1.1 These terms and conditions of sale (Terms) apply to the supply by TigerTurf Australia Pty Limited (ACN 055 247 722) (we, us, our), to the customer named in our invoice or any other document that references these Terms (you), of synthetic grass and related products (Goods).
2.1 The price of the Goods:
2.1.1 Will be our current prices at the date of delivery unless we have quoted a firm price;2.1.2 Always exclude GST (unless expressly stated otherwise).
3.1 You must pay us on the due date for payment as set out on our invoice. If no due date is set out on our invoice, then the due date for payment will be 7 days from the date of our invoice. If you do not pay on the due date, we will be entitled to do all or any of the following:
3.1.1 Defer supplying you with more Goods;3.1.2 Charge you interest on the amount owing to us at the rate of 13% per annum;
3.1.3 Treat the contract as having been cancelled by you.
3.2 If you commit an act of bankruptcy, go into receivership or liquidation or we treat the contract as cancelled under clause
3.3 You must not withhold payment or make any deductions from the price of the Goods without our prior written consent.
3.4 You will, upon demand, pay to us all amounts (including, but not limited to, collection costs, solicitor’s costs, court costs and disbursements) incurred or expended by us in recovering payment of an overdue amount.
4.1 Risk in the Goods shall pass from us to you when the Goods are delivered to you.
4.2 We remain the owners of the Goods we supply you until you have paid in full all the amounts that you owe to us for all the Goods we have supplied to you;
4.3 While we are the owners of the Goods:
4.3.1 You will always keep the Goods clearly identified as our property;4.3.2 We will still own the Goods even if you repackage them;
4.3.3 You authorise us to enter any of your premises during normal business hours to repossess the Goods while you owe us money. You cannot revoke this authority.
4.3.4 The fact that we own the Goods will not affect our right to sue you for the price if you do not pay us on time. We have no obligation to accept returned Goods instead of being paid for them. We have no obligation to do anything to limit any loss we might suffer if you do not pay us on time.
4.4 You agree to do anything that we require at your expense to ensure that we have a perfected security interest in the Goods. We may allocate all amounts received from you in any manner we determine including as required to preserve any purchase money security interest in the Goods.
4.5 You will give us not less that 14 days’ prior written notice of any proposed change in your name.
4.6 You will keep the Goods insured against, fire, accident, theft and other risks as we may require in the names of us and you for our respective rights and interests providing for payment of policy proceeds to us as unpaid or partly paid vendor until such time as payment is made in full for the Goods and title has passed to you, this insurance provision shall apply (without limitation) to all Goods held on consignment by you on your premises.
4.7 For the purposes of the following provisions, PPS Law means the Personal Property Securities Act 2009 (Cth) (PPS Act) and the regulations made under the PPS Act as amended from time to time, and any amendment made to any other legislation as a consequence of the PPS Act, including, without limitation, amendments to the Corporations Act 2001 (Cth). A term defined in the PPS Law has the same meaning when used in this clause 4.
4.8 We are not obliged to give any notice or provide copies of any documents required under the PPS Law (including notice of a verification statement) unless the obligation to give that notice or provide that document cannot be excluded.
4.9 We may take all such steps as it considers necessary or desirable to register, protect, perfect, record, or better secure our rights, interest or position under the PPS Law in respect of Goods supplied to you.
4.10 We may, by notice to you at any time, require you to do any or all of the following things:
4.10.1 take all steps, provide information, produce documents and obtain consents;4.10.2 execute any notice, consent, document or amendment to these Terms; or
4.10.3 do any other thing, that we consider necessary or desirable to:
(a) ensure that these Terms or any security interest arising under them, are enforceable;
(b) register, protect, perfect, record, or better secure our rights, interest or position under the PPS Law in respect of Goods supplied to you;
(c) preserve our priority position as contemplated by these Terms; or
(d) overcome any defect or adverse effect arising from the PPS Law.
4.11 You must:
4.11.1 comply with the requirements of a notice under subclause (e) within the time stated in the notice at your cost and expense; and4.11.2 reimburse us our costs incurred in connection with anything you are required to do under this clause 4.
5.1 If you have specified a delivery date, we will try and deliver the Goods to you by that date. However:
5.1.1 We will be entitled to deliver the Goods to you after the agreed delivery date or cancel the contract without being liable to you in any way if the delay in delivery or circumstances preventing us from making the delivery, is caused by any event outside our control;5.1.2 We may deliver the Goods to you by instalments in any quantities and each delivery will be a separate contract independent from the other deliveries.
5.2 You may not refuse to accept delivery of Goods except where we have agreed in writing.
5.3 We will only be liable to you for shortfalls, losses or damage in delivery which are due to our gross negligence or willful default and in those cases our only liability will be redelivery of the Goods. We will only be liable under this clause where you have notified us of those matters within 7 days of delivery.
5.4 You will stop using the Goods and notify us immediately you become aware that the Goods do not meet our specifications. We will not be liable for loss or damage to you if you continue to use the Goods after advising us of any failure to meet our specifications.
5.5 Goods which do not meet the requirements of your order may not be returned to us unless:
5.5.1 You have notified us in writing within 7 days of delivery; and5.5.2 The goods are in the same condition as they were when they were delivered and are not cut or damaged in any way; and
5.5.3 We have agreed in writing that they may be returned.
5.6 Where we have agreed that Goods may be returned:
5.6.1 You must pay for the cost of returning the Goods; and5.6.2 You must pay our handling fee.
5.7 You may, with our prior written consent, test the Goods prior to delivery. Testing will be at your cost.
6.1 Where we are permitted by law, we exclude or contract out of all statutory conditions, guarantees and warranties.
6.2 We give all technical advice or assistance entirely at your own risk, and on the basis that:
6.2.1 you will carry out your own determination as to the suitability of the Goods for your application of them; and6.2.2 we will have no liability to you whatsoever for any such technical advice or assistance.
6.3 We warrant only that the Goods reasonably comply with our written specifications (where we are the manufacturer) or that they comply with the manufacturer’s written specifications (where we are not the manufacturer). In no case will we be liable for breach of this warranty unless the alleged breach is notified to us in writing within:
6.3.1 30 days of delivery to you of the affected Goods; and6.3.2 seven days of your discovery of the alleged breach.
6.4 We do not warrant that all rolls of synthetic turf supplied are from the same dye lot and you acknowledge that variations in colour are possible between rolls (colour variation). You must disclaim liability to your own customers in respect of colour variation, and you must fully indemnify us against any claim made against us by any customer of yours in connection with colour variation.
6.5 Any description of Goods is provided for identification purposes only and there is no implied condition that the Goods will correspond to that description.
6.6 We will not be liable to you, under the warranty in clause 6.3 or otherwise (including under contract or tort (including negligence) or under any indemnity), for any indirect or consequential loss suffered by you arising out of our supply to you of the Goods and otherwise arising in connection with these Terms.
6.7 To the extent we are liable to you, that liability is limited to:
6.7.1 where we are not the manufacturer of the Goods, the amount of the manufacturer’s liability to us in respect of the circumstances related to your claim; or6.7.2 where we are the manufacturer of the Goods, the sale price of the affected Goods.
6.8 Under the Australian Consumer Law, certain statutory guarantees (Consumer Guarantees) are conferred in relation to the supply of certain goods or services as specified in the Australian Consumer Law (PDH Goods or Services). If the Goods or any services supplied by us under these Terms are PDH Goods or Services, the operation of the Consumer Guarantees cannot be excluded or limited. If, however, the Goods or any services supplied by us under these Terms are not PDH Goods or Services then we can, and we do, limit our liability for breach of any Consumer Guarantee to (at our option):
6.8.1 in the case of Goods, repairing or replacing the Goods or paying the cost of having the Goods repaired or replaced; and6.8.2 in the case of any services, re-supplying the services or the cost of having the services re-supplied, and the parties agree it is fair and reasonable in all the circumstances for our liability to be so limited.
7.1 You must fully indemnify us for any loss, damages or expenses that we may incur as a result of:
7.1.1 any claim being brought against us by a customer who purchases the Goods from you;7.1.2 any representations made by you about any of the Goods which are made otherwise than in accordance with our express specifications and warranties which accompany the Goods or any other representations made by you on our behalf which we have not expressly or impliedly consented for you to make;
7.1.3 any breach of these Terms, any incorrect or improper use of the Goods, or any carelessness or negligence on your, or your personnel’s, behalf in using, applying or processing the Goods we have supplied to you, except to the extent that any such loss arises from our breach of these Terms.
8. Intellectual property
8.1 All our trademarks, copyright and all drawings, specifications and other technical information or other intellectual property rights in respect of the Goods remain our property and you may not use, remove, interfere with or alter them in any way.
8.2 We make no representation that the Goods will not infringe the intellectual property rights of any other person and will not be liable for any costs that you may incur as a result. You will notify us immediately if you receive a claim from a person alleging that it is the owner of any intellectual property rights relating to the Goods and if we consider ourselves to be affected, we shall be entitled to complete control of the defence or settlement of the claim.
9.1 Where you are an individual:
9.1.1 You irrevocably authorise us, in connection with the supply (or proposed supply) to you of Goods:(e) to obtain from any third party, and to verify, information about you which we require, including determining whether to extend credit to you;
(f) To provide that information to any third party.
9.1.2 You can ask us for a copy of your personal information at any time. If you believe that personal information we hold about you is incorrect, then you may request us to correct it.
10.1 Nothing in this clause will apply to any dispute relating to non-payment of all or any part of the price of the Goods, nor prevent a party from seeking interlocutory relief in any case.
10.2 If either party notifies the other in writing of any dispute arising out of or in relation to these Terms to which this clause 10 applies, the parties will meet promptly to negotiate in good faith to achieve a resolution of that dispute. The parties may agree, but are not obliged, to use a mediator.
10.3 If any dispute cannot be resolved between the parties within 20 Working Days of notification under clause 10.2, either party may refer the dispute (by written notice to the other party) for determination by a single person who is suitably qualified and experienced (expert) to determine the matter in dispute.
10.4 If the parties are unable to agree in writing on the person to be appointed as expert, within 5 Business Days after the date on which the first notice is given under this clause 10, the expert will be appointed by the president for the time being of the Arbitrators’ and Mediators’ Institute of New Zealand.
10.5 In resolving any dispute under this clause:
10.5.1 the expert will be deemed to be acting as an expert, not as a mediator or an arbitrator;10.5.2 nothing in this clause 10 will constitute a submission to arbitration;
10.5.3 each party must ensure that its duly authorised representatives meet with the expert, as the expert may reasonably require in order to expedite the resolution of that dispute;
10.5.4 the expert will determine the procedure for determining the dispute;
10.5.5 the parties will be jointly and severally liable to the expert for all costs incurred by the expert, unless the expert determines that an alternate allocation is more equitable; and
10.5.6 any determination of the expert will, in the absence of material error of fact or law by, or fraud on the part of, the expert, be binding on the parties.
11.1 These Terms constitute the entire agreement between us and you in relation to Goods and any services supplied in connection with them and shall supersede all prior negotiations or agreements between us and you. No variation to these Terms shall be binding unless in writing and executed by both us and you.
11.2 All our rights, powers, exemptions and remedies under these terms and conditions will remain in full force notwithstanding any neglect, forbearance or delay in enforcement by us. We will not have waived any condition unless such waiver is in writing executed by an authorized officer. Any written waiver will only apply to the particular transaction, dealing or matter to which it relates.
11.3 You may not assign your rights or delegate your performance under this agreement without our consent in writing.
11.4 We will not be bound by any representation that we make unless it is in writing.
11.5 These Terms shall be interpreted and governed by the law of the State of Victoria and the courts of the State of Victoria shall have non-exclusive jurisdiction.