Website Terms of Use
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS
In these Terms and Conditions: -
(a) “ELKIT” means ELKiT, ABN: (19 622 658 655).
(b) “Australian Consumer Law” means the law as set out in Schedule 2 of the Competition and Consumer Act 2010.
(c) “Contract” means a contract for sale by ELKiT to the Customer of the Goods and/or services incorporating these Terms and Conditions.
(d) “Consumer Contract” means a contract for the acquisition of goods or services as a 'consumer' as defined in section 3 of the Australian Consumer Law.
(e) “Customer” means the person or company that purchases the Goods from ELKiT, specified in the Order, quotation and/or the Tax Invoice provided to the Customer.
(f) “Goods” means any products, goods, accessories, materials, spare parts and services to be supplied by ELKiT to the Customer subject to these Terms and Conditions.
(g) “High Risk Activities” means use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or
communication systems, medical life support, mass and air traffic control, weapons systems, life-support machines or any other application in which the failure of the Goods could lead
directly to death, personal injury or severe physical or property damage.
(h) “Order” means the order placed by the Customer for the purchase of Goods via the Website or any other means, including, not limited to, email, telephone, facsimile, or verbally after
inspecting the stock at the Premises.
(i) “Place of Delivery” means the place provided by the Customer at the time of placing the Order and agreed to by ELKiT for delivery of the Goods.
(j) “Premises” means the premises occupied by ELKiT at Unit 11/88 Dynon Road, West Melbourne, Vic, 3003.
(k) “Returns Policy” means the policy applicable to the Customer relating to the return of the Goods found on the Website.
(l) “Tax Invoice” means the invoice provided to the Customer, following the placement of an Order, for payment by the Customer prior to dispatch and delivery of the Goods.
(m) “Website” means the website with domain name www.elkit.com.au owned by ELKiT.
2. FORMATION OF CONTRACT
2.1: No Contract comes into existence until the Order placed by the Customer has been accepted by ELKiT providing a Tax Invoice to the Customer and such Tax Invoice being paid in full by
the Customer. The Contract is deemed to be concluded upon payment being received by ELKiT from the Customer. The Customer warrants that it is buying for its own use only and not for
re-sale purposes.
2.2: The Goods sold by ELKiT are subject to these Terms and Conditions to the exclusion of any other terms and conditions stipulated or referred to by the Customer. The Customer
acknowledges that it is aware of the contents of, and agrees to be bound by, these Terms and Conditions. The acceptance of the products by the Customer is deemed to incorporate
acceptance of these Terms and Conditions. Neither ELKiT`s acknowledgement of an Order nor its failure to object to conflicting, different, or additional terms and conditions in an Order will
be deemed an acceptance of such terms and conditions or a waiver of the provisions.
3. ORDERS, PRICING AND PAYMENT
3.1: Pricing quoted or offered by ELKiT are subject to change without prior notice and may be withdrawn, or altered, prior to acceptance at any time without prior notice.
3.2: In an event where prices have increased during the ordering process or after payment has been made by the Customer, but before the Goods have been dispatched, ELKiT may request
the difference in payment for the increase in prices. The Customer may cancel the Order by giving ELKiT written notice up to seven (7) days after ELKiT has notified the Customer of the
increase in price.
3.3: Payment for the Goods must be made in full after the provision of a Tax Invoice and before the dispatch and delivery of the Goods. Payment shall be made in accordance with the
payment terms set out on the Tax Invoice provided to the Customer.
3.4: ELKiT accepts payments by direct deposit, internet transfer, PayPal or credit cards. ELKiT does not accept any orders placed from overseas or for overseas consumers. Credit Card
payments incur the following surcharges:
3.4.1: VISA and MASTERCARD – 1.5%;
3.4.2: AMEX - 3%; and
3.4.3: PayPal – 2.5%.
3.5: The Customer will pay for all applicable shipping and handling charges. These charges will be disclosed to the Customer at the time of placement of the Order and incorporated in the
Tax Invoice for payment by the Customer prior to dispatch and delivery.
3.6: The Customer agrees to pay all taxes, duties, exchange rates and import costs of every kind in respect of the sale of the Goods. If GST applies to any supplies by ELKiT, the Customer
must pay an additional amount by way of GST payable on supply at the time that payment for the supply is to be made under these Terms and Conditions, and ELKiT will issue a tax invoice
to the Customer in respect of the supply. Terms used in this clause have the same meaning as in the A New Tax System (Goods and Service Tax) Act 1999 (Commonwealth). In the event of
changes in exchange rates, taxes, duties or import costs, ELKiT reserves the right at any time between the time of order and the time of delivery to increase or decrease it’s selling price for
such Goods accordingly.
3.7: Time for payment is of the essence. ELKiT reserves the right to cancel any Order and offer the ordered Goods for sale to the other consumers in the event that payment is not made
within fourteen (7) days after the provision of the Tax Invoice by ELKiT to the Customer.
4. CANCELLATION AND RETURNS
4.1: A request to cancel or vary an Order by the Customer prior to delivery of the Goods must be received by ELKiT in writing before dispatch and will be subject to payment of a cancellation
(administration) fee of 20% of the value of the Order.
4.2: If the Customer changes his/her/its mind and wishes to return the Goods after accepting delivery, or the Goods are faulty, defective, not fit for their intended purpose or of
unacceptable quality (through no fault of the Customer), ELKiT will offer an exchange or refund, or have it repaired (whichever the case may be), in accordance with, and strictly subject to,
the terms of the Returns Policy. If the customer changes his/hers/its mind and wishes to return the product after accepting delivery, the customer may with 10 days of acceptance of the
product and can only be returned if the products have been returned in its original packaging and not opened and is in sellable condition.
5. SOFTWARE
5.1: All software provided is subject to the terms and conditions of the license agreement relating to that software. The Customer acknowledges its obligations to abide by such license
agreements. The Customer acknowledges that ELKiT does not make any express warranty in relation to any software under these Terms and Conditions. In addition to any rights the
Customer may have under statute, all software is warranted in accordance with the license agreement that governs its use.
5.2: All rights, title or interest in respect of the intellectual property rights in the software remain with licensor of the software at all times.
6. TITLE AND RISK
6.1: Subject to paragraph 6.2 below, title and risk in the Goods passes to the Customer upon delivery of the Goods to the Customer. Title to those products, which are software, shall
remain with the applicable licensors at all times.
6.2: In the event that credit terms are agreed to between ELKiT and the Customer and the Customer takes possession of the Goods without up-front payment (with payment being deferred
to a later date as agreed between ELKiT and the Customer):
6.2.1: Title to the Goods shall not pass to the Customer until ELKiT has received payment in full. Until such time as the Customer has paid in full and title of the Goods has passed to the
Customer, the Customer holds any Goods it receives from ELKiT as a bailee subject to a fiduciary relationship between ELKiT and the Customer.
6.2.2: ELKiT reserves the following rights to ELKiT in relation to the Goods until payment has been made in full for the Goods:-
6.2.2.1: Legal ownership of the Goods;
6.2.2.2: To enter the Customer’s premises (or the premises of any associated or related company or agent where the Goods are located) without liability for trespass or any resulting damage
and take possession of the Goods;
6.2.2.3: To keep or re-sell any Goods repossessed pursuant to sub-paragraph 6.2.2.2 above. If the Goods are re-sold by the customer, the Customer shall hold such part of the proceeds of
such sale as represents the price of the Goods sold (as shown on the Tax Invoice) in a separate identifiable account as the beneficial property of ELKiT and shall pay such amount to ELKiT
upon request. Notwithstanding the foregoing provisions, shall be entitled to maintain an action against the Customer for the invoice price or part thereof; and
6.2.2.4: The Customer agrees that ELKiT shall be entitled to register a Notification on the Personal Properties Securities Register, provided for under Personal Property Securities Act 2009
(“the PPSA”), in respect of ELKiT`s rights set out in this condition.
6.2.2.5: For the purposes of sub-paragraph 6.2.2.4, the following provisions apply:
6.2.2.5.1: Financing Statement, Financing Change Statement and Security Interest have the meaning given to it by the PPSA;
6.2.2.5.2: Security Agreement means the Security Agreement under the PPSA created between the Customer and ELKiT by these Terms and Conditions;
6.2.2.5.3: Upon accepting these Terms and Conditions, the Customer acknowledges and agrees that these Terms and Conditions:-
(a) Constitute a Security Agreement for the purpose of the PPSA;
(b) Create a Security Interest in all goods previously supplied by ELKiT to the Customer (if any), or all goods that will be supplied in the future by ELKiT to the Customer;
6.2.2.5.4: The Customer undertakes to:-
(a) Promptly sign any further documents and/or provide any further information which ELKiT may reasonably require to:-
(i) Register a Financing Statement or Financing Change Statement in relation to a security interest on the Personal Properties Securities Register;
(ii) Register any other document required to be registered by the PPSA; or
(iii) Correct a defect in a Financing Statement, or a Financing Change Statement or other document required to be registered by the PPSA.
(b) Indemnify, and upon demand reimburse ELKiT, for all expenses incurred in registering a Financing Statement or Financing Change Statement on the Personal Properties Securities
Register by the PPSA or releasing any goods charged thereby;
(c) Not register a Financing Change Statement in respect of a security interest without the prior written consent of ELKiT;
(d) Not register, or permit to be registered, a Financing Statement or a Financing Change Statement in relation to the goods in favour of a third party without the prior written consent of
ELKiT;
(e) Immediately advise ELKiT of any material change in its business practices of selling the goods which would result in a change in the nature of proceeds derived from such sales.
6.2.2.5.5: ELKiT and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the Security Agreement created by these terms of agreement;
6.2.2.5.6: ELKiT hereby reserves its rights to receive notices under sections 95,118,121(4), 130, 132(3)(d) and 132(4) of the PPSA.
6.2.2.5.7: The Customer waives its rights as a Grantor and/or a Debtor under sections 142 and 143 of the PPSA;
6.2.2.5.8: Unless otherwise agreed to in writing by ELKiT, the Customer waives its rights to receive a verification statement in accordance of Section 157 of the PPSA and the Customer shall
unconditionally ratify any actions taken by ELKiT under the provisions of this clause.
7. DELIVERY
7.1: ELKiT will use its best endeavours to deliver the Goods, following payment in full, within three (3) to seven (7) business days (“the estimated delivery date”) to the Place of Delivery. The
estimated delivery date is intended to be a good faith estimate of the time of the delivery and will not form part of the Contract. Actual delivery date will be affected by factors such as
clearance of payment, the Customer's location and availability of parts for the Goods (if applicable). ELKiT will not be liable for any delay in delivery of the Goods, howsoever caused.
7.2: The Customer may cancel an Order for Goods purchased under a Consumer Contract if ELKiT is unable to deliver the Goods within a reasonable period from the estimated delivery date.
7.3: Only the Customer may accept delivery of the Goods at the Place of Delivery. At the time of delivery, the Customer must present an Australian photo ID with the same details listed on
the Tax invoice. If the Customer is not present at time of collection of Goods, ELKiT reserves the right to charge a further shipping and handling fee for the future delivery of the Goods. If a
person above 18 years of age, other than the Customer is to accept delivery of the Goods, the Customer must advise ELKiT in writing of this persons contact details prior to the dispatch of
Goods.
7.4: ELKiT is not responsible for any loss or damage to Goods incurred during the delivery or shipment of the Goods. However, where appropriate, ELKiT agrees to provide the Customer with
such assistance as may be necessary in support of a claim against a transport carrier provided that the Customer has notified ELKiT and the transport carrier in writing immediately if any
such loss or damage is discovered following the delivery of products and lodges a claim on the transport carrier within three (3) business days of the date of delivery.
8. ACCEPTANCE OF GOODS
8.1: Unless the Customer notifies ELKiT to the contrary in writing within three (3) days from the date of delivery, the Goods will be deemed to have been accepted by the Customer. ELKiT shall
not accept claims for shortages in delivery of Goods after this time.
8.2: Nothing in clause 8.1 affects the Customer's right to claim against ELKiT for a faulty product under the Australian Consumer Law.
8.3: Once the Goods have been accepted by the Customer, the Customer agrees not to use the Goods in any way other than intended and/or specified, nor for any purpose other than their
intended use.
8.4: To the extend deemed necessary, nothing in these Terms and Conditions shall be construed as granting any right, title or interest in any of ELKiT’s patents, designs, trademarks, trade
secrets, knowhow, or other intellectual property rights in relation to the Goods or otherwise (“Intellectual Property Rights”). All Intellectual Property Rights shall be the sole and exclusive
property at all times of ELKiT.
8.5: ELKiT has a policy of on-going product update and revision. As a result, ELKiT may revise and/or discontinue products at any time without notice.
9. WARRANTY
9.1: Nothing in these Terms and Conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty,
guarantee, right or remedy implied by law, as set out in the Australian Consumer Law, and which by law cannot be excluded, restricted or modified.
9.2: The Customer accepts the warranty of the manufacturer of the Goods (“the manufacturer’s warranty”). The manufacturer’s warranty varies between manufacturers and commences on
the date of the Tax Invoice for the period of the warranty provided by the relevant manufacturer. The Customer should take all reasonable measures to read and fully understand the terms
of the manufacturer’s warranty as set out in the warranty document provided within the packaging of the Goods. If such warranty document is missing from the packaging at the time of
delivery, the Customer must immediately notify ELKiT so that a replacement warranty document can be arranged for the Customer.
9.3: All express manufacturer’s warranties will only be reviewed and/or processed upon presentation of the original receipt or Tax Invoice listing the product details, serial and model
numbers and the Customer’s name, and clearly setting out that the Goods were purchased from ELKiT. A failure by the Customer to provide proof of purchase for the Goods purchased,
which are under warranty or no longer covered under warranty, will result in a review fee of $150.00 (exclusive of GST) payable to ELKiT before proceeding with the warranty claim.
9.4: The Goods come with consumer guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or refund for a major failure and
for compensation for any other reasonably foreseeable loss or damage. The Customer is 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.
9.5: To make a claim with respect to a warranty provided for in these Terms of Condition or under statute, please contact ELKiT’s accounts department at:
Service Department:
Address: Unit 11 No: 88 Dynon Road, West Melbourne, Victoria, 3003
Ph: (03) 9999 9999
Email: support@ ELKiT.com.au
10. LIABILITY
10.1: ELKiT will not be liable in contract or in tort for any loss or damage suffered and the Customer's rights are limited to those set out in these Terms and Conditions and under statute.
10.2: For goods and services which are not supplied under a Consumer Contract, ELKiT ’s total liability in respect of each event or series of connected events will not exceed the total price
paid for the purchase of Goods and/or services under these Terms and Conditions.
10.3: The Customer will indemnify ELKiT and keep ELKiT fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by any
negligent act or omission or wilful misconduct of the Customer, its employees, agents or sub-contractors or by any breach of its contractual obligations arising out of these Terms and
Conditions.
10.4: ELKiT and the Customer agree that ELKiT `s liability:
10.4.1: is governed solely by the Australian Consumer Law; and
10.4.2: to the extent permitted by law, does not extend to any incidental, indirect, special or consequential loss or damages arising out of or in connection with the purchase, use or
performance of Goods or services, even if ELKiT has been advised of their possibility.
10.5: In relation to goods or services supplied under a Consumer Contract that are not of a kind ordinarily acquired for personal, domestic or household use or consumption, ELKiT 's liability
for breach of a guarantee implied into a Contract which cannot lawfully be excluded is limited, at ELKiT's option, to:
10.5.1: in the case of Goods, 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 products; or the payment of the cost of having the Goods repaired; or
10.5.2: in the case of services, the supplying of services again; or the payment of the cost of having services supplied again.
10.6: ELKiT shall not be held responsible for any damage, fault, failure, delay or malfunction arising out of any circumstances outside of its reasonable control, including but not limited to,
Acts of God, governmental actions, strikes or other labour difficulties, war or national emergency, black outs, fire, explosion, flood, an act or omission of a third party, an inability to obtain
any necessary materials, delay in receipt of parts, the failure of equipment supplied by others, power or water shortage, accidental breakdown of plant machinery, software or hardware.
10.7: To the extent permitted by law, any typographical, clerical or other error or omission in sales literature, quotation, price list, acceptance of offer, invoice or other documents or
information issued by ELKiT will be subject to correction without any liability on the part of ELKiT.
11. USE OF GOODS
11.1: ELKiT ’s Goods are designed for specific applications and purposes to work under certain operating conditions. Customer's use of the Goods other than in accordance with any
manual, operating instructions or specified operating conditions may damage the Goods and data stored on it. Such use may adversely affect the Customer's rights.
11.2: The Customer agrees to only use the Goods in accordance with any manual and any specified operating conditions.
11.3: The Goods are not fault-tolerant and are not designed or intended for use in High Risk Activities. ELKiT expressly disclaims any express or implied warranty of fitness for High Risk
Activities.
12. FORCE MAJEURE
12.1: Neither party will be liable for any delay in performing any of its obligations under these Terms and Conditions if such delay is caused by circumstances beyond the reasonable control
of the party so delaying, and such party will be entitled to a reasonable extension of time for the performance of such obligations.
13. GOVERNING LAW
13.1: These Terms and Conditions are governed by and construed in accordance with the laws of Victoria and are subject to the non-exclusive jurisdiction of the courts of Victoria.
14. GENERAL
14.1: The Customer must not assign or otherwise transfer any Contracts or any of its rights and obligations under these Terms and Conditions whether in whole or in part without the
prior written consent of ELKiT. Any such unauthorised assignment will be deemed null and void.
14.2: If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, such provision shall be deemed severable and the
validity of the other provisions of these Terms and Conditions and the remainder of the provisions in question will not be affected.
14.3: No failure or delay on ELKiT's part in exercising any power or right under these Terms and Conditions operates as a waiver, nor does any single or partial exercise of any power or right
preclude any other or further exercise, or the exercise of any other power or right.
ELKiT is a Australian owned and operated company based in Victoria Australia, ELKiT .com.au owned by ELKiT is also Australian owned and based in Australia operated by ELKiT.
ELKiT: Unit 11 No: 88 Dynon Road, West Melbourne, Victoria, 3003