These Terms apply to the supply of all Goods by us to you from the date that you accept these Terms.
You accept these Terms when:
(a) you provide us with a completed account application form or apply for a credit account;
(b) you submit an Order;
(c) you accept Delivery of, or any part of, any Goods pursuant to an Order; or
(d) you make Payment, or partial Payment, for any Goods supplied by us,
whichever occurs first.
2. QUOTES AND ORDERS
2.1 Providing a Quote:
You may request and we may provide to you a Quote relating to the potential supply of Goods, which may include the price and quantity of the Goods proposed to be supplied by us and other relevant details as necessary.
2.2 Validity of Quote:
A Quote is valid for 30 days from the quotation date only. We reserve the right to withdraw a Quote at any time before you place an Order.
2.3 Placing an Order:
You may place an Order for each supply of Goods. An Order is not binding until:
(a) you have paid any relevant Deposit required; and
(b) we have provided you in our absolute discretion our acceptance or confirmation of the Order.
2.4 Additional Conditions:
Unless otherwise agreed by us in writing, these Terms will prevail over, and we will not be bound by, any conditions (express or implied) added or provided by you, whether in an Order or otherwise.
2.5 Description of Goods:
You acknowledge that:
(a) You may order Goods as described on our website or in other materials that we provide to you.
(b) The Goods may be natural and/or hand-made products with inherent imperfections and variations in colour, shade, texture, composition and natural characteristics.
(c) Images or representations regarding the Goods on our website or otherwise are indicative only and the Goods you receive may vary in colour, shade, texture, composition and natural characteristics from those depicted in images or representations from us.
If we require you to provide a Deposit amount, we will only commence your Order once we have received full payment for the Deposit amount relating to your Order.
Unless otherwise agreed to in writing by us or by our authorised representative, subject to clause 3.2, the price charged and payable for the Goods will be the price in Australian dollars at the date we issue the Invoice to you, together with any applicable taxes, charges and delivery costs in relation to the Goods.
3.2 Variation of Price:
Prices contained in any Quote for the supply of Goods or as communicated by us from time to time are based on the cost prevailing and the specification supplied at the time of the Quote or communication. Subject to your rights under law, we reserve the right to vary the price if:
(a) there is any movement in the cost of supplying the Goods specified in your Order, including any Charges;
(b) the Goods specified in your Order are varied from the Goods specified in our Quote; or
(c) otherwise provided in these Terms.
3.3 Imported Goods:
(a) Prices for imported goods charged to you will be the price of those goods charged to us (including any relevant Charges, transportation, freight and insurance costs) converted into Australian dollars based on the relevant foreign exchange rate published by the Reserve Bank of Australia on the date of our Quote or communication regarding the price of the relevant imported goods.
(b) We may, at our discretion, suspend your Order or vary the price for imported goods charged to you if the relevant exchange rate between the date of our Quote or communication regarding the price of the relevant imported goods and the date of our Invoice varies by 5% or more.
You will only be entitled to a discount as we may indicate to you in writing. We may cancel discounts at any time at our discretion.
4.1 Invoice on Delivery:
Unless we otherwise notify you in writing, we will issue you an Invoice for any Payment required under these Terms, including for any Deposit (as applicable), for payment required before or on Delivery of the Goods specified in your Order or in relation to any credit account you have with us.
4.2 Payment Terms:
Subject to clause 4.3 and unless we otherwise notify you in writing, payments must be made in the following sequence:
(a) Initial 50% deposit payment, including delivery & GST upon order confirmation. Production of stock will not commence until this payment is received in full, and;
(b) Final 50% payment, including delivery & GST prior to dispatch of the Goods to you.
If you have a credit account with us:
(a) We may at our discretion grant you a credit limit in accordance with our determination of your creditworthiness.
(b) We may at our discretion change the amount of credit available to you, your payment terms or cancel your credit account, including if we consider that your credit worthiness has changed for any reason.
(c) Unless we otherwise agree in writing, you must not exceed the credit limit granted to you in accordance with these Terms.
(d) All Payments must be made in full within 30 days from the date of our Invoice.
4.4 Payment Method:
All Payments are to be made to us in cash, by direct credit to the bank account nominated by us, by credit or by cheque or as otherwise indicated by us in writing.
Unless we otherwise notify you in writing, if you make a payment using a credit card we may charge you a credit card fee of the lower of:
(a) 1.95% (incl GST) applies for credit card payments on Orders or credit account payments of $1,000 (incl GST) or more; or
(b) the cost to us of processing your credit card payment.
4.6 Payment in Instalments:
We may at our discretion as agreed in writing accept Payments in instalments upon such terms as we see fit.
5. PAYMENT DEFAULT
5.1 Default Interest:
We may at our discretion in the event of your failure to make a Payment in accordance with clause 4:
(a) charge Default Interest at the rate of 5% per annum plus the prevailing cash rate maintained by the Reserve Bank of Australia;
(b) cease supply of any and all Goods until all Payments have been made in full;
(c) modify any credit limit or payment terms applicable to you; and/or
(d) terminate any Order or these Terms.
5.2 Payment of Default Interest:
Default Interest pursuant to clause 5.1(a) will be:
(a) payable on demand; and
(b) calculated daily from the date Payment was due to the actual date that the Payment is made in full.
5.3 Costs of enforcement:
We may recover from you any costs we incur in the collection of Payment of any Invoice, including legal costs.
5.4 No set off:
You may not set off against any Payment any claims which you may have against us.
6. DELIVERY, RISK AND INSURANCE
Delivery of the Goods will take place upon pick up by or Delivery of the Goods to you, your agent or nominee or to a carrier commissioned on your behalf as applicable at the place specified by you or as otherwise agreed. We will not install Goods for you.
6.2 Mode of Delivery:
We will not accept responsibility for Goods Delivered to the place specified by you beyond either:
(a) a location within 5 metres of the delivery vehicle, if delivered by courier; or
(b) in all other cases, the kerbside.
6.3 Missed Deliveries:
If your representative is not present at the assigned delivery time and you have not requested an alternative delivery time, we may either:
(a) store the Goods and attempt re-delivery. We may charge you any costs we incur to store the Goods until they are Delivered to you; or
(b) deliver the Goods to the location specified in clause 6.2 and risk will pass to you in accordance with clause 6.6.
6.4 Cost of Delivery:
We may charge you for delivering the Goods to you, which will be included in the Invoice to be paid in relation to the Goods. Any transportation costs incurred after the Goods have been Delivered will be paid by you.
We reserve the right to make Deliveries in instalments and these Terms will be severable as to such instalments.
6.6 Risk Passes on Delivery:
The risk in the Goods will pass to you upon the Delivery of the Goods in accordance with clause 6.1.
6.7 No liability for Delay:
We will use reasonable efforts to deliver the Goods to you by the delivery date and to the place specified by you. Without limiting clause 9, if the Delivery of the Goods is delayed:
(a) we will not be liable for late Delivery or delay in Delivery; and
(b) the delay does not give you the right to cancel an Order or terminate these Terms.
Without limiting clause 6.3, if, due to your act or omission, a Delivery cannot take place within 14 days of the Delivery Date set out in the Order, we will issue an Invoice for the reasonable costs of storing the goods until Delivery can be effected in accordance with clause 6.1.
7. SUSPENSION AND CANCELLATION
7.1 Suspension of Order:
If as a consequence of an instruction from you, we delay or suspend (but not cancel) an Order or any part of an Order for a period of 7 days or more, we may:
(a) request the payment in full for all work in progress relating to the relevant Order at the time of suspension; and/or
(b) vary the price for the uncompleted portion of the relevant Order.
7.2 Cancellation by You:
You may not cancel an Order, or any part of it, unless:
(a) we give our written consent; and
(b) you pay to us (if required by us in our absolute discretion) any and all costs reasonably incurred by us in relation to the cancelled Order or the cancelled part of the Order to the date of cancellation.
7.3 Cancellation by Us:
We may in writing cancel an Order or delivery of an Order without liability to you (save as required by relevant laws) if:
(a) we reasonably form the opinion that you are insolvent or at material risk of insolvency;
(b) you fail to pay any amount for the Goods on the due date; or
(c) we reasonably form the opinion that supplying Goods to you may have a negative impact upon our business or commercial reputation or image.
8. DEFECTS AND RETURNS OF GOODS
You should carefully inspect the Goods immediately once they are delivered. Subject to your right to provide a notification under clause 8.3 and your rights at law, you are deemed to accept the Goods as-is by the earlier of:
(a) 7 days from the delivery date; and
(b) the commencement of installation of the Goods.
You should inspect the Goods immediately once they are delivered and may only seek a remedy for the Goods if:
(a) they do not materially comply with the Order; or
(b) if permitted by law, including the ACL.
If you wish to seek a remedy for any Goods delivered to you in accordance with clause 8.2, you must give to us prior to the installation of any Goods, and by no later than 7 days of Delivery of the Goods:
(a) notice of your intention to seek a remedy; and
(b) the original Invoice details.
8.4 Replacement or Credit:
If we accept your notifications under clause 8.3, we will at our option either:
(a) replace the relevant Goods; or
(b) give a credit or a refund for such Goods.
8.5 Costs to Return Goods:
You will, unless you have a statutory or other legal right that permits otherwise:
(a) bear any expense of transportation of Goods returned to us; and
(b) pay a re-stocking fee of the greater of:
(i) of 20% of Goods returned; or
which is a reasonable pre-estimate of loss associated with processing the returned Goods.
8.6 Non-payment of Account:
We will not accept notifications under clause 8.3 if you are in breach of any payment obligations or any amounts are overdue.
8.7 Goods Damaged in Transit:
If the Goods are damaged in the course of being delivered to you:
(a) you must notify us of any claim for Goods damaged in transit within a 7 business days of Delivery; and
(b) subject to our acceptance of your claim under this clause 8, we will in our discretion refund or provide an equivalent replacement for the relevant Goods.
9. EXCLUSIONS AND LIMITATIONS
9.1 Excluded Rights:
All express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), relating to these Terms, that are not contained in it, are excluded to the fullest extent permitted by law.
No warranty is given and we will not be liable for:
(a) alterations to Goods for which we are not responsible;
(b) defects or depreciation caused by wear and tear, accidents, corrosion, dampness or other abnormal conditions or effects;
(c) inherent cracks, chips or blemishes in products;
(d) any natural variability between Goods of the same or similar description or quality that may be reasonably expected due to the Goods being natural and/or hand-made products with inherent imperfections and variations in colour, shade, texture, composition and natural characteristics;
(e) damage or failure caused by unusual or non-recommended use, misuse or application of the Goods;
(f) damage, defects or depreciation caused by any failure to properly install or maintain the Goods in accordance with best practices, including (but not limited to):
(i) failure to engage a qualified installer or tradesperson skilled in the use and installation of such Goods; or
(ii) the application of ineffective sealing agents or insidious cleaning products to the Goods;
(g) loss caused by any factors beyond our control.
9.3 Indirect Loss:
We will not be liable for any special, indirect, consequential or economic loss or damage or loss of profits (in contract or tort or arising from any other cause of action) suffered by you or any other person resulting from any act or omission by us.
9.4 Total Liability:
Our total liability for breach of these Terms or breach of our contractual obligations or duties at law or in equity (however arising) is limited at our option to:
(a) the replacement of the Goods or the supply of equivalent goods;
(b) the repair or rectification 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 the repair or rectification of the Goods.
9.5 No Reliance:
You acknowledge that:
(a) you have and will make your own assessment of the fitness for purpose and suitability of any Goods supplied to you;
(b) you do not and will not rely on any advice that we provide regarding installation or use of any Goods that we supply to you;
(c) you must seek your own advice from a qualified installer or tradesperson skilled in the use and installation of such Goods;
(d) you do not and will not rely on our skill or judgment nor that of any person by whom any prior negotiations or arrangements in relation to the acquisition of any Goods were conducted or have been or will be made; and
(e) you have not and will not make known to us the particular purpose for which you acquire Goods.
9.6 Third Party Work:
Installation of the Goods is not included. To the maximum extent permitted by law, we take no responsibility for the installation of the Goods. If you use a third party to install Goods that we provide under these Terms, to the maximum extent permitted by law:
(a) we will not be liable for any breach of these Terms if that breach is as a result of or is connected with the act or omission of a third party in connection with such Goods;
(b) any claim by you in relation to the installation of the Goods must be made directly against that third party;
(c) any warranties, statutory guarantees or other rights will be governed by the terms of supply by that third party to you and relevant laws; and
(d) we will not be liable for any loss, damage, liability or injury arising in connection with the improper installation of Goods or the use of such improperly installed Goods, and you shall indemnify and keep us fully indemnified from and against any and all actions, claims, demands, losses or damages in connection with the same.
10. STATUTORY RIGHTS
10.1 No Restriction:
Nothing in these Terms excludes, restricts or modifies any condition, warranty, statutory guarantee, right or remedy implied or imposed by law that cannot be lawfully excluded, restricted or modified.
10.2 Unfair Contract:
If section 23 of the ACL applies to any provisions in these Terms, any such provision(s) will be void to the extent it is unfair within the meaning of section 24 of the ACL.
11.1 Possession as Bailee:
After Delivery of the Goods, until the full Payment has been made you will possess the Goods as bailee only.
We will retain absolute title over the Goods until we have received Payment in full in respect of the Goods.
12. SECURITY INTEREST
12.1 Security Agreement:
This clause 12 sets out the Security Agreement between you (Grantor) and us (Secured Party).
12.2 Creation of Security Interest:
The Grantor grants to the Secured Party a Security Interest in the Goods supplied by us to you, including all related proceeds (Collateral), as security for all or part of the Payment of any amount relating to the Goods in accordance with these Terms or otherwise. For the avoidance of doubt, this Security Interest is also a Purchase Money Security Interest in the Collateral.
The Grantor irrevocably gives authority to the Secured Party to register a financing statement with respect to the Security Interest on the PPSR. This clause does not limit how the Secured Party may perfect this Security Interest.
The Grantor must provide the Secured Party with any information required for the Secured Party to register a financing statement or a financing change statement with respect to this Security Interest on the PPSR.
Until this Security Interest in the Collateral has been extinguished, the Grantor will ensure that, as far as is reasonably practicable:
(a) any identifying plate, mark or packaging number on any of the Collateral (including Goods) is not removed, defaced or obliterated; and
(b) the Collateral is identifiable and distinguishable from any other goods or products that may be in the Grantor’s possession and as to each particular Invoice of Goods comprising the Collateral.
The Grantor acknowledges that this Security Interest continues to apply to Collateral that becomes an accession to other goods.
Until this Security Interest in the Collateral has been extinguished, if:
(a) a Default Event occurs in respect of the Grantor; or
(b) the Grantor is in breach of these Terms,
the Secured Party may as it sees fit and without notice to the Grantor, seize, retain or redeem the Collateral, or seek any and all remedies provided under Chapter 4 of the PPSA or any other remedies provided at law or in equity, including those set out in clause 12.8.
12.8 Right of Entry:
In additional to any rights given to the Secured Party under Chapter 4 of the PPSA, the Grantor irrevocably:
(a) grants the Secured Party the right to:
(i) demand the immediate return of the Goods to the Secured Party;
(ii) enter the Grantor’s premises to search for and seize the Goods without notice or liability to the Grantor; and
(iii) retain, sell or otherwise dispose of those Goods in any manner it sees fit; and
(b) indemnifies, and keeps indemnified, the Secured Party against any claim (including in negligence) in respect of any damage to the property of, or the premises occupied by, the Grantor or any consequential loss caused by another party arising relating to searching for and seizing any Goods in accordance with this clause 12.8.
The Grantor will pay all costs incurred by the Secured Party (including costs on a solicitor-client basis and debt collector’s costs) arising out of this Security Agreement, including costs in relation to:
(a) registration of a financing statement or a financing change statement;
(b) seizure, retention, redemption or any other remedy exercised pursuant to clause 12.7; and
(c) the enforcement of its rights under this Security Agreement (including matters incidental to it).
The Security Interest is extinguished only if all obligations under this Security Agreement have been satisfied by the Grantor, including the obligation to pay costs as set out in clause 12.9.
Sections 95, 118, 121(4), 125, 130, 132 and 135 of the PPSA will not apply to the extent that they impose obligations on the Secured Party.
12.12 Waiver of Receipt of Statements:
The Grantor irrevocably waives its right to receive from the Secured Party a copy of any financing statement, financing change statement or verification statement that is registered, issued or received at any time in relation to this Security Agreement.
13. INTELLECTUAL PROPERTY
13.1 Your Intellectual Property:
If you provide us with Material to be used in the supply of the Goods:
(a) you warrant and represent to us that any Goods supplied to you based on the Material you provide to us will not infringe the Intellectual Property Rights of any third party; and
(b) you indemnify and will keep us indemnified from and against any and all claims, liabilities, obligations, expenses or damages which we may suffer or incur as a result or in connection with the representation or warranty in clause 13.1(a) being untrue or breached.
13.2 Licence Over Materials:
You grant to us a non-exclusive royalty-free license throughout the universe to use all Intellectual Property Rights in all Materials for so long as necessary or convenient for the production of the Goods and the matters contemplated in relation to the delivery of the relevant Goods.
13.3 Our Intellectual Property:
All of our Intellectual Property Rights in and relating to the production, development and supply of the Goods, including but not limited to drawings, illustrations, specifications, and other literature remains our property and will not be transferred, assigned, licensed, reproduced, disclosed or otherwise given to any other person by you without our prior written consent.
You will keep confidential and will not use any confidential information communicated by us to you without our prior written consent.
14.1 Prices Exclusive of GST:
Unless otherwise agreed, prices with respect to any taxable supply are exclusive of GST.
14.2 GST Payable in Addition:
You must pay to us all GST in addition to any other amounts payable by you to us in respect of a taxable supply, which will be payable by you when required to pay for the Goods.
14.3 Issue of Tax Invoice:
We will issue a tax invoice for any taxable supply to you, which will enable you, if permitted by the GST Law, to claim a credit for GST paid by you.
14.4 Third Party Supplies:
If GST is payable for a taxable supply by a third party, we will request that party to provide you with a tax invoice.
You agree to indemnify and keep us indemnified in respect of all damages, losses, costs and expenses (including legal costs) that we may incur as a result of your breach or alleged breach of these Terms.
If a Default Event occurs:
(a) we may, without limiting any other right we have under these Terms, terminate any outstanding Order and any contract for the supply of Goods to you; and
(b) all Payments and any other money under these Terms becomes immediately payable.
15.3 Lawful Purpose:
You will ensure that the Goods are used only for lawful purposes and in accordance with any applicable laws.
These Terms will bind our successors, administrators and permitted assigns and your executors and permitted assigns, or, being a company, its successors, administrators and permitted assigns.
We may without notice to you assign, transfer and/or sub-contract our rights and/or obligations (in whole or in part) under these Terms. You may not assign, transfer, hold on trust or otherwise delegate any of your rights or obligations under these Terms without our prior written consent.
15.6 Time of the Essence:
Time will be of the essence in relation to any date or period under these Terms.
15.7 New Terms:
If we adopt new terms and conditions for the sale of Goods:
(a) you will be given written notice (if you are a Customer at the relevant time); and
(b) unless otherwise agreed, they will apply to the supply of Goods after you accept such new terms and conditions.
We may vary these Terms by providing you 30 days’ written notice.
15.9 Force Majeure:
If a Force Majeure Event occurs, we may:
(a) totally or partially suspend any Order, any part of an Order or any deliveries relating to an Order during any period in which we may be prevented or hindered from delivering by our normal means of supply or delivery due to that Force Majeure Event; and
(b) elect to extend at our discretion the period for performance of an obligation under these Terms as is reasonable in all the circumstances.
Each clause in these Terms is severable and if any clause is held to be illegal or unenforceable, then the remaining clauses will remain in full force and effect.
No failure, delay, relation or indulgence on our part in exercising any power, right or remedy precludes any other or further exercise of that or any other power, right or remedy.
15.12 Governing Law:
These Terms will be governed by the laws of the State of New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of the State of New South Wales.
16. INTERPRETATIONS AND DEFINITIONS
16.1 Personal Pronouns:
Except where the context otherwise provides or requires:
(a) the terms we, us or our refers to Botany & Botanic Pty Ltd t/as Gather Co (ABN 65 601 533 144); and
(b) the terms you or your refers to the Customer.
16.2 Defined Terms:
In these Terms, unless otherwise provided, the following terms will have their meaning as specified:
ACL means the Australian Consumer Law under the Consumer and Competition Act 2010 (Cth) as amended.
Charges means any sales tax, excise duties, customs duty, transfer duty, GST or any other taxes, duties or charges applicable in respect of the provision of the Goods.
Collateral means property that is subject of a security interest.
Customer means any person or entity that places an Order with us and agrees by conduct or by virtue of notice or otherwise to be bound by these Terms, including any related company, related party, officer and authorised person of the relevant person.
Default Event means any one of the following events:
(a) you fail to make any payment when due, whether for the Goods or otherwise;
(b) you become an insolvent under administration or an externally administered body corporate (as relevant) as defined under the Corporations Act 2001 (Cth);
(c) proceedings are commenced or an application is made for the appointment of any persons listed in items (b) above;
(d) a mortgagee or their agent enters into possession of your assets; or
(e) you materially breach a provision of these Terms.
Default Interest means as defined in clause 5.
Delivery means the delivery of the Goods in accordance with clause 6.1.
Deposit means the amount set out in a Quote or as communicated by us from time to time which is payable before we will accept an Order in accordance with clause 2.3(b).
Force Majeure Event means circumstances beyond our reasonable control, which will include, but not be limited to compliance with any laws, regulations, orders, acts, instructions or priority request of any government, or any department or agency, civil or military authority, acts of God, acts of the public enemy, your acts or omissions, fires, floods, strikes, lockouts, embargoes, wars, labour or material shortages, riots, insurrections, defaults of our suppliers or subcontractors, delays in transportation, loss or damage to Goods in transit or instructions or lack of instructions from you.
Goods means the goods we sell from time to time.
GST and GST Law have the meaning as set out in the A New Tax System (Goods Tax) Act 1999 (Cth).
Intellectual Property Rights means all forms of intellectual property rights (whether registered or unregistered) in copyright, designs, patents, trade marks, domain names, trade secrets, know-how, confidential information, and all other similar proprietary rights and all extensions and renewals thereof anywhere in the world which currently exist and/or are recognised in the future.
Invoice unless otherwise agreed means the invoice issued upon the delivery of the Goods specified in your Order.
Material means any material in which you have Intellectual Property Rights provided by you for use by us in connection with the production, development or supply of the Goods to you.
Order means an order for Goods received by us in writing in accordance with these Terms.
Payment means payment of any amount relating to Goods in accordance with these Terms.
PPSA means the Personal Property Securities Act 2009 (Cth) as amended, including any regulations made pursuant to it.
PPSR means the Personal Property Securities Register.
Quote means a quotation by us for the supply of particular Goods containing details as specified in clause 2.1.
Security Agreement means the security agreement set out in clause 12.
Security Interest means the security interest created in clause 12.
Terms means these terms and conditions of sale.