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Conditions of Purchase

The ACER Shop is an online shop established and maintained by The Australian Council for Educational Research Ltd (ABN 19 004 398 145) (ACER) at <insert hyperlink> (Shop) to enable registered users to purchase goods (Goods) and services (Services) (together Products) from ACER by placing an online order (Order).

This agreement sets out the terms of a contract between you and ACER under which you may access and use the Shop on your own behalf or on the behalf of an Account Holder provided you are a User.  By visiting, registering for, or using, this Shop, you agree to be bound by and abide by this agreement (as amended from time to time).

ACER reserves the right from time to time to change this agreement without prior notice or your consent.  You are responsible for informing yourself of any changes to this agreement and any notices posted on the Shop and should read them carefully before you register, log in or use the Shop.  However, any changes made to these terms will only apply to you in relation to any new Orders placed after the agreement is amended.

This agreement supplements ACER’s Online Terms of Use (Online Terms of Use) which are incorporated in, and form part of, this agreement.  However, these Conditions of Purchase take precedence over those terms to the extent of any inconsistency.

 

1   Definitions and Interpretation

 

1.1     Defined Terms

In this agreement unless the contrary intention appears:

  1. Account Holdermeans each person or entity that has registered an account with ACER to use the Shop;
  2. Business Daymeans a day other than a Saturday, a Sunday or a public holiday within the meaning of the Public Holidays Act 1993 (Vic);
  3. Corporations Actmeans the Corporations Act 2001 (Cth);
  4. Delivery Servicemeans any third party courier or other distribution service provider reasonably selected by ACER (unless expressly otherwise agreed with you);
  5. Dutiesmeans any duty, tax, excise or similar tax relating to the supply of a Product to you other than GST or a tax on ACER’s income;
  6. GST Lawhas the meaning given by the A New Tax Shop (Goods and Services Tax) Act 1999 (Cth);
  7. Insolvency Eventmeans, for a person, being:
    1. (i)  in liquidation or provisional liquidation or under administration, having a controller or analogous person appointed to it or any of its property;
    2. (ii) being taken to have failed to comply with a statutory demand, be unable to pay its debts or otherwise insolvent;
  • dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing its own affairs;
  1. subject to any action that could result in the person becoming an insolvent under administration;
  2. entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors; or
  3. any analogous event;
  1. Intellectual Property Rightsmeans all present and future rights conferred by statute, common law, equity or any corresponding law including without limitation in or in relation to any copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions, Confidential Information and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.  These rights include all rights in all applications to register these rights, all renewals and extensions of these rights and all rights in the nature of these rights, such as Moral Rights;
  2. Moral Rightmeans a right of attribution of authorship, a right not to have authorship falsely attributed, a right of integrity of authorship or a right of a similar nature, conferred by statute or otherwise, and which exists or comes to exist anywhere in the world;
  3. Ordermeans each Order for Products placed by a User on behalf of an Account Holder using the Shop;
  4. Qualificationsmeans any qualifications or requirements determined by ACER that you need to have in order to purchase or use a particular product; and
  5. Usermeans the Account Holder and each user authorised by the Account Holder to place Orders on behalf of the Account Holder.

1.2      Interpretation

In this agreement, unless stated otherwise, an agreement, representation, covenant or warranty in favour of, or given by, two (2) or more persons is in favour of, or given by, them jointly and severally. Unless stated otherwise, each reference to ‘you’ is to an Account Holder and each User authorised by it jointly and severally.

 

2 Provision of the Shop

To the extent permitted by law, ACER provides the Shop ‘as is’ and does not provide any representations or warranties regarding the Shop including without limitation in relation to availability, defect, accuracy or completeness. ACER may make amendments to the Shop at any time in its absolute discretion.

Provided you are a User, ACER grants to you a revocable, non-exclusive and non-transferable licence to use the Shop for the limited purpose of using the Shop to place Orders.  ACER reserves the right to revoke your licence at any time in its absolute discretion.

 

3 Your Obligations

You must:

  1. only use the Shop for the purpose of placing Orders, in accordance with the documentation supplied with any Product and any reasonable directions from ACER;
  2. comply with the Online Terms of Use;
  3. comply with any applicable third party terms and conditions (including licence restrictions) when using any Product;
  4. carefully read, understand and follow any instructions or warnings that are provided with any Product;
  5. only purchase or use a Product if you are properly qualified, registered and licenced to use the Product (including holding any Qualifications) and immediately cease use of a Product if you cease to hold the relevant qualifications, registrations or licences;
  6. cease using a Product if it has been superseded or its use has been discontinued if reasonably directed by ACER;
  7. ensure that all information that you provide to ACER in relation to your registration, account information and any Order (including without limitation in relation to your identity, your location and your qualifications and registrations) is true, accurate, complete and is not misleading in any way (By providing any such information to ACER or by placing an Order you represent and warrant to ACER that the information you have provided is true, accurate, complete and is not misleading in any way and, in the case of any Product requiring a particular qualification or registration, that you hold the relevant qualification or registration); and
  8. keep all passwords, account names, tokens or log in identifications required to access the Shop secure and confidential.

You agree to indemnify and hold harmless ACER and its related parties (as defined under the Corporations Act) and their officers, employees and subcontractors from any additional costs, expenses or claims to the extent that they are caused, or contributed to, by a breach of this agreement by you.

 

4  ORDERS, DELIVERY and PRODUCT RETURNS

  1. Unless expressly agreed otherwise with ACER all Orders are binding on you when submitted and may not cancelled. If ACER does subsequently agree to cancel all or any part of an Order, unless otherwise agreed with ACER you are responsible for returning the Product to ACER and will pay ACER’s reasonable costs of cancelling that Order and restocking the Product (ACER may set off those amounts against any amount it refunds to you in respect of that Order).
  2. All Orders are subject to availability of the relevant Product.  While ACER will use reasonable endeavours to ensure that the relevant Product is in stock prior to you placing an Order, ACER may cancel any order without liability if it has insufficient stock. 
  3. In relation to any Product that is subject to a Qualification, ACER may review and accept or reject the Order in its absolute discretion.  ACER is not required to provide reasons in respect of any rejection of an Order.
  4. ACER may cancel any Order at any time if ACER becomes aware that you have breached this agreement (including submitting any information to ACER regarding your identity, location or Qualifications which is not true and correct in all respects).
  5. Unless expressly stated otherwise in the Shop, ACER may supply you with a newer version of a Product ordered which may contain minor variations to the Product advertised on the Shop.
  6. Unless expressly agreed otherwise with you, ACER will deliver any Product to you by delivering the Product to a Delivery Service or arranging for a Delivery Service to collect the Product from ACER on your behalf.  Any delivery times stated on the Shop are only indicative and ACER does not endorse or guarantee the services of any Delivery Service.
  7. Unless expressly agreed otherwise with ACER, any obligation on ACER to provide a refund or a replacement is contingent on you returning, and ACER receiving, the original product.

5  Title and Risk

  1. Subject to clause 7:
    1. risk in relation to any Goods pass to you when the Goods are delivered to, or collected by, the relevant third party Delivery Service; and
    2. title to any Goods passes to you on the later of payment and the Goods being delivered to, or collected by, the relevant third party Delivery Service.
  2. In the event that any Good is returned to ACER:
    1. risk in relation to any Goods passes back to ACER on delivery to ACER’s nominated return address; and
    2. title to any Goods passes back to ACER on the earlier of reimbursement by ACER or delivery to ACER as set out in paragraph (i) above.

6  PRICE AND PAYMENT

  1. Unless expressly stated otherwise all prices are in AUD and are exclusive of GST and Duties.
  2. Unless agreed otherwise all prices are payable in advance at the time an Order is placed and ACER’s obligations to deliver any Product is contingent on ACER receiving payment from you.
  3. Where an ACER has agreed to provide you credit terms:
    1. unless otherwise agreed you must pay each invoice from ACER within 30 days of the date of the Order;
    2. any amount outstanding will become immediately due and payable if you are subject to an Insolvency Event or if you fail to pay an amount due within 2 Business Days of written notice from ACER that the amount is overdue;
    3. ACER may charge you, and you agree to pay, interest on any overdue amount at the rate of 10% per annum (or if that rate is not enforceable, the maximum rate permitted by law) monthly in arrears (compounding monthly);
    4. ACER may in its absolute discretion withdraw those credit terms and require you to pay for any further Products in advance;
    5. ACER may suspend delivery of any Product to you if any amount due by you is not paid to ACER when due; and
    6. you will pay ACER its costs and expenses of recovering any overdue amount from you.
  4. Words and phrases defined in the GST Law have the same meaning in this clause. If GST is payable on a Taxable Supply made in connection with this agreement, the party providing the Consideration for that Taxable Supply must also pay the GST Amount as additional Consideration.  This clause does not apply to the extent that the Consideration for the Taxable Supply is expressly agreed to be GST inclusive.  No payment of any amount pursuant to this agreement is required until the supplier has provided a Tax Invoice or Adjustment Note as the case may be to the recipient.  Any reference in the calculation of Consideration or of any indemnity, reimbursement or similar amount to a cost, expense or other liability incurred by a party, must exclude the amount of any Input Tax Credit entitlement of that party in relation to the relevant cost, expense or other liability.
  5. Unless expressly agreed otherwise with ACER you are responsible for any Duties payable in respect of Products ordered by you. If ACER becomes liability for any Duty in respect of a supply to you, you will pay the Duty (or reimburse ACER) on demand from ACER.

7  THIRD PARTY TERMS AND Intellectual Property Rights

  1. Unless expressly agreed otherwise, all third party products and services are provided subject to the relevant third party’s terms and conditions.  Those terms may be noted in the Product description in the Shop or may be provided together with the Product.
  2. You acknowledge and agree that nothing in this agreement transfers or assigns to you any of ACER's (or any third party’s) Intellectual Property Rights.  Subject to paragraph (a) or any separate licence terms, you agree that ACER (or the relevant third party) grants you a limited right to use any of those Intellectual Property Rights in connection with the Product and subject to any limitations or qualifications stated in relation to that Product.
  3. Unless otherwise specified, you may not:
    1. resell or distribute any Product to any third party;
    2. make additional copies of a Product; and
    3. modify a Product or use it in a manner not expressly contemplated in the Shop or the documents provided with the Product.

You agree that any development of the Shop (including any developments suggested or contributed to by you) are the property of ACER and you assign and present or future Intellectual Property Rights that you might have in relation to those developments to ACER and waive any Moral Rights that you may have in relation to those developments.

 

8   DISCLAIMER AND Limitation of Liability

  1. Except as otherwise expressly provided in this agreement, all other warranties, representations, promises, conditions or statements regarding the Shop or any Product, whether express or implied, and whether statutory or otherwise are to the full extent permitted by law expressly excluded.
  2. While ACER has used reasonable endeavours to ensure that the contents of the Shop (including without limitation all product descriptions) are accurate, to the extent permitted by law:
    1. ACER does not endorse any particular third party product or services, view, opinion, methodology or practice;
    2. ACER has relied on information provided by third party suppliers and publishers in relation to their Products and you acknowledge that information may not be accurate or complete;
    3. any information contained within the Shop, or provided by ACER in connection with a Product, should be considered information of a general nature only that may not be suitable for you particular circumstances (or anyone that you are providing advice or services to) and should not be relied on;
    4. you should obtain (and you should advise any person that you are providing advice or services to obtains) professional advice regarding the proper use of any Product and the interpretation of any results obtained in connection with using a Product; and
    5. if you are using (or permitting the use of) a Product to provide professional advice or commercially, you are responsible for the proper use of the Product and you indemnify and hold harmless ACER (and its related parties, officers and employees) for liability or costs (including legal costs) relating to any claim by you or a third party in relation to your use of a Product (or the use of a Product permitted by you).
  3. To the extent permitted by law, ACER disclaims all liability for, and you release ACER from any claims (including negligence) in connection with this agreement or the transactions contemplated by it:
    1. regarding indirect, consequential or special losses, damages or penalties;
    2. in excess of the charges paid by you in relation to the relevant Order; and
    3. for any use of a Product by you.
  4. You may have legal rights and guarantees under the Australian Consumer Law. Nothing contained in this agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law to the extent not permitted by law. Pursuant to s 64A of the Australian Consumer Law:
    1. this sub-clause applies in respect of any of the goods or services supplied under these terms and conditions which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this sub-clause will not apply if you establish that reliance on it would not be fair and reasonable;  and
    2. liability for breach of a guarantee conferred by the Australian Consumer Law, other than those conferred by ss 51–53 of that Law, is limited:
  5. in the case of goods, to any one of the following as determined by ACER: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; and
  6. in the case of services, to any one of the following as determined by ACER: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again.

9       Confidentiality

You must not disclose to any other person any information in relation to any Product that is stated to be confidential or that is by its nature confidential (including without limitation the instructions for use of a Product to any person that is not licenced and responsible for administering the relevant Product).

 

10    Privacy

Without limiting the Online Terms of Use, you consent to ACER:

  1. using any personal information provided by you for the purpose of general research by ACER and for the development of ACER’s products and services; and
  2. disclosing de-identified data regarding the purchase as use of Products to third parties for the purpose of research and the marketing and improvement of Products.

11    Notices

A notice required or permitted to be given by one party to another under this agreement must be in writing and is treated as being duly given if it is delivered or sent by pre-paid mail to that other party's address as notified in writing from time to time.  ACER’s current details are 19 Prospect Hill Road, Camberwell VIC 3124.  Any notice to you is effective if given to the Account Holder and you agree that ACER may give notices by email to the email address specified by the Account Holder in its online account. A notice given to a party in accordance with clause is treated as having been received when delivered (in the case of it being left at that party's address or email notices to you) or on the third Business Day after posting (in the case of it being sent by pre-paid mail).

 

12    Miscellaneous

(a)    A waiver of any right, power or remedy under this agreement must be in writing signed by the party granting it.  A waiver is only effective in relation to the particular obligation or breach in respect of which it is given.  It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.

(b)    This agreement constitutes the entire agreement between the parties in relation to the matters dealt with. No party can otherwise rely on an earlier document or anything said or done by or on behalf of another party before this agreement was executed.

(c)    Any provision in this agreement which is invalid or unenforceable is to be read down, if possible, to such an extent as is reasonable in the circumstances so as to be valid and enforceable, and is otherwise capable of being severed to the extent of the invalidity or unenforceability, without affecting the validity of the remainder of this agreement or the enforceability of that provision in any other jurisdiction.

(d)    Accrued rights and obligations,  each disclaimer or limitation of liability and any provision necessary to give effect to any of those rights or obligations survives termination or expiry of this agreement or any Order.

(e)    Neither party may assign or transfer any of its rights or obligations under this agreement without the prior consent in writing of the other party (such consent not to be unreasonably withheld or delayed).

(f)     ACER may subcontract delivery of its obligations under this agreement but remains responsible for any act or omission of any of its subcontractors subject to any qualifications set out in this agreement.

(g)    ACER will not be in breach of its obligations under this agreement to the extent that it is prevented from performing its obligations by an event that is beyond its reasonable control.

(h)    This agreement is governed by the law in force in the State of Victoria.  Each party submits to the non-exclusive jurisdiction of the courts of the State of Victoria and any Courts which may hear appeals from those courts.

(i)     This agreement shall be binding on the executors, administrators, successors, substitutes and permitted assigns of each of the parties.

(j)     Where a term of this agreement has the effect of requiring anything be done on or by a day which is not a Business Day, it must be interpreted as if it required it to be done on or by the next Business Day

(k)    A provision or any part of a provision in this agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this agreement and/or the inclusion of the provision or part of the provision.

(l)     Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this agreement and any transactions contemplated by it.

(m)   Where this agreement contemplates that a party may agree or consent to something (however it is described), that party may agree or consent, or not agree or consent, in its absolute discretion and agree or consent subject to conditions, unless this agreement expressly contemplates otherwise.