Terms and Conditions
1.1 These Terms and Conditions constitute the entire agreement (“Agreement”) between you and us in respect of the matters dealt in this Agreement and supersedes all prior communications and representations, inducements, undertakings, agreements or arrangements except expressly as provided by this Agreement.
1.2 You must read these Terms and Conditions carefully. By placing an Order for Goods and/or Services with us, whether by written or verbal means, you agree to be bound by this Agreement.
1.3 We may amend these Terms and Conditions from time to time at our discretion. Any changes to the Terms and Conditions made will not affect the Agreement entered into by you before the changes are made.
2. COLOUR DISCLAIMER
2.1 Please note actual colour shade may vary. It’s important to note that they may look different on a real product than what you see on your computer monitor.
This is due to the fact that every computer monitor has a different capability to display colours and that everyone sees these colours differently.
We try to edit our photos to show the products as life-like as possible, but please understand the actual colour may vary slightly from your monitor.
We cannot guarantee that the colour you see accurately portrays the true colour of the product. Any returns for a product due to customer dissatisfaction with a colour (that is not a fault) will need to comply with the Fitball Policy.
3. USING OUR SITE
3.1 When purchasing our Goods or Services at our Site you must not do anything that adversely affect the integrity of our Site. You must not use any device, software or any other medium to interfere with the proper working of our Site. You must not use our Site for any illegal purpose. The account you create at our Site is personal to your business and it must not be used by anyone else. Anything done under your account will be deemed done by you including Orders made under your account.
3.2 If you are in breach of clause 2.1 we have the right to refuse dealing with you, terminate your account and prevent you and your IP address from accessing our Site.
4. PLACING PURCHASE ORDER
4.1 You acknowledge that an Order can be placed through the following methods:
(a) by sending us an e-mail attaching the order form
(b) by using the applicable Software; or
(c) via phone.
5. PRICES AND PAYMENT
5.1 The Price for the Goods or Services will be the Price stipulated in our Published Price List current at the date you place your Order.
5.2 The Price is in Australian Dollars and excludes GST unless otherwise stated.
5.3 The Price is subject to change by us to take into account any error or omission by us or any GST or government or statutory charges, taxes and duties which may become applicable after the Price is quoted in the Order.
5.4 Save and except for cash payment, any other form of payment will not be deemed to be payment until it is honoured, cleared or recognised.
5.5 If you request any variation to an Order, we may increase the price for the Order to account for the variation.
5.6 We reserve the right to charge you an additional fee to cover any processing costs arising from any credit card payment surcharges levied on us by our payment service providers.
5.7 We reserve the right to vary the Price of the Goods or Services available on our Site at any time prior to you placing an Order.
5.8 Unless otherwise agreed in writing, each invoice is payable in full within 28 days of the invoice being raised.
5.9 If any monies payable under this Agreement remains unpaid by the due date for payment, you may be charged:
(a) interest of 2.5% per month on the amount of monies outstanding from the due date for payment until the date payment is made; and
(b) In the event where your overdue account is referred to a collection agency and/or law firm, you will be liable for all costs which would be incurred as if the debt is collected in full, including commission on collection of the additional costs and also including legal demand costs.
6. ORDER PROCESSING TIME
6.1 Once your Order is sent through to us, we will commence processing your order and you may not be able to change the requirements of your Order.
6.2 Order processing times on our Site are to be used as a guideline only and processing time does not include weekends and public holidays.
6.3 Processing times are subject to availability of stock and may be varied from time to time. We will notify you of any changes to the processing times.
7. DELIVERY AND ACCESS TO PREMISES
7.1 We do not deliver to Post Office Boxes.
7.2 Our delivery times are 9.00 am to 5.00 pm Monday to Friday.
7.3 We use an independent freight company to deliver the Goods to your Premises. Change to delivery address or instructions cannot be made once the Goods are with the freight company.
7.4 Email notification will be sent to you once your Order is dispatched. We will use all reasonable endeavours to arrange for the Goods to be delivered to the Premises within reasonable time.
8. RISK AND TITLE
8.1 Risk of loss or damage to the Goods passes to you on delivery.
8.2 The property and title in the Goods do not pass to you until all payments required under the Agreement or any outstanding amounts under any other agreement are paid in full.
9. CANCELLATION AND CHANGES
9.1 We commence processing of the Goods immediately upon receiving your Order.
9.2 If you cancel the Order you will be liable to pay for all costs, charges or expense incurred by us up to the time of cancellation which will be deducted from the Price in accordance with our Cancellation Policy which is set out on the Published Price List.
9.3 If we are unable to source sufficient stock to meet the requirements of your Order, we reserve the right to cancel your Order or recommend a substitute product.
9.4 If your Order is cancelled, we will notify you by email.
10.1 We may license or sub-contract a third party for all or any part of our rights or obligations under the Agreement including delivery of the Goods or performance of Services without your consent.
11. LIMITED WARRANTIES
11.1 We warrant that the Goods manufactured, supplied and/or provided by us are free from manufacturing defects and faulty workmanship.
11.2 Our warranty is for a period of:
(a) twelve (12) months
from the date of the invoice for the sale of Goods.
11.3 This warranty is not transferrable and it does not cover:
(a) normal wear and tear which includes fading of colours in material; and
(b) damage or defect caused by alteration, abuse, misuse, incorrect installation, storage or inappropriate handling; and
(c) damage or defect caused resulting from failing to follow the care instructions which may be provided with the Goods.
11.4 To make a claim under this warranty, you must contact our office to arrange return of Goods (or provide a photo of the Goods clearly evidencing the alleged defect) accompanied by a copy of the original invoice or other proof of purchase which we may accept at our discretion.
11.5 The returned Goods or supplied photograph will be inspected by us to ascertain the Goods’ condition and its eligibility under this warranty. If the Goods are covered under this warranty, we will at our discretion and our expense repair or replace the Goods.
11.6 You will be responsible for all other costs including but not limited to, cost of removal and transportation of the Goods save that if the returned Goods are covered under this warranty, we will return the Goods directly to you at our cost. A postage fee will be added if the device is to be sent directly to the customer.
11.7 If you are a consumer as that term is defined in the Australian Consumer Law, then the benefits to you given by this Warranty are in addition to other rights and remedies you may have under a law in relation to the Goods to which this warranty relates. 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.
11.8 If you are not a consumer as that term is defined in the Australian Consumer Law, all other terms, conditions and warranties expressed or implied by statute, the common law, equity or otherwise howsoever are expressly excluded save and except for the express terms, conditions and warranties contained in this Agreement and to the extent permitted by law.
12.1 The specification and design of the Goods (being all intellectual property, including but not limited to, copyright, design right, trade marks or other intellectual property) remains the property of us.
12.2 Copyright in all Goods supplied by us to you shall remain vested in us at all times.
13. DISCLAIMER OF LIABILITY
13.1 All express or implied guarantees, warranties, representations or other terms and conditions not contained in this Agreement are excluded from this Agreement to the maximum extent permitted by law. However, nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation (including the Australian Consumer Law) which cannot lawfully be excluded or limited.
13.2 If a supply under this Agreement is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law (as amended or replaced from time to time), nothing contained in this Agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law, provided that, to the extent that the Australian Consumer Law permits us to limit our liability, then our liability is limited to one or more of the following at our option:
(a) in the case of Goods:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired;
(b) in the case of Services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
13.3 To the maximum extent permitted by law:
(a) the Goods are provided ‘as is’ and we make no representation as to the Goods’ merchantability or fitness for purpose;
(b) our maximum aggregate liability to you for all claims under this Agreement is limited to the Price paid by you for the Goods and/or Services the subject of any claim;
(c) neither party will be liable to the other for any Consequential Loss or for claims from third parties for any Consequential Loss regardless of the cause of action and even if a party has been advised of the likelihood of such Loss or damage; and
(d) our liability to you is reduced to the extent that your acts or omissions (or those of a third party) contribute to or caused the Loss or liability.
The limitations and exclusions under this clause 12.3 apply regardless of whether the claim or liability arises in contract, tort (including negligence), equity, under statute, based on fundamental breach or breach of a fundamental term or on any other basis, whether or not such claim, liability or damage was foreseeable.
14. INSPECTION FOR DEFECTS
14.1 Upon delivery of the Goods, you must inspect the Goods and notify us in writing within seven (7) days of delivery of any faults, defects, damages or inconsistency with the quantity, quality, description or quotation in respect of the Goods delivered.
- If you fail to comply with clause 13.1, the Goods will be deemed to be free of any defect or inconsistency and you are deemed to have waived any right of claim in respect of the Goods under this clause.
15. YOUR LIABILITIES
15.1 If you are in default of any obligation under this Agreement, then we may (without prejudice to any other legal remedies we may have):
(a) cease any work in progress;
(b) retain any moneys paid by you to make good your default;
(c) charge a reasonable sum for any Goods or Services provided to you for which we have not invoiced; and
(d) seek additional legal remedies available to us.
15.2 You must indemnify us and keep us indemnified against all costs, liability, losses and claims incurred by us as a result of your breach of any of your obligations under the Agreement.
15.3 You will be liable for and pay our legal costs on a full Solicitor/own Client indemnity basis arising from or incurred as a consequence of the default by you including but not limited to the costs of any letters of demand or the notices of default and such payment is to be made to us within seven (7) days of receipt of an invoice from us for such costs.
16.1 To the maximum extent permitted by law, you agree to indemnify us against, and must pay us on demand, the amount of any Loss that we suffer or incur arising out of or in connection with third party claims in relation to the provision of Goods or Services under this Agreement including for:
(a) claims arising from any incorrectly prescribed custom made foot orthotics and/or prefabricated devices;
(b) any injury, damage or death to a person arising out of or in connection with any of your acts or omissions in prescribing any of the Goods provided under this Agreement to a patient or any third party; or
(c) arising out of a breach by you of this Agreement.
16.2 We do not fit orthoses into shoes and therefore we take no responsibility for the success or failure of any Goods provided under this Agreement. It is your responsibility to determine the suitability of the Goods before recommending or providing them to any third party.
16.3 Your liability to indemnify us under this clause 15 will be reduced proportionally to the extent that a negligent act or omission of us contributed to the Loss.
16.4 Each party must take reasonable steps to mitigate any Loss it suffers or incurs.
18.1 Neither Party is liable for breach of any of its obligations under the Agreement as a result of any act of God, war, terrorism, strike, lockout, industrial action, fire, flood drought, storm or other event beyond the reasonable control of either Party.
18.2 This Agreement shall be binding upon and inure to the benefit of the parties, their respective permitted successors and permitted assigns, and to each of their respective executors, administrators, legal representatives, heirs and permitted assigns.
18.3 The Agreement is to be governed by the laws of the State of Victoria. Any proceeding under or in connection with it must be taken in the appropriate Court in the State of Victoria.
18.4 A provision of or a right created under the Agreement may not be waived or varied except in writing signed by the Parties.
18.5 Notwithstanding that the Agreement is intended to be fully binding and effective according to its terms each of the Parties hereto shall procure each of their servants, agents or sub-contractors to, sign, execute and deliver all such assurances, deeds, documents, instruments and writings and shall do and shall procure to be done all such other acts and things as may be necessary or desirable to give full and better effect to the Agreement.
18.6 If any clause, sub-clause, paragraph, sub-paragraph or part thereof of this Agreement is held or found to be void, invalid or otherwise unenforceable, it shall be deemed to be severed to the extent that it is void or to the extent of violability, invalidity or unenforceability, but the remainder of the Agreement will remain in full force and effect.
18.7 Any notice given pursuant to the Agreement must be given in writing and it will be deemed served or given:
(a) if personally served by being left at the address of the Party to whom the Notice is given between the hours of 9:00 am and 5:00 pm on any business day, then in such case at the time the Notice is so delivered;
(b) if sent by fax, then in such case when successfully transmitted provided that if the fax is transmitted outside business hours, then when business hours next commence.
In this Agreement:
|Australian Consumer Law||means Competition and Consumer Act 2010 (Cth) and related regulations.|
|Consequential Loss||means any indirect, incidental, special or consequential loss or damage or for loss of revenue, profits, opportunity, goodwill, interruption of business or anticipated savings.|
|Goods||means any goods which we, or through a third party we engage, provide to you pursuant to the Agreement|
|GST||means GST within the meaning of the GST Act.|
|GST Act||means A New Tax System (Goods and Services Tax) Act 1999 (Cth).|
|Loss||means any loss, Consequential Loss, damage, liability or obligation, tax, compensation, fine, penalty, charge, payment, cost or expense (including any legal cost and expense on a full indemnity basis) however it arises and whether it is present or future, fixed or unascertained, actual or contingent.|
|Order||means an order placed with us for the provision of the Goods|
|Party||means we or you.|
|Premises||means the premises or address nominated by you for the delivery of the Goods or Services.|
|Price||means the price for the Goods or Services as specified in the Published Price List.|
|Privacy Act||means Privacy Act 1988 (Cth)|
|Published Price List||means the Price List for the Goods as set out on our Site or the Software|
|Services||means the services provided to you by us as specified in the Agreement.|
|Site||means our website at https://orthotech.com.au/|
|Software||means the Orthotech Software which enables you to place an Order directly with us|
|Supply||means the supply of any Goods, Services or other things supplied by us pursuant to any Agreement.|
|We or us||means Fitball Australia Pty Ltd (ABN 77 113 677 115) and its employees, agents and sub-contractors.|
|You||means the customer or client and their directors (if client is a corporation) with whom we enter into an agreement by placing an Order for the supply of Goods or Services.|