MILLER’S TOOLING Pty Ltd (ABN; 37 114 870 012) trading as MILLER’S TOOLING SHOP ONLINE
These Terms & Conditions of Website Use & Purchase are current on and from November 2024.
- MILLER’S TOOLING SHOP ONLINE
(a) MILLER’S TOOLING Pty Ltd (referred as “Millers”, “we“, “our” or “us“) operates the business from www.shoponline.millerstooling.com.au (“Site“). Customer is also referred as Dealer.
(b) We may offer online purchases on our Site for any of our products. Any access to, use of, or purchase that you make through our Site is subject to these Terms & Conditions of Website Use & Purchase (“Terms”) and any other conditions that we specify from time to time.
(c) Some of our products described on the Site will be available for purchase from the Site, in the sole discretion of Millers, and the products (subject to availability) will be available for purchase in-store at our approved retailers.
(d) You and Millers may enter into a sale contract for the sale and supply of products, by you making an offer to purchase the products at the specified price, subject to these Terms.
- Acceptance of terms
2.1 Agreement
(a) We strongly recommend that you read all of the terms in these Terms.
(b) By browsing, accessing, using the Site or ordering a product, you agree to be bound by these Terms.
(c) If you do not agree, please do not use our Site or order our products or please cease using our Site.
2.2 Use of Site
As a condition of your use of our Site, you warrant that:
(a) you must only use the Site in accordance with these Terms and any applicable law;
(b) you are at least 18 years of age and capable of entering into this agreement;
(c) you must not (or attempt to):
(1) interfere (or attempt to interfere) or disrupt (or attempt to disrupt) the Site or the servers or networks that host the Site;
(2) use (or attempt to use) data mining, robots, screen scraping or similar data gathering and extraction tools on the Site; or
(3) interfere (or attempt to interfere) with security-related or other features of the Site;
(d) all information you supply to us is true, accurate, current and complete; and
(e) you must not link to our Site or any part of our Site in a way that damages or takes advantage of our reputation, including but not limited to in a way to suggest or imply that you have any kind of association and affiliation with us, or approval and endorsement from us that you do not have;
(f) you will not use the Site in a manner that may damage, disable, overburden or impair the Site or interfere with any other party’s use and enjoyment of the Site.
- Guests and registered users
(a) If you are a Customer (Dealer) you may purchase any available products from our Site as a Dealer Account holder.
(b) To become a holder of a Customer Account (Dealer Account) on the Site, you must:
(1) provide your name, delivery and billing address, telephone number and valid email address and nominate a password;
(2) provide the details of the company you work for or that you are engaged by to provide services;
(3) if required, have duly completed a Credit Application (which has been approved by us); and
(4) ensure all information you supply to us is true, accurate, current and complete.
(c) If you do not comply with section (b), we may not be able to activate your Account or supply products to you. You agree to keep your details current at all times by accessing your account via any of the Site.
(d) You will receive an email from us as soon as practicable after you create your Account.
(e) You must not use another person’s Account without their permission.
(f) If you forget your password for your Account, you may re-set that password by clicking on the relevant link on the Site and we will email you a new password.
(g) We reserve the right to terminate or suspend an Account without notice for any reason whatsoever including, without limitation, if we determine or suspect that you have breached these Terms.
- Site availability
4.1 Security
You alone are responsible for your use of the Site and protection of your password. You are also responsible for all activities that occur in connection with your Account. If you suspect that your password or Account are no longer secure you agree to:
(a) notify us immediately of any unauthorised use or security breach of your Account; and
(b) change your password.
4.2 Suspension
We may suspend (in part or whole), and without prior notice to you, your Account or access to the Site for any reason whatsoever, including without limitation, if:
(a) there is a malfunction, fault or breakdown of any equipment we use, or any repairs, maintenance or services are required;
(b) we are required to do so by law;
(c) an event of Exceptional Circumstance occurs, which affects or may affect our ability to provide the Site and any related services;
(d) for engaging in prohibited conduct under section 4.3 or 12(d);
(e) if someone claims that the Site infringes their Intellectual Property Rights;
(f) if someone makes a Claim that exposes us to Liability; or
(g) if we determine or suspect that you have breached this agreement.
A suspension for any of these reasons will not affect any right which accrues prior to, or after, suspension of our obligations under these Terms.
4.3 Fraud; suspicious activity
If you have, or we detect that you have carried out any fraudulent activity, we may take any of the following actions as we determine are reasonable:
(a) suspend or deactivate your Account;
(b) cancel any purchase made on your Account;
(c) notify any affected persons or third parties; and
(d) take any legal action we deem necessary and you may be Liable for any Loss we incur, including litigation costs and damages.
If you wish to contest the cancellation of a purchase, or the suspension or deactivation of your Account, please contact us.
4.4 Downtime and limitations
You agree that:
(a) the Site will not be available at all times and without disruption;
(b) access to the Site may occasionally be limited due to Scheduled Maintenance;
(c) access to the Site is reliant upon various factors outside our control, including, without limitation, events of Exceptional Circumstance, your internet service provider, telecommunications provider or equipment used to access the Site;
(d) although we will use reasonable endeavours to ensure you have continuous access to the Site, we are not be liable to you or any other person for any Claim or to any other extent for Loss or damage caused by such factors; and
(e) you will have no Claim against us in respect of loss of access or functionality to the Site referred to in this section 4.4.
- Quotations
(a) If Millers provides any quotation for goods to a Dealer, that quotation shall remain valid for acceptance by the Dealer 30 days after issue of the quotation.
(b) Millers is under no obligation to honour a quotation provided to a Dealer once the 30 day period has elapsed.
- Orders
(a) Representations of products for sale by Millers on the Site do not constitute an offer to sell, but instead an invitation to treat.
(b) When placing an Order, you must follow the instructions on the Site as to how to make your Order and for making changes to your Order before you submit it, including providing us with:
(1) your full name and (if applicable Company name);
(2) a delivery address, which cannot be a PO Box;
(3) a billing address (if different from your delivery address)
(4) your contact phone number and email address;
(5) if you are a Dealer, and have received a quotation in accordance with clause 5 and that is still current, listing the quotation reference; and
(6) any special delivery instructions.
(c) A Dealer has no limitation on the quantity of individual products it may purchase, subject only to any limitations imposed by Millers in its sole discretion including credit limitations or stock availability.
(d) If you discover that you have made a mistake with your Order after you have submitted it to any of the Site, please email us immediately (and not more than 24 hours from the time your Order was submitted) at Millers, provided that your Order has not already been dispatched in accordance with section 8 of these Terms. We cannot guarantee that we will be able to amend your Order in accordance with your instructions.
(e) We may offer cancellations of your Order, provided you give us written notification to [email protected] of the cancellation within 24 hours of submitting your Order to the Site and your Order has not already been dispatched in accordance with section 8 of these Terms. We cannot guarantee that we will be able to cancel your Order in accordance with your instructions.
(f) When you complete the placing of an Order, you will receive a confirmation email from us. This email is only an acknowledgement, and will not constitute acceptance of your Order.
(g) A contract for the purchase of the products will only be formed on the happening of all of the below:
(1) you place an Order online for the products through any of our Site;
(2) you confirm the details of your Order in accordance with the procedures on any of our Site;
(3) you make payment in full of any amounts due and owing and in accordance with section 7 of these Terms;
(4) you receive an email from us notifying you that the items have been shipped.
(h) Until a contract has been formed in accordance with section 6(g), we are not obliged to provide you with the products. Before this time, we may in our sole discretion, refuse to accept an Order from you, refuse to process an Order or cancel an Order for any reason, including:
(1) unavailability of stock or we may offer you an alternative product (in which case, you may be required to re-submit an Order);
(2) an error in the advertised price for, or description of, the products on our Site;
(3) an error in your Order;
(4) if this is not permitted in accordance with your credit approvals.
(i) If an Order is not accepted for any reason or a cancellation has been permitted under section 6(e) and Millers has received payment, we will organize a refund to be issued to you in accordance with section 11.
(j) If you have any enquiries about the progress of your order, please email Gamer at [email protected], and we will endeavor to answer your enquiry.
NOTE: FREE SHIPPING will only be applicable if total goods are AUD$399.00 PLUS GST or over, Maximum weight is 20kg or less, Maximum cubic metre 250 M 3 or less, only available into in Metro areas (Remote towns etc may require shipping quote at our discretion.) NOTE: FREE SHIPPING will only be applicable if total goods are AUD$399.00 PLUS GST or over, Maximum weight is 20kg or less, Maximum cubic metre 250 M 3 or less, only available into in Metro areas (Remote towns etc may require shipping quote at our discretion.)
- Price & payment
(a) Prices are shown in Australian dollars and include GST (unless expressly specified as being GST exclusive) where applicable and may not include delivery and handling charges, unless otherwise indicated. Prices are subject to change from time to time.
(b) Each published saving or discount offered is by reference to the recommended retail price of the normal ticketed price of that product on our Site.
(c) Images of any products shown without any advertised price beside that image are not offered for sale. Unless otherwise stated, any accessories shown in any images of any products are not included in the price.
(d) We reserve the right to correct any errors published on our Site.
(e) Once you select a product that you wish to order and that product is available for online order, irrespective of any previous prices you have seen or heard, you will be shown on the respective Site the price you may pay consistent with section 7(a).
(f) Payment for delivery in accordance with section 8 must occur in any of the following manners:
(1) for a Dealer who has received an approved Credit Application, delivery may occur prior to complete payment being received and will be dealt with in accordance with the application credit terms; or
(2) for a Dealer who has not had a Credit Application approved, all payments must be made in full prior to delivery occurring.
(g) Payment must be made by one of the following methods:
(1) by credit or debit card;
(2) by direct debit;
(3) by PayPal or other secure payment gateway facilities (and will be subject to any terms and conditions of these providers); or
(4) by another payment gateway (and will be subject to any terms and conditions of these providers).
- GST
(a) Where Millers makes a Taxable Supply under or in connection with the Terms, the Dealer must pay, in addition to any other consideration payable in respect of the Taxable Supply, the amount of any GST on the Taxable Supply.
(b) Where a party to the Terms is entitled, under or in connection with the Terms or in connection with any matter or thing occurring under the Terms, to recover all or a proportion of its costs or is entitled to be compensated for all or a proportion of its costs, the amount of the recovery or compensation shall be reduced by the amount of (or the same proportion of the amount of) any Input Tax Credits available in respect of those costs.
(c) In the Terms:
(1) “GST” means the tax payable on Taxable Supplies under Australian GST Legislation;
(2) “GST Legislation” means A New Tax System (Goods and Services Tax) Act 1999 (Act) and any related act imposing such tax or legislation that is enacted to validate, recapture or recoup such tax;
(3) “Input Tax Credit” has the meaning given in the Act; and
(4) “Taxable Supply” has the meaning given in the Act.
- Deliveries
9.1 Delivery
(a) Subject to you complying with these Terms, and formation of a contract under section 6(g), Gamer will sell and supply the products to you in accordance with your Order.
(b) The delivery address must be an address within Australia and cannot be a freight forwarding location. Deliveries cannot be made to PO Boxes.
(c) On either:
(1) receipt of your payment under section 7; or
(2) if section 7(f)(1) applies, on receiving your Order, your Order will be dispatched to your specified delivery address generally within 10 Business Days of you placing an Order.
(d) You will be required to be available in person to accept delivery of your Order.
(e) If you wish to change a delivery date or delivery address, you must contact us by email at [email protected] at any time up until 72 hours prior to dispatch of your Order. We cannot confirm that your delivery address will be changed in accordance with your request, and we will not be able to process your request if you have been provided with a notice that your Order has been dispatched.
(f) Millers will not accept responsibility for delivery failures or delays by any delivery provider.
(g) Any return of a product, other than in section 11.6, will only be accepted with the written approval of Millers and may be subject to a non-refundable 20% handling or restocking fee chargeable to the Dealer.
9.2 Unavailability or delays
(a) We aim to deliver products to your delivery address within the time indicated by us at the time of your Order, but we cannot guarantee any firm delivery dates or timeframes.
(b) If any product is unavailable for dispatch, Millers will provide you with notice by way of email of such unavailability and the anticipated time of delivery.
(c) Other than in respect of delivery to regional or remote areas, if we are unable to deliver your product within 10 Business Days of you placing an Order, we may cancel your order and arrange a refund in accordance with section 11 for any payment that you have made.
9.3 Receiving delivery of Order
- NOTE: FREE SHIPPING will only be applicable if total goods are AUD$399.00 PLUS GST or over, Maximum weight is 20kg or less, Maximum cubic metre 250 M 3 or less, only available into in Metro areas (Remote towns etc may require shipping quote at our discretion.)
(a) You must ensure that you are able to take delivery of the product without undue delay.
(b) If you or one of your representatives is not available to take delivery, the couriers may leave a card giving you instructions on either re-delivery or collection from the carrier.
(c) If delivery or collection is delayed by your unreasonable refusal to accept delivery or if you do not (within 2 weeks of our first attempt to deliver the product to you) accept delivery or collect the product from the carrier, then we may (without affecting any other right or remedy available to us) do any of the following:
(1) charge you for our reasonable storage fees and other costs reasonably incurred by us; or
(2) no longer make the product available for delivery or collection and notify you that we are cancelling the contract (as formed under section 6(h)), in which case we will process a refund in accordance with section 11).
(d) Within 14 days after delivery of the goods to the Dealer, the Dealer shall complete any inspection or testing required by it to confirm the goods are satisfactory and in accordance with the description of the goods. Any failure to provide notice within the time period afforded will be a deemed acceptance of the goods by the Dealer.
(e) The Dealer shall not use the goods (other than to the extent reasonably necessary for the inspection and testing) before the Dealer completes the inspection and testing and satisfies that the goods are satisfactory and in accordance with the description of the goods.
(f) If the Dealer informs Millers that the goods are not satisfactory and in accordance with the description of the goods, Millers must be afforded a reasonably opportunity to inspect and test the goods and Gamer receives the notice.
9.4 Title and Risk
(a) If delivery is delayed by the Customer’s fault, risk shall pass at the date when delivery was scheduled to have occurred.
(b) Title and risk in the goods will pass to you in accordance with the credit terms.
(c) From the time that risk passes to you, we will not be liable for loss or destruction of the product.
(d) You must take care when opening the product so as not to damage it.
- Acknowledgements & Warranties
10.1 Millers acknowledgements
We acknowledge that:
(a) 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 repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure; and
(b) we have full right and title to sell you the products in accordance with these Terms.
10.2 Your warranties
You warrant to us that:
(a) you have full right and title to purchase the products in accordance with these Terms;
(b) you have all necessary authorities from your employer or principal to complete the order and purchase the products;
(c) you have complied with the obligations imposed on you in section 3 when creating your Account; and
(d) unless otherwise agreed in writing by Millers, any goods supplied to a Dealer are intended for use in Australia only such that if any such goods are exported by the Dealer, it is the responsibility of the Dealer to comply with the laws of any foreign country to which the goods are exported.
- Exchanges, returns & refunds
11.1 Exchanges
Please choose carefully, as we only offer exchanges of any product for another product at our sole discretion.
11.2 Change of mind returns
Please choose carefully, as we only offer change of mind returns for any product at our sole discretion.
11.3 Damaged in transit
(a) Products must be inspected by you upon delivery.
(b) If any products appear to be damaged on delivery, please contact us by email at [email protected] and provide us with:
(1) a description of the damage;
(2) photographs of the damage;
(3) your shipping details (including address and date of delivery); and
(4) your order number, as soon as possible (and not longer than 24 hours from receiving the Order).
(c) Upon consideration of your notification of damage correctly issued to us in accordance with section 11.3(b), Millers may then arrange for the damaged goods to be collected in accordance with section 11.6 and either arrange (in our sole discretion) to provide you with a refund or a replacement.
11.4 Faulty products
(a) If your product is faulty, please inform us as soon as you become aware of the fault by contacting us in writing at [email protected] and describing the fault (Fault Notice).
(b) If the product that you have purchased has any of the following types of problems, being a major problem:
(1) if you had known about this problem, you would not have purchased the product;
(2) the product is significantly different from the sample or description;
(3) the product is substantially unfit for its common purpose and cannot be fixed within a reasonable time;
(4) the product does not do what you asked for and cannot be fixed within a reasonable time;
(5) the product is unsafe, then we may provide you with your choice of:
(6) refund for the full purchase price paid; or
(7) replacement of the product for the same product.
(c) If the product that you have purchased has problem, other than those specified in section 11.4(b), being a minor problem, then we may, in our sole discretion, provide you with:
(1) refund for the full purchase price paid; or
(2) replacement of the product for the same product.
11.5 Repairs
(a) If the fault in the product is a minor fault in section 11.4(c), then you are obliged to accept a free repair if we offer that to you as your sole and exclusive remedy.
(b) We will take all reasonable endeavours to collect, at our own cost, a product with a minor fault for repair within10 Business Days of receipt of a Fault Notice or such other reasonable time period.
(c) On receiving your product for repair, the product will be assessed and/or repaired within a reasonable timeframe. You may be provided with an indicative time frame for the repair, which may vary due to reasons beyond our control including by virtue of our suppliers or manufacturers.
(d) If we are unable to collect your product for repair within the timeframe specified in section 11.5(b), or take an unreasonable amount of time to repair your product, you may:
(1) take the product for repair at a third party repairer, and provide us with a receipt for the costs of repairs;
(2) request a replacement product in writing;
(3) request a refund for the product in writing (and we will arrange for the product to be returned);
(4) request in writing, compensation for a drop in value of the product due to the repairs required.
(e) Should Millers undertake any repairs to the product, as at the date of completion of the repairs and for a period of one year from then, we repeat the acknowledgements in section 10.1 but in respect of the repairs only.
11.6 Returns
Where a return is made due to a product being damaged in transit under section 11.3, a faulty product under section 11.4 or a product repair not progressing under section 11.5(d)(3), we will make all arrangements for and bear all costs associated with shipping return or transportation of the product.
11.7 Replacements
If you are entitled to a replacement of a product in accordance with section 11.3, 11.4(b) or 11.4(c), then we will:
(a) arrange for a product of an identical type to be delivered to you (if available); and
(b) collect the faulty product, at our own cost.
11.8 Refunds
(a) A full refund of any purchase price you have paid will be provided in the following circumstances:
(1) your Order is not accepted for any reason or we have agreed to cancel your Order as per section 6(i);
(2) a product is unavailable for delivery as per section 9.2(c);
(3) where a product has a major problem and you have elected to receive a refund in section 11.4(b);
(4) where a product has a minor problem and we have elected to provide you with, and you have accepted receiving a refund in section 11.4(c);
(5) you have requested and we have accepted your request under section 11.5(d)(3) to receive a refund (following return of the affected product to us).
(b) You are not entitled to a refund in the following circumstances:
(1) you found the same or a similar product cheaper somewhere else; or
(2) any other reason not otherwise specified.
(c) A refund will ordinarily be processed within 7 Business Days of us receiving the returned product, and you confirming your payment details. We cannot process a refund to a different account or card than that used to pay for the product.
- Information on the Site
(a) Millers retain ownership of the Site, the content on the Site and any copyright, trade marks and other Intellectual Property Rights that are created or subsist in the Site.
(b) Unless otherwise stated, we take all reasonable steps to ensure that the product descriptions, inclusions or exclusions, images and availability are correctly presented on our Site.
(c) Due to photographic and screen limitations associated with the representation of products, some actual products may differ to a small extent in visual appearance (for example in colour) from the way they appear on the Site. In addition, where it is suitable to do so, some depictions of products are created or chosen by us for promotional purposes, and may not be an exact representation of the products received.
(d) To the extent possible, you must not:
(1) post any material, content or comments, or do anything which is unlawful, offensive, abusive, indecent, defamatory, vulgar, derogatory, inappropriate or menacing, or in breach of any rights of others;
(2) cause annoyance, inconvenience or needless anxiety to others;
(3) post commercial advertisements or promotional material.
(e) We reserve our rights to delete any of your post(s), content or any comment(s), and suspend your access or immediately terminate your account if, in
our sole opinion, you breach your obligations under these Terms or the above prohibitions in section 12(d).
- Intellectual property rights
(a) All Intellectual Property Rights in the Site (including text, graphics, logos, icons, photographs, images, sound recordings and software) are owned by (or licensed to) Millers.
(b) You must not reproduce, transmit, communicate, adapt, distribute, sell, modify or publish or otherwise use any of the material on the Site, including audio and video excerpts, except as permitted by statute or with our prior written consent.
(c) Our Site is protected under the Copyright Act 1968 (Cth) and international copyright and other laws governing the protection of Intellectual Property Rights. You must not in any form or by any means (except as expressly authorised by the Copyright Act 1968 (Cth) or these terms and conditions):
(1) adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any works or other subject matter or any part of this Site generally; or
(2) commercialise any works or other subject matter, information, products or services obtained from any part of this Site; without our written permission.
(d) All brand, product and service names used in the Site are the trade marks of us or third parties who have licensed us to use their trade marks. You are not allowed to use or reproduce any such trade marks, and you may only use such trade marks for accessing, viewing and/or interacting with the Site.
(e) Unless we agree otherwise in writing, you are provided with access to the Site only for your personal use (or business use, if you are a Dealer). You are authorised to print a copy of any information contained on this Site for your personal use or business use (if you are a Dealer, only), unless such printing is expressly prohibited. Without limiting the foregoing, you may not without our written permission on-sell information obtained from the Site.
(f) You grant to us a perpetual, worldwide, royalty-free, transferable, licencesable and sub-licensable, irrevocable right to use, copy, modify, distribute, publish and process any content that you post in use of the Site.
(g) You give us your complete and genuine consent to our use of all or any portion of any content that you post in use of the Site, even if such use by us would otherwise be an infringement of your moral rights (as that term is defined in the Copyright Act 1968 (Cth)).
- Links to third party websites
For your convenience, the Site may provide links or references to external websites or applications. We do not control or endorse those external websites or applications, and are not responsible or Liable for the accuracy, legality, or any other aspect of the content of such websites or for any damage or injury arising in connection with your access to such websites.
- Cookies
(a) We may use “cookies” when you visit our Site. It is a technology that enables us to operate an efficient service and track the patterns of behaviour of visitors to the Site. There are four main types of cookies, including:
(1) Site functionality cookies – these cookies allow you to navigate the Site and use our features;
(2) Site analytics cookies – these cookies allow us to measure and analyse how our customers use the Site, to improve both its functionality and your shopping experience;
(3) Customer preference cookies – when you are browsing or shopping on our Site, these cookies will remember your preferences (like your language or location), so we can make your shopping experience as seamless as possible, and more personal to you; and
(4) Targeting or advertising cookies – these cookies are used to deliver marketing and advertising materials that are relevant to you. They also limit the number of times that you see an ad and help us measure the effectiveness of our marketing campaigns.
(b) By using our Site, you agree to us placing these sorts of cookies on your device and accessing them when you visit the Site in the future. You can modify the settings on your device to prevent cookie use. Please note by disabling cookies, your user experience may be affected and you might not be able to take advantage of certain functions of our Site.
(c) Notwithstanding any other provision in these Terms, we may also engage a third party service provider who may combine your information with information from other sources, and may place or recognise a unique cookie on your browser for the purpose of identifying users and delivering to them interest-based content and advertisements.
- Privacy policy
(a) We do not provide your personal information to third parties for their marketing purposes without your explicit consent.
(b) We do not transfer or store your personal information at a destination outside of Australia, but our third party service providers do. By accepting these Terms you expressly acknowledge, consent and agree to the disclosure, transfer, storing or processing of any of your personal information outside of Australia.
(c) In providing this consent, you understand and acknowledge that countries outside Australia do not always have the same privacy protection obligations as Australia in relation to personal information. The Privacy Act 1988 (Cth) requires us to take such steps as are reasonable in the circumstances to ensure that any recipients of your personal information outside of Australia do not breach the privacy principles contained within the Privacy Act 1988 (Cth). By providing your consent, under the Privacy Act 1988 (Cth), we are not required to take such steps as may be reasonable in the circumstances.
- Disclaimer and our limitation of liability
17.1 Disclaimers
You acknowledge and agree that, despite all reasonable precautions on our part, we exclude all Liability to you or anyone else for Loss or damage of any kind (howsoever caused or arising) relating in any way to your purchase, including but not limited to any Loss or damage you may suffer as a result of:
(a) any Loss of or damage to the product you have purchased where we are not responsible for such Loss or damage;
(b) the unavailability of any product you have purchased;
(c) any unauthorised activity on your Account if you fail to keep your login information secure;
(d) any errors, mistakes or inaccuracies on the Site;
(e) you acting or failing to act on any information contained on or referred to on the Site and / or third party websites;
(f) personal injury death or property damage of any kind resulting from your access or use of the Site;
(g) any fraud;
(h) any unauthorised access to or unauthorised use of the Site’s secure servers;
(i) any interruption or cessation of transmission to or from the Site;
(j) any bugs, Trojan horses or other harmful code or communications which may be transmitted to or through the Site to any third parties; and / or
(k) the quality or fitness for any purposes of any third party websites, and you acknowledge that the existence of any of the above in this section 17.1 will not be a breach of this agreement.
17.2 Implied terms
(a) To the full extent permitted by law,
(1) any term which would otherwise be implied into these Terms is excluded (subject to section 17.2(b));
(2) you acknowledge that we provide the Site on an ‘as is, where is’ basis, and we make no warranties or representations, express or implied, as to the Site (and any information, images or documentation provided in connection with it).
(b) Notwithstanding section 17.2(a)(1), nothing in these Terms excludes liability for:
(1) a compulsory consumer guarantee which applies under the Competition and Consumer Act 2010 (Cth) and which cannot be excluded, restricted or modified and as applicable to any product;
(2) to the extent the Australian Consumer Law (as contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth)) applies to the supply of goods by Gamer to the Dealer:
(A) Millers goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Dealer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Dealer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure;
(3) any other term which cannot lawfully be excluded, such terms will apply, save that our Liability for breach of any such term will be in accordance with the remainder of this section 17.
17.3 Consequential Loss
To the maximum extent permitted by law, we (and any of our Related Entities) do not accept responsibility for any Loss or damage (whether in contract, tort, statute or otherwise) for any consequential, incidental, special, exemplary or indirect damages of any kind, or for any loss of profits, revenue or opportunity arising out of or in connection with this agreement, your use of this Site or reliance on any information contained in this Site, or use of any linked web site, however caused, even if we have been advised of or should have known the possibility of such damages.
17.4 Limitation of liability
(a) To the extent we are held liable in connection with these Terms (whether in contract, under a right of indemnity, tort or statute), then our cumulative liability will be limited (at our option) to any one or more of the following:
(1) re-supplying the product to which the liability relates or the supply of equivalent services; or
(2) refunding (subject to the cap on liability in this section 17.4) the amount you paid for the relevant product under this agreement.
(b) This limitation of liability extends to Loss, damage or personal injury caused directly or indirectly by your access to or inability to access the Site and your reliance on any information provided on the
Site, even if we have been advised of the possibility of such damages or injury.
(c) Despite anything else in these Terms, to the extent that we are liable in connection with these Terms (whether in contract, under a right of indemnity, tort or statute), our cumulative liability in the aggregate (to the fullest extent permitted by law) will not exceed the invoiced amount for the relevant product(s) in question.
(d) The parties acknowledge and agree that the foregoing provisions represent a reasonable allocation of risk and that the parties would not enter into this agreement absent such provisions.
- Your Indemnity
(a) You agree to indemnify us and our Related Entities (as that term in defined under the Corporations Act 2001 (Cth)) and agents from all Claims, Liabilities and expenses (including legal fees) that arise from
(1) your breach of these Terms;
(2) your breach of any warranty given in section 10.2;
(3) your breach of any applicable law or third party rights;
(4) your use (including misuse) of the Site.
(b) We reserve the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defences.
- Miscellaneous
19.1 Governing Law; Jurisdiction
These terms and conditions are governed by and construed in accordance with the laws of Queensland, Australia. Each party submits to the non-exclusive jurisdiction of Queensland, Australia.
19.2 Notices
(a) You can give us notice under this agreement by email at [email protected].
(b) We can give you notice under these Terms by emailing you at the address you provide in your Account.
(c) You agree to keep your contact information up-to-date, and understand that we will have no way of notifying you if your contact information is not current.
19.3 Assignment
(a) You must not assign, transfer or novate all or any part of its rights or obligations under or relating to this agreement or grant, declare, create or dispose of any right or interest in it, without the prior written consent of each other party.
(b) Millers may assign, transfer or novate all or any part of its rights or obligations under or relating to these Terms in its sole discretion and without prior notice to you.
19.4 Severability
If a provision of this agreement is illegal, invalid, unenforceable or void in a jurisdiction it is severed for that jurisdiction and the remainder of this agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.
19.5 Variation
An amendment or variation to these Terms is effective from:
(a) the date it is published on the Site; or
(b) if you are an existing Dealer, 2 days following the date you are provided notice of the Terms to your email address.
19.6 Waiver
(a) A party’s waiver of a right under or relating to this agreement, whether prospectively or retrospectively is not effective unless it is in writing and signed by that party.
(b) No other act, omission or delay by a party will constitute a waiver of a right.
19.7 Your responsibility
It is your responsibility to:
(a) make your own enquiries and an independent decision before forming an opinion or taking any action based on the information contained in our Site; and
(b) ensure that the product you wish to purchase is sufficient and suitable for your purposes and meets your individual requirements.
- Definitions & interpretation
20.1 Definitions
In this agreement:
Account means a Dealer or Customer Account.
Business Day means a day which is not a Saturday, Sunday or public holiday in Queensland, Australia.
Claim means, in relation to a person, any action, allegation, claim, demand, judgment, liability, proceeding, remedy, right of action or right of set-off made against the person concerned however it arises whether:
(a) it is present, unascertained, immediate, future or contingent;
(b) it is based in contract, tort, statute or otherwise; or
(c) it involves a third party or a party to this agreement.
Credit Application means the commercial credit application submitted by the Dealer, and subject to the applicable credit terms.
Exceptional Circumstance means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under this agreement. Such circumstances include:
(a) adverse changes in government regulations;
(b) any disaster or act of God, lightning strikes, atmospheric disturbances, earthquakes, floods, storms, explosions, fires and any natural disaster;
(c) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, cyber attacks, viruses or malware, data loss as a result of the actions of a third party;
(d) strikes or industrial disputes;
(e) materials or labour shortage; and
(f) acts or omissions of any third party network providers (such as internet, telephony or power provider).
Dealer means a B2B customer purchasing our products for their commercial use or on-sale as a retailer who has completed a Credit Application (and been approved by us),
Dealer Account means an account with us that you register on our Site as a Dealer.
Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, circuit layouts, designs, trade marks, know-how, confidential information, patents, inventions, plant breeder’s rights and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
Fault Notice means a notice under section 11.4(a).
Liability means any liability, debt or obligation, whether actual, contingent or prospective, present or future, qualified or unqualified or incurred jointly or severally with any other person.
Loss means any loss (including Consequential Loss under section 17.3), claims, actions, liabilities, damages, expenses, diminution in value or deficiency of any kind whether direct, indirect, consequential or otherwise.
Order means the order submitted by you to the Site to purchase products from us.
Related Entity means a person which is a related entity within the meaning of that term in section 9 of the Corporations Act.
Scheduled Maintenance means preventative or emergency maintenance in relation to any hardware, software, platform or communications network used, or relied upon, to make available the products and Site.
Site has the meaning in section 1(a).
20.2 Interpretation
(a) Unless the contrary intention appears, a reference in this agreement to:
(1) this agreement or another document includes any variation or replacement of it despite any change in the identity of the parties;
(2) one gender includes the others;
(3) the singular includes the plural and the plural includes the singular;
(4) a person, partnership, corporation, trust, association, joint venture, unincorporated body, Government Body or other entity includes any other of them;
(5) an item, recital, section, sub-section, paragraph, schedule or attachment is to an item, recital, section, sub-section, paragraph of, or schedule or attachment to, this agreement and a reference to this agreement includes any schedule or attachment;
(6) a party includes the party’s executors, administrators, successors, substitutes (including a person who becomes a party by novation) and permitted assigns;
(7) any statute, ordinance, code or other law includes regulations and other instruments under any of them and consolidations, amendments, re-enactments or replacements of any of them;
(8) money is to Australian dollars, unless otherwise stated; and
(9) a time is a reference to time unless otherwise specified.
(b) The words include, including, such as, for example and similar expressions are not to be construed as words of limitation.
(c) Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
(d) Headings and any table of contents or index are for convenience only and do not affect the interpretation of this agreement.
(e) A provision of this agreement must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for the preparation of this agreement or the inclusion of the provision in this agreement.
20.3 Parties
(a) If a party consists of more than one person, this agreement binds each of them separately and any two or more of them jointly.
(b) An agreement, covenant, obligation, representation or warranty in favour of two or more persons is for the benefit of them jointly and each of them separately.
(c) An agreement, covenant, obligation, representation or warranty on the part of two or more persons binds them jointly and each of them separately.
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