Terms of Sale – online only

Native Extracts Pty Ltd ACN 161 185 913
Last amended 28 November 2022. 

1. Terms of Sale

The term and conditions contained in this Terms of Sale (Agreement) constitute a legally binding contract between Native Extracts Pty Ltd ACN 161 185 913 (Native Extracts, Native Extracts, We, Our, Us and other similar terms) and you (Customer, You, Your and other similar terms). 

(a)             Our contact information is as follows:

Native Extracts Pty Ltd ACN 161 185 913
24 Kays Lane
Alstonville NSW 2478
Telephone:  1300 NATIVE
Email address: enquiries@nativeextracts.com

(b)        The Customer and Native Extracts are each a Party to this Agreement and together they are Parties.


2. Definitions and interpretation

2.1  Definitions

In this Agreement the following capitalised terms mean:

(a)        Act means the Competition and Consumer Act 2010 (Cth) as amended from time to time.

(b)        Account means a username and access credentials to Our Website that allows a person to place an order after being approved by Native Extracts in accordance with clause

(c)         Agreement means the terms and conditions contained in these Terms of Sale

(d)        Business Day means any day except Saturday or Sunday or a day that is a public or bank holiday in New South Wales.

(e)        Botanical Species means each of the botanical species that Native Extracts manufactures Extracts from.

(f)          Consequential Loss means loss, expense or damage arising from a breach of contract, tort (including negligence), under statute or any other basis in law or in equity including, but without limitation, the following:

(i)          to loss of profits;
(ii)         loss of revenue;
(iii)        loss of contracts or anticipated contracts;
(iv)       loss or denial of opportunity;
(v)         loss of access to markets;
(vi)       loss of goodwill;
(vii)      loss of business reputation, future reputation or publicity;
(viii)     damage to credit rating;
(ix)       loss of use;
(x)         indirect, remote, abnormal or unforeseeable loss, or any similar loss whether or not in the reasonable contemplation of the parties at the time of formation of the Contract.

(g)        CofA means Certificate of Analysis that is provided with the Goods.

(h)        Extract means a plant, botanical or herbal extract created from a Botanical Species by Native Extracts.

(i)          essenXce means a concentrated liquid or powder manufactured from botanical raw materials (including but not limited to fruit, leaf, flower, wood and fungi for example) using an extraction process to change its composition.

(j)          Goods means an Extract manufactured, distributed by and Ordered by the Customer from Native Extracts via Our Website.

(k)         Intellectual Property means all industrial and intellectual property rights including, without limitation, patents, copyrights, right to extract information from databases, design rights, trade secrets, rights of confidence, and all forms of protection of a similar nature or having similar effect to any of them which may subsist anywhere in the world (whether or not any of them are registered and including applications and the right to make applications for registration of any of them). 

(l)          Invoice means the invoice for the Goods Ordered by the Customer that is provided with the Goods when We ship them.

(m)       Order means the offer to purchase the Goods ordered by the Customer submitted via Our Website when the “Order/Buy” button was clicked that We accept by the act of processing the payment from the Customer’s nominated credit card.

(n)        Packing Slip means a document of this name, issued by Native Extracts that identifies the type and quantity of Goods shipped along with the Technical Documents.

(o)        SDS means a Safety Data Sheet that lists information relating to occupational safety and health for the use of various substances and products in relation to an Extract produced from a Botanical Species. 

(p)        Technical Documents means the entire set of documents that are used to communicate the benefits of an Extract manufactured by Native Extracts and comprised the following:

(i)          LCMS;
(ii)         SDS;
(iii)        COA; and
(iv)       TDS.

(q)        Website means the website located at the URL www.nativeextracts.com.

2.2  Interpretation

In this Agreement:

(a)        a reference to:

(i)          one (1) gender includes all others;
(ii)         the singular includes the plural and the plural includes the singular;
(iii)        a person includes a body corporate;
(iv)       a document or instrument includes the document or instrumented as novated, altered, supplemented or replaced from time to time;
(v)         a Party includes the Party’s executors, administrators, successors, and assigns;
(vi)       a statute, regulation or provision of a statute or regulation (Statutory Provision) includes:
I.    that Statutory Provision as amended or re-enacted from time to time; and
II.   a statute, regulationor provision enacted in replacement of that Statutory Provision;

(vii)      an amount of money is to an amount in Australian dollars (AUD$);
(viii)     time is to Australian Eastern Standard Time; and
(ix)       a Schedule refers to a Schedule contained in this Agreement:;

(b)        including and similar expressions are not 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 the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation;

(e)        where a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next business day; and

(f)          a provision of this Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of this Agreement or the inclusion of the provision in it.


3. Operative Part

3.1  Creation and approval of Customer Accounts

Orders for Goods placed via Our Website may only be placed by Customers with approved Accounts.  On applying for an account to our Website, the potential Customer must:

(a)        provide Us with the all the information We reasonably require to identify themselves as a potential bonafide purchaser of Our Goods; and;

(b)        be able to be contacted by a member of Our Team during business hours to provide any other information We reasonably require; and

(c)         if thought suitable, the potential Customer may be approved by a member of Our Team to hold an Account and subsequently place Orders for Goods on the terms and conditions contained in this Agreement.

3.2       Placing Orders and contract formation

(a)        The terms and conditions contained in this Agreement regarding the sale of Goods come into effect when:

(i)          the Customer logs into their Account on our Website and adds Our products to their cart and then proceeds to place an Order by clicking the “Order/Buy” button.
(ii)         We charge the credit card provided by the Customer for the selected Goods that is linked to their Account;
(iii)        The Customer’s Order is accepted when we receive payment for the Goods Ordered when the Customers nominated credit card is charged. 

(b)        The price shown for the Goods includes:

(i)          the Goods shown in the Order as shown in the Customers shopping cart;
(ii)         any applicable taxes;
(iii)        shipping costs (if applicable) as shown in the Customers shopping cart.

3.3 Acknowledgment by the Customer

The Customer acknowledges that when placing their Order via Our Website, that:

(a)        the information provided regarding the delivery address and the Customer’s contact information is accurate and complete in all respects, and continues to be correct each time they place an Order;

(b)        as soon as the Customer clicks the ‘Order’ button they are liable to pay for the Goods;

(c)         they understand that We may contact the Customer to confirm the details that have been provided regarding the Goods Ordered; and

(d)        quantity limits apply to certain products Ordered via our Website as amended from time to time and as displayed when an Order is placed; and

(e)        We may withdraw or refuse to continue to allow the Customer to have an Account to our Website at any time for any at Our sole and absolute discretion.

3.4  Payment

The Goods Ordered by Customers with approved Accounts may only be paid for by credit card.


4.  Our contract

4.1  The documents that are incorporated into this Agreement

The description of the Goods Ordered by the Customer as shown on Our Website and in the respective shopping cart, their technical description as shown in the Technical Documents, the information provided by the Customer at the time their Account was approved, the details of the Order as placed and these Terms of Sale combine to form the contract between the Parties.

4.2  Current version of this Agreement

Native Extracts may vary these Terms from time to time by publishing them on Our Website.  The terms and conditions that apply to the Goods ordered by the Customer are those shown at the time the Order is placed.


5. Disclaimer of warranties

To the maximum extent permitted by law, Native Extracts disclaims all warranties in relation to the Goods Ordered not expressly made in any of the Technical Documents or herein.

5.1  Customer warranties

The Customer warrants that:

(a)        the Goods have been Ordered at the Customers own discretion and risk;

(b)        they will use the Goods strictly as described by any guidelines or recommendations provided by Native Extracts in the Technical Documents that related to the Goods;

(c)         it has made its own investigations into the suitability of the Goods and is not relying on any representation not expressly made by Native Extracts;

(d)        no advice or information, whether oral or written, obtained from the Native Extracts in relation to the Goods creates any warranty not expressly stated herein.


6.  Limitation of liability

6.1  Exclusion of liability

Subject to any claims made because of a breach of a Non-Excludable Provision available under the Australian Consumer Law, the Native Extracts, its employees, officers and agents are not liable for any loss or damage, including, but not limited to, direct, Consequential Losses, or personal injury or death, however suffered or sustained in connection with:

(a)        any inaccurate or incorrect information provided about the Goods;

(b)        the Customers use of the Goods; and

(c)         any failure or delay including, but not limited to, the use or inability to use the Goods for the purpose they were ordered.

6.2       Agreed liability

(a)        Nothing in this Agreement attempts to modify or exclude the conditions, warranties and undertakings, and other legal rights, under the Australian Consumer Law.  

(b)        Our Goods come with guarantees which cannot be excluded under the Australian Consumer Law.  The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage.   The Customer is also entitled to have the Goods Ordered replaced if they fail to be of acceptable quality and the failure does not amount to a major failure.  

(c)         For claims that cannot be excluded or restricted under Australian Consumer Law, Our liability for such a claim will (at Our option and to the extent permitted by law) be limited to in the case of Goods Ordered:

(i)          to supplying the Goods again; or
(ii)         paying the cost of having the Goods of the same quality supplied again by a third party manufacturer or Our chosing; or
(iii)        whichever is the greater.

(d)        Nothing in this Agreement attempts to limit or exclude liability of Native Extracts in accordance with section 64 of Schedule 2 of the Australian Consumer Law.


7.  Returns and refunds

(a)        Because the Goods sold by Native Extracts are perishable We are not able to accept returns because We are not responsible for what the Customer does with them after they have been shipped.  For this reason we cannot provide refunds for Goods Ordered via our Website.

(b)        In the event the Customer asks to return the Goods at any time after delivery, Native Extracts will consider the request on a case by case basis and may, despite the Goods being in accordance with clause 8 Native Extracts may, at its absolute discretion, accept the return of the Goods, provided that the Customer pays a cancellation fee, comprising of, where applicable, handling, storage, transport, interest (in respect of any delayed payments for the Goods) and disposal costs.


8. Indemnity

The Customer agrees to keep Native Extracts indemnified against all Claims and liabilities of whatsoever nature, including, without prejudice to the generality of the foregoing, claims of death, personal injury, damage to property and Consequential Loss which may be made against the Customer or which the Customer may sustain, pay or incur as a result of or in connection with the manufacture, sale, export, import or use of the Goods, unless such claims or liabilities is directly and solely attributable to any breach of contract or guarantee by, or negligence of Native Extracts or its duly authorised employee or agent.


9. Health, safety and environment

(a)        It is the Customer's responsibility to ensure compliance with all applicable health, safety and environmental regulations in relation to the Goods Ordered and to take all appropriate steps taken in relation to the storage, handling, transport and disposal. 

(b)        The Customer is also responsible for identifying any potential hazards as described in the Technical Documents that that those hazards are brought to the attention of its employees, officers, agents and customers.  

(c)         Without prejudice to the foregoing, it is also the Customer's responsibility to provide safe facilities for the receipt of the Goods into storage.


10. Goods and services tax (GST)

(a)        In this clause the terms 'GST' and 'supply' have the same meaning as in A New Tax System (Goods  and Goods Tax) Act 1999 (Cth) as amended from time to time.

(b)        Unless expressly stated otherwise, all prices quoted are exclusive of GST.

(c)         GST will be charged on those Goods that attract GST at the applicable rate and the Customer must pay the GST inclusive amount on the supply.


11. Force Majeure

(a)        Native Extracts is not under any liability whatsoever for the consequences of any failure on its part to perform or delay in performing any obligation under this Agreement when due, whilst and to the extent that such failure or delay is due directly or indirectly to any Force Majeure Event. This includes any liability whatsoever for any delay in completion, delivery, despatch, shipment or arrival of the Goods or performance of Goods or in the tender of any documents or the like or total or partial suspension of deliveries by Native Extracts.

(b)        If there is a Force Majeure Event, Native Extracts will notify the Customer of the event and the likely impact on its performance under this Agreement.

(c)         If a Force Majeure Event continues for more than sixty (60) consecutive Business Days, either party may terminate the contract by giving the other party a seven (7) days’ written notice.


12. General provisions

(a)        Approvals and consents - Except where this Agreement expressly states otherwise, Native Extracts may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under this Agreement.

(b)        Entire agreement - This Agreement and any documents incorporated by reference such as the Technical Documents, the Goods Ordered contains the entire agreement between the Parties in connection with its subject matter and supersedes all previous agreements and understandings except as otherwise provided herein.

(c)         Prevalence – In the event of an inconsistency arising between the terms and conditions contained in this Agreement, the Goods Ordered and their description contained in the Technical Documents, the terms and conditions contained in this document prevail and the other documents should be read to be consistent with this Agreement.

(d)        Severance - If anything in this Agreement is unenforceable, illegal, or void then it is severed, and

(e)        Warranties regarding capacity - Each Party represents to each other that, as at the date of this Agreement:

(i)          it has taken all necessary action to authorise its entry into and performance of this Agreement;
(ii)         it has the power to enter into and perform its obligations under this Agreement;
(iii)        it is not aware of any thing, matter or circumstance which may prevent it from fulfilling its obligations under this Agreement; and

(f)          its obligations under this Agreement are valid and binding and enforceable against it in accordance with its terms.

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