Terms and Conditions - Sale of Assistive Technology Agreement (General)

These terms and conditions (Terms) are entered into between us, Digital Brand Builders Pty Ltd (ACN 164 689 294) t/a Aged Care and Medical, and you, the person placing an order for an assistive technology product/s (Goods) from us, together the Parties and each a Party. If you are purchasing Goods on behalf of a Customer who does not have legal capacity, the word “you” means you and the Customer. 

  1. Engagement and Term 

    1.1 These Terms apply from the date you: 
       (a) accept the Quote in writing; or
       (b) make payment on a Quote, 
    until the date on which: 
       (a) we provide the Goods to you; or  
       (b) these Terms are terminated. 

    2. Orders
     

    2.1 In consideration of your payment of the Price, we will provide the Goods to you. 

    2.2 I
    f you intend for your payment of the Price to be subsidised by a Funding Provider, you agree that, at our discretion, we may choose to only supply the Goods upon your provision of written confirmation by your Funding Provider that you have obtained the necessary approvals and funding to purchase the Goods. 

    2.3 
    If these Terms express a time within which the Goods are to be supplied, we will use reasonable endeavours to provide the Goods by such time, but you agree that such time is an estimate only. 

    2.4 
    We may cancel, at any time before delivery and for whatever reason, an order that we have previously accepted, including where there is a considerable delay in dispatching your order or if for any reason we cannot supply the Goods you order (for example for an event beyond our reasonable control). We will contact you using the details you provided when you placed your order. 

    3. Your Obligations 

    3.1 You agree to follow any reasonable requests or instructions (including any after-care manuals, instructions or policies) that we provide to you in connection with the Goods.

    4. Price and Payment 

    4.1 You agree to pay us the Price in accordance with this clause. All amounts are stated in Australian dollars and Australian GST (where applicable) will be set out separately on our invoice.  

    4.2 Payment Terms: Upon your acceptance of the Quote and, if applicable, your provision of evidence of the Funding Provider’s approval in accordance with clause 2.2, we will issue you an invoice for the Price. You agree to make payment on the invoice within 30 days of the date the invoice was issued to you. 

    4.3 
    If you do not understand an invoice or want to clarify any charges, you can contact us and we will explain the charges to you. If you are not happy with our explanation, we will work with you to try and come to a resolution.  

    5. 
    Delivery, Title and Risk 

    5.1 Title in the Goods will only pass to you on the date that you pay the Price in full in accordance with these Terms.

    5.2 
    You can find more information about how we deliver and/or allow collection of the Goods by reading our shipping policy on our website. 

    5.3 
    We will only deliver the Goods to you once you have paid the Price in full. Risk in the Goods will pass to you once we have delivered the Goods to the agreed delivery location as set out in the Quote.  

    5.4 
    You will be responsible for the costs of delivery. 

    5.5 
    You must:  
       (a) 
    let us know where we need to deliver the Goods; 
       (b) 
    ensure that we have clear access to the location set out in the Quote (Premises) to deliver the Goods; 
       (c) 
    obtain all relevant consents and approvals for us to access the Premises free from harm or risk to health or safety at the times and on the dates reasonably requested by us or as agreed between the Parties; and
       (c) perform all required safety checks to ensure that the Premises are safe for us to attend. 

    6. How we handle the information you give us  

    6.1 You can find information on the way we handle personal information by reading our privacy policy on our website. If you want a copy, please let us know and our staff can email one or send you one in the post. 

    6.2 
    If you want us to discuss your needs with another person such as a family member, we will ask you to sign a form letting us know the person’s details. Unless we have your consent, we will not discuss your needs with a third person unless this is allowed under law (for example if you are at risk of harm or abuse). 

    7. Australian Consumer Law 

    7.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Goods by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at Law, nothing in these Terms excludes those Consumer Law Rights. 

    7.2 Subject to your Consumer Law Rights, we provide all material, work and goods (including the Goods) to you without conditions or warranties of any kind, implied or otherwise (including without limitation any implied warranties of merchantability or fitness for a particular purpose), whether in statute, at Law or on any other basis, except where expressly set out in these Terms. 

    7.3 This clause 7will survive the termination or expiry of these Terms. 

    8. Liability 

    8.1 Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by Law:   
       (a) neither Party will be liable for indirect losses;  
       (b) a Party’s liability for any Liability will be reduced proportionately if the other Party’s acts or omissions, including failure to mitigate loss, contributed to the Liability; and 
       (c) (where our Goods are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to: 
            (1) replacing the Goods or the supply of equivalent Goods, or the payment of the cost of replacing the Goods or of supplying equivalent Goods; or 
           (2) the repair of the Goods, or the payment of the cost of having the Goods repaired; 
       (d) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to the Price paid by you to us in respect of the supply of the relevant Goods to which the Liability relates; and
       (e) we will not be liable for any injuries you may suffer when you are using the Goods unless we are negligent. 

    8.2 This clause 8 will survive the termination or expiry of these Terms. 

    9. Term and Termination

    9.1 These Terms will terminate immediately upon written notice by a Party (Non-Defaulting Party) if: 
       (a) the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
       (b) the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due. 

    9.2 Upon expiry or termination of these Terms: 
       (a) without limiting and subject to your Consumer Law Rights, any payments made by you to us for Goods already provided to you are not refundable. For more information about how we handle requests for refunds and exchanges, refer to our returns policy on our website; and 
       (b) 
    by us pursuant to clause 9.1, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees). 

    9.3 
    Unless otherwise agreed between the Parties, termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.   

    9.4 This clause 9 will survive the termination or expiry of these Terms. 

    10. General 

    10.1 
    Amendment: Subject to clause 2.4, these Terms may only be amended by written instrument executed by the Parties. 

    10.2 
    Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.  

    10.3 Disputes:  A Party may not commence court proceedings relating to any dispute arising from, or in connection with, these Terms (Dispute) without first meeting a representative of the other Party within 10 Business Days of notifying that other Party of the Dispute. If the Parties cannot resolve the Dispute at that meeting, either Party may refer the Dispute to mediation administered by the Australian Disputes Centre.  

    10.4 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause: 

       (a) as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and 
       (b) uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.  

    Where the Force Majeure Event prevents a Party from performing a material obligation under these Terms for a period in excess of 60 days, then the other Party may by notice terminate these Terms, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under these Terms.  

    10.5 Governing Law: These Terms are governed by the laws of Victoria. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts. The Parties agree that the U.N. Convention on Contracts for the Sale of International Goods is excluded from application to these Terms. 

    10.6 Notices: Any notice given under these Terms must be in writing addressed to the addresses set out in these Terms, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email. 

    10.7 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties. 

    10.8 Subcontracting: We may subcontract the supply of any part of the Goods without your prior written consent. We agree that any subcontracting does not discharge us from any liability under these Terms and that we are liable for the acts and omissions of our subcontractor. 

    11. Definitions  

    ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.  

    Business Day means a day on which banks are open for general banking business in Melbourne, Victoria, excluding Saturdays, Sundays and public holidays. 

    Consumer Law Rights has the meaning given in clause 7.1 

    Customer means the person who is receiving the Goods.  

    Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic. 

    Funding Provider means an entity that provides funding to individuals for assistive technology goods, including the Department of Veterans’ Affairs and the State-wide Equipment Program, but does not include the National Disability Insurance Agency. 

    Goods means the goods to be supplied as set out in the Quote, as adjusted in accordance with these Terms. 

    Law means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with these Terms or the supply of the Goods. 

    Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise. 

    Price means the price set out in the Quote, as adjusted in accordance with these Terms. 

    Quote means the document to which these Terms are attached or incorporated. 

    Terms means these terms and conditions and any documents attached to, or referred to in, each of them.