The goods for sale and services provided by Game Gear Holdings Pty Ltd are sold under the following terms and conditions (Terms and Conditions) and may only be sold or offered under these terms and conditions to the Customer.
The placing of an order or acceptance of the goods is deemed to constitute an agreement to observe and be bound by these Terms and Conditions and any concession, latitude or waiver that may be or may have been allowed by Game Gear at any time shall not prevent Game Gear subsequently exercising its full rights under these Terms and Conditions.
These Terms and Conditions take precedence over any other terms.
1. DEFINITIONS
a) ‘ACL’ means the Australian Consumer Law as contained in the Competition and Consumer Act 2010 (Australia) as varied, amended or replaced from time to time.
b) ‘Customer’ shall mean the individual or company to whom the Goods are sold or the Services are provided.
c) ‘Event of Default’ has the meaning set out at clause 13 .
d) ‘Goods’ shall mean any goods or products sold by Game Gear under its own name or any other Trademark owned or controlled by Game Gear.
e) ‘Services’ shall mean any services provided by Game Gear under its own name.
f) ‘Game Gear’ shall mean Game Gear Holdings Pty Ltd (ACN 684 505 600).
g) ‘Loss’ includes, but is not limited to, costs (including party-to-party legal costs), expenses, lost profits, awards of damages, personal injury and property damage.
2. ORDERS
a) All orders are subject to acceptance by Game Gear and may be refused in part or in full where Goods are unavailable for any reason.
b) Upon placing an order, the Customer is acknowledging that it will accept delivery of the Goods.
c) Once orders are placed, the Customer cannot cancel or vary an order without the written approval of Game Gear, except where otherwise provided for in these Terms and Conditions.
d) Game Gear may suspend or cancel orders where:
i. the Customer breaches any of these Terms and Conditions;
ii. the Customer commits an Event of Default,
and upon such suspension or cancellation, the Customer must reimburse Game Gear any Loss incurred by Game Gear as a consequence.

3. ON-SELLING OF GOODS
a) The Customer is not permitted to sell the Goods for purchase by the general public in or beyond Australia unless otherwise agreed in writing by Game Gear.
b) The Customer must not on-sell the Goods at a wholesale level to any other person or entity.
c) Failure to observe any provision in this clause 3 may lead to suspension or cancellation of any or all customer accounts in addition to obtaining any other legal remedies available to Game Gear.
4. PRICES
a) All prices quoted are ’ex-factory’.
b) Goods will be invoiced at the price ruling at the date of dispatch and are subject to change without notice.
5. DELIVERY
a) Transport arrangements will be made by Game Gear and if the Customer wishes to make other arrangements any additional cost will be payable by the Customer.
6. LOSS OR DAMAGE IN TRANSIT
a) Game Gear is not responsible to the Customer or any person claiming through the Customer for any loss of or damage to Goods in transit caused by any event of any kind or by any person (whether or not Game Gear is or would be otherwise legally responsible for the actions of that person).
b) Game Gear agrees to provide the Customer with such assistance as may be reasonably necessary to institute claims against a carrier for loss of or damage to Goods in transit so long as the Customer:
i. has notified Game Gear and the carrier in writing immediately after loss of or damage to the Goods is discovered by the Customer on receipt of the Goods; and
ii. serves a claim for compensation on the carrier within 5 days of the date of receipt of the Goods.
7. PAYMENT
a) As per the Reserve Bank of Australia standard, any payments made by credit card may incur up to a 2% surcharge
b) Full payment must be made in the form of cleared funds and received by Game Gear prior to the delivery of the Goods and Services.
c) Any discounted prices offered by Game Gear will be conditional upon payment being made in accordance with the advised payment terms.
d) Game Gear reserves its right to offer and negotiate discounts at its sole discretion.
e) (The Customer and Game Gear agree to comply with their obligations in relation to Goods and Services Tax (‘GST’) under the A New Tax System (Goods and Services Tax) Act 1999 (Australia) and any other applicable legislation governing GST.
8. TITLE AND RISK
a) Risk in the Goods passes to the Customer immediately upon delivery.
b) Title to and ownership in the Goods shall will transfer to the Customer upon payment in full for the Goods.
9. RETURNS
a) No returned Goods will be accepted unless previously agreed by Game Gear or otherwise in accordance with the Australian Consumer Law.
b) Goods must be returned carriage paid.
c) Except to the extent faulty, returned Goods must be received in a saleable condition with original packaging intact. In the instance this is not the case, Game Gear reserves the right to not issue a full credit.
10. CLAIMS FOR NON-DELIVERY, SHORTAGE, DAMAGE, ETC.
a) No claim will be recognised by Game Gear unless:
i. if upon delivery, any portion of an order is damaged or any package missing, or if the Goods covered by the invoice are damaged or do not tally, the Customer advises Game Gear and the carriers in writing within five (5) days of delivery.
ii. in the event of non-delivery of an order, or any separate package missing, the Customer advises Game Gear in writing within seven (7) days of invoice.
Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the ACL.
b) If the Customer has elected for a delivery to be left at unattended premises, the Goods will be deemed to have been received by the Customer at that time they are left.
c) No liability whatsoever (except as provided by law) will be accepted by Game Gear for any direct or indirect loss or damage relating to delivery of Goods or Services, account suspension or closure or any other act or omission on the part of Game Gear or of any servant, agent, or contractor of Game Gear in relation to these Terms and Conditions unless the same occurs because of the wilful act or default or negligence of Game Gear, its servants, agents or contractors in which case liability is limited at Game Gear’s discretion to the replacement of Goods or providing the Services again or the payment of the cost of having the Goods or Services resupplied.
11. EXCLUSIONS AND LIMITATIONS OF LIABILITY
a) The Customer expressly agrees that use of the Goods and Services are at the Customer's risk. To the fullest extent permitted by law, Game Gear’s liability for breach of any term implied into these Terms and Conditions by any law is excluded.
b) All information, specifications and samples provided by Game Gear in relation to the Goods and Services are approximations only and, subject to any guarantees under the ACL, small deviations or slight variations from them which do not substantially affect the use of the Goods or Services will not entitle the Customer to reject the Goods and Services upon delivery or to make any claim in respect of them.
c) To the fullest extent permitted by law, under no circumstances is Game Gear liable or responsible in any way to the Customer or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
i. any Goods or Services supplied to the Customer;
ii. any delay in supply of the Goods or Services; or
iii. any failure to supply the Goods or Services.
d) Any advice, recommendation, information, assistance or service given by Game Gear in relation to Goods and Services, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty of its accuracy, appropriateness or reliability. Game Gear does not accept any liability or responsibility for any Loss suffered as a result of the Customer's reliance on such advice, recommendation, information, assistance or service.
e) To the fullest extent permissible by law, Game Gear is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of revenue, loss of profit, anticipated loss of revenue or profit, loss of contract, loss of production, loss of business opportunity, loss of or damage to goodwill or , loss of use , in each case which cannot reasonably be considered to naturally flow in the normal course of events from the occurrence of the breach or the event, fact or matter giving rise to the liability for such damages or loss, whether or not such damages or loss were in the contemplation of the parties at the time of entry into this agreement.
f) The Customer acknowledges that the Goods and Services are not for personal, domestic or household purposes.
g) The ACL may give to the Customer certain consumer guarantees, which cannot be restricted, limited or varied.
h) Where liability under the ACL cannot be excluded, Game Gear’s liability for Goods and Services manufactured or supplied by it is limited to making good any defects. This may be done by repairing the defects or, at Game Gear’s option, by replacement. Game Gear’s obligation to remedy applies only so long as:
i. the defects have arisen solely from faulty materials or workmanship;
ii. the Goods have not received maltreatment, inattention or interference.
iii. the seals of any kind on the Goods remain unbroken; and
iv. the defective parts are promptly returned free of charge to Game Gear,
and the Customer makes its claim within 12 months after the Goods have been dispatched.
12. TRADEMARKS AND INTELLECTUAL PROPERTY
a) The Customer hereby acknowledges that Game Gear trademarks and the intellectual property and goodwill attached to them are the exclusive property of Game Gear and its affiliated organisations or bodies and no right, title or interest therein is transferred by these Terms and Conditions or any of Game Gear’s guidelines or policies or any other transaction with the Customer and any use of such trademarks on store signage or otherwise by the Customer is prohibited unless otherwise approved in writing by Game Gear.
13. EVENT OF DEFAULT
a) Each of the following occurrences constitutes an event of default:
i. the Customer breaches or is alleged to have breached these Terms and Conditions for any reason (including, but not limited to, defaulting on any payment due) and fails to remedy that breach within 7 days of being given notice by Game Gear to do so; and
ii. the Customer purports to assign its rights under these Terms and Conditions without Game Gear 's prior written consent;
b) Where an event of default occurs, except where payment in full has been received by Game Gear, Game Gear may:
i. terminate these Terms and Conditions;
ii. terminate any or all orders (if any) with the Customer;
iii. refuse to deliver Goods.
14. WAIVER
a) Any failure of Game Gear at any time to require performance by the Customer of any provision of these Terms and Conditions or the acceptance of payment of any sum after its due date does not waive Game Gear’s rights.
15. SEVERANCE
a) If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions shall not be affected and shall continue to be valid and enforceable to the fullest extent permitted by law or equity.
16. NO VARIATION OF THESE TERMS AND CONDITIONS OF SALE PERMITTED
a) No variations or additions to these Terms and Conditions will be recognised by Game Gear unless accepted and confirmed in writing by Game Gear.
b) Clerical errors are subject to correction without notification.
17. ENTIRE AGREEMENT
a) These Terms and Conditions shall constitute the entire Agreement between Game Gear and the Customer in relation to the sale and delivery of the Goods and Services and any previous agreements, understandings, negotiations and all express or implied warranties will to the fullest extent permitted by law cease to have any legal status or effect.
18. ASSIGNMENT
a) The Customer must not assign or transfer any of its rights or obligations under these Terms and Conditions without the prior written consent of Game Gear.
b) Game Gear has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these Terms and Conditions provided that the assignee agrees to assume any duties and obligations of Game Gear owed to the Customer under these Terms and Conditions.
20. DISPUTE RESOLUTION
a) In the event of a dispute between Game Gear and the Customer, the complainant is first required to serve the other party to the dispute a written notice specifying the nature of the dispute and the outcome sought.
b) Secondly, each party must make a good faith attempt to resolve the dispute by negotiation.
c) Failing resolution of the dispute, the parties shall free to commence litigation.
21. FORCE MAJEURE
a) Any delay in the performance of Game Gear obligations caused by an event or circumstance outside its reasonable control shall not be attributable to Game Gear nor constitute a breach of these Terms and Conditions and Game Gear shall have the right to extend the estimated delivery time by a period sufficient to take account of the relevant event or circumstance, subject to Game Gear and/or the Customer cancelling orders where the extension continues for an uninterrupted period of three (3) months.
b) Circumstances beyond Game Gear’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, pandemic, epidemic, fire, war, acts of God, government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
22. TIME IS OF THE ESSENCE
a) Stipulations as to time in these Terms and Conditions for performance by the Customer are of the essence.
23. GOVERNING LAW & JURISDICTION
a) These Terms and Conditions will be deemed to have been made in the state of Western Australia and will be governed by the laws of that State and the laws of the Commonwealth of Australia as they apply. The parties further submit to the non-exclusive jurisdiction of the courts of Western Australia.