For that reason these Terms are important and you should ensure that you read them carefully and contact us with any questions before you use the Site or engage with us. You can contact us by email at: email@example.com
By using the Site you acknowledge and agree that you have had sufficient chance to read and understand the Terms and you agree to be bound by them. If you do not agree to the Terms, please do not use the Site.
1.1 Licence to use Site
We grant you a non-exclusive, worldwide, non-transferable licence to use the Site in accordance with the terms and conditions set out in this Agreement.
You may access and use the Site (including any incidental copying that occurs as part of that use) in the normal manner and may also print one copy of any page within the Site for your own personal, non-commercial use.
You must not add any content to the Site:
- unless you hold all necessary rights, licences and consents to do so;
- that would cause you or us to breach any law, regulation, rule, code or other legal obligation;
- that is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of privacy;
- that would bring us, or the Site, into disrepute; or
- that infringes the intellectual property or other rights of any person.
The Site contains links to other websites as well as content added by people other than us. We do not endorse, sponsor or approve any such user-generated or any content available on any linked website.
You acknowledge and agree that:
- we retain complete editorial control over the Site and may alter, amend or cease the operation of the Site at any time in our sole discretion; and
- the Site will not operate on a continuous basis and may be unavailable from time to time (including for maintenance purposes).
1.2 Intellectual Property Rights
Nothing in these Terms constitutes a transfer of any intellectual property rights. You acknowledge and agree that, as between you and us, we own all intellectual property rights in the Site.
By posting or adding any content onto the Site, you grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable right and licence to use that content in any way (including, without limitation, by reproducing, changing, and communicating the content to the public) and permit us to authorise any other person to do the same thing.
You consent to any act or omission which would otherwise constitute an infringement of your moral rights, and if you add any content in which any third party has moral rights, you must also ensure that the third party also consents in the same manner.
The licence in this section will survive any termination of these Terms.
You represent and warrant to us that you have all necessary rights to grant the licences and consents set out in this section
You represent and warrant to us that:
- you have the legal capacity to enter these Terms; and
- you have complied with these Terms.
1.4 Provisions of Goods and/or Services
You expressly acknowledge and agree that any goods and/or services that are purchased, order or otherwise requested by you using the Site are provided by us on the terms and conditions contained in our General Terms of Sale at Part II below.
To the full extent permitted by law, we exclude all liability in respect of loss of data, interruption of business or any consequential or incidental damages.
To the full extent permitted by law, we exclude all representations, warranties or terms (whether express or implied) other than those expressly set out in these Terms.
We do not give any representation or warranty of any kind, express or implied, as to the operation of this Site or the information, content, materials, or products included on this Site and you expressly agree that your use of this Site is at your own risk.
To the full extent permissible by applicable law, we disclaim all warranties, express or implied, and do not warrant that our Site, its servers, or email sent from us are free of viruses or other harmful components. We are not liable for any damages of any kind arising from the use of this Site, including, but not limited to direct, indirect, incidental, punitive, loss of use, loss of data, loss of business or profits and consequential damages.
These Terms are to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations. If such legislation applies, to the extent possible, we limit our liability in respect of any claim to, at our option:
- in the case of goods:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of having the goods repaired, and
- in the case of services:
- the supply of the services again; or
- the payment of the cost of having the services supplied again.
These Terms terminate automatically if, for any reason, we cease to operate the Site. We may otherwise terminate these Terms immediately, on notice to you, if you have breached these Terms in any way.
You must not assign, sublicense or otherwise deal in any other way with any of your rights under these Terms.
If a provision of these Terms are invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.
This Agreement is governed by the laws of the State of Queensland, Australia and each party submits to the jurisdiction of the courts of the State of Queensland, Australia.
We may amend any term of this Agreement in its unfettered discretion from time to time by putting a notice on the Site that the terms of this Agreement have been amended. If you continue to use the Site after we provide notice that the terms of this Agreement have been amended, the Parties agree that your conduct in continuing to use the Site after receiving notice of the amendments shall be deemed to constitute acceptance to be bound by the amended terms and conditions.
PART II – TERMS OF SALE
2.1 Commercial Credit Application
This Credit Application constitutes an offer by you to open an account with Phytoca to purchase Goods from Phytoca subject to the Terms of Sale (Offer).
You hereby consent to Phytoca obtaining a credit report from a Credit Reporting Agency using the information provided by you in this Credit Application for the purpose of evaluating your financial capacity to complete the Offer and comply with the Terms of Sale at the initial application stage or at any time during which Phytoca supplies the Goods to you in accordance with the Terms of Sale.
We may in our absolute discretion accept or reject any Offer. If we accept an Offer, then you agree that a contractual agreement shall form between you and Phytoca and the Terms of Sale shall form the terms and conditions of that contractual agreement (Agreement).
You acknowledge and declare that any credit facility we may provide to you under the Agreement (and any Goods we may supply to you in accordance with that Agreement) is for business and commercial purposes and will be used wholly or predominantly for business and commercial purposes.
By accepting the terms of this Credit Application and the Terms of Sale via the checked box on the relevant registration page, you acknowledge, warrant and agree that you:
- have voluntarily entered into the Agreement without any duress from any person;
- have the ability to perform your obligations under the Agreement; and
- will comply with all laws, ordinances, rules, and regulations when performing your obligations under the Agreement.
In this Agreement, unless the context otherwise permits:
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Victoria.
Copyright Act means the Copyright Act 1968 (Cth).
Customer means any pharmacist who is legally entitled to purchase and on-sell the Goods to patients within Australia.
Delivery Address means the address specified by the Customer during the registration process for the delivery of Goods that we supply to you under these Terms of Sale.
Force Majeure Event means mean any act of God, government order, earthquake, flood, fire, riot, war, embargo, pandemic, or any other cause or event, unforeseeable and beyond the reasonable control of a Party.
Goods means any goods available for purchase on or via the Platform.
GST means GST as defined in the GST Act.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Order means any order for Goods submitted by the Customer to Phytoca using the order form provided by Phytoca from time to time together with all other documents required by them including, without limitation, any relevant prescription documents.
Parties means the Customer and Phytoca collectively, and a Party means any one of them.
Phytoca means Phytoca Pty Ltd (ABN 39 615 614 974).
Therapeutic Goods Regulations means the Therapeutic Goods Regulations 1990.
Platform means the website, app and or platform hosted at https://phytoca.com.au/, any subsite or any other domain as determined by us.
In this Agreement:
- references to legislation or provisions of the legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
- words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or contracts also mean those documents or contracts as changed, novated or replaced, and words denoting one gender include all genders;
- grammatical forms of defined words or phrases have corresponding meanings;
- the Parties must perform their obligations on the dates and times fixed by reference to Melbourne, Victoria;
- reference to an amount of money is a reference to Australian Dollars;
- if the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
- references to a Party are intended to bind their executors, administrators and permitted transferees; and
- obligations under this Agreement affecting more than one party bind them jointly and each of them severally.
You may place an Order through the Platform in accordance with these Terms of Sale.
Any Order placed through the Platform is an offer by you to purchase the Goods for the price notified, including any delivery and other charges and taxes, at the time the Order is placed.
We may request additional information or details or require you to confirm any information or details provided to enable us to process your Order.
We reserve the right to accept or reject an Order for any reason, including where:
- the Order is for Goods which are no longer available;
- there is an error in the listed price for, or the description of, the Goods; or
- for any another reason.
Each Order we accept will constitute a separate binding agreement between you and us where:
- we agree to provide you the Goods described in the Order; and
- you agree to pay us the price for the Goods stated in the Order.
If an Order is rejected, we will endeavour to notify you in writing of that rejection at the time the Order is placed or within a reasonable time after the Order is submitted.
2.7 Pricing and Payment
All pricing is in Australian dollars.
By placing an Order with us, you agree to pay the following fees and charges (where applicable):
- the purchase price of any Goods ordered;
- the delivery/shipping fee provided to you at the time of placing an Order; and
- any other fees and charges set out in these Terms of Sale.
Phytoca in its absolute discretion reserves the right to:
- vary the price of any Goods (whether it be the wholesale or recommended retail price);
- add any Goods to the Platform; and
- remove any Goods from the Platform.
Whilst we may give written notice of a variation to the price of any Goods, we are not obligated to notify you of any variation other than by updating the Platform.
For all transactions:
- We will provide you with a tax invoice in accordance with the GST Law for payment of the Goods.
- Payment must be made by you to us by way of electronic transfer to an account nominated by us within 14 days from receipt of a valid tax invoice. For the avoidance of doubt, we may agree to accept payment in an alternative method, but we are not obligated to do so.
- Where a Customer statement shows an aggregate order volume exceeding $5001 in any calendar month, the parties agree that the payment terms are as follows:
- The Customer must pay any amount owing under any invoice within 14 days from the end of the month for all invoices raised during that month.
- The Customer agrees to pay interest on any amounts that remain owing after they have fallen due; and
- Interest accrues from day to day on the balance of overdue amount on a compounding basis at a rate being five percent (5%) higher than the cash rate set by the Reserve Bank of Australia at the relevant time.
You must not for any reason withhold payment of any amount due to us or claim entitlement to a set-off of any amount you believe is due from us, unless we first approve you to do so.
If a payment due to us under this Agreement is dishonoured, you must pay the amount of the dishonoured payment, bank charges and a reasonable administration fee incurred by us within five (5) Business Days after we notify you in writing of same.
Without in any way limiting any of our remedies under this Agreement, if you do not pay all amounts owing to us by the due date for payment, then we may at our option while money is outstanding:
- withhold supply of the Goods to you until you have paid all amounts owing to us; or
- charge you interest calculated at the rate of five percent (5%) per annum above the cash rate set by the Reserve Bank of Australia from time to time on any money not paid on or by the due date for payment and also on any judgement which we may obtain against you, such interest to be computed from the due date for payment of the money until the date of actual payment and will be recoverable in like manner as fees in arrears; or
- take any other action available to us under this Agreement.
For the purposes of the GST Act and despite any other term of this Agreement, any Goods supplied by us are to be deemed and treated as Taxable Supplies for GST purposes.
Unless otherwise set out in this clause or the Parties otherwise agree, any fee is exclusive of GST even if the sum shown in any invoice may, or will where required by the GST Act, represents the total of the fee and the related GST.
We will do everything reasonably necessary to assist you to claim a GST input tax credit in respect of the GST charged by us.
If we wish to make a claim on you for GST which was not charged at the time of rendering the invoice for any reason, that claim must be made within six (6) months of the date of the invoice.
You must be registered for GST and must maintain that registration whilst you continue to purchase Goods from us.
2.9 Delivery Estimates
Unless otherwise stated on the Platform, delivery estimates and dates are estimates only and should not be relied upon as such. Shipping rates may vary according to your postcode. Phytoca may provide you with a delivery notice for each delivery which particularises the Goods delivered and the amount payable for those goods.
All Goods will need to meet these requirements to qualify for a return, failing which we reserve the right to deny a return or credit request:
- be submitted to us by email to info@Phytoca.com.au with sufficient details for Phytoca to be able to process the request;
- match the same name, quantity, batch number, and expiry as the Goods ordered and submitted on the returns form; and
- have sufficient protective packaging so as the Goods do not get damaged in transit.
A standard return may be submitted for Goods that are no longer required by the animal patient; and incorrect Goods ordered by you, provided the following conditions are met:
- the return form must be submitted within forty-five (45) days from the date of receipt of the Goods;
- the Goods must not have been dispensed to the animal patient;
- the Goods being returned must be sent via registered mail/courier with tracking (paid by you as the Customer);
- the Goods must be in the original unopened packaging including all labels, unused condition with no signs of dispensing labels, stickers, or remaining residue; and
- the Goods must have more than six (6) weeks shelf life remaining at the time of receipt by us.
A return may be submitted for damaged or faulty Goods, including Goods that:
- are leaking;
- are opened;
- have a broken seal, lid or dropper;
- contain a faulty device; or
- do not meet the standard quality which has been validated,
- provided the return form is submitted within:
- forty-five (45) days of receipt of the Goods; or
- seven (7) days from the date the Goods are dispensed to a patient,
whichever is the later.
Phytoca has determined that these are reasonable timeframes to identify whether a product has been delivered to you in a damaged/faulty condition and will not be able to accept returns older than this.
For any damaged or faulty returns which comply with this clause, we will send a pre-paid envelope/returns label and/or credit your account for an amount equal to the applicable postage costs.
If a product quality issue has been raised with Phytoca and has been escalated for further investigating:
- We require that the Product be held in your control prior to submitting the return form. The product will need to be sent back to us within 7 days from when the return has been escalated.
- Once investigated, all products (approved or declined) will be destroyed and are unable to be returned to you.
Due to the nature of the Goods, the expiry date per batch and product need to be taken into consideration when placing an Order and dispensing any Goods to a patient. All Goods on the Platform have the expiry date listed within the product page, as well as give you as the customer a notification before adding to the cart if it is within 42 days (6 weeks).
By agreeing to the notification and proceeding with the Order, you are accepting that both you and the patient understand and accept final delivery of the short expiring product.
We are not able to accept returns for any Goods unless damaged or faulty within 42 days (6 weeks) of a product expiry date when the customer has pre-accepted the expiry date.
Our returns policy is in addition to your rights under the Australian Consumer Law because we want you to be satisfied with your Order. Please read the following carefully to ensure you are fully aware of your rights under this policy and our obligations to you.
We may elect to return the Goods to the manufacturer to determine the nature of the problem and we reserve the right not to offer an exchange or refund where the fault of any Goods is a result of misuse or neglect.
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. We reserve the right to assess the condition and age of returned Goods prior to providing an exchange or refund. This may result in an exchange or refund being refused. We also reserve the right to refuse returns or offer an exchange or refund to anyone who we, in our sole discretion, suspect of abusing our return policy. Please note that we inspect the Goods and if a product has been used or handled in a way which has diminished its value, we may also reduce the value of the refund to reflect the reduction in the value of the Goods. Additional or different terms and conditions may apply in relation to the return of Goods that are being recalled by us, our affiliates, or our suppliers for quality and/or safety reasons.
2.11 Credit Limit
Phytoca may in its absolute discretion impose a monetary limit on the amount of credit that it will provide to the Customer (Credit Limit) by notifying the Customer of that Credit Limit in writing. This may differ from the Requested Credit Limit specified in the Customer’s initial Application.
If the Credit Limit exceeds the amount of Twenty Thousand Dollars ($20,000.00, then Phytoca may, at its sole discretion, require the Directors/Secretary/Partner (as applicable) to provide personal guarantees to the Supplier for your obligations under this Agreement in accordance with these Terms of Sale.
If you place an Order which would result in the amount of credit supplied by Phytoca to you exceeding the Credit Limit, then Phytoca may, at its discretion, accept or reject that Order. If Phytoca accepts an Order under this clause, any amount payable by you to Phytoca for that Order which exceeds the Credit Limit must be paid before Phytoca is obligated to deliver the Goods to the Customer.
You hereby charge and create in favour of Phytoca a security interest in all of your present and future beneficial interests in real property and all of your present and after-acquired property (Charged Property). For the avoidance of doubt, you irrevocably consent to Phytoca registering a caveat over each property owned by you, whether personally or via a trust. You further agree that on demand by Phytoca, you will immediately execute such caveat, mortgage, personal property security registration or another instrument of security as required by Phytoca, and in the event that you fail to do so within a reasonable time, you hereby appoint Phytoca’s solicitor to act as its true and lawful attorney to execute and register such security instrument. You will not object to the lodgement of a caveat noting Phytoca’s interest pursuant to the terms of these Terms of Sale. You indemnify Phytoca for all costs, losses, and damages (including legal fees and registration fees) associated with registering a security interest under this clause.
2.12 Risk and Title
Risk in the Goods passes to you on the date and time of delivery of the Goods to the Delivery Address.
The ownership of and title to the Goods remains at all times with either Phytoca or any company who Phytoca is supplying the Goods on behalf of (the Ultimate Supplier) until the later of the date and time of:
- payment of the Goods; or
- delivery of the Goods to the Delivery Address.
Until such time, you:
- hold the Goods as Phytoca’s or Ultimate Supplier’s fiduciary agent and sub-bailee;
- must properly store the Goods separately from any other goods and in a manner which clearly shows Phytoca or Ultimate Supplier as the owner of the Goods;
- must insure the Goods;
- must account to Phytoca for all proceeds of the Goods, including insurance proceeds;
- must permit Phytoca or Ultimate Supplier reasonable access to your premises at any time to inspect the Goods; and
- may sell the Goods as fiduciary agent for Phytoca or Ultimate Supplier; and
- shall, as sub-bailee for Phytoca or Ultimate Supplier, hold any proceeds (as that term is defined in the Personal Property Securities Act 2009(Cth) (PPSA)) of any resale, disposal or other dealing with the Goods or any product incorporating the Goods in trust for Phytoca or Ultimate Supplier and shall pay the proceeds into a separate fiduciary account to be held in trust for Phytoca until accounted for to Phytoca at the demand of Phytoca.
For the avoidance of doubt, for the purposes of the PPSA, it is the intention of the Parties by this clause that there is created for the benefit of Phytoca and Ultimate Supplier a Purchase Monies Security Interest in the Goods.
You agree that Phytoca or Ultimate Supplier may register any personal property security interest created by these Terms of Sale on the Personal Property Securities Register and you waive its rights to receive a verification statement (as that term is defined in the PPSA) in respect of any financing statement or financing change statement (as those terms are defined in the PPSA) registered by Phytoca or Ultimate Supplier in respect of any personal property of yours. The Parties agree that, insofar as the provisions of Chapter 4 of the PPSA are for the benefit of you or place an obligation on Phytoca or Ultimate Supplier, those provisions will apply only to the extent that they cannot be contracted out of or to the extent that Phytoca or Ultimate Supplier otherwise agrees in writing.
If a Default Event occurs, Phytoca or Ultimate Supplier is entitled and permitted to, at its discretion:
- by its servants or agents enter into your premises and/or retake possession of the Goods and sell them; or
- seek and sue for recovery of the moneys owing in respect of the Goods.
You acknowledge and agree that it is your responsibility to:
- inspect the Goods immediately upon delivery to the Delivery Address and carry out any tests that a prudent person would carry out; and
- notify us in writing of any alleged irregularities in quantity or description or any faults or defects in respect of any Goods within five (5) Business Days of delivery to the Delivery Address.
You must sign and return to Phytoca a ‘Goods Received’ acknowledgement as provided by Phytoca with the Goods within twenty-four (24) hours of delivery by either fax or email.
A Default Event occurs if:
- any amounts are unpaid after they fall due;
- at any time the debit balance of the Account exceeds the Credit Limit;
- you are unable to pay your debts as they fall due;
- you cease or suspend conduct of its business, or threatens to;
- your financial circumstances change in a way which, in the reasonable opinion of Phytoca, will affect your ability to comply with its obligations under these Terms of Sale;
- an administrator, liquidator, provisional liquidator, receiver and/or manager or any other form of insolvency administrator or controller is appointed to you or over all or part of your assets;
- you enter bankruptcy, die, or commit any act of bankruptcy or, if you are a partnership, the partnership is dissolved;
- execution is levied on any of your assets.
If a Default Event occurs:
- Phytoca may, at its sole discretion, suspend or terminate the supply of goods and/or services on credit;
- all unpaid amounts become immediately due and payable;
- Phytoca may exercise its rights to retake possession of any Goods under these Terms of Sale;
- You are liable to pay to Phytoca and Phytoca may recover in full from you a default fee (Default Fee), such Default Fee being an amount that is calculated at a rate up to 12% of the current amount owing to by you to Phytoca as at the time of the Default Event but the Default Fee may not exceed $750.00. It is acknowledged that the purpose of the Default Fee is to defray expenses and costs that will be incurred by Phytoca as a result of the Default Event, including by Phytoca exercising or enforcing or seeking to exercise or enforce a right under these Terms. Such Default Fee may be collected by Phytoca as a liquidated debt;
In addition to the Default Fee, you are liable to pay to Phytoca and Phytoca may recover in full from you all legal costs and disbursements on a full indemnity basis incurred by Phytoca arising from or as a result of Phytoca exercising or enforcing or seeking to exercise or enforce a right under these Terms.
The Parties acknowledge that Phytoca’s rights under this clause may be subject to restrictions pursuant to clause 415D of the Corporations Act 2001 (Cth).
We may immediately suspend, terminate or limit your access to, and the use of, the Platform and (where relevant) your account if you breach these Terms of Sale and:
- the breach cannot be remedied; or
- you fail to remedy the breach within a reasonable time of our written notice to you of that breach; or
- if there is an emergency.
You may decide to stop using the Platform at any time and for any reason.
We may stop making the Platform available at any time without prior written notice to you. If so, any Orders that we have accepted will not be affected by this action, unless the Goods ordered are no longer available or we are prevented from supplying those Goods, in which case, we will notify you in writing and refund you all valid payments received by us for those Goods.
Either Party may terminate this Agreement on thirty (30) days’ written notice to the other Party.
We may terminate this Agreement immediately if a Default Event occurs.
Should this Agreement be terminated at any time, the Customer will remain liable for any fees and costs up until the date of termination.
You warrant that:
- all information and data provided by you to us through the Platform (including as part of the registration process) or otherwise is true, accurate, complete and up to date;
- any person receiving the Goods at the Delivery Address or otherwise collecting the Goods on your behalf is authorised by you to do so;
- you have and will comply with all relevant laws relating to your use of the Platform and your placement of any Order with us; and
- you hold the correct licences and authorities to purchase, obtain, hold and resell the Goods (including but not limited to Schedule 4 and Schedule 8 of the Therapeutic Goods Regulations) and that each time you submit an Order, this warranty remains current and correct.
2.16 Exclusion of liability
Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods replaced if the Goods fail to be of acceptable quality. You may also be entitled to remedies that cannot be excluded under the Australian Consumer Law if any Goods supplied by us to you fail to meet a consumer guarantee under the Australian Consumer Law.
Without excluding, restricting or modifying the rights and remedies to which you may be entitled under the consumer guarantee provisions of the Australian Consumer Law or Phytoca’ liabilities under those provisions:
- you acknowledge that the Platform is provided “as is” and that we do not make any warranty or representation as to the suitability of the Platform or any Goods for any purpose;
- we exclude all other implied terms and warranties, whether statutory or otherwise, relating to the Platform or the subject matter of this Agreement; and
- we will not be liable to you for indirect and consequential loss arising from or in connection to this Agreement in contract, tort, under any statute or otherwise (including, without limitation, for loss of revenue, loss of profits, failure to realise expected profits or savings, loss or corruption of data and any other commercial or economic loss of any kind) unless such loss arises as a result of our own negligence or wilful misconduct.
Our liability to you for loss or damage of any kind arising out of this Agreement or in connection with the relationship established by it is reduced to the extent (if any) that you cause or contribute to the loss or damage. This reduction applies whether our liability is in contract, tort (including negligence), under any statute or otherwise.
Our liability to you for loss or damage of any kind arising out of this Agreement or in connection with the relationship established by it is reduced to the total value of the Goods relating to the loss or damage. This reduction applies whether our liability is in contract, tort (including negligence), under any statute or otherwise.
2.17 Force Majeure
Phytoca will not be liable for any failure to perform solely caused by a Force Majeure Event. If Phytoca is prevented from performing or is unable to perform any of its obligations under this Agreement due to a Force Majeure Event, its performance shall be excused, and the time for performance shall be extended for the period of delay or inability to perform due to such Force Majeure Event, provided we notify you in writing of:
- the Force Majeure Event;
- the obligations which we are unable to perform due to such Force Majeure Event; and
- our projection of the expected period of delay or inability to perform due to such Force Majeure Event, and we must use all reasonable endeavours to mitigate the effects of the Force Majeure Event and to cure any non-performance
- acknowledge that the copyright in the Platform, the software, design, text, graphics and information comprised in the Platform, the selection and layout of the Platform, and the coding, content and materials on the Platform (Materials) are owned by or licensed to us and are subject to copyright;
- must not modify, copy, adapt, store in a retrieval system, reproduce, upload, post, transmit, sell, distribute in any way or communicate to the public a Material without our prior written consent; and
- must not frame or embed in another Platform any of the Material without our prior written consent.
You may, without our express written consent:
- store a reproduction of the content on the Platform on your local computer for the sole purpose of viewing the content and Materials; and
- print hard copies of the content and Materials for the sole purpose of viewing and purchasing Goods but not for any other use, including commercial use.
This Platform contains registered trademarks and other trademarks which are protected by law. You must not use any of the marks or trademarks appearing on the Platform or our name or the names of our related bodies corporate without our prior written consent. You must not use any of the other company, product and services marks on the Platform that are owned by other third parties (including our suppliers) without obtaining the relevant third-party owner’s consent.
You are responsible for maintaining the confidentiality of your account and password. Except to the extent caused by our breach of this Agreement, you are responsible for all activities that occur under your account regardless of whether the activities are authorised by you or undertaken by you, and we are not responsible for unauthorised access to or use of your password or account.
You should take all necessary steps to ensure that your password is kept confidential and secure and should inform us immediately if you have any reason to believe that your password has become known to anyone else, or if your password is being, or is likely to be used in an unauthorised manner. You must ensure that any details you provide to us are correct and complete and immediately inform us of any changes.
If we have concerns with your account, or activity relating to your account, or if you are in breach of any applicable laws, these Terms of Sale, or any Related Agreements, we reserve the right to take action on your account including without limitation by:
- refusing service;
- suspending or restricting access to your account;
- terminating your account; or
- removing or editing any content posted by you using your account.
The action taken by us and any written notice given by us to you will vary depending on the circumstances and our assessment of relevant factors.
You must not assign, sublicense or otherwise deal in any other way with any of your rights under these Terms of Sale.
If any provision of these Terms of Sale is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
Each Party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.
This Agreement is governed by the laws of the State of Victoria, Australia and each Party submits to the jurisdiction of the courts of the State of Victoria, Australia.
We reserve the right to change these Terms of Sale at any time by amending this page, without any notice and without any liability to you.
We recommend that you continually check this page for any changes or updates.
A communication required by Agreement, by a Party to the other Party, must be in writing and may be given to them by being:
- delivered personally; or
- posted to their address specified in the Account, or as later notified by them, in which case it will be treated as having been received on the second (2nd) business day after posting; or
- sent by email to their email address, when it will be treated as received when it enters the recipient’s information system.
If this Agreement is signed by any person or entity using an electronic method of signing that identifies the person and indicates their intention to sign the Agreement (an Electronic Signature), the Parties:
- Agree to enter into this Agreement in electronic form;
- Agree to submit and receive orders in electronic form; and
- Consent to any or all Parties signing the Agreement using an Electronic Signature.
When you use any of the Phytoca Websites or send e-mails, text messages, and other communications to Phytoca, you are communicating with Phytoca electronically. Phytoca communicate with you electronically in a variety of ways, such as by e-mail, text, in-app push notices, or by posting e-mail messages or communications on the website or through the other services, such as Phytoca’s messaging system. You consent to receive communications from us electronically and agree that communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
The Parties agree that by accepting these terms and conditions via electronic checkbox, they are using an electronic method indicating their intention to sign the Agreement.