These terms and conditions of sale ("Terms") apply to the purchase of cremation services and products by the buyer (hereafter referred to as “Applicant”, "Customer", "you", and "your") from Mountain View Crematoria Pty Ltd (ABN 50 619 642 349) (hereafter referred to as "Mountain View”, “we”, “us” and “our”) in response to the attached written quotation presented to you by Mountain View ("Quotation").
1. QUOTATION AND AGREEMENT
1.1. All Quotations issued by Mountain View for the supply of Cremation Services and Products will remain open for acceptance for the period stated in the Quotation or, if none is stated, for fourteen (14) days. In all other cases, prices payable are those currently in effect in Mountain View's then current price list.
1.2. Your purchase of Mountain View Services and Products in response to the Quotation is governed by the terms of any order confirmation we may send you in response to receiving your order or signed Quotation, (“Order Confirmation”), these Terms and any additional terms referenced in the Quotation (together, the "Agreement"). Any other terms and conditions submitted by you on any purchase order are hereby expressly excluded. In the event of a conflict between the terms of the Quotation and these Terms, the terms of the Quotation will prevail to the extent of the inconsistency.
1.3. Mountain View endeavours to provide fair and accurate information in relation to all costs associated with delivering the cremation service and products. Items that are supplied to you, at your request, as part of our service that are not included, or costed as part of this quotation, will be added to the final invoice at prices payable to those currently in effect in Mountain View’s, or its subcontractor(s) then current pricelist.
The prices for the Products and/or Services are as stated in the written Quotation. Quoted prices are inclusive of goods and services tax ("GST"). You must pay us any GST that may be levied or assessed against us in relation to the supply of the Products and/or Services. If we pay any GST you agree to reimburse us the amount of such GST on demand.
3.1. The payment terms are stated in the written Quotation. In the absence of any such statement, you must pay us in Australian Dollars 100% of the total price within 30 days from the date of order of the Cremation Service(s). Unless otherwise agreed in writing, payment must be received in full before the release and/or delivery and/or supply of the Products.
3.2. If you: (a) do not pay for a an invoice by the due date; or (b) assign any of your property for the benefit of your creditors, enter into or threaten to enter into bankruptcy, receivership, liquidation, voluntary administration, or any other type of insolvency regime, and a Service has not been paid for in full, at the time, then Mountain View may, upon 14 days written notice to you: (i) suspend and/or cancel any of its outstanding obligations under the Agreement; (ii) charge you a debt recovery fee at an initial rate of fifteen (15) % or any applicable maximum statutory rate on all unpaid amounts calculated, as well as charge you for all collection costs and legal fees incurred by Mountain View in connection with the late payment.
4. CHANGES AND CANCELLATIONS
4.1. Mountain View reserves the right, subject to prior notice, to make any change in the specification of the Products or Services, which does not materially affect the service or product.
4.2. We encourage open communication with our customers in the days prior to the delivery of the cremation service and/or product(s) and strive to accommodate all change requests to the Products or Services ordered from Mountain View. However, change requests may only be accepted with the prior written consent of Mountain View.
4.3. If you change or cancel any part of the order without our prior written consent, we reserve the right to charge a cancellation fee of 100% of the total price of the Service and Products ordered under the Quotation or Order Confirmation. We will retain as a credit toward the cancellation charge any payments we have received up to the amount of the cancellation charge. In addition, in the event of any cancellation for Products or Services requiring disbursement by us or our representatives to third parties, you will pay our reasonable charges for such disbursement services performed prior to cancellation.
5. DELIVERY AND DELAYS IN PERFORMANCE
5.1. Cremation Service and delivery times are approximate. Time for service will not be of the essence of these Terms and your purchase of the Cremation Service or Product. We are not liable for delays in performance of any of our obligations under these Terms (including Service delivery). Partial delivery is permitted, if applicable.
5.2. For a cremation service to proceed, we require confirmation from several third parties. These include (but are not limited to): medical practitioners, the coroners office, applicant, funeral directors. Whilst every effort will be made to minimise these delays, we cannot be held liable for any delays to the cremation service, due in whole or in part, to delays imposed by third parties.
5.3. For the transfer of cremains into the urn of your choice, delays may be experienced due to a number of factors. Mountain View will endeavour to keep you informed of any real or anticipated delays.
6. TRANSFER AND COLLECTION OF CREMAINS SERVICES
6.1 Mountain View employees will, in most circumstances, perform the transfer of your loved one’s cremains into the receptacle of your choosing (if applicable). You give us permission and instruct us to undertake such transfers.
6.2 You also acknowledge that if we receive no further instructions from you, that after a period of no less than twelve (12) months after the cremation service has been performed, Mountain View may dispose of your loved ones cremains according to the then current NSW Department of Health Guidelines for such disposal.
7. ACCEPTANCE OF SERVICES AND PRODUCTS
You will be deemed to have accepted a Cremation Service and Products on the earlier of: (a) signing any of the following documents: the Quotation, the Arrangement Form as the Applicant and/or signing these Terms and Conditions; (b) on the date of delivery of the Product or Cremation service; or (c) ordering and paying for the Product and/or Service from our website.
8. TRANSPORTATION, TITLE AND RISK OF LOSS
8.1. Unless otherwise specified in the Quotation, we are responsible for payment and delivery of the Service and Products to you at the designated point of delivery.
8.2. Title and ownership to each Product and Service will pass to you at the start of the Cremation Service or delivery of the Product. You will be responsible to pay us 100% of the Quoted price for the Cremation Service and Products.
8.3. Risk of damage to or loss of the Product(s) will pass to you upon delivery of the Product to you at the designated point of delivery.
8.4. Mountain View encourages the Applicant (or their nominee) to deliver (if applicable) and collect their loved one’s cremains and/or Product(s) from our premises at 21 Waverley Drive, Unanderra, NSW. If requested by you, Mountain View will take every reasonable precaution to ensure cremains and/or Products are posted securely according to your instructions. We will not, under any circumstances, accept liability for the loss of your loved one’s cremains after they have been collected from our premises by either You, your nominee or the nominated postage service provider.
9. LIMITED WARRANTIES
9.1. To the extent permitted by law, no express or implied warranties, including but not limited to implied warranties of merchantability, fitness for a particular purpose or data accuracy will apply to anything supplied to you under the Agreement.
9.2. If Mountain View breaches any warranties set out in these Terms or a term or condition that is implied by law and which is not capable of being excluded, the parties agree that Mountain View’s liability will be limited to, at Mountain View’s discretion: resupply the non-conforming Products and/or Services; (b) paying the cost of such resupply; (c) paying the cost of having the non-conforming Products repaired or non- conforming Services resupplied (as the case may be); or (d) refund to you the price paid by you to us for the non- conforming Product and/or Services. You acknowledge and agree that you will not be entitled to a refund or credit of the purchase price of the Product and/or Services in any other circumstances.
10. LIMITATION OF LIABILITY
To the extent permitted by law, you agree that: (a) the total liability of Mountain View and your exclusive remedy for any and all claims arising out of or related to the Agreement, your purchase and use of the Products and/or Services, regardless of the form of the action, will be limited to 100% of the total price of the Product and/or Services paid by you to us, the subject matter of the claim; and (b) Mountain View will under no circumstances be liable to you for any loss of profit, loss of revenue, loss of goodwill or any indirect, consequential, or punitive damages.
11. INTELLECTUAL PROPERTY
You acknowledge that, unless otherwise agreed in writing, all intellectual property rights attaching to Mountain View or Mountain View branded Products are and will remain the property of Mountain View.
12. CONFIDENTIAL INFORMATION AND PRIVACY
12.1. Mountain View will treat client information as confidential. Notwithstanding the foregoing, Mountain View may disclose the clients confidential information to: (a) its Personnel on a need to know basis for the purpose of performing its obligations under the Agreement; (b) if required by law, in which case such the Receiving Party will so notify the other party as soon as practicable and in any event prior to such party making such required disclosure. For the purpose of this clause 13, Mountain View’s pricelist for the Products and/or Services and these Terms will be considered as confidential information of Mountain View.
12.2. Each party must comply, and must ensure that their respective Personnel comply, with all applicable Privacy Law as they apply to that party.
12.3. If any Personal Information is provided or otherwise made available to Mountain View or its Personnel by the Customer, the Customer represents and warrants to Mountain View that the Customer has procured and obtained all necessary individual consents (as required by all applicable Privacy Law) to enable and permit Mountain View and its Personnel to collect, store, use, disclose or otherwise deal with the Personal Information solely for the purpose of fulfilling its obligations to Customer as anticipated under the Agreement.
13. DATA ACCESS
You agree to permit us to connect, or to otherwise access data related to the Cremation Service and Products, to allow us to gather, aggregate, compile, and use data in various ways including quality initiatives, benchmarking and reporting services. The data collected by us will be used, during and after the expiration or termination of the Agreement, in a manner that will maintain client and customer level confidentiality.
14. FORCE MAJEURE
Mountain View will not be liable to you for the non-performance of any of its obligations under the Agreement to the extent such performance is prevented by any circumstances beyond its reasonable control including but not limited to, strikes, lock outs or labour disputes of any kind (whether relating to its own employees or others), fire, flood, explosion, natural catastrophe, acts or threats of terrorism, plant breakdown, computer or other equipment failure and inability to obtain material or equipment. If such a delay occurs, we may extend the performance of our obligation for a period of time equal to the delay. If an event of force majeure exceeds 10 days Mountain View may cancel your order without any liability to you.
15. GENERAL MATTERS
15.1. The Agreement is the complete and exclusive statement of the terms of the arrangement between you and Mountain View regarding its subject matter. No prior proposals, statements, course of dealing, or usage of the trade will form a part of Agreement. For the avoidance of doubt, any terms and conditions stated or attached to your purchase order or trade terms will not be deemed to be incorporated as a part of this Agreement and is hereby expressly excluded.
15.2. If any clause or part of any clause in the Agreement in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from the Agreement without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.
15.3. The Agreement will be governed by and construed in accordance with the laws of the state of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of the state of New South Wales and courts competent to hear appeals from those courts.
15.4. Mountain View may assign its rights and benefits under the Agreement (in whole or in part) to any related bodies corporate without your consent. You may not assign any of your rights or benefits under the Agreement without the prior written consent of Mountain View (which will not be unreasonably withheld).
15.5. Mountain View can hire a subcontractor or use any of its related bodies corporate to perform any of our obligations under the Agreement.
15.6. The Agreement may not be varied except by a later written document executed by you and Mountain View.
In these Terms, unless the context clearly indicates otherwise:
Cremains means the cremated remains of your loved one at the conclusion of the cremation process.
Personal Information means information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
Personnel means, with respect to a party, any officer, employee, agent or contractor of that party.
Privacy Law means the Privacy Act 1988 (Cth) and any determinations, guidelines and interpretative explanations issued from time to time by the Office of the Privacy Commissioner under that Act.
Products means any Mountain View equipment, hardware, Software, other electronic or mechanical items, any consumables, equipment, spare parts agreed to be supplied by Mountain View to you under these Terms.
Services mean any services performed by Mountain View to you under the Agreement.
Software means any software or data compilations: (a) identified in the Quotation; or (b) provided to you by Mountain View in connection with the cremation service. For the avoidance of doubt, Software does not include any music, video, as any such music, video or data compilations will be subject to the terms and conditions set out in the relevant licenses