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Terms & Conditions
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Terms and Conditions
These are the terms and conditions upon which BLACKWOODS XPRESS PTY LTD ABN 99 161 187 391 (‘Blackwoods Xpress’) or any Person acting as agent for Blackwoods Xpress sells and quotes for the sale of goods.
1. DEFINITIONS AND INTERPRETATION
In these terms and conditions, unless the context otherwise requires:
(a)"Australian Consumer Law" means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of State Fair Trading legislation.
(b)"Buyer" means the Person placing an order with Blackwoods Xpress on the Blackwoods Xpress website pursuant to these terms and conditions.
(c)"Business Day" means a day other than a weekend or public holiday in the place which the goods are delivered.
i) a person acquiring goods of a kind ordinarily acquired for personal, domestic or household use or consumption; or
(ii) a person acquiring goods at a price not exceeding $40,000; or
(iii) the goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads, but excludes a person acquiring the goods, or holding himself or herself out as acquiring the goods for the purpose of:
(i) re-supply; or
(ii) using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or in the course of repairing or treating other goods or fixtures on land.
(e) "Excluded Loss" means:
(i) in the case of loss or damage resulting from a breach of contract (including any contractual duty of care) loss of revenue; loss of profit; loss of production; loss or denial of opportunity; loss of access to markets; loss of goodwill; loss of business reputation; loss arising from late delivery or failure to deliver goods; loss arising from any business interruption; increased overhead costs and any indirect, remote or unforeseeable loss occasioned by that breach, whether or not in the reasonable contemplation of the Buyer and Blackwoods Xpress at the time of order confirmation or any delivery of goods as being a probable result of the relevant breach; and
(ii) in the case of loss or damage arising from any tort (including negligence) which does not also constitute a breach of contract - indirect, remote or unforeseeable loss and, in the case of pure economic loss, loss not flowing directly from the commission of the tort.
(f) "GST" means the goods and services tax as imposed by the GST Law together with any related interest, penalties, fines or other charge.
(g) "GST Amount" means any Payment (or the relevant part of that Payment) multiplied by the appropriate rate of GST.
(h) "GST Law" has the meaning given to that term in A New Tax System (Goods and Services) Act 1999, or, if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.
(h) "GST" means the goods and services tax as imposed by the GST Law together with any related interest, penalties, fines or other charge.
(i) "Payment" means any amount payable under or in connection with a Sales Invoice including any amount payable by way of indemnity, reimbursement or otherwise (other than a GST Amount) and includes the provision of any non-monetary consideration.
(j) "Person" includes an individual, the estate of an individual, a body politic, a corporation, an association (incorporated or unincorporated) and a statutory or other authority.
(k) "PPSA" means Personal Property Securities Act 2009 (Cth)
(l) "Purchase Price" means the price for the goods set out in the relevant Sales Invoice. The Purchase Price is inclusive of GST unless the goods are GST exempt.
(m) "Sales Invoice" means the sales invoice issued by Blackwoods Xpress to the Buyer (either at the time of order confirmation or following delivery) in which these terms and conditions are or are deemed to be incorporated.
(n) "Tax Invoice" has the meaning given to that term by the GST Law.
(o) "Taxable Supply" has the meaning given to that term by the GST Law. 1.2 Interpretation (a) Any special conditions specified on a Sales Invoice shall, to the extent they are inconsistent with these terms and conditions, take precedence over these terms and conditions. (b) Words importing the singular shall include the plural (and vice versa). (c) If any provision of these terms and conditions is invalid and does not go to the essence of this agreement, these terms and conditions should be read as if that provision has been severed.
2. GOVERNING TERMS AND CONDITIONS
These are the only terms and conditions which are binding upon Blackwoods Xpress with the exception of those otherwise agreed in writing by Blackwoods Xpress or which are imposed by a statute such as the Competition and Consumer Act 2010 (Cth) and which cannot be excluded. Any direction by the Buyer either verbal, written or submitted online via the Blackwoods Xpress website to procure goods or services from Blackwoods Xpress will be deemed as acceptance by the Buyer of these terms and conditions, despite any provisions to the contrary in the direction or any purchase order issued by the Buyer.
(a) Provision of aerosol cans, scheduled dangerous goods or similar products. If the order includes aerosol cans, scheduled dangerous goods or similar products in respect of which the law prescribes a minimum age to purchase, you must ensure that a person eighteen (18) years of age or over (or such other minimum age as is prescribed by the law) is available to accept these goods.
(b) In accordance with clause 3(a), you must be eighteen (18) years of age or over (or such other minimum age as is required to conform to clause 3(a)) to register with the Blackwoods Xpress website or purchase products from the Blackwoods Xpress website.
(c) Any purchase made by you using this website is an acknowledgment by you that you are eighteen (18) years of age or over, or of an age as is required to conform to clause 3(a). Blackwoods Xpress reserves the right to request proof of age at any time and may withhold supply in its absolute discretion if it reasonably forms the view that there is a risk of supply to a minor.
(d) Blackwoods Xpress reserves the right to take legal action and seek compensation from the parent or guardian of a minor who causes an order to be placed, for any loss or damage Blackwoods Xpress may suffer as a result of a transaction entered into by a minor.
4. TERMS OF PAYMENT
(a) Where the Buyer is trading under an approved credit account with Blackwoods Xpress, payment to Blackwoods Xpress for goods ordered is due within 30 calendar days of the end of the month in which the Buyer is invoiced for the goods. If the Buyer fails to make payment in accordance with this clause, all amounts owing by the Buyer to Blackwoods Xpress on any account shall immediately become due and payable. Each outstanding amount shall bear interest of the rate of 10% per annum calculated on a daily basis from the day it falls due until the day it is paid in full.
(b) Where the Buyer is not trading under an approved credit account with Blackwoods Xpress, the Buyer must pay for goods to be delivered at the time of on-line checkout prior to order confirmation in accordance with one of the payment methods offered on the Blackwoods Xpress website.
5. INSPECTION AND ACCEPTANCE
The Buyer shall inspect all goods upon delivery and shall within two (2) Business Days of delivery give notice to Blackwoods Xpress of any matter or thing by which the Buyer alleges that the goods are not in accordance with the Buyer's order. Failing such notice, subject to any non-excludable condition implied by law, such as those in the Competition and Consumer Act 2010 (Cth), the goods shall be deemed to have been delivered to and accepted by the Buyer.
Return of goods (other than in situations where Blackwoods Xpress is required to accept a return of goods under the Australian Consumer Law, or when it is claimed that goods have been delivered in a damaged condition for which see clause 13 (h) below) must be approved by Blackwoods Xpress. These authorised returns must be freight prepaid and will only be accepted if they are in a saleable condition and (unless otherwise agreed with Blackwoods Xpress) the goods are returned within 9 days of when Blackwoods Xpress has approved the return. Blackwoods Xpress reserves the right to charge a restocking fee of $10 for goods returned with a value less than or equal to $100 or 10% of the value for goods returned if their value is over $100. Blackwoods Xpress will not accept the return of goods specifically purchased, manufactured, machined or cut to size or to the Buyer's specification other than in situations where Blackwoods Xpress is required to accept a return of such goods under the Australian Consumer Law. Additionally:
a. The Buyer must notify Blackwoods Xpress by phone on 1800 688 644 or by email to email@example.com within 2 business days of receiving delivery of the order.
b. The Buyer returns the product/s at its own expense (including insurance as appropriate, and compliance with transport regulations for goods such as ones classified as Dangerous Goods) to the address specified by Blackwoods Xpress within 9 days of when Blackwoods Xpress responds & agrees to the Buyer’s request. Note that Blackwoods Xpress may be able to help the Buyer organise return delivery of the goods.
c. The item/s are not opened, used, or damaged, and are in 100% re-saleable condition when Blackwoods Xpress receives them back.
d. No items are returned with writing or stickers on the original packaging. The Buyer must put all markings for return postage on the outer postal packaging.
e. The product is not a perishable product, or, is not a product from Blackwoods Xpress’s oil and grease categories.
The parties agree that:
(a) the Purchase Price is inclusive of GST;
(b) all other Payments have been calculated without regard to GST;
(c) each party will comply with its obligations under the Competition and Consumer Act 2010 (Cth) when calculating the amount of any Payment and the amount of any relevant Payments will be adjusted accordingly;
(d) if the whole or any part of any Payment is the consideration for a Taxable Supply (other than for payment of the Purchase Price) for which the payee is liable to GST, the payer must pay to the payee an additional amount equal to the GST Amount, either concurrently with that Payment or as otherwise agreed in writing.
(e) any reference to a cost or expense in this Agreement excludes any amount in respect of GST forming part of the relevant cost or expense when incurred by the relevant party for which that party can claim an Input Tax Credit; and the payee will provide to the payer a Tax Invoice.
8. PASSING OF PROPERTY AND RISK
(a) Goods supplied by Blackwoods Xpress to the Buyer shall be at the Buyer's risk immediately upon delivery to the Buyer, into the Buyer's custody or at the Buyer's direction (whichever happens first). The Buyer shall be responsible for insuring the goods from the time of that delivery at its cost against such risks as it thinks appropriate.
(b) Property in the goods supplied by Blackwoods Xpress to the Buyer under these terms and conditions shall not pass to the Buyer until those goods and other goods have been paid for in full.
(c) Until the goods have been paid for in full:
(i) the Buyer shall store the goods in a manner which shows clearly that they are the property of Blackwoods Xpress; and
(ii) the Buyer may sell the goods, in the ordinary course of its business, as agent for Blackwoods Xpress and shall account to Blackwoods Xpress for the proceeds of sale (including any proceeds from insurance claims). These proceeds must be kept in a separate bank account.
(d) The Buyer irrevocably authorises Blackwoods Xpress (or its agent, contractor or representative)at any time to enter onto any premises upon which:
(i) Blackwoods Xpress' goods are stored to enable Blackwoods Xpress to:- inspect the goods; and/or - if the Buyer has breached these terms and conditions, reclaim the goods;
(ii) the Buyer's records pertaining to the goods are held to inspect and copy such records.
(e) The Buyer and Blackwoods Xpress agree that the provisions of this clause apply notwithstanding any arrangement under which Blackwoods Xpress grants credit to the Buyer.
(f) Each party consents to the other perfecting any security interest under this agreement which arises by operation of the PPSA in any property by registration under the PPSA and agrees to do anything reasonably requested by the other party to enable it to do so.
(g) The parties contract out of each provision of the PPSA which, under section 115(1) of that Act, they are permitted to contract out of, other than:
(i) sections 117 and 118 (relationship with land laws); and
(ii) sections 134(1) and 135 (retention of collateral).
(h) Each party waives its right to receive each notice which, under section 157(3) of the PPSA, it is permitted to waive.
(i) Each party waives its rights to receive anything from any other party under section 275 of the PPSA and agrees not to make any request of any other party under that section.
Blackwoods Xpress reserves the right to immediately suspend, cancel or discontinue the supply of goods to the Buyer without further notice to the Buyer where:
(a) Blackwoods Xpress reasonably suspects that the Buyer is in breach of these terms and conditions; or
(b) the Buyer is otherwise in breach of its payment obligations to Blackwoods Xpress,
and Blackwoods Xpress will not incur any liability to the Buyer in respect of such suspended, cancelled or discontinued supply.
10. PART DELIVERIES
Blackwoods Xpress reserves the right to make part deliveries of any order, and each part delivery shall constitute a separate sale of goods upon these terms and conditions. A part delivery of an order shall not invalidate the balance of an order.
Blackwoods Xpress’ Sale Invoice is made on a supply only basis. Installation and commissioning (if any) is at the expense of the Buyer unless otherwise specified in writing by Blackwoods Xpress.
12. DIMENSIONS, PERFORMANCE DATA AND OTHER DESCRIPTIVE DETAILS
(a) (a) Photographs, drawings, illustrations, weights, dimensions and any other particulars accompanying, associated with or provided online at Blackwoods Xpress’s website, or given in descriptive literature or a catalogue approximate the goods offered but may be subject to alteration by the manufacturer or supplier without notice.
(b) To the extent permitted by statute, any performance data provided by Blackwoods Xpress, a supplier or a manufacturer is an estimate only and should be construed accordingly.
(c) Unless agreed to the contrary in writing, each Seller reserves the right to supply an alternative brand or substitute product that has characteristics that are materially consistent with the goods offered when necessary.Substitutions will not be given effect to until approval is received from the Buyer.
13. SHIPMENT AND DELIVERY
(a) A delivery charge will apply to all deliveries unless stipulated otherwise, with the exception of back order deliveries which are part of an original order that has been partly fulfilled. The delivery charge will be clearly advised as the order is prepared and before payment is sought.
(b) Estimated shipment and delivery timeframes are provided below. Blackwoods Xpress will endeavour to ensure that goods are received by the Buyer in accordance with these estimates. Other than as to the Buyer’s payment obligations, time is not of the essence in relation to these terms and conditions.
(c) Estimated delivery times are as follows:
(i) For orders where the combined weight of goods supplied is less than 50 kilograms:
Estimated Delivery Time
Melbourne, Sydney, Brisbane, Canberra
Regional Qld, Vic, ACT
Regional SA and TAS
Regional NT and WA
In this table Remote Areas are those areas in the Whitsunday region, remote Northern Territory region, or any delivery that involves a Remote Delivery as defined below.
A “Remote Delivery” is any delivery to a location on mainland Australia or to Australian islands that may involve co-ordination of another transport method in addition to that provided by our third party delivery contractor, such as a local barge, air service, courier or train service.
(i) For orders where the combined weight of the goods supplied is greater than 50 kilograms or the goods to be supplied are of an awkward shape and size (eg, ladders) or the delivery of the goods will require a Remote Delivery, then delivery timeframes may exceed those quoted above.
(d) The delivery address must be an address within Australia and cannot be a freight forwarding location or a PO Box.
(e) Anyone at the delivery address (or upon collection) who receives the goods from Blackwoods Xpress’s third party delivery contractor shall be presumed by Blackwoods Xpress to be authorised to receive the goods and must sign a receipt acknowledging receipt of the goods. Blackwoods Xpress' third party delivery contractor may request that the person who receives the goods at the delivery address (or upon collection) provide satisfactory evidence of proof of age and / or identity, and, may refuse to deliver the Goods if the person receiving the goods is unable or unwilling to provide such evidence.
(f) The Buyer may nominate to have the goods delivered to their nominated address even if the Buyer or an authorised recipient is not present to sign an acknowledgement of receipt of the goods. The Buyer can request this service during the checkout process by selecting the “Authority to Leave” option and specifying instructions as to the location in which to leave the goods at the delivery address if the delivery address is unattended. All goods left under this provision are left at the risk of the Buyer; and once left at the delivery address, to the extent permitted by law, and except as otherwise required by the Australian Consumer Law, Blackwoods Xpress does not bear any responsibility or liability for loss of or damage to goods, and the Buyer releases Blackwoods Xpress from all claims for loss or damage which the Buyer may suffer or incur in connection with the Buyer’s exercise of the “Authority to Leave” option.
(g) If there is no one at the delivery address or no one of appropriate age to receive and sign for the receipt of the delivered goods, and the Buyer did not select “Authority to Leave” when placing the order, then the order will not be left at the delivery address. Blackwoods Xpress’ third party delivery contractor or Blackwoods Xpress’ Customer Service team will endeavour to contact the Buyer to organise another delivery attempt and may charge an additional delivery fee. If the goods have to be returned to Blackwoods Xpress because they could not be delivered despite a second further attempt to do so, then the Buyer may be charged a restocking fee.
(h) If the Buyer receives any goods in a damaged condition then they must notify Blackwoods Xpress within 2 business days of receiving the goods. The Buyer must also provide photographs of the packaging when the delivery arrives and of the individual products that are damaged as soon as they are discovered damaged upon opening the packaging. Blackwoods Xpress will indicate the address to which the product with its original packaging should be returned. Once Blackwoods Xpress has viewed the damage, and it is determined that the item/s were damaged in transit, Blackwoods Xpress will replace the product at no additional cost and refund the Buyers’ cost of sending the product back to Blackwoods Xpress. The process of assessing a damaged goods claim may take up to 3 business days to be completed once Blackwoods Xpress has received the goods.
(i) Whilst Blackwoods Xpress will make all reasonable endeavours to deliver goods as per the schedule above, to the extent permitted by law, and except as otherwise required by the Australian Consumer Law, Blackwoods Xpress does not warrant the delivery of goods on time and Blackwoods Xpress does not accept responsibility or liability for delivery failures or delays by our third party delivery contractors.
14. PACKAGING AND LABELLING OF GOODS
Blackwoods Xpress aims to include on its website up-to-date pictures of goods. At times, the picture of the goods on the website may differ from the appearance of the goods actually supplied to the Buyer. To the extent permitted by law, and except as otherwise required by the Australian Consumer Law, Blackwoods Xpress does not warrant the accuracy of the information contained on the website and recommends that the Buyer reads the labels on goods received carefully before using the goods.
15. OUT OF STOCKS AND SUBSTITUTION
Blackwoods Xpress will not provide rainchecks in respect of goods ordered by the Buyer. If an item that is ordered is subsequently found to be out of stock, then Customer Service will contact you and you will be invited to select a substitution option in respect of goods which are out of stock, or, if this is not satisfactory, to receive a refund on the goods ordered but out of stock. Blackwoods Xpress will use its best endeavours to ensure that all goods ordered by you (and any agreed substitutes) are supplied to you. Blackwoods Xpress reserves the right to limit the sale of goods to reasonable commercial quantities typically sought by a small-to-medium sized organisation. Substitute items are charged at the lower of the original or the substitute price.
16. CHARGES BEYOND POINT OF DELIVERY QUOTED
Blackwoods Xpress reserves the right to nominate the means of delivery, and to impose additional charges if the delivery location is amended by the Buyer prior to the order being delivered in full.
17. FORCE MAJEURE
If the performance or observance of any obligations of Blackwoods Xpress is prevented, restricted or affected by reason of a force majeure event including strike, lock out, industrial dispute, raw material shortage, breakdown of plant, transport or equipment or any other cause beyond the reasonable control of Blackwoods Xpress, Blackwoods Xpress may, in its absolute discretion give prompt notice of that cause to the Buyer. On delivery of that notice Blackwood Xpress is excused from such performance or observance to the extent of the relevant prevention, restriction or effect.
18. BUYER'S CANCELLATION
Unless otherwise agreed in writing, the Buyer shall have no right to cancel an order which has been accepted by Blackwoods Xpress.
19. WARRANTY AND LIABILITY OF BLACKWOODS XPRESS
(a) Blackwoods Xpress makes no express warranties under this Agreement. Manufacturers of goods may, from time to time, provide a voluntary warranty directly to the Buyer in relation to goods supplied to the Buyer. The Buyer must address issues relating to a manufacturer's warranty with the manufacturer on the terms of that warranty.
(b) Buyer shall immediately notify Blackwoods Xpress in writing via email of any defect in the goods supplied by Blackwoods Xpress. The Buyer shall not carry out any remedial work to allegedly defective goods without first obtaining the written consent of Blackwoods Xpress to do so. The provisions of this clause 19(b) do not constitute a warranty in relation to the quality or fitness of the goods, or require Blackwoods Xpress to repair or replace goods, or offer a refund in relation to goods, in circumstances other those set out in Australian Consumer Law (to the extent that the Australian Consumer Law applies to the goods).
(c) The Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law guarantee certain conditions, warranties and undertakings, and give you other legal rights, in relation to the quality and fitness for purpose of consumer goods sold in Australia. These guarantees cannot be modified nor excluded by any contract. Nothing in these terms and conditions purports to modify or exclude the conditions, warranties, guarantees and undertakings, and other legal rights, under the Australian Consumer Law and other laws which cannot be modified or excluded. Except as expressly set out in this Agreement and the Australian Consumer Law, Blackwoods Xpress makes no warranties or other representations under this Agreement. Blackwoods Xpress’ liability in respect of these warranties, representations, undertakings and guarantees is limited to the fullest extent permitted by law.
(d) Without limiting clause 19(c), where Blackwoods Xpress sells goods to the Buyer, and the Buyer purchases them as a Consumer, then the Australian Consumer Law provides certain guarantees in relation to the goods. The rights of the Buyer buying goods as a Consumer include those set out in clause 19(e) below.
(e) Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
(f) To the extent permitted by statute, the liability, if any, of Blackwoods Xpress:
(i) arising from the breach of any implied conditions or warranties, failure to comply with a statutory guarantee under the Australian Consumer Law, in relation to the supply of goods other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption, or
(ii) otherwise in connection with these terms and conditions, in tort (including negligence), under statute or otherwise howsoever,
shall at Blackwoods Xpress’ option be limited to:
(iii) the replacement of the goods or resupply of the goods by Blackwoods Xpress, or the cost of replacement or resupply of the goods; or
(iv) the repair of the goods, or the cost of repair of the goods.
(g) Subject to clause 19(c), Blackwoods Xpress shall not in any circumstances be liable to the Buyer under or in connection with these terms and conditions, or in negligence or any other tort or otherwise howsoever, as a result of any act or omission in the course of or in connection with the performance of these terms and conditions, for or in respect of any Excluded Loss.
(h) Blackwoods Xpress makes no express warranties in relation to the suitability for any purpose of goods or materials supplied by Blackwoods Xpress.
(i) To the extent permitted by statute, all warranties, conditions and guarantees (whether express, implied or applied, and whether given by Blackwoods Xpress, the manufacturer or a third party) and any obligation of Blackwoods Xpress to repair or replace any goods are void in respect of any goods which the Buyer tampers with or alters.
20. ALTERATION TO CONDITIONS
Blackwoods Xpress may, at any time and from time to time, alter these terms and conditions. Any variation to these standard terms and conditions will not apply to any orders placed but not yet fulfilled prior to the date of such variation.
21. VIENNA SALES CONVENTION
To the fullest extent permitted by law, the United Nations Convention on Contracts for the International Sale of Goods (Vienna 1980) known as the Vienna Sales Convention does not apply to the contract comprised by these terms and conditions nor do any of the terms and conditions express or implied by the Vienna Sales Convention form part of the contract.
22. GOVERNING LAW
These terms and conditions and any contract including them shall be governed by and construed in accordance with the laws of the State of New South Wales and Blackwoods Xpress and the Buyer submit to the non-exclusive jurisdiction of the Courts of New South Wales.
23. NO AGENCY AND NO FURTHER DISCOUNT (a) Blackwoods Xpress offers to supply the Buyer under these terms and conditions on its own behalf and not as agent for any of its related bodies corporate (as that term is defined in the Corporations Act 2001 (Cth). (b) Pricing offered by Blackwoods Xpress on the Blackwoods Xpress website is not to be regarded as ‘Trade List Price’, ‘Trade Price’ or ‘List Price’ offered or maintained by any of its related bodies corporate. No further discount, rebate or deduction on such pricing is available following order confirmation.