Terms & Conditions of Sale
This website is owned and operated by Broadview Enterprises Pty Ltd The Botanica Bar and Bistro (Company). By using this website, you acknowledge that you have read, understood and agree to be bound by these Terms and Conditions. If you do not agree you may not use this website.
The Company reserves the right, at any time to modify, alter or update these Terms and Conditions of Sale and you agree to be bound by such modifications, alterations or updates on subsequent visits.
These Terms and Conditions of Sale are applicable to all online purchases from the Company.
In these Terms and Conditions of Sale :
- 1.1 "buyer" means any person, firm or company buying product from the Company.
- 1.2 "seller" means the Company.
- 1.3 "terms and conditions" or "conditions" or "terms" means the terms and conditions of sale set out below and any special terms and conditions agreed in writing by the seller with the buyer.
- 1.4 "products" means the goods.
- 1.5 "GST" has the meaning given to it in the GST Act.
- 2.1 Unless otherwise agreed in writing by the Company, the following conditions shall govern this transaction and shall be incorporated into all future transactions where supplying any product to a buyer whether or not these conditions are made expressly applicable to any particular transaction.
- 2.2 Terms and conditions contained in any form, order or other writing of the buyer and which are at variance with or additional to these terms and conditions are not binding upon the Company unless specifically accepted by the Company in writing.
- 2.3 A contract shall only be formed when an order is received from the buyer to purchase products subject to the Company's terms and conditions of sale.
- 2.4 The description of the product on the face hereof or given in any other document is for identification purposes only and the use of such description shall not constitute the order for the supply of the product as a sale by description unless expressly stated.
- 2.5 The availability of the products is subject to change at any time. The Company is not liable for loss or damages whatsoever arising from failure to deliver or delay in delivery of any products.
- 2.6 The Company reserves the right to deliver the product by installment and each installment shall be deemed to be sold under a separate contract incorporating the Company's standard terms and conditions of sale. Failure by the Company to deliver any installment shall not entitle the buyer to cancel the balance of the order.
- 2.7 In the event of a person signing as the buyer, signing on behalf of a company, partnership, firm or association of any kind whatsoever then each person by their signature also binds them personally as guarantor in favour of the Company for all or any amounts for which the buyer may be indebted to the Company.
- 2.8 Any reference in these conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time,
- 2.9 The headings in these conditions are for convenience only and will not affect their interpretation.
- 2.10 Unless the context otherwise requires, words importing one gender include any other gender, words importing the singular include the plural and vice versa and reference to a person includes a body politic, a body corporate and a natural person.
3.The Agreement between the Buyer and Seller
- 3.1 These conditions shall apply to all contracts for the sale of products by the seller to the buyer to the exclusion of all other terms and conditions which the buyer proposes should apply under any purchase request or order, confirmation of order or any similar document.
- 3.2 No variation to these conditions shall be binding upon the seller unless that variation has been agreed to in writing by the seller's authorized representative and the buyer.
- 3.3 The seller's employees or agents are not authorized to make any representations concerning the product unless confirmed by the seller to the buyer in writing. In entering into any contract to buy products the buyer acknowledges that the seller does not rely on any such representations which are not so confirmed.
- 3.4 Any advice or recommendation given by the seller or their employees or agents to the buyer or their employees or agents as to the storage, application or use of any product which is not confirmed in writing by the seller is followed or acted upon entirely at the buyers own risk and the seller will not be liable for any such advice or recommendation which is not so confirmed.
- 3.5 Any typographical clerical or other error or omission in any sales literature, quotation, pricelist, acceptance of offer, invoice or other document or information issued by the seller will be subject to correction without any liability on the seller's part.
- 3.6 Dispatch or delivery of the product by the seller to the buyer will be deemed to be conclusive evidence of the buyer's acceptance of these conditions.
- 3.7 All orders for products shall constitute an offer by the buyer to purchase those products from the seller pursuant to these conditions.
- 3.8 All specifications, dimensions, descriptions and illustrations contained in any sales literature; quotation, or pricelist or other advertisement matter are intended merely to present a general idea of the product that we sell. The seller reserves the right from time to time to make changes to these provided that these changes will not materially affect the quality or fitness for purpose of the product you purchase from the seller.
4.The Price and Payment
- 4.1 Unless otherwise stated, the price for the product shall be the price stipulated in the seller's published price list current at the date of delivery of the product. The price is exclusive of GST and delivery charges. All products sold are subject to GST which will be added to the price of the products and any additional charges.
- 4.2 If the seller gives the buyer a price for any product this will be binding on the seller provided the buyer accepts the price within 30 days. The seller may by giving the buyer notice at any time up to 7 days before delivery increase the price of the product to reflect any increase in the cost to the seller which is due to factors occurring which are beyond the sellers reasonable control (including without limitation, foreign exchange fluctuations, taxes and duties and the cost of labour, materials and other manufacturing costs). The buyer may cancel the purchase order for the product within 7 days of any such notice.
- 4.3 The price for the product must be paid in full at the time of ordering by any one of the following methods:- (i) credit card; or (ii) debit card.
- 4.4 If the buyer fails to make any payment on the due date then without prejudice to any other remedies the seller has, we may:-
- 4.4.1 suspend or cancel deliveries of any products to the buyer; and/or
- 4.4.2 appropriate any payment made by the buyer to such products (or any other products supplied or to be supplied to the buyer as we in our sole discretion think fit).
- 4.5 Payment of the price is of the essence.
- 4.6 If a product is not in stock, the seller will contact the buyer to discussed revised delivery times or refund options.
5.Delivery of the Product
- 5.1 The seller will deliver the product to the address specified by the buyer, provided that address is within a 25 km radius of the physical location of The Botanica Liquor Barn at 401 Scarborough Beach Road, Innaloo, Western Australia 6019.
- 5.2 The seller reserves the right to charge a reasonable fee for any delivery that the buyer cancels once a delivery date has been agreed. The buyer must pay this to the seller before the seller will make any further attempt to deliver the product.
- 5.3 It is the buyer's responsibility to ensure the buyers own availability to take delivery once a delivery date has been agreed. It is also the buyer's responsibility to ensure there is adequate access to the premises where the product is to be delivered. If either the buyer or someone on the buyers behalf is not available to take delivery or if as a result of inadequate access for any reason the seller is unable to deliver the product, the buyer will be required to pay a further delivery charge before any further attempt to deliver the product is made. The seller reserves the right to retain any delivery charges once a delivery date has been accepted.
- 5.4 Any dates the seller gives the buyer for delivery of the product are approximate only and the seller will not be liable for any delay in or non delivery of the product. The buyer is deemed to accept delivery of an order when made even if a different delivery date is specified. The product may be delivered in advance of any estimated delivery date upon reasonable notice.
- 5.5 Unless the buyer is a consumer, the seller does not accept liability for any loss or damage suffered by the buyer in consequence of any failure or delay in delivery.
- 5.6 The product will be at the buyers risk from delivery which shall be deemed to have taken place if the seller has delivered the product, or when they are unloaded from the sellers transport and placed in the property specified by the buyer, or unloaded into the possession of the buyers nominated carrier. Any such carrier will be deemed to be the buyer's agent.
6.Ownership of the Product
- 6.1 Ownership of the product will not pass to the buyer until the seller has received payment in full of the price of the product together with any delivery or other charges the buyer is required to pay.
- 6.2 Where the contract between the seller and the buyer for the sale and purchase of the product has been cancelled for any reason, the products will become the property of the seller (where ownership has already been transferred to the buyer). The buyer must take reasonable care of the product until the seller has retrieved the product from the buyer.
7. Bringing a Claim
- 7.1 The seller requests that you inspect the product as soon as reasonably possible after delivery. The buyer must notify the seller within two working days of delivery of any alleged defect, shortage in quantity, damage or failure to comply with description or sample. The buyer must allow the seller an opportunity to inspect the product within a reasonable time after delivery and before the buyer makes any use of the product. If the buyer fails to comply with these provisions, the product will be deemed to be in accordance with the agreement between the buyer and the seller and free from any defect or damage which would be apparent on a reasonable examination of the product and the buyer will be deemed to have accepted the product.
- 7.2 Unless the buyer buys the product as a consumer, if the product is not in accordance with the agreement between the buyer and the seller for any reason, the buyers remedy shall be limited to requiring the seller to make good any shortage, defect, damage or failure to comply with description or sample by either replacing the product or, if the sellers elects to do so, by refunding a proportionate part of the price.
Once an order for a product has been accepted it can only be cancelled in the seller's absolute discretion and subject to such terms as the seller shall impose.
9.The extent of the Sellers liability to the Buyer
- 9.1 The products will be manufactured in accordance with the seller's current specification relating to the product, details of which are available on request.
- 9.2 The sellers liability to the buyer, whether for breach of contract or otherwise shall not in any event exceed the price of the product and the seller will have no liability for any direct loss and/or expense or indirect loss and/or expense suffered by the buyer or any liability to third parties incurred by the buyer.
- 9.3 All warranties and conditions whether implied by statute or otherwise are excluded providing that nothing will restrict or exclude liability for death or personal injury caused by the sellers negligence or affect the statutory rights of a buyer dealing as a consumer.
- 9.4 The seller will not be liable to the buyer or deemed to be in breach of these conditions by reason of any delay in performing, or failure to perform, any of the sellers obligations in relation to the product, if the delay or failure was due to any cause beyond the sellers reasonable control. The following shall be regarded as a non-exhaustive list of causes beyond the seller's reasonable control:-
- 9.4.1 Act of God, explosion, flood, tempest, fire or accident;
- 9.4.2 War or threat of war, sabotage, insurrection, civil disturbance or requisition;
- 9.4.3 Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
- 9.4.4 Import or export regulations or embargoes;
- 9.4.5 Strikes, lockouts or other industrial action or trade disputes whether involving the seller's employees or those of a third party;
- 9.4.6 Difficulty in obtaining raw materials, labour, fuel, parts or machinery; and
- 9.4.7 Power failure or breakdown in machinery.
- 10.1 No product delivered to the buyer which is in accordance with the contract will be accepted for return without the seller's prior written approval on terms to be determined at the seller's discretion.
- 10.2 Should the seller agree to accept any such product for return, the buyer will be liable to pay a handling charge of 15% of the invoice price. Such product must be returned by the buyer carriage-paid to the seller in their original shipping carton.
- 10.3 Products returned without the sellers prior written approval may at the seller's absolute discretion be returned to the buyer or stored at the buyer's expense without prejudice to any rights or remedies the seller has.
In the event that any or any part of these terms, conditions or provisions shall be determined invalid, unlawful or unenforceable to any extent such terms, conditions or provisions shall be severed from the remaining terms and conditions, which shall continue to be valid and enforceable to the fullest extent permitted by law.
No waiver by the seller of any breach of these conditions shall be considered as waiver of any subsequent breach of the same or any other provision of these conditions.
No modification, variation or amendment to these terms and conditions shall be of any force or effect unless in writing and signed by the Company.
Any notice or document required under these terms and conditions to be served on the Company must be addressed to its registered office for the time being. Any notice or document similarly required to be served on the buyer may be sent to the buyer's last known address. Notices and documents may be delivered by hand or sent by prepaid post and if sent by post shall be deemed to be served on the day on which they would be delivered in the ordinary course of post. Notices and documents may be delivered by facsimile or electronic email to the parties' last known facsimile number or email address and shall be deemed to be served at the time of transmission.
15.Intellectual Property Rights
The material contained on this website is protected by copyright. Except to the extent permitted by relevant copyright legislation, you must not use, copy, modify, transmit, store, publish or distribute the material on this website, or create any other material using material on this website, without obtaining the Company's prior written consent. Trade marks (whether registered or unregistered) and logos must not be used or modified in any way without obtaining the Company's prior written consent. The website, products, technology and processes contained in this website may be the subject of other intellectual property rights owned by third parties. No licence is granted in respect of those intellectual property rights other than as set out in these Terms. Your use of this website must not in any way infringe the intellectual property rights of any person.
When you order through this website a secure server is used. The server encrypts the information you send through this website. We make no warranty in respect of the strength or effectiveness of that encryption and we are not responsible for events arising from unauthorised access of the information you provide.
17.Disclaimers and Limitation of Liability
Except where to do so would cause any part of these Terms and Conditions to be illegal, void or unenforceable, the Company:
- 17.1 Excludes all conditions and warranties implied by these Terms;
- 17.2 To the fullest extent permitted by applicable law, is not liable to you or anyone else for any loss or damage, however caused (including negligence), which may be directly or indirectly suffered, in connection with use of this website; and
- 17.3 Excludes liability (whether that liability arises under contract, tort (including negligence) or statute) for any special, indirect or consequential loss or damage (including without limitation loss of revenue and loss of, or damage to, data) suffered or incurred in connection with this website.
- Without limiting the general disclaimer, the Company:
- 17.4 Is not liable to you or anyone else if errors occur in the information on this website or if that information is not up-to-date;
- 17.5 Will not be liable for disruptions to this website; and
- 17.6 Is not liable to you or anyone else if interference with or damage to your computer system occurs in connection with use of this website. You must take your own precautions to ensure that whatever you select for use from this website is free of viruses.
All sales are deemed to be made in Australia, and shall be governed and construed in accordance with the Law of West Australia and the Commonwealth of Australia.