Supply of Goods Terms and Conditions

1. Background

1. The Seller is the owner of the Goods.
2. The Buyer wants to purchase the Goods from the Seller and has provided an Order for the Goods.
3. The Seller accepts the Buyer’s offer and has agreed to sell the Goods to the Buyer in accordance with these Terms and Conditions.

2. Definitions and Interpretation

2.1 In this document:

1. Agreement: means these Terms and Conditions, the Order, the Specifications, the Installation Requirements or any other document that is incorporated into this Agreement by reference.
2. Australian Consumer Law: has the meaning given to it under the Competition and Consumer Act 2010 (Cth) as implemented under the Fair Trading Act 1989 (Qld).
3. Business Day: means between 9.00am and 5.00pm on a day other than a Saturday, Sunday or public holiday at the Seller’s principal place of business.
4. Buyer: means the person or company who places an order for the Goods.
5. Claim: includes any claim, action, demand, application, proceeding, judgment, enforcement hearing and enforcement order.
6. Goods: means goods sold by the Seller as requested by the Buyer through the Order.
7. Custom Made Goods: means goods built to a specific order or specification.
8. GST: means goods and services tax imposed under GST Law.
9. GST Law: means A New Tax System (Goods and Services Tax) Act 1999 (Cth), any regulations passed under this Act, or any statutory instrument amending, consolidating or replacing it.
10. Installation Requirements: means the recommended process for installing the Goods having regard to the Specifications.
11. Loss: includes any loss, liability, tax, prohibition, penalty, fine or expense.
12. Order: means an offer to purchase made by the Buyer as described in clause 3.2 and may include over the counter orders, telephone orders or other methods for making an order, as accepted by the Seller.
13. Purchase Price: means the full price for the Goods (excluding GST and delivery costs) as set out in the Order.
14. Specifications: means any technical or other specification related to the manufacture of the Goods and their use, as made available to the Buyer at the time of purchase.
15. Seller: means Habitat Screens & Decor Pty Ltd (ACN 619 060 776) and includes its officers, employees, agents and contractors.
16. Terms and Conditions: means these terms and conditions as amended from time to time.
17. Voluntary Warranties: means the voluntary warranties set out in clause 11.

2.2 In this Agreement, unless the context otherwise requires:

1. words importing a gender include any other gender;
2. words in the singular include the plural and vice versa;
3. all dollar amounts refer to Australian currency;
4. a reference to any legislation includes any subordinate legislation made under it and any legislation amending, consolidating or replacing it;
5. a reference to an individual or person includes a corporation or other legal entity;
6. a reference to “consent” means prior written consent;
7. clause headings have been included for convenience only and are not intended to affect the meaning or interpretation of this Agreement;
8. if any expression is defined, other grammatical forms of that expression will have corresponding meanings; and
9. if a party includes two or more persons, this Agreement will bind them jointly and each of them severally.

3. Supply of Goods

1. The Seller agrees to supply the Goods to the Buyer in accordance with the Terms and Conditions. The Buyer accepts the Terms and Conditions.
2. An order or an offer to purchase (Offer) can be made by the Buyer in writing or verbally. An Offer is accepted by the Seller upon the earlier of the following:
   1. the Seller accepts the offer in writing;
   2. the Buyer collects the Goods from the Seller; or
   3. the Seller delivers the Goods to the Buyer.
3. Unless the Seller agrees otherwise in writing, the Terms and Conditions apply to every Order.
4. Acceptance of the Goods by the Buyer is conclusive evidence that the Terms and Conditions apply and are binding on the Buyer.
5. To remove doubt, if at any time in relation to the supply of the Goods, the Buyer provides, refers to, submits, uses, or seeks to rely on terms and conditions that are different from the Terms and Conditions, such terms and conditions will not form part of this Agreement.

4. Title

1. Legal and equitable title in the Goods passes to the Buyer upon payment of the full Purchase Price to the Seller.
2. Subject to full payment of the Purchase Price, title of the Goods will be supplied free of any encumbrances and other adverse interests.
3. The Buyer acknowledges that until full payment of the Purchase Price is received by the Seller, and in circumstances where the Buyer receives early delivery of the Goods:
   1. the Buyer holds the Goods as bailee for the Seller;
   2. a fiduciary relationship exists between the Buyer and Seller for the Goods; and
   3. subject to any express agreement which enables the Buyer to use the Goods for the intended purpose before title passes, the Buyer must keep the Goods in the condition in which the Goods were provided by the Seller until such time that title in the Goods passes to the Buyer.

5. Risk

1. Risk in the Goods passes to the Buyer upon the earlier of the following:
   1. the Buyer collects the Goods from the Seller;
   2. the Seller delivers the Goods to the Buyer; or
   3. upon legal and equitable title in the Goods passing to the Buyer under clause 4.

6. Acceptance

1. Within 24 hours of receiving the Goods from the Seller, the Buyer or the Buyer’s agent must:
   1. carry out a physical inspection of the goods; and
   2. notify the Seller in writing if the goods do not comply with the description, conditions or warranties set out in this Agreement.
2. To the fullest extent permitted by law, the Goods are accepted by the Buyer within 24 hours of:
   1. the Buyer collecting the Goods from the Seller; or
   2. the Seller delivering the Goods to the Buyer or the Buyer’s agent,

   regardless of whether a physical inspection is carried out by or for the Buyer under clause 6.1.

3. The Buyer acknowledges that the Seller is not required to provide a refund or replacement for a change of mind and only offers refunds for Goods when:
   1. the refund is made available in accordance with the Voluntary Warranties in clause 11;
   2. if Australian Consumer Law applies, the right to a refund becomes available through an exercise of any relevant statutory condition or statutory right; or
   3. when standard Goods (non-custom made) are returned to the Seller unopened, unused and in their original packaging within 7 days of the date of purchase.
4. The Buyer acknowledges that the Seller does not provide a refund or replacement for a change of mind on custom-made goods. Non-standard or custom-made goods and special orders cannot be cancelled after production or after materials for production have been purchased.

7. Installation and Use by the Buyer

1. The Buyer agrees, as a condition of all Voluntary Warranties and statutory warranties under the Australian Consumer Law (to the extent that they apply) that:
   1. it will install or affix the Goods in accordance with any Installation Requirements;
   2. it will only use the Goods in the correct way in accordance with the relevant Specifications for the Goods; and
   3. it will only use the goods for the intended purpose for which they are designed.
2. To the fullest extent permitted by law, if the Buyer:
   1. does not comply with clause 7.1(a), 7.1(b) or 7.1(c); or
   2. damages the goods through their own negligence or failure to properly maintain the goods,

   then all Voluntary Warranties will be invalidated and statutory warranties under the Australian Consumer Law may also be invalidated.

3. To the fullest extent permitted by law, the Buyer fully releases the Seller from all Loss suffered by the Buyer (or any person claiming through the Buyer) as a consequence of any breach of clause 7.

8. Delivery and Installation by the Seller

1. The Goods will be deemed to be delivered when:
   1. in circumstances where the Seller has agreed to fully or partially deliver the Goods, at the time the Goods are received by the Buyer or the Buyer’s agent or delivered according to Buyer’s instructions; or
   2. in circumstances where the Seller has not agreed to fully or partially deliver the Goods, at the time the goods are retrieved by or for the Buyer.
2. Where Seller has agreed to fully or partially deliver the Goods:
   1. the Buyer will pay the Seller for all delivery costs and expenses incurred by the Seller if requested; and
   2. the Seller will make all reasonable efforts to have the Goods delivered to the Buyer in accordance with the Buyer’s instructions.
3. Despite clause 8.1, the Seller is not liable for:
   1. any failure to deliver or any delay in delivery for any reason;
   2. any damage that is caused by the Buyer or the Buyer’s agent if the Buyer has agreed to coordinate the full or partial delivery of the Goods;
   3. any damage or loss due to packaging or unloading;
   4. any damage to property caused upon entering premises to deliver the Goods; and
   5. clauses (c) and (d) will apply except to the extent that such damage was caused by the negligent act or omission of Seller.
4. Any costs incurred by Seller due to any failure by the Buyer to accept the Goods at time of delivery must be reimbursed by the Buyer to the Seller.
5. The Buyer acknowledges that where the Seller co-ordinates delivery of the Goods:
   1. delivery charges and estimated delivery times depend on where the Goods are being delivered;
   2. it is the Buyer’s responsibility to ensure that all delivery information is correct; and
   3. the Seller will deliver Goods to an unattended delivery address only with the prior authority of the Buyer. It is the Buyer’s responsibility to provide this authority prior to delivery.

9. Goods and Services Tax

1. Terms used in this clause have the meaning given to them in GST Law and all amounts payable under this Agreement are excluding GST.
2. Where goods and services provided under this Agreement are:
   1. a taxable supply; and
   2. the consideration for that supply excludes GST,

   the buyer must pay an amount equal to the GST in addition to the consideration payable for the supply.

3. The amount of GST will be calculated at the prevailing GST rate.
4. If the GST rate is varied, the consideration payable for any supply under this Agreement will be varied to reflect the change of rate and any reduction in any other tax, duty or statutory charge connected with the rate change.
5. Where GST applies to a supply made under this Agreement, the seller will deliver to the buyer a valid tax invoice or adjustment note at, or before the time payment for the supply is required.
6. If an adjustment event occurs in connection with any taxable supply made under this Agreement:
   1. the amount payable by the buyer will be recalculated to reflect the adjustment event; and
   2. payment for the adjustment event will be made by the buyer to the seller or by the seller to the buyer (as the case requires).
7. Where a party is required under this Agreement to pay or reimburse an expense or outgoing of another party, the amount to be paid or reimbursed will be the sum of:
   1. the amount of the expense or outgoing less any input tax credits for the expense or outgoing to which the other party is entitled; and
   2. if the payment or reimbursement is subject to GST, an amount equal to that GST.

10. Representations and Fitness for Purpose

1. To the fullest extent permitted by law, all representations, warranties, guarantees and implied terms in relation to the Goods are hereby excluded.
2. The Buyer agrees that if it is aware (or should be aware) that the Goods are for a particular purpose, the Buyer must clearly specify that purpose at the time of making the Order.
3. The Buyer also acknowledges that:
   1. it has made its own enquiries in relation to the suitability of the Goods; and
   2. it does not rely on any warranty, condition, description or representation by Seller in relation to the suitability of the Goods for a particular purpose.

11. Voluntary Warranties

Warranties

1. In addition to any statutory provisions that may exist under the Australian Consumer Law, the Seller offers the following Voluntary Warranties for the Goods it supplies:
   1. Gate Openers and Solar Panels: 12 months from the date of purchase;
   2. Remote Control Units: 3 months from the date of purchase;
   3. Other Parts, Gate Hardware and Accessories: in accordance with third party manufacturer or supplier warranty.
2. To remove doubt, the following items are not covered by warranty:
   1. Batteries or fuses;
   2. products in the transmitter receiver range; and
   3. any other consumables.

Manufacturer Warranties

3. In addition to any statutory provisions that may exist under the Australian Consumer Law, the Seller warrants that its manufactured product is free from manufacturing defects for a period of 10 years from the date of purchase.

Limitations and Exclusions

4. This Voluntary Warranty covers the replacement or repair of any product that has a manufacturing or material defect that is not the result of:
   1. normal wear and tear, accident, acts of God;
   2. a natural characteristic of the material used;
   3. a breach of clause 7 by the Buyer (for example, failure to maintain the Goods as recommended or using Goods in a way that is inconsistent with any Installation Requirements or Specifications);
   4. power supply blackout or surge;
   5. the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
   6. modification or adjustments by unauthorised persons.
5. The Voluntary Warranties shall not cover any defect or damage which may be caused or partly caused through:
   1. scratching or abrasions or chipping or any other damage or deterioration caused by impact, accident or misuse;
   2. excessive condensation and/or foreign matter such as dust, environmental matter or animal excrement;
   3. corrosion to perforation, paint flaking or peeling, wholly or partly due to an event or cause beyond the Seller’s reasonable control;
   4. mechanical, chemical or other damage sustained during transport, handling, storage, erection or installation or after erection or installation;
   5. chemical agents (including sunscreen), fumes, liquids or solids other than direct rain falling onto the Goods;
   6. contact with soil, ash, fertiliser, moisture retaining substances, lead or copper or other metals, chemical agents, liquid from copper flashings or copper pipes, green or wet timber or treated timber;
   7. damage caused by inadequate drainage;
   8. the Goods are buried in concrete;
   9. the Goods are splashed or washed with pool water, bore water or salt water;
   10. installation near severe industrial or unusually corrosive environments at any time following installation;
   11. accidental or intentional damage by any person or animal;
   12. in the case of any painted Goods, normal weathering including loss of gloss and colour, aesthetic surface corrosion including paint blistering, white corrosion or red rust; or
   13. any repairs undertaken without the Seller’s consent.
6. This Voluntary Warranty:
   1. is not transferable;
   2. does not cover products used for commercial purposes;
   3. can only be exercised through the Buyer making a voluntary warranty claim; and
   4. does not include labour or delivery costs, injury to persons, damage to property, loss of income, profit or business or any other indirect loss resulting from the Goods being defective.
7. A Voluntary Warranty claim can only be made during the relevant warranty period (time being of the essence) by:
   1. the Buyer contacting the Seller to register their claim;
   2. the Buyer supplying the Seller with proof of purchase; and
   3. the Buyer making the Goods readily available to the Seller for the purpose of determining whether the Voluntary Warranty claim is valid.
8. If the Voluntary Warranty claim is a valid claim, Goods presented may be:
   1. replaced by new or refurbished products of the same or similar type; or
   2. repaired.
9. Any Goods that are the subject of a Voluntary Warranty claim will be at the Buyer’s risk unless they are transported by the Seller or the Seller’s authorised representatives.
10. The Seller may seek reimbursement of any costs incurred by them when the Goods are found to be in good working order.

12. Limitation of Liability

1. Subject to this clause 12 and to the fullest extent permitted by law, the sole obligation of the Seller under this Agreement is to:
   1. use its best endeavours to provide the Goods; or
   2. where the Voluntary Warranties or statutory warranties are applicable, to:
      1. repair the Goods;
      2. repair or replace (at the Seller’s discretion) any part of a Goods which is found to be defective during the relevant warranty period;
      3. supply the Goods again; or
      4. where the above are not capable of providing an appropriate remedy, provide a refund equal to the value of the Purchase Price for the relevant Goods.
2. In no circumstances shall the Seller be liable for any Loss resulting from any Claim related to:
   1. faulty design;
   2. the Buyer’s breach of clause 7 (including negligent or faulty installation by the Buyer or the Buyer’s installer);
   3. negligent or misleading advice;
   4. direct or indirect Loss resulting from the Buyer’s actual, attempted or failure to use the relevant Goods; and
   5. any indirect, special or consequential Loss or injury to any person, corporation or other entity.
3. If any Goods supplied under this Agreement are supplied to the Buyer as a “Consumer” under the Australian Consumer Law:
   1. the Consumer will have the benefit of certain non-excludable rights and remedies for those goods or services; and
   2. nothing in these terms and conditions excludes or restricts or modifies any condition, warranty, right or remedy available under the Australian Consumer Law.
4. If the Goods are not acquired for ordinary personal, domestic or household use under the Australian Consumer Law, the Seller limits its liability for payment to the Buyer (or any person claiming through the Buyer) to an amount equal to the lowest of:
   1. the cost of replacing the goods or supplying equivalent goods;
   2. the cost of repair of the goods; or
   3. the cost of having the goods repaired or replaced,

   and the Seller will not be liable for any consequential loss resulting from the Buyer’s negligence, breach of contract or under any other theory of liability.

5. The Buyer also acknowledges that if the Seller suffers a loss in connection with attending to and servicing a request from the Buyer that is not covered by:
   1. Voluntary Warranty; or
   2. a statutory warranty under the Australian Consumer Law,

   the Buyer must reimburse the Seller for reasonable losses suffered and other costs incurred in connection with attending to such requests.

13. Confidential Information

1. If the Buyer receives any confidential information belonging to the Seller that is not publicly known, the Buyer must not use or disclose such information:
   1. without the Seller’s consent; or
   2. unless the disclosure is required by law.

14. Delay

1. Subject to this Agreement, if the Seller is unable to perform any obligation under this Agreement due to any reason, fact or circumstance beyond the Seller’s reasonable control:
   1. the Seller will notify the Buyer of such circumstances that caused or contributed to the delay; and
   2. the period for performing current and future obligations will be proportionately extended by a period that is equal to the period of delay.

15. Waiver

1. Any failure by a party at any time to enforce a clause of this Agreement, or any forbearance, delay or indulgence granted by a party to the other, will not constitute a waiver of the party’s rights.

16. Severance

1. If any part of this Agreement is held to be invalid, unlawful or unenforceable for any reason, then to the full extent permitted by law:
   1. the offending provision will be severed from the rest of the Agreement; and
   2. the remaining terms and conditions will continue to be valid and enforceable.

17. Applicable Law

1. This Agreement is governed by the laws of Queensland and each party submits to the jurisdiction of the courts of Queensland.

18. Entire Agreement

1. This Agreement constitutes the entire agreement between the parties and supersedes all prior negotiations, arrangements and agreements between the parties.

19. Further Assurances

1. Each party must do all things and execute all documents reasonably required to give effect to this Agreement.