Online Terms of Use / Terms & Conditions of Trade
Eboltshop Pty Ltd (ABN 74 678 834 412) welcomes you, the viewer, and user of this website. By using or accessing this website, you acknowledge that you have read, understood, and agree to be bound by the following terms and conditions (“Terms of Use”). As a condition of your use of this website, you warrant to Eboltshop Pty Ltd that you will not use this website for any purpose prohibited by these Terms of Use. If you have a complaint about any of the content that may be published on this website or if you cannot find the information you need, please make an enquiry via the contact page and get help from a Customer Service representative
1 General Use Terms Eboltshop Pty Ltd controls and operates this website (excluding any linked third-party sites) from its offices within Australia. If you choose to access this website from another location, you must ensure that your access to this website is not illegal or prohibited by laws that apply to you or in your location. All content on the pages of this website is for general information and use only and is subject to change without notice. Every effort is made to keep the website up and running smoothly. However, to the maximum extent permitted by law, Eboltshop Pty Ltd accepts no responsibility for and will not be liable for any loss or damage (including for any indirect or consequential loss) relating to access or use of this website, including the use or misuse of the information provided on this website.
Eboltshop Pty Ltd may without notice suspend the website or disconnect or deny you access to any part of the website during:
- any technical failure.
- you breach these Terms of Use.
- maintenance period that Eboltshop Pty Ltd decides to utilise.
- if you do, or allow to be done, anything which in our opinion may have the effect of jeopardising the operation of the Website.
Eboltshop Pty Ltd may make improvements and or changes to the website or the Content at any time without notice to you. Eboltshop Pty Ltd does not warrant that the site architecture or navigation will not change now or at any time into the future.
You access the website at your own risk, and you are responsible for compliance with the laws of your jurisdiction (in your home country) and these Terms of Use. We do not represent or warrant that Content on the Website complies with the laws of any country outside of Australia. If you access the website from outside Australia, you do so at your own risk.
2 Revisions of Terms of Use Eboltshop Pty Ltd may revise or amend these Terms of Use at any time in its absolute discretion by posting revised terms on this website. Any amendment of these Terms of Use will be effective immediately. You agree that in the event that any provision of these Terms of Use is found to be unenforceable, such provision will be severed, and the remainder of these Terms of Use will remain in full force and effect.
3 Website Contents Ownership & Use Restrictions The material on this website is protected by copyright under the laws of Australia and other countries through international treaties. Unless otherwise indicated, all rights (including copyright) in all content, other material, and compilations contained in or used to create or support this website, including text, graphics, logos, button icons, video images, audio clips, and navigational and other software (collectively referred to as the “Content”) are owned, licensed, or controlled and are reserved by Eboltshop Pty Ltd and its related companies, affiliates, licensors, and licensees. Nothing contained on this website should be construed as granting any licence or right of use of any Content which is displayed on this website without the express written permission of the relevant owner.
4 Permitted Use of this website Eboltshop Pty Ltd grants you a limited licence to display, copy, download, and print in hard copy portions of this website solely for the proper and reasonable purposes of:
- for your own personal use or to inform others (for their personal use) about Eboltshop Pty Ltd’s business or products.
- placing an Order with Eboltshop Pty Ltd; or
- using this website as a technical resource provided that you do not modify the website and that Eboltshop Pty Ltd retains all copyright and other proprietary notices contained in the Contents.
(together the “Permitted Uses”)
You must not, without Eboltshop Pty Ltd’s prior written consent, reproduce, alter, modify, or disseminate the information on this website for commercial purposes or other purposes that are not expressly permitted under these Terms of Use. If you wish to use the Content other than for personal non-commercial use, please contact Eboltshop Pty Ltd for further information.
5 Unauthorised use of this website Any use of this website beyond the Permitted Uses is prohibited and constitutes unauthorised use of this website. You are not authorised, without the prior written permission of Eboltshop Pty Ltd and each other owner of rights in Content that you access via this website, to reproduce, frame, download, store (in any medium), communicate, show or play in public, adapt, change, or create a derivative work from that Content. Any unauthorised use of this website and its Contents will automatically terminate the licence granted above.
6 Protecting Your Log on Details You will need to register to use certain parts of this website. When registering, you will be issued with a username and password by Eboltshop Pty Ltd. You must keep your username and password safe and must not disclose this information to any third party. You are liable for all activity on any device carried out under this password and username. You agree to release and indemnify Eboltshop Pty Ltd in connection with any use of your username or password. Eboltshop Pty Ltd may restrict, suspend, or cancel your account and access to restricted sections of this website at any time without prior notice if you breach the Terms of Use. If you become aware of any unauthorised use of your account, please notify Eboltshop Pty Ltd immediately.
7 Contributing Content You are responsible for all the content you:
- contribute to this website, including text, photos, videos, audio, and links; or
- submit to Eboltshop Pty Ltd via email or otherwise (Your Content).
By contributing Your Content, you grant Eboltshop Pty Ltd an irrevocable, royalty-free, non-exclusive licence to use Your Content in any way that Eboltshop Pty Ltd wishes. You confirm that you own or have the right to use any copyright material included in Your Content (including music, photos, quotes, and excerpts of video or audio), that you have the permission of anyone appearing or performing in Your Content, and that you are not infringing any person’s rights by submitting such content to Eboltshop Pty Ltd. If Eboltshop Pty Ltd suspends or terminates your account for any reason, Your Content may continue to be available online and used by Eboltshop Pty Ltd after such suspension or termination.
You acknowledge that Eboltshop Pty Ltd does not moderate, control or authorise you uploading Content to the website and you alone, will be responsible for any breach of any law that is caused directly or indirectly by infringing uploading Content that is illegal or breaches a third party’s intellectual property rights, Eboltshop Pty Ltd reserves the right to remove, delete, modify or change Your Content.
You consent to any act or omission which would otherwise constitute an infringement of your moral rights, and if you add any content in which any third party has moral rights, you must also ensure that the third party also consents in the same manner
8 General Prohibitions Without limiting clause 5, you must not:
- upload, post, transmit, or otherwise make available through this website any material which:
- violates or infringes the rights of others (including their privacy and intellectual property rights).
- is unlawful, threatening, abusive, defamatory, invasive of privacy, vulgar, obscene, profane, or which may harass or cause distress or inconvenience to, or incite hatred of, any person.
- encourages conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any law.
- is false or misleading;
- identifies a person, or which can be used to identify a person (including any copy, photos or other pictorial representations), unless you have obtained that person's authority.
- restricts or inhibits any other user from using or enjoying this website.
- affects the functionality or operation of this website or its servers or the functionality or operation of any user's computer systems (e.g. by transmitting a computer virus or other harmful component, whether or not knowingly); or
- breaches any standards, content requirements, or codes promulgated by any relevant authority, including authorities that require Eboltshop Pty Ltd to take remedial action under any applicable industry code.
- data mine or conduct automated searches on the website or the Content, whether through the use of additional software or otherwise;
- tamper with, hinder the operation of, or make unauthorised modifications to the website or any Content;
- knowingly transmit any virus, worm or other disabling feature to or via the website.
- advertise or offer to sell any goods or services, or conduct or forward surveys, contests, or chain letters from our domain; or
- use the website to send commercial, unsolicited or bulk electronic messages to anyone or in any other way which would constitute an infringement of the Spam Act 2003 (Cth).
9 Indemnity You agree to indemnify and will keep Eboltshop Pty Ltd indemnified against any claim, demand, injury, damage, loss, expense, cost, or liability (whether direct or indirect) made against or suffered by Eboltshop Pty Ltd as a result of or in connection with your use of this website, your breach of these Terms of Use, or your breach of any rights of third parties. Eboltshop Pty Ltd reserves the right to assume the defence and control of any matter subject to the indemnity contained in this clause, and you agree to provide all assistance as reasonably requested by Eboltshop Pty Ltd in the defence of such claim.
10 Disclaimer The content contained on this website is provided by Eboltshop Pty Ltd in good faith and on an 'as is' basis, and use of this website is at your own risk. The Content is believed to be accurate, complete, current, and reliable at the date it was placed on this website. Eboltshop Pty Ltd and its related companies, affiliates, licensors, or licensees and their respective directors, officers, employees, or agents make no representation or warranty as to the accuracy, completeness, currency, or reliability of the Content contained on this website (including in relation to any products or services) or that this website is free from any computer viruses or other defects or that your access to this website will be uninterrupted, secure, or error-free.
11 Limitation of liability Nothing in these terms of use is or should be interpreted as an attempt to modify, limit, or exclude any right or remedy or any guarantee, term, condition, warranty, undertaking, inducement, or representation implied or imposed by legislation which cannot be modified, limited, or excluded. We exclude to the extent permitted by law all other guarantees, terms, conditions, warranties, undertakings, inducements, or representations, whether express or implied, statutory or otherwise, which would otherwise be implied into these terms of use concerning the activities covered by these terms of use. You agree that you do not rely on any guarantee, term, condition, warranty, undertaking, inducement, or representation made by us or on our behalf which is not expressly stated in these terms of use. In particular, we make no warranty or representation that this website will always be available, accessible, secure, or operate without error. Where any legislation implies or imposes a guarantee, term, condition, warranty, undertaking, inducement, or representation in relation to these terms of use and we are not able to exclude that guarantee, term, condition, warranty, undertaking, inducement, or representation (Non-Excludable Provision) and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to (at our election): a) in the case of goods, the repair or replacement of the goods or the supply of equivalent goods (or the payment of the cost of doing so); and b) in the case of services, the supplying of the services again (or the payment of the cost of doing so).
Subject to our obligations under the Non-Excludable Provisions: a) we do not accept responsibility for any loss or damage however caused (including through negligence) which you may directly or indirectly suffer in connection with your use of this website or any linked website, nor do we accept any responsibility for any loss arising out of your use of or reliance on Content; and b) we are not liable to you or any third party for any economic loss, loss of actual or anticipated profits, loss of revenue, loss of savings, loss of production, loss of business, loss of opportunity, loss of access to markets, loss of goodwill, loss of reputation, loss of credit, loss of publicity, loss of data, loss of use, loss of interest, or loss arising from business interruption or any special, indirect, consequential, incidental, punitive, exemplary, or unforeseeable loss or any similar loss arising in connection with any use or access or any inability to use or access or misuse by you or any other party of this website or otherwise in connection with any Content, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, breach of warranty or guarantee under an indemnity, or otherwise, and whether or not that loss was foreseeable, even if we have been advised of the possibility of such loss.
12 Online purchase All purchases made through this website will be subject to Eboltshop Pty Ltd’s Online Terms of Use and Conditions of Trade.
13 Third Party Links The website may include links to Linked Websites. These links are provided for your convenience only to provide further contact or information. These links may not remain current or be maintained. The inclusion of a Linked Website should not be construed as any endorsement, approval, recommendation, or preference by Eboltshop Pty Ltd of the owners or operator of the Linked Website or for any information, product, or service referred to on the Linked Website. Eboltshop Pty Ltd has no responsibility for or control over the content of the Linked Websites or their availability. Your use of any Linked Website is entirely at your own risk, and you will be bound by the terms and conditions (if any) posted on the Linked Website and not by these Terms of Use. Eboltshop Pty Ltd is not responsible for the privacy practices of any third-party social media or other service providers that you can access through this website.
14 Governing Law The laws of the State of Queensland, Australia, shall govern these Terms of Use, and by using this website, you hereby agree to submit to the jurisdiction of the courts of Queensland, Australia, in respect of any proceedings in connection with these Terms of Use or this website.
15 Severance If any part of these Terms of Use are found to be void, unlawful or unenforceable then that part will be deemed to be severable from the balance of the document and the severed part will not affect the validity and enforceability of the remaining terms and conditions.
16 Privacy Personal information provided to Eboltshop Pty Ltd via this website will be handled in accordance with Eboltshop Pty Ltd’s Privacy Policy.
17. Waiver If Eboltshop Pty Ltd does not act in relation to a particular breach by you of these Terms of Use, this will not be treated as a waiver by Eboltshop Pty Ltd of its right to act with respect to subsequent or similar breaches.
Terms & Conditions of Trade
Definitions
In this agreement the following terms have the corresponding meaning:
“Australian Consumer Law” means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
“Company” means Eboltshop Pty Ltd (ABN 74 678 834 412).
"Customer” means the party placing the Order with or purchasing Products from Eboltshop Pty Ltd.
“MTO” includes any Product that has been specially ordered for a customer (whether locally or from overseas) or which is specially manufactured for the Customer or is not a stocked item.
"Order" means an offer by a customer to purchase Products from Eboltshop Pty Ltd.
“PPS Act” means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as varied from time to time.
“PPSR” refers to the Personal Property Securities Register established under the PPS Act.
“Products” means fasteners, bolts, nuts, allthread rod, screws, anchors, fastening tools, and other associated products and services for the mining, construction, oil, and manufacturing industries and includes any product or service ordered by the Customer from Eboltshop Pty Ltd or supplied by Eboltshop Pty Ltd on the Order of the Customer.
“Trading Ts&Cs” means these Terms & Conditions of Trade or the current Terms & Conditions of Trade as varied and applicable from time to time.
“Writing” includes letter, fax, email, SMS, and other similar electronic communication methods.
1. Sale Terms
1.1. The Trading Ts&Cs apply to all agreements between Eboltshop Pty Ltd and the Customer, including all Orders or other sales, and will prevail over all prior conditions previously agreed between the parties.
1.2. The terms of the Trading Ts&Cs may be varied from time to time by Eboltshop Pty Ltd by notice to the Customer. Publication of the amended Trading Ts&Cs on the website of Eboltshop Pty Ltd located at www.eboltshop.com.au will be deemed to be notice of that amendment. The amended Trading Ts&Cs will apply to any Order or part of an Order from the date on which Eboltshop Pty Ltd notifies the Customer of that change, but such amendments will not affect any sale or services which Eboltshop Pty Ltd has already agreed to provide before such notice was given.
1.3. Eboltshop Pty Ltd may, but will not otherwise be required nor responsible to notify the Customer of the existence or content of any amendments to the Trading Ts&Cs.
2. Order and Acceptance
2.1. Any Order submitted to Eboltshop Pty Ltd by a Customer shall be deemed to be made pursuant to the terms of the Trading Ts&Cs.
2.2. Customers who place Orders online via Eboltshop Pty Ltd’s website are deemed to have accepted the Terms of Use located at www.eboltshop.com.au.
2.3. Any Order placed or made by the Customer for the purchase of the Products shall be an irrevocable offer and shall constitute an unqualified acceptance by the Customer of the Trading Ts&Cs.
2.4. Eboltshop Pty Ltd reserves the right to accept or reject any Order for any reason, including without limitation the unavailability of any Product, an error in the Product on Eboltshop Pty Ltd website (including in a description, an image, price or otherwise), or an error in your Order. Eboltshop Pty Ltd may require additional verification or information before accepting any Order.
2.5. Eboltshop Pty Ltd may accept any Order in whole or in part by providing confirmation of the Order. Acceptance may be oral or in writing at Eboltshop Pty Ltd’s discretion.
2.6. Accepted Orders may not be varied or cancelled by the Customer without Eboltshop Pty Ltd’s written consent and (subject to the conditions set out herein) there is no right of return and where consent is provided, may be subject to administrative charges.
2.7. Delivery by Eboltshop Pty Ltd of Products pursuant to an Order made by the Customer (whether by single or multiple delivery) will be taken as acceptance by Eboltshop Pty Ltd of the Order to the extent Products are delivered.
2.8. Eboltshop Pty Ltd reserves the right to substitute Products that are not available for comparable Products of equal or higher specification unless the order specifies that the Products are “not to be substituted”.
2.9 Where a deposit is required by the Company, the Order is conditional on the Customer paying the deposit amount to the Company on the terms stipulated by the Company.
2.10 If any Products are unable to be supplied when an Order is placed the Company reserves the right to cancel the Order and refund any amount paid for the Products impacted.
2.11 The Company may withdraw or suspend from sale any item displayed for sale, either temporarily or permanently, at any time. The Company will not be liable to the Customer for any loss the Customer or any third party suffer as a result of a withdrawal or suspension of sale of a particular item.
2.12 The Company reserves the right not to honour any incorrect offers represented made by genuine human or system error. When an Order is affected by an error (or e.g., in a description, an image, price or otherwise), the Company will reject that part of the Order affected by the error. The Customer will be refunded the value of that part of the Order affected by the error and the Company will fulfil the remainder of the Order. 3. Price
3.1. The price of the Products shall be as agreed in Writing between the parties or, where there is no agreed price, the price will be such amount as indicated on invoices provided by Eboltshop Pty Ltd to the Customer regarding Products ordered.
3.2. If Eboltshop Pty Ltd’s cost of supplying the Product increases by more than 10% due to any change in the amount of any GST and other taxes, currency fluctuations, duties, freight, and transport charges which may be applicable, Eboltshop Pty Ltd may, upon the provision of written notice to the Customer at any time before delivery, increase the price of the Products by the same amount.
3.3. Eboltshop Pty Ltd may charge, in addition to the price of the Products, the recovery rate for delivery, freight, and handling at rates dependent on distance and volume of Products supplied. Such rates are subject to change without notice.
3.4. Eboltshop Pty Ltd may set a minimum Order amount.
3.5. Any discount or rebate will only apply if the Customer and Eboltshop Pty Ltd agree in Writing.
3.6 The Company reserves the right to alter its list prices without notice.
3.7 All list prices are exclusive of GST and other government impost unless otherwise stated in writing.
4. Credit granting and payment
4.1. Eboltshop Pty Ltd may accept an Order and allow credit for part or all of its value or may accept an Order and require a deposit or pre-payment as a condition of delivery.
4.2. Credit approval, once granted, may be withdrawn at any time. Where credit approval has not been granted or is withdrawn, Eboltshop Pty Ltd will require payment for all Products supplied before delivery (cash or cleared funds). Where credit approval has been granted to the Customer, all invoices issued by Eboltshop Pty Ltd are due and payable by the date for payment agreed in Writing by the Customer and Eboltshop Pty Ltd, but if no agreement in Writing is made, then thirty (30) days following the end of the month in which a statement is posted to the Customer.
4.3 The Customer acknowledges and agrees that the credit to be provided to the Customer by the Company is to be applied wholly or predominantly for commercial purposes.
4.4 The Company may place a credit limit on the Customer. Such credit limit is for administrative purposes only, is not required to be communicated to the Customer and does not prevent the Company exceeding such limit. Where the Credit limit is reached the Company may request the Customer to pay all amounts outstanding before agreeing to provide further goods to the Customer.
5. Credit Policy and Default
5.1. In the event that the Customer fails to make any payment payable pursuant to these Trading Ts&Cs within the payment terms or breaches any of the warranties, obligations, or agreements, the Customer shall be in default.
5.2. Eboltshop Pty Ltd may charge interest on all amounts not paid by the Customer within the term for payment at a rate of 3.5% per calendar month calculated from the due date and accruing monthly therefrom until the date of payment.
5.3. If the Customer defaults in payment of any invoice when due and payable, the Customer shall indemnify Eboltshop Pty Ltd from and against all expenses, costs, and disbursements incurred by Eboltshop Pty Ltd in pursuing the debt, including all reasonably charged legal costs on a “solicitor and own client” basis and the fees charged to Eboltshop Pty Ltd by any mercantile agency.
5.4 If the Customer fails to pay the price by the due date, Eboltshop Pty Ltd may, at its sole discretion:
- cancel any provision of credit to the Customer.
- reverse any rebates and discounts allowed.
- change credit payment terms, including requiring cash pre-payment for any further Products ordered.
- provide to a credit reporting agency detail of the payment default.
- commence legal proceedings against the Customer (and any guarantors) for all outstanding amounts, interest, and costs.
- decline to supply further Products to the Customer and terminate any other agreement with the Customer.
- charge interest.
- exercise any other rights at law, including pursuant to the PPSA.
5.5. A certificate of debt signed by a representative of Eboltshop Pty Ltd, prepared with due care and from appropriate records, will be prima facie evidence and proof of money owing by the Customer to Eboltshop Pty Ltd at the time of the certificate.
5.6 The Company reserves the right to withdraw credit at any time, whether the Customer is in default under the Trading Ts&Cs or not.
5.7 Upon cancellation of credit with or without notice, all liabilities incurred by the Customer become immediately due and payable to the Company:
- if the Customer is in default, on the date the credit is cancelled.
- if the Customer is not in default, on the later of the date the credit is cancelled or the date on which such liabilities become due and payable under clause 4.2.
6. Disputed Charges
6.1. If the Customer objects to any invoiced item or amount, the Customer may withhold payment of the disputed amount, but only if on or before payment or the due date for payment (whichever occurs first), the undisputed amount of the invoice is paid in full and notice in Writing of the dispute is given to Eboltshop Pty Ltd setting out the details of the amount disputed, the reasons for the dispute, and the basis for calculating the disputed amount.
6.2. Eboltshop Pty Ltd will investigate all disputes. If the amount is found to be payable (in whole or in part), then the Customer must pay the due amount within 7 days of receiving notice of the amount payable by the Customer and the basis of the decision.
6.3. Invoiced amounts that are not objected to in Writing within 30 days of the due date will be deemed to be correctly charged and accepted by the Customer, and the Customer waives all claims against the invoice.
7. GST
7.1. Words used in this clause 7 that are defined or used in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning as in that Act unless the context indicates otherwise.
7.2. Unless expressly included, all amounts of consideration expressed or described in store, on the company’s website or in any agreement the subject of the Trading Ts&Cs, are GST exclusive. The Customer must pay an additional amount equal to any applicable GST. The additional amount must be paid when the other consideration is payable or at any earlier time that Eboltshop Pty Ltd is obliged to pay or allow credit for the GST.
7.3. Whenever an adjustment event occurs in relation to any taxable supply to which clause 6.2 applies:
- The supplier must determine the amount of the GST component of the consideration payable; and
- If the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to, or credited to the recipient, as applicable; and
- The supplier will issue an Adjustment Note to the recipient.
7.4. If either party is entitled under an agreement the subject of the Trading Ts&Cs to be reimbursed or indemnified by the other party for a cost or expense incurred in connection with such agreement, the reimbursement or indemnity payment must not include any GST component of the cost or expense to the extent that the cost or expense is the consideration for a creditable acquisition made by the party being reimbursed or indemnified or by its representative member.
7.5. If GST is payable on any taxable supply made by one party (Supplier) to another (Recipient) under an agreement the subject of the Trading Ts&Cs, then the Recipient will not be required to pay any amount to the Supplier in respect of that taxable supply unless it has first received a tax invoice from the Supplier.
7.6. Eboltshop Pty Ltd may require any evidence it reasonably requires establishing whether the supply of Products is GST-free or not. Where the Customer represents to Eboltshop Pty Ltd that supply of the Products is GST-free because they are being exported, the Customer indemnifies Eboltshop Pty Ltd for any GST, including penalties, that are payable because the supply is not GST-free.
8. Delivery
8.1. Delivery of the Products shall be deemed to have taken place when:
- the Customer takes possession of the Products at Eboltshop Pty Ltd’s address if the Products are collected; or
- the Products are delivered at the Customer’s nominated address (in the event that the Products are delivered by Eboltshop Pty Ltd or Eboltshop Pty Ltd’s nominated carrier); or
- the Customer’s nominated carrier takes possession of the Products, in which event the carrier shall be deemed to be the Customer’s agent.
8.2. Eboltshop Pty Ltd’s nominated address shall be the address specified in the Commercial Account Application Form or agreed in writing by Eboltshop Pty Ltd.
8.3. Delivery of Products may not be refused by the Customer after an Order has been accepted by Eboltshop Pty Ltd. Where prices are stated as inclusive of delivery, delivery is to the delivery point accepted by Eboltshop Pty Ltd.
8.4. The Customer must make all arrangements necessary to accept delivery of the Products whenever they are tendered for delivery.
8.5. In the event that the Customer is unable or unwilling to accept delivery of the Products as arranged, then Eboltshop Pty Ltd shall be entitled to charge all reasonable costs for the return and redelivery.
8.6. Delivery of Products to a third party or place nominated in any way by the Customer is deemed to be delivery to the Customer pursuant to these Trading Ts&Cs.
8.7. Eboltshop Pty Ltd shall not be liable for any loss or damage or expense arising from failure by Eboltshop Pty Ltd to deliver the Products at a specified time, promptly or at all, and the failure of Eboltshop Pty Ltd to deliver at a specific time or at all shall not entitle either party to treat this contract as repudiated.
8.8. A Proof of Delivery (“POD”) document signed by the Customer or anyone appearing to act on its behalf will be deemed confirmation by the Customer that the delivery of Products is in accordance with the Customer’s Order.
9. MTO Products
9.1. Subject to clause 17.2, any MTO Products shall not in any case be eligible for return.
9.2. Orders placed for MTO Products are to be supplied as per quantities run at the time of production that may vary by up to 10% of the total quantity in the Order.
9.3. Where MTO Products are held in inventory specifically for the Customer and the Customer:
- notifies Eboltshop Pty Ltd that it wishes to terminate its account with Eboltshop Pty Ltd and no longer requires the MTO Products held in inventory by Eboltshop Pty Ltd; or
- fails to purchase those MTO Products in accordance with its normal terms of trade with Eboltshop Pty Ltd for a period of three consecutive months, then the Customer must buy all remaining inventory of the MTO Products:
- within 10 days of receiving notification from Eboltshop Pty Ltd to do so (Notification); and d) at the price payable by the Customer for the MTO Products had the Products been ordered by the Customer from Eboltshop Pty Ltd on the date of the Notification.
9.4. If the Customer fails to comply with the Notification, Eboltshop Pty Ltd may invoice all of the remaining MTO Products to the Customer and dispose of those MTO Products without liability for any loss or damage suffered by the Customer as a result. The Customer indemnifies Eboltshop Pty Ltd and keeps Eboltshop Pty Ltd indemnified against all claims, demands, loss, costs, and expenses incurred by or made against Eboltshop Pty Ltd arising out of any actual or alleged infringement of patents, copyright, trademarks, design rights, or other intellectual property rights by any logo, design, copyright, or other material that Eboltshop Pty Ltd may use, print, or reproduce at the Customer’s request.
10. Product Information Prices Photos and Images
10.1. All prices, descriptive specifications, illustrations, photos, drawings, data, dimensions, and weights supplied by Eboltshop Pty Ltd or otherwise contained in catalogues, price lists, advertising, or in other printed material of Eboltshop Pty Ltd are approximate only and are for general illustration purposes only. 10.2. Such descriptive specifications do not form part of the contractual description of the Products unless agreed to in Writing by Eboltshop Pty Ltd.
11. Risk and Retention of Title to the Products Pending Payment
11.1. The risk (but not title) in respect of Products sold passes to the Customer immediately upon delivery to the Customer, the Customer’s agent, or courier as the case may be.
11.2. Legal and beneficial ownership of the Products will remain with Eboltshop Pty Ltd and will not pass to the Customer until Eboltshop Pty Ltd has received in full (cash or cleared funds) all sums due to it in respect of the Products and all other sums which are or which may become due to Eboltshop Pty Ltd from the Customer on any credit or other account with Eboltshop Pty Ltd or pursuant to these Trading Ts&Cs.
11.3. Until ownership of the Products has passed to the Customer, the Customer will keep the Products in question as fiduciary agent and bailee for and on behalf of Eboltshop Pty Ltd. The Customer must insure the Products on or before delivery.
11.4. If:
- the Customer fails to pay any amount (whether in part or whole) payable in respect of any Products by the time required for payment; or
- the Customer is the subject of an insolvency event (such as receivership, administration, or liquidation),
Eboltshop Pty Ltd may, without notice to the Customer, enter at any reasonable time any premises where Products are located (or believed by Eboltshop Pty Ltd to be located) and take possession of those Products not paid for and any other Products to the value of the amount owing. Eboltshop Pty Ltd’s permission to enter the Customer’s premises for that purpose is irrevocable. Eboltshop Pty Ltd is not liable to the Customer in contract, tort, or otherwise for any costs, damages, expenses, or losses incurred by the Customer as a result of any action taken by Eboltshop Pty Ltd under this clause.
11.5 If any of the Products are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Company is entitled to receive all insurance proceeds payable for the Products. The production of these Ts & Cs by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
12. Security interest and charges
12.1. Words in italic will have the meaning and definitions set out in the PPS Act.
12.2. The Customer acknowledges that by virtue of the Trading Ts&Cs, Eboltshop Pty Ltd has a security interest in the Products and their proceeds, and to the extent applicable, the PPS Act applies to any agreement pursuant to the Trading Ts&Cs. The Customer agrees that security interest secures payment of all amounts owing to the Company and extends to and continues in all proceeds, accessions and processed or comingled goods.
12.3. The Customer acknowledges that Eboltshop Pty Ltd may do anything it considers necessary, including but not limited to registering on the PPSR any security interest in the Products which Eboltshop Pty Ltd has, including registration as a purchase money security interest (PMSI) to the extent to which it secures payment of the unpaid purchase price of the Products, in order to perfect Eboltshop Pty Ltd’s security interest as a first priority interest under the PPS Act. The Customer agrees to do all things, including signing any document which Eboltshop Pty Ltd reasonably requires, to assist Eboltshop Pty Ltd to undertake the matters set out above.
12.4. The Customer waives, pursuant to section 157(3)(b) of the PPS Act, the right to receive notice of a financing statement, financing change statement, or a verification statement in relation to any registration on the PPSR.
12.5. The Customer and Eboltshop Pty Ltd agree that pursuant to section 115 of the PPS Act, the following provisions in the PPS Act are contracted out of insofar as they require Eboltshop Pty Ltd to give any notice or statement or allow any period of time or grant any opportunity to remedy to the Customer:
- sections 95 (removal of accession), 96 (retention of accession),
- section 125 (obligation to dispose of or to retain collateral),
- section 129 (disposal by purchase),
- section 130 (notice of disposal) to the extent that it requires the secured party to give a notice to the grantor before disposal,
- subsection 132(4) (statement of account if no disposal),
- section 135 (notice of retention),
- section 142 (redemption of collateral),
- section 143 (reinstatement of security agreement).
12.6. Solely to preserve their confidentiality, to the extent allowed under section 275 of the PPS Act, the Customer and Company agree that neither will disclose information if requested by a third party under section 275(1) of the PPS Act.
12.7. The Customer agrees that any rights of Eboltshop Pty Ltd under this document are in addition to and not in substitution for its rights under the PPS Act.
12.8. The Customer must not, without Eboltshop Pty Ltd’s consent, specify an order of application of payments made to Eboltshop Pty Ltd different to that set out in section 14 of the PPS Act or different to any other order specified by Eboltshop Pty Ltd at any time.
12.9. The Customer undertakes to give Eboltshop Pty Ltd not less than 14 days prior notice of any proposed change in the Customer’s name or any other change in the Customer’s details (including but not limited to changes in its address, phone or facsimile number, and trading name).
12.10 The Customer must not do or permit anything to be done that may result in the security interests granted to the Company ranking in priority behind any other security interest.
12.11 The Customer charges in favour of the Company all of its estate and interest in any real property that the Customer owns at present and in the future with the amount of its indebtedness hereunder until discharged and grants the Company the right to place a caveat in favour of the Company over all such property.
12.12 The Customer agrees to execute all documents and do all acts, matters and things which the Company reasonably requires to more effectively secure its rights pursuant to the security interest created under these Ts & Cs.
12.13 The Customer appoints as its duly constituted attorney the Company’s authorised representative from time to time to execute in the Customer’s name and as the Customer’s act and deed any real property mortgage or consent to any caveat which the Company may choose to lodge against real property that the Customer may own in any Land Titles Office in any state or territory of Australia, even though the Customer may not have defaulted in carrying out its obligations hereunder.
12.14 Where the Customer has previously entered into an agreement with the Company by which the Customer has granted a charge, mortgage or other security over real or personal property, those charges, mortgages or other security interests will continue and co-exist with the obligations and security interests created in these Ts & Cs. The Company may, at its election, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.
13. Currency
13.1. For amounts invoiced in Australian dollars, payments must be made in Australian dollars. Payments remitted in foreign currency must include all related bank charges and currency conversion costs both on the payment and receiving end.
13.2. For amounts invoiced in currency other than Australian dollars, payments must be made in the currency advised by Eboltshop Pty Ltd and must include all related bank charges and currency conversion costs both on the payment and receiving end if applicable.
14. Credit Card recovery of costs
14.1. A service fee sufficient to cover Eboltshop Pty Ltd’s banking cost may be added to the price where payment by the Customer is made by way of a credit card.
15. Recovery
15.1. Notwithstanding any other provision to the contrary, if any amount is not paid by the Customer within the terms for payment, Eboltshop Pty Ltd reserves the following rights in relation to the Products until all amounts owed by the Customer to Eboltshop Pty Ltd in respect of the Products and all other Products supplied to the Customer by Eboltshop Pty Ltd at any time are fully paid:
- legal and equitable ownership of the Products,
- to retake possession of the Products; and
- to keep or resell any of the Products repossessed.
15.2. The Customer hereby grants full leave and irrevocable license without any liability to Eboltshop Pty Ltd and any person authorised by Eboltshop Pty Ltd to enter any premises by any means where the Products may for the time be placed or stored for the purpose of retaking possession of the Products.
16. Defects Claims and Returns
16.1. Refunds or returns will only be given to the extent there is a non-excludable right to return or refund under the Australian Consumer Law or other applicable legislation.
16.2. Subject to clause 17.2, the Customer accepts that minor defects in the Products do not constitute grounds for a claim or return.
16.3. The Customer accepts that Products sold on a “No Return” basis may not be returned. Refunds or return will only be given to the extent there is a non-excludable right to return or refund under the Australian Consumer Law or other applicable legislation.
16.4. No Return Products include promotional Products, Products with non-standard packaging, Products that have passed or are within 30 days of their stated expiry date, and MTO Products, as well as any other Product nominated by Eboltshop Pty Ltd as a “No Return” Product.
16.5. Subject to clause 17.2:
- The Customer will inspect and check all Products received and within 7 days of receipt, notify Eboltshop Pty Ltd in Writing of any shortage in quantity, defect, incorrect specification, damage, or Products not in accordance with the Customer’s Order. The Customer is responsible for checking that Products comply with those Ordered prior to use. After use or expiry of the time stated herein, the Product shall be deemed to be free from any default or damage at delivery.
- The Customer agrees that it will not return any of the Products without first informing Eboltshop Pty Ltd so that a Returns Authorisation (“RA”) number is issued by Eboltshop Pty Ltd for valid returns. The RA is valid for 14 days. Returned Products must be unmarked, in a saleable condition, and must include the original packaging, delivery document, and invoice. Part pack quantities will not be accepted.
- No credit or replacement will be given unless and until Products so returned have been verified as being valid for return or are defective and are returned with a valid RA number. Eboltshop Pty Ltd reserves the right to recover its costs where the returned Products prove not to be valid for return or are not defective. Returned Products must be returned to the factory or branch of Eboltshop Pty Ltd from which they were delivered unless written authorisation is received from Eboltshop Pty Ltd to return the Products to the closest branch. All freight, handling, and other charges in relation to returning Products (other than Products defective or not ordered) are the responsibility of the Customer.
- The Customer shall be liable for a restocking fee on all Products accepted for return. The restocking fee shall not apply to Products returned for being defective, damaged, or for failing to comply with the Order. The current restocking fee is the higher of 15% of the price of the products returned or $50.
- Eboltshop Pty Ltd may accept at its sole discretion a written request from the Customer to return Products correctly ordered, not defective, and not otherwise valid for return. If accepted, a Returns Authorisation (“RA”) number is issued by Eboltshop Pty Ltd. Credit will be passed at the lower of the original purchase price and the current sales price less the Restocking fee.
17. Warranties Disclaimer and Limitation of Liability
17.1. Subject to clause 17.2 and except as expressly provided in the Trading Ts&Cs or as set out in Eboltshop Pty Ltd’s acceptance and to the extent permitted by law, no guarantee, warranty, condition, undertaking, or term express or implied, statutory or otherwise, as to the condition, quality, performance, aesthetic appearance, merchantability, or fitness for purpose of any Products provided pursuant to the Trading Ts&Cs is given or assumed by Eboltshop Pty Ltd, and all such guarantees, conditions, warranties, and liabilities (including liability as to negligence), express or implied, relating to such Products are hereby excluded.
17.2. If the Customer is a consumer for the purposes of the Australian Consumer Law the following statement applies:
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
(a) to cancel your service contract with us; and
(a) to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
17.3. Subject to clause 17.2 and to the full extent permitted by law, the liability of Eboltshop Pty Ltd in respect of a breach of a guarantee, condition, or warranty implied by legislation (other than any non-excludable implied guarantees, conditions, or warranties), including liability for any consequential loss which the Customer or any other entity or person may sustain or incur, will be limited, at Eboltshop Pty Ltd’s option, to:
- if the breach relates to supply of goods:
- the provision of a refund,
- replacement of the goods,
- repair of the goods; or
- the payment to the Customer of the reasonable cost of having the goods repaired or replaced.
- If the breach relates to services:
- the provision of a refund; or
- re-supply of the services; or
- the payment to the Customer of the reasonable cost of having the services re-supplied.
17.4. The Customer acknowledges and agrees that in entering into an agreement the subject of the Trading Ts&Cs, it has not relied in any way on Eboltshop Pty Ltd’s representations and that it has satisfied itself as to the suitability of the Products for the Customer’s purposes.
17.5. Subject to clause 17.2 and to the full extent permitted by law, Eboltshop Pty Ltd will not be liable to the Customer for any loss or damage, including loss of profits or any other indirect or consequential loss or damage arising directly or indirectly and whether or not as a result of negligence in any way in respect of anything done or supplied under the Trading Ts&Cs, including:
- the supply to or use by the Customer of any Product; or
- delayed or non-delivery of the Products for any reason, including but not limited to loss, damage, theft of the Products whilst in transit; or
- any breach by Eboltshop Pty Ltd of its obligations under an agreement the subject of the Trading Ts&Cs.
17.6. The Customer acknowledges and agrees that the Products may include goods, including substances, which are inherently dangerous and have limited shelf life. The Customer:
- agrees to ensure that its employees and contractors:
- use and handle all such Products with appropriate care and in accordance with applicable standards and practices for such goods and in accordance with applicable workplace health and safety law; and
- follow Eboltshop Pty Ltd’s directions, warnings, and expiry dates, where applicable, in relation to the Products.
- warrants to Eboltshop Pty Ltd that it is familiar with all such laws, standards, and requirements.
- must ensure that all its staff and contractors are given adequate briefing and instruction in relation to the above matters.
- indemnifies Eboltshop Pty Ltd for any liability to the extent arising from a breach of its obligations under this clause.
17.7. The Customer acknowledges and agrees that the Products may be shipped and delivered using heavy vehicles. The Customer:
- agrees to ensure that its employees and contractors comply with applicable heavy vehicle law.
- must ensure that all its staff and contractors are given adequate briefing and instruction in relation to the above matters; and
- indemnifies Eboltshop Pty Ltd for any liability to the extent arising from a breach of its obligations under this clause.
17.8 Nothing in these Ts & Cs excludes, restricts, or modifies or is intended to exclude, restrict, or modify any guarantee, condition, warranty, right, or liability implied by law (including any guarantee, condition, right, or liability imposed under the Australian Consumer Law) to the extent it cannot lawfully be excluded, restricted, or modified.
18. Set-off and Assignment
18.1. The Customer is not entitled to set off against or deduct from the price of Products sold any sums owed or claimed to be owed to the Customer by Eboltshop Pty Ltd.
18.2. The Customer must not assign or subcontract any contract for the purchase of Products or its rights or obligations under an agreement the subject of the Trading Ts&Cs without the prior written consent of Eboltshop Pty Ltd.
19. Force Majeure
19.1. Eboltshop Pty Ltd will have no liability to the Customer in relation to any loss, damage, or expense caused by Eboltshop Pty Ltd’s failure to complete an order, delivery, or contract as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lock-out, war, or the inability of Eboltshop Pty Ltd’s suppliers to supply necessary materials or any other matter beyond Eboltshop Pty Ltd’s control.
20. Privacy consent
20.1. Eboltshop Pty Ltd collects, uses, stores, and discloses personal information in accordance with Eboltshop Pty Ltd’s Privacy Policy, which the Customer acknowledges it has had an opportunity to read and understand. The Customer can access the current policy from Eboltshop Pty Ltd’s website located at www.eboltshop.com.au or by contacting Eboltshop Pty Ltd’s privacy officer at sales@eboltshop.com.au.
20.2. Eboltshop Pty Ltd may give information to third parties about the Customer, its guarantors, directors, or proprietors in accordance with Eboltshop Pty Ltd’s Privacy Policy, including for the following purposes:
- to obtain a consumer credit report about the Customer, its guarantors, directors, or proprietors.
- to allow the credit reporting agency to create or maintain a credit information file containing information about the Customer, its guarantors, directors, or proprietors.
- for registration on the PPSR or other public records or registers; and
- to obtain commercial credit information about the Customer, its guarantors, directors, or proprietors from a credit reporting agency.
21. Waiver of terms of agreement
21.1. The failure or indulgences by Eboltshop Pty Ltd to exercise or delay in exercising any right, power, or privilege available to it under this agreement will not operate as a waiver thereof or preclude any other or further exercise thereof or the exercise of any right or power, and Eboltshop Pty Ltd shall be entitled to require strict compliance at all times.
22. Proper Law
22.1. The agreement is governed by and will be construed in accordance with the laws of the State of Queensland, Australia.
22.2. The parties agree to submit to the exclusive jurisdiction of the Courts of the State of Queensland. If the Magistrates Court has jurisdiction, the parties’ consent to the exclusive jurisdiction of the Magistrates Court closest to Eboltshop Pty Ltd’s place of business.
22.3. Any agreement formed pursuant to the Trading Ts&Cs shall be deemed to have been entered into at Eboltshop Pty Ltd’s place of business.
23. General
23.1. This document represents the entire agreement between the parties, and no agreement or understanding varying or extending the terms of these Trading Ts&Cs shall be legally binding upon either party unless in writing and signed by both Parties and allowed by these Trading Ts&Cs.
23.2. Eboltshop Pty Ltd may serve any notice or Court document on the Customer by hand or by forwarding it by post to the address of the Customer last known to Eboltshop Pty Ltd, or where a fax number or an email address has been supplied by the Customer, by sending it to that number or address. Such notices shall be deemed to be given:
a) where delivered by hand, on the day of delivery.
b) where sent by post, two (2) business days after the day of posting; and
c) where sent by facsimile or email, on the day of dispatch, provided that a clear transmission report is obtained.
23.3. If any term of this agreement shall be invalid, void, illegal, or unenforceable, they shall be severed from the agreement, and the remaining provisions shall not be affected, prejudiced, or impaired by such severance.
23.4. Eboltshop Pty Ltd may assign or licence or subcontract all or any parts of its rights and obligations hereunder without the Customer’s agreement or consent.
23.5. In the event that the Customer sells or otherwise disposes of its business (or any part thereof), the Customer shall be responsible to immediately notify Eboltshop Pty Ltd in writing of such sale to enable the account to be closed. If the Customer fails to so notify, then the Customer shall be jointly and severally liable with the third party acquiring the business (or part thereof) to Eboltshop Pty Ltd for the payment of Products subsequently sold to the third party on the Customer’s account before Eboltshop Pty Ltd received such notice as if the Customer had ordered the Products itself.
23.6 No rule of construction applies to the disadvantage of a party on the basis that the party put forward this Agreement or any part of it.
23.7 If any provision of these Ts & Cs is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.
23.8 If any part of these Ts & Cs is invalid or unenforceable, that part is deleted, and the remainder of these Ts & Cs remains effective.
23.10 These Ts & Cs constitutes the entire agreement between the parties relating in any way to its subject matter. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of these Ts & Cs are merged in these Ts & Cs and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of these Ts & Cs or constitutes any collateral agreement, warranty or understanding.