Consumer Terms and Conditions of Sale
1 Definitions
The definitions in clause 20 apply to this Agreement.
2 Application
These Terms apply to and govern the supply by Brother of Products and provision of Services to the Customer from time to time and, more specifically, apply to and govern the supply by Brother of
Products and/or Services to the Customer which are to be provided under an Offer accepted by Brother.
3 Formation of Agreement
3.1 The Customer acknowledges and agrees that by submitting an Order to Brother the Customer makes an offer to Brother for Brother to supply it with the products and/or provide it with the services on the terms of:
(a) these Terms; and
(b) the Order,
(Offer).
(a) these Terms; and
(b) the Order,
(Offer).
3.2 A contract will be formed between Brother and the Customer in respect of each Offer upon the earlier of:
(a) Brother notifying the Customer in writing that it accepts the Customer’s Offer;
(b) Brother accepting, in full or part, payment from the Customer for any Products or Services the subject of the Offer (by providing a receipt of sale); or
(c) the Customer accepting delivery of the Products or performance of the Services the subject of the Offer to the Customer; or
(d) Brother otherwise confirming its acceptance of the Offer.
(a) Brother notifying the Customer in writing that it accepts the Customer’s Offer;
(b) Brother accepting, in full or part, payment from the Customer for any Products or Services the subject of the Offer (by providing a receipt of sale); or
(c) the Customer accepting delivery of the Products or performance of the Services the subject of the Offer to the Customer; or
(d) Brother otherwise confirming its acceptance of the Offer.
3.3 An Agreement formed under clause 3.2 will comprise these Terms and the Order.
3.4 Brother is not bound to accept any Offer and may decide not to accept any Offer for any reason and in the sole discretion of Brother.
3.5 If the Customer cancels the Agreement for purchase of Products formed under clause 3.2:
(a) before Brother ships the Products subject to the relevant Order, then this will be at no charge to the Customer; or
(b) after Brother ships the Products subject to the relevant Order, then Brother may charge the Customer the costs of shipping the Products and a restocking fee equivalent to 20% of the price of the Products subject to the cancellation.
(a) before Brother ships the Products subject to the relevant Order, then this will be at no charge to the Customer; or
(b) after Brother ships the Products subject to the relevant Order, then Brother may charge the Customer the costs of shipping the Products and a restocking fee equivalent to 20% of the price of the Products subject to the cancellation.
3.6 In the unlikely event that Brother is unable to supply the particular Product ordered by the Customer, Brother will make contact with the Customer and offer an appropriate alternative, which may include (at Brother’s option):
(a) offering a refund to the Customer
(b) Brother identifying an alternative stockist of the relevant Products; or
(c) offering to supply a Product with equivalent or better features for the same Purchase Price.
(a) offering a refund to the Customer
(b) Brother identifying an alternative stockist of the relevant Products; or
(c) offering to supply a Product with equivalent or better features for the same Purchase Price.
4 Price and payment
4.1 Unless otherwise agreed by the parties, the price the Customer must pay for the Products and/or Services under each Agreement will be:
(a) the price for the Products and/or Services specified on the Website (or if not specified on the Website, as notified to the Customer by Brother); plus
(b) the Delivery Fee,
(Purchase Price).
(a) the price for the Products and/or Services specified on the Website (or if not specified on the Website, as notified to the Customer by Brother); plus
(b) the Delivery Fee,
(Purchase Price).
4.2 The Customer may pay for the Order with various methods of payment as set out on the Website, which may include domestic and international debit cards, credit cards and digital wallets. Brother reserves the right to add or remove payment methods from time to time for any reason without notice.
4.3 Subject to clause 14, unless otherwise expressly specified by Brother or in these Terms, all prices stated are stated exclusive of Taxes and the Customer is solely responsible for the payment of all Taxes levied or payable in respect of the Products and/or Services and must immediately upon request by Brother provide Brother with evidence of payment of any Taxes.
4.4 Brother may invoice the Customer for the Purchase Price at formation of the relevant Agreement, or any time after (Invoice).
4.5 All the payment transaction authorization on the Website use 256-bit Extended Validation Certificates (EV) SSL transaction encryption and supports CVV/CVC check as well as 3-D secure authentication of Visa and MasterCard.
4.6 Brother will only be required to ship the Products once Brother receives full payment of the Invoice in cleared funds.
5 Delivery of Products and provision of Services
5.1 Brother will deliver the Products to the Customer in the manner:
(a) determined by Brother; or
(b) as otherwise agreed between Brother and the Customer (including collection by the Customer).
(a) determined by Brother; or
(b) as otherwise agreed between Brother and the Customer (including collection by the Customer).
5.2 Subject to clause 5.1, Orders for Products will typically be processed and shipped the next business day. Shipping times will vary depending on your location. For more information on delivery ETAs consult Brother’s shipping information here.
5.3 The Customer expressly authorises and grants Brother and its agents an express, irrevocable licence to enter the premises of the Customer or relevant third party in order for Brother to deliver the Products or provide the Services.
5.4 Brother will be responsible for the unloading of any Products at the Delivery Location and there must be a representative of the Customer present at the Delivery Location at the time delivery is made of the Products and, if no representative is present, Brother may leave the Products at the Delivery Location at the risk of the Customer.
5.5 Without limiting any rights which the Customer may have under the Australian Consumer Law, the Customer must, within 48 hours of possession of the Products, inspect the Products and immediately notify Brother in writing if the Products are not fit for any purpose for which the Customer intends to use the Products, are less than the number meant to be delivered under the Agreement, have any defect or otherwise do not meet any Specifications.
5.6 The Customer acknowledges that, after the time the Customer makes the Offer, a Products which is subject to an Offer may be modified by Brother as a result of a requirement imposed by law.
5.7 Without limiting any other obligation of the Customer under an Agreement, the Customer must take all necessary steps and fulfil all requirements to accept delivery of the Products from Brother.
5.8 In the event Brother is unable to deliver the Products to the Customer because of an act or omission of the Customer, Brother will be entitled to:
(a) recover on demand from the Customer any Loss incurred by Brother as a result of inability to deliver the Products (including payment for those Products if those Products cannot be resold or reused by Brother); and
(b) at the risk and cost of the Customer and without limiting any other rights Brother may have, store any Products which the Customer refuses to take delivery of or fails to collect.
(a) recover on demand from the Customer any Loss incurred by Brother as a result of inability to deliver the Products (including payment for those Products if those Products cannot be resold or reused by Brother); and
(b) at the risk and cost of the Customer and without limiting any other rights Brother may have, store any Products which the Customer refuses to take delivery of or fails to collect.
5.9 Brother will use its reasonable endeavours to deliver the Products and provide the Services on any date specified or estimated by Brother or set out in an Order, however the Customer acknowledges that:
(a) these dates are estimates only; and
(b) if Brother does not currently stock a Product, then there may be a delay in the supply of that Product until Brother has restocked that Product; and
(c) if a Product needs to be delivered urgently or overnight to the Customer, Brother may agree to expedite delivery if the Customer agrees to pay an additional fee for that expedited delivery.
(a) these dates are estimates only; and
(b) if Brother does not currently stock a Product, then there may be a delay in the supply of that Product until Brother has restocked that Product; and
(c) if a Product needs to be delivered urgently or overnight to the Customer, Brother may agree to expedite delivery if the Customer agrees to pay an additional fee for that expedited delivery.
5.10 Without limiting clause 5.9, Brother may deliver or provide a portion of the Products or Services and may invoice or otherwise charge the Customer for that portion. The Customer may not refuse to accept delivery of the Products or to pay for the Products or Services because only a portion of the quantity ordered was delivered or provided and the Customer agrees that Brother will not be liable for any Loss that the Customer suffers as a result of any delay or cancellation.
5.11 If there are multiple Agreements in place at any one time, then Brother may, in its absolute discretion, determine in which order it satisfies the delivery of the Products and provision of Services under the Agreements.
5.12 The Customer acknowledges and agrees that:
(a) Brother may, but will not be required to, provide proof of delivery or other similar documentation (whether at the time of delivery or after);
(b) it will not request proof of delivery or other similar documentation from Brother; and
(c) it will not dispute any Invoice based on (in whole or in part) proof of delivery or other similar documentation not having been provided by Brother.
(a) Brother may, but will not be required to, provide proof of delivery or other similar documentation (whether at the time of delivery or after);
(b) it will not request proof of delivery or other similar documentation from Brother; and
(c) it will not dispute any Invoice based on (in whole or in part) proof of delivery or other similar documentation not having been provided by Brother.
6 Campaigns, Promotions and Coupons
6.1 Brother reserves the right to cancel, change or restructure any and/or all promotions, sales, contests, surveys, etc. at any time and for any reason.
6.2 Coupon or promotional codes are valid until the end of the posted or communicated validity date or while supplies last. Any unused portion will be forfeited.
6.3 Each coupon code limited to one use per customer: one code per checkout. Offer is void where prohibited, taxed, or restricted by law. Coupons are:
(a) non-transferable;
(b) not retroactively valid on previously purchased Products; and
(c) not valid on any resale activity, as determined by Brother.
(a) non-transferable;
(b) not retroactively valid on previously purchased Products; and
(c) not valid on any resale activity, as determined by Brother.
6.4 Coupons may not be used to purchase gift cards and may not be permitted with certain bundle offers, as determined by Brother.
6.5 Products and Services acquired by the Customer under these Terms are solely for the Customer's personal use and not for immediate resale, or distribution or export.
6.6 The Customer may not purchase Products for resale, distribution or export, and Brother reserves the right to refuse or cancel or delay any Order if Brother has reasonable grounds to believe the Products are not being purchased by the Customer for their own personal use.
7 Return of Products
7.1 The terms of this clause 7 are subject to:
(a) clause 9;
(b) Brother’s Returns Policy for Products purchased via the Website; and
(c) Brother’s Standard Warranty applicable to the Products,
and, if a Product is not of acceptable quality, faulty, defective or damaged, the Customer may have rights under the Australian Consumer Law which are not affected by this clause 7.
(a) clause 9;
(b) Brother’s Returns Policy for Products purchased via the Website; and
(c) Brother’s Standard Warranty applicable to the Products,
and, if a Product is not of acceptable quality, faulty, defective or damaged, the Customer may have rights under the Australian Consumer Law which are not affected by this clause 7.
7.2 Subject always to any applicable provisions of the Australian Consumer Law and Brother’s Returns Policy and Standard Warranty, the Customer may only return the Products to Brother with the prior written consent of Brother and Brother will be under no obligation to accept Products returned to it or provide any refund or other remedy in respect of any Products returned.
7.3 Any claims in respect of the Products made by the Customer to Brother must be made by written notice to Brother within 30 days of the date of delivery of the Products by Brother to the Customer.
7.4 If the Customer gives Brother a written notice under clause 7.3, the Customer must:
(a) preserve the Products in the state in which they were received for 14 days after it gives Brother the notice (fair wear and tear excepted); and
(b) at Brother’s option, allow Brother or its authorised representative to inspect the Products or return some or all of the Products to Brother (at the Customer’s expense) in the same condition as when received by the Customer (fair wear and tear excepted).
(a) preserve the Products in the state in which they were received for 14 days after it gives Brother the notice (fair wear and tear excepted); and
(b) at Brother’s option, allow Brother or its authorised representative to inspect the Products or return some or all of the Products to Brother (at the Customer’s expense) in the same condition as when received by the Customer (fair wear and tear excepted).
7.5 The provision to the Customer of any refund or other remedy in respect of any Products which are returned to Brother and determined by Brother to be damaged or not meet the Specifications will be, to the extent not covered by the Standard Warranty or the Consumer Guarantees, at Brother’s sole discretion
7.6 If any Products which are returned to Brother are not damaged and meet the Specifications, then Brother may, at the Customer’s cost, return those Products to the Customer.
8 Title and risk of Products
8.1 Title to, and property in any Products supplied under an Agreement remain with Brother and will only pass to the Customer once all moneys owing by the Customer to Brother in respect of the Agreement or any other agreement or arrangement between the Customer and Brother have been paid in full.
8.2 Risk in the Products passes to the Customer upon the earlier of:
(a) the Products being delivered to the Delivery Location in accordance with clause 5.4; or
(b) collection by the Customer from those premises in accordance with clause 1.1.
(a) the Products being delivered to the Delivery Location in accordance with clause 5.4; or
(b) collection by the Customer from those premises in accordance with clause 1.1.
8.3 The Customer is responsible for all Loss and damage to the Products after risk in the Products passes to the Customer in accordance with clause 8.2.
8.4 The Customer is responsible for arranging, and taking out in its own name and its own cost, any insurance in respect of the Products from the time risk passes to the Customer under this clause and Brother is not obliged to give the Customer a notice referred to in section 35(3) of the Sale of Goods Act 1923 (NSW) (or any equivalent legislation).
8.5 In the event that the Customer is required to return any Products to Brother, risk in the Products passes to Brother on confirmation of receipt of the Products by Brother.
9 Liability
9.1 If the Customer is a Consumer and Brother supplies Consumer Goods or Services to the Customer, Brother acknowledges that the Customer may have certain rights under the Australian Consumer Law in respect of the Consumer Guarantees as they apply to the Consumer Goods or Services supplied by Brother and nothing in these Terms should be interpreted as attempting to exclude, restrict or modify the application of those rights.
9.2 If the Customer is a Consumer and any Products or services supplied by Brother to the Customer are non Consumer Goods or Services, Brother’s liability to the Customer in connection with any breach of the Consumer Guarantees (other than a guarantee under section 51, 52 or 53 of the ACL) in respect of those non Consumer Goods or Services is limited (at Brother’s discretion) to:
(a) in the case of goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) in the case of services:
(i) the supplying the services again; or
(ii) the payment of the cost of having the services supplied again.
(a) in the case of goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) in the case of services:
(i) the supplying the services again; or
(ii) the payment of the cost of having the services supplied again.
9.3 Subject to clause 9.7, if the Customer makes a claim against Brother in connection with or arising out of these Terms which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law, Brother’s total aggregate liability arising in connection with all such claims shall be limited to:
(a) [200% of the price of the Products or Services in relation to which the liability arose]; or
(b) If the liability did not arise in relation to any Products or Services, $[10,000].
(a) [200% of the price of the Products or Services in relation to which the liability arose]; or
(b) If the liability did not arise in relation to any Products or Services, $[10,000].
9.4 In relation to the supply of Products which are non Consumer Goods or Services, if Brother is liable to indemnify the Customer under section 274 of the Australian Consumer Law, Brother’s liability to the Customer is limited to an amount equal to the lower of:
(a) the cost of replacing the Products;
(b) the cost of obtaining equivalent Products; or
(c) the cost of having the Products repaired.
(a) the cost of replacing the Products;
(b) the cost of obtaining equivalent Products; or
(c) the cost of having the Products repaired.
9.5 Subject to clauses 9.6 and 9.7, the Customer’s total aggregate liability arising in connection with all claims Brother makes against the Customer in connection with or arising out of these Terms shall be limited to:
(a) [200% of the price of the Products or Services in relation to which the liability arose]; or
(b) If the liability did not arise in relation to any Products or Services, $[10,000].
9.6 Clause 9.5 does apply in relation to any claim which Brother may make against the Customer for payment to Brother of any amount under these Terms or an Agreement (including payment of the Purchase Price).
(a) [200% of the price of the Products or Services in relation to which the liability arose]; or
(b) If the liability did not arise in relation to any Products or Services, $[10,000].
9.6 Clause 9.5 does apply in relation to any claim which Brother may make against the Customer for payment to Brother of any amount under these Terms or an Agreement (including payment of the Purchase Price).
9.7 Without limiting and subject to clauses 9.1 and 9.2, neither party shall be liable to the other party for any Consequential Loss.
10 Notification of claims
10.1 The Customer must notify Brother immediately if it becomes aware of:
(a) any claim; or
(b) any death, serious injury or serious illness,
in respect of, or caused by, the Products or other Products of which the Products are a component or mixed with and the Customer will take all reasonable steps to mitigate any Loss arising as a consequence of the claim, death, serious injury or serious illness.
(a) any claim; or
(b) any death, serious injury or serious illness,
in respect of, or caused by, the Products or other Products of which the Products are a component or mixed with and the Customer will take all reasonable steps to mitigate any Loss arising as a consequence of the claim, death, serious injury or serious illness.
11 Intellectual Property
11.1 The parties acknowledge and agree that, unless otherwise agreed in writing, as between Brother and the Customer all Intellectual Property Rights in the Products and any material created as part of the Services vests in and exclusively belongs to and are irrevocably assigned to Brother and the Customer agrees that it must not infringe or use the Intellectual Property Rights of Brother which exist in the Products or materials created as part of the Services without the prior written consent of Brother.
11.2 The Customer must not modify, adapt, vary, reverse engineer, disassemble or copy all or any part of any Product without the prior written consent of Brother.
11.3 The Customer must not remove, deface, change, distort, delete or cover up:
(a) any name plate or mark on the Products which indicates that Brother is the owner of the Products; or
(b) any patent, copyright or other proprietary notices which appear in writing on or in any part of the Products.
(a) any name plate or mark on the Products which indicates that Brother is the owner of the Products; or
(b) any patent, copyright or other proprietary notices which appear in writing on or in any part of the Products.
11.4 The Customer must not make available for purchase, sell or promote any:
(a) good which is a copy or imitation, in whole or in part, of any Product; or
(b) Product which has been modified or varied (other than the affixation of any labels or other packaging on the Products).
(a) good which is a copy or imitation, in whole or in part, of any Product; or
(b) Product which has been modified or varied (other than the affixation of any labels or other packaging on the Products).
12 Specifications
12.1 The Specifications are approximate only and Brother makes no representation or warranty as to the completeness or accuracy of the Specifications and the Customer is responsible for making its own enquiries in relation to the completeness and accuracy of the Specifications provided.
12.2 Where any instructions, materials or information in whatever form are required to be provided by the Customer to Brother before Brother can proceed with or complete the provision of the Products or Services, those instructions, materials or information must be supplied by the Customer to Brother within a reasonable time (as determined by Brother) so as to enable Brother to deliver the Products or Services within any agreed time frame.
12.3 Brother may make changes to the specifications, dimensions, weights or other particulars of the Products as may be required from time to time by law or any safety or manufacturing requirements.
13 Confidentiality
13.1 The Receiving Party:
(a) may use Confidential Information solely for the purposes of the relevant Agreement;
(b) must keep confidential all Confidential Information; and
(c) may disclose Confidential Information only to (i) employees and contractors who (A) are aware and agree that the Confidential Information must be kept confidential and (B) either have a need to know the Confidential Information (and only to the extent that each has a need to know), or have been specifically approved by the Disclosing Party; (ii) as required by law or securities exchange regulation; or (iii) with the prior written consent of the Disclosing Party.
(a) may use Confidential Information solely for the purposes of the relevant Agreement;
(b) must keep confidential all Confidential Information; and
(c) may disclose Confidential Information only to (i) employees and contractors who (A) are aware and agree that the Confidential Information must be kept confidential and (B) either have a need to know the Confidential Information (and only to the extent that each has a need to know), or have been specifically approved by the Disclosing Party; (ii) as required by law or securities exchange regulation; or (iii) with the prior written consent of the Disclosing Party.
13.2 The Receiving Party must notify the Disclosing Party immediately once it becomes aware of any breach of confidentiality in respect of the Confidential Information and must take all reasonable steps necessary to prevent further unauthorised use or disclosure of the Confidential Information.
14 GST
14.1 In this clause, words and expressions which are defined in the A New Tax System (Products and Services Tax) Act 1999 (Cth) (as amended, varied or replaced from time to time) have the same meaning given to them by that Act.
14.2 Unless otherwise expressly stated in writing in an Agreement, all amounts payable by the Customer in connection with an Agreement include an amount for GST. Where the Customer is required by these Terms to reimburse or indemnify Brother for any Loss or other amount incurred, the amount to be reimbursed or paid will be:
(a) reduced by the amount of any input tax credit that Brother will be entitled to claim for the Loss or amount incurred; and
(b) increased by the amount of any GST payable by Brother in respect of the reimbursement or payment.
15 Force Majeure
15.1 Brother will not be liable for any failure to perform or delay in performing its obligations under an Agreement if that failure or delay is due to a Force Majeure Event.
15.2 If a Force Majeure Event under clause 15.1 exceeds 20 Business Days, Brother may immediately terminate the Agreement by written notice to the Customer.
16 Termination
16.1 Without limiting Brother’s other rights under these Terms, and to the extent permitted by law, Brother may terminate any and all Agreements with immediate effect by written notice to the Customer if:
(a) the Customer fails to make any payment under the Agreement to Brother by the due date for that payment and the Customer has not remedied the failure to make payment within 7 days of receiving notice of the failure to make payment;
(b) the Customer is the subject of an Insolvency Event;
(c) the Customer has breached any material term of the relevant Agreement (including these Terms) which is not capable of remedy;
(d) the Customer has materially breached any term of the relevant Agreement (including these Terms) which is not capable of remedy;
(e) the Customer has breached any term of the relevant Agreement (including these Terms) which is capable of remedy and has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied; or
(f) in accordance with clause 15.2.
16.2 Without limiting the Customer’s other rights under these Terms, and to the extent permitted by law, the Customer may terminate any and all Agreements with immediate effect by written notice to Brother if:
(a) Brother is the subject of an Insolvency Event;
(b) Brother has breached any material term of the relevant Agreement (including these Terms) which is not capable of remedy;
(c) Brother has materially breached any term of the relevant Agreement (including these Terms) which is not capable of remedy; or
(d) Brother has breached a term of the relevant Agreement (including these Terms) which is capable of remedy and has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied.
16.3 On termination of an Agreement all money owed by the Customer to Brother will become immediately due and payable.
16.4 Each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.
17 Acknowledgements and representations
17.1 By making an Offer, the Customer warrants and represents to Brother that it has read and understood these Terms prior to making the Offer, and agrees to be bound by them in full.
17.2 Any price list, Products lists or other similar documents or catalogues (Documents) issued by or on behalf of Brother do not constitute an offer by Brother to supply Products appearing in those Documents or an offer by Brother to supply Products at the prices set out in those Documents and for the avoidance of doubt those Documents do not form part of an Agreement except to the extent that they are expressly referred to in any Offer. Brother’s price lists and catalogues may be changed by Brother at any time without notice.
18 Inconsistency
18.1 Unless otherwise specified in these Terms, in the event of an inconsistency between any of the documents listed in clause 3.3, the following order of precedence will apply to the extent of the inconsistency:
(a) these Terms;
(b) the prices and quantity of Products and/or Services set out on the Website;
(c) without limiting clause 18.2, any terms in the Order which are accepted by Brother in writing.
18.2 These Terms will prevail over any Customer terms and conditions, except to the extent specifically agreed by Brother in writing and any terms or conditions included in an Order or other document provided or issued by the Customer will only be binding on Brother if expressly agreed by Brother in writing.
19 Miscellaneous
19.1 In these Terms:
(a) the singular includes the plural and vice versa;
(b) the word person includes a firm, a body corporate, an unincorporated association, body or organisation established pursuant to international treaty, intergovernmental body, or government authority and other official authority;
(c) a reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time;
(d) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’ or ‘such as’ or similar expressions;
(e) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns;
(f) headings are inserted for convenience and do not affect the interpretation of these Terms;
(g) no provision will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Terms or the inclusion of the provision in the Terms; and
(h) unless otherwise provided, all monetary amounts are in Australian dollars and a reference to payment means payment in Australian dollars.
19.2 The Customer must not assign or otherwise deal with any of its rights or obligations under these Terms without Brother’s prior written consent. Brother may, to the extent permitted by law, assign, subcontract or deal with any of its rights or obligations under these Terms (including any right to be paid or chose in action) at any time in circumstances where the assignment will not adversely affect the rights of the Customer.
19.3 Brother may, to the extent permitted by law, vary these Terms from time to time (Variation Date). Any variation to these Terms will only apply to, and in respect of, any Offer made after the Variation Date and the parties acknowledge that nothing in these Terms requires the Customer to make any further Offers after the Variation Date.
19.4 A failure to exercise or delay in exercising any right under these Terms does not constitute a waiver and any right may be exercised in the future. Waiver of any rights under these Terms must be in writing and is only effective to the extent set out in that written waiver.
19.5 If any provision of these Terms is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from these Terms without affecting the validity or enforceability of the remaining provisions.
19.6 The termination or expiry of these Terms or any Agreement does not operate to terminate any rights or obligations under an Agreement that by their nature are intended to survive termination or expiration, and those rights or obligations remain in full force and binding on the party concerned including without limitation the rights and obligations under clauses 1, 7, 8, 1, 9, 10, 11, 14, 16, 18, 19 and 20.
19.7 Each party must:
(a) do all acts necessary or desirable to give full effect to an Agreement; and
(b) refrain from doing anything which might prevent full effect being given to an Agreement.
19.8 Notices by a party must be delivered by hand, prepaid post or email and sent to:
(a) in relation to the Customer, the contact details within the Order for Products or Services; and
(b) in relation to Brother: 2/51 Eastern Creek Drive, Eastern Creek NSW 2766 and [insert contact email address].
19.9 Notices will be deemed to have been received: by hand upon delivery; by post within six Business Days of sending; and by email one hour after the email is sent (unless the sender knows that email has failed to send).
19.10 These Terms each Agreement are governed by the laws in force in New South Wales, and the Customer and Brother submit to the non-exclusive jurisdiction of the courts of New South Wales
19.11 The United Nations Convention on Contracts for the International Sale of Goods (1980) (The Vienna Convention) and any acts or regulations enacting The Vienna Convention will not apply to these Terms or any Agreement and are excluded.
20 Dictionary
The capitalised terms below have the following meanings when used in this document:
Agreement means a contract formed under clause 3.2.
Australian Consumer Law or ACL means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.
Brother means Brother International (Aust) Pty Ltd ACN 001 393 835.
Business Day means any day except a Saturday, Sunday or public holiday in New South Wales.
Confidential Information means all information and other content disclosed by the Disclosing Party to the Receiving Party and includes these Terms but excludes information that:
(a) is public knowledge or becomes available to the Receiving Party from a source other than the Disclosing Party (otherwise than as a result of a breach of confidentiality); or
(b) is rightfully known to, or in the possession or control of the Receiving Party and not subject to an obligation of confidentiality in accordance with the terms of an Agreement.
Consequential Loss means:
(a) any form of indirect, special or consequential loss, including loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunity; and
(b) any loss beyond the normal measure of damages.
Consumer has the meaning provided to it in section 3 of the Australian Consumer Law.
Consumer Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.
Consumer Guarantee means a guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law.
Customer means the entity or person who requested that Products and/or Services be supplied to it by Brother.
Delivery Fee means:
(a) the delivery fee set out on the Website when the Customer submits the Order, or otherwise agreed in writing between the parties; or
(b) if no delivery fee is set out in on the Website or agreed in writing between the parties, the costs of Brother incurred in delivering the Products to the Customer.
Delivery Location means the location for delivery of the Products nominated by the Customer in its Order.
Disclosing Party means a party who discloses its Confidential Information to the Receiving Party.
Force Majeure Event means any event arising from, or attributable to, acts, events, omissions or accidents which are beyond the reasonable control of a party.
Products means the products to be supplied by Brother to the Customer under an Agreement.
Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control; or the occurrence of any event that has substantially the same effect to any of the preceding events.
Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world including but not limited to the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar right whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those ort like rights and right to protect trade secrets and know how, throughout the world for the full period of the rights and renewals and extensions.
Invoice has the meaning provided to it in clause 4.4.
Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss.
Offer has the meaning provided to it in clause 3.1.
Order means any order or other request by or for the Customer to Brother to supply to the Customer any Products or provide it with any Services (or both), whether the order or request is made via the Website, written, verbal or implied in the circumstances.
Purchase Price has the meaning provided to it in clause 4.1.
Receiving Party means a party who receives Confidential Information from or on behalf of the Disclosing Party.
Returns Policy means the returns policy in relation to Products purchased via the Brother website, available here: [insert link] as updated from time to time.
Services means the services to be supplied by Brother to the Customer under an Agreement.
Specifications means any physical, qualitative, technical or descriptive specifications, dimensions, weights or other particulars of the Products or Services or photographs or illustrations of the Products which are supplied by Brother or which may be available on the internet, including as provided in any price list, catalogue, brochure or other document which describes the Products or Services
.
Standard Warranty means the standard warranty provided by Brother in relation to the Products, available here: https://www.brother.com.au/en/contents/standardwarrantyterms at the date of each Offer.
Tax or Taxes means any tax, levy, duty, charge, impost, fee, deduction, compulsory loan or withholding (including corporate tax, personal income tax, fringe benefits tax, payroll tax, withholding tax, excise and import duties, consumption tax, value added tax or any other taxes, levies or charges) which is assessed, levied, imposed or collected by any government agency, and includes any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any of those amounts.
Terms means these Terms and Conditions.
Website means Brother’s website available here: www.brother.com.au
14 GST
14.1 In this clause, words and expressions which are defined in the A New Tax System (Products and Services Tax) Act 1999 (Cth) (as amended, varied or replaced from time to time) have the same meaning given to them by that Act.
14.2 Unless otherwise expressly stated in writing in an Agreement, all amounts payable by the Customer in connection with an Agreement include an amount for GST. Where the Customer is required by these Terms to reimburse or indemnify Brother for any Loss or other amount incurred, the amount to be reimbursed or paid will be:
(a) reduced by the amount of any input tax credit that Brother will be entitled to claim for the Loss or amount incurred; and
(b) increased by the amount of any GST payable by Brother in respect of the reimbursement or payment.
15 Force Majeure
15.1 Brother will not be liable for any failure to perform or delay in performing its obligations under an Agreement if that failure or delay is due to a Force Majeure Event.
15.2 If a Force Majeure Event under clause 15.1 exceeds 20 Business Days, Brother may immediately terminate the Agreement by written notice to the Customer.
16 Termination
16.1 Without limiting Brother’s other rights under these Terms, and to the extent permitted by law, Brother may terminate any and all Agreements with immediate effect by written notice to the Customer if:
(a) the Customer fails to make any payment under the Agreement to Brother by the due date for that payment and the Customer has not remedied the failure to make payment within 7 days of receiving notice of the failure to make payment;
(b) the Customer is the subject of an Insolvency Event;
(c) the Customer has breached any material term of the relevant Agreement (including these Terms) which is not capable of remedy;
(d) the Customer has materially breached any term of the relevant Agreement (including these Terms) which is not capable of remedy;
(e) the Customer has breached any term of the relevant Agreement (including these Terms) which is capable of remedy and has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied; or
(f) in accordance with clause 15.2.
16.2 Without limiting the Customer’s other rights under these Terms, and to the extent permitted by law, the Customer may terminate any and all Agreements with immediate effect by written notice to Brother if:
(a) Brother is the subject of an Insolvency Event;
(b) Brother has breached any material term of the relevant Agreement (including these Terms) which is not capable of remedy;
(c) Brother has materially breached any term of the relevant Agreement (including these Terms) which is not capable of remedy; or
(d) Brother has breached a term of the relevant Agreement (including these Terms) which is capable of remedy and has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied.
16.3 On termination of an Agreement all money owed by the Customer to Brother will become immediately due and payable.
16.4 Each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.
17 Acknowledgements and representations
17.1 By making an Offer, the Customer warrants and represents to Brother that it has read and understood these Terms prior to making the Offer, and agrees to be bound by them in full.
17.2 Any price list, Products lists or other similar documents or catalogues (Documents) issued by or on behalf of Brother do not constitute an offer by Brother to supply Products appearing in those Documents or an offer by Brother to supply Products at the prices set out in those Documents and for the avoidance of doubt those Documents do not form part of an Agreement except to the extent that they are expressly referred to in any Offer. Brother’s price lists and catalogues may be changed by Brother at any time without notice.
18 Inconsistency
18.1 Unless otherwise specified in these Terms, in the event of an inconsistency between any of the documents listed in clause 3.3, the following order of precedence will apply to the extent of the inconsistency:
(a) these Terms;
(b) the prices and quantity of Products and/or Services set out on the Website;
(c) without limiting clause 18.2, any terms in the Order which are accepted by Brother in writing.
18.2 These Terms will prevail over any Customer terms and conditions, except to the extent specifically agreed by Brother in writing and any terms or conditions included in an Order or other document provided or issued by the Customer will only be binding on Brother if expressly agreed by Brother in writing.
19 Miscellaneous
19.1 In these Terms:
(a) the singular includes the plural and vice versa;
(b) the word person includes a firm, a body corporate, an unincorporated association, body or organisation established pursuant to international treaty, intergovernmental body, or government authority and other official authority;
(c) a reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time;
(d) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’ or ‘such as’ or similar expressions;
(e) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns;
(f) headings are inserted for convenience and do not affect the interpretation of these Terms;
(g) no provision will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Terms or the inclusion of the provision in the Terms; and
(h) unless otherwise provided, all monetary amounts are in Australian dollars and a reference to payment means payment in Australian dollars.
19.2 The Customer must not assign or otherwise deal with any of its rights or obligations under these Terms without Brother’s prior written consent. Brother may, to the extent permitted by law, assign, subcontract or deal with any of its rights or obligations under these Terms (including any right to be paid or chose in action) at any time in circumstances where the assignment will not adversely affect the rights of the Customer.
19.3 Brother may, to the extent permitted by law, vary these Terms from time to time (Variation Date). Any variation to these Terms will only apply to, and in respect of, any Offer made after the Variation Date and the parties acknowledge that nothing in these Terms requires the Customer to make any further Offers after the Variation Date.
19.4 A failure to exercise or delay in exercising any right under these Terms does not constitute a waiver and any right may be exercised in the future. Waiver of any rights under these Terms must be in writing and is only effective to the extent set out in that written waiver.
19.5 If any provision of these Terms is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from these Terms without affecting the validity or enforceability of the remaining provisions.
19.6 The termination or expiry of these Terms or any Agreement does not operate to terminate any rights or obligations under an Agreement that by their nature are intended to survive termination or expiration, and those rights or obligations remain in full force and binding on the party concerned including without limitation the rights and obligations under clauses 1, 7, 8, 1, 9, 10, 11, 14, 16, 18, 19 and 20.
19.7 Each party must:
(a) do all acts necessary or desirable to give full effect to an Agreement; and
(b) refrain from doing anything which might prevent full effect being given to an Agreement.
19.8 Notices by a party must be delivered by hand, prepaid post or email and sent to:
(a) in relation to the Customer, the contact details within the Order for Products or Services; and
(b) in relation to Brother: 2/51 Eastern Creek Drive, Eastern Creek NSW 2766 and [insert contact email address].
19.9 Notices will be deemed to have been received: by hand upon delivery; by post within six Business Days of sending; and by email one hour after the email is sent (unless the sender knows that email has failed to send).
19.10 These Terms each Agreement are governed by the laws in force in New South Wales, and the Customer and Brother submit to the non-exclusive jurisdiction of the courts of New South Wales
19.11 The United Nations Convention on Contracts for the International Sale of Goods (1980) (The Vienna Convention) and any acts or regulations enacting The Vienna Convention will not apply to these Terms or any Agreement and are excluded.
20 Dictionary
The capitalised terms below have the following meanings when used in this document:
Agreement means a contract formed under clause 3.2.
Australian Consumer Law or ACL means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.
Brother means Brother International (Aust) Pty Ltd ACN 001 393 835.
Business Day means any day except a Saturday, Sunday or public holiday in New South Wales.
Confidential Information means all information and other content disclosed by the Disclosing Party to the Receiving Party and includes these Terms but excludes information that:
(a) is public knowledge or becomes available to the Receiving Party from a source other than the Disclosing Party (otherwise than as a result of a breach of confidentiality); or
(b) is rightfully known to, or in the possession or control of the Receiving Party and not subject to an obligation of confidentiality in accordance with the terms of an Agreement.
Consequential Loss means:
(a) any form of indirect, special or consequential loss, including loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunity; and
(b) any loss beyond the normal measure of damages.
Consumer has the meaning provided to it in section 3 of the Australian Consumer Law.
Consumer Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.
Consumer Guarantee means a guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law.
Customer means the entity or person who requested that Products and/or Services be supplied to it by Brother.
Delivery Fee means:
(a) the delivery fee set out on the Website when the Customer submits the Order, or otherwise agreed in writing between the parties; or
(b) if no delivery fee is set out in on the Website or agreed in writing between the parties, the costs of Brother incurred in delivering the Products to the Customer.
Delivery Location means the location for delivery of the Products nominated by the Customer in its Order.
Disclosing Party means a party who discloses its Confidential Information to the Receiving Party.
Force Majeure Event means any event arising from, or attributable to, acts, events, omissions or accidents which are beyond the reasonable control of a party.
Products means the products to be supplied by Brother to the Customer under an Agreement.
Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control; or the occurrence of any event that has substantially the same effect to any of the preceding events.
Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world including but not limited to the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar right whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those ort like rights and right to protect trade secrets and know how, throughout the world for the full period of the rights and renewals and extensions.
Invoice has the meaning provided to it in clause 4.4.
Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss.
Offer has the meaning provided to it in clause 3.1.
Order means any order or other request by or for the Customer to Brother to supply to the Customer any Products or provide it with any Services (or both), whether the order or request is made via the Website, written, verbal or implied in the circumstances.
Purchase Price has the meaning provided to it in clause 4.1.
Receiving Party means a party who receives Confidential Information from or on behalf of the Disclosing Party.
Returns Policy means the returns policy in relation to Products purchased via the Brother website, available here: [insert link] as updated from time to time.
Services means the services to be supplied by Brother to the Customer under an Agreement.
Specifications means any physical, qualitative, technical or descriptive specifications, dimensions, weights or other particulars of the Products or Services or photographs or illustrations of the Products which are supplied by Brother or which may be available on the internet, including as provided in any price list, catalogue, brochure or other document which describes the Products or Services
.
Standard Warranty means the standard warranty provided by Brother in relation to the Products, available here: https://www.brother.com.au/en/contents/standardwarrantyterms at the date of each Offer.
Tax or Taxes means any tax, levy, duty, charge, impost, fee, deduction, compulsory loan or withholding (including corporate tax, personal income tax, fringe benefits tax, payroll tax, withholding tax, excise and import duties, consumption tax, value added tax or any other taxes, levies or charges) which is assessed, levied, imposed or collected by any government agency, and includes any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any of those amounts.
Terms means these Terms and Conditions.
Website means Brother’s website available here: www.brother.com.au