1.1 ACL means the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
1.2 Customer means the person or entity (or any person acting on behalf of and with the authority of the Customer) ordering Goods from The Brainary.
1.3 Goods means goods supplied by The Brainary to the Customer.
1.4 Personal Property Securities Register, Purchase Money Security Interest, Security Agreement and Security Interest have the meanings given to those terms in the PPSA.
1.5 PPSA means the Personal Property Securities Act 2009 (Cth).
1.6 Price means the price payable for the Goods in accordance with clause 4.
1.7 Terms means these terms and conditions, as amended by The Brainary and notified to the Customer from time to time.
1.8 The Brainary means Hugh Kingsley Pty Ltd ACN 121 602 015 trading as The Brainary, its successors and assigns
1. The ACL: Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the ACL, except to the extent permitted by the ACL.
2. Acceptance: By ordering or accepting Goods from The Brainary, the Customer agrees to be bound by these Terms. Where a Customer constitutes more than one person or entity, those persons or entities shall be jointly and severally liable for all payments of the Price. These Terms take precedence over any inconsistent terms in a quotation, purchase order or other communication between The Brainary and the Customer.
3. Price and Payment: The Price shall beThe Brainary's price for the Goods as published on its website from time to time. The Brainary reserves the right to change the Price in the event that the Customer requests a variation to a purchase order. The Price must be paid at the time the Customer places an order for Goods, unless The Brainary has agreed to provide credit to the Customer. In such cases The Brainary will invoice the Customer for Goods on collection or delivery and payment must be made within 14 days of date of invoice. Any GST, other taxes and duties and delivery costs that may be applicable shall be added to the Price except when they are expressly included in the Price.
4. Credit: The Brainary may in its absolute discretion provide credit to a Customer. If The Brainary provides credit to a Customer:
(a) The Customer is required to complete The Brainary's Credit Account Application and comply with the terms set out in that document;
(b) If the Customer is a corporation, a director of the Customer is required to provide a personal Guarantee in the form required by The Brainary; and
(c) The Customer shall give The Brainary not less than 14 days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by The Brainary as a result of the Customer’s failure to comply with this clause.
1. Delivery: Customers may collect Goods, or accept delivery by The Brainary or a freight dispatch company nominated by The Brainary. If Customers choose to collect Goods, collection must occur within 2 Business Days' notice by The Brainary that such Goods are ready for collection, or The Brainary may (at its sole discretion) charge a reasonable fee for storage. The Brainary will use reasonable endeavours to meet delivery time frames requested by the Customer but any failure by The Brainary to supply Goods in accordance with such time frames shall not affect the Customer's obligation to accept and pay for Goods.The Brainary shall not be liable for any loss or damage whatsoever due to failure by The Brainary to supply the Goods (or any part of them) promptly or at all.
2. Title and Risk: Title in Goods passes to the Customer only when The Brainary has received all amounts owing for the Goods in cleared funds. Until that time, all of the Goods supplied to the Customer remain the property of The Brainary and must be stored in a manner that allows them to be identified as The Brainary Goods.If the Customer sells Goods before it has title in those Goods, the amount the Customer owes to The Brainary for the Goods is held by the Customer on trust as a fiduciary agent of The Brainary, and the Customer must pay the amount owed immediately without demand by The Brainary. Risk of loss of or damage to Goods passes to the Customer when the Goods are collected by the Customer or otherwise leave The Brainary's premises.
3. PPSA: The Customer acknowledges that these Terms shall comprise a Security Agreement for the purposes of the PPSA.The Customer acknowledges that until such time as full payment is received by The Brainary in cleared funds for all Goods supplied to the Customer, these Terms create a Purchase Moneys Security Interest in the Goods as security for the Customer's obligations to The Brainary and the Purchase Moneys Security Interest is registrable on the Personal Property Securities Register.The Customer:
(a) must sign and deliver any documents required by The Brainary to ensure that The Brainary has a perfected first-ranking Security Interest in the Goods under the PPSA;
(b) indemnifies The Brainary against any costs incurred by The Brainary in registering or maintaining the Security Interest and in exercising any rights under the PPSA;
(c) waives its right to receive a verification statement under s157 of the PPSA; and
(d) in respect of Goods which are collateral to which s 115 of the PPSA applies, waives its rights under each section of the PPSA referred to in s 115.
4. Errors and Omissions:The Customer shall inspect the Goods on collection or delivery and must within seven days notify The Brainary of any alleged defect, error or failure to comply with the description or quote. The Customer must demonstrate to The Brainary's satisfaction the existence of the defect or error, giving The Brainary a reasonable opportunity to inspect the Goods. If The Brainary allows the Customer to reject Goods, The Brainary’s liability is limited, subject to clause 10 and the ACL, to either (at The Brainary’s discretion) the replacement or repair of the Goods or to the Customer's cost of obtaining the Goods again. No restocking or handling fees will apply. No rejections will be accepted if the Customer fails to notify The Brainary of an alleged defect or error within seven days of collection or delivery of the Goods.
10.1. The Customer acknowledges full details of the consumer rights and remedies referred to in this clause can be obtained from the Australian Competition and Consumer Commission (ACCC) at www.accc.gov.au or from the local consumer protection agency.
10.2. If the Customer is a consumer for the purpose of the ACL and the Goods supplied to the Customer are goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption, the Customer has extensive rights under the ACL, including consumer guarantees and remedies, in relation to the Goods supplied. Nothing in these Terms limits those rights and remedies in any way.
10.3. If the Customer is a consumer for the purpose of the ACL, and the Goods supplied are not of a kind ordinarily acquired for personal, domestic or household use or consumption but cost no more than $40,000, the Customer has extensive rights under the ACL including consumer guarantees and remedies but, in relation to these Goods, our liability for failure to comply with a consumer guarantee (other than certain guarantees about ownership and undisturbed use) is limited to replacing the Goods or supplying equivalent ones, repairing the Goods, paying the cost of replacing the Goods or of acquiring equivalent ones or paying the cost of having them repaired.
10.4. Nothing in this clause 10.4 limits the consumer rights and remedies referred to in clauses 10.1 to 10.3. Subject to clauses 10.1 to 10.3:
(a) Any representation, warranty, guarantee or undertaking that would be implied in these Terms by law or custom is excluded to the fullest extent permitted by law;
(b) The Brainary is never liable to the Customer for economic loss, business interruption, loss of revenue or profits, other indirect or consequential loss, an act or omission by a party for whom The Brainary are not responsible in law, or any loss arising from circumstances beyond The Brainary's reasonable control. Our maximum aggregate liability to the Customer under, in connection with or arising out of the supply of Goods (on any basis and arising from any act or omission) is limited to the aggregate charges actually paid to The Brainary for the supply of the Goods the subject of the claim.
10.5 The Customer indemnifies The Brainary against any harm, loss, damage, liability, claim, demand or action (including, without limitation, any indirect or consequential loss or damage) suffered by The Brainary arising from or in connection with the Customer's breach of these Terms, or a Customer's unlawful, wilful or negligent act or omission.
11. Intellectual Property: Where The Brainary has designed or created documents for the Customer, all copyright in those documents remains vested in The Brainary, and may only be used by the Customer if and to the extent authorised by The Brainary.
12. Default and Consequences of Default
12.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of 2.5% per calendar month (and at The Brainary’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. If any account remains overdue after 30 days then an amount of $100 shall be levied for administration fees which sum shall become immediately due and payable. In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by The Brainary.
12.2. If the Customer defaults in payment of any invoice when due, the Customer shall indemnify The Brainary from and against all costs and disbursements incurred by The Brainary in pursuing the debt including legal costs on a solicitor and own client basis and The Brainary’s collection agency costs.
12.3. Without prejudice to any other remedies The Brainary may have, if at any time the Customer is in breach of any obligation (including those relating to payment), The Brainary may suspend or terminate the supply of Goods to the Customer and any of its other obligations under these Terms. The Brainary will not be liable to the Customer for any loss or damage the Customer suffers because The Brainary has exercised its rights under this clause.
12.4 Without prejudice to The Brainary’s other remedies at law The Brainary shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to The Brainary shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to The Brainary becomes overdue, or in The Brainary’s reasonable opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer; or
(d) there is a change in ownership in the Customer and the Customer has not notified The Brainary of such change in accordance with clause 5(c) of these Terms.
13.Cancellation: The Brainary may cancel any contract to which these Terms apply or cancel the provision of Goods at any time by giving written notice to the Customer. On giving such notice The Brainary shall repay to the Customer any sums paid in respect of the Price (less any amounts owing for Goods already received). The Brainary shall not be liable for any loss or damage whatsoever arising from such cancellation.If the Customer cancels an order for Goods, then the Customer shall be liable for any loss incurred by The Brainary (including, but not limited to, any amounts owing for Goods already supplied and any loss of profits) up to the time of cancellation.
14.1 If any provision of these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
14.2 These Terms and any contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts ofVictoria.
14.3 The Brainary shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by The Brainary of these Terms.
14.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by The Brainary nor to withhold payment of any invoice because part of that invoice is in dispute.
14.5 The Brainary may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
14.6 The Brainary may vary these Terms at any time by written notice to the Customer. The Terms as varied will apply to all orders submitted by the Customer to The Brainary after the date of such notice.
14.7 The Brainary shall not be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of The Brainary.
14.8 The failure by The Brainary to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect The Brainary’s right to subsequently enforce that provision.
Notwithstanding your statutory legal rights, we will gladly accept products and resources purchased from us for return within 7 days if you can demonstrate that any particular product or resource purchased from us does not match its learning outcomes and or promotional material. In such cases we will supply you with a full refund minus a nominal admin charge ($10) for postage and handling provided the products and resources are returned to us in merchandisable condition. For International customers the refund will be credited to your credit card. For Australian customers the refund will be forwarded to you by cheque or directly credited to your nominated bank account.
Please notify The Brainary with any item returns. It must be clearly labelled, include a copy of your invoice and packed so that it arrives in good order and condition. Our delivery address is PO Box 1318 Geelong 3220 Victoria Australia. Please include your name, telephone number and address on a note with the item(s) you are returning.
We will dispatch all products and resources ordered from The Brainary in good order and condition within 1-21 days from receipt of your purchase order unless otherwise stated. It is our aim to process your order promptly but from time to time we run out of stock and it may take us a little longer than 21 days to dispatch your order. In those cases we will give you the option to amend or cancel your order. Should you decide to wait a little longer than 21 days for your order to be dispatched we will keep you informed about the progress of your order. All claims for damaged goods must be made within 7-days of receipt quoting your name, delivery address, invoice number and date of receipt.
Order Cancellation Policy
If the need arises, you may cancel and or change all or part of your order, provided you contact us before your order has been dispatched.
eBooks are sold on a non-returnable basis. Payment will be required before receiving your order of an eBook.