Terms and conditions
1. DEFINITIONS
"Malepower" means Tongji Herbal Australia Pty Ltd, a company selling products to the Customer as identified in Malepower's Quotation or Invoice.
"Customer" means the person or legal entity identified in Malepower's Quotation or Invoice.
"Contract" means a contract for sale by Malepower to the Customer of the products and/or services incorporating these Terms and Conditions.
"Order Confirmation" means formal acknowledgement of Product ordered by Customer, sent by Malepower.
"Price" means the price as per Malepower Quotation and Order Confirmation and the latter shall have precedence.
"Product(s)" means the products as described in Order Confirmation and service offerings.
"Service Offering (s)" means the different service options offered by Malepower for the Products or any part of them and for varying periods, as described in Malepower's published literature, including but not limited to Malepower's Invoice and/or Malepower's Service Description.
"Third Party Products" means products other than products sold by Malepower.
2. FORMATION OF CONTRACT
2.1 No Contract shall come into existence until the Customer's order has been accepted by Malepower and such acceptance has been received by the customer. The Contract shall be deemed to be concluded at the time and place where such acceptance is received by the Customer. The Customer warrants that it is buying for its own use only and not for re-sale purposes.
2.2 The Products sold and/or services rendered are subject to these Terms and Conditions to the exclusion of any other terms and conditions stipulated or referred to by Customer. The Customer acknowledges that it is aware of the contents of and agrees to be bound by these Terms and Conditions. Neither Malepower's acknowledgment of a purchase order nor its failure to object to conflicting, different, or additional terms and conditions in a purchase order shall be deemed an acceptance of such terms and conditions or a waiver of the provisions hereof.
2.3 These Terms and Conditions are subject to the laws of Australia including without limitation the Trade Practices Act 1974 (the Act).
3. ORDERS, PRICE AND PAYMENT
3.1 Unless credit terms have been expressly agreed by Malepower, payment for the Products and/or services shall be made in full before physical delivery of the Products and/or services.
3.2 The Customer shall pay for all shipping and handling charges.
4. TITLE AND RISK
Title to and risk in the Products shall pass to the Customer upon delivery of the Products to Customer.
5. DELIVERY
5.1 Malepower shall deliver the Products to the place of delivery designated by the Customer and agreed to by Malepower.
5.2 Any dates quoted by Malepower for the delivery of the Products are approximate only and shall not form part of the Contract. Malepower shall not be liable for any delay in delivery of the Products and/or services, howsoever caused.
5.3 Malepower may revise and/or discontinue products at any time without notice as part of Malepower's policy of on-going product up-date and revision.
6. ACCEPTANCE OF PRODUCTS
6.1 Unless the Customer notifies Malepower to the contrary on the day of delivery and such notification is confirmed in writing within two (2) days, the Products shall be deemed to have been accepted by the Customer as being in good condition and in accordance with the Contract. The Customer shall not be entitled to withhold payment of all or any of the Price of the Products whilst any claim is being investigated by Malepower.
6.2 New Products purchased under these Terms and Conditions directly from Malepower by an end-user Customer may be returned by Customer up to fifteen (15) days from the date of the invoice for a replacement, refund or credit of the purchase price in accordance with Malepower's "Return Policy" in effect in Australia on the date of the invoice. The refund or credit will not include any shipping and handling charges forming part of the purchase price. Products returned under Malepower's "Return Policy" must be received by Malepower in as-new or as-shipped-by-Malepower condition, including conformance to invoiced specification, and all of the manuals, diskettes, CDs, power cables and other items included with a Product must be returned with it.
7. WARRANTY
7.1 Unless specified otherwise and in addition to any rights the Customer may have under statute, Malepower warrants to the Customer that products sold will from invoice date be free from defects in materials and workmanship affecting normal use for a period of one (1) year.
7.2 This Standard Warranty does not cover damage, fault, failure or malfunction due to external causes, including accident, abuse, misuse, problems with electrical power, servicing not authorized by Malepower, usage and/or storage and/or installation not in accordance with product instructions, failure to perform required preventive maintenance, normal wear and tear, act of God, fire, flood, war, act of violence or any similar occurrence; Products with missing or altered Serial Number; any attempt by any person other than Malepower personnel or any person authorised by Malepower, to adjust, repair or support the Products and problems caused by use of parts and components not supplied by Malepower.
7.3 The Standard Warranty does not cover any items that are in one or more of the following categories: external devices; accessories or parts added to the Product after the Product is shipped from Malepower; any protruding parts such as glass fiber rod, eye protectors, protective covering lids and etc.
7.4 During the Standard Warranty period as the case may be and beginning on the invoice date, Malepower will repair or replace products returned to Malepower’s facility. Customer must prepay shipping and transportation charges, and insure the shipment or accept the risk of loss or damage during such shipment.
8. SERVICE AND TECHNICAL SUPPORT
Malepower will provide general service and technical support to the Customer in accordance with the then-current service and technical support policies in effect. Service and support offerings may vary from product to product. Malepower has no obligation to provide service or support until Malepower has received full payment for the Product or service/support contract for which service or support is requested.
9. LIABILITY
9.1 Malepower shall not be liable in contract or in tort for any loss or damage suffered and consumer rights are limited to those set out in these Terms and Conditions and under statute.
9.2 To the extent permitted by law and subject to clause 9.6, Malepower's total liability herein in respect of each event or series of connected events shall not exceed the total price paid for the purchase of products and/or services under these Terms and Conditions.
9.3 The Customer shall indemnify Malepower and keep Malepower fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by any negligent act or omission or willful misconduct of the Customer, its employees, agents or sub-contractors or by any breach of its contractual obligations arising out of these Terms and Conditions.
9.4 To the extent permitted by law, Malepower and Customer agree that Malepower will not be liable for Products not being available for use. Malepower shall not be liable to the Customer for any incidental, indirect, special or consequential damages b) loss of opportunity, c) loss of revenue, d) loss of profit or anticipated profit, e) loss of business f) loss of contracts, g) loss of goodwill, h) loss arising out of business interruption, i) loss arising out of or in connection with pollution of contamination arising out of or in connection with the purchase, use or performance of Products or services, even if Malepower has been advised of their possibility.
9.5 To the extent permitted by law, any typographical, clerical or other error or omission in sales literature, quotation, price list, acceptance of offer, invoice or other documents or information issued by Malepower shall be subject to correction without any liability on the part of Malepower.
9.6 Under the Act, where implied conditions and warranties cannot be excluded, Malepower's liability for breach of such conditions and warranties (other than a condition or warranty implied by section 69 of the Act) shall be limited, at Malepower's option, to :
(a) in the case of Products, the replacement of the Products or the supply of equivalent Products; the repair of such Products; the payment of the cost of replacing the Products or of acquiring equivalent Products; or the payment of the cost of having the Products repaired; OR
(b) in the case of services, the supplying of services again; or the payment of the cost of having services supplied again.
10. FORCE MAJEURE
Neither party shall be liable for any delay in performing any of its obligations under these Terms and Conditions if such delay is caused by circumstances beyond the reasonable control of the party so delaying, and such party shall be entitled to a reasonable extension of time for the performance of such obligations.
11. GOVERNING LAW
These Terms and Conditions shall be governed by and construed in accordance with the laws of Queensland and shall be subject to the non-exclusive jurisdiction of the courts of Queensland.
12. GENERAL
12.1 The Customer shall not assign or otherwise transfer any Contracts or any of its rights and obligations hereunder whether in whole or in part without the prior written consent of Malepower. Any such unauthorized assignment shall be deemed null and void.
12.2 If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provisions in question shall not be affected thereby.
12.3 No Waiver No failure or delay on Malepower's part in exercising any power or right under this Agreement operates as a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise, or the exercise of any other power or right.