NEWWAVE BIOTECH

TERMS AND CONDITIONS

These terms and conditions are between New Wave Agriculture Australia Pty Ltd (ABN 78 641 968 569), (we, us or our) and you, the party stated in the Order (you or your), together the Parties and each a Party. These terms and conditions and the Order form the entire agreement under which we will provide the Products to you.

1. ACCEPTANCE
   • 1.1 You have requested the Products set out in the Order, and you accept these Terms by the earlier of:

• a. accepting the Order online, sending an email accepting the Order (expressly or impliedly) or in any other manner we agree to in the Order; or
• b. making part or full payment of the.

1. ORDERS
   • 2.1 You may order the Products online through our website (available at www.newwavebio.au) or in any other manner we agree to.
   • 2.2 If you order our Products online, you may create an account when you make your purchase. You must ensure that any personal information you give to us when placing your Order and/or creating an account is accurate and up-to-date. All personal information that we collect will be treated in accordance with the privacy policy on our website.
   • 2.3 If you have a recurring Order that has been approved by us, either party can terminate the recurring Order by providing 30 days’ written notice to the other party.
   • 2.4 Any Order placed through our website or by another manner which we agree to, is an offer by you to purchase particular Products for the Price.
   • 2.5 We may, at our absolute discretion, accept or reject an Order. We will endeavour to notify you of a rejection at the time of the Order or within a reasonable time thereafter.
   • 2.6 Each Order that we accept results in a separate binding agreement between you and us for the supply of Products in accordance with these Terms.
   • 2.7 When you place your Order and pay on our website, and your Order has been accepted by us and payment has been validated, we will provide you with an order confirmation email, which may include an Order number, the delivery and billing addresses and a description of what was ordered.
   • 2.8 Any purchase orders, whether or not arising from an Order, are subject to written confirmation from us. Any terms and conditions set forth in your purchase order or otherwise issued by you will be rejected and will not apply to the sale of the Products, unless it is clearly stated in an Order.
2. PRODUCTS
   • 3.1 We will not be responsible for any Products unless expressly set out in the Order.
   • You acknowledge and agree that any dates for delivery notified by us are estimates only. We agree to use reasonable endeavours to provide the Products within a reasonable time.
   • 3.2 The Price and the Products can only be varied by written agreement between us, including by email. If you request a variation to the Order, Products, or Price (Variation) the request must be made in writing, and we have discretion as to whether we accept the Variation. If we accept the Variation, we will inform you in writing of any necessary changes in the Order, Products, Price and/or these Terms. We may issue a further or amended Order (including online) allowing for the Variation. You may accept the further or amended Order by confirming in writing (including by email). We will not be required to provide any Variation until such time as you have accepted the amended or further Order. Variations will be priced in accordance with our Order or any schedule of rates provided to you by us, or otherwise as reasonably determined by us and notified to you.
3. PRICE AND PAYMENT
   • 4.1 You agree to pay us the Price and any of our costs or expenses (including but not limited to any costs or expenses associated with storing and re-delivering the Products where you fail to provide access for, or accept, any attempted delivery of the Products by us) (Expenses), in accordance with the Order and these Terms. All amounts are stated in Australian dollars and are exclusive of GST (unless indicated otherwise).
   • 4.2 Unless otherwise stated in the Order and agreed with you in writing:
   • you agree to pay 100% of the Price payable upfront when you submit your Order; and
   • you will not be entitled to any part of the Products until the Price has been paid in full.
   • 4.3 You must pay the Price and any Expenses using one of the methods set out on our website, in the Order or agreed with you in writing. We offer payment via a third party payment processor and payments made via such a third party will be subject to the third party’s terms and conditions.
   • 4.4 You must not pay, or attempt to pay, the Price by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment.
   • 4.5 Where you order the Products for delivery outside Australia, you may need to pay custom charges or taxes in addition to the Price.
   • 4.6 If any payment has not been made in accordance with the Order, we may (at our absolute discretion):
   • a. charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms; and
   • b. after a period of 5 Business Days, cease providing the Products, and recover, as a debt due and immediately payable from you, our additional costs of doing so (including legal fees, debt collector fees and mercantile agent fees). 
   • 4.7 We may at any time require any amount that has become payable to be paid immediately and before delivery of the Products to the Property or any other performance by us, if we consider you to be a credit risk.

1. DELIVERY, TITLE AND RISK
   • 5.1 As between the Parties, you agree to pay for all Delivery Costs associated with delivering the Products.
   • 5.2 We offer delivery for purchases made on our website for Properties within our delivery partner’s delivery zones as specified on our website or otherwise communicated to you. If you wish to request delivery outside of an area we deliver to, please contact us and we may deliver for an additional fee, however, we are not obliged to agree to any such delivery request.
   • 5.3 All deliveries to Properties are to ground level unless agreed by us prior to the delivery. Extra delivery fees may apply to Properties which have stairs, lifts or special access requirements.
   • 5.4 If we have arranged a delivery to a Property with you for a specific day and time and we are unable to leave your Order at the Property we will return your Order to a storage location and rearrange another day/time with you. You acknowledge that you will incur another delivery fee.
   • 5.5 You acknowledge and agree that:
   • a. we may provide you with an estimated date and time for delivery of the Products and that any estimate is an estimate only;
   • b. delivery of the Products may be affected by circumstances beyond our control, including Force Majeure Events, delays experienced by third parties, delays where we have asked you to provide further information or where we believe you have made a mistake in your Order and delays associated with shipping components of the Products; and
   • c. we have no Liability, and you waive and release us from any Liability, for any delays, delivery damage to the Products or a failure to deliver as a result of, or in connection with, any of the events or circumstances referred to in this clause 5.
   • 5.6 Title in the Products will remain with us until the Price and all other amounts due and payable to us under these Terms is paid to us in full. Risk in the Products will pass to you on delivery of the Products to your Property. On delivery of the Products we may require you to sign a document confirming delivery of the Products and that you have inspected the Products upon delivery.
   • 5.7 Upon inspection of the Products on delivery in accordance with clause 6, if the Products have been damaged as a result of the delivery, you must notify our delivery partner and you agree to provide us with photos of the damage so we may lodge a claim for the damaged goods with our delivery partner.
   • 5.8 You agree that we hold a general lien over any Products owned by us that are in your possession, for the satisfactory performance of your obligations under these Terms. You agree that these Terms and your obligations under these Terms create a registrable security interest in favour of us, and you consent to the security interest (and any other registrable interest created in connection with these Terms) being registered on any relevant securities register (and you must do all things to enable us to do so).

1. YOUR OBLIGATIONS AND WARRANTIES
   • 6.1 You represent, warrant and agree:
   • a. to comply with these Terms, the Order and all applicable Laws;
   • b. that you will provide us with all documentation, information, instructions, cooperation and access reasonably necessary to enable us to provide the Products;
   • c. that the information and documentation you provide to us is true, correct and complete;
   • d. where we deliver to your Property, you will ensure that you, or a third party authorised by you, are at the Property to accept delivery of the Products at the time, or during the window of time, for delivery as notified by us to you;
   • e. you will ensure that, at the time, or during the window of time, for delivery as notified by us to you, your Property is safe, free of harmful materials or substances and (if applicable) otherwise complies with all relevant workplace health and safety laws and standards;
   • f. you are responsible for obtaining any access, consents, licences and permissions from other parties necessary for the Products to be delivered, at your cost, and for providing us (and our personnel) with the necessary consents, licences and permissions;

• TERMINATION
  

1. • 7.1 These Terms will commence on acceptance of these Terms by you (in accordance with clause 1) and will continue until the earlier of:
   • a. delivery of your Order to your Property;
   • b. cancellation of your Order; or
   • c. notice of termination by us if you breach any provision of these Terms (including non-payment).
   • 7.2 The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms, including your obligation to pay the Price and any Expenses to us and our right to seek such payment.
   • 7.3 This clause 7 will survive the termination or expiry of these Terms.

1. YOUR CONSUMER LAW RIGHTS
   • 8.1 We do not offer refunds for change of mind.
   • 8.2 Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Products which cannot be excluded, restricted or modified (Consumer Law Rights). Nothing in these Terms excludes your Consumer Law Rights as a consumer under the ACL.
   • 8.3 You agree that our Liability for the Products is governed solely by the ACL and these Terms.
   • 8.4 Subject to your Consumer Law Rights, we exclude all implied warranties, representations and guarantees of any kind (whether statutory or otherwise), unless expressly stipulated in these Terms.
   • 8.5 Subject to your Consumer Law Rights, all amounts paid by you for the Products are non-refundable.
   • 8.6 This clause 8 will survive the termination or expiry of these Terms.
2. LIMITATION OF LIABILITY
   • 9.1 Limitation of Liability: Despite anything to the contrary, to the maximum extent permitted by law, and subject to your Consumer Law Rights:
   • a. neither Party will be liable for any Consequential Loss;
   • b. a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
   • c. our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Products to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the supply of the relevant Products to which the Liability relates.
   • 9.2 This clause 9 will survive the termination or expiry of these Terms.

1. INTELLECTUAL PROPERTY
   • 10.1 As between the Parties, each Party retains all Intellectual Property Rights in its Intellectual Property developed prior to or independently of these Terms. Nothing in these Terms constitutes an assignment or transfer of such rights.
   • 10.2 As between the Parties, ownership of all Intellectual Property Rights in any Intellectual Property developed, adapted, modified or created in connection with these Terms or the provision of the Products will at all times vest, or remain vested, in us.
   • 10.3 In the use of any Intellectual Property Rights in connection with these Terms, you agree that you must not (and you must ensure that your Personnel do not) commit any Intellectual Property Breach. Where you reasonably suspect that such a breach may have occurred, you must notify us immediately.
   • 10.4 This clause 10 will survive the termination or expiry of these Terms.
2. CONFIDENTIALITY
   • 11.1 Subject to clause 2, you must (and must ensure that your Personnel do) keep confidential, and not use or permit any unauthorised use of, all Confidential Information.
   • 11.2 Clause 1 does not apply where the disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with these Terms and provided that you ensure the adviser complies with the terms of clause 11.1.
   • 11.3 This clause 11 will survive the termination or expiry of these Terms.
3. GENERAL
   • 12.1 Amendment: These Terms may only be amended in writing and as agreed by the Parties.
   • 12.2 Assignment: Subject to clause 3, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
   • 12.3 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.
   • 12.4 Disputes: A Party may not commence court proceedings relating to any dispute arising from these Terms (Dispute) without first meeting with a representative of the other Party to seek (in good faith) to resolve the Dispute. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction, or will operate to prevent a Party from taking steps to recover any debt.
   • 12.5 Entire agreement: Subject to your Consumer Law Rights, these Terms contain the entire understanding between the Parties, and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in these Terms, and these Terms supersede all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
   • 12.6 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. 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.
   • 12.7 Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.
   • 12.8 Governing law: These Terms are governed by the laws of South Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in South Australia and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
   • 12.9 Joint and several Liability: Where you constitute two or more individuals or entities, you will each be jointly and severally liable under these Terms.
   • 12.10 Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. 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.
   • 12.11 Online execution: These Terms may be executed by means of such third party online document execution service as we nominate, subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
   • 12.12 Precedence: To the extent there is any ambiguity, discrepancy or inconsistency in or between these Terms and the Order, these Terms will prevail.  
   • 12.13 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
   • 12.14 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
4. DEFINITIONS
   • 13.1 In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the Order, and:

Business Days means a day on which banks are open for general banking business in South Australia, excluding Saturdays, Sundays and public holidays.

Confidential Information includes information which:

• a. is disclosed to you in connection with these Terms at any time;
• b. is prepared or produced under or in connection with these Terms at any time;
• c. relates to our business, assets or affairs; or
• d. relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever you receive that information.

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. The Parties acknowledge and agree that your obligation to pay us the Price under these Terms will not constitute “Consequential Loss” for the purposes of this definition.

Delivery Costs means the costs associated with the delivery or supply of the Products, including any insurance, customs, tariffs, duties or other such charges that may apply to the Products.

Deposit means any deposit as set out in the Order.

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.

GST has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property means any copyright, registered or unregistered designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or Confidential Information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third-party rights, including any Intellectual Property Rights of third parties), including using or exploiting our Intellectual Property for purposes other than as expressly stated in these Terms (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).

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.

Order means the order (including any online order) to which these Terms are attached by reference.

Payment Terms means the Price, method and timing of payment, as set out in the Order.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.

Property means the location where the Products are to be supplied, as set out in the Order.

Price means the price set out in the Order for the provision of the Products and includes any Deposit and Delivery Costs.

Products means the products we agree to provide under these Terms, as further particularised in the Order.

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

 

For any questions and notices, please contact us at:

New Wave Agriculture Australia Pty Ltd (ABN 78 641 968 569)

Email: support@newwavebio.au

Last update: 14 April 2021

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