The following terms and conditions, as amended from time to time (“Trading Terms” or alternatively “Terms”), will apply to all goods and services supplied by Arvo to the Customer.
In these conditions:
(a) “ACL” means the Australian Consumer Law. Information about the Australian Consumer Law, when it applies and what it means can be found at http://www.consumerlaw.gov.au.
(b) “Agreement” means the agreement between Arvo and the Customer pursuant to these Terms, the Application and / or the Order (as the case may be), and including any Product Terms where relevant.
(c) “Application” means any trading application form completed by the Customer and provided to Arvo.
(d) “Arvo” means Arvo Pty Ltd ACN 649 065 085 and includes its officers, servants, agents and subcontractors and successors (Arvo is also referred to as “we” and “us” in these Terms, and “our” has a corresponding meaning).
(e) “Claim” includes any claim, demand, proceeding, action or similar event.
(f) “Customer” means the person noted in the Application and / or the Order as the Customer and includes its employees or agents and successors and includes any other person who receives the benefit of the goods or services from Arvo and any other person who relies on Arvo in relation to the goods or services (the Customer is also referred to as “you” in these Terms, and “your” has a corresponding meaning).
(g) “Delivery Address” means the address described in that way in the Order or the Application (whichever is relevant).
(h) “goods” means the goods to be supplied (whether gratuitously or not) by Arvo as specified in the Order or as otherwise agreed between Arvo and the Customer.
(i) "GST Law" means A New Tax System (Goods and services Tax) Act 1999 (Cth) as amended and other associated Acts as amended.
(j) “Loss” means any loss, damage, cost, expense or other adverse financial or other consequence.
(k) “Product Terms” means any specific terms and conditions which may also apply to particular goods and services supplied by Arvo to the Customer (which, if they apply, also form part of the Agreement).
(l) “Order” means any quotation form or other document provided by Arvo to the Customer
(or vice versa) detailing the goods and services to be provided.
(m) “services” means the services to be performed (whether gratuitously or not) by Arvo as specified in the Order or as otherwise agreed between Arvo and the Customer.
No provision in the Agreement is to be construed to the disadvantage of Arvo merely because Arvo has prepared and proposed this Agreement.
In the Agreement the word “person” includes a natural person, any association or body, a company, and any similar or analogous entities.
Arvo may assign, subcontract or licence its rights and obligations under this Agreement without the prior consent of the Customer. However, the Customer may not assign, subcontract or licence their rights and obligations under this Agreement without the prior consent of Arvo.
1. Definitions and interpretation
2.1. This Agreement sets out the entire agreement between the parties and will prevail over all communications between Arvo and the Customer to the extent of any inconsistency. Where there are specific Product Terms communicated by Arvo to the Customer in relation to some or all of the goods and services to be supplied to the Customer, then those specific Product Terms form part of this Agreement. Where the Product Terms provide for an issue more specifically than these Terms, then the conditions in the Product Terms will prevail over these Terms.
2.2. No alteration or variation of the Agreement will be binding upon Arvo unless such alteration or variation is specifically acknowledged and approved by Arvo.
2.3. Arvo reserves the right at all times to act reasonably to vary the terms and conditions of this Agreement. Arvo declares and the Customer acknowledges that the most up to date version of the Terms which form part of the Agreement can be found on Arvo’s website, currently at the location www.arvohaircare.com/trading-terms (“Updated Terms”).
2.4. Arvo must take reasonable steps to inform the Customer of the Updated Terms and to provide reasonable notice to the Customer before Updated Terms will apply to govern the relationship between Arvo and the Customer. The Customer confirms that notification of the Updated Terms on Arvo’s website or reference to the Updated Terms in any material provided to the Customer will be reasonable steps by Arvo to inform the Customer.
2.5. In the event that there is any inconsistency between this Agreement and the Updated Terms, the terms and conditions of the Updated Terms will prevail and the Customer acknowledges that it will always be bound by the terms and conditions of the Updated Terms.
2. Application and variation
3.1. Arvo
3.1.1. Goods supplied by Arvo must be in accordance with the specifications disclosed by Arvo prior to the supply of the goods, as modified by any particular terms set out in the Order.
3.1.2. Services provided by Arvo must be performed with due care and skill (applying an acceptable level of skill and technical knowledge), in a way which is fit for any purpose specified by the Customer to which Arvo has agreed.
3.1.3. Arvo will act in accordance with the Customer’s reasonable instructions, where practical. Arvo will provide the goods and perform the services within a reasonable time (to the extent that it is within its control to do so), and will give notice to the Customer if it becomes aware of any matter which may change the timing or scope of the provision of the goods or the performance of the services. A reasonable time for the supply of goods will typically be (commencing from when goods are ordered by the Customer) between 2 and 5 business days when goods are in stock or when they can be ordered by Arvo from within Australia
3.1.4. While Arvo takes care in preparing quotations, availability and pricing of goods may vary without notice to Arvo and so Arvo is entitled to vary any Order at any time, (even after the Customer has accepted it, if there has been a relevant change in availability and pricing of goods). Arvo may also vary any Order at any time to correct any errors and omissions in the Order. The Customer is not bound by any varied Order until they have had an opportunity to consider it and have accepted or adopted it (which the Customer may do expressly, or by their conduct).
3.1.5. Delivery of goods is covered by clause 3.2.3 Arvo will perform services either at Arvo’s office, the Delivery Address or another location as appropriate.
3.2. The Customer
3.2.1. The Customer must determine whether the goods and services requested by the Customer and supplied by Arvo are adequate for the purpose intended by the Customer. Arvo is not capable of determining all of the Customer’s objectives in relation to the goods and services and relies on the Customer as to whether the goods and services are adequate to achieve the Customer’s purpose and objectives.
3.2.2. The Customer grants Arvo right of access to any relevant site as required to deliver the goods and to perform the services. Where the
consent of any third party is required for Arvo to access any relevant site, the Customer is responsible for arranging such consent.
3.2.3. The Customer must pay for the cost of freight of the goods to the Delivery Address – unless otherwise agreed in the Order. The Customer is responsible for the risk of goods which are in transit from Arvo (or from a supplier of Arvo) to the Delivery Address until they are delivered to the Customer.
3.2.4. If you wish to return goods, then we reserve the right to assess their condition at the time when you propose the return of goods to us, or at a later time. Goods which are damaged (including damage to packaging) or otherwise unsaleable (or only saleable at a reduced price) – either as a result of any act, omission or negligence by you, or as a result of any event occurring during the time between delivery of goods and when the goods are appropriately returned to us – will not be accepted for return. Before returning any goods, the Customer must: 3.2.4.1. pack the goods properly in order to prevent any damage to them;
3.2.4.2. ensure that supporting documentation including proof of purchase is provided to Arvo;
3.2.4.3. if the goods are being returned as defective, ensure that the goods really are defective before returning them; and
3.2.4.4. bear transit risk in relation to the goods until they are actually received by Arvo.
3.2.5. The Customer must comply with all other provisions of these Terms.
3. Responsibilities
4.1. The Customer must pay Arvo for goods and services under this Agreement in full, without deduction or set off, at the times and in the manner set out in this Agreement. This is a fundamental obligation of the Customer. Arvo retains ownership of all goods until it has been paid in full for the relevant goods. Each time that the Customer is required to pay Arvo, it is required to do so in cleared funds.
4.2. The Customer must pay Arvo for the goods and services in accordance with the timing set out in the Order. If there is no timing set out in the Order then the Customer must pay Arvo for the goods and services in full, in cleared funds without deduction or set-off, before delivery of the goods and/or services (which may occur by way of Arvo debiting the Customer’s nominated credit card, upon receipt of an Order).
4.3. If there is specific timing for payment set out in the Order then that will take precedence over the timing for payment set out here.
4.4. The Customer must pay GST to Arvo on any taxable supply within the meaning of the GST Law made to the Customer pursuant to these conditions. Payment of GST must be made at the same time as amounts are due pursuant to Clause 4.2.
4.5. If there is a change in the scope, timing or order of the goods and services then Arvo will be entitled to payment of an additional amount which is reasonable in the circumstances. In particular, if goods are returned as defective but are not in fact defective after testing, then Arvo is entitled to charge the Customer for all relevant additional freight and handling costs and for the costs of Arvo’s labour in investigating the alleged defects in the goods.
4.6. If any payment issued by the Customer in payment for the goods and services is dishonoured, rejected or otherwise fails to achieve the actual and permanent transfer of actual funds to Arvo, then Arvo may refuse to supply any further goods and services until satisfactory payment is received in full. Any dishonour or rejection or similar fee(s) charged to Arvo will be recoverable in full from the Customer.
4.7. If the Customer does not pay any payment or amount due on the due date in accordance with the terms of this Agreement, then without prejudice to any other right or remedy Arvo may, at its discretion, withhold the provision and release of goods and the provision of services until receipt of actual payment of all unpaid amounts by the Customer.
4.8. Arvo is not responsible for any delays in funds being received to the account nominated by Arvo, nor is Arvo responsible for banking errors or accounting, administrative or similar errors by the Customer. The Customer must take care to ensure that all transfers or remittances of funds to Arvo are processed promptly and accurately. The Customer must not object if Arvo charges Interest or Costs or refuses to supply further goods or services due to funds not being received by Arvo when they are required (by this Agreement) to be received.
4. Payment
5.1. The benefits under any voluntary warranty against defects which Arvo may provide are in addition to consumer guarantees and other rights and remedies available under the law, and any such Arvo warranty does not limit or replace the consumer guarantees or those other rights and remedies. Arvo does not currently provide any voluntary warranty.
5.2. If the ACL applies to the relevant relationship between Arvo and the Customer, and if Arvo is supplying only goods, then the following clause 5.3 is relevant – otherwise, the following clause is not relevant.
5.3. 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 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.
5.4. If the ACL applies to the relevant relationship between Arvo and the Customer, and if Arvo is supplying goods and services, then the following clause 5.5 is relevant – otherwise, the following clause is not relevant.
5.5. 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:
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to cancel your service contract with us; and
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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 a 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.
5. Warranties in relation to goods and services
6.1. The Customer warrants to Arvo that the use of or reliance upon any data, design, plan or other information provided to Arvo by the Customer will not infringe any patent, trademark, design, copyright or confidentiality agreement in Australia or elsewhere. The Customer indemnifies Arvo against any Loss or Claim arising from a breach of this warranty.
6.2. Any data, design, plan, report or other information developed as a result of the goods and services is provided to the Customer for the Customer’s purposes only and Arvo will bear no responsibility to any other person in respect of those things.
6.3. Arvo retains ownership in all intellectual property created by Arvo in providing the goods and in performing the services. Provided that the Customer pays all amounts due to Arvo under the Agreement, Arvo grants the Customer an irrevocable and royalty-free non-exclusive license to use such relevant intellectual property for the purpose of obtaining the benefit of the goods and services only (but not to further exploit the intellectual property).
6. Intellectual Property and Use of Information
7. Limitation or exclusion of liability
7.1. If the ACL applies to the relevant relationship between Arvo and the Customer, then Arvo is not permitted to exclude its liability for consequential loss or damage and does not attempt to do so. However, to the extent permitted by the ACL and by law generally, Arvo will be under no liability whatsoever to the Customer and/or any third party for any indirect, special, consequential or exemplary Loss or Claim or personal injury suffered by the Customer and/or any third party directly or indirectly in connection with the goods and services or directly or indirectly arising out of the Agreement or otherwise from the relationship between Arvo and the Customer and any third party, and whether actionable in contract, tort (including negligence), equity or otherwise.
7.2. If Arvo causes any Loss to the Customer as a result of any deficiencies in the goods or in the performance of the services, or due to any negligence of Arvo or due to any other cause then (where permissible under the ACL, if it applies) the extent of Arvo’s liability will be limited to a maximum of the fee actually paid to Arvo by the Customer for the goods and services. Arvo’s liability will also be reduced to the extent that the Customer or any other person contributed to the Loss.
7.3. In addition to each other limitation which applies to the relationship between Arvo and the Customer, Arvo is only required to (and its liability is limited to):
7.3.1. either replacing or repairing goods or reimbursing the Customer for the repair or replacement of the goods (at the election of Arvo);
7.3.2. either re-supplying services or reimbursing the Customer for paying someone else to supply the services (at the election of Arvo).
If the ACL applies to the relevant relationship between Arvo and the Customer, then this clause only applies in relation to goods and services which are not used for personal, domestic or household purposes.
8. Indemnity
8.1. To the extent permitted by law, the Customer indemnifies Arvo against any Loss or Claim arising, directly or indirectly, in connection with the goods and services or directly or indirectly out of the Agreement or otherwise from the relationship between Arvo and the Customer and any third party. This includes indemnifying Arvo for any Loss or Claim, including Interest and Costs, associated directly or indirectly with the breach of the Agreement by the Customer. If the ACL applies to the relevant relationship between Arvo and the Customer, then this indemnity is intended to be read down or severed if necessary, to the extent to ensure that there is no breach of the ACL.
9. Governing law and severability
9.1. The Agreement will be governed by and construed in accordance with the laws of Queensland. The parties submit to the non-exclusive jurisdiction of the Courts of that jurisdiction.
9.2. If any part or provision of the Agreement is held unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, the invalid or unenforceable part or provision will be replaced with a provision which accomplishes, to the extent possible, the original purpose of the part or provision in a valid and enforceable manner, and the remainder of the Agreement will remain binding on the parties.
10. Force majeure
11. Default and termination
10.1. If by reason of any fact, circumstance, matter or thing beyond the reasonable control of a party, that party is unable to perform, in whole or in part, any obligation under the Agreement, then that party is relieved of that obligation under the Agreement (to the extent and for the period that it is so unable to perform) and is not liable to the other party in respect of such inability. This provision does not apply in relation to obligations to make payment to the other party.
11.1. Without prejudice to any of Arvo’s other rights and entitlements under this Agreement, Arvo may terminate this Agreement at any time and for any reason, by not less than 5 business days’ written notice to the Customer.
11.2. If the Customer fails to keep, perform or observe any express or implied term of the Agreement and/or any other agreement with Arvo, including making any payment in accordance with this Agreement, then Arvo may immediately or at any time without giving any prior notice to the Customer, suspend the performance of Arvo’s obligations under the Agreement and may (after giving reasonable notice to the Customer) terminate this Agreement.
11.3. In this Clause, Arvo’s exercise of any rights of termination or suspension will not release the Customer from any liability for their default in keeping, performing or observing any of the express or implied terms of the Agreement and will be without prejudice to Arvo’s right to retain all money paid to Arvo pursuant to the Agreement and Arvo’s right to claim for Loss.
