The following terms and conditions shall be read in conjunction with the Victorian Second Hand Dealers & Pawnbrokers Act 1989 and the Victorian Second Hand Dealers & Pawnbrokers Regulations 2008. Wherein these terms and conditions conflict with or inadvertently contravene the appropriate legislation and regulations, the legislation and regulations shall be deemed to apply in the provision of any Goods and Services provided by How Bazaar.
1.1 "Seller" shall mean How Bazaar Pty Ltd and its successors and assigns.
1.2 "Purchaser" shall mean the Purchaser or any person acting on behalf of and with the authority of the Purchaser.
1.3 "Guarantor" means that person (or persons), or entity whom agrees herein to be liable for the debts of the Purchaser on a principal debtor basis.
1.4 "Goods" shall mean goods supplied by the Seller to the Purchaser (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 Seller to the Purchaser 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 Seller and the Purchaser subject to clause 4 of this contract.
2.1 All and any business undertaken by the Seller with the Purchaser, or any person acting on behalf of and with the authority of the Purchaser, is transacted subject to these terms and conditions. In the event that there is any inconsistency between these terms and conditions and any other communication from the Seller, these terms and conditions shall prevail unless specified otherwise in writing by a director of How Bazaar.
2.2 Any instructions received by the Seller from the Purchaser for the supply of Goods and/or the Purchaser's acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
2.3 Where more than one Purchaser has entered into this agreement, the Purchasers shall be jointly and severally liable for all payments of the Price.
2.4 The Seller agrees that it shall perform the Services and / or provide the Goods. The Seller shall make available representatives that will deploy the specific skills and experience relevant to perform the Services and / or provide the Goods. The Seller has the right to decide which and how many representatives it reasonably considers necessary for performance of the Goods and / or Services. None of Seller's representatives are authorised to make any representations, statements, conditions or agreements not expressed by the proprietor of the Seller in writing nor is the Seller bound by any unauthorised statements.
2.5 The Purchaser in allowing the Seller to perform the Goods and / or Services shall give the seller reasonable assistance as the Seller considers necessary to ensure that the Goods and / or Services are carried out satisfactorily.
2.6 Upon acceptance of these terms and conditions by the Purchaser 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 and/or proprietor of the Seller.
2.7 None of the Seller's agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
2.8 The Purchaser undertakes to give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Purchaser's name and/or any other change in the Purchaser's details (including but not limited to, changes in the Purchaser's contact details or business practice).
2.9 The Seller shall be under no liability to the Purchaser in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the Goods and / or Services supplied pursuant to this Agreement. To the extent possible at law, the Purchaser shall release and discharge the Seller from any claim for damage or loss arising from the supply of the Goods and / or Services under this Agreement.
3.1 The Goods are as supplied, or as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Purchaser.
4.0 Price And Payment
4.1 At the Seller's sole discretion the Price shall be either;
(a) as indicated on invoices provided by the Seller to the Purchaser in respect of Goods supplied; or
(b) the Seller's current Price, at the date of delivery of the Goods, according to the Seller's current marked or indicated price; or
(c) Seller's quoted Price (subject to clause 4.2) which shall be binding upon the Seller provided that the Purchaser shall accept in writing the Seller's quotation within seven (7) days.
4.2 Any variation from the plan of any scheduled works or specifications will be charged for on the basis of the Seller's quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At the Seller's sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
4.4 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods.
4.5 The Seller may withhold delivery of the Goods until the Purchaser has paid for them, in which event payment shall be made before the delivery date.
4.6 At the Seller's sole discretion, payment for approved Purchasers may be made by installments in accordance with the Seller's delivery/payment schedule.
4.7 At the Seller's sole discretion, for certain approved Purchasers payment will be due seven (7), fourteen (14) or twenty-one (21) days following the date of the invoice.
4.8 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Purchaser and the Seller.
4.9 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 Seller.
4.10 If any GST (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time, 'GST') is payable by the Seller in respect of the supply of services to the Purchaser, then the Price ('Original Cost') is to be increased so that the Seller receives an amount ('Increased Cost') which, after subtracting the GST liability of the Seller in that Increased Cost, results in the Seller retaining the Original Cost after payment of that GST liability. The Increased Cost is to be received except to the extent that it is expressly included in any quotation given by the Seller must provide the Purchaser with a valid tax invoice in respect of the GST.
4.11 Where the payment of any invoice or any part thereof is not made on the due date, the Seller, without prejudice to its other rights hereunder or in law, shall be entitled to charge interest (before as well as after judgment) on the outstanding amount at the rate of twelve percent (12%) per annum from the date of invoice until the outstanding sum is paid.
4.12 In addition to the above, should the Purchaser fail to make any payment when due under this Agreement the Seller shall have the right by notice in writing forthwith to suspend all further Goods and / or Services until the default be made good.
4.13 Receipt by the Purchaser of any form of payment other than cash shall not be deemed to be payment until that form has been honoured, cleared or recognised and until then the Seller's ownership of rights in respect of the Goods and / Services shall continue.
4.14 All goods supplied by the Seller shall remain as property of the Seller until payment has been received in full.
4.15 Where more than one Purchaser has entered into this agreement, the Purchasers shall be jointly and severally liable for all payments due under the agreement.
5.0 Delivery Of Goods / Services
5.1 Delivery of the Goods may be made to the Purchaser's address at the discretion of the Seller and by prior arrangement. The Seller may, at their discretion, charge for delivery of goods by prior arrangement with the Purchaser. The Purchaser 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 Purchaser at the Seller's address.
5.2 Delivery of the Goods to a carrier, either named by the Purchaser or failing such naming to a carrier at the discretion of the Seller for the purpose of transmission to the Purchaser, is deemed to be a delivery of the Goods to the Purchaser.
5.3 The costs of carriage and any insurance which the Purchaser reasonably directs the Seller to incur, shall be reimbursed by the Purchaser (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 Purchaser's agent.
5.4 The Seller may deliver the Goods by separate installments (in accordance with the agreed delivery schedule). Each separate installment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
5.5 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.6 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
6.1 If the Seller retains property in the Goods nonetheless, all risk for the Goods passes to the Purchaser on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Purchaser, the Seller 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 Seller is sufficient evidence of the Seller's rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
7.0 Purchaser's Disclaimer
7.1 The Purchaser 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 Seller and the Purchaser acknowledges that he buys the Goods relying solely upon his own skill and judgment.
8.0 Defects / Returns
8.1 The Purchaser shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Purchaser shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Purchaser believes the Goods are defective in any way. If the Purchaser 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 Seller has agreed in writing that the Purchaser is entitled to reject, the Seller's liability is limited to either (at the Seller's discretion) replacing the Goods or repairing the Goods provided that:
(a) the Purchaser has complied with the provisions of clause 8.1;
(b) the Goods are returned at the Purchaser's cost within seven (7) days of the delivery date;
(c) the Seller will not be liable for Goods which have not been stored or used in a proper manner;
(d) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as such condition as is reasonably possible in the circumstances.
8.3 The Purchaser accepts responsibility for the consequence of any errors or omissions in Goods or Services delivered.
9.1 The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
10.0 The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
10.1 Nothing in this agreement is intended to have the effect 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.
11.0 Intellectual Property
11.1 Where the Seller has designed or drawn Goods/Services for the Purchaser, then the copyright in those designs, artwork and drawings (the "Intellectual Property") shall remain vested in the Seller, and shall only be used by the Purchaser at the Seller's discretion.
11.2 The Seller may grant the Purchaser a licence to use the Intellectual Property referred to in clause 11.1 in relation solely to the operation of the Purchaser's business however, the Purchaser shall not use nor make copies of such Intellectual Property in connection with any work or business other than the work or business specified in writing to the Seller unless express
approval is given in advance by the Seller. Such licence shall terminate on default of payment or any other terms of this agreement by the Purchaser.
11.3 The Purchaser warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design, copyright or trademark, is not unlawful or for an improper purpose, including information that is defamatory, misleading or deceptive or otherwise expose the Seller to any liability, legal proceeds or other sanction.
11.4 The Purchaser must take all reasonable steps to prevent infringement of Intellectual Property Rights and moral rights in the works undertaken by the Seller.
11.5 In the event that proceedings are brought or threatened by a third party against the Purchaser alleging the Purchaser's use of the Goods and / or Services constitutes an infringement of intellectual property rights, the Seller may at its option and at the Purchaser's expense conduct the defense of such proceedings. The Purchaser shall provide all necessary co-operation, information and assistance to the Seller in the conduct of the defense of such proceedings.
12.0 Default & Consequences Of Default
12.1 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% compounding per calendar month and shall accrue at such a rate after as well as before any judgment.
12.2 If the Purchaser defaults in payment of any invoice when due, the Purchaser shall indemnify the Seller from and against all the Seller's costs and disbursements including on a solicitor and own client basis and in addition all of the Seller's nominees costs of collection.
12.3 Without prejudice to any other remedies the Seller may have, if at any time the Purchaser is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Purchaser and any of its other obligations under the terms and conditions. The Seller will not be liable to the Purchaser for any loss or damage the Purchaser suffers because the Seller exercised its rights under this clause.
12.4 If any account remains unpaid at the end of the second month after supply of the Goods or Services 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.
12.5 In the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller's opinion the Purchaser will be unable to meet its payments as they fall due; or
(b) the Purchaser 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 Purchaser or any asset of the Purchaser, then without prejudice to the Seller's other remedies at law:
(i) the Seller shall be entitled to cancel all or any part of any order of the Purchaser which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Seller shall, whether or not due for?payment, immediately become payable in addition to the interest?payable under clause 12.1 hereof.
13.1 It is the intention of the seller and agreed by the Purchaser that property (other than the title to Intellectual Property which remains with the Seller) in the Goods shall not pass until:
(a) The Purchaser has paid all amounts owing for the particular Goods, and
(b) The Purchaser has met all other obligations due by the Purchaser to the Seller in respect of all contracts between the Seller and the Purchaser, and that where practicable the Goods shall be kept separate until the Seller shall have received payment and all other obligations of the Purchaser are met.
13.2 Receipt by the Seller 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 Seller's ownership of rights in respect of the Goods shall continue.
13.3 It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from the Seller to the Purchaser the Seller may give notice in writing to the Purchaser to return the Goods or any of them to the Seller. Upon such notice the rights of the Purchaser to obtain ownership or any other interest in the Goods shall cease.
(b) The Seller shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(c) If the Purchaser fails to return the Goods to the Seller then the Seller or the Seller's agent may enter upon and into land and premises owned, occupied or used by the Purchaser, or any premises as the invitee of the Purchaser, where the Goods are situated and take possession of the Goods.
(d) The Purchaser is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Purchaser shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller.
(e) The Purchaser shall not deal with the money of the Seller in any way which may be adverse to the Seller.
(f) The Purchaser 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 Seller.
(g) The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Purchaser to the Seller arising out of these terms and conditions, and the Seller may take any lawful steps to require payment of the amounts due and the Price.
(h) The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Purchaser.
(i) Until such time that ownership in the Goods passes to the Purchaser, if the Goods are so converted, the parties agree that the Seller will be the owner of the end products.
14.0 Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) Where the Purchaser and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Purchaser 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 Seller or the Seller's nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Purchaser and/or the Guarantor acknowledge and agree that the Seller (or the Seller'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 Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Purchaser and/or Guarantor shall indemnify the Seller from and against all the Seller'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 Purchaser and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller's nominee as the Purchaser'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 Seller and/or the Seller's nominee shall think fit in his/her/its/their absolute discretion against the joint?and/or several interest of the Purchaser and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Purchaser's and/or Guarantor's name as may be necessary to secure the said Purchaser's and/or Guarantor's obligations and indebtedness to the Seller 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 Seller's absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
15.0 Privacy Act 1988
15.1 The Purchaser and/or the Guarantor/s agree for the Seller to obtain from a credit-reporting agency a credit report containing personal credit information about the Purchaser and Guarantor/s in relation to credit provided by the Seller.
15.2 The Purchaser and/or the Guarantor/s agree that the Seller may exchange information about Purchaser 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 Purchaser;
(b) To notify other credit providers of a default by the Purchaser;
(c) To exchange information with other credit providers as to the status of this credit account, where the Purchaser is in default with other credit providers; and
(d) To assess the credit worthiness of Purchaser and/or Guarantor/s.
15.3 The Purchaser consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Purchaser agrees that Personal Data provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Purchaser and Seller or required by law from time to time:
(a) provision of Services & Goods;
(b) marketing of Services and/or Goods by the Seller, its agents or distributors in relation to the Services and Goods;
(c) analysing, verifying and/or checking the Purchaser'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 Purchaser; and
(e) enabling the daily operation of Purchaser's account and/or the collection of amounts outstanding in the Purchaser's account in relation to the Services and Goods.
15.5 The Seller may give, information about the Purchaser to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Purchaser; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Purchaser.
16.1 The Purchaser shall indemnify and keep indemnified the Seller from and against any loss, damage or injury incurred by the Seller, its employees and agents in connection with the attendance of the Seller, its employees, or agents at premises owned or occupied by the Purchaser for the purpose of providing the Goods and / or Services. This indemnity shall not apply in the case of loss, damage or injury which is caused by the negligence of the Seller or its employees or agents.
16.2 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.3 All Goods supplied by the Seller are subject to the laws of Victoria and the Seller takes no responsibility for changes in the law which affect the Goods supplied.
16.4 The Seller shall be under no liability whatever to the Purchaser for any indirect loss and/or expense (including loss of profit) suffered by the Purchaser arising out of a breach by the Seller of these terms and conditions.
16.5 In the event of any breach of this contract by the Seller the remedies of the Purchaser shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
16.6 The Purchaser shall not set off against the Price amounts due from the Seller.
16.7 The Seller may license or sub-contract all or any part of its rights and obligations without the Purchaser's consent.
16.8 The Seller 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 seller notifies the Purchaser of such change.
16.9 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.
16.10 A waiver of any breach of the provision of these terms and conditions shall not be construed as a continuing waiver of other breaches of the same kind or other breaches of a different kind of any of the provisions of these terms and conditions.