1. Application
These Terms and Conditions (Terms) apply to each Order you make with us and each Product we supply to you. When you pay our Invoice you confirm that you agree to these Terms which are provided to you with our Invoice. No variation by you of these Terms will be valid unless expressly agreed by us in writing and signed by each party’s authorised representative.
2. Making an Order
You can lodge an expression of interest for our Product via our website. We will then contact you to confirm your order (Order) and provide you with an invoice (Invoice).
3. Price and Payment
You are required to pay the Invoice before we process your Order. Unless we specifically state that the Invoice includes the cost of delivery of the Product, you are required to pay for all costs in relation to delivery of the Product in addition to the amount shown on the Invoice (Delivery Costs). We will separately invoice you for Delivery Costs and you must pay the invoice within 7 days of the date of the invoice.
4. Cancellation of Orders
Once you have paid our Invoice, your Order cannot be cancelled without our prior written consent.
5. Delivery
We will deliver the Product to such location as you and we agree.
When we confirm your Order we may notify you of an estimated delivery date. However, we are not responsible for any delays to the estimated delivery date. We will endeavour to inform you of any delays where possible and keep you updated about the proposed delivery date but we are not liable in any way for any failure or delay in delivery or for any loss or damage resulting directly or indirectly from any failure or delay in delivery of the Product irrespective of whether such failure or delay is negligent or within our control or otherwise.
If the agreed address for delivery is unattended and we cannot deliver the Product, we may, in our sole discretion, store the Product at your risk and expense or take such other steps as we consider appropriate. You agree to pay such reasonable expenses within 7 days of the date of our invoice for such expenses.
You agree you will thoroughly inspect the Product on delivery and inform us within five (5) business days after the delivery date whether there is any defect in the Product.
6. Risk
Risk in the Product will transfer to you when we deliver the Product to you.
7. Installation and Use of Product
We will provide you with guides on how to install and use the Product when we deliver the Product. You must install and use the Product in accordance with our guides and not use the Product in any manner which is not for the purpose which it is made available. It is your responsibility to ensure your operating systems remain up to date and are compatible with the Product. You must not reproduce, republish, retransmit, modify, adapt, distribute, translate, reverse engineer, create derivative works or adaptations of any component of the Product.
8. Warranties
These Terms are not intended to exclude any rights and remedies available to you under the law which cannot be excluded.
Subject to any condition, warranty or right which cannot by law be excluded, we give no warranty regarding any Product supplied and all other implied or imposed conditions, warranties and rights are excluded. Where any condition, warranty or right is implied or imposed by law and cannot be excluded, we limit our liability for breach of that implied or imposed condition, warranty or right to the fullest extent permitted by law.
To the fullest extent permitted by law our liability for any breach of any implied or imposed condition, warranty or right in connection with the supply of the Product is limited to one or more of the following (at our election):
(i) replacement of the Product or supply of equivalent products;
(ii) repair of the Product;
(iii) payment of the cost of replacing the Product;
(iv) payment of the cost of having the Product repaired.
We are not liable to you in contract, in tort (including negligence), under any statute (to the fullest extent permitted by law) or otherwise for, or in respect of, any indirect or consequential loss or damage including without limitation financial loss or expense including loss of opportunity, loss of profits or loss of goodwill suffered by you or any other person arising directly or indirectly out of or in any way attributable to the Product, or its delivery, or the performance of these Terms even if that loss or damage was foreseeable at the time you paid the Invoice.
To the fullest extent permitted by law, our total liability in contract, in tort (including negligence), under statute (to the fullest extent permitted by law) or otherwise for, or in respect of, any loss or damage arising directly or indirectly out of or in any way attributable to the Product or its delivery, will not exceed the amount of the Invoice.
9. Intellectual Property
The Product contains and comprises our Intellectual Property. As between you and us, we own all Intellectual Property in the Product and any modifications to the Product (whether made by you or any third party). Any Intellectual Property that comes into existence through your use or modification of the Product shall vest in us upon its creation. Similarly, if you request we make any modification to our standard products, any Intellectual Property comprised in that modification will vest in us upon its creation. The supply or modification of the Product to you does not constitute a transfer of any Intellectual Property Rights in the Product or any component of it. You must not do anything inconsistent with or in infringement of our Intellectual Property Rights.
You warrant that where you request a modification, it will not infringe any third party’s Intellectual Property, and indemnify us against any liability arising from any such third party claim in relation to a modification you have requested.
Where the Product requires software to operate, we grant you a limited, non-exclusive, non-transferrable to use that software for the sole purpose of enjoying the use of the Product. You will be given a unique licence key for the software to enable its use. You must keep this licence key confidential and secure, and only use it in relation to the Product for which it was supplied.
You agree not to copy or duplicate the software, or to use it in any way which is malicious or would have the effect of limiting or infringing on the ability of other people to access or use the software.
10. Governing Law
These Terms are to be construed according to the laws of South Australia.
11. Definitions
“Product” means the product described in the Invoice.
“we”, “us” and “our” means Elite Innovation Co Pty Ltd T/A BreedELITE ACN 607 900 872 and ABN 41 629 401 556
“you”, “your” means the entity purchasing the Product as shown on the Invoice.
“Intellectual Property” means any intellectual or industrial property right, whether protected by statute, at common law or in equity, including any patent, registered design, (whether or not registrable), invention, trade secret, circuit layout design, or right in relation to circuit layouts, right to confidential information, technical information, trademark or name, copyright or other protected right.
