Terms and Conditions of Sale

In these terms, when we say we, us, or our, we mean U Be Fit Pty Ltd (ACN 129 190 450) ATF Stallworthy Business Trust t/as Your Reformer, and when we say you or your, we mean the entity named on the proposal as the customer receiving the Goods. These terms apply from the date you accept the proposal to which these terms are attached (together, the Proposal).

1.               Supply of Goods

1.1             In consideration of your payment of the price set out in the Proposal, we will supply the goods specified in the Proposal (Goods).

1.2             You may accept the Proposal by informing us in writing, paying any part of the price for the Goods, or by instructing us to supply the Goods in the Proposal. If you do not accept the Proposal within 30 days of its issue, we are not required to honour it and may issue you with an updated Proposal.

1.3             Our acceptance of the Proposal (including any purchase orders issued) is subject to these terms only. Any conflicting terms in your documents are rejected unless we agree to them in writing. These terms prevail over any terms and conditions contained in any order, offer, acceptance or other document of yours. We may revoke the Proposal at any time prior to acceptance.

2.               Delivery, Title and Risk

2.1             Title in the Goods will only pass to you on the date that you pay the price for the Proposal in full.

2.2             Risk in the Goods will pass to you upon delivery.

2.3             You must pay the costs to deliver Goods (including air freight) to the agreed location, unless the Proposal states otherwise. Delivery timeframes are estimates only and we will use reasonable endeavours to meet estimated delivery dates but do not guarantee delivery by any particular date.

2.4             We may offer promotional delivery pricing, including "Free Delivery" which will be set out in the Proposal. When this promotion is offered:

(a)             it will apply only to selected delivery locations within our standard service areas;

(b)             certain regional, rural or remote locations may incur an additional delivery charge where freight costs exceed standard service coverage or where a third-party delivery service is used;

(c)              additional delivery charges may apply where you elect to upgrade delivery services, including but not limited to express, priority, installation, premium handling or other expedited delivery options;

(d)             final delivery availability and the applicable delivery price will be calculated based on the delivery location postcode, service availability and selected delivery method; and

(e)             we reserve the right to determine delivery eligibility and the applicable delivery price at our discretion.

2.5             If for any reason you fail to accept delivery of any of the Goods at the delivery address when the Goods are ready for delivery, or we are unable to deliver the Goods because you have not provided appropriate instructions, documents, licences or authorisations, you must pay the cost of redelivery and our reasonable storage costs for the Goods until redelivery is actioned.

2.6             Unless we have explicitly agreed to provide delivery into your premises and you have paid the applicable charges for that service, you must provide at the delivery location and at your own expense adequate and appropriate equipment and manual labour for unloading and receiving the Goods.

2.7             The quantity of any consignment of Goods as recorded by us on dispatch will be conclusive evidence of the quantity received by you on delivery, unless you can provide conclusive evidence proving the contrary.

2.8             If we fail to deliver the Goods to the agreed delivery location, our liability for such non-delivery will be limited to replacing the Goods within a reasonable time or refunding any amount paid by you for such Goods, at our option.

2.9             Where Goods are supplied to you without payment in full, you:

(a)             are a bailee of the Goods until title in them passes to you;

(b)             must store the Goods separately until full payment from all other goods in a manner that keeps them readily identifiable as our property, must not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods, and must maintain the Goods in satisfactory condition and keep them insured for their full price against all risks;

(c)              irrevocably appoint us to be your attorney to do all acts and things necessary to ensure our retention of title to the Goods, including the registration of any security interest in our favour with respect to the Goods; and

(d)             must not allow any other person to have or acquire any security interest in the Goods without our prior written consent; and

(e)             must not resell the Goods, claim any lien over the Goods, or deliver the Goods or any document of title to any person except as directed by us.

3.               Price and Payment

3.1             You agree to pay us the price for the Proposal in accordance with the payment terms set out in the Proposal.

3.2             If any payment has not been made by the due date for payment, we may: (a) cancel the Proposal and recover our costs from you (including debt collection costs); and/or (b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 4% per annum,, calculated daily and compounding monthly, on any such amounts unpaid after the due date.

3.3             You are responsible for paying any taxes imposed by any government authority relating to the Goods, such as GST.

3.4             We have quoted the Price on the basis that the materials or component products incorporated into the Goods can be acquired from third party suppliers at an estimated price at a certain date. You acknowledge and accept that we may pass through increased supply costs to you by increasing the Price by an equivalent amount at any time prior to our delivery of the Goods to you. If you do not agree to the increased Price, you may terminate the Proposal and this Agreement by written notice within 5 Business Days of receiving our notification of the Price increase, in which case we will refund to you any money paid as full or part payment of the Price, and neither Party will incur any further liability to the other as a result of such termination.

4.               Security Interest

4.1             You acknowledge and agree that:

(a)             this Agreement is a ‘security agreement’ under the Personal Property Securities Act 2009 (Cth) (PPSA);

(b)             this clause 4 creates a security interest in the Goods and any proceeds from any sale or disposal of the Goods, and we are a secured party in relation to the Goods and any such proceeds;

(c)              we are entitled to register our interest on the relevant register as (at our discretion) a security interest, and if applicable, a ‘purchase money security interest’;

(d)             we are entitled, at any time until title in the Goods passes to you, to demand the return of the Goods and enter (or have our representatives enter) any premises occupied by you in order to search for and remove the Goods without notice or liability to you; and

(e)             you must (at your cost), where we request, take all steps that we consider necessary or desirable to assist us to register our security interest, to ensure our security interest in the Goods and the proceeds is enforceable, and to perfect, or better secure our position under this Agreement, or ensure our priority over all other security interests.

4.2             Until such time as title in the Goods has passed to you as contemplated under clause 2.1, you must not allow any other person to have or acquire any security interest in the Goods, unless with our prior written consent.

4.3             You agree not to, without first providing at least 14 days' written notice to us, change your name, ACN, ABN, address, email address or any other details that have been, or are required to be, recorded on the PPSR in connection with any security interest created by this Agreement.

4.4             To the extent the Law permits, you waive your right to receive any notice (including notice of a verification statement) that is required by the PPSA, including but not limited to notices under sections 95, 118, 121, 130, 132, 135 or 157. However, this does not prevent us from giving a notice under the PPSA.

4.5             You must not disclose any information of the kind referred to in section 275 of the PPSA, to the extent permitted under that section.

4.6             Nothing in this clause 4 is intended as an agreement to subordinate a security interest arising under this Agreement and conditions in favour of any person under section 61 of the PPSA.

4.7             In this clause 4, a ‘security interest’ includes any form or lien, encumbrance or a security interest under the PPSA.

4.8             Terms used in this clause 4 but not defined have the same meanings as in the PPSA.

4.9             This clause 4 will survive the termination or expiry of this Agreement.

5.               Supply Delays and Force Majeure

5.1             We will not be liable for any delay in delivery caused by circumstances beyond our reasonable control, including: supply chain disruptions, component shortages, manufacturing delays, transport delays, labour disputes, natural disasters, pandemics, government actions, or supplier failures.

5.2             Where delivery is delayed due to such circumstances, we will use reasonable efforts to minimise delays and will notify you as soon as practicable. Time for delivery will be extended accordingly and we will not be liable for any losses arising from such delays.

6.               Returns, Refunds and Cancellation

6.1             No refunds will be provided for change of mind, incorrect ordering, or where Goods have been specially manufactured or configured for you.

6.2             Claims for damaged or faulty Goods are to be notified in writing with photographic evidence.

6.3             Subject to clause 3.4, you have no right to cancel orders once accepted by us unless we agree in writing. If we agree to cancellation, you must pay all costs incurred by us including procurement costs, freight charges, and storage costs.

7.               Liability

7.1             Certain legislation, including the Australian Consumer Law, may confer you with rights, warranties, guarantees and remedies that cannot be excluded, restricted or modified (Consumer Law Rights), and nothing in this Agreement excludes those rights. Subject to your Consumer Law Rights, we supply all Goods without conditions or warranties of any kind, implied or otherwise (including any implied warranties of merchantability or fitness for a particular purpose), whether in statute, at law or otherwise, except as expressly set out in this Agreement.

7.2             To the extent permitted by Law, the following provisions of the Goods Act 1958 (Vic) are excluded from this Agreement: sections 17, 18, 19(a), 19(b) and 20.

7.3             Where our Goods are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to:

(a)             replacing the Goods or the supply of equivalent Goods, or the payment of the cost of replacing the Goods or of supplying equivalent Goods; or

(b)             the repair of the Goods, or the payment of the cost of having the Goods repaired.

7.4             Except where not permitted by law: (a) our total liability to you is limited to the price you paid for the Goods; and (b) neither party is liable for any indirect or consequential losses, or any real or anticipated loss of profits or revenue.

7.5             Each party's liability will be reduced if the other party caused or contributed to the loss, including by failing to minimise their losses.

7.6             This clause survives the fulfillment or cancellation of the Proposal.

8.               Variation and Termination

8.1             All variations to the Goods must be agreed in writing and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed.

8.2             The Proposal will terminate immediately upon written notice by a party (Non-Defaulting Party) if: (a) the other party (Defaulting Party) breaches a material term of the Proposal and that breach has not been remedied within 10 days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or (b) the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due.

8.3             Upon cancellation or termination of the Proposal, you must immediately pay all amounts owing and return any unpaid Goods.

9.               General

9.1             Confidentiality: Each party must keep confidential all information received from the other party, and must ensure their staff do the same, except where disclosure is required by law or to professional advisers for advice, provided the adviser also maintains confidentiality.

9.2             Intellectual Property: Nothing in this Agreement constitutes a transfer or assignment of one Party’s Intellectual Property Rights to the other Party. For the avoidance of doubt, nothing in this Agreement assigns or transfers any right or title to any intellectual property in the Goods to you, and you are not granted any licence to use any of our marks, names, logos, branding or merchandise for any reason.

1.1             Governing Law: The Proposal is governed by the laws of Victoria. The Parties agree that the U.N. Convention on Contracts for the Sale of International Goods is excluded from application to the Proposal.

1.2             Subcontracting: We may subcontract the supply of any part of the Goods without your prior written consent.  We agree that any subcontracting does not discharge us from any liability under the Proposal and that we are liable for the acts and omissions of our subcontractor.