Terms & Conditions
HIGHGROVE VICTORIA PTY LTD
ABN 27 115 991 903
1. Interpretation
In these terms:
(a) Buyer means the acquirer of Goods from the Seller.
(b) Contract means the contract between the Buyer and the Seller for the sale and purchase of Goods and includes these Terms.
(c) Goods means [glass fencing, balustrades, shower screens, splashbacks and related accessories and parts].
(d) GST has the meaning given to that term in the GST Law.
(e) GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(f) Insolvency Event means one or more of the following events
(i) an application is made, or a resolution is passed, to wind up the Buyer;
(ii) a controller or administrator is appointed in respect of the Buyer or any of its assets;
(iii) the Buyer commits any act of bankruptcy within the meaning of the Bankruptcy Act 1966 (Cth); or
(iv) the Buyer dies, ceases to be of full legal capacity or becomes incapable of managing its own affairs for any reason.
(g) Seller means Highgrove Victoria Pty Ltd ABN 27 115 991 903.
(h) Seller's Premises means Factory 1, 15 Cubitt Street, Richmond Victoria 3121 or any other address the Seller notifies to the Buyer.
(i) Terms means the Seller’s standard terms and conditions of sale set out in this document, unless the context otherwise requires.
2. General
(a) The Seller agrees to sell and the Buyer agrees to purchase the Goods in accordance with the terms and conditions of these Terms.
(b) These Terms prevail over any inconsistent terms in any document of the Buyer that the Seller has not signed. If the Seller signs the Buyer’ document, any inconsistent terms in that document prevail over these Terms.
(c) If the Buyer places an order, accepts delivery of the Goods, makes any payment or performs any of these terms, the Buyer is taken to have accepted these terms (subject to any inconsistent terms contained in other documents signed by the Seller and the Buyer).
3. Seller's quotations
(a) A quotation is not an offer by the Seller. The Seller may withdraw or alter it without notice.
(b) Unless the Seller withdraws it, a quotation is valid for the period stated in it, or if no period is stated, for [30 days] after the date of the quotation.
4. Descriptions and specifications
(a) All specifications, drawings, and particulars of weight and dimensions are approximate only. The Buyer cannot claim against the Seller for any deviation.
(b) The descriptions, illustrations and material contained in any advertisement, catalogue, price list or brochure do not form any part of the Contract.
5. Delivery
(a) Any delivery time the Seller gives the Buyer is only an estimate. The Seller is not liable to the Buyer for any loss or damage (including any consequential loss or damage) arising from late delivery.
(b) The Buyer must still accept and pay for the Goods even if the Seller delivers late.
(c) The Seller may deliver the Goods in instalments. Each instalment must be treated as a sale under a separate contract. If the Seller fails to deliver any instalment, the Buyer must still accept and pay for the remaining instalments. If the Buyer fails to pay for any instalment, the Seller may treat the default as a breach of contract relating to each other instalment.
(d) [Delivery occurs when the Seller notifies the Buyer that the Goods are available for collection at the Seller's Premises.]
6. Quantity discrepancy
(a) If the quantity of goods delivered is less than the amount the Buyer ordered, the Buyer must notify the Seller in writing of the shortfall within 7 days of delivery, otherwise the Seller will be deemed to have delivered the correct quantity of goods, and the Buyer must accept the goods and pay for them in full despite the shortfall.
(b) If the quantity of goods delivered is more than the amount the Buyer ordered, the Buyer must immediately inform the Seller in writing and the Seller is entitled to charge the Buyer for the excess or recover the excess from the Buyer at the cost of the Seller.
7. Storage
If the Buyer does not collect the Goods, or provide adequate delivery instructions, within 14 days of request by the Seller, the Seller may charge for storage. The Buyer must pay charges monthly at commercial rates. The Goods are to be stored at the Buyer's risk.
8. Price and costs
(a) Unless the Seller otherwise agrees in writing and subject to any quotation given under clause 3, the price of the Goods will be the price the Seller usually charges for the Goods. Any price concession or discount the Seller provides to the Buyer is conditional on the Buyer’s full compliance with these Terms.
(b) Prices quoted are those ruling at the date of issue of quotation and are subject to adjustment (including a proportional adjustment for fixed costs and profit) for any variation in:
(i) the cost of labour, material or transport;
(ii) exchange rates, customs duty, freight or insurance;
(iii) suppliers' prices;
(iv) the amount of work required to produce the Goods due to a variation in specification approved by the parties; and
(v) any other charges affecting the cost of production.
(c) If the Seller suspends work on any order due to the Buyer's instructions or lack of instructions, the Seller may increase the contract price to cover any extra expense or cost incurred (including a proportional adjustment for fixed costs and profit).
(d) Any prices quoted apply only if all of the Goods included in the quotation are bought. If the Buyer orders part only, the Seller may submit a revised quotation.
(e) Unless otherwise specified, the prices quoted in any quotation include one set of standard instructions. The Seller can supply further copies of instructions and certified outline drawings for the Goods at an additional charge.
9. GST on price
(a) Unless otherwise stated, the price is GST exclusive.
(b) In addition to the price for the Goods, the Buyer must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under these terms of sale or under any agreement for sale of Goods.
(c) The Buyer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Buyer pays the price (or the corresponding first part of it if the Seller agrees to the Buyer paying the price by instalments).
10. Payment
(a) Unless otherwise specified by the Seller in writing, the Buyer must pay for the Goods within 14 days after the end of the month in which the Goods are delivered.
(b) The Seller may require immediate payment of all amounts outstanding (whether or not then due and payable):
(i) if the Buyer does not comply with any one or more of its obligations under these terms;
(ii) if the Seller considers that the creditworthiness of the Buyer has become unsatisfactory; or
(iii) if one or more Insolvency Events occur.
(c) Time is of the essence in respect of payment of invoices. 11 Default
(a) If the Buyer defaults in the payment of money:
(i) the Buyer must pay the Seller:
(A) interest at the rate equivalent to two percent (2%) higher than the rate for the time being fixed under Section 2 of the Penalty Interest Rates Act 1983 (Vic) on any amounts owing to it under the Contract; and
(B) all expenses including, without limitation, legal expenses, and all debt collection agency costs incurred by the Seller in enforcing the Seller’s rights under these terms;
(ii) the Seller may in the notice state that, unless the default is remedied, all money owing under the Contract which is not yet due for payment is now due. If the notice is not complied with then that money becomes due;
(iii) the Seller may cancel the Contract.
(b) If the Seller ends the Contract in accordance with this clause 11, the Seller may, without prejudice to any other right or remedy available to the Seller suspend any further deliveries of the Goods to the Buyer and sell or otherwise dispose of the Goods and apply the proceeds of the sale to the overdue amount.
11. Risk
(a) Risk in the Goods passes to the Buyer when delivery occurs pursuant to clause 5 or when the Goods are in the Buyer’s custody, whichever is first.
(b) The Buyer must take out and pay for insurance in both the names of the Buyer and Seller sufficient to cover both their interests in the Goods. The Buyer must produce a certificate of insurance to show that the Buyer has taken out this insurance if so requested by the Seller.
12. Title
(a) Until the Buyer has paid all amounts owing by the Buyer to the Seller (and all cheques or negotiable instruments have been paid) the title and property in the Goods does not pass to the Buyer.
(b) Until all amounts owed to the Seller are paid, the Buyer:
(i) must keep the Goods separate from the goods of the Buyer and third parties and identified as the Seller’s goods;
and
(ii) may sell the Goods in the ordinary course of its business, as agent and fiduciary for the Seller and must account to the Seller for the proceeds of such sale which are to be kept in a separate bank account.
(c) The Buyer irrevocably authorises the Seller to enter any premises where the Goods are kept, and to use the name of the Buyer and to act on its behalf, if necessary, to recover possession of the Goods.
(d) If the Buyer does not specify what Goods each payment is made for, the payments will be treated in the following order:
(i) first, to the Goods that are no longer in the Buyer’s possession;
(ii) then, to whatever Goods that are still in the Buyer’s possession, at the Seller’s absolute election.
13. Force majeure
(a) The Seller is not liable for failure to comply with these Terms, any Contract or an agreement for sale of Goods if the failure (directly or indirectly) arises out of any circumstances which are not within the Seller's reasonable control. If such circumstances occur, the Seller may delay or cancel delivery of the Goods or reduce the quantity to be delivered.
(b) The circumstances are taken to be beyond the Seller's reasonable control includes, without limitation, strikes, lock-outs, accidents, war, fire, flood, explosion, shortage of power, breakdown of plant or machinery, shortage of raw materials from normal source of supply, act of God or any order or direction of any local, state or federal government, government authority or instrumentality.
(c) The Seller is not obliged to remedy such circumstances. The Seller is especially not obliged to settle any strike, lock-out or any other kind of labour dispute.
14. Cancellation
14.1 Cancellation of order or return of Goods
(a) The Buyer may not cancel an order or return any Goods unless the Seller first agrees in writing.
(b) The Seller will not agree to cancellation or an order unless the Buyer compensates the Seller for all loss and damage arising from the cancellation.
(c) The Seller may cancel any order in whole or in part by notice to the Buyer and resell the Goods if the Buyer fails to comply with any of its obligations under these terms of sale or under an agreement for sale of Goods.
(d) The Seller may cancel any order in whole or in part by notice to the Buyer and resell the Goods if one or more Insolvency Events occur.
(e) Upon cancellation or an order the Buyer must indemnify the Seller for any costs and expenses incurred prior to cancellation and must pay any reasonable cancellation charges fixed by the Seller.
14.2 Cancellation of Contract
The Seller may cancel the Contract in either of the following events:
(a) if the Seller reasonably considers that it may be unable to satisfy the order within a reasonable time; or
(b) if Goods remain uncollected or the Buyer fails to give satisfactory instructions for the dispatch of the Goods after a period of 14 days from notification to the Buyer that they are ready for collection; or
(c) an application to wind up the Buyer is made or if a controller or administrator is appointed in respect of the Buyer or any of its assets.
14.3 No claim
The Buyer has no claim against the Seller for any damage, loss, cost or expense arising from cancellation under this clause.
15. Limitation of liability and indemnity
(a) The only conditions and warranties which are binding on the Seller in respect of:
(i) information, advice, recommendations or services supplied to the Buyer in relation to the Goods; or (ii) the suitability, use, quality or condition of the Goods or services, are those applying by operation of law and required to be binding (including the Trade Practices Act 1974). All other warranties and conditions are excluded.
(b) To the extent permitted by law, the liability of the Seller and its employees or agents for a breach of any warranty or liability which by law cannot be excluded, restricted or modified, or under any express warranty, is limited, at the Seller's option, to:
(i) in the case of goods:
(A) the replacement of the goods or the supply of equivalent goods;
(B) the repair of the goods;
(C) the payment of the costs of replacing the goods or of acquiring equivalent goods; or
(D) the payment of the cost of having the goods repaired;
and
(ii) in the case of services:
(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again.
(c) Other than as provided in this clause 16, the Seller, its employees or agents shall not be liable for any loss or damage (including any consequential loss or damage) of any kind whatever, even if due to the negligence of the Seller, its employees or agents.
(d) The Buyer acknowledges that the Buyer does not rely on the skill or judgment of the Seller as to whether or not the Goods are fit for any particular purpose and that the sale of the Goods is not a sale by sample.
(e) The Buyer indemnifies the Seller from every liability, loss, damage, cost or expense directly or indirectly incurred or suffered by the Seller caused by or contributed to by any of the following:
(i) the Seller complying with any instruction of the Buyer about the Goods;
(ii) the Buyer's failure to:
(A) adequately provide or display safety markings or safety information on or with the Goods;
(B) comply with any law about the Goods or their use (for example, their sale, marketing, labelling or marking);
(C) take any reasonable precaution to bring to the attention of any potential users of the Goods any dangers associated with Goods;
(D) take any reasonable precaution to detect any matters in relation to which the Seller may become liable in any way (for example, under Part VA of the Trade Practices Act 1974 (Cth));
(iii) the Buyer making any statement about the Goods (for example, about their performance or characteristics) without the Seller's approval;
(iv) the use or operation of the Goods by the Buyer; and
(v) any negligence or breach of duty by the Buyer or any breach by the Buyer of these terms.
16. Notices
(a) A notice, consent or other communication under these terms of sale is only effective if it is in writing, signed and either left at the addressee's address or sent to the addressee by mail or fax. If it is sent by mail, it is taken to have been received 3 working days after it is posted. If it is sent by fax, it is taken to have been
received when the addressee actually receives it in full and in legible form.
(b) A person's address and fax number are those set out in the quotation. The Seller may send a notice to the Buyer's last known address.
17. Governing law and jurisdiction
(a) These terms of sale are governed by the law in force in the State of Victoria.
(b) Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in State of Victoria, and any court that may hear appeals from any of those courts, for any proceedings in connection with these terms, and waives any right it might have to claim that those courts are an inconvenient forum.
18. Waiver
(a) A right of the Seller may only be waived in writing, signed by the Seller.
(b) No other conduct of the Seller (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right.
(c) A waiver of a right by the Seller on one or more occasions does not operate as a waiver of that right if it arises again.
(d) The exercise of a right by the Seller does not prevent any further exercise of that right or of any other right.
19. GST on claims
(a) If a payment to satisfy a claim or a right to claim under or in connection with these terms (for example, for misleading or deceptive conduct or for misrepresentation or for a breach of any warranty or for indemnity or for reimbursement of any expense) gives rise to a liability to pay GST, the payer must pay, and
indemnify the payee on demand against the amount of that GST. (b) If a party has a claim under or in connection with these terms for a cost on which that party must pay GST, the claim is for the cost plus all GST (except any GST for which that party is entitled to an input tax credit).
(c) If a party has a claim under or in connection with these terms whose amount depends on actual or estimated revenue or which is for a loss of revenue, revenue must be calculated without including any amount received or receivable as reimbursement for GST (whether that amount is separate or included as part of a larger amount).
20. The Seller's rights
Any right that the Seller may have under these terms of sale is in addition to, and does not replace or limit, any other right that the Seller may have.
21. Severability
Any provision of these terms which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make these terms enforceable, unless this would materially change the intended effect of the terms.
22. Variation
The Seller is entitled to vary these terms at any time by giving the Buyer 7 days’ written notice. Such variation will not affect existing contracts, which may only be varied by agreement in writing by the parties to such existing contracts.
