the Buyer’s address. The Buyer shall make all arrangements necessary to ensure the address is correct and to take delivery of the Goods whenever they are tendered for delivery. The signature of the Buyer or Buyer's representative is required for all deliveries.
5.9 The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity ordered.
5.10 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.11The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods promptly or at all.
6. Risk
6.1 If the Seller retains property in the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
6.5 If the Buyer exports coral, it is the Buyer’s responsibility to ensure compliance with all legislative requirements of both the exporting and importing countries. The Seller may offer advice, but will not be liable for any consequence, event or loss arising from the export of the coral.
6.6 If the Seller exports coral on behalf of the Buyer, it is the Buyer's responsibility to ensure compliance with all legislative requirements of the importing countries. The Seller will not be liable for any event or loss arising from the export of the coral on behalf of the Buyer.
7. Buyer’s Disclaimer
7.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to him by any servant or agent of the Seller and the Buyer acknowledges that he buys the Goods relying solely upon his own skill and judgment and that the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Buyer and shall not be transferable to any subsequent Buyer.
7.2 Sales Orders placed by the Buyer at Trade Fairs are legally binding contracts and are subject to the above provision. The Seller will accept cancellation of Trade Fair Sales Orders prior to the order being prepared and packed. Cancellations after packing an order will be treated as Default (see 12.), and may influence the decision of the Seller to supply future orders.
8. Defect /Returns
8.1 When accepting delivery of the Goods, the buyer shall note any visible mishandling or visible damage to the packages received and record such mishandling or damage when signing any Proof of Delivery document and report such mishandling and damage to the person making the delivery of the Goods and must also advise the Seller.
8.2 While every effort will be taken by the Seller to supply good quality shells and coral in a clean condition, the Seller will take no responsibility for any variation of form, shape, quality, size, colour and appearance or availability of this product between sale samples and photographs and the final product.
8.3 Delays in payment may result in packaged Goods undergoing some alteration to the original appearance or condition of the goods. The Seller will not be held responsible for remedying such variations.
8.4 The Buyer shall inspect the Goods on delivery and shall within one (1) day of delivery notify the Seller in writing of any alleged defect, discrepancy in quantity, damage or failure to comply with the description or quote. If the Buyer believes the Goods are defective in any way, the Buyer shall provide the Seller with digital photos of the damaged or defective goods within two days of receipt of the goods. If the Buyer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
8.5 For defective Goods, which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods, repairing the Goods, or revaluing the Goods for a partial or full refund, provided that the Buyer has complied with provisions of clauses 8.1 and 8.2. The Seller may request that the Buyer return the defective or damaged Goods.
8.6 Goods incorrectly ordered may be returned for credit within 5 days at the Buyer's expense, subject to the prior approval of the Seller. An administration and handling charge of 25% of the purchase price of the goods will be deducted from the refund. No returns or credits are permitted for Goods where the Buyer has changed his mind. The Buyer will not be entitled to a refund of shipping costs.
8.7 The Seller must obtain and retain a parcel tracking number for the returned goods as proof of return.
9. Warranty
9.1 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
10. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
11. Copyright, Intellectual Property & Website Access
11.1 Where the Seller has designed or drawn Goods and supplied photographs, then the copyright in those designs and drawings and photographs shall remain vested in the Seller, and shall only be used by the Buyer at the Seller’s discretion.
11.2 Conversely, in such a situation, where the Buyer has supplied photographs, drawings or designs, the Seller in its sale conditions
may look for an indemnity (the specifications and design of the Goods (including copyright, design right or other intellectual property in them) shall as between the parties be the property of the Seller).
11.3 Where any designs or specifications have been supplied by the Buyer for manufacture, by or to the order of the Seller then the Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
11.4 All material developed and published by the Seller remains the intellectual property of the Seller.
11.5 Website access will only be granted to persons or businesses with a current ABN who have registered and have been approved by the Seller and granted access to the site with a login ID and password. The Seller may deny access to the site to any person at any time.
11.6 The Buyer's website login ID and password to access the site are non-transferable and strictly confidential. No other person is authorised to use the Buyer's login ID and password to access the site. The Buyer will be held responsible for any unauthorised access that occurs using the Buyer's login ID and password.
11.7 All material on the Seller's website, including concepts, photos, images, content, designs and text, is the intellectual property of Peek A Blue and is protected by Australian copyright laws and international copyright treaties. The Buyer may not alter the site, remove material from it, add to it, add links either to or from another website or copy any part of the website.
11.9 Upon breach of any provisions of conditions of access or use of website by the Buyer, the Seller may issue a warning, suspend or prevent access to website. The Seller may terminate the right of the Buyer to use the site at any time and for any reason without prior notice to the Buyer.
11.10 Breaches of the terms and conditions of copyright, intellectual property and website access will result in the immediate and permanent termination of access and could result in legal action.
12. Default & Consequences of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgment.
12.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all the Seller’s costs and disbursements including on a solicitor and own client basis and in addition all of the Seller’s nominees costs of collection.
12.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
12.4 If any account remains unpaid at the end of the second month after supply of the goods or services the following shall apply: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied monthly for administration fees which sum shall become immediately due and payable.
12.5 In the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer; then without prejudice to the Seller’s other remedies at law:
(d) the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and
(e) all amounts owing to the Seller shall, whether or not due for payment, immediately become payable.
13. Title
13.1 It is the intention of the seller and agreed by the Buyer that property in the Goods shall not pass until:
(a) the Buyer has paid all amounts owing for the particular Goods, and
(b) the Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer, and that the Goods shall be kept separate until the Seller shall have received payment and all other obligations of the Buyer are met.
13.2 It is further agreed that:
(a) until such time as ownership of the Goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
(b) if the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
14. Security And Charge
14.1 Notwithstanding anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the Buyer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registrable or not) including such other terms and conditions as the Seller and/or the Seller’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Buyer and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Buyer’s and/or Guarantor’s name as may be necessary to secure the said Buyer’s and/or Guarantor’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Seller’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
15. Cancellation
15.1 The Seller may cancel delivery of Goods at any time before the Goods have been dispatched. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
16. Privacy Act 1988
16.1 The Buyer and/or the Guarantor/s agree for the Seller to obtain from a credit-reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relation to credit provided by the Seller.
16.2 The Buyer and/or the Guarantor/s agree that the Seller may exchange information about Buyer and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Buyer;
(b) To notify other credit providers of a default by the Buyer;
(c) To exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and
(d) To assess the credit worthiness of Buyer and/or Guarantor/s.
16.3 The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18 K (1)(h) Privacy Act 1988).
16.4 The Buyer agrees that Personal Data provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Buyer and Seller or required by law from time to time:
(a) provision of Services & Goods;
(b) marketing of Services and or Goods by the Seller, its agents or distributors in relation to the Services and Goods;
(c) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to provision of Services/Goods;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer; and
(e) enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the Buyer’s account in relation to the Services and Goods.
16.5 The Seller may give, information about the Buyer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Buyer; and or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.
17. General
17.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and
enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 All Goods supplied by the Seller are subject to the laws of Queensland and the Seller takes no responsibility for changes in the law
which affect the Goods supplied.
17.3 The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.
17.4 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Services.
17.5 The Buyer shall not set off against the Price amounts due from the Seller.
17.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
17.7 The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, the new Terms & Conditions will be displayed on the Seller’s website.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
17.9 The Seller's business premises may only be attended by any party strictly by appointment only.
1. Definitions
1.1 Seller” shall mean Peek A Blue Pty Ltd and its successors and assigns.
1.2 “Buyer” shall mean the Buyer or any person acting on behalf of and with the authority of the Buyer.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Buyer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6 “Price” shall mean the cost of the Goods as agreed between the Seller and the Buyer subject to clause 4 of this contract.
2. Acceptance
2.1 Any instructions received by the Seller from the Buyer for the supply of Goods and/or the Buyer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
2.2 The Seller reserves the right to refuse supply of any or all products to any Buyer without explanation.
2.3 Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
2.4 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in
accordance with these terms and conditions or with the written consent of the manager of the Seller.
2.5 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
2.6 The Buyer undertakes to give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s address, facsimile number, email address or business practice).
3. Goods
3.1 In entering into a contract to purchase Goods supplied by the Seller, the Buyer accepts that the product supplied is a natural product with inherent individual variations in form, shape, quality, size, colour, appearance and availability.
3.2 While every effort will be taken by the Seller to supply Goods in good condition, the Seller will take no responsibility for any variation in the quality, size and description of natural products between sale samples, photographs, written descriptions and the final product supplied, nor the does the Seller guarantee the availability of such products from itself or its suppliers.
3.3 As coral is a protected species, we do not sell coral for presentation or sale on a customer website, Facebook, Ebay, Etsy or any other media, unless by prior written agreement. We do not sell coral for sale at markets and other similar venues.
3.4 Where average size ranges are displayed, these are approximate and are offered only as a general indication of the size relative to a particular price. There may be variations where the size of individual goods may be less than or exceed the average size range for that price. When purchasing, the Buyer accepts that there is no obligation on the Seller to measure each and every item supplied.
3.5 If the Seller is unable to supply the Goods as ordered the closest alternative will be supplied unless otherwise instructed by the Buyer.
3.6 The Seller may apply minimum quantities to specific items. Orders placed for less than the stated minimum applicable to an item will be automatically increased so that the minimum quantity is supplied.
4. Price And Payment
4.1 All prices quoted are in Australian dollars and are subject to change without notice.
4.2 All orders are to be placed either via the website, fax or email. Telephone orders are usually not accepted. The Seller will not be responsible for incorrect supply of orders placed by telephone.
4.3 The Price shall be as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied.
4.4 Payment for the Goods purchased from Peek A Blue must be made by cleared funds with placement of the order unless otherwise agreed by Peek A Blue.
4.5 The Seller may withhold delivery of the Goods until the Buyer has paid for them, in which event payment shall be made before the
delivery date.
4.6 If Peek A Blue has agreed to provide a credit account to the customer, the customer must pay Peek A Blue by way of cleared funds within the agreed payment terms which are either 7, 14 or 30 days from the date of the issue of a Tax Invoice.
4.7 Failure to pay a credit account by the due date, may result in automatic cancellation without notification of the credit account with arrangements reverting back to proforma status.
4.8 The Seller will accept and supply orders of less than one hundred and fifty dollars ($150) value only by prior arrangement. A small order handling charge may be charged by the Seller.
4.9 The Seller may agree to prioritise orders for urgent delivery at the request of the Buyer. An urgent order handling charge may be charged by the Seller.
4.10 Payment will made by cheque, bank cheque, credit card, direct credit, or by any other method as agreed to between the Buyer and the Seller.
4.11The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable.
5. Delivery Of Goods / Services
5.1 Whilst the Seller will endeavor to supply orders as soon as possible the Buyer acknowledges that the delivery of orders placed may be impacted by coral harvesting constraints and the volume of sales following trade fairs or the extent of artisan expertise required for the creation of certain manufactured product.
5.2 The Seller will dispatch simple orders where all stock is available within 7 days of receipt of the order.
5.3 If orders require an extended time to supply, as in the case of artworks or specialty coral, the Seller will make extended delivery and payment arrangements with the Buyer that are mutually acceptable to both parties.
5.4 By ordering coral, the Buyer acknowledges the fragile nature of coral. The Seller undertakes to pack the coral securely to minimize the risk of damage, and the goods will always leave the Seller's premises in the best possible condition. Some damage may occur during transit. The loss of minor tips of coral is a normal event that does not detract from the overall appearance of the coral, in which case the coral is not considered to be damaged or defective goods.
5.5 The Seller shall determine the safest method of dispatch for the Goods. If alternative instructions are received from the Buyer, then the Buyer accepts all risk associated with carriage of the goods.
5.6 Insurance of goods in transit is the responsibility of the Buyer.
5.7 The Buyer must ensure the Seller has provided the Seller with the current delivery address and that a person is available to accept the delivery.
5.8 Delivery of the Goods shall be made to the Buyer’s address. The Buyer shall make all arrangements necessary to ensure the address is correct and to take delivery of the Goods whenever they are tendered for delivery. The signature of the Buyer or Buyer's representative is required for all deliveries.
5.9 The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity ordered.
5.10 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.11The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods promptly or at all.
6. Risk
6.1 If the Seller retains property in the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
6.5 If the Buyer exports coral, it is the Buyer’s responsibility to ensure compliance with all legislative requirements of both the exporting and importing countries. The Seller may offer advice, but will not be liable for any consequence, event or loss arising from the export of the coral.
6.6 If the Seller exports coral on behalf of the Buyer, it is the Buyer's responsibility to ensure compliance with all legislative requirements of the importing countries. The Seller will not be liable for any event or loss arising from the export of the coral on behalf of the Buyer.
7. Buyer’s Disclaimer
7.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to him by any servant or agent of the Seller and the Buyer acknowledges that he buys the Goods relying solely upon his own skill and judgment and that the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Buyer and shall not be transferable to any subsequent Buyer.
7.2 Sales Orders placed by the Buyer at Trade Fairs are legally binding contracts and are subject to the above provision. The Seller will accept cancellation of Trade Fair Sales Orders prior to the order being prepared and packed. Cancellations after packing an order will be treated as Default (see 12.), and may influence the decision of the Seller to supply future orders.
8. Defect /Returns
8.1 When accepting delivery of the Goods, the buyer shall note any visible mishandling or visible damage to the packages received and record such mishandling or damage when signing any Proof of Delivery document and report such mishandling and damage to the person making the delivery of the Goods and must also advise the Seller.
8.2 While every effort will be taken by the Seller to supply good quality shells and coral in a clean condition, the Seller will take no responsibility for any variation of form, shape, quality, size, colour and appearance or availability of this product between sale samples and photographs and the final product.
8.3 Delays in payment may result in packaged Goods undergoing some alteration to the original appearance or condition of the goods. The Seller will not be held responsible for remedying such variations.
8.4 The Buyer shall inspect the Goods on delivery and shall within one (1) day of delivery notify the Seller in writing of any alleged defect, discrepancy in quantity, damage or failure to comply with the description or quote. If the Buyer believes the Goods are defective in any way, the Buyer shall provide the Seller with digital photos of the damaged or defective goods within two days of receipt of the goods. If the Buyer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
8.5 For defective Goods, which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods, repairing the Goods, or revaluing the Goods for a partial or full refund, provided that the Buyer has complied with provisions of clauses 8.1 and 8.2. The Seller may request that the Buyer return the defective or damaged Goods.
8.6 Goods incorrectly ordered may be returned for credit within 5 days at the Buyer's expense, subject to the prior approval of the Seller. An administration and handling charge of 25% of the purchase price of the goods will be deducted from the refund. No returns or credits are permitted for Goods where the Buyer has changed his mind. The Buyer will not be entitled to a refund of shipping costs.
8.7 The Seller must obtain and retain a parcel tracking number for the returned goods as proof of return.
9. Warranty
9.1 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
10. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
11. Copyright, Intellectual Property & Website Access
11.1 Where the Seller has designed or drawn Goods and supplied photographs, then the copyright in those designs and drawings and photographs shall remain vested in the Seller, and shall only be used by the Buyer at the Seller’s discretion.
11.2 Conversely, in such a situation, where the Buyer has supplied photographs, drawings or designs, the Seller in its sale conditions
may look for an indemnity (the specifications and design of the Goods (including copyright, design right or other intellectual property in them) shall as between the parties be the property of the Seller).
11.3 Where any designs or specifications have been supplied by the Buyer for manufacture, by or to the order of the Seller then the Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
11.4 All material developed and published by the Seller remains the intellectual property of the Seller.
11.5 Website access will only be granted to persons or businesses with a current ABN who have registered and have been approved by the Seller and granted access to the site with a login ID and password. The Seller may deny access to the site to any person at any time.
11.6 The Buyer's website login ID and password to access the site are non-transferable and strictly confidential. No other person is authorised to use the Buyer's login ID and password to access the site. The Buyer will be held responsible for any unauthorised access that occurs using the Buyer's login ID and password.
11.7 All material on the Seller's website, including concepts, photos, images, content, designs and text, is the intellectual property of Peek A Blue and is protected by Australian copyright laws and international copyright treaties. The Buyer may not alter the site, remove material from it, add to it, add links either to or from another website or copy any part of the website.
11.9 Upon breach of any provisions of conditions of access or use of website by the Buyer, the Seller may issue a warning, suspend or prevent access to website. The Seller may terminate the right of the Buyer to use the site at any time and for any reason without prior notice to the Buyer.
11.10 Breaches of the terms and conditions of copyright, intellectual property and website access will result in the immediate and permanent termination of access and could result in legal action.
12. Default & Consequences of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgment.
12.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all the Seller’s costs and disbursements including on a solicitor and own client basis and in addition all of the Seller’s nominees costs of collection.
12.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
12.4 If any account remains unpaid at the end of the second month after supply of the goods or services the following shall apply: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied monthly for administration fees which sum shall become immediately due and payable.
12.5 In the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer; then without prejudice to the Seller’s other remedies at law:
(d) the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and
(e) all amounts owing to the Seller shall, whether or not due for payment, immediately become payable.
13. Title
13.1 It is the intention of the seller and agreed by the Buyer that property in the Goods shall not pass until:
(a) the Buyer has paid all amounts owing for the particular Goods, and
(b) the Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer, and that the Goods shall be kept separate until the Seller shall have received payment and all other obligations of the Buyer are met.
13.2 It is further agreed that:
(a) until such time as ownership of the Goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
(b) if the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
14. Security And Charge
14.1 Notwithstanding anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the Buyer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registrable or not) including such other terms and conditions as the Seller and/or the Seller’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Buyer and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Buyer’s and/or Guarantor’s name as may be necessary to secure the said Buyer’s and/or Guarantor’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Seller’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
15. Cancellation
15.1 The Seller may cancel delivery of Goods at any time before the Goods have been dispatched. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
16. Privacy Act 1988
16.1 The Buyer and/or the Guarantor/s agree for the Seller to obtain from a credit-reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relation to credit provided by the Seller.
16.2 The Buyer and/or the Guarantor/s agree that the Seller may exchange information about Buyer and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Buyer;
(b) To notify other credit providers of a default by the Buyer;
(c) To exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and
(d) To assess the credit worthiness of Buyer and/or Guarantor/s.
16.3 The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18 K (1)(h) Privacy Act 1988).
16.4 The Buyer agrees that Personal Data provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Buyer and Seller or required by law from time to time:
(a) provision of Services & Goods;
(b) marketing of Services and or Goods by the Seller, its agents or distributors in relation to the Services and Goods;
(c) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to provision of Services/Goods;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer; and
(e) enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the Buyer’s account in relation to the Services and Goods.
16.5 The Seller may give, information about the Buyer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Buyer; and or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.
17. General
17.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and
enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 All Goods supplied by the Seller are subject to the laws of Queensland and the Seller takes no responsibility for changes in the law
which affect the Goods supplied.
17.3 The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.
17.4 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Services.
17.5 The Buyer shall not set off against the Price amounts due from the Seller.
17.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
17.7 The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, the new Terms & Conditions will be displayed on the Seller’s website.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
17.9 The Seller's business premises may only be attended by any party strictly by appointment only.
