Standard Terms and Conditions of Trade of
Custom-made Canopies & Splash backs Pty Ltd (Acn 110646216) trading as Custom Rangehoods & Home Venting Solutions (HVS)
The following standard terms and conditions (Standard Terms) apply to all supplies of goods and/or services by HVS to you, unless HVS’s Authorised Representative agrees (in writing) to the contrary.
- By placing an order with HVS (whether through HVS’s website at https://www.homeventingsolutions.com.au or other means) (Order), you are making an offer to enter into a binding contract with HVS to purchase the Goods (Offer).
- If HVS accepts the Offer, a legally binding contract (Contract) between HVS and you are formed.
- The Contract comprises the following:
- Standard Terms;
- The Order;
- Any terms and conditions that you include in the Order (or in any other written communications to HVS) will be of no legal effect and do not form part of the Contract, unless HVS’s Authorised Representative expressly agrees in writing that your terms and conditions will override these Standard Terms.
- Subject to clause 2.3, the Price is the price of the Goods as indicated by HVS in the Order or in HVS’s invoice to you.
- Unless otherwise stated, the Price does not include:
- bank or credit card transaction costs;
- delivery charges.
- The Price is based on your requirements in the Order. The Price is subject to increases at HVS’s discretion in any of the following situations:
- You propose to vary or change the Order;
- HVS varies the Order due to inaccurate or incomplete information or requirements that you had provided to DVA.
- You must pay HVS for the Goods before HVS processes the Order.
- You may pay using credit card, PayPal or any other payment method specified by HVS.
- HVS will not deliver the Goods before it receives full payment from you.
- You must make all payments to HVS free from any deductions, set-off or claim of any kind whatsoever.
- HVS will deliver the Goods to the Delivery Address.
- HVS may at its sole discretion subcontract the delivery of the Goods to a contractor or agent.
- You will bear all delivery and freight costs.
- Delivery of the Goods is affected when HVS (or HVS’s freight carrier or agent) hands the Goods over to you or to your representative. You also authorise HVS (or HVS’s freight carrier or agent) to leave the Goods unattended at the Delivery Address if you or your representative are not present at the Delivery Address at the time of delivery. If you request for a re-delivery, you agree to bear any additional delivery cost or freight cost that HVS incurs.
- HVS (or its freight carrier or agent) may but is not obliged to obtain a written acknowledgement of delivery from you or your representative when that person takes delivery of the Goods.
- You must inspect the Goods on delivery or within 3 days after the delivery. You must notify HVS in writing within 3 days from the date of delivery of any damage, defect or non-compliance of the Goods with the Contract. If you fail to notify HVS within the specified time, you are deemed to have accepted the Goods.
- If the Goods do not comply with the Contract, HVS will at its sole discretion elect whether to replace or to rectify the Goods.
- HVS will use best endeavours to deliver the Goods within 5 to 10 Business Days from the date of the Order or the date on which HVS receives full payment for the Goods, whichever is later.
- HVS will use reasonable endeavours to notify you if it becomes aware of any possible delay in the delivery of the Goods.
- Any time or date for delivery given by HVS (including the estimated timeframe in clause 5.1) is intended only as an estimate and may be subject to delays caused by HVS’s suppliers, freight carrier, or any other cause beyond the reasonable control of HVS. HVS will not be liable to you for any loss or damage resulting from late delivery of the Goods. HVS’s delay will not entitle you to treat the Contract as repudiated or to terminate this Contract.
- If at any time before HVS delivers the Goods to you, you request HVS to vary the Goods or your requirements (whether as to the nature, quality or quantity of the Goods) (Proposed Variation), HVS may but is under no obligation to accept the Proposed Variation. If HVS agrees to consider the Proposed Variation, it will:
- confirm with you whether the Proposed Variation is feasible and the effect of the Proposed Variation on the Delivery Date and the Price; or
- notify you that the Proposed Variation is not feasible and HVS’s reasons.
- HVS is entitled to be paid the agreed amount for performing the Proposed Variation. You must comply with clause 3.1 before HVS is obliged to perform the Proposed Variation.
- You must contact the installers yourself and organise the installation of the Goods.
- You are liable to the installer for the installation fees.
- The installer is responsible to you for the proper installation of the Goods or any warranty issues.
- Subject to clauses 8.3 and 8.4, HVS warrants that the Goods supplied will be of acceptable quality for a period of 24 months from the date of delivery.
- The warranties in clause 8.1 do not apply in the following situations:
- Defects or damage to the Goods through:
- accident, misuse or abuse whether caused or partly caused by you or by any other person;
- wilful act by you or any other person;
- normal wear and tear;
- exposure to external conditions that are not suitable to the Goods;
- acts of God or fire;
- modification, alteration or interference with the Goods without HVS’s approval;
- failure to properly maintain the Goods;
- repairs, servicing, modification or other works carried out on the Goods by a third party without HVS’s approval;
- use of parts or components for the Goods which are not approved by HVS;
- incorrect use of the Goods or failure to follow HVV’s (or the original manufacturer if relevant) operating guidelines, instructions or manual; or
- continued use of the Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user.
- If you have grounds to believe that the Goods do not comply with the warranties given in clause 8.1, you must within a reasonable time (in any event within 14 days) after discovering the alleged defect, notify HVS in writing of the nature of the defect. HVS will investigate and determine the cause of the alleged defect or fault.
- If HVS determines that the alleged defect or fault is under warranty, HVS’s liability will be limited, at HVS’s option, to one or more of the following:
- the replacement of the Goods or the supply of equivalent goods;
- the repair of the Goods;
- the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
- the payment of the cost of having the Goods repaired.
- If the alleged defect or fault is not under HVS’s warranty, HVS will charge you to rectify the defect at its then current rates or to supply a replacement Good to you at HVS’s prevailing prices.
- Return of Goods
- Other than a breach of warranty by HVS under clause 8, HVS may but is under no obligation to accept the return of the Goods.
- If HVS accepts the return of the Goods, it is conditional upon the following:
- You return the Goods to HVS’s premises at your expense;
- the Goods are:
- in its original packaging;
- in a condition which HVS considers satisfactory for resale;
- subject to any other terms that HVS requires.
- the Goods are not custom made goods; and
- the Goods have not been installed.
- If HVS accepts the return of the Goods, it will either give you the refund, a credit note or allow you to exchange the Goods for some other goods. HVS reserves the right to charge you a restocking fee of 15% of the Price of the relevant Goods.
- The Goods are not returnable after they have been installed.
- Intellectual Property
- HVS owns all Intellectual Property Rights in the Goods and in HVS’s Technical Materials.
- You must not and must not procure or permit any person to re-engineer, de-compile, reproduce, copy any of HVS’s Intellectual Property that subsists in the Goods or otherwise exploit HVS’s Intellectual Property or deal with HVS’s Intellectual Property in a manner that is not contemplated by this Contract.
- Title & Risk
- Title and risk in the Goods passes to you from the time you, representative or agent takes custody, possession or control of the Goods from DVA.
LIMITATION OF LIABILITY
- Subject to any warranties which are implied by law and cannot otherwise be excluded, HVS excludes all other conditions, warranties or guarantees or liability in connection with this Contract or DVA’s supply of the Goods.
- Subject to clause 11.1, to the extent HVS’s liability cannot be excluded, HVS’s liability will be limited to the express warranties in clause 8.1 and HVS’s maximum liability under this Contract (including negligence claims) is capped at the price of the specific Goods and/or Services that gave rise to your loss or damage.
- Under no circumstances will HVS be liable to you for any Consequential Loss, damage to property or injury to persons.
- If you allege HVS’s Goods have caused any loss or damage to your property, you agree that HVS may appoint an independent building inspector to carry out an inspection, at your expense. The inspector’s findings and report will be final and binding on the Parties.
- You will indemnify HVS against any claim, loss, damage or expense (including legal costs on a full indemnity basis) that HVS incurs or suffers directly as a result of your breach of any term or warranty in this Contract.
- ACCESS TO SITE
- If HVS requires access to the site or your premises for the purposes of this Contract, you must provide HVS, its employees, contractors or agents (Personnel), reasonable and safe access to the site or premises.
- You indemnify HVS for any loss or damage suffered by HVS (and HVS’s Personnel) arising from or in connection with HVS or HVS’s Personnel’s attendance at the Site or your premises, to the extent caused or contributed by your wilful acts or negligence.
- DEFAULT ON PAYMENT
- If in the event HVS has delivered the Goods to you and you default in payment of HVS’s invoice, without limiting HVS’s rights and remedies, you agree to the following:
- You grant HVS (and HVS’s employees, agents or contractors) access to your premises (or to procure access for HVS to the site where the Goods are located) to seize the unpaid Goods;
- You agree that HVS may do whatever is reasonably necessary for HVS to seize the unpaid Goods (including but not limited to dismantling, disassembling or detaching the unpaid Goods from other goods or equipment to which the unpaid Goods are installed or affixed);
- You agree to pay all the enforcement costs incurred by HVS and also indemnify and hold HVS harmless against any claims by any third party as a result of HVS’s exercise of its right pursuant to this clause 14.1.
- HVS may apply any monies received from you (including any proceeds of sale from the disposal of any Goods that HVS seized from you through enforcement actions) towards any unpaid invoice, HVS’s enforcement costs or any other claims against you (e.g. indemnities) in accordance with this Contract, as HVS determines at its absolute discretion.
- PRIVACY ACT
- You consent to receive regular communications (whether mailers, electronic mails, electronic text messages or via any other media including social media) from HVS in relation to product information, marketing materials or information about HVS’s goods and services.
- If you wish to opt out from receiving these communications, please contact HVS (please refer to HVS’s website at https://www.homeventingsolutions.com.au for its contact details).
- If HVS agrees to supply you the Goods on a retention of title arrangement, to secure your payment obligations under clause 3, you grant to HVS a Purchase Money Security Interest in the Goods (and in any other goods that HVS supplies to you from time to time). HVS’s Security Interest will attach to any Proceeds or any Accessions.
- HVS may register its Security Interests under this Contract pursuant to the PPSA and you consent to the Registration.
- You agree that this Contract constitutes a Security Agreement for the purposes of the PPSA.
- You agree to sign any documents and provide necessary assistance and information to HVS to enable HVS to perfect its Security Interest by Registration.
- You waive the right to receive notice of any financing statement registered by HVS.
- You must not dispose of the Goods to which HVS has a Security Interest other than in the ordinary course of your business.
- While HVS retains title to the Goods, you must not subject the Goods to any person’s Security Interest or to permit a third party from registering a Security Interest over the Goods, unless you have received HVS’s prior written consent.
- HVS may apply any amounts that you have paid under this Contract to any of your outstanding invoices in HVS’s absolute discretion.
- You agree to notify HVS in writing of any change to your details set out in this Contract, within 5 days from the date of such change.
- Governing Law and Jurisdiction
- The Parties agree that this Contract shall be governed by and construed in accordance with the Laws of Western Australia.
- The Parties submit to the non-exclusive jurisdiction of the courts of Western Australia and any courts which may hear appeals from those courts in respect of any proceedings in connection with this Contract.
Any notice shall be given by sending the notice by registered mail, courier, fax or by email to the address of the Party as stated in the Contract or to such other address as such Party may have notified in writing to the other for such purposes.
- Assignment and Subcontracting
HVS may assign or subcontract any or all rights and obligations under this Contract to another person.
In the event that any provision of this Contract is declared invalid or unenforceable by any court or body of competent jurisdiction or under any law, regulation or order that may be applied to the Contract as well as for any other reason, such provision shall be void and unenforceable only in this respect and the validity and enforceability of any other provision of this Contract shall not be affected.
HVS may amend, vary or modify these Standard Terms at any time. Any variation will take effect from the date on which HVS gives notice of the variation to you.
This Contract constitutes the entire agreement and understanding of the Parties, and supersedes all prior negotiations, understandings and representations, whether written or oral, of the Parties with respect to the subject matter of this Contract.
The waiver by a Party at any time, for non-compliance by the other Party with a provision of this Contract, shall never be construed as a waiver by such Party of any subsequent execution of that provision or a waiver by such Party of the execution of any other provision of the Contract.
Each Party must do all things, and must ensure that its officers, employees or representatives do all things reasonably required of it or them by notice from another Party effectively to carry out and give full effect to this Contract and the rights and obligations of the Parties.
This Contract may be executed in any number of counterparts and all of those counterparts taken together constitute one and the same instrument.
- Force Majeure
- HVS is not liable for failure to perform the Contract during the time and to the extent that such performance is prevented, wholly or substantially, by Force Majeure.
- HVS may terminate the Contract by giving a written notice to you if the Force Majeure event continues for more than 60 days. HVS is not liable to you for any loss or damage that you suffered as a result of a Force Majeure event or HVS’s termination of the Contract under this clause 17.10(b).
- Upon HVS’s termination under clause 17.10(b), you must immediately pay for any Goods that DVA has supplied to you prior to the date of termination.
For the purposes of this Contract, the following terms in this document have the meanings below:
“Consequential Loss” means any one or more of the following: loss of revenue; loss of profits; loss of opportunity to make profits; loss of business; loss of business opportunity; loss of use or amenity, or loss of anticipated savings; special, exemplary or punitive damages; and any loss which does not directly and naturally flow in the normal course of events from the occurrence of the event giving rise to the liability for such loss, whether or not such loss was in the contemplation of the parties at the time of entry into this agreement, including any of the preceding types of loss arising from an interruption to a business or activity.
“Delivery Address” means the address that you nominate for DVA to deliver the Goods to.
“Delivery Date” means the date of delivery of the Goods as agreed or specified by DVA.
“HVS” means Dalzara Pty Ltd (ACN 613 456 947) trading as Home Venting Solutions-, a corporation registered in Australia.
“HVS’s Authorised Representative” means a director, officer or chief executive officer of HVS.
“Force Majeure” means any event or circumstance beyond the reasonable control of a Party including but not limited to acts of God, wars, riots, strikes, lock-outs, embargos, trade disputes, labour disturbances, breakdown of plant or machinery, accidents, storm, fire, floods, difficulties in obtaining materials, unavailability of communications network or infrastructure from third party network providers, transport or labour or any other circumstances affecting the supply of the Goods.
“Goods” mean the goods to be supplied by HVS pursuant to this Contract.
“Intellectual Property” means any subject matter, whether tangible or intangible, that attracts, or is susceptible to protection by, Intellectual Property Rights.
“Intellectual Property Rights” means all copyright and analogous rights, all rights in relation to patents, inventions, registered and unregistered trademarks, registered designs, source code, Confidential Information (including trade secrets), know-how, circuit layouts and all other rights throughout the world resulting from intellectual activity in the industrial, scientific or artistic fields.
“Personnel” means HVS’s directors, officers, employees, agents or contractors.
“Price” means the prices of the Goods.
“Purchase Money Security Interest”, “Proceeds”, “Register”, “Registration”, “Security Agreement” and “Security Interest” have the meanings given by the PPSA .
“Site” means the site or place where the Goods will be installed.
“Standard Terms” means HVS’s general terms and conditions of sale in this document.
“Technical Materials” include designs, drawings, plans, product manuals, installation manual, HVS’s operating manual for the Goods.
In this Contract, unless the context indicates a contrary intention:
- Headings are for convenience only and do not affect the interpretation of this Contract;
- An obligation or a liability assumed by, or a right conferred on, 2 or more persons binds or benefits them jointly and severally;
- A reference to “person” includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
- A reference to a Party includes that Party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation;
- A reference to a document (including this Contract) is to that document as varied, novated, ratified or replaced from time to time;
- A reference to a statute includes its delegated legislation and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments, re‑enactments and replacements;
- A word importing the singular includes the plural (and vice versa), and a word indicating a gender includes every other gender;
- A reference to a Party, clause, schedule, exhibit, attachment or annexure is a reference to a Party, clause, schedule, exhibit, attachment or annexure to or of this Contract, and a reference to this Contract includes all schedules, exhibits, attachments and annexures to it;
- If a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
- “includes” in any form is not a word of limitation;
- The currency for the purposes of this Contract is the Australian dollar (AUD) unless HVS’s quote or proposal indicates otherwise.