Garden Trend (Australia) Pty Ltd – Terms & Conditions of Trade
1.1 “Company” shall mean Garden Trend (Australia) Pty Ltd trading as Garden Trend.
1.2 “Customer” shall mean the Customer or any person acting on behalf of and with the authority of the Customer.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Company to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the Company to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6 “Price” shall mean the cost of the Goods as agreed between the Company and the Customer subject to clause 4 of this contract.
2.1 Any instructions received by the Company from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Company shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Customer has entered into this agreement, the Customer’s shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Company.
2.4 None of the Company’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Company in writing nor is the Company bound by any such unauthorised statements.
2.5 The Customer undertakes to give the Company not less than fourteen (14) days prior written notice of any proposed change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice).
3.1 The Goods are as described on the invoices and quotation as provided by the Company to the Customer.
4. Price and Payment
4.1 At the Company’s sole discretion;
(a) The Price shall be as indicated on invoices provided by the Company to the Customer in respect of Goods supplied; or
(b) The Price shall be the Company’s current Price, at the date of delivery of the Goods, according to the Company’s current Price list; or
(c) The Price of the Goods shall (subject to clause 4.2) be the Company’s quoted Price which shall be binding upon the Company provided that the Customer shall accept in writing the Company’s quotation within fourteen (14) days.
4.2 The Company may withhold delivery of the Goods until the Customer has paid for them, in which event payment shall be made before the delivery date.
4.3 At the Company’s sole discretion, for certain approved Customers payment will be due thirty (30) days following the date of statement.
4.4 Payment will be made by Electronic Fund Transfer or by cheque or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Customer and the Company.
4.5 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Company.
5. Delivery Of Goods / Services
5.1 Delivery of the Goods shall be made to the Customer’s designated address. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Customer at the Company’s address.
5.2 Delivery of the Goods to a carrier, either named by the Customer or failing such naming to a carrier at the discretion of the Company for the purpose of transmission to the Customer, is deemed to be a delivery of the Goods to the Customer.
5.3 The costs of carriage and any insurance which the Customer reasonably directs the Company to incur shall be reimbursed by the Customer (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Customer’s agent.
5.4 Where there is no agreement that the Company shall send the Goods to the Customer, delivery to a carrier at limited carrier’s risk at the expense of the Customer is deemed to be delivery to the Customer.
5.5 The Company may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
5.6 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.7 The failure of the Company to deliver shall not entitle either party to treat this contract as repudiated.
5.8 The Company shall not be liable for any loss or damage whatsoever due to failure by the Company to deliver the Goods (or any of them) promptly or at all.
6.1 If the Company retains property in the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Customer, the Company is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
7. Customer’s Disclaimer
7.1 The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Company and the Customer acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Company shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Customer and shall not be transferable to any subsequent Customer.
8.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Company an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
8.2 For defective Goods, which the Company has agreed in writing that the Customer is entitled to reject, the Company’s liability is limited to either (at the Company’s discretion) replacing the Goods or repairing the Goods provided that:
(a) the Customer has complied with the provisions of clause 8.1;
(b) the Company will not be liable for Goods which have not been stored or used in a proper manner;
(c) the Goods are returned in the condition in which they were delivered with all packaging material and accompanied by proof of purchase.
8.3 The Company may (in its discretion) accept the Goods for credit but this may incur a restocking fee of 20% of the invoiced value of the returned Goods plus any freight.
8.4 Any performance figures given by the Company are based on the Company’s experience and are figures that the Company expects to obtain on testing. Despite any representation by a representative of the Company to the contrary, the Company is under no liability whatsoever for damages for failure to attain such performance figures.
9.1 The Company makes no warranty, representation or other statement in respect of the Goods, their quality or their fitness for any purpose, except as stated expressly in these Terms of Sale, or as may otherwise be required by law.
9.2 The Company warrants that the Goods, whether manufactured by the Company, its Supply Line Partners or its Suppliers, as published in the Company’s current catalogues and supplied by the Company, shall, for a period of ninety (90) days from the date of dispatch of the Goods from the Company’s premises, be free of faulty workmanship, materials or design.
9.3 c) The warranties provided herein shall be effective, and impose liability on the Company to give effect to such warranty, only if:
9.4 i) The Company is provided with written notice of the circumstances giving rise to the claim arising within 30 days of the occurrence of such circumstances; and
9.5 ii) The Company is permitted to inspect Goods before they are repaired or replaced; and
9.6 iii) The Customer returns the Goods or components to the Company’s premises, at the Customer’s expense; and
9.7 iv) The Company is satisfied, by its own examination of the Goods, that any alleged circumstances giving rise to the claim have not been caused by:
1. improper use, installation, operation, damage due to accident, neglect, lightning, or from improper repair, alteration, modification or adjustment to the Goods; or
2. unusual deterioration or degradation due to physical, electrical, electromagnetic or noise environments.
9.8 The Company’s liability for any loss, injury or damage, shall be limited to making good, by replacement or repair, at the Company’s option, and at the Customer’s expense in relation to costs over and above the direct costs of replacing or repairing the Goods or the component parts of the Goods at the Company’s premises, any defects which appear under proper use.
9.9 The Company warrants that any repairs that the Company undertakes to the Goods, shall, for a period of ninety (90) days from the date of completion of the repair, be free of faulty workmanship, materials or design for a further period of twelve months, but only in respect of the components that are the subject of the repair.
9.10 Any repairs, alterations or other works carried out to the Goods by a person other than an authorised representative of the Company shall invalidate the warranty.
9.11 If the Customer requests or insists that warranty service shall be carried out on site at the Customer’s premises then any costs over and above the direct costs of replacing or repairing the Goods or the component parts of the Goods at the Company’s premises shall be at the Customer’s expense.
10. Fitness for purpose
10.1 The Customer agrees that it does not rely on the skill and judgment of the Company in relation to the suitability of any of the Goods for a particular purpose or application for which the Goods are required by the Customer and the Company is under no liability whatsoever if such Goods are not suitable and fit.
11.1 The Customer indemnifies the Company for any and all direct, special, indirect and/or consequential loss or damage, however caused to the Company and/or to third parties, that results as a consequence of the Company supplying, or failing to supply at all or on time, the Goods, to the Customer, or to any third party, under or in association with this Agreement.
11.2 The Company shall be liable to the Customer, or to any third party, for direct, special, indirect and/or consequential loss or damage, however caused, suffered by the Customer, or to any third party, only to the extent that such loss or damage is caused directly by the fault of the Company.
11.3 Notwithstanding anything else in this Agreement, and to the extent permissible by law, the Company shall be liable to the Customer, whether under the law of contract, in tort, under statute or otherwise, for any injury, loss or damage, only to the extent and in the proportion to which such injury, loss or damage is caused by the fault of the Company.
12.1 The parties will use their best endeavors and attempt in good faith to promptly resolve any dispute arising in connection with these Terms of Sale. Negotiations shall be conducted in English between representatives of the parties who have authority to settle the dispute. Negotiation must be conducted within 30 days of a party providing written notice to the other party of the matter and circumstances giving rise to the dispute (Notice of Dispute). If the dispute has not been resolved within 30 days of a party giving a Notice of Dispute, the parties will further attempt in good faith to settle the dispute by non-binding third-party mediation, with mediator fees and expenses apportioned equally to each side. If a mediator cannot be agreed upon within 10 days of a party giving a Notice of Dispute, either party may request the President of the Law Institute of Victoria to appoint a mediator. Mediation must take place within 90 days of the date of the Notice of Dispute. Any dispute not so resolved by negotiation or mediation may then be submitted to a court of competent jurisdiction in Victoria Australia in accordance with the Terms of Sale. These procedures are the exclusive procedures for the resolution of all such disputes between the parties under these Terms of Sale.
13. Limitation of liability
13.1 Notwithstanding anything else in this Agreement, and to the extent permissible by law, the Company’s aggregate liability arising out of the performance or non-performance of its services, whether under the law of contract, tort, statute or otherwise, shall be limited to the extent permissible by law to the price paid to the Company by the original Customer for the item(s) giving rise to the claim.
13.2 The Company shall not be liable for any business interruption, loss of profit, revenue, materials, anticipated savings, data, contract, goodwill or the like (whether direct or indirect), or for any other form of incidental or consequent damage of any kind.
13.3 The Company shall not be liable for any loss or damage where an action against the Company for such loss or damage is commenced after a period of twelve (12) months has elapsed after the circumstances on which the alleged cause of action have occurred. This clause shall apply regardless of any other contrary provision in these Terms of Sale and regardless of the form of action. Each provision of these Terms of Sale which provides for a limitation of liability, disclaimer of warranty or condition or exclusion of damages is separate and independent.
14.1 Any provision in these Terms of Sale which is invalid or unenforceable in any jurisdiction is to be read down for the purpose of that jurisdiction, if possible, so as to be valid and enforceable, and otherwise must be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
15.1 Where the Company has not received or been tendered the whole of the price, or the payment has been dishonoured, the Company shall have:
(a) a lien on the goods;
(b) the right to retain them for the price while the Company is in possession of them;
(c) a right of stopping the goods in transit whether or not delivery has been made or ownership has passed; and
(d) a right of resale,
(e) the foregoing right of disposal, provided that the lien of the Company shall continue despite the commencement of proceedings or judgement for the price having been obtained
16. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
16.1 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
16.2 The applicable law of this agreement is the law of Victoria and the Company and Customer irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of Victoria
17. Intellectual Property
17.1 Where the Company has designed or drawn Goods for the Customer, then the copyright in those designs and drawings shall remain vested in the Company, and shall only be used by the Customer at the Company’s discretion.
17.2 Conversely, in such a situation, where the Customer has supplied drawings, the Company in its sale conditions may look for an indemnity (the specifications and design of the Goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Company).
17.3 Where any designs or specifications have been supplied by the Customer for manufacture by or to the order of the Company then the Customer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
17.4 The Customer warrants that all designs or instructions to the Company will not cause the Company to infringe any patent, registered design or trademark in the execution of the Customers order.
18. Default & Consequences Of Default
18.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.
18.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Company from and against all the Company’s costs and disbursements including on a solicitor and own client basis and in addition all of the Company’s nominees costs of collection.
18.3 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company exercised its rights under this clause.
18.4 If any account remains unpaid at the end of the second month after supply of the goods or services the following shall apply: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
18.5 In the event that:
(a) any money payable to the Company becomes overdue, or in the Company’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer; then without prejudice to the Company’s other remedies at law
(i) the Company shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Company shall, whether or not due for payment, immediately become payable.
19.1 It is the intention of the Company and agreed by the Customer that property in the Goods shall not pass until:
(a) The Customer has paid all amounts owing for the particular Goods, and
(b) The Customer has met all other obligations due by the Customer to the Company in respect of all contracts between the Company and the Customer, and that the Goods shall be kept separate until the Company shall have received payment and all other obligations of the Customer are met.
19.2 It is further agreed that:
(a) The Customer shall not deal with the money of the Company in any way which may be adverse to the Company.
(b) Until such time as ownership of the Goods shall pass from the Company to the Customer the Company may give notice in writing to the Customer to return the Goods or any of them to the Company. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease.
(c) If the Customer fails to return the Goods to the Company then the Company or the Company’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
(d) Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Company’s ownership of rights in respect of the Goods shall continue.
(e) The Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Company.
(f) The Company may require payment of the Price or the balance of the Price due together with any other amounts due from the Customer to the Company arising out of these terms and conditions, and the Company may take any lawful steps to require payment of the amounts due and the Price.
(g) The Company can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer.
(h) Until such time the Customer has the Company’s authority to convert the Goods into other products and if the Goods are so converted, the parties agree that the Company will be the owner of the end products.
20. Security And Charge
20.1 Notwithstanding anything to the contrary contained herein or any other rights which the Company may have howsoever:
(a) Where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Company or the Company’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Company (or the Company’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the Customer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Company or the Company’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Company and/or the Company’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Customer and/or the Guarantor in any land, realty or asset in favour of the Company and in the Customer’s and/or Guarantor’s name as may be necessary to secure the said Customer’s and/or Guarantor’s obligations and indebtedness to the Company and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Company’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
The Company may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
22. Privacy Act 1988
22.1 The Customer and/or the Guarantor/s agree for the Company to obtain from a credit-reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Company.
22.2 The Customer and/or the Guarantor/s agree that the Company may exchange information about Customer and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Customer;
(b) To notify other credit providers of a default by the Customer;
(c) To exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and
(d) To assess the credit worthiness of Customer and/or Guarantor/s.
22.3 The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
22.4 The Customer agrees that Personal Data provided may be used and retained by the Company for the following purposes and for other purposes as shall be agreed between the Customer and Company or required by law from time to time:
(a) provision of Services & Goods;
(b) marketing of Services and or Goods by the Company, its agents or distributors in relation to the Services and Goods;
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Services/Goods;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Services and Goods.
22.5 The Company may give, information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
23. Unpaid Company’s Rights To Dispose Of Goods
23.1 In the event that:
(a) the Company retains possession or control of the Goods; and
(b) payment of the Price is due to the Company; and
(c) the Company has made demand in writing of the Customer for payment of the Price in terms of this contract; and
(d) the Company has not received the Price of the Goods, then, whether the property in the Goods has passed to the Customer or has remained with the Company, the Company may dispose of the Goods and may claim from the Customer the loss to the Company on such disposal.
24.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
24.2 All Goods supplied by the Company are subject to the laws of Victoria and the Company takes no responsibility for changes in the law which affect the Goods supplied.
24.3 The Company shall be under no liability whatsoever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Company of these terms and conditions.
24.4 In the event of any breach of this contract by the Company the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Company exceed the Price of the Services.
24.5 The Customer shall not set off against the Price amounts due from the Company.
24.6 The Company may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
24.7 The Company reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Company notifies the Customer of such change.
24.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.