TERMS AND CONDITIONS
1. ACCEPTANCE
1.1 This Agreement is between Adam Crooks t/a Habitual Services (ABN 49 637 721 810) (referred to as “Habitual”, “we”, “us” or “our”), and the Client
described in the Proposal referred to as “client”, “you” or “your”), and collectively the Parties.
1.2 You have requested the goods set out in the attached Proposal (Goods). You agree and accept that our Goods are provided to you on these Terms and
Conditions (Terms).
1.3 You accept our Proposal and Terms by:
(a) signing and returning the Proposal;
(b) confirming by email that you accept the Proposal;
(c) instructing us to proceed with the supply of the Goods; or
(d) paying any Deposit set out in the Proposal, or making part or full payment for the Goods, by the methods set out in our Proposal or our tax invoice to you (Invoice).
2. GOODS
2.1 We agree to provide you with the goods specified in the Proposal and in the quantities specified in the Proposal for the cost set out in the Proposal, subject
otherwise to these Terms and Conditions.
2.2 If you request additional Goods, additional charges will be payable.
3. EXCLUSIVITY
3.1 You agree that, unless otherwise agreed between us in writing, we will be your exclusive supplier of bathroom consumables and cleaning chemicals and
you will not obtain Goods from any alternate supplier.
3.2 You agree and acknowledge that we have entered into this contract in consideration of such exclusivity and any breach of this clause 3 will result in damage to our business, for which you agree to be liable.
3.3 In the event of breach of exclusivity, you agree to pay to us the full contractual amount as set out in the Proposal for the Term.
4. PRICE, INVOICING AND PAYMENT
4.1 Our Payment Terms require, unless otherwise agreed between you and us in writing:
(a) Invoices are to be issued every 30 days and will be sent to you via email. You will provide us with a current email address for this purpose;
(b) Payment to be made by direct debit, EFT, cash or cheque; and
(c) Payment within 30 days from the date of an invoice.
4.2 You agree to pay our Invoices in accordance with these Terms and Conditions.
4.3 The Price of the Goods will be fixed as set out in the Proposal for a period of 12 months Pricing will be reviewed once agreement is due to roll over.
4.4 Payment methods and these Terms may be amended from time to time in our discretion. In the event of change to our payment methods, we will provide
you with as much notice as possible.
4.5 In the event of continued non-payment in accordance with these terms or non-payment in excess of 51 days from the date of an invoice, you agree and
acknowledge we may terminate this agreement at our absolute discretion.
4.6 Late payments will attract interest at a rate of 5% p.a., compounding daily until paid. Any waiver of interest is at our absolute discretion.
4.7 If a quantity is specified in the Proposal for any particular product/s that quantity will be delivered weekly/ monthly or at other regular intervals as agreed
in the Proposal. Otherwise, the product/s will be supplied in the quantity specified by you in your order. You may vary quantities during the Term by
agreement with us.
5. CLIENT OBLIGATIONS AND WARRANTIES
5.1 You warrant that you will not canvass, employ, induce or attempt to employ, induce, solicit or entice away from us, any employee or contractor that was
employed by or contracted to us during the term that we provide Goods to you or the prior twelve (12) month period.
5.2 You warrant that throughout the term of this Agreement that:
(a) there are no legal restrictions preventing you from agreeing the Terms;
(b) you will cooperate with us and provide us with information and comply with requirements in a timely manner, as requested by us from time to time, that
are reasonably necessary to enable us to supply the Goods;
(c) the information you provide to us is true, correct and complete;
(d) you will inform us if you have reasonable concerns relating to our Goods or the quality of Goods with the aim that we and you will use all reasonable efforts
to resolve the concerns;
(e) you will inform us if you have any safety concerns regarding the Goods;
5.3 You agree that you will do all things reasonably necessary to ensure:
(a) You will have somebody on site to collect the Goods at the time of delivery;
(b) You hold all relevant insurances including Public Liability Insurance.
6. DELIVERY
6.1 We will accept orders by phone (0467 672 866) or email to [email protected]
6.2 All orders will be processed and, where possible, delivered within 48 hours of receipt (subject to delivery times and days, set out below).
6.3 Our hours of operation and deliveries will be Monday to Friday between 9am and 5pm.
6.4 Deliveries may be made outside of these hours by agreement and subject to any additional charges.
6.5 Delivery will be free for orders over $200 exclusive of GST, otherwise a $10 plus GST freight charge will apply.
6.6 You must have someone available at the delivery address to take delivery of the goods. If no one is available to take delivery we will inform you of such
either by SMS or email. You will then be able to arrange with us an alternate delivery time. Should we be required to make another delivery attempt a $10
plus GST freight charge will apply.
6.7 We will not leave goods unattended at an address except when previously instructed by you. No liability will be taken for any loss or damage that may
result.
6.8 You must ensure the delivery area must be safe and free from hazardous or potentially hazardous material or items.
6.9 You agree and acknowledge that we may, from time to time, use third parties for the purpose of delivering goods. In the event any such third party is
utilised, we will not be liable for, and you will not seek from us, any loss or damage caused by that third parties delay or conduct in delivering.
7. OUR INTELLECTUAL PROPERTY
7.1 You must not breach our copyright or intellectual property rights by, including but not limited to:
(a) creating derivative works from the Materials; or
(b) using our Materials for commercial purposes such as on-sale to third parties.
8. CONFIDENTIAL INFORMATION
8.1 We, including our employees and contractors, agree not to disclose your Confidential Information to any third party; to use all reasonable endeavours to
protect Confidential Information from any unauthorised disclosure; only to use the Confidential Information for the purpose for which it was disclosed by
you and not for any other purpose.
8.2 You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to
protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed
or provided by us to you, and not for any other purpose.
8.3 These obligations do not apply to Confidential Information that:
(a) is authorised to be disclosed;
(b) is in the public domain and/or is no longer confidential, except as a result of breach of these Terms;
(c) is received from a third party, except where there has been a breach of confidence; or
(d) must be disclosed by law or by a regulatory authority including under subpoena.
8.4 The obligations under this clause will survive termination of these Terms.
9. FEEDBACK AND DISPUTE RESOLUTION
9.1 Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about our Goods please
contact any member of our staff.
9.2 If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure.
(a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant
thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
(b) If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on
who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and
place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
9.3 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under
these Terms, by law or in equity.
10. TERM
10.1 The term of this Agreement will be 12 months from the date indicated on the Proposal, unless otherwise indicated on the Proposal.
10.2 In the event that either party wishes to terminate as or from the expiration of twelve months, 60 days’ notice of termination (Notice Period) will be provided
to the other party.
10.3 In the event no notice of termination is provided in accordance with this clause 10, the agreement will automatically renew for a further 12 month period
and will expire at the expiration of a further 12 months, unless otherwise agreed between us in writing.
11. TERMINATION
11.1 The Parties may terminate the Terms by mutual agreement, by notice per the Notice Period in writing including by email.
11.2 Either party may terminate the Terms, if there has been a material breach of these Terms, subject to following the dispute resolution procedure.
11.3 We may terminate the Terms immediately, in our sole discretion, if:
(a) we consider that a request for a Goods is inappropriate, improper or unlawful;
(b) we consider that our working relationship has broken down including a loss of confidence and trust; or
(c) for any other reason outside our control which has the effect of compromising our ability to perform the work required within the required timeframe.
11.4 On termination of these Terms you agree that you will pay all outstanding invoices within 14 days of termination.
11.5 On termination of these Terms you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential
Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property.
11.6 On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential
Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property.
11.7 The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
12. LIMITATION OF LIABILITY AND DISCLAIMERS
12.1 ACL: Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection
laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Goods by us to you which cannot be
excluded, restricted or modified (Statutory Rights).
12.2 Our liability is governed solely by the ACL and these Terms. We exclude all conditions and warranties implied by custom, law or statute except for your
Statutory Rights.
12.3 Except for your Statutory Rights, all goods and work is provided to you without warranties of any kind, either express or implied; and we expressly disclaim
all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.
12.4 Delay: Where the provision of Goods depends on your information or response to a query from us, we have no liability for a failure to provide the Goods
accordance with these terms and conditions, which is affected by your delay in response, incomplete or incorrect information.
12.5 Liability: To the extent permitted by law, we exclude all express or implied representations, conditions, guarantees, warranties and terms relating to the
Goods and this agreement, except those set out in this agreement, including but not limited to:
(a) implied or express guarantees, warranties, representations or conditions of any kind, which are not stated in the Terms;
(b) our Goods being unavailable; and
(c) any loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of
profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss
or damage relating to business interruption, or otherwise, suffered by you or claims made against you, arising out of or in connection with the inability to
access or use the Goods, and/ or the late supply of Goods, even if we were expressly advised of the likelihood of such loss or damage.
12.6 Limitation: Our total liability arising out of or in connection with our Goods, however arising, including under contract, tort, including negligence, in equity,
under statute or otherwise, will not exceed one hundred dollars (AUD$100) if no such payments have been made, as applicable.
12.7 This clause will survive termination of these Terms.
13. WARRANTY FOR GOODS
13.1 Where any product provided by us contains a major fault or defect, we will, at our election, either repair or replace the product.
13.2 Insofar as permitted by law, such repair or replacement shall represent our entire liability for such fault or defect.
14. GENERAL
14.1 Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable
legislation or privacy guidelines.
14.2 Publicity: You consent to us using advertising or publicly announcing that we have undertaken work for you.
14.3 Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have
as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or nondelivery of any document or information and for any damage caused to your system or any files by a transfer.
14.4 GST: If and when applicable, GST payable on our Goods will be set out on our Invoices. By accepting these Terms you agree to pay us an amount equivalent
to the GST imposed on these charges.
14.5 Relationship of parties: The Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee.
14.6 Assignment: The Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these
Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).
14.7 Severance: If any provision (or part of it) of the Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as
necessary to allow it to be enforceable or valid. If a provision (or part of it) of these Terms cannot be interpreted as narrowly as necessary to allow it to be
enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision)
of the Terms are valid and enforceable.
14.8 Notices: Any notice required or permitted to be given by either party to the other under these conditions will be in writing addressed to you at the address
in the Proposal. Our address is set out in the Proposal. Any notice may be sent by standard post or email, and notice will be deemed to have been served
on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission.
14.9 Jurisdiction & Governing Law: These terms are governed by the laws of New South Wales and the Commonwealth of Australia. Each party irrevocably and
unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.
15. DEFINITIONS
15.1 Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities,
products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including
prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such
information is reduced to a tangible form or marked in writing as “confidential”.
15.2 GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other
relevant legislation and regulations.
15.3 Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and
includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs
(whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.
Contact details:
Habitual Services
ABN: 49 637 721 810
[email protected]
Last update: November 2014