Terms of Trade Of Outright Mobile Phone

DEFINITIONS:

1. "Coupons" means any coupons or codes advertised by Mate Australia from time to time which can be redeemed for a percentage discount or special gift;
 
2. "Goods" means the goods supplied by Mate Australia to you;
 
3. "Mate Australia" means Mate Australia Pty Ltd (ACN 128 004 786);
 
4. "Services" means the services provided by Mate Australia at your request in respect of the goods;
 
5. "Terms" means these terms and conditions of trade;
 
6. "You" means the person, firm or corporation, jointly and severally if there is more than one, acquiring goods or services from Mate Australia.

BASIS OF AGREEMENT AND ORDERING:

7. These Terms apply exclusively to every contract for the sale of goods or services entered into by Mate Australia and cannot be varied or supplanted by any other terms, including your terms and conditions of purchase (if any).
 
8. Any quotation provided by Mate Australia to you concerning the proposed supply of goods or services is an invitation to treat only, and is subject to you entering into a contract with Mate Australia and accepting these Terms.
 
9. A contract is formed between Mate Australia and you when Mate Australia confirms by electronic means its acceptance of your order and receipt of your payment.
 
10. Mate Australia in its absolute discretion may refuse to accept any order.
 
11. An application by you to apply for a mobile telephone plan displayed on the
website is subject to acceptance by the relevant telecommunications service provider.

PRICING AND PAYMENT:

12. Prices displayed for the supply of goods or services include GST and any other taxes or duties imposed on or in relation to the goods or services. In addition payment of the price of the goods or services, you must pay any GST and any other taxes or duties incurred in relation to the goods or services.

13. Where there is any change in the costs incurred by Mate Australia in relation to the goods or services, Mate Australia may vary its price for the goods or services to take account of such change, by notifying you.
 
14. Payment for the goods or services must be made strictly by credit card or electronic funds transfer immediately upon confirmation of your order. Goods and services ordered will not be dispatched until full payment has been confirmed.
 
15. Payment terms may be revoked or amended in Mate Australia's sole discretion at any time immediately upon notice to you.
 
16. Goods and services displayed on this website are subject to availability. If any goods and services ordered are not available, Mate Australia will inform you within 2 days. In the case of non-availability of goods or services:
 
16.1 you may request the provision of substitute or similar goods or services; or
 
16.2 cancel your order; and
 
16.3 Mate Australia will make the appropriate adjustment to, or refund of, the purchase price.

REDEMPTION OF COUPONS

17. Coupons may only be redeemed at this Website, and are not redeemable for cash. You must enter the Coupon during the ordering process in order to redeem the percentage discount or free gift.
 
18. Mate Australia reserves the right to vary or terminate the Coupon program at any time. Any special conditions from time to time relating to the redemption of the Coupons will be displayed on this Website.

MOBILE TELEPHONE PLANS

19. The mobile telephone plans displayed on the Website are provided by third parties and are subject to additional terms and conditions as specified by the relevant telecommunications service provider. The mobile telephone plans, and any additional terms and conditions, may change from time to time in the discretion of the service provider. You will be required to accept the terms and conditions of the relevant service provider prior to confirmation of your order.
 
20. Some service providers may require further documentation to be provided by you after the internet check-out process has been completed.
 
21. The coverage of mobile telephone service networks varies between telecommunications service providers. It is your responsibility to confirm that coverage is suitable for your use or intended use.
 
22. Mate Australia has used its best efforts to ensure that the information contained on the Website concerning the mobile telephone plans is accurate. However, Mate Australia does not warrant, represent or guarantee that the information will be error-free. It is your responsibility to confirm the details of the mobile telephone plan selected with the relevant service provider.

RISK AND INSURANCE:

23. The risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods will pass to you immediately upon the goods being dispatched from the premises of Mate Australia or the relevant telecommunications service providers as appropriate.
 
24. You assume all risk and liability for loss, damage or injury to persons or to your property or the property of third parties, arising out of the use or possession of any of the goods or services sold by Mate Australia.

DELIVERY:

25. Mate Australia will, in its discretion, arrange for delivery of the goods or services to you at a nominated address within Australia.
 
26. Mate Australia will designate the method of delivery of the goods or services. If you require a more costly method of delivery, you must reimburse Mate Australia for the extra cost involved.
 
27. You will be responsible for all costs associated with delivery, including postage or courier delivery, insurance and other charges arising from the point of dispatch of the goods to the point of delivery to the Australian address nominated by you. This applies to any other charges arising if item is returned back to Mate Australia Pty Ltd for any reason.
 
28. Any period or date for delivery of the goods or provision of the services stated by Mate Australia is intended as an estimate only and is not a contractual commitment. Mate Australia will use its reasonable endeavours to meet any estimated date for delivery of the goods or completion of the services, but will in no circumstances whatsoever, be liable for any loss or damage suffered by you or any third party for failure to meet any estimated date.
 
29. A postage receipt completed by Mate Australia directing delivery to the address nominated by you will be proof of delivery of the goods and services.
 
30. You may be required to provide photo identification and proof of payment at the time of delivery of the goods or services to the nominated delivery address.
 
31. You indemnify Mate Australia against any loss or damage suffered by Mate Australia as a result of delivery, except where caused by Mate Australia's negligence.

LIABILITY:

32. Except as specifically set out in these Terms, or contained in any warranty statement provided with the goods or services, any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
 
33. Replacement of the goods or re-supply of the services is the absolute limit of Mate Australia's liability howsoever arising under or in connection with the sale, use, storage or any other dealings with the goods by you or a third party.
 
34. Mate Australia is not liable for any indirect or consequential losses or expenses suffered by you or any third party howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
 
35. Mate Australia will not be liable for any loss or damage suffered by you where Mate Australia has failed to deliver the goods or services, fails to meet any delivery date or cancels or suspends the supply of goods or services.
 
36. Nothing in these Terms is to be interpreted as restricting, excluding or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.

ACKNOWLEDGEMENTS:

37. You acknowledge that:
 
37.1 you have not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Mate Australia in relation to the goods or services or their use or application.
 
37.2 you have the sole responsibility of satisfying yourself that the goods or services are suitable for your use or contemplated use.
 
37.3 any description of the goods or services provided by Mate Australia is given by way of identification only and does not constitute a contract of sale by description.

CANCELLATION:

38. Subject to clause 16:
 
38.1 if, through circumstances beyond Mate Australia's control, Mate Australia is unable to effect delivery of the goods or services, then Mate Australia may cancel your order (even if it has already been accepted) by written notice to you.
 
38.2 Any purported cancellation or suspension by you of an order is not binding on Mate Australia after that order has been accepted and payment confirmed.

WARRANTY AND RETURNS

39. The goods and services supplied by Mate Australia are subject to specific warranties that are provided by the manufacturer of the goods or the relevant telecommunications service provider. All claims for warranty must be directed to the manufacturer of the goods or the relevant telecommunications service provider.
 
40. Goods supplied by Mate Australia may be covered by specific 'early life failure' ("ELF") periods as specified by the manufacturer. If a fault develops in the goods during the applicable ELF period, you may return the goods to Mate Australia for replacement. You are responsible for the costs of returning the goods to Mate Australia. Mate Australia is responsible for the costs of delivering the replacement goods to you.
 
41. You may return any unopened (sealed) goods supplied by Mate Australia and obtain a refund of the purchase price less delivery charges and 25% of the cost of the item as restocking fee provided that:
 
41.1 the unopened (sealed) goods are returned within 7 days of delivery,
 
41.2 the unopened goods are in their original packaging with all accessories included; and
 
41.3 you pay all postage charges associated with the return of the goods.
 
42. Unless a fault is established in the goods, Mate Australia will not accept the return of any opened (seal broken) goods. You will be responsible for all delivery charges for returning the goods to you.

MISCELLANEOUS:

43. The law of Victoria from time to time governs your contract with Mate Australia.
 
44. Failure by Mate Australia to enforce any of these Terms will not be construed as a waiver of any of Mate Australia's rights.
 
45. If any of these Terms are unenforceable, it must be read down so as to be enforceable, or if this is not possible, it must be severed from the Terms without affecting the enforceability of the remaining Terms.
 
46. A notice must be in writing and must be sent by mail, facsimile, sms or email to the notified address of the addressee. Notices sent by mail are deemed to be received 2 days after posting. Notices sent by facsimile, sms or email are deemed to be received upon confirmation of successful transmission.
 

June 2008