Harrows Group Terms and Conditions of Trade

1.                    Interpretation

“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) as amended.

“Agreement” means this agreement.

“Credit Card Details” means any credit card details of the Customer provided to Harrows from time to time.

“Customer” means the party to whom Harrows provides this Agreement.

“Delivery” means delivery of Products and/or Services at or to a Site.

“GST” means the Goods and Services Tax as defined in A New Tax System (Goods and Services Act) 1999 (Cth) as amended.

“Harrows” means Harrows Contract Furniture Pty Ltd (ACN 690 632 243).

“Laws” includes legislation (whether federal or state), regulations, by laws, codes of practice or any other requirement of any government or regulatory authority which is enforceable by law.

“Order” means a request by the Customer to Harrows for the provision of Products or Services.

“PPSA” means the Personal Property Securities Act 2009 (Cth) as amended.

“Products” means any Products which Harrows sells or provides to the Customer from time to time.

“Price List” means the list prices for Products and Services kept and updated from time to time by Harrows.

“Services” means any services which Harrows sells or provides to the Customer from time to time.

“Site” means any location to which the Customer requests that Products be delivered or at which Services are to be performed.

“Third Party Products” means any chattel, service, good or other thing provided to the Customer by anyone other than Harrows or on behalf of Harrows.

 

2.                    Acceptance of Agreement

This  Agreement will apply to any current and future dealings between the Customer and Harrows unless and until it is replaced by a later written agreement provided by Harrows.

3.                    Entire Agreement

1. These terms shall constitute a full and complete statement of the Agreement between Harrows and the Customer and no variations or modifications of any term of the Agreement shall be binding unless agreed to in writing by Harrows. For the sake of certainty, this Agreement will not be modified or varied by the acknowledgement, receipt or acceptance by Harrows of a request for Products or Services set out in a document containing terms and conditions put forward by the Customer.
2. Harrows may vary or amend these terms by written notice to the Customer at any time. Any variations so made will only apply to Orders placed by the Customer after the time that the variation has been brought to the Customer’s attention.
3. Nothing contained in this Agreement shall be read as excluding, restricting or modifying any conditions or warranties which are implied by legislation which cannot be lawfully excluded, restricted or modified by agreement.

 

4.                    Term of agreement

This Agreement shall apply to all dealings between the parties until it is replaced by an alternate written Agreement or is terminated in accordance with its terms.

 

5.                    Supply of the Products and Services

1. The Customer shall Order from Harrows from time to time such quantities of Products and/or Services it requires, with Orders to be in such format (whether written or otherwise) as Harrows shall prescribe from time to time.
2. Whilst Harrows will use its best endeavours to ensure that it is able to provide Products and/or Services to the Customer when required, it does not warrant or guarantee that it will be able to do so and will not be responsible for any losses alleged to have been suffered by the Customer as a result of failure to supply or delay in supplying Products and Services, regardless of the reason for the delay or failure to supply.
3. Harrows retains the absolute discretion at all times to refuse to accept any Order made by the Customer.

d)        Any period or date for Delivery stated by or on behalf of Harrows shall be regarded by the Customer as an estimate only and not a contractual commitment or representation which may be relied upon. The Customer acknowledges that the nature of delivery and transit of goods is such that unforeseen circumstances may impact on the timely delivery or carriage of those services. In the event of any unforeseen delay Harrows will report the nature and extent of such delay as soon as is reasonably practicable to the Customer.

e)        Harrows shall be entitled to deliver Products and/or Services in instalments and the Customer shall not be entitled to terminate or cancel the Order or to any claim, loss or damage howsoever arising from any failure by Harrows to deliver any instalments on or before the estimated date of Delivery.

1. The Customer acknowledges that Harrows relies on the Customer to supply detailed, full and accurate descriptions in any Order to enable Harrows to provide the Products and/or Services, including without limitation any relevant specifications, measurements or otherwise.
2. The Customer acknowledges that Harrows may at its discretion engage agents or subcontractors in the provision of Products and Services to the Customer.

h)        Any errors made by Harrows in computations, typing or otherwise of any part of a quotation, offer, invoice, delivery docket, or any other form of communication with the Customer shall be subject to correction by Harrows and the Customer agrees to be bound by any such correction.

i)         The Customer acknowledges that Harrows does not take or accept responsibility in any way for the purchase, delivery, installation, maintenance or otherwise of Third Party Products and Harrows bears no liability whatsoever in relation to Third Party Products.

1. Harrows does not take or accept responsibility or liability in any way where Harrows is unable to provide the Products and/or Services to the Customer as a result of the actions of any party providing Third Party Products.

 

6.                    Site REquirements

a)        The Customer shall provide suitable and practical means of access to the Site and ensure that the Site is suitable to allow the efficient and safe Delivery. In the event that the Site is unsafe for Delivery, Harrows reserves the right to refuse Delivery and the Customer shall be liable for all expenses (if any) incurred as a result of an unsafe Site including but not limited to the cost of Delivery to another Site.

1. The Customer warrants that it is the owner of the Site, or, if it is not, that it is authorised by the owner to allow for Services being performed at the Site.
2. The Customer shall ensure that any other parties performing works at the Site do not interfere with or otherwise hinder Harrows’ provision of Services. In this regard the Customer shall provide to Harrows any information reasonably required by it in respect to the activities or proposed activities of any other party performing works at the Site.

d)        At no time does Harrows take or accept any responsibility for the Site and all risk and liability in and relating to the Site remains with the Customer at all times.

e)        The Customer shall advise Harrows in advance of Delivery if there are any potential hazards, risks or difficulties which may be encountered either at, or close to, the Site including but not limited to narrow roads, low hanging electrical wires, traffic islands and a lack of parking. Harrows reserves the right to refuse Delivery to the Customer at a Site designated by the Customer in the event that it is unsuitable and it will be the Customer’s responsibility to provide an alternative suitable location for Delivery and the Customer shall be liable to Harrows for all expenses or losses (if any) incurred as a result of such a change.

f)         For the sake of certainty and without limiting any other clause in this Agreement, the Customer:

• shall not be entitled to cancel its Order if the Delivery is not made pursuant to this clause; and
• acknowledges that any amount charged by Harrows for Delivery to the Site originally nominated by the Customer will still be charged where Harrows is unable to access the Site and that Harrows shall be entitled to charge additional reasonable amounts where the Site is changed due to Harrows refusing to deliver to the Site nominated at the time of the Order in accordance with this Agreement or if through no fault of Harrows, time delays in delivering the Products and/or Services occur at the Site.

g)        The Customer accepts all responsibility and liability for any damage, loss, injury or claim of any sort which results from Harrows making Delivery including where such damage, loss, injury or claim is made/suffered by Harrows.

h)        Harrows shall be entitled to charge additional reasonable amounts in respect to delays caused in accessing the site including but not limited to by reason of induction requirements.

i)         The Customer shall ensure that either the Customer or the Customer’s agent are present at the time of the Delivery.

j)         Harrows shall not be obliged to obtain a signed receipt or other acknowledgment of Delivery.  However, if a signed receipt or other acknowledgment of Delivery is obtained by a person at the place of Delivery who appears to be authorised by the Customer to sign or otherwise take Delivery, then, to the extent permitted by Law, such signed receipt or other acknowledgment shall be conclusive evidence of Delivery, the quantity of Products delivered and otherwise compliance with the Order.

 

7.                    Pricing and payment

1. Where Harrows provides Products and/or Services to the Customer subject to a quotation, the Customer shall be charged in accordance with the quotation.
2. Where Harrows provides Products and/or Services to the Customer that are not subject to a quotation, and without limiting subclause j), the Customer shall be charged for the Products and Services as set out in the Price List as it applies at the time of the Customer placing an Order. If a Product and/or Service does not appear on the Price List, or if the Price List does not or ceases to exist, then Harrows shall be entitled to charge a reasonable amount for that Product or Service.
3. The Customer acknowledges that the Products, Services and the prices in the Price List may be modified by Harrows from time to time without notice throughout the currency of this Agreement and it shall be the responsibility of the Customer to check with Harrows as to the availability and price of any particular Product and/or Service immediately prior to placing any Order. For the sake of certainty, any changes to the prices in the Price List will only apply to Orders made by the Customer after the change is made.
4. The terms of payment shall be as directed by Harrows at the time this Agreement is provided to the Customer save that Harrows shall be free at any time, at its sole discretion, to revoke payment terms in regard to any future Orders and require payment in advance of supply of further Product and/or Services.
5. In the event Harrows has not directed the Customer on the terms of payment at the time the Agreement is provided to the Customer then payment shall be made in advance of delivery of any Products or Services.
6. Payment by cheque is not deemed to have been made unless and until the proceeds of the cheque have cleared.
7. Unless otherwise stated quotes for Products, Services or delivery are exclusive of GST and any other applicable taxes or duties. In addition to the price for the Products, Services or delivery the Customer shall also pay any applicable GST, taxes or duties.
8. Any quotation provided by Harrows to the Customer shall, unless otherwise stated in the quotation, be valid only for 30 days from the time it was made and may be withdrawn at any time by Harrows within that period.
9. Any quotation provided to the Customer by Harrows is at all times subject to this Agreement.
10. In the event that in the time between the Customer placing an Order and Harrows providing those Products and/or Services, the costs of providing those Products and/or Services, through no fault of Harrows, have increased and Harrows can demonstrate such cost increase, then Harrows may seek an increase to the price payable by the Customer to Harrows for the Products and/or Services, not exceeding the increase in the cost of supplying the Products and/or Services, and the Customer may choose whether to proceed with the order at the adjusted price or cancel the Order.
11. In the event that the Customer seeks to alter the scope of Services after work has commenced Harrows shall be free, if it agrees to the alterations, to charge additional reasonable amounts over and above the quoted amount or the Price List to take into account the alterations, including any additional labour and materials required.
12. In respect of payments required to be made by the Customer under this Agreement time shall be of the essence.

8.                    Credit Card Details

1. The Customer must provide the Credit Card Details if requested by Harrows.
2. The Customer must contact Harrows in the event that the Credit Card Details change or the relevant credit card expires, and provide Harrows the updated credit card details.
3. The Customer agrees that Harrows shall be free at any time to charge the Customer for Products and/or Services supplied using the Credit Card Details provided.
4. Payment by the Credit Card Details is not deemed to have been made unless and until the proceeds of the payment have cleared.

 

9.                    Breach By Customer

1. Interest shall be payable on any amounts outstanding outside payment terms by the Customer to Harrows at the rate of 2% over and above the rate applicable from time to time under the Penalty Interest Rates Act 1983 (Vic).
2. The Customer hereby indemnifies Harrows in respect of any costs incurred by Harrows (including legal costs on a solicitor/client basis) as a result of any breach of this Agreement by the Customer, including any breach of terms of payment for Products or Services. Such costs include but are not limited to the costs of any demands made of the Customer to remedy any breach, and any legal proceedings to recover unpaid money.

 

10.                 Director’s Guarantee

In the event that the Customer is an incorporated entity-

1. The person signing this Agreement on behalf of the Customer hereby guarantees to Harrows the Customer’s obligations under this Agreement, including the due and punctual payment of any money payable by the Customer to Harrows, for any reason, at any time. The guarantee provided is a continuing guarantee. The obligations under the guarantee are principal obligations and may be enforced against the guarantor without Harrows being first required to exhaust any remedy it may have against the Customer.
2. The Customer agrees that it will, if called upon at any time by Harrows to do so, procure from any one or more of its directors (as directed by Harrows) a personal guarantee of the Customer’s obligations pursuant to this Agreement in a form acceptable to Harrows, with such guarantee to cover both future liabilities and any liabilities of the customer to Harrows which predate the signing of the guarantee.

 

11.                 Retention of Title to Products

Until Harrows receives full payment (in the form of clear funds) for any Products and/or Services supplied by it to the Customer together with any other amounts owing by the Customer to Harrows-

1. Title and property in all of the Products yet to be paid for remains vested in Harrows and does not pass to the Customer;
2. The Customer must hold the goods as bailee for Harrows;
3. The Customer must hold the proceeds of any sale of the Products on trust for Harrows; and
4. In addition to its rights under the PPSA, Harrows may without notice, enter any premises where it suspects that the Products are and remove them, and for this purpose the Customer irrevocably licenses Harrows or its agents to enter onto such premises and also indemnifies Harrows from and against all costs, claims, demands or actions by any party arising from such action.
5. For the purposes of the PPSA, by executing this Agreement the Customer grants to Harrows a Security Interest in the Products and Harrows shall be entitled to register the Security Interest on the relevant Security Register.

 

12.                 Risk, Insurance And Liability

1. The risk in the Products and all insurance responsibility for theft, fire or damage of any other kind shall pass to the Customer immediately upon delivery of the Products to the Customer or upon collection by the Customer from the point of sale (whichever is applicable), regardless of whether there is any further work to be completed by Harrows in regard to those Products.
2. The Customer warrants that it has and will have at the time of making any particular order for Products all necessary licenses or permits under all Laws to possess and use the Products.
3. The Customer agrees that they will not rely on any statements made by Harrows as to the suitability of the Products and/or the Services for a particular purpose unless such statement is in writing.
4. Unless in writing, Harrows makes no express or implied statement, nor implied or express condition (other than those imposed by law) that the Products and/or the Services will be suitable for a particular purpose or end use by the Customer or otherwise.
5. If Harrows is liable for a breach of a guarantee implied by the ACL in respect to the provision of the Products or Services and those Products or Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then, to the extent permitted by the ACL, its liability to the Customer will be limited to –

(i)           The replacement of the Products or the supply of equivalent Products;

(ii)          The payment of the costs of replacing the Products or acquiring equivalent Products;

(iii)         The supplying of the Services again; or

(iv)         The payment of the cost of having the Services supplied again.

1. Until such time that the Customer has satisfied all of its obligations under this Agreement and all Products and Services have been supplied or performed, the Customer must affect and maintain during the currency of this Agreement a comprehensive policy of insurance with a reputable insurer in respect to the Products and/or Services and any Site in a form acceptable to The coverage shall include:

(i)           fire, theft and accidental damage; and

(ii)          public liability indemnity of no less than $20 million dollars.

1. The Customer must:

(i)           on request by Harrows, promptly provide evidence of the currency of any insurance policies required to be held by it pursuant to this Agreement; and

(ii)          not do, or permit to be done, anything which might cause the insurance policy required to be obtained by the Customer under this Agreement to be cancelled, avoided or otherwise prejudiced.

 

13.                 Cancellation of Orders

No purported cancellation, variation or suspension of an Order (or any part of an Order) shall be binding upon Harrows once the Order has been placed with Harrows unless Harrows in writing and at its sole discretion accepts such cancellation, variation or suspension of an Order.

14.                 Privacy Act 1988 (Cth)

The Customer acknowledges that it must comply with any applicable privacy laws or otherwise including any privacy policies implemented by Harrows from time to time.

15.                 Force Majeure

Harrows shall not be liable in any manner whatsoever to the extent that it has been prevented from performing any obligation under this Agreement by reason of matters beyond its control, including without limitation-

1. inability to source Products;
2. inability to perform the Services;
3. delays in shipping, freight or postal delivery;
4. inability to access the Site or part of the Site;
5. lack of access to electricity or other required resources at the site;
6. lack of availability for whatever reason of staff or contractors;
7. acts of God, accidents or machinery breakdown;
8. acts or threats of terrorism or war;
9. a pandemic or epidemic including Government-imposed lockdowns;
10. government restrictions or regulations; and/or
11. industrial disputes or strikes.

 

16.                 Termination on Notice

Either party may terminate this Agreement by giving the other party 30 days’ notice of its intention to do so.

 

17.                 Immediate Termination of Agreement

Harrows may terminate this Agreement immediately by giving written notice to the Customer if the Customer:

a)        goes into liquidation;

b)        has an administrator or a receiver to its property or assets appointed;

c)        is made bankrupt;

d)        materially breaches its obligations under this Agreement where such breach is either not capable of remedy or, if capable of remedy, the Customer fails to remedy such breach within 14 days after receipt of written notice of such breach by the other party; or

e)        engages in any conduct (which includes any conduct by employees of the Customer) which in the opinion of Harrows is or might be damaging to the reputation of Harrows or any of the Products.

 

18.                 Effect of Termination

The termination of this Agreement for whatever reason shall not in any way effect any rights or responsibilities accruing prior to the termination taking effect and Harrows’ rights in the event of default (including the ongoing accrual of interest and the right to indemnity for costs) shall continue beyond any termination.

 

19.                 Relationship of parties

Nothing in this Agreement shall give rise to a partnership or relationship of employment between the parties.

 

20.                 Waiver

Any failure or delay by Harrows to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future of the exercise of any other power or right. A waiver is not effective unless it is in writing.

 

21.                 Reading down of Agreement

If a clause in this Agreement is unenforceable it must be read down so as to be unenforceable or, if it cannot be so read down, it must be severed from this Agreement without affecting the enforceability of the remaining terms of the Agreement.

 

22.                 Jurisdiction

This Agreement shall be governed by the laws of Victoria.