Terms and Conditions

Terms and Conditions for Sale of Products

INTRODUCTION

Please read these terms and conditions (“Terms”) carefully before you place an order to purchase products from us (“the Product”). The Terms tell you who we are, how we make our Website and the Product available, and other important information. They also contain legal obligations that apply to you when you use our Website or place an order for the Product.

Please also read our shipping, returns and pre-orders policies at heliograf.com/support. 

The Website https://heliograf.com/ is operated by Heliograf Pty Limited (“Vendor”) (ABN 42 634 776 300) of Unit B1/13-21 Mandible St Alexandria NSW 2015 Australia. We can be contacted at hello@heliograf.com or +61 02 8317 3066‬ (Australia)

Where we refer to “Customer” or “you” we mean the person using the Website and/or purchasing the Product via the Website.
Where we refer to “Vendor”, or “we”, we mean Heliograf Pty Limited.

If you do not accept these Terms, please do not use the Website or purchase a Product. By using the Website and/or placing an order for the Product you agree to be bound by these Terms.

The Product offered for sale on the Website will be supplied by Vendor from its available stock. Unless otherwise notified to you, Vendor will be responsible for supplying the Product purchased by you on the Website. When you purchase the Product on the Website you enter into a binding legal agreement between you and Vendor (“Contract”) which is governed by these Terms.

Please see our Privacy Policy for information about how your personal information may be used for Vendor.

We may change these Terms from time to time by updating them on the Website. These Terms were last updated on 29/01/2020 and apply to any orders submitted after that date.

By placing an order the Customer confirms that it has read and accepted the Terms and Conditions, and the Order Confirmation.

1. DEFINITIONS
In this Contract, unless the context requires otherwise:

Business Day means:
(a) in the case of delivery of Products – a Monday to Friday in the place where the Products are to be delivered to the Customer excluding any gazetted or recognised public holiday in that place; and

(b) in all other cases – a Monday to Friday in Sydney, Australia excluding any gazetted or recognised public holiday.

Contract has the meaning given in clause 2.2.

Customer means the person or legal entity identified in the Order Confirmation and/or the Invoice.

Customer Order means the Customers order submitted via the Vendors website to purchase the Products specified by the Customer.

Delivery Location means the place specified in the Order Confirmation or Invoice as the place to which the Products will be delivered or, if no place is specified in either the Order Confirmation or the Invoice, the place designated by the Customer and agreed by Vendor for delivery of the Products.

Force Majeure means any circumstance beyond the reasonable control of a party including acts of God, natural disasters, acts of war, riots and terrorist acts.

Intellectual Property Rights or IPR means all present and future rights conferred by statute, common law or equity in any territory or jurisdiction throughout the world, known as of the date hereof or thereafter devised, in or in relation to copyright, trade marks, designs, patents, circuit layouts, business and domain names, inventions and confidential information, and other rights resulting from intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.

Invoice means the invoice or invoices issued by Vendor for the supply of the Products and Services.

Loss means any loss, expenses, costs, damages and claims.

Order Confirmation means formal acknowledgement of the Customer’s Order issued by Vendor to the Customer (which acknowledgement may be via email and/or screen display at time of transaction).

Price means the total price excluding Tax payable for the Product including applicable shipping, handling or delivery costs.

Product means the product or products described in the Order Confirmation.

Product Documentation means any documentation provided by Vendor to the Customer which describes the operation and functionality of a Product.

Taxes means:
(a) any value added tax, goods and services tax, sales tax or any other tax on the supply of services or goods in the jurisdiction in which the services or goods are supplied to the Customer; or

(b) any tax, levy, duty, charge, impost, deduction or withholding however it is described that is imposed by a government agency, together with any related interest, penalty, fine or other charge, other than one that is imposed on net income of the other party in any jurisdiction.

Vendor means Heliograf Pty Limited, (ABN 42 634 776 300), of Unit B1 / 13-21 Mandible Street Alexandria NSW 2015 Australia.

2. FORMATION OF CONTRACT

2.1. No contract comes into existence until Vendor accepts the Customer Order by issuing an Order Confirmation. A contract is deemed to come into existence at the time and place where the Order Confirmation is issued by Vendor.

2.2. The Product may be ordered by clicking on the items you wish to purchase and then following the prompts that appear on-screen. You may check and correct any input errors in your order up until the point at which you submit your order on the checkout page.

2.3. All orders are subject to acceptance by Vendor. We are not obliged to accept your order and may decline to accept any order.If we accept your order, you will receive an Order Confirmation from us acknowledging that we have received your order and giving you an order reference number. If there are any errors in the Order Confirmation please notify us immediately.

2.4. The Contract between you and Vendor will be formed when we send you the Order Confirmation.

2.5. The Customer confirms that it has read and accepted these Terms and Conditions, and the Order Confirmation.

3. PRICE AND PAYMENT

3.1. The Price for the Products is the Price specified in the Order Confirmation.

3.2. Despite our best efforts, it is always possible that a Product listed on the Website may be incorrectly priced or not available. We will normally verify prices and availability as part of our despatch procedure so that, where the correct price is less than our stated price, we will charge you the lower amount. If the correct price is higher than the price stated on the Website, we will either contact you for instructions before despatching the Product or reject your order and notify you of the rejection. If we accept and process your order where a pricing error is obvious and unmistakable and could reasonably have been recognised by you as a mispricing, we may end the Contract, refund you any sums you have paid and require the return of any the Product delivered to you.

3.3. Payment for all orders must be made by credit or debit card through our authorised payment gateway (Stripe) on the checkout page. Stripe has its own terms and conditions affecting your transaction, which you can review at https://stripe.com/au/ssa/

3.4. Prices are liable to change at any time, but changes will not affect orders in respect of which we have already sent you an Order Confirmation.

3.5. If Customer is responsible for shipping, handling and delivery costs, this will be clearly notified to Customer at checkout and/or adjacent to the description of the Product. In that case Customer will pay or reimburse Vendor on demand for all applicable shipping, handling and delivery charges applicable to the Product.

3.6. The Customer is responsible for all Taxes (including import duties and customs charges applicable to the Product) payable on or associated with their purchase of the Product.

3.7. Vendor will be entitled to recover from the Customer all legal and other costs incurred by Vendor arising from the Customer’s default in payment and the collection of any overdue money.

4. DELIVERY TERMS

4.1. Any timeframes quoted by Vendor for delivery of the Products are estimates only. Vendor will use its reasonable endeavours to supply the Products in the quantities specified in the Order Confirmation.

4.2. Your order will be delivered to the delivery address you specified when placing your order. If your delivery address is geographically remote, for example certain outlying islands or other isolated locations, it is possible that we may not be able to deliver there. If that is the case, we will notify you before we accept your order. We reserve the right not to deliver to any country that is prohibited by applicable laws. Orders cannot be delivered to a PO Box or similar addresses.

4.3. Deliveries are made by couriers and take place in accordance with the working hours of those couriers. It is not possible to specify a precise time at which a delivery will take place, and delivery time might vary depending on geographic location of your delivery address and the courier used.

4.4. If you order the Product for international delivery, they may be opened and inspected by customs authorities and may be subject to import duties and taxes when the delivery reaches its destination. You may be required to pay import duties and taxes. Vendor has no control over these charges and cannot predict the amount.

4.5. Vendor will not be liable for any Loss suffered by the Customer arising out of any delay or failure to deliver the Products (or any part of them) in accordance with any specified time frame or failure to deliver the Products in the quantities specified in the Order Confirmation. Unless expressly precluded by the Order Confirmation, Vendor reserves the right to deliver the Product by instalments.

4.6. If the Customer does not, or indicates to Vendor that it will not, take or accept delivery of any of the Products, then these Products will be deemed to have been delivered when Vendor was willing to deliver them.

4.7. Vendor may suspend or cancel delivery of the Products if Vendor reasonably believes that the Products may cause injury or damage or may infringe the IPR of any person, or if any payment owing from the Customer to Vendor under this Contract or any other contract remains outstanding. No such suspension or cancellation will in any way constitute admission of liability or fault by Vendor.

5. RISK AND TITLE

5.1. After the Product has been delivered Customer is responsible for it. After delivery, risk of damage to, or loss or deterioration of, the Product from any cause passes to the Customer. This means that any damage to the the Product arising after delivery or collection is the Customer’s responsibility. Vendor cannot be held accountable for a Product that is damaged after delivery.

5.2. Ownership of the Product will pass to Customer on delivery, provided full payment including any delivery charges, has been received by Vendor.

5.3. Customer’s rights relating to cancellation and returns remain unaffected. Delivery will occur when we or the courier have delivered the Product to the delivery address.

6. WARRANTY

6.1. Legislation (including the Australian Consumer Law) may provide consumer guarantees or impose obligations on Vendor in respect of Consumer Contracts which cannot be excluded, restricted or modified, or only to a limited extent. This Contract is subject to such legislation.

6.2. 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.

6.3. Vendor warrants to the Customer that the Product will:

a) be free from material defects in materials and workmanship affecting normal use; and

b) operate substantially in accordance with the Product Documentation.

6.4. Vendor warrants that the Product will be free from defects in materials and workmanship for a period of 12 months from the date of delivery to you, if you are the original purchaser from Vendor (“the Warranty Period”). If a defect in the Product arises within the Warranty Period, Vendor will, at its sole option and subject to applicable laws: (a) repair or replace it with a new or refurbished product or component; or (b) refund the original purchase price upon return of the defective Product. This Warranty does not apply to a Product which you purchase from an unauthorized reseller, or where the instructions for use of the Product are not complied with or where the Product is damaged as a result of abuse, accident, modification, moisture or other causes beyond our reasonable control.

6.5. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. This warranty gives you specific legal rights, and you may also have other rights which vary by jurisdiction. All warranty claims and replacements must be authorized by Vendor. Refurbished parts may be used for repair or replacement of a Product under warranty.

7. INTELLECTUAL PROPERTY RIGHTS

7.1. The Customer acknowledges and agrees that all Intellectual Property Rights in the Product and any content on the Website (including text, graphics, software, databases, photographs and other images, videos, sound, trade marks and logos) remains with Vendor or its licensors, as applicable.

7.2. The Intellectual Property Rights in the Website and the Content are protected by international laws dealing with IPR including relevant national law. All Intellectual Property Rights are expressly reserved.

7.3. Nothing in these Terms gives Customer any right in respect of any Intellectual Property Rights owned by Vendor or its licensors.

7.4. You acknowledge that you do not acquire any ownership rights by downloading content from the Website. In the event you print off, copy or store pages from the Website (only as permitted by these Terms), you must ensure that any copyright, trade mark or other IPR notices contained in the original content are reproduced.

7.5. The trade marks and trade names under which Vendor’s business is carried on are owned by Vendor and its associated companies together with all IPR in logos, designs, images, symbols, emblems, insignia, slogans, information, drawings, plans and other identifying materials (whether or not registered or capable of registration).

8. LIMITATION OF LIABILITY

8.1. The warranty given in clause 6 is given in place of all excludable warranties, conditions, guarantees, terms, undertakings and obligations implied by statute, common law, trade usage, course of dealing or otherwise including warranties or conditions of merchantability, fitness for purpose, satisfactory quality or compliance with description and non-infringement, all of which are excluded to the fullest extent permitted by law.

8.2. Where any terms, conditions, warranties or guarantees are implied by law into this Contract which the law expressly provides may not be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent, the liability of Vendor to the Customer under the implied terms, conditions, warranties or guarantees is limited, at the option of Vendor, to the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the reasonable cost of having the goods repaired.

This limitation does not apply to exclude any guarantee that relates to any conditions, warranties or guarantees implied by law which cannot be excluded, restricted or modified.

8.3. To the fullest extent permitted by law, under no circumstances will Vendor be liable to Customer for special, incidental, or indirect damages or for any economic loss consequential damages or any loss of profit, loss of revenue, loss of interest, loss of data, loss of use, loss of goodwill or business opportunities, business interruption (or any other similar financial loss), which arises directly or indirectly, in connection with this Contract, however that liability arises including in contract or tort, liability under indemnity or for any other common law, equitable or statutory cause of action or otherwise. This clause will not prevent Vendor from recovering the Price from the Customer.

8.4. To the extent permitted by law and except as provided otherwise in this Contract, the maximum cumulative aggregate liability to the Customer regardless of basis (including indemnity, warranty, fundamental breach, negligence, misrepresentation or other contract or tort claim) is limited to the total amount paid by the Customer to Vendor (excluding Taxes) under this Contract.

8.5. The liability of a party for any Losses incurred by the other party will be reduced proportionately to the extent that the Loss is caused or contributed to by the other party or its personnel or contractors. Without limitation to the foregoing, the Customer expressly acknowledges and agrees that Vendor has no obligation or liability to the Customer under this clause 8 or otherwise to the extent such obligation or liability is based upon or arises from:

a) the gross negligence or willful misconduct of the Customer or any of its employees, agents or subcontractors; or

b) any breach of this Contract by the Customer, and/or any use of any Product in breach of any term of this Contract.

8.6. To the maximum extent permitted by applicable law, the Customer assumes the sole risk and liability of any use of the Product.

8.7. Nothing in this Contract limits or excludes Vendor’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors.

9. RETURNS

9.1. Promptly after delivery Customer should inspect the Product for any possible damage or missing components. Please contact Vendor immediately if the Product is damaged or defective. The Customer will be deemed to have accepted the Product with effect from the date of delivery to the Delivery Location unless the Customer notifies Vendor at the time of delivery or the commencement of installation, as applicable, that it wishes to make a warranty claim and confirms the notification to Vendor within one Business Day in writing.

9.2. If Customer wishes to return a Product and receive a refund or replacement, Customer must obtain the prior written approval of Vendor before returning the Product (which approval Vendor may give in its absolute discretion and subject to any conditions it stipulates). Without limitation to any other right of Vendor in relation to consenting to the return of any Product, Vendor may charge an administration fee or a re-stocking fee in respect of the returned Product if it is not the subject of a warranty claim. If Vendor consents to the return of any Product:

a) Vendor will issue a return authorisation number and specify the address to which the Product must be returned by Customer; and

b) Customer must return the Product to the address specified by Vendor, together with the return authorisation number issued by Vendor and any other information provided by Vendor when consenting to the return of Products.

9.3. We will honour our legal obligation to deliver the Product which conforms to the description on our Website. We make every effort to show you images and descriptions of the Product which are accurate and realistic. The images of the Product are for illustrative purposes only. We cannot guarantee that the display of colour on Customer’s viewing screen accurately reflects the colour of the Product. The Product may vary slightly from those images.

9.4. We do not accept returns for:

a) damage (like scratches, dents) caused by Customer or normal wear and tear – including consumable parts like batteries or protective coatings, rubber feet etc.

b) damage caused by misuse (e.g. from not following the instructions and warnings provided with the Product)

c) unauthorised repairs or modifications to the Product; or

d) damage caused if the Product is not installed by a qualified person.

9.5. Battery usage is not usually covered by the 12 month warranty because it is regarded as normal wear and tear. Vendor will only honour warranty claims for a battery if it is clear that the claim is due to a defective battery and does not arise from normal wear and tear.

10. FORCE MAJEURE

10.1. Neither party will be liable for any delay or failure to perform its obligations under this Contract (other than payment obligations) if such delay is due to Force Majeure.

10.2. If a delay of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended.

10.3. If the Force Majeure Event continues for 30 days, either party may terminate this Contract by written notice to the other party effective from the date of the notice or a later date specified in the notice.

11. GENERAL

11.1. In this Contract, unless the contrary intention appears:

a) headings are for convenience only and do not affect interpretation;

b) a person includes a corporation, unincorporated association, partnership, joint venture or public, statutory or governmental association or agency;

c) a statute or regulation includes an amendment, replacement or re-enactment of that statute or regulation;

d) the word “including” and similar expressions are not words of limitation;

e) each provision of this Contract shall be interpreted without disadvantage to the party who drafted the provision; and

f) a reference to conduct includes any omission and any statement or undertaking, whether or not in writing.

11.2. Any notice in connection with this Contract will be deemed to have been duly given when made in writing and delivered or sent by post or email to the party to whom such notice is intended to be given, at the address or email of that party in this Contract or to such other address or email as may from time to time be notified in writing to the other party provided that the sender has not received a message to the effect that email was not delivered or that the recipient is ‘out of office’.

11.3. If any provision of this Contract is invalid, illegal or unenforceable, this Contract takes effect (where possible) as if it did not include that provision.

11.4. Any failure by Vendor to insist upon strict performance by the Customer of any provision in this Contract will not be taken to be a waiver of any existing or future rights of Vendor in relation to the provision.

11.5. The Contract is governed by the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales and courts hearing appeals from those courts.

11.6. This Contract contains the entire agreement of the parties with respect to its subject matter and may only be amended in writing.

11.7. This Contract does not create a relationship of agency, partnership, joint venture or employment between the parties. Neither party has any authority to act for or incur any liability or obligation on behalf of the other party in any manner.

11.8. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods adopted at Vienna, Austria on 10 April 1980 does not apply to the supply of Products under this Contract.