Terms and Conditions

TERMS AND CONDITIONS OF TRADE: SUNSET HORSE CREMATIONS AND SERVICES PTY LTD

1.  Contract and Acceptance

(a) These terms and conditions (terms) constitute an agreement between Sunset Horse Cremations and Services Pty Ltd (ACN 652 488 045) (SHCS) and the Customer (Customer or you) in relation to any services to be provided to the Customer by SHCS. The Customer is taken to have accepted and be bound by these terms if it instructs SHCS to provide any services, accepts such services or accepts these terms in any other manner recognised by law. 

(b) The Customer acknowledges and agrees that these terms and conditions shall be read together with any quote in relation to services that may have been provided by SHCS to the Customer.

(c) The Customer acknowledges that SHCS may, in its entire discretion, sub-contract, assign or license or any part of its rights and obligations in terms of this agreement. The Customer may not assign or transfer any of its rights or obligations in terms of this agreement without the prior written consent of SHCS.

(d) These terms may only be amended by written agreement between the parties.

(e) In the event of there being any conflict between these terms and conditions and any terms and conditions, purchase order or similar document provided by the Customer, then these terms will take precedence.

2.  Definitions

(a) “SHCS” means Sunset Horse Cremations and Services Pty Ltd (ACN 652 488 045) of 660 Old Warburton Road, Wesburn, Victoria 3799 and includes any agents, contractors, sub-contractors and employees of the company.

(b) “Customer” means the Customer or entity purchasing services from SHCS, its successors and assigns or any person acting on behalf of and with the authority of the Customer, as described in any application, quote, work authorisation or other form. 

(c) “Force Majeure Event” means any event beyond the control of SHCS, including but not limited to, inclement weather, an act of God, a pandemic or epidemic, accidents, or emergency situations that arise relating to animal welfare.

(d) “Guarantor” means any person or persons, or entity, which agrees to be jointly and severally liable for the debts of the Customer in accordance with these terms.

(e) “Works” means any goods and/or services provided by SHCS to the Customer in accordance with these terms.

3.  Price and Payment 

(a) The price payable for the services shall be either:

(i) the amount indicated on invoices provided to the Customer, or

(ii) the price quoted by SHCS, provided the Customer accepts such quotation in writing within 30 days.

(b) The Customer acknowledges and agrees that SHCS may charge a surcharge for services provided after normal business hours during the week, over weekends and on any public holidays, as well as for any unforeseen expenses that may arise due to the nature of the services to be provided.

(c) SHCS requires the full cost of any services to be provided to the Customer to be paid in advance in respect of any services, before any services are provided. Payment may be by any method authorised by SHS, including but not limited to, cash, direct debit (including proof of payment), or via credit card using a Square device.

(d) Payments by credit card shall be subject to payment of any surcharge charged by a financial institution to SHCS. 

(e) All goods and services are subject to payment of Goods and Services Tax (GST).

(f) Unless agreed to the contrary in writing, any amounts not paid within 14 days of due date shall be liable for payment of interest at the rate stipulated in terms of the Penalty Interest Rates Act (Vic), as varied from time to time, with effect from the due date. In the event of SHCS incurring any costs (including legal costs) in order to recover any amount owing in terms of these terms, or to enforce its rights in accordance with these terms, the Customer agrees that it will be liable for the legal costs of SHCS on a solicitor and own client basis and any collection agency costs.

(g) The Customer must provide SHCS with at least 24 hours written notice (which may include by email) if the Customer wishes to cancel the services, failing which SHCS may charge in an administration fee of 10% of the agreed fee for the services, which may be offset against any monies already paid by the Customer, or claimed separately from the Customer. 

4.  Provision of Services  

(a) The Customer will be responsible for providing adequate access to the collection address and notifying SHCS prior to delivery of any obstacles or peculiarities in relation to the collection site.

(b)  The Customer must ensure that a duly authorised person is available at the collection address on the collection date to sign any necessary documentation. The Customer furthermore acknowledges that signature of documentation by the Customer or their agent will be the Customer’s confirmation that the collection of an animal complies with SHCS’s obligations in terms of these terms and conditions. 

(c) SHCS may refuse to collect animals, if SHCS considers it would be unsafe or unhealthy to collect such animals. This may include a situation where a deceased animal is too decomposed. SHCS quotes on work on the assumption that the collection site is safe. 

(d) The Customer acknowledges and agrees that disposal of any animals is subject to the discretion of SHCS in respect of which EPA burial site the animal is delivered to, as the relevant site may be subject to EPA requirements, the provision of services to other customers or other factors. 

(e)  If alternative arrangements are made for cremations and/or burial of animals, (i.e. SHCS is merely acting as the transporter of a deceased animal), the Customer acknowledges and agrees that any other organisation involved in the cremation and/or burial of the animal/s will be responsible for complying with any relevant guidelines or laws in relation to the cremation or burial of such animals and the Customer indemnifies SHCS in respect of all or any claim arising out of services provided by an alternative business or company. 

(f) SHCS will only collect animals during normal business hours, unless agreed otherwise in writing;

(g) The Customer acknowledges that while SHCS will make every reasonable effort to ensure that euthanising any animal by shooting is done in a humane and precise manner, unforeseen circumstances, (for example sudden movements by the animal), can affect the euthanisation process.

5. Variations, Exceptions and Time Extensions

(a) In the event of a variation to the proposed services, SHCS may change the price by either providing a new or additional quotation. 

(b) The Customer acknowledges and agrees that the completion date for any services  may be extended, due to external factors over which SHCS may have no control, such as a Force Majeure Event.

6.   Limitation of Liability and Australian Consumer Law 

(a) For the purposes of Schedule 2 of the Australian Consumer Law, in particular sections 51 to 53, 64 and 64A of Part 3 – 2, Division 1, Subdivision A of the Competition and Consumer Act 2010 (Cth) the liability of SHCS for any breach of these terms and conditions is limited to supplying the goods or services to you again, the replacement of any goods, or the payment of the cost of having any goods or services supplied to you again.

(b) Nothing in these terms is intended to have the effect of enabling SHCS to contract out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts.

(c) In the event of any breach of these terms and conditions by SHCS, the remedies of the Customer shall be limited to damages, which shall not exceed the price of the services under any circumstances. SHCS shall furthermore not be liable for any indirect loss and/or expense (including loss of profits) suffered by the Customer, or any third party, as a result of a breach of these terms and conditions by SHCS.

(d) Neither party shall be liable for any breach of contract, or liable for any default, delays or failure to perform any of that party’s obligations in terms of these terms and conditions, due to any Force Majeure Event or other event beyond the reasonable control of that party.

7.  Release and Indemnity

The Customer indemnifies SHCS and each member of SHCS’s officers and/or personnel from and against any liability or claim arising directly or indirectly in relation to:

(a) The accuracy of any information provided by the Customer to SHCS in relation to the services provided in accordance with these terms and conditions or the collection address;

(b) The Customer’s breach of these terms and conditions;

(c) The negligence or wilful misconduct of the Customer, or any member of the Customer’s personnel;

(d) SHCS or any member of its personnel collecting, delivering and/or euthanising any animals in accordance with the Customer’s instructions;

(e) SHCS or any member of its personnel entering the collection address;

(f) Damage to the property of the Customer or any third party during any collection, delivery or euthanising of animals;

8.   Default

(a) If the Customer breaches the provisions of these terms and conditions, SHCS may suspend or terminate the supply of the services to the Customer and SHCS will not be liable to the Customer for any loss or damage the Customer suffers because SHCS has exercised its rights in terms of this clause. 

(b) In the event of the Customer failing to pay any amount due in terms of these terms and conditions, the Customer becoming insolvent, convening a meeting with its creditors, entering into a deed of arrangement with creditors or making an assignment for the benefit of its creditors, or a receiver, manager, liquidator or similar person being appointed in respect of the Customer, then, without prejudice to any other remedies at law, SHCS will be entitled to cancel the agreement entered into in accordance with these terms and conditions and claim all amounts owing to SHCS .

9. Corporate Entity, Guarantee and Joint and Several Liability

(a) If the Customer is a corporate entity, the person signing an acceptance of these terms and conditions, or accepting in any other manner recognised by law on behalf of that entity warrants that they are a duly authorised representative of the entity and that person hereby personally guarantees performance by the Customer of all its obligations as specified in these terms and conditions and agrees to be jointly and severally liable for the debts of the Customer on a principal debtor basis.

10. Dispute

(a) If any dispute arises out of this agreement, the parties will attempt to resolve the dispute informally. If the parties have not resolved their dispute within 10 business days of one party notifying the other party in writing of the nature of the dispute, then the parties agree to:

(i) engage a mediator selected by agreement or, failing agreement within 5 business days after one party nominates a mediator in writing, selected by the President of the Law institute of Victoria or their nominee; and

(ii) conduct a mediation in respect of the dispute within 20 business days after the mediator is appointed.

(c) The parties agree to each pay half of the mediator's fees. 

(d) A party must not commence court proceedings, except proceedings seeking interlocutory relief, in respect of a dispute arising out of these terms and conditions, unless it has complied with this clause.

11.  Privacy

(a) These terms and conditions are subject to, and should be read with, SHCS’s privacy policy, which is available on SHCS’s website or on request.

12. General 

(a)  These terms and conditions and the agreement entered into between the parties shall be governed by the laws of the State of Victoria and each party submits to the non-exclusive jurisdiction of the courts of that state.

(b) In the event that any of these terms and conditions are found to be invalid, illegal or unenforceable, such validity, legality and enforceability shall not affect the validity of any other remaining provisions of these terms and conditions.

(c)  These terms and conditions represent the whole agreement between the parties , and no other term is included in this agreement except where it is required to be included by any legislation of the Commonwealth or the State of Victoria. All implied terms except those implied by statute and which cannot be expressly excluded are hereby expressly excluded. 

(d) SHCS reserves the right to alter these terms and conditions at any time.

Date: February 2022