Terms of Sale

TERMS AND CONDITIONS OF SALE 
 
1. Interpretation
1.1. Modplay Pty Ltd ACN 637 895 713 carries on business from this website and shall be referred to in these Terms and Conditions as “Modplay, we, our or us”.
1.2. The goods and services described in this website are available for you to make an offer to Modplay via the website to purchase at the specified price referred to in the website and otherwise in accordance with these terms.
1.3. In these terms:-
1.3.1. You means the person using this website who makes an offer to purchase Products in accordance with the Terms. 
1.3.2. Website means www.modplay.com.au  
1.3.3. Order means an offer made by you in response to an invitation to treat made by Modplay via this website.
1.3.4. Terms means these terms and conditions of sale. 
1.3.5. Product or Products means the products available for sale by Modplay as reflected on this Website from time to time. 
1.3.6. GST has the meaning provided in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
2. Terms of Use
2.1. By accessing and / or using the Website you accept these terms and agree to be bound by them if an agreement is formed between us and you.  
2.2. These terms may be amended at any time without notice and your access to this Website may be terminated at any time without notice.  Your continued use of the Website after amendment of these terms constitutes your agreement to be bound by these Terms, as amended.  
3. Legal Capacity
3.1. Any Order made by you using this Website is an acknowledgement that you:-
3.1.1. Are 18 years of age or older;
3.1.2. Accept these terms;
3.1.3. Accept that these Terms and your Order will constitute the entire agreement between you and Modplay for the supply of Product, if the Order is accepted by us.
4. Orders
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4.1. Products offered for sale by Modplay on this Website constitutes an invitation to treat and not an offer to sell.  
4.2. You may enter into a contract with Modplay for the sale and supply of Products by making an offer to purchase a Product at the published price by:-
4.2.1. Placing an Order for the Product using the Website; and
4.2.2. Making payment in full (plus any applicable delivery charge) through the Website; and 
4.2.3. The acceptance of that offer by Modplay 
4.3. Once an Order is placed you cannot cancel or revoke such Order unless Modplay expressly agrees.  
4.4. You acknowledge that, to the extent permitted by law, Modplay is not liable to you in any way for loss or damage howsoever caused arising directly or indirectly out of the transmission of any electronic instruction through the Website, including any failure to receive an electronic instruction, for whatever reason.  
4.5. Modplay may act on and process all completed electronic instructions transmitted or issued through the Website without further consent from or reference to you and is under no obligation to investigate the authenticity or authority of the issuer of such electronic instructions.  
4.6. If an Order is not accepted by Modplay, you will be notified by telephone or email and a full refund will be made available to you. 
4.7. Modplay may, in its sole and absolute discretion accept or refuse an offer made by you in accordance with the Terms.  
4.8. Any representations made about the availability of Product are subject to change. 
5. Price 
5.1. Prices indicated on the Website are shown in Australian dollars.  Prices may not include delivery charges.  Prices are subject to change, at any time before an offer by you is accepted by us.  Prices will be increased by the amount of any GST which may be applicable, except to the extent that such taxes are expressly included in any indicated price.
5.2. Modplay reserves the right to correct any errors published on the Website.  
6. Payment 
6.1. Payment for a Product must be made in full prior to delivery.  
6.2. Payments must be made via the secure payment gateway facilities accessible on the Website and will be subject to the terms and conditions of the payment gateway provider.  
7. Supply and Delivery 
7.1. Subject to Modplay accepting your Order, we will sell and supply the Product the subject of your Order in accordance with these Terms. 
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7.2. Products may not be available for immediate delivery.  Modplay will endeavour to deliver your Order within twenty eight (28) days of the date you place your Order, but no warranty or representation is made in that respect.  Delivery times may be longer for regional deliveries or for delivery in areas otherwise remote from Brisbane, Queensland.  
7.3. Orders will be delivered to an address specified by you unless you elect to collect your Order. 
8. Delivery by Carrier 
8.1. This clause applies where you select to have the Product delivered to a nominated address. 
8.2.  A delivery address must be within Australia and cannot be made to a Post Office box.  
8.3. Either we or a carrier may contact you by telephone or email to arrange a suitable time for delivery. 
8.4. You will be required to be available in person to accept delivery of an Order.
8.5. Changes to the delivery date or address must be given no later than 48 hours prior to the despatch of your Order.  
8.6. Modplay is unable to warrant any specific timeframes for delivery as many factors may affect delivery timeframes.  Modplay will use all reasonable endeavours to effect delivery within any stated timeframe. 
8.7. Modplay does not accept responsibility for delivery failures or delays by any third party delivery contractor, whether engaged by Modplay or otherwise.
9. Collected Orders 
9.1. If you elect to collect Product from Modplay or from its nominated address, Modplay will contact you by telephone or email to notify you when an Order is available for collection. 
9.2. Orders for collection must be collected within twenty-one (21) days of notice that it is available for collection.  If any Order is not collected within this timeframe, Modplay has the right to allocate the Product to another customer and re-order the Product for you.  
10. Title 
10.1. Title and risk in the Product (including loss and damage) pass to you on deliver or collection as the case may be.
11. Fraud 
11.1. To the extent permitted by law Modplay will not be responsible for any damage or consequential loss (whether direct or indirect) suffered by you, where a credit card account is fraudulently used or used in an unauthorised manner.  
12. Children’s Play Equipment
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12.1. Where the Product you are acquiring from Modplay consists of children’s play equipment, the following safety recommendations apply:-
12.1.1. Always place any play piece on a soft but sturdy surface (never concrete or hard ground); 
12.1.2. Use of play equipment by children must be supervised at all times with an adult within arm’s reach of a child.  Children should never be left unsupervised. 
12.1.3. Where the Product requires assembling, care should be taken to ensure assembly in accordance with the manufacturer’s recommendations.  
12.1.4. Any recommended weight limit for a Product must be adhered to, without exception. 
12.1.5. Where a play Product consists of steps or a rocking style play toy, all body parts should be kept clear of the underside of the Product. 
12.1.6. Whilst play Products are, unless otherwise expressly stated, suitable for both indoor and outdoor use, Modplay recommends play Products be kept protected from climatic conditions and be stored at all times undercover.  
13. Workmanship Warranty
13.1. Modplay warrants that the Products sold by it pursuant to these terms will be  free from defects in materials and workmanship for a period of two (2) years  from the date of purchase.
13.2. This warranty does not cover failure of Products due to improper application  or use and in order to trigger this warranty, you must provide reasonable  supporting material evidencing failure resulting from defects in materials or  workmanship.
14. Disclaimer and Indemnity 
14.1. To the extent permitted at law, Modplay excludes all liability to you or anyone else for loss or damage of any kind (howsoever caused or arising) relating in any way to the use of this Website including loss or damage you might suffer as a result of:-
14.1.1. Errors, mistakes or inaccuracies on this Website.
14.1.2. Personal injury or property damage resulting from access or use of this website.
14.1.3. Any unauthorised access to or use of this Website.
14.1.4. Any interruption or cessation of transmission to or from the Website. 
14.1.5. Any bugs, viruses or other harmful code or communications which may be transmitted to or through the Website by any third party.
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14.2. Except as expressly provided in these terms, and to the fullest extent allowed by the law, Modplay will not be liable for any direct, indirect, special, incidental or consequential damage arising out of your access to or use of this Website.  
15. Liability Limitation Issues 
15.1. Modplay shall not be liable for any loss or damage to, or failure to deliver, or delay in delivery or the misdelivery of Product or any other services or goods provided under these Terms however caused and irrespective of the circumstances in which such loss, damage, failure to deliver, delay in delivery or misdelivery may have occurred and notwithstanding that same may have been due to or as a result of any breach of these Terms or by the negligence or wilful act or omission or misconduct on the part of Modplay or any of its servants or agents or any other person.
15.2. This exclusion of liability extends to include damage to any person, property or thing damaged during or in the course of the Order or delivery of the Product and to any indirect or consequential loss arising from such loss, damage or injury or from the failure to delivery, delay in delivery or misdelivery of the Product.  
15.3. All the rights, exclusions and limitations of liability in these terms and conditions shall continue to have full force and effect notwithstanding any breach of these Terms by Modplay or any person entitled to the benefit of such provisions.  
15.4. Notwithstanding the foregoing, where legislation implies in these terms and conditions any warranty, and that legislation prohibits provisions in a contract modifying or excluding the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in these Terms.  However, the liability of Modplay for breach of any such condition or warranty shall be limited to one or more of the following in the sole and absolute discretion of Modplay:-
15.4.1. Supplying the Product or services again; or
15.4.2. Payment of the costs of having such Products or services supplied again.  
16. Force Majeure
16.1. Modplay will not be liable for any delay in performing any of its obligations if such delay is caused by circumstances beyond its reasonable control including, but not limited to, failure of or interruption in the provision of essential services such as electricity supply, electronic banking payment systems or product delivery systems.  
17. Governing Law
17.1. These terms will be governed by and interpreted in accordance with the laws of Queensland, Australia and you irrevocably submit to the non-exclusive jurisdiction of the courts of that State.  
18. Severance 
18.1. If any provision of these terms is found to be unenforceable or invalid by a court of law such invalidity or unenforceability will not affect the remainder of this agreement which will continue in full force and effect. 
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19. Waiver 
19.1. The failure by Modplay to exercise or enforce any rights it may have under these terms will not constitute a waiver of such right or provision.  A waiver of a provision of these terms will only be effected if in writing and signed by Modplay.