Terms and Conditions - Morph-It Attachments

Website and purchase terms and conditions

Morph-It Attachments Pty Ltd ACN 641 803 394 trading as Morph-It Mini Digger Attachments (we, us, our) own and operate this website (Website). Access to and use of this Website, and the services available through this Website (collectively, Services) is subject to the following terms, conditions and notices (Terms). By using this Website, you agree to all of these Terms.

This bit is really important!
1. Some parts of these Terms may substantially prejudice your interests. For example:
  1. we can choose not to deliver a Purchase Product you Order, but we will refund you in full the Price, Delivery Charges and Other Charges that you have paid (see clause 14);
  2. we will not be liable and you have to pay for all our Loss in connection with your or another’s use of the Purchase Product in most circumstances (see clause 19);
  3. we also limit our liability in respect of the Purchase Product and the Website generally (see clauses 5 & 15); and
  4. our maximum liability will be the Price you pay us for the Purchase Product (see clause 20.4);
  5. we can change the Price but will give you a chance to cancel the Order in most circumstances (see clause 10).
2. It’s important you understand how these Terms and all other parts of these Terms affect you. If you do not, you must not purchase any Products.
How may you use the Website?
1. You are permitted to access and use the Website:
  1. to receive Services;
  2. to offer to purchase our Products;
  3. for any other purpose that can reasonably be taken as the purpose for which we make the Website available to you,

(Approved Purpose).

You must not use the Website, or the Content for any purpose other than the Approved Purpose.
What can you not do with the Website?
1. You must not:
  1. create derivative works from the Content;
  2. reproduce or distribute the Content in any material form;
  3. re-transmit the Content by any medium of communication;
  4. upload or repost the Content to any other site on the Internet;
  5. include the Content with other material on any other website or as part of any other software;
  6. modify the Website or Content;
  7. “frame” the material on the Website with other material on any other website;
  8. use any device, software or other instrumentality to interfere or attempt to interfere with the proper working of the Website including, without limitation, through the use of Malicious Code;
  9. except as expressly permitted by these Terms, and except to the extent that applicable laws, including the Copyright Act 1968 (Cth), prevent us from restraining you from doing so:
    1. reproduce, copy, make error corrections to or otherwise modify or adapt the Content, Website or layout of the Website; or
    2. de-compile, disassemble or otherwise reverse engineer the Website or permit any third party to do so; or
    3. modify or copy any computer software or code in the Website.
2. You must comply with all laws and not:
  1. commit or encourage a criminal offense;
  2. transmit or distribute a virus, trojan, worm, logic bomb or any other material which is malicious, technologically harmful, in breach of confidence or in any way offensive or obscene;
  3. hack into any aspect of the Website or Service, corrupt data or cause annoyance to other users;
  4. infringe the rights of any other person’s proprietary rights;
  5. send any unsolicited advertising or promotional material, commonly referred to as “spam”; or
  6. attempt to affect the performance or functionality of any computer facilities of or accessed through this Website.
Who owns Intellectual Property Rights in the Website?
1. We or our licensors own all Intellectual Property Rights in the Website, Content and software in connection with the Website. All such rights are reserved and your access to the Website or these Terms do not affect them.
2. You may store, print and display the content supplied solely for your own personal use. You are not permitted to publish, manipulate, distribute or otherwise reproduce, in any format, any of the Content supplied to you or which appears on this Website nor may you use any such Content in connection with any business or commercial enterprise.
3. The Content is provided for personal use only and may not be:
  1. re-sold or re-distributed in any material form;
  2. stored in any storage media; or
  3. re-transmitted in any media,

without our prior written consent.

Do we give any warranties about the Website or Products, and when do we exclude liability?
1. Subject to Non-Excludable Provisions, we do not warrant, guarantee or make any representation:
  1. that the Content, or the server that makes the Website available, is free of Malicious Code;
  2. that the functions contained in the Website will operate uninterrupted or are error-free;
  3. about the accuracy, reliability, timeliness or otherwise of any information contained or referred to in the Content; and
  4. about the merchantability, reliability, condition, availability, or fitness for any purpose of any Content, Products, or Services.
2. We are not liable to you for:
  1. errors or omissions in the Content;
  2. delays to, interruptions of or cessation of the Website; or
  3. defamatory, offensive or illegal conduct of any user of the Website.
How should you select a Product?
1. You should take care to ensure you select a Product that suits your needs.
2. Subject to any Non-Excludable Provision, you agree and warrant that:
  1. you have and will make your own assessment of the fitness for purpose and suitability of any Product that you Order;
  2. you do not and will not rely on our skill or judgment nor that of any person by whom any prior arrangements regarding the acquisition of any Product were or will be made; and
  3. you have not made nor will you make known to us or a manufacturer of goods (directly or indirectly) the particular purpose for which you acquire a Product.
What if we buy goods from third parties?
1. If we obtain goods from a third party to carry out your instructions or complete an Order:
  1. we will not be liable for any breach of these Terms if that breach is as a result of or is connected with the supply by a third party of such goods;
  2. we acquire such goods as agent for you not as principal and will have no liability to you regarding the supply of these goods;
  3. any claim by you regarding the supply of such goods must be made directly against that third party; and
  4. you must pay for such goods from the third party if we reasonably request.
2. We give no warranty in respect of any goods that are supplied to you by a third party even where forming part of an Order. Any warranties or other rights will be governed by the terms of supply by that provider to you and relevant laws.
How do you order a Product?
1. You may submit an ‘Order’ to us:
  1. that requests we sell you a Product, and contains a detailed specification of such Product and its parameters (Purchase Product); and
  2. using the Website or any other means we make available to you.
2. If the ‘Price’ for the Purchase Product is:
  1. notified to you at the time you submit your Order (for example, on our Website), then that is the Price for the purposes of these Terms and the Order;
  2. not notified to you:
    1. we will contact you to tell you the Price for the Purchase Product;
    2. if you agree to that Price, then that is the Price for the purposes of these Terms and the Order.
3. Your Order is an offer by you to buy the Purchase Product on these Terms.
4. We may accept or refuse an Order in our absolute discretion.
5. If we accept the Order:
  1. we will notify you in writing and the Order is binding on the parties as at the date of that notice (Acceptance Date);
  2. you must comply with these Terms in respect of that Purchase Product;
  3. the Order is subject to these Terms and the Purchase Product being available.
What do you pay for a Purchase Product?
1. You must pay us the Price and all Delivery Charges and Other Charges for a Purchase Product on the Acceptance Date.
2. If there is a dispute about whether the Price or other amount contemplated by these Terms is payable, you must not withhold the amount in dispute.
3. To the extent permitted by law and subject any express obligation in these Terms, payments under clause 9.1 will not under any circumstances be repayable either wholly or partly by us.
4. We may issue a tax invoice to you for the Price and Delivery Charges and you must pay the Price on the Acceptance Date or as otherwise required by these Terms.
5. The Price may be varied by written agreement of us and you.
6. Without limiting any other of our remedies, if you do not pay the Price and Delivery Charges as required by these Terms, we may withhold the Purchase Product from you until the Price is paid in full.
7. You may not set off against any payment due to us any claims which you may have against us.
Will the Price change?
1. We may change:
  1. the Prices displayed on our Website; and
  2. Delivery Charges, unless it would be unreasonable to do so,

at any time, and to correct pricing or description errors that may inadvertently occur.

The Price at any given time is based on the costs prevailing and the specifications supplied at the time of the Order. Subject to your rights under law we may vary:
1. the Price that you must pay if:
  1. there is any movement in the cost of supplying the Purchase Produce, including any Other Charges; or
  2. we provide you notice of any such variation of Price and you do not tell us in writing that you cancel the Order within 5 Business Days of such notice;
2. the Delivery Charges you must pay if the amount of Delivery Charges increases after the Acceptance Date,

in which case you must pay to us the difference between the Price or Delivery Charges you have paid, and the varied Price or Delivery Charges within 7 days of our demand.

If you tell us in writing that you cancel the Order under clause 10.2(a)(ii), we will refund the Price and Delivery Charges in full.
How do you pay for a Purchase Product?

You must pay for a Purchase Product using a credit or debit card that we accept, or any other way we notify you is an acceptable payment method.

Is GST payable?
1. Unless stated otherwise or by agreement in writing, the Price excludes GST.
2. If GST is payable on any supply made by a party (or any entity through which that party acts) (GST Supplier) under or in connection with these Terms, the recipient of the supply will pay to the GST Supplier an amount equal to the GST payable on the supply.
3. The amount referred to in clause 12.2 must be paid in addition to, and at the same time and in the same manner (without any set-off or deduction) that, the consideration for the supply is to be provided under these Terms.
How will we deliver the Purchase Product?
1. We can deliver anywhere in Australia.
2. We may offer you a choice of delivery methods set out on our Website and you may chose your delivery method as part of the Order. Otherwise, we will select a delivery method in our discretion.
3. All deliveries will receive a delivery tracking number which we will tell you. The tracking number allows you to track the progress of your order by visiting the delivery partner’s website and following the prompts to input your tracking number.
4. Delivery of the Purchase Product does not include installation unless we expressly specify otherwise for a Purchase Product.
When will we deliver the Purchase Product?

We will deliver the Purchase Product at the next available opportunity and delivery times may depend upon availability.

Can you return the Purchase Product?
1. If you are not fully satisfied with your Purchase Product, you can return the undamaged Purchase Product within 14 days of purchase for a full refund of the Price.
2. Subject to any Non-Excludable Provisions, if you return your Purchase Product under clause 15.1 you:
  1. must pay for all delivery costs and expenses to courier the Purchase Product to the address we nominate;
  2. bear the risk of the Purchase Product until we collect the Purchase Product from the courier;
  3. must ensure the Purchase Product is in as new condition and packaged in the manner that we delivered it to you.
When will we not deliver the Purchase Product?
1. There may be occasions where we accept your Order but are unable to deliver the Purchase Product to you. In the event we cannot supply the Purchase Product you ordered, we will notify you, cancel the Order and refund the Price and any Delivery Charges and Other Charges in full without any deduction as soon as reasonably possible. This may include:
  1. when the Purchase Product is unavailable;
  2. if there has been a Purchase Product pricing or description error on our Website;
  3. where we suspect you may have breached these Terms; or
  4. when there is a Force Majeure Event.
2. We will not deliver the Purchase Product until we have received the Price and all Delivery Charges and Other Charges.
When does risk and title pass?
1. Title in the Purchase Product passes from us to you when you pay the Price in full, provided you have complied with these Terms.
2. Risk in the Purchase Product passes from us to you when we make the Purchase Product available for collection by the courier or you.
Is there anything you can or cannot do with the Purchase Product?

You must:

not use the Purchase Product for any purpose other than which it is provided for;
use the Purchase Product according to any warning labels, user manuals, or instructions;
only use the Purchase Product safely and in a manner safely compatible with the specifications and design of the Purchase Product;
satisfy yourself that the Purchase Product is suitable, safe and appropriate for your intended use.
Who owns the IP in the Purchase Product?

The specification and design of any Purchase Product (including all Intellectual Property Rights subsisting in the Purchase Product) is our property unless otherwise provided. Except to the extent permitted by law, you must not attempt to reverse engineer the Purchase Product.

How is our liability limited?
1. To the extent permitted by law each party excludes any terms, conditions or warranties that might otherwise by implied into these Terms.
2. Subject to clause 20.3, these Terms do not exclude, restrict or modify:
  1. the application to these Terms of an applicable provision of a Non-Excludable Provisions;
  2. a right conferred by a Non-Excludable Provision; and
  3. our liability:
    1. for a breach of a condition or warranty implied by a Non-Excludable Provision; or
    2. to indemnify or compensate you or other persons arising under a Non-Excludable Provision.
3. To the extent permitted by law, our liability under a Non-Excludable Provision is limited, at our option, to:
  1. in the cases of goods:
    1. the replacement of the goods or the supply of equivalent goods;
    2. the repair of the goods;
    3. the payment of the cost of replacing the goods or of acquiring goods; or
    4. the payment of the cost of having the goods repaired; and
  2. in the cases of services:
    1. the supplying of the services again; or
    2. the payment of the cost of having the services supplied again.
4. Notwithstanding anything to the contrary in these Terms and to the extent permitted by law, our entire liability under these Terms, regardless of the basis on which you are entitled to claim damages (including breach, negligence, misrepresentation or other contract, equitable or tort claim), will be limited in the aggregate for all claims and causes of action to actual direct damages in an amount not exceeding the Price actually paid by you to us under these Terms.
5. In no event will we be liable for:
  1. any Loss if and to the extent caused by your failure to perform your responsibilities or in connection with your or a third party’s use of the Purchase Product;
  2. Loss in connection with your use of the Website or reliance on the Content;
  3. any Consequential Loss, including in connection with these Terms, a Purchase Product or the Services;
  4. your failure to satisfy yourself that the Purchase Product is suitable, safe and appropriate for your intended use;
  5. defects or depreciation in the Purchase Product caused by wear and tear, accidents, corrosion, dampness, abnormal conditions or effects.
6. You indemnify and hold us and our Associates harmless, against any Loss suffered by us or our Associates in connection with:
  1. the performance or non-performance of your obligations under these Terms;
  2. a breach of any law by you;
  3. Loss arising from death or personal injury in connection with the Purchase Product;
  4. Loss arising from any property damage in connection with the Purchase Product;
  5. any alternations to the Purchase Product that we did not make or authorise in writing;
  6. damage or failure caused by unusual or non-recommended use, misuse or application of the Purchase Product;
  7. Loss suffered by you by circumstances outside of our control.
7. Each indemnity in these Terms is a continuing obligation, separate and independent from your other obligations and survives the termination of these Terms.
8. It is not necessary for us or our Associates to incur expense or make a payment before enforcing any indemnity conferred by these Terms.
9. Your obligation to indemnify us will reduce proportionally to the extent our gross negligence or wilful misconduct contributed to the Loss referred to in clause 20.6.
What jurisdiction will a dispute be heard in?
1. These Terms is governed by the law of Victoria, Australia.
2. You and we submit to the exclusive jurisdiction of the courts of Victoria and the Federal Court of Australia in that jurisdiction, and the courts of appeal from them. You must not object to the jurisdiction of any of those courts on the ground that it is an inconvenient forum or that it does not have jurisdiction.
How can we change these Terms?

We may amend these Terms from time to time. We will endeavour to provide reasonable notice of any changes to these Terms. You agree that reasonable notice is by us including a notice on our Website for at least 30 days that these Terms have changed. Your continued use of the Website will represent an agreement by you to be bound by these Terms as amended.

What happens if there is a Force Majeure Event?

We are not liable for a breach of these Terms to the extent that the breach is caused by a Force Majeure Event and for the period that those circumstances continue, if we promptly notify you and try to remedy the cause quickly.

What else should I know?
1. We may without notice to you assign, transfer and/or sub-contract our rights and/or obligations (in whole or in part) under these Terms. You may not assign, transfer, hold on trust or otherwise delegate any of your rights or obligations under these Terms without our prior written consent.
2. Each Order and the supply of Purchase Products by is governed by these Terms. These Terms and the Order constitute the entire agreement between you and us in relation to any Products ordered and supplied through the Website.
3. No failure, delay, relation or indulgence on our part in exercising any power, right or remedy precludes any other or further exercise of that or any other power, right or remedy.
4. If any part of these Terms is unenforceable (including any provision in which we exclude our liability to you) the enforceability of any other part of these Terms will not be affected and all other clauses remain in full force and effect. So far as possible where any clause/sub-clause or part of a clause/sub-clause can be severed to render the remaining part valid, the clause must be interpreted accordingly. Alternatively, you agree that the clause must be rectified and interpreted in such a way that closely resembles the original meaning of the clause/sub-clause as is permitted by law.
What do capitalised terms mean in these Terms?

In these Terms, the following terms have the following meaning:

Acceptance Date: has the meaning given in clause 8.5(a).
Associate:
1. Related Body Corporate of a party;
2. contractor of a party;
3. employee, director, officer, agent or consultant of a party.
Business Day: any day except a Saturday, Sunday or public holiday in Victoria, Australia.
Consequential Loss:
1. loss of, or damage to data;
2. special, incidental, or indirect damages or for any economic consequential damages;
3. loss of profits, business, revenue, goodwill or anticipated saving;
4. loss or liability incurred as a result of a third party claim.
Delivery Charges: any amount, cost or expense in connection with the delivery of the Purchase Product to you, including any insurance, freight or shipping costs as they may vary from time to time.
Force Majeure Event: an act of God, fire, lightning, explosions, flood, subsidence, insurrection or civil disorder or military operations, government or quasi-government restraint or restrictions, expropriation, prohibition, intervention, direction or embargo, strikes, lock-outs or other industrial disputes of any kind and, any other cause whether similar or not to the foregoing, outside of the affected party’s control.
GST: a goods and services tax, or a similar value added tax, levied or imposed under the GST Law, where GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights: all forms of intellectual property rights (whether registered or unregistered) in copyright, designs, patents, trade marks, domain names, trade secrets, know-how, the right to keep confidential information confidential, and all other similar proprietary rights which currently exist and/or are recognised in the future.
Loss: any loss, claim, cause of action, action, liability, damage, cost, charge, expense, outgoing, payment, diminution in value or deficiency of any kind or character, including:
1. liabilities on account of tax;
2. interest and other amounts payable to third parties;
3. legal (on a full indemnity basis) and other expenses incurred in connection with investigating or defending any claim or action, whether or not resulting in any liability and all amounts paid in settlement of any claim or action; and
4. Consequential Loss.
Malicious Code:any malicious or unauthorised code, virus, worm, trojan horse, malware, or program.
Non-Excludable Provision:
1. the Competition and Consumer Act 2010 (Cth) (and the Australian Consumer Law); or
2. any other act or legislative instruments of a state or territory or of the Commonwealth of Australia, or anywhere else in the world the exclusion restriction or modification of which may be void or unenforceable.
Order: has the meaning given by clause 8.1.
Other Charges: sales tax, excise duties, customs duty, transfer duty, GST or any other taxes, duties or charges applicable in respect of the provision of the relevant goods or services.
Price: the price as specified by clause 8.2 as may be amended by clause 10.
Product: any product we advertise or promote that we may provide using the Website or otherwise.
Purchase Produce: has the meaning given in clause 8.1(a).
Related Body Corporate:a related body corporate as defined in the Corporations Act 2001 (Cth).
How will these Terms be interpreted?

If necessary, you should interpret these Terms as follows unless the context requires otherwise:

“you” refers to any person or entity that places an Order with us and agrees (by conduct, notice or otherwise) to be bound by these Terms, including any related company, related party, officer and authorised person of the relevant person;
a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
law means common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them);
the singular includes the plural and vice versa;
the word “person” includes an individual, a firm, a body corporate, a partnership, a joint venture, an unincorporated body or association, or any government agency;
a period of time dating from a given day or the day of an act or event, is to be calculated exclusive of that day;
a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later;
the words “including”, “for example” or “such as” when introducing an example, does not limit the meaning of the words to which the example relates to that example or examples of a similar kind;
time is a reference to Melbourne time;
any thing (including any amount) is a reference to the whole and each part of it.
if an act under these Terms to be done by a party on or by a given day is done after 5.00pm on that day, it is taken to be done on the next day;
if an event under these Terms must occur on a stipulated day which is not a Business Day then the stipulated day will be taken to be the next Business Day;
headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of these Terms.