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Living Earth Hulca Bag Terms and Conditions
1. Introduction
1.1. Please read these terms and conditions (Terms) carefully because they are a legally binding contract between you and Integrated Waste Services Pty Ltd ACN 008 048 922 (IWS, us, we) and sets out the basis upon which IWS will sell and supply a range of Living Earth products to you (Products).
1.2. Ordering via the IWS website or using the Products is deemed to constitute your full acceptance of these Terms. If you do not accept these Terms in their entirety then you must not order Products from IWS or use any Products.
2. Ordering
1.3. You may be required to create an account to submit an order for the Products (Order), or use certain other methods notified by us to you in order to purchase the Products. You must be at least 18 years old to create an account and to purchase the Products, and you must provide truthful and accurate information about yourself when creating an account. You must not share your account with anyone else.
1.4. If your information changes at any time, you must promptly update your account to reflect those changes, as IWS will use the information you provide to communicate with you and validate pricing.
1.5. IWS will not be liable for any loss caused to you or a third party due to incorrect information provided by you in relation to your account.
1.6. By submitting an Order, you are making an offer to purchase Products from IWS, and you must make full payment to IWS for all Products ordered at the time of submitting an Order. Subject to clause 2.5, IWS is deemed to have accepted the Order on receipt of all amounts payable in relation to the Order, following which, IWS will send you an email notification confirming your Order.
1.7. We reserve the right to delay, or cancel any Order or part of an Order at any time prior to delivery. If we delay an Order, we will notify you of an updated delivery date as soon as practicable. If we cancel an Order, we will notify you of the cancellation as promptly as possible thereafter, and provide you with a full refund within 14 days of the date of cancellation. Upon payment of such refund, the Order will be deemed complete.
3. Price and Payment
1.8. The price payable by you for the Products is as quoted on the website at the time of your Order, unless expressly agreed otherwise in writing by IWS. All prices are in Australian dollars and include Goods and Services Tax (GST), unless otherwise stated.
1.9. We will calculate a delivery fee for Products you order based on the information you provide to IWS. IWS reserves the right to vary the price of delivery if the information you have provided is inaccurate or misleading. If we cannot deliver your Order in accordance with the delivery instructions you provide, we will not complete the delivery and will notify you as promptly as possible of any additional delivery charge. Delivery of the order will not be completed until payment for any such additional delivery charge is received by IWS in cleared funds.
1.10. Payment for Orders may be made by credit or debit card or by such other method as agreed in writing by IWS. Surcharges for online payments may apply, which will be passed onto you at cost and payable at the time of submitting an Order.
4. Delivery
4.1. For the purposes of this clause 4, Delivery Point means the delivery location as nominated by you on an Order.
4.2. Risk of loss or damage to the Products passes to you on delivery of the Products to the Delivery Point, or at the point at which delivery is deemed to have occurred in accordance with clause 4.7 or clause 4.8. Delivery may occur even if you are not present at the Delivery Point at the time of delivery.
4.3. We will ensure that the delivery of the Products is performed with due care and skill. In usual circumstances, we aim to complete the majority of Orders within ten working days of acceptance of the Order pursuant to clause 2.4, however you acknowledge and agree that any period or date for delivery stated by us is intended as an estimate only and is not a contractual commitment. IWS will make all reasonable efforts to have the Products delivered to you on the date stated by IWS or otherwise agreed with you, but IWS shall not be liable to your or any third party for any failure or delay in delivery or supply for any reason.
4.4. IWS only delivers the Products in metropolitan Adelaide. An Order may be cancelled if the Delivery Point is outside metropolitan Adelaide and/or IWS is of the view that the Products cannot be safely delivered to the Delivery Point nominated in the Order. If an Order is cancelled, you will be refunded all amounts paid to IWS, in accordance with clause 2.5.
4.5. You are responsible for nominating a suitable and safe Delivery Point in line with our delivery instructions, and any applicable laws. If the Delivery Point is not a property within your exclusive control, then you are responsible for obtaining the necessary permissions to enable IWS to lawfully deliver the Products to the Delivery Point.
4.6. If IWS or its delivery partners enter your property to deliver the Product, such entry is at your risk, and you indemnify IWS and its delivery partners for any loss or damage suffered in connection with the delivery of Products, including any Delivery Point being unsafe or unsuitable.
4.7. IWS or the delivery partner will make the final decision as to the appropriate Delivery Point, after assessing the site and relevant circumstances at the time of delivery. Without limiting the operation of clause 4.6, if IWS or the delivery partner determines that the Products cannot be safely unloaded at the nominated Delivery Point due to obstacles or safety issues relating to the unloading process or lack of space, IWS or the delivery partner may in its sole discretion, and at your risk and expense:
a. contact you to agree a change to your nominated Delivery Point; or
b. deliver your Order in the vicinity of the relevant Delivery Point if it is practical and safe to do so; or
c. decide not to leave the Products at the Delivery Point (including where we have been unable to contact you to change the Delivery Point), and instead arrange to store the Products at an alternative location pending delivery.
4.8. If IWS elects to store the Products pending delivery in accordance with clause 4.c, then we will promptly contact you to arrange (at your election):
d. delivery of the Product at an alternative Delivery Point, noting that additional charges will apply in relation to the cost of the making the delivery at the alternative Delivery Point; or
e. for you to collect the Products from the relevant storage location within 10 days from the original delivery date (Last Collection Date).
4.9. If you elect to collect the Products from a storage location in accordance with clause 4.e, but fail to collect the Products by the Last Collection Date, or if you otherwise fail to adequately make an election in accordance with clause 4.8 (including where we are unable to contact you), then delivery of the Order will be deemed to have occurred on the day following the Last Collection Date, and IWS may in its discretion dispose of, or otherwise deal with, the Products in any manner it determines, and you will not be entitled to take possession of the Products, or to a refund for that Order.
5. Variation, Replacement, Return or Refund
4.10. Subject to the Australian Consumer Law, unless we expressly agree otherwise, no refunds will be given for a change of mind. Refunds are processed in accordance with clause 2.5.
4.11. Subject to the Australian Consumer Law, and unless we agree in writing, you cannot vary or cancel an Order once it has been accepted in accordance with clause 2.4
4.12. On delivery, if any part of an Order is defective, you can ask us to remedy the defect by giving full details of your claim to IWS via the website www.iwsgroup.com.au or by sending an email to info@iwsgroup.com.au. Notice must be given as soon as practicable and in any event within 12 hours of delivery of the Products. IWS reserves the right to visit you and inspect your use and storage of the Products to verify your claims.
4.13. For the purposes of these Terms, Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth) as amended from time to time.
6. Disclaimer and Liability
6.1. For the purposes of this clause 6, Consumer Guarantee means any right or statutory guarantee under Division 1 of Part 3-2 of the Australian Consumer Law.
6.2. We are not responsible for anything outside our reasonable control. For example, we cannot control the impacts of weather or the speed of microbial digestion, so sometimes the Products take longer than usual to be ready, in which case clauses 2.5 and / or 4.3 may apply.
6.3. As the Products involve naturally composted material, there may be minor variations between batches. Additionally, as the Products contain natural and organic materials, all our claims and responsibilities in relation to the Products are as at the date of delivery only, and if you do not use the Products promptly they may be impacted by temperature, moisture, and the passage of time.
6.4. In supplying the Order, to account for settlement that may occur during delivery and to reduce loss or spillage of the Product:
a. we will fill the packaging with loose volume that meets or exceeds the quantity specified in your Order; and/or
b. we may provide larger packaging (the total volume of which exceeds the quantity that you have specified in your Order) to reduce loss or spillage.
6.5. Without limiting or otherwise derogating from clause 6.10, our liability in connection with any Order is to you only, and not to any other person or entity. Except where law expressly requires otherwise, the aggregate liability of IWS shall not exceed the total amount of the Order you paid for the Product under which such liability arose.
6.6. To the fullest extent permitted by law, IWS will not be liable under any circumstances whatsoever for any consequential, indirect, incidental or special damages, loss of profits or injury, loss of revenue or income, loss of business, contracts or opportunities however caused arising in any way out of use of the Products or for the surface of or anything underneath the surface of any area we traverse in connection with delivery of the Products.
6.7. For the avoidance of doubt, IWS shall not be liable for any loss or damage suffered by you arising from the late or non-delivery of the Products, including arising from accident or breakdown during loading, in transit or delivery.
6.8. Nothing in these terms is intended to have the effect of excluding:
a. any Consumer Guarantees; or
b. any other applicable law that cannot be excluded, restricted or modified by agreement of the parties,
(collectively Non-Excludable Rights).
6.9. Subject to clause 6.8a and to the maximum extent permitted by law, IWS excludes any term, condition, warranty, representation, guarantee or undertaking that may otherwise be implied into this agreement by legislation, common law, equity, trade, custom or usage. This limitation does not apply to limit IWS’ liability in respect of the Non-Excludable Rights.
6.10. Subject to clause 6.8a and to the maximum extent permitted by law, the liability of IWS in respect of any defective goods, breach of or failure to comply with any Non-Excludable Right (which cannot be excluded but which can be limited) or for any other loss or claim however arising, is limited to the following:
a. the replacement of the Products or the supply of equivalent products;
b. the repair of the Products;
c. the payment of the cost of replacing the Products or of acquiring equivalent products;
d. the payment of the cost of having the Products repaired; or
e. where the Purchaser is not a ‘consumer’ for the purposes of the Australian Consumer Law, provision of a credit note.
7. IP and Indemnity
6.11. We are delighted by your interest in the Products, but nothing in these Terms confers on you any rights, interest or title to IWS’ intellectual property, any intellectual property comprised in the Products (including any trade marks) or any confidential information of IWS (including trade secrets).
6.12. You must not use or reproduce any part of our branding, packaging, trade marks, information, or these Terms without our express written permission. For the avoidance of doubt this means you must not re-use, re-sell, or re-fill packaging displaying the Products’ or IWS’ name or branding.
6.13. We fully reserve all the legal rights that we have, and all the moral rights that our employees, personnel and/or contractors may have, in the intellectual property comprised in, or arising in connection with, the Products, whether registered or not, or under licence, or not. By submitting an Order, you indemnify IWS and its affiliates against any liability arising from any misuse of the intellectual property comprised in, or arising in connection with, the Products.
8. Privacy
6.14. Data protection and confidentiality are important to IWS. All personal information will be collected, retained and used with in accordance with the Privacy Act 1988 (Cth) and the IWS privacy policy found at https://www.iwsgroup.com.au/privacy-policy/. You may access and correct any personal information we hold about you in accordance with the Privacy Act 1988 (Cth).
6.15. If we accept orders through systems other than our website, then, throughout these Terms, unless the context otherwise requires, a reference to ‘website’ will also refer to such other ordering systems.
9. Construction
6.16. The supply of the Products is made subject to the health and safety information in relation to the Product found at https://www.iwsgroup.com.au/living-earth-compost-mulches. You indemnify IWS and its affiliates for any loss we or you may suffer as a result of your failure to comply with these Terms including the health and safety information, delivery instructions, and handling and application procedures relating to the Products and published by IWS.
6.17. Subject to clause 9.1, these Terms are the entire contract between you and IWS in relation to the Products.
6.18. IWS will carry out all its responsibilities in compliance with applicable Australian laws and regulations relevant to the supply of the Products, including but not limited to AS 4454:2012 (composts, soil conditioners and mulches).
6.19. A waiver of a right, remedy or power must be in writing and signed by the party giving the waiver. A party does not waive a right, remedy or power if it delays in exercising, fails to exercise or only partially exercises that right, remedy or power. A waiver given by a party:
a. is only effective in relation to the particular obligation or breach in respect of which it is given and is not to be construed as a waiver of that obligation or breach on any other occasion; and
b. does not preclude that party from enforcing or exercising any other right, remedy or power under this agreement nor is it to be construed as a waiver of any other obligation or breach.
6.20. You expressly agree that the exclusive jurisdiction for any claim or dispute under these Terms and or your use of the Products will take place in Adelaide South Australia, in accordance with its courts and laws.
6.21. If a provision of these Terms is wholly or partly void, illegal or unenforceable, that provision or part must, to that extent, be treated as deleted from these Terms for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of these Terms.
6.22. IWS shall not be liable for any delay or for the consequences of any delay in the performing or not performing its obligations under these Terms if any such delay is due to any cause whatsoever beyond its reasonable control. IWS shall be entitled to a reasonable extension of time for performing such obligations.
6.23. Any notice to under these Terms must be in writing and shall be sufficiently given to the contact person for the recipient if (i) delivered by hand to the recipient’s address (deemed to be received at the time of delivery); (iii) sent by prepaid post (deemed to be received on the third business day after posting (within Australia)); or (iv) by email (deemed to be delivered one hour after the email was sent, unless the sender receives an automated message that the email has not been delivered). The contact details for each party will be detailed in the email confirming the Order (or such other details as the Parties may notify to each other in writing from time to time). For these purposes, a business day is Monday to Friday (excluding all public and statutory holidays in South Australia) between the hours of 9.00 am and 5.00 pm Adelaide time.