In the terms and conditions:
“Account“ means an on-line account established by the Purchaser to permit the purchase of Goods and accessed via the Website;
“Adventure One” means Adventure One Pty Ltd ACN 47 068 387 931 (trading as ONE PLANET® and/or Camplist®, Camplist® and ONE PLANET® are registered trade mark of Andrew King Pty Ltd. Adventure One Pty Ltd is a licensed user of these registered trade marks) and its agents, servants and employees and any related bodies corporate as defined in the Corporations Act 2001 (Cth) (if such related body corporate is named as the party making or accepting the Buyer’s order of Goods);
“Buyer” means any person offering to contract with Adventure One on these Terms to purchase the Goods or hire the Hire Goods from Adventure One;
“Consequential Loss” means any loss or damage suffered by a party or any other person which is indirect or consequential, including loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, or loss or denial of opportunity;
“Defect” means a defect, flaw or imperfection in the Goods or Hire Goods which prevents the Goods or Hired Goods from being used for the purposes intended, but does not include anything which has been disclosed as a feature or limitation of the Goods or Hire Goods by Adventure One prior to the date of purchase, or any defect, flaw or imperfection that is trivial or insubstantial;
“Goods” means all goods, excluding Hire Goods, that are capable of being purchased by the Buyer via the Website;
“GST” means any goods and services tax and any replacement or similar tax;
“GST Law” means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Hire Goods” means Goods that are capable of being hired by the Buyer via the Website;
“Invoice” means the invoice issued by Adventure One to the Buyer setting out the amount to be paid by the Buyer for the purchase or Goods or the hiring of the Hire Goods;
“Login Details” means the password/user name details required to access a Buyers Account;
“Order” means any order for the purchase of Goods or the rental of the Hire Goods placed by the Buyer with Adventure One, in whatever form;
“Price” means the full payment price required for the purchase of Goods or the hire of the Hire Goods;
“Terms” means these terms and conditions; and
“Website” means camplist.com.au.
Adventure One offers the Buyer the opportunity to purchase the Goods or Hire Goods via the Website on these Terms.
By placing an Order for Goods or Hire Goods via the Website, the Buyer accepts these Terms and agrees to be bound by them.
Unless Adventure One otherwise agrees in writing, only these Terms apply to the purchase the Goods or Hire Goods by the Buyer, and the Buyer agrees that these Terms will in all circumstances prevail over any other document, Order or other terms.
These Terms supersede and exclude all prior and other discussions, dealings, representations (contractual or otherwise) and arrangements relating to the supply of the Goods or Hire Goods including, those relating to the performance of the Goods or Hire Goods or the results that ought to be expected from using the Goods or Hire Goods.
If there is an inconsistency between any other terms agreed by the Buyer and Adventure One in writing and/or these Terms, the terms agreed by the Buyer and Adventure One in writing will prevail to the extent of any inconsistency.
3. ORDERS AND REGISTRATION
The Buyer may place an Order for Goods or Hire Goods on the Website.
The Buyer may choose to set-up an on-line Account upon placing an Order for Goods or Hire Goods on the Website.
If the Buyer chooses to establish an Account, Adventure One will allocate and email to the Buyer, Login Details to the email address provided by the Buyer upon registration.
The Buyer agrees to keep Login Details secure and will not disclose them to anyone. The Buyer agrees that Adventure One is not liable for any loss or damage arising from the Buyer’s failure to keep Login Details secure or any disclosure of the Login Details by any person. The Buyer agrees not to provide Login Details information to any other person other than Adventure One without Adventure One’s express written permission.
Adventure One reserves the right to terminate Account and Login Details at any time and for any reason, including if Adventure One believes that the Buyer has breached these Terms.
Adventure One has sole discretion to accept or reject, in whole or in part, any Order or any variation or modification of an Order requested by the Buyer. In the event that Adventure One rejects an Order (or part thereof), Adventure One will as soon as is practical contact the Buyer by telephone or email to organise for a refund of the payment (or the relevant part of it) provided by the Buyer for the rejected Order or part thereof.
Adventure One has sole discretion to accept or reject any Order cancellation request by they Buyer. If a cancellation request is accepted by Adventure One, the Buyer will be liable for any direct loss or expense incurred by Adventure One in respect of that Order (including payment for any Goods ordered by Adventure One from its suppliers relating to that Order).
Some Goods or Hire Goods ordered may not be in stock at the time of the Order. Adventure One may at its discretion supply part and not all of the Order as stock allows. Adventure One will use reasonable efforts to source and supply Goods and Hire Goods not in stock at the time of the Order to the Buyer within ten business days of the date of the Order. If Goods or Hire Goods cannot be sourced and supplied within ten business days of the date of the Order, Adventure One will refund to the Buyer, the proportion of the Price associated with the unavailable Goods or Hire Goods.
4. HIRE GOODS
Adventure One provides a service via the Website by which the Buyer may Order Hire Goods.
Adventure One agrees to hire the Hire Goods to the Buyer on these Terms and the terms of other order forms as issued by Adventure One from time to time. If there is any inconsistency, those other terms prevail.
In the event that the Hire Goods are returned with a Defect or clause 4(i) of these Terms apply, the Buyer authorises Adventure One to deduct such amounts from the Buyer’s credit card as required pursuant to clause 4(i) or to remedy the Defect (or as required replace the Hire Goods).
The Buyer agrees that it hires the Hire Goods at its own risk, and bears responsibility for the Hire Goods from the time of its delivery into the possession of the Buyer until collection by, or return to, Adventure One.
The Buyer agrees to maintain and return the Hire Goods in the same condition as the Hire Goods were delivered to the Buyer (fair wear and tear excepted). In the event that the Hire Goods are returned with a Defect, clause 4(c) will apply.
The Buyer agrees to return the Hire Goods to Adventure One on or before the date stated as the return date on the Order. Adventure One reserves the right to continue charging the daily hire rate attributed to Hire Goods for every day (or part thereof) that the Buyer fails to return Hire Goods after the return date on the relevant Order has passed. Adventure One will continue charging the daily hire rate until the aggregate amount of the daily hire amounts charged is equal to the aggregate retail price of the Hire Goods not returned. At this point, Adventure One will cease charging the daily hire rate, but reserves its right to recover the Hire Goods by any other means lawfully available to Adventure One.
These Terms create a security interest in favour of Adventure One in the Hire Goods pursuant to the Personal Property Securities Act 2009 (Cth).
The Buyer undertakes to immediately do such acts and provide such information as in Adventure One’s opinion may be necessary or desirable to enable Adventure One to perfect any first ranking security in respect of the Hire Goods.
To the fullest extent permitted by law, the Buyer waives any rights it may have now or in the future to receive a copy of any verification statement or other confirmation related to the interests created or provided for, or perfected in the manner contemplated by, these Terms.
Payment by the Buyer for Goods or Hire Goods must be made by way of valid credit card at point of Order.
The Buyer agrees to pay the full Price and any other charges, including charges for loss, damage and repairs or any tax, GST, duty, levy, or other expenses paid or payable by the Buyer.
The Buyer agrees to provide Adventure One with the Buyer’s credit card number, expiry date and any other information which may be necessary to debit the Buyers credit card prior to delivery of the Goods or Hire Goods.
Unless otherwise agreed in writing by Adventure One, the Buyer must pay the full Price for the Goods or Hire Goods as stated on the Website upon placing the Order. As soon as practical following receipt of an Order and full payment for that Order, Adventure One will confirm the receipt of the Order and the payment amount by message to the email address provided by the Buyer.
Adventure One warrants that the Goods and Hire Goods supplied will be of merchantable quality and will conform to the specifications published by it in relation to the Goods or Hire Goods.
Subject to clause 6(c) below, Adventure One also accepts liability for all warranties implied to the transactions under these Terms and under the Australian Consumer Law (or any other equivalent legislation in each State and Territory) the effect of which cannot be excluded.
All warranties and conditions that are capable of exclusion and would, apart from clause 6(b), form part of these Terms, are expressly excluded.
Except where by legislation may not be limited, or where a limitation of a liability would otherwise render Adventure One liable to a penalty, Adventure One’s liability in connection with the sale of the Goods or Hire Goods and these Terms is limited to any one of the following, as determined by Adventure One: (i) the replacement of the Goods, or the supply of equivalent Goods (or Hire Goods for the relevant period); (ii) the repair of the Goods or payment of the cost of having the Goods repaired; or (iii) the refund of the price paid by the Buyer of the Goods or Hire Goods.
To the extent the law permits and notwithstanding any other clause of these Terms, Adventure One excludes all liability whatsoever to the Buyer for any Consequential Loss.
Adventure One will take all reasonable steps to have the Goods or Hire Goods delivered to the Buyer on the date agreed between the parties as the delivery date. However, time is not of the essence under these Terms and Adventure One shall not be liable for any failure to deliver or delay in delivery for any reason.
The Buyer shall be liable for the charges associated with delivery as stated by Adventure One on placement of an Order. The Buyer will be liable for all costs associated with the delivery and return of Hire Goods.
If the Buyer, acting reasonably, believes the Goods or Hire Goods are subject to a Defect, then subject to the Buyer’s compliance with this clause 8, and Adventure One’s agreement that a Defect exists, Adventure One will accept the return of the Goods or Hire Goods and at its election will replace the Goods or Hire Goods with equivalent products or pay or credit the Buyer with the cost of the Goods or Hire Gods that are subject to the Defect.
The Buyer must notify Adventure One of the nature of the apparent Defect within 2 Business Days of the Goods or Hire Goods being delivered to the Buyer.
The Buyer must preserve any Goods or Hire Goods that are found to have a Defect in the state in which they were delivered and return them to Adventure One in that condition.
Proof of purchase or any invoice on account of the defective Goods or Hire Goods must be provided to Adventure One.
In the event that Adventure One determines that a Defect is not in existence, Adventure One will notify the Buyer of its decision and will offer to return (at the Buyer cost) the Goods or Hire Goods to the Buyer.
To the extent permitted by law, Adventure One reserves its ability to retain the full Price (or part thereof) of the returned Goods or Hired Goods in the event that Adventure One determines that a Defect is not in existence.
9. RISK AND TITLE
All risk in the Hire Goods shall pass to the Buyer upon delivery to the Buyer or any agent or other carrier commissioned by the Buyer to take possession of the Goods. Legal and equitable title in and to the Hire Goods shall not pass to the Buyer at any time, but the Buyer agrees that it holds the Hire Goods as bailee of Adventure One and that a fiduciary relationship exists between the Buyer and Adventure One.
All risk in and to the Goods purchased shall pass to the Buyer upon delivery to the Buyer or any agent or other carrier commissioned by the Buyer to take possession of the Goods. Legal and equitable title in and to the Goods shall not pass to the Buyer until payment in full for all Goods is made.
The Buyer acknowledges that until title in and to the Goods passes to the Buyer in accordance with this clause 9, the Buyer holds the Goods as bailee of Adventure One and that a fiduciary relationship exists between the Buyer and Adventure One.
Subject to clause 11(b), and unless otherwise agreed in writing or for Orders which have been accepted by Adventure One, the price charged for the Goods or Hire Goods shall be the price determined by Adventure One and as displayed on the Website at the date of Order (plus any GST payable in accordance with clause 16 of these Terms).
Any price indications on the Website or price lists provided by Adventure One to the Buyer or otherwise made available to the Buyer are subject to alteration at any time without notice.
11. FORCE MAJEURE
Adventure One is not liable for any failure to perform any of its obligations under these Terms as a result of any event beyond its reasonable control including where Adventure One is prevented or hindered from manufacturing, delivering or supplying the Goods or Hire Goods as a result of any strikes, lockouts or other labour difficulty, inability to obtain any necessary materials, products, equipment, facilities or services from usual suppliers on usual terms, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication network. In such circumstances, Adventure One may suspend performance of any obligations under these Terms while the event continues. Adventure One shall not incur any liability to the Buyer in respect of such suspension.
If any of the above events occur for more than 30 days, Adventure One may, without liability, terminate any affected Order by notice in writing to the Buyer.
Except where legislation cannot be excluded (such as the Australian Consumer Law) which would make this clause 12 illegal, or where the inclusion of this clause 12 would otherwise make Adventure One liable to a penalty the Buyer releases Adventure One from any claim that is made against Adventure One for damages or otherwise in respect of any loss, damage, death or injury arising from negligence or otherwise caused directly or indirectly by or arising out of the use or condition of Goods or Hire Goods sold to the Buyer, except to the extent that such loss, damage, death or injury has been caused by Adventure One.
If any provision of these Terms or its application to any person or circumstance is or becomes invalid, illegal or unenforceable the provision shall, so far as possible, be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of these Terms shall not in any way be affected or impaired.
14. VARIATION AND ASSIGNMENT
These Terms may be varied by agreement between the parties in writing only. The Buyer may not assign its rights under these Terms without Adventure One’s prior written consent.
15. GOVERNING LAW
These Terms are governed by the law of the State of Victoria, Adventure One and the Buyer submit to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia.
16. GST AND OTHER TAXES AND DUTIES
Notwithstanding any other clause in these Terms, to the extent that any supply made under or in connection with these Terms is a taxable supply (as defined by the GST Law), the Buyer must pay to Adventure One, in addition to the consideration provided for under these Terms for that supply (unless it expressly included GST) an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. The Buyer must pay to Adventure One the additional amount at the same time as the consideration to which it is referable. The Buyer is responsible for paying any other duties, taxes or charges, including any stamp duty (if applicable), in relation to the Goods or Hire Goods
Waiver by Adventure One of a breach of these Terms or of any right or power arising on a breach of these Terms must be in writing and signed by Adventure One. A right or power created or arising on a breach of these Terms is not waived by any failure to exercise or delay in exercising, or a partial exercise of, that or any other right or power.
18. NO RIGHT TO OFFSET
No amount owing whether present or future, actual, contingent or prospective and on any account whatsoever by the Buyer to Adventure One may be offset against any amount owing whether present, future, actual, contingent or prospective of the Buyer to Adventure One hereunder on any other account whatsoever.
19. INTELLECTUAL PROPERTY
The purchase of Goods or Hire Goods under these Terms does not confer on the Buyer any licence or assignment of any copyright, patent, design or trademark, or any other intellectual property right (whether registered, registrable or not) that subsists in the Goods or Hire Goods.