Certain legislation in Australia may provide consumer guarantees or impose obligations on Bluey Merino which cannot be excluded, restricted or modified, or only to a limited extent. These Terms and Conditions are subject to such legislation, including without limitation the Australian Consumer Law.
Australian Consumer Law means the law as set out in Schedule 2 of the Competition and Consumer Act 2010 as amended from time to time.
Contract means a contract for sale by Bluey Merino to the Customer of the Products and/or services incorporating these Terms and Conditions.
Consumer Contract means a contract for the acquisition of goods or services as a ‘consumer’ as that term is defined in section 3 of the Australian Consumer Law.
Critical Component means any component of a system used in High Risk Circumstances.
Customer means the person or legal entity identified in Bluey Merino’s Quotation; Invoice; or Order Confirmation.
Bluey Merino means Bluey Australia Pty Ltd trading as Bluey Merino.
Bluey Merino-branded means products that are marked with the Bluey Merino brand, except products that are not authorised by Bluey Merino to bear its mark.
High Risk Activities means use in hazardous environments requiring fail-safe performance and any application in which the failure of the Products could lead directly to death, personal injury or severe physical or property damage.
Order Confirmation means formal acknowledgement of Product ordered by Customer, sent by Bluey Merino.
Place of Delivery means the place designated by the Customer and agreed to by Bluey Merino for delivery of Product.
Price means the price as per Bluey Merino Quotation and Order Confirmation and the latter will have precedence.
Products means the products as described in the Order Confirmation and may include Bluey Merino-branded products, third party products and Service Offerings.
No Risk Returns and Refund Policy means the returns and refund policy found at blueymerino.com.
Service Offerings means the different service options offered by Bluey Merino for the Products or any part of them and for varying periods, as described in Bluey Merino’s published literature, including but not limited to Bluey Merino’s Invoice and/or Bluey Merino’s Service Description.
Small Business Contract means a small business contract as defined in section 23 of the Australian Consumer Law.
Standard Warranty means the warranty protection that comes standard with purchases from Bluey Merino, as set out in clause 7 of these Terms and Conditions.
Third Party Products means products other than Bluey Merino-branded.
2. FORMATION OF CONTRACT
2.1. No Contract comes into existence until the Customer’s order has been accepted by Bluey Merino and such acceptance has been received by the Customer. The Contract is deemed to be concluded at the time and place where such acceptance is received by the Customer. The Customer warrants that it is buying for its own personal use only and not for re-sale purposes.
2.2. The products sold and/or services rendered 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. Neither Bluey Merino’s acknowledgement of a purchase order nor its failure to object to conflicting, different, or additional terms and conditions in a purchase order will be deemed an acceptance of such terms and conditions or a waiver of the provisions.
3. ORDERS, PRICE AND PAYMENT
3.1. Unless credit terms have been expressly agreed by Bluey Merino, payment for the Products and/or services must be made in full before physical delivery of Products and/or services.
3.2. The Customer will pay for all applicable shipping and handling charges.
3.3. The Customer will bear all country, provincial, government, state and local sales, use, goods and services, value added, excise, privilege and similar levies/taxes.
3.4. Time for payment is of the essence. Bluey Merino reserves the right to charge interest at the rate of 2% above the base commercial floating rate for National Australia Bank in Sydney.
4. TITLE AND RISK
Title to and risk in the Products passes to the Customer upon delivery of the Products to the Customer.
5.1. Bluey Merino will deliver the Products to the Place of Delivery.
5.2. For the efficiency of Bluey Merino’s production and fulfilment procedures, it may be necessary for Bluey Merino to deliver the Products by instalments in any sequence. Except as provided in clause 5.4, the Customer may not cancel the Contract where Products are delivered by instalments.
5.3. Any dates provided by Bluey Merino for the delivery of the Products are estimates only and will not form part of the Contract. Actual delivery date will be affected by factors such as clearance of payment, Customer’s location and availability of parts for the Products. For non-Consumer Contracts and non-Small Business Contracts, Bluey Merino will not be liable for any delay in delivery of the products and/or services, howsoever caused and for Consumer Contacts and Small Business Contracts Bluey Merino will not be liable for any delay in delivery of the Products and/or services which is outside of Bluey Merino’s control.
5.4. The Customer may cancel an order for Products purchased under a Consumer Contract or a Small Business Contract if Bluey Merino is unable to deliver the Products within a reasonable period from the estimated delivery date.
5.5. Bluey Merino has a policy of on-going Product update and revision. As a result, Bluey Merino may revise and/or discontinue Products at any time without notice.
5.6. Where Products ordered under a Consumer Contract or a Small Business Contract have been revised and/or discontinued, Bluey Merino will supply revised or updated Products with the same or better functionality and performance of the Products ordered. The Customer accepts that Bluey Merino’s policy may result in differences between the specification of Products delivered to the Customer and the specification of Products ordered.
6. ACCEPTANCE OF PRODUCTS
6.1. Unless the Customer notifies Bluey Merino to the contrary on the day of delivery and such notification is confirmed in writing within two days, the Products will be deemed to have been accepted by the Customer. The Customer will not be entitled to withhold payment of all or any of the price of the Products whilst any claim is being investigated by Bluey Merino.
6.2. New Bluey Merino-branded Products (excluding Bluey Merino co-branded products) purchased under these Terms and Conditions directly from Bluey Merino by the Customer may be returned by the Customer up to 30 days from the date of the invoice for a replacement, refund or credit of the purchase price in accordance with Bluey Merino’s No Risk Returns and Refund Policy in effect in Australia at the date of the invoice.
6.3. Nothing in clause 6.1 or 6.2 affects a Customer’s right to claim against Bluey Merino for a faulty product under Bluey Merino’s Standard Warranty, or under their rights under statute.
7.1. Nothing in this clause 7 affects a Customer’s rights under the Australian Consumer Law.
7.2. Unless specified otherwise and in addition to any rights the Customer may have under statute and subject to this clause 7, Bluey Merino warrants to the Customer that Bluey Merino-branded products will be free from defects in materials and workmanship affecting normal use for a period of 90 days from the invoice date.
7.3. This Standard Warranty does not cover damage, fault, failure or malfunction due to external causes, including accident, abuse, misuse, usage and/or storage not in accordance with Product care or usage instructions, normal wear and tear, act of God, fire, flood, war, act of violence or any similar occurrence; and any attempt by any person other than Bluey Merino personnel or any person authorised by Bluey Merino, to alter, repair, customise or modify the Products.
7.4. Under the Standard Warranty during the 90-day period beginning on the sooner of the invoice or Order Confirmation date, Bluey Merino will repair or replace Products returned to Bluey Merino’s facility. Bluey Merino will ship the repaired or replacement products to Customer freight prepaid.
7.5. Bluey Merino does not give any warranty that Products purchased under a Contract other than a Consumer Contract are fit for any particular purpose.
7.6. The Standard Warranty is given in place of all excludable warranties, conditions, 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 and/or compliance with description. The Standard Warranty applies in additional to all consumer guarantees under the Australian Consumer Law.
7.7. The Standard Warranty does not apply to: (a) Bluey Merino-branded goods purchased in an auction; (b) non Bluey Merino-branded products, supplied by Bluey Merino and forming part of a Product.
7.8. Bluey Merino will provide support for non Bluey Merino-branded products purchased under a Consumer Contract. Bluey Merino does not manufacture its non Bluey Merino-branded products, and may not be able to provide repair facilities or services in relation to them. The Customer acknowledges that the reasonable time for Bluey Merino to repair non Bluey Merino-branded products is longer than the reasonable time for the manufacturer to repair the same product.
7.9. Non Bluey Merino-branded products may be accompanied by their manufacturer’s standard warranties. The Customer acknowledges that where support is required in relation to non Bluey Merino-branded products it may be more efficient and expedient to seek support under the manufacturer’s standard warranties, at least at first instance.
7.10. Products presented for repair may be replaced by goods of the same type rather than being repaired. Refurbished goods may be used to repair the Products. Where a Product is repaired or replaced under the Standard Warranty, the Product will be warranted for the balance of the original Standard Warranty period.
8.1. For goods and services which are not supplied under a Consumer Contract or Small Business Contract Bluey Merino’s total liability in respect of each event or series of connected events will not exceed the total price paid for the purchase of products and/or services under these Terms and Conditions.
8.2. The Customer will indemnify Bluey Merino and keep Bluey Merino 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 in connection with the purchase, use or performance of any Bluey Merino products or services.
8.3. Bluey Merino excludes liability for all consequential loss arising out of or in connection with the purchase, use or performance of any products or services by the Customer from Bluey Merino, including liability for any damage to personal property or any personal injury whether direct or indirect, or any kind, unless: (a) such loss could have been expected to result from a failure by Bluey Merino to meet a consumer guarantee and such loss was reasonably foreseeable; or (b) where Bluey Merino is the manufacturer or importer of the relevant products and such loss has arisen due to the relevant products having a safety defect within the meaning of section 9 of the Australian Consumer Law and further that none of the defences established under section 142 of the Australian Consumer Law apply to the relevant products.
8.4. 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 Bluey Merino will be subject to correction without any liability on the part of Bluey Merino.
8.5. In relation to goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption, Bluey Merino’s liability for breach of a guarantee implied into a Contract which cannot lawfully be excluded is limited, at Bluey Merino’s option, to: (a) in the case of Products, the replacement of the Products or the supply of equivalent Products; the repair of such Products; the payment of the cost of replacing the Products or of acquiring equivalent products; or the payment of the cost of having the Products repaired; OR (b) in the case of services, the supplying of services again; or the payment of the cost of having services supplied again.
9. USE OF PRODUCTS
9.1. The Customer acknowledges that Products are designed for specific applications and purposes to work under certain conditions.
9.2. The Customer agrees to only use the Product in accordance with any specified instructions including care and storage instructions howsoever communicated to the Customer, including, but not limited to: (a) verbal communications given by an authorised representative of Bluey Merino; (b) written communications in online and print sales and other published literature; (d) written instructions in care labels and otherwise attached to the Product; and (e) written instructions on or in Product packaging.
10. HIGH RISK APPLICATION DISCLAIMER
The Products are not designed or intended for use in High Risk Activities. Bluey Merino expressly disclaims any express or implied warranty of fitness for High Risk Activities.
11. FORCE MAJEURE
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.
12. EXPORT RESTRICTIONS
The Customer acknowledges that the Products licensed or sold hereunder, are not only subject to the export control laws and regulations of Australia but may also be subject to the export control laws and regulations of the country in which the Products are received. The Customer agrees to abide by all applicable export control laws and regulations. The Customer understands that applicable requirements or restrictions may vary depending on the Products delivered and may change over time and that, to determine the precise controls applicable to the Products acquired, it may be necessary to refer to relevant laws and regulations.
13. GOVERNING LAW
These Terms and Conditions are governed by and construed in accordance with the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
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 Bluey Merino. 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, 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 Bluey Merino’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.
15. ABOUT YOUR WARRANTY
15.1. Your warranty will be valid when you have paid the full price of the products covered by the warranty.
15.2. To claim under your warranty, contact Bluey Merino as follows:
BLUEY MERINO CUSTOMER SUPPORT
Phone: 1300 761 450
15.3. Your warranty will be valid for 90 days from the date of purchase as stated on your Order Confirmation.
15.4. Our goods come with consumer guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for 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.
15.5. Your warranty rights are in addition to your statutory rights as a consumer.
15.6. This Warranty is provided by Bluey Australia Pty Ltd trading as Bluey Merino.
Address: 5/13 Lyell Street, Mittagong, New South Wales, Australia 2575
Telephone: 1300 761 450
June 2018 Edition