In these Conditions and in the Contract, unless the context otherwise requires:
– liability in tort (including liability as to negligence);
– liability in contract; and
– any liability for consequential loss including loss of profits or damage of any kind howsoever caused or arising.
(a) All descriptions, specifications, illustrations, drawings and diagrams provided by the Company whether in the Company’s catalogues, trade literature, internet web site, other published matter or otherwise are of a general informative nature and approximate only.
(b) None of the published matter referred to in clause 1.2(a):
(i) forms part of the Contract (unless expressly set out or referred to in the Contract);
(ii) forms part of the description of the Goods; or
(iii) gives rise to any independent or collateral Liability of any nature on the part of the Company.
(c) Without limiting the generality of clause 1.2(a) and condition 1.2(b), the Company is not under any Liability for inaccuracies in weights or dimensions quoted by the Company.
Unless otherwise stated in these Conditions or in the Contract, the cost of the Goods includes the cost of basic packaging but excludes any Delivery Charges, Taxes, installation costs any costs incidental thereto.
Unless otherwise stated in these Conditions or in the Contract, the Goods are to be delivered in basic packaging.
All Taxes are to be paid by the Purchaser.
The Company is entitled to bring an action for all money outstanding from the Purchaser to the Company whether or not property in the Goods has passed to the Purchaser.
Company shall be entitled to charge the Purchaser an additional charge for Delivery as indicated in the Tax Invoice.
(a)Any time or date named or accepted by the Company for completion, delivery, despatch, shipment or arrival of the Goods is an estimate only and does not constitute a condition or part of the description of the Goods.
(b)The Company is not under any Liability for the consequences of any delay as a result of any cause outside the reasonable control of the Company. (c)Without prejudice to the generality of clause 3.2(b), the Company is under no Liability for any delay in completion, Delivery, despatch, shipment or arrival of the Goods caused directly or indirectly by acts of God, war, riots, strikes and other labour conflicts involving employees of the Company or the Company’s contractors or the Company’s contractor’s employees, lockouts, trade disputes, fires, storms, floods, other adverse weather conditions, explosions, breakdowns, mechanical failures, interruption of transport, government action or inaction or by any other cause whatsoever, whether or not of a like nature to those specified above, outside the reasonable control of the Company. .
(d)If any of the events specified in clause 3.2(c) occur, the time for completion, Delivery, despatch, shipment or arrival of the Goods or tender of documents may be extended by the Company or the Company may cancel the Contract without any Liability on the Company’s part.
(e)Time for completion, Delivery, despatch, shipment or arrival of the Goods or for the tender of any documents is not of the essence of the Contract.
Payment of the Price is to be made by the Purchaser in accordance with the Tax Invoice.
(a) Time for payment of the Price or any part thereof is of the essence of the Contract.
(b) If the Purchaser fails to pay the Price or any part thereof when due the Company may:
(i)treat the Contract as repudiated by the Purchaser; or (ii) suspend Delivery,
without incurring any Liability to the Purchaser in respect of such treatment or suspension.
Despite any rights of lien to which the Company may otherwise be entitled, the Company has a specific lien, including a right of sale, over the Goods until the Price has been paid in full.
The Purchaser is not entitled to make any deduction from the Price in respect of any set-off or counterclaim.
Property in the Goods remains in the Company until full payment of all sums due and owing from the Purchaser to the Company has been made or title is properly vested in some other person by the operation of law.
The Goods are at the Purchaser’s risk from the first Delivery.
The Company shall pass to the Purchaser the benefit of any manufacturer’s or supplier’s guarantee relating to the Goods but nothing in this Contract requires the Company to commence any proceedings against any manufacturer or supplier of such Goods or to incur any material expense in the connection with any claim by the Purchaser.
Subject to any express provision in these Conditions or in the Contract to the contrary and to the full extent permitted by law, where the Contract does not constitute a supply of goods or services to a consumer as defined in any of the Acts:
(a) the Company gives no condition, warranty or undertaking of any kind as to:
(i)the condition, quality or safety of the Goods;
(ii)the suitability or fitness for the ordinary or any special use or purpose of the Goods;
(iii)any service provided by or on behalf of the Company in relation to the Goods;
(b) the description of the Goods in this document or any other document does not import any condition or warranty on the part of the Company; (c) all conditions, warranties or Liabilities (including Liability as to negligence) expressed or implied, whether arising by virtue of any statute or otherwise, relating to the Goods or to any service provided in relation to the Goods are negated and excluded;
(d) the Purchaser accepts full responsibility for ensuring that the condition and quality of the Goods are suitable for the purposes of the Purchaser; and (e) the Purchaser accepts the Goods as they are.
In the event that the Contract constitutes a supply of goods or services to a consumer, as defined in any of the Acts:
(a) nothing in the Contract or these Conditions is to be construed as excluding, restricting or modifying any express or implied condition, warranty, right or remedy conferred by any of the Acts on the Purchaser; and
(b) the Liability of the Company in respect of a breach of a condition or warranty implied by any of the Acts (other than an implied condition as to good title, an implied warranty that the Purchaser is to enjoy quiet possession and an implied warranty that the Goods are unencumbered together with any other non-excludable implied conditions or warranties contained in any of the Acts), is limited at the Company’s option to:
(i) in the case of goods:
(A) the replacement of the Goods or the supply of equivalent goods; or
(B) the repair of the Goods;
(C) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(D) the payment of the cost of having the Goods repaired;
(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, provided that this clause 8.2 is not to apply if the Purchaser establishes that the Company’s reliance on it would not be fair and reasonable.
To the full extent permitted by law:
(a) the Purchaser declares that the Purchaser is relying on the Purchaser’s own skill and judgment in relation to the Goods; and
(b) the Company is under no Liability for any unsuitability for any purpose of the Goods (or any goods supplied with the Goods) irrespective of any knowledge which the Company may possess as to the purpose for which the Goods are required unless that purpose has been fully and specifically notified to the Company in writing prior to the making of the Contract or is set out in these Conditions or in the Contract.
(a) Subject to clause 7 and to any non-excludable warranties that may be implied by law, the Company is under no Liability for any defect (including any defect caused by the loading of the Goods) in, or deterioration or failure of, the Goods (or any goods supplied with the Goods) whether due to design, workmanship or materials or to any cause whatsoever unless the defect is due to the wilful default of the Company.
(b) The Company is under no Liability for any failure of the Goods to correspond with any description (including without limitation, any description relating to quantity, dimensions, weight, place of shipment or other statements relating to transport of the Goods) and all conditions, warranties or other terms whether express or implied statutory or otherwise inconsistent with the provisions of this Condition are hereby expressly excluded.
The Purchaser shall comply with all instructions of the manufacturer in relation to the fitting, installation and use of the Goods. Please note that the Liberty Swing MUST be fenced and fitted with a gate for safety purposes.
Notwithstanding the Purchaser’s compliance with instructions referred to in clause 9.1, but subject to clause 9.3, the Purchaser shall keep the Company indemnified against all costs, claims, demands, expenses and Liabilities of any nature, including, without prejudice to the generality of this Condition, claims for death, personal injury, damage to property and consequential loss, (including loss of profit) which may be made against the Company or which the Company may sustain, payor incur as a result of or in connection with the manufacture, sale, export, import or use of the Goods.
The Purchaser’s indemnity under this Condition does not apply if the cost, claim, demand, expense or Liability is directly and solely attributable to any breach of Contract by or negligence of the Company.
Each Condition is severable from the others and no severance of a Condition shall affect any other Condition.
These Conditions are governed by and are to be construed in accordance with the laws of Victoria.
(a) irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Victoria and any courts which have jurisdiction to hear appeals from any of those courts; and
(b) waive any right to object to any proceedings being brought in those courts for any reason.
These Conditions and the Tax Invoice, embody the entire understanding and agreement between the parties as to the subject matter of this Contract. 10.5 Inconsistency
If there is any inconsistency between the terms of the Contract in the Tax Invoice and these Conditions, the provisions of the Contract contained in the Tax Invoice apply to the extent of the inconsistency.
(a) All previous negotiations, understandings, representations, warranties, memoranda or commitments in relation to, or in any way affecting, the subject matter of these Conditions are merged in and superseded by these Conditions and shall be of no force or effect whatever and no party shall be liable to any other party in respect of those matters.
(b) No oral explanation or information provided by any party to another shall:
(i) affect the meaning or interpretation of these Conditions, or
(ii) constitute any collateral agreement, warranty or understanding between any of the parties.