Terms & Conditions
PERTH HYPNOTHERAPIST AND THE CUSTOMER AGREE AS FOLLOWS:
- 1 “Agreement” means this agreement between PERTH HYPNOTHERAPIST and the Customer for the provision of Goods and/or Services by PERTH HYPNOTHERAPIST to the Customer to which the Terms and Conditions of Trade apply pursuant to clause 2.
- 2 “Confidential Information” means all information acquired or created by PERTH HYPNOTHERAPIST or belonging to any third party but being in the possession of PERTH HYPNOTHERAPIST, whether relating to the business or Intellectual Property of PERTH HYPNOTHERAPIST or not, but that is not in the public domain (or, if in the public domain, is not in the public domain by reason of a breach of this Agreement), including but not limited to:
(a) information about products, processes, systems, equipment, dealings (including in relation to the Customer), transactions, policies, finances, organisation or personnel, or about those of the clients or customers of PERTH HYPNOTHERAPIST or anyone associated with PERTH HYPNOTHERAPIST;
(b) any information regarding business methods, business policies, product designs, procedures, techniques, research or development, projects or results, financial information of any kind, intellectual knowledge, Intellectual Property, know-how, trade secrets, prices, customer lists or other customer information, information pertaining to products or services under development, marketing, advertising, artwork ideas, concepts, promotions or strategies, hardware types, programme packages and requirements of the business, passwords, software programmes and packages, purchasing agreements, and security; and
(c) any financial information of PERTH HYPNOTHERAPIST and/or a third party, business records, business affairs, accounts, budgets, taxation records, reports, advices whether or not by letter, records of every kind, valuations, plans, proposals, minutes, records of meetings, conversations, discussions, consultation, correspondence and the identity of customers, suppliers and agents;
(d) any personal or private information of any person or persons pursuant to the Privacy Act 1988 (Cth); and
(e) information relating to any and all of the Customer’s involvement with PERTH HYPNOTHERAPIST and matter relating to the Agreement.
- 3 “PERTH HYPNOTHERAPIST” means Jennipher McDonald trading as PERTH HYPNOTHERAPIST (ABN 13 65 91 11 56 22) and includes, without limitation, its successors, assigns, agents or any person acting on its behalf with its authority.
- 4 “Customer” means the customer, client or Customer (or any person acting on behalf of and with the authority of the customer, client or Customer) as described on any quotation, work authorisation or other form as provided by PERTH HYPNOTHERAPIST to the Customer.
- 5 “Goods” means goods or products supplied by PERTH HYPNOTHERAPIST to the Customer (and where the context so permits, includes any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by PERTH HYPNOTHERAPIST to the Customer.
- 6 “Intellectual Property” includes but is not limited to all the Licensor’s trade marks, Patents, Copyrights, Designs, marks, processes, know-how, specifications, statements, formulae, trade secrets, manner of new manufacture, drawings and data or other like property or rights owned or held by the Licensor, These include but are not limited to:
(a) marks, logos, service marks, trade names, business names, internet domain names, slogans, symbols, brand names, Copyright or other trade indicia; and
(b) all rights in information, know-how, processes, procedures, compositions, devices, methods, formulae, drawings, programs, trade secrets or data whether or not protectable by patents application design registration, copyright, circuit layouts or otherwise, whether unregistered, registered or registrable, including the Business Name.
- 7 “Intellectual Property Rights” means all present and future rights conferred by statute, common law or equity anywhere in the world in or in relation to Copyright, Trade Marks, Designs, Patents, marks, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable. These rights include:
(a) all rights in all applications to register these rights including all rights to claim Paris Convention for the Protection of Industrial Property priority;
(b) all renewals and extensions of these rights; and
(c) all rights in the nature of these rights, such as moral rights.
- 8 “Licensor” means Jennipher McDonald.
- 9 “Loss” means:
(a) loss, including but not limited to direct loss, indirect loss, consequential loss, special loss, loss of anticipated profits and/or loss of business opportunity;
(c) damage including but not limited to any damages or compensation and/or any damage to reputation; and/or
(d) cost or expense including legal costs on a full indemnity basis, of whatever kind and however it arises;
- 10 “Price” means the price payable for the Goods as agreed between PERTH HYPNOTHERAPIST and the Customer in accordance with clause 3 of this contract.
- 11 “Services” means all services supplied by PERTH HYPNOTHERAPIST to the Customer and includes any advice or recommendations (and where the context so permits, includes any supply of Goods as defined above).
- 12 “Terms and Conditions” means the terms and conditions of trade of PERTH HYPNOTHERAPIST contained in this Schedule and applicable to the Agreement.
- 1 Any instructions (oral or written) received by PERTH HYPNOTHERAPIST from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by PERTH HYPNOTHERAPIST constitutes formation of the Agreement and acceptance of the Terms and Conditions.
- 2 Where more than one (1) Customer has entered into the Agreement, the Customers are jointly and severally liable for all payments of the Price.
- 3 The Agreement can only be rescinded in accordance with these Terms and Conditions or amended with the written consent of PERTH HYPNOTHERAPIST.
- 4 None of the agents or representatives of PERTH HYPNOTHERAPIST are authorised to make any representations, statements, conditions or agreements not expressed by the manager or officers of PERTH HYPNOTHERAPIST in writing nor is PERTH HYPNOTHERAPIST bound by any such unauthorised statements.
- 5 The Customer must give PERTH HYPNOTHERAPIST not less than fourteen (14) days prior written notice of any proposed change of ownership (legal or beneficial) of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer is liable for any Loss incurred by PERTH HYPNOTHERAPIST as a result of the Customer’s failure to comply with this clause 2.5.
- Price And Payment
- 1 At the sole discretion of PERTH HYPNOTHERAPIST the Price is either:
(a) as indicated on invoices provided by PERTH HYPNOTHERAPIST to the Customer in respect of Goods and/or Services supplied; or
(b) the quoted Price of PERTH HYPNOTHERAPIST (subject to clause 3.2) which is binding upon PERTH HYPNOTHERAPIST provided that the Customer accepts the quotation of PERTH HYPNOTHERAPIST in writing within fourteen (14) days of the date specified on such quotation.
- 2 PERTH HYPNOTHERAPIST may change the Price in the event of a variation to the quotation of PERTH HYPNOTHERAPIST provided that PERTH HYPNOTHERAPIST provides the Customer with notice of such change to the quotation.
- 3 Unless otherwise specified by PERTH HYPNOTHERAPIST in writing or as expressly provided in these Terms and Conditions, payment by the Customer is due, at the sole discretion of PERTH HYPNOTHERAPIST:
(a) on delivery of the Goods or supply of the Services; or
(b) before delivery of the Goods or supply of the Services if notified by PERTH HYPNOTHERAPIST to the Customer; or
(c) for approved Customers, by instalments in accordance with the payment schedule of PERTH HYPNOTHERAPIST as provide by PERTH HYPNOTHERAPIST to the Customer; or
(d) within twenty one (21) days following the end of the month in which an invoice is posted to the Customer’s address. PERTH HYPNOTHERAPIST may specify a detailed payment claim at intervals not less than one (1) month for work performed up to the end of each month.
- 4 At the sole discretion of PERTH HYPNOTHERAPIST a deposit may be required. The deposit amount or percentage of the Price is to be stipulated at the time of the order of the Goods and/or Services and is immediately due and payable.
- 5 Time for payment for the Goods and/or Services is of the essence and will be stated on the invoice or any other forms. If no time is stated for payment of the Price, then payment is due and payable by the Customer to PERTH HYPNOTHERAPIST immediately upon delivery of the Goods or completion of supply of the Services.
- 6 Payment of the Price and any other payment must be made as required by PERTH HYPNOTHERAPIST.
- 7 GST and other taxes and duties that may be applicable must be added to the Price except when they are expressly included in the Price.
- Goods and Delivery
- 1 The Goods are described on the invoice, quotation, work order, work authorisation or other work commencement forms as provided by PERTH HYPNOTHERAPIST to the Customer.
- 2 Delivery of the Goods must take place when the Customer takes possession of the Goods at the Customer’s address (in the event that the Goods are delivered by PERTH HYPNOTHERAPIST). The Customer must make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery or delivery for the Goods must be made to the Customer at the address of PERTH HYPNOTHERAPIST. In the event that the Customer is unable to take delivery of the Goods as arranged then PERTH HYPNOTHERAPIST is entitled to charge a reasonable fee for redelivery.
- 3 At the sole discretion of PERTH HYPNOTHERAPIST the costs of the delivery of the Goods are:
(a) included in the Price; or
(b) in addition to the Price.
- 4 PERTH HYPNOTHERAPIST may deliver the Goods by separate instalments and each separate instalment must be invoiced and paid in accordance with the provisions in these Terms and Conditions.
- 5 Delivery of the Goods to a carrier, either named by the Customer or failing such naming to a carrier at the discretion of PERTH HYPNOTHERAPIST for the purpose of transmission to the Customer, is deemed to be a delivery of Goods to the Customer.
- 6 The costs of carriage and any insurance which the Customer reasonably directs PERTH HYPNOTHERAPIST to incur must be reimbursed by the Customer without any set-off or other withholding (whatsoever) and is due on the date for payment of the Price. The carrier is deemed to be the Customer’s agent.
- 7 The failure of PERTH HYPNOTHERAPIST to deliver the Goods does not entitle either party to treat the Agreement as repudiated.
- 8 PERTH HYPNOTHERAPIST is not liable for any Loss whatsoever due to failure by PERTH HYPNOTHERAPIST to deliver the Goods (or any of them) promptly or at all.
- Supply of Services
- 1 The Services supplied by PERTH HYPNOTHERAPIST for the Customer must correspond to in the invoice, quotation, work order, work authorisation or other work commencement forms as provided by PERTH HYPNOTHERAPIST to the Customer unless varied by agreement between the parties.
- 2 The supply of the Services must take place within the time stated by PERTH HYPNOTHERAPIST to the Customer when the Customer requests the Services and if no time is stated, then within a reasonable time having regard to the type of Services requested and any necessary preparation PERTH HYPNOTHERAPIST must undertake prior to supplying the Services.
- 3 At the sole discretion of PERTH HYPNOTHERAPIST the costs of attending and supplying the Services are:
(a) included in the Price; or
(b) in addition to the Price.
- 4 PERTH HYPNOTHERAPIST may supply the Services at separate times and each separate time must be invoiced and paid in accordance with the provisions of these Terms and Conditions.
- 5 PERTH HYPNOTHERAPIST may, at the sole discretion of PERTH HYPNOTHERAPIST and without notice to the Customer, engage a sub-contractor to supply the Services and that sub-contractor:
(a) must supply the Services in accordance with these Terms and Conditions; and
(b) has all the rights and powers under these Terms and Conditions as if it were PERTH HYPNOTHERAPIST.
- 6 The failure of PERTH HYPNOTHERAPIST to supply the Services does not entitle either party to treat the Agreement as repudiated.
- 7 PERTH HYPNOTHERAPIST is not liable for any Loss whatsoever due to failure by PERTH HYPNOTHERAPIST to supply the Services (or part of them) promptly or at all.
- 1 If PERTH HYPNOTHERAPIST retains ownership of the Goods, all risk for the Goods passes to the Customer on delivery.
- 2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, PERTH HYPNOTHERAPIST is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms and Conditions by PERTH HYPNOTHERAPIST is sufficient evidence of the rights of PERTH HYPNOTHERAPIST to receive the insurance proceeds without the need for any person dealing with PERTH HYPNOTHERAPIST to make further enquiries.
- 1 PERTH HYPNOTHERAPIST and the Customer agree that ownership of the Goods does not pass until:
(a) the Customer has paid PERTH HYPNOTHERAPIST all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to PERTH HYPNOTHERAPIST in respect of all contracts between PERTH HYPNOTHERAPIST and the Customer (including without limitation the Agreement).
- 2 Receipt by PERTH HYPNOTHERAPIST of any form of payment other than cash is not deemed to be payment of the Price until that form of payment has been honoured, cleared or recognised and until then PERTH HYPNOTHERAPIST’ ownership or rights in respect of the Goods continues.
- 3 It is further agreed that:
(a) where practicable, the Goods must be kept separate and identifiable until PERTH HYPNOTHERAPIST has received payment and all other obligations of the Customer are met;
(b) until such time as ownership of the Goods passes from PERTH HYPNOTHERAPIST to the Customer, PERTH HYPNOTHERAPIST may give notice in writing to the Customer to return the Goods or any of them to PERTH HYPNOTHERAPIST. Upon such notice being given, the rights of the Customer to obtain ownership or any other interest in the Goods ceases;
(c) if the Customer fails to return the Goods to PERTH HYPNOTHERAPIST, then PERTH HYPNOTHERAPIST or an agent of PERTH HYPNOTHERAPIST may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods;
(d) the Customer is only a bailee of the Goods and until such time as PERTH HYPNOTHERAPIST has received payment in full for the Goods whereupon the Customer must hold any proceeds from the sale or disposal of the Goods on trust for PERTH HYPNOTHERAPIST;
(e) the Customer must not deal with the money of PERTH HYPNOTHERAPIST in any way which may be adverse to PERTH HYPNOTHERAPIST;
(f) receipt by PERTH HYPNOTHERAPIST of any form of payment other than cash is not deemed to be payment until that form of payment has been honoured, cleared or recognised and until then PERTH HYPNOTHERAPIST’ ownership of rights in respect of the Goods continues;
(g) the Customer must not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of PERTH HYPNOTHERAPIST;
(h) PERTH HYPNOTHERAPIST can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that PERTH HYPNOTHERAPIST is the owner of the end products.
- Customer’s Disclaimer
- 1 The Customer hereby disclaims and renounces any right to rescind, or cancel any contract with PERTH HYPNOTHERAPIST (including without limitation the Agreement) or to sue for damages or to claim restitution arising out of any misrepresentation made to the Customer by PERTH HYPNOTHERAPIST and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgement.
- 1 The Customer must inspect the Goods on delivery and must within seven (7) days of delivery (time being of the essence) notify PERTH HYPNOTHERAPIST of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer must afford PERTH HYPNOTHERAPIST an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods or any of them are defective in any way. If the Customer fails to comply with these provisions, the Goods are presumed to be free from any defect or damage.
- 2 For defective Goods, which PERTH HYPNOTHERAPIST has agreed in writing that the Customer is entitled to reject, the liability of PERTH HYPNOTHERAPIST is limited to either (at the discretion of PERTH HYPNOTHERAPIST) replacing the Goods or repairing the Goods provided that:
(a) the Customer has complied with the provision of clause 9.1;
(b) the Goods are returned at the Customer’s cost within thirty (30) days of the delivery date;
(c) PERTH HYPNOTHERAPIST is not liable for Goods which have not been stored or used in a proper manner; and
(d) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
- 3 Where the Customer is a ‘consumer’ as defined in the Trade Practices Act 1974 (Cth) or the Fair Trading Act 1987 (WA) (as applicable), then the Customer is also entitled to a refund.
- 4 PERTH HYPNOTHERAPIST may (in its discretion) accept the Goods for credit but this may incur a handling/restocking fee of twenty percent (20%) of the value of the returned Goods plus any freight.
- 1 Goods will not be accepted for return other than in accordance with clause 9.2 above.
- The Trade Practices Act 1974 (Cth) (“TPA”) and Fair Trading Acts (“FTA”)
- 1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA (including the Fair Trading Act 1987 (WA)) in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
- 1 For Goods not manufactured by PERTH HYPNOTHERAPIST, the warranty is the current warranty provided by the manufacturer of the Goods.
- 2 PERTH HYPNOTHERAPIST is not bound by nor responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
- Intellectual Property and Confidential Information
- 1 Unless expressly agreed by PERTH HYPNOTHERAPIST or stated in the Terms and Conditions, all existing or future Intellectual Property is the property of the Licensor.
- 2 The Customer must not, without the prior written consent of PERTH HYPNOTHERAPIST, disclose any Confidential Information or permit any Confidential Information to be disclosed by a third party.
- 3 The Customer may disclose Confidential Information pertaining to the Agreement:
(a) if legally compelled to do so; or
(b) if it is necessary to disclose such to the Customer’s professional advisors (e.g. lawyers, accountants etc) for the purpose of obtaining professional advice, provided that the Customer is liable for any disclosure of the Confidential Information by its professional advisors.
- 4 The Customer (including its employees, agents and advisors) must, if required by PERTH HYPNOTHERAPIST, execute a suitable confidentiality agreement/deed.
- 5 The Customer must, upon demand, return to PERTH HYPNOTHERAPIST all Confidential Information.
- 6 This Clause 13 will survive the termination of this Agreement.
- Default & Consequences of Default
14.1 Interest on overdue invoices accrues daily from the date when payment becomes due, until the date of payment, at a rate of twelve percent (12%) per calendar month and such interest compounds monthly at such a rate after as well as before any judgement.
14.2 If the Customer defaults in payment of any invoice when due, the Customer indemnifies PERTH HYPNOTHERAPIST from and against all costs and disbursements incurred by PERTH HYPNOTHERAPIST in pursuing the debt including legal costs on a solicitor and own client basis and any collection agency costs incurred by PERTH HYPNOTHERAPIST.
14.3 Without prejudice to any other remedies PERTH HYPNOTHERAPIST may have, if at any time the Customer is in breach of any obligation (including those relating to payment), PERTH HYPNOTHERAPIST may suspend or terminate the supply of Goods and/or Services to the Customer and any of its other obligations under the Agreement. PERTH HYPNOTHERAPIST is not liable to the Customer for any Loss the Customer suffers because PERTH HYPNOTHERAPIST has exercised its rights under this clause 14.3.
14.4 In the event that:
(a) any money payable to PERTH HYPNOTHERAPIST becomes overdue, or in the opinion of PERTH HYPNOTHERAPIST the Customer will not be able to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors or makes an assignment for the benefit of its creditors;
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any assets of the Customer, then, without prejudice to PERTH HYPNOTHERAPIST’ other remedies at law:
(d) PERTH HYPNOTHERAPIST is entitled to cancel all or part of any order made by or for the Customer which remains unperformed; and
(e) all amounts owing to PERTH HYPNOTHERAPIST are, whether or not due for payment, immediately due and payable.
15. Security And Charge
15.1 Despite anything to the contrary contained herein or any other rights which PERTH HYPNOTHERAPIST may have howsoever:
(a) Where the Customer is the owner of land, realty or any other property/asset or interest capable of being charged, the Customer agrees to mortgage and/or charge all of its interest in the said land, realty or any other property/asset or interest to PERTH HYPNOTHERAPIST or PERTH HYPNOTHERAPIST’ nominee to secure all monetary obligations payable under the Agreement as well as the faithful performance of the Customers other obligations under this Agreement. The Customer acknowledges and agrees that PERTH HYPNOTHERAPIST (or PERTH HYPNOTHERAPIST’ nominee) is entitled to lodge where appropriate registered security(ies) (including registered mortgages, registered charges and absolute caveats), which registered security(ies) must be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) Should PERTH HYPNOTHERAPIST elect to proceed in any manner in accordance with this clause 15 and/or its sub-clauses, the Customer indemnifies PERTH HYPNOTHERAPIST from and against all costs and disbursements of PERTH HYPNOTHERAPIST including legal costs on a solicitor and own client basis.
(c) The Customer agrees to irrevocably nominate constitute and appoint PERTH HYPNOTHERAPIST or PERTH HYPNOTHERAPIST’ nominee as the Customer’s true and lawful attorney to perform all necessary acts and sign any documents to give effect to the provisions of this clause 15.
16.1 PERTH HYPNOTHERAPIST may cancel the Agreement or any other contract to which these Terms and Conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice PERTH HYPNOTHERAPIST must repay to the Customer any sums paid in respect of the Price.
16.2 PERTH HYPNOTHERAPIST is not liable for any Loss whatever arising from such cancellation under clause 16.1.
16.3 In the event that the Customer cancels delivery of Goods or provision of Services, the Customer is liable for any Loss incurred by PERTH HYPNOTHERAPIST (including, but not limited to, any loss of profits) up to the time of cancellation.
17. Privacy Act 1988 (Cth)
17.1 The Customer agrees for PERTH HYPNOTHERAPIST to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by PERTH HYPNOTHERAPIST.
17.2 The Customer agrees that PERTH HYPNOTHERAPIST may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Customer;
(b) to notify other credit providers of a default by the Customer;
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the credit worthiness of the Customer.
17.3 The Customer consents to PERTH HYPNOTHERAPIST being given a consumer credit report to collect overdue payment on commercial credit pursuant to Section 18K(1)(h) of the Privacy Act 1988 (Cth).
17.4 The Customer agrees that Personal Data provided may be used and retained by PERTH HYPNOTHERAPIST for the following purposes and for other purposes as is agreed between the Customer and PERTH HYPNOTHERAPIST or required by law from time to time:
(a) provision of Services and/or Goods;
(b) marketing of Services and/or Goods by PERTH HYPNOTHERAPIST, its agents or distributors in relation to the Services and Goods;
(c) analysing, verifying and/or checking the Customers credit, payment and/or status in relation to provision of Services and/or Goods;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and
(e) enabling the daily operation of the Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Services and/or Goods.
17.5 PERTH HYPNOTHERAPIST may give, information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
18. Right of PERTH HYPNOTHERAPIST to Dispose of Unpaid Goods
18.1 In the event that:
(a) PERTH HYPNOTHERAPIST retains possession or control of the Goods;
(b) payment of the Price is due to PERTH HYPNOTHERAPIST;
(c) PERTH HYPNOTHERAPIST has made demand in writing of the Customer for payment of the Price in terms of this contract; and
(d) PERTH HYPNOTHERAPIST has not received the Price of the Goods, then, whether the property in the Goods has passed to the Customer or has remained with PERTH HYPNOTHERAPIST, PERTH HYPNOTHERAPIST may dispose of the Goods and may claim from the Customer the Loss to PERTH HYPNOTHERAPIST on such disposals.
19. Implied Terms
19.1 Any condition, term or warranty which would otherwise be implied in the Agreement is hereby excluded to the full extent permitted by law.
19.2 Where legislation implies in the Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty is deemed to be included in the Agreement. However, the liability of PERTH HYPNOTHERAPIST for any breach of such condition or warranty is limited, at the absolute discretion of PERTH HYPNOTHERAPIST, to one or more of the following:
(a) if the breach relates to the Goods:
(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair of such 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) if the breach relates to the Services:
(i) the supplying of the Services again; or
(ii) the payment of the cost of having the Services supplied again.
20.1 Where the Customer is a trustee of a trust (“the Trust”):
(a) the Customer warrants that it has full power and authority for the benefit purposes and objects of the Trust to agree to these Terms and Conditions on behalf of the Trust and that the Customer is bound by the Agreement both personally and in its capacity as trustee of the Trust;
(b) the Customer confirms that it will be liable in its capacity as trustee of the Trust for the Price and/or any Loss, and in addition, the assets of the Trust are available to meet payments under the Agreement; and
(c) the Trust is bound by the Customer entering into the Agreement.
21.1 If any provision of the Agreement or these Terms and Conditions is invalid, void, illegal or unenforceable then that provision is severed to the minimum extent required and the validity, existence, legality and enforceability of the remaining provisions are not affected, prejudiced or impaired.
21.2 The Agreement and these Terms and Conditions are governed by and construed in accordance with the laws of the State of Western Australia and the Commonwealth of Australia (as applicable). The Agreement and these Terms and Conditions are subject to the jurisdiction of the courts of the State of Western Australia and the Commonwealth of Australia.
21.3 PERTH HYPNOTHERAPIST is under no liability whatever to the Customer for any Loss suffered by the Customer arising out of a breach by PERTH HYPNOTHERAPIST of the Agreement or these Terms and Conditions.
21.4 In the event of any breach of the Agreement by PERTH HYPNOTHERAPIST, the remedies of the Customer are limited to damages which under no circumstances will exceed the Price of the Goods.
21.5 The Customer is not entitled to set-off against or deduct from the Price any sums owed or claimed to be owed to the Customer by PERTH HYPNOTHERAPIST.
21.6 PERTH HYPNOTHERAPIST may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
21.7 PERTH HYPNOTHERAPIST reserves the right to review the Agreement or these Terms and Conditions at any time. If, following any such review, there is to be any change to the Agreement or these Terms and Conditions, then that change takes effect from the date on which PERTH HYPNOTHERAPIST notifies the Customer of such change.
21.8 Neither party is liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
21.9 The failure by PERTH HYPNOTHERAPIST to enforce any provision of the Agreement or these Terms and Conditions is not a waiver of that provision, nor does it affect the right of PERTH HYPNOTHERAPIST to subsequently enforce that provision.