TERMS & CONDITIONS
These terms and conditions apply to the purchase of any Goods from Dam Easy Australia. By accessing our website and placing an order you agree to be bound by the terms and conditions set out below. Please read these terms and conditions carefully before placing your order with All Weather Industries Limited. Dam Easy Australia at its discretion may amend these terms and conditions from time to time and therefore it is important you read these terms and conditions each time you make an order.
A. MARTIVA GROUP PTY LIMITED having registered ABM number 61252216608 and having its registered office at POX 675, Mount Eliza, Victoria 3930, Australia (the “Seller”);
B. any person or legal entity who wishes to purchase Goods from the Seller (the "Buyer").
A. The Seller is a supplier of flood protection products.
B. The Buyer is any person who wishes to purchase the Goods from the Seller upon the terms and conditions set out below.
NOW THIS AGREEMENT WITNESSETH:
1. DEFINITIONS AND CONSTRUCTION
In this Agreement, unless the context otherwise requires, the following words and expressions shall have the following meanings:-
“Act” means the Sale of Goods and Supply of Services Act 1980;
“Buyer” means any person who purchases or acquires ownership of any of the Flood Protection Goods including consumers, resellers, merchants, traders and distributors;
"Buyer’s Order" means the order submitted by the Buyer for the purchase of Goods from the Seller;
“Confirmation” means the acknowledgment email sent by the Seller to the Buyer detailing the quantity and description of the Goods the Buyer has ordered;
"Contract refers to any contract between the Buyer and the Seller for the sale and purchase of the Goods which shall at all time incorporate or be deemed to incorporate these terms and conditions, whether completed electronically through the Seller Website or via other means;
Delivery Point means the address the Buyer has indicated to the Seller that the Buyer’s Order to be delivered to
“Flood Protection Goods& means the Dam Easy Flood Barrier product;
means any of the Seller’s flood protection products available for purchase to the Buyer (including any part or parts of them);
"Intellectual Property Rights means ideas, discoveries, trade secrets, rights in know-how or business method (whether patented or not and whether or not they are capable of being patented), patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
"Terms" means these terms and conditions; and
"Seller’s Website" means the All Weather Industries Limited website being or any other web address the Seller may from time to time use.
1.2.1 In this Agreement words such as “hereunder”, “hereto”, “hereof” and “herein” and other words commencing with “here” shall, unless the context clearly indicates to the contrary, refer to the whole of this Agreement and not to any particular Section or Clause thereof.
1.2.2 Save as otherwise provided herein, any reference to a Section, Clause, paragraph or sub-paragraph shall be a reference to a Section, Clause, paragraph or sub-paragraph (as the case may be) of this Agreement and any reference in a Clause to a paragraph or sub-paragraph shall be a reference to a paragraph or sub-paragraph of the Clause or paragraph in which the reference is contained unless it appears from the context that a reference to some other provision is intended.
1.2.3 Any reference in this Agreement to a document includes that document as amended, substituted, restated or novated from time to time.
1.2.4 Any reference to any provision of any legislation shall include any modification re-enactment or extension thereof and shall also include any subordinate legislation made from time to time under such provision. Any reference to any provision of any legislation, unless the context clearly indicates to the contrary, shall be a reference to legislation of Ireland.
1.2.5 In this Agreement, the masculine gender shall include the feminine and neuter and the singular number shall include the plural and vice versa. References to persons shall include natural persons, firms, bodies corporate, unincorporated associations and partnerships, organisations, governments, states, foundations and trusts (in each case whether or not having separate legal personality).
1.2.6 Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.7 Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF THESE TERMS
2.1 These conditions shall apply to all of the Seller's sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by an authorized officer of the Seller. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract. Nothing in this condition shall exclude or limit the Seller's liability for fraudulent misrepresentation.
2.2 Each order or acceptance of a quotation for Goods by the Buyer from the Seller shall be deemed to be an offer by the Buyer to buy Goods subject to these Terms.
2.3 No order placed by the Buyer shall be deemed to be accepted by the Seller until a Confirmation is sent by the Seller or (if earlier) the Seller delivers the Goods to the Buyer.
2.3 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.4 Any quotation is given on the basis that no legally binding contract shall come into existence until the Seller despatches a Confirmation to the Buyer.
2.5 These conditions shall be deemed to have been accepted by the Buyer upon the earlier of:-
2.5.1 the purchase by the Buyer of the Goods from the Seller; or
2.5.2 the Buyer notifying the Seller of its intention to take delivery of the Goods; or
2.5.3 the Buyer paying or continuing to pay any order, invoice or regular payment of the Seller; or
2.5.4 the written acceptance by the Buyer of these Conditions.
3.1 The quantity and description of the Buyer’s Order shall be as set out in the Confirmation.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller's catalogues or brochures or published on the Seller’s Website are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
3.3 The Seller may make changes to the specifications of the Goods in such specifications where the changes to the specifications do not materially affect the quality or performance of the Goods and are required in order to ensure that the Goods conform with any applicable statutory requirements.
4.1 Unless otherwise agreed in writing by the Seller, delivery of the Goods shall take place at the Delivery Point.
4.2 The Buyer shall take delivery of the Goods immediately upon the delivery by the Seller of the Goods to the Delivery Point.
4.3 Where a Buyer’s Order contains more than one item all items will be delivered at the same time or as soon as practicable thereafter once all items are available.
4.4 Any dates specified by the Seller for delivery of the Goods are intended to be an estimate and time for delivery shall not be deemed to be made of the essence. If no dates are so specified, delivery shall be within a reasonable time from the date of receipt of the Confirmation.
4.4 Subject to the other provisions of these conditions the Seller shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Seller's negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract.
4.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Seller is unable to deliver the Goods on time because the Delivery Point is not accessible or the Buyer has not provided appropriate instructions, documents, licences or authorisations:-
4.5.1 risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Seller's negligence);
4.5.2 the Goods shall be deemed to have been delivered; and
4.5.3 the Seller may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance costs).
5.1 The quantity of any consignment of Goods as recorded by the Seller on despatch from the Seller's place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Seller shall not be liable for any non-delivery of Goods (even if caused by the Seller's negligence) unless the Buyer gives written notice to the Seller of the non-delivery within 14 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6. RISK AND TITLE
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of:-
6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to the Seller from the Buyer on any account.
6.3 In circumstances where delivery of the Goods has been made but ownership of the Goods has passed not to the Buyer, the Buyer shall:
6.3.1 hold the Goods on a fiduciary basis as the Seller's bailee;
6.3.2 store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller's property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
6.3.4 maintain the Goods in satisfactory condition to allow the Seller resell the Goods.
6.6 The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
6.7 The Buyer grants the Seller, its agent and employees an irrevocable licence to enter any premises at any time where the Buyer’s right to possession of the Goods has terminated.
6.8 On termination of the Contract, howsoever caused, the Seller's (but not the Buyer's) rights contained in this Clause 6 shall remain in effect.
7.1 Unless otherwise agreed by the Seller in writing, the price for the Goods shall be the price set out on the Seller's Website. The Seller reserves the right to amend or to correct any price errors at any time.
7.2 The price for the Goods shall be inclusive of any value added tax (where applicable) and all costs or charges in relation to delivery costs. Where sales tax is payable by the Buyer on receipt of the product in the jurisdiction in which the goods are received such sales tax shall be payable by the Buyer.
7.3 Prices are liable to change at any time but price changes will not affect orders in respect of which the Seller has sent a Confirmation.
7.4 When the Buyer makes an order online the Buyer authorises the Seller to debit the credit, debit or other card the Buyer specifies on the Buyer’s Order for the value of the Goods detailed in the Confirmation.
8.1 All payments must be made in full prior to delivery, including any applicable delivery or handling charges.
8.2 No payment shall be deemed to have been received until the Seller has received cleared funds.
8.3 When the Buyer makes an order online the Buyer authorises the Seller to debit the credit, debit or other card the Buyer specifies on the Buyer’s Order for the amount detailed in the Confirmation.
8.4 The Buyer shall make all payments due under the Buyer’s Order in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.
9. REFUND AND RETURNS
9.1 The Buyer shall have the right to return any Goods for a period of 14 days following the delivery of the Buyer’s Order and a full refund of the value of the Goods will be made upon the receipt of the returned Goods provided that:
9.1.1 the goods are in perfect condition;
9.1.2 the packaging remains in ‘as new’ state; and
9.1.3 the Buyer pays the cost of returning the Goods to the Seller.
9.2 Goods returned for repair will be assessed and/or repaired within a reasonable time frame. The Buyer shall be provided with an indicative repair time. These times may vary due to reasons beyond the Seller’s control e.g part availability or incorrect fault description.
9.3 The Buyer may be required to pay labour, assessment /or freight fees if the Goods returned for repair are determined to have been damaged by misuse or accident or where your rights under the Consumer Protection Act 2007 do not apply or the warranties detailed in clause 10 do not apply.
10.1 The Seller warrants that (subject to the other provisions of these conditions) on delivery, that the Goods shall:-
10.1.1 be of merchantable quality within the meaning of the Act; and
10.1.2 correspond with their relevant description;
10.1.3 be of satisfactory quality and fit for the purpose for which they are sold.
10.1.4 The Seller does not make any other warranties or representations about the Goods.
10.2 The Seller warrants that it will replace any Flood Barrier or Flood Protection Goods found to be defective for a period of one year following its delivery provided that its purchase has been registered on the Seller’s Website and the Buyer complies with the provisions of this clause 10.
10.3 The Seller shall not be liable for a breach of any of the warranties in Clause 10.1 or 10.2 unless the Buyer gives written notice of the defect to the Seller within 7 days of the time when the Buyer discovers or ought to have discovered the defect.
10.4 The Seller shall not be liable for a breach of any of the warranties in Clause 10.1 or 10.2 if:-
10.4.1 the Buyer makes any further use of such Goods after giving such notice;
10.4.2 the defect arises because the Buyer failed to follow the Seller's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods;
10.4.3 the Buyer alters or repairs such Goods without the written consent of the Seller;
10.4.4 the defect arises as a result of fair wear and tear or the willful damage or negligence of the Buyer; and
10.4.5 in the case of the Flood Barrier if the safety seal has been damaged after installation.
10.5 Subject to Clause 10.3 and Clause 10.4, if any of the Goods do not conform with any of the warranties in Clause 10.1 the Seller shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata rate provided that, if the Seller so requests, the Buyer shall return the Goods or the part of such Goods which is defective to the Seller.
10.6 If the Seller complies with Clause 10 it shall have no further liability for a breach of any of the warranties in Clause 10.1 in respect of such Goods.
11.1 Save in the case of death or personal injury caused by the Seller’s negligence or where the Seller has acted fraudulently, the Seller’s liability to the Buyer for any direct damages suffered by the Buyer will never exceed the amount the Buyer paid for the Goods.
11.2 In no event shall the Seller its directors, employees, shareholders, agents or subcontractors be liable to the Buyer for indirect, incidental, consequential, special or exemplary damages.
11.3 The Seller accepts no responsibility for any loss or damage caused by the Seller or the Seller’s employees, agents or subcontractors where such loss is:
11.3.1 not a foreseeable result and the Seller as at the time that the Buyer submits its order or of a breach of the relevant legal duty by the Seller;
11.3.2 related to loss or damage to premises or property unless caused by the Seller’s gross negligence or wilful misconduct;
11.4 The Seller shall not be liable for any damage caused by the failure of the Buyer or any of its agents to properly install the Flood Protection Goods, including without limitation:-
the failure to properly seal any doorway or opening to which the Flood Protection Goods is/are affixed;
the failure of the Buyer or its agents to properly assess their house, home, building or premises to establish all possible or likely points of entry for water ingress;
the failure of the Buyer or its agents to properly test the inflatable seal forming part of the Product; or
the failure of the Buyer or its agents to properly and fully inflate the inflatable seal.
11.5 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Act) are, to the fullest extent permitted by law, excluded from the Contract.
11.6 Nothing in these conditions excludes or limits the liability of the Seller:-
11.6.1 for death or personal injury caused by the Seller's gross negligence; or
11.6.2 for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
11.6.3 for fraud or fraudulent misrepresentation.
12. SHIPPING POLICY/FORCE MAJEURE
12.1 The Seller reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Seller including, without limitation, acts of God, governmental actions, volcanic eruption, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 7 days, the Buyer shall be entitled to give notice in writing to the Seller to terminate the Contract.
12.2 The Buyer shall not be entitled to any refund on shipping costs as a result of any delay provided for in clause 12.1.
12.3 For the avoidance of doubt, the Seller ships the Goods Monday to Friday and accordingly time in transit is only Monday to Friday and excludes public holidays both in the country of the Seller and the Buyer.
13.1 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
13.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.3 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
13.4 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
14.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax:-
14.1.1 (in case of communications to the Seller) to its registered office or such changed address as shall be notified to the Buyer by the Seller; or
14.1.2 (in the case of the communications to the Buyer) to the address of the Buyer set out in any document which forms part of the Buyer’s Order.
14.2 Communications shall be deemed to have been received:-
14.2.1 if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
14.2.2 if delivered by hand, on the day of delivery; or
14.2.3 if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
14.3 Communications addressed to the Seller shall be marked for the attention of the Company Secretary.
15.1 If any provision of these Terms (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
15.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
16. INTELLECTUAL PROPERTY RIGHTS
The Seller shall retain the sole and exclusive right, title and interest to all Intellectual Property Rights in the Goods. The Buyer acknowledges that these Terms do not transfer any of the Seller’s Intellectual Property Rights to the Buyer and that it has no right to use, re-use, licence, reverse engineer or commercially exploit in any way the Seller’s Goods or Intellectual Property Rights.
17. LEGAL CAPACITY
17.1 Every Buyer’s Order submitted is an acknowledgment by the Buyer that:
17.1.1 that the Buyer is over eighteen years of age;
17.1.2 that the Buyer accepts these terms;
17.1.3 that the Buyer has entered a contract with the Seller in relation to these Terms;
17.1.4 that these Terms constitute the entire agreement between the Buyer and the Seller.
18. GOVERNING LAW AND JURISDICTION
The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by Irish law and the parties submit to the exclusive jurisdiction of the Irish courts.