Terms and Conditions
Greener Turf Co – Terms & Conditions of Sale
Greener Turf Co agrees to supply and the Purchaser agrees to purchase the Goods in accordance with the particulars set out herein and in accordance with the following Terms and Conditions:-
1. Interpretation
1.1 In these General Conditions, unless the context otherwise
requires:-
“the Seller” means Greener Turf Co and its successors;
“the Purchaser” means the purchaser of the Goods;
“the Goods” means the artificial grass product and any other associated products supplied by the Seller to the Purchaser.
“the Purchaser” means the purchaser of the Goods;
“the Goods” means the artificial grass product and any other associated products supplied by the Seller to the Purchaser.
2. Prices
2.1 Prices quoted in the Seller’s published Price Lists or by representatives of the Seller are subject to change without notice and are not binding on the Seller. All Goods are charged at the applicable price at the date upon which the Goods leave the Seller’s premises for delivery to the Purchaser.
2.2 Prices are net of freight and packing charges, which shall be for the Purchaser’s account and paid by the Purchaser.
3. Terms of Payment
3.1 Unless the Purchaser is otherwise notified by the Seller in writing, the Goods must be paid for as follows:-
(a) upon the Seller confirming the Purchaser’s order for the Goods, by payment by the Purchaser of a deposit of an amount equal to 10% (or such other amount that the Seller may request) of the total price of the Goods. The deposit must be paid in clear funds before the Goods are despatched to the Purchaser.
(b) The balance of the total price of the Goods must be paid for in full within 7 days from the earlier of the date of delivery of the Goods to the Purchaser or the date of the relevant invoice for such Goods.
The Seller reserves the right at anytime to vary the 7 day period of credit by giving 7 days prior written notice to the Purchaser.
3.2 If the Purchaser is overdue with any payment to the Seller or if the Seller is in receipt at any time of a bank or trade reference concerning the Purchaser which the Seller regards as unsatisfactory, the Seller may at its option immediately refuse to allow any credit to the Purchaser and may immediately without notice change the Purchaser to a cash on delivery (“COD”) account.
Where the Purchaser has a COD account, the Purchaser must pay for the Goods in full at the time of delivery of the Goods to the Purchaser, failing which the Seller in under no obligation to effect delivery of the Goods to the Purchaser.
3.3 The Purchaser has no right of set-off in respect of any claim that the Purchaser has or may have against the Seller on any account whatsoever.
3.4 If any monies are due and payable by the Purchaser to the Seller, the Purchaser shall pay to the Seller on demand interest on such monies remaining unpaid (whether demanded or not), such interest to be calculated daily and computed from the date on which the monies in question became due and payable to the date on which they are paid in full to the Seller and such interest shall be at a rate 4 per cent higher than the rate for the time being fixed under Section 2 of the Penalties Interest Rates Act 1983 (Vic) without prejudice to any other right of the Seller.
4. Delivery
4.1 The Seller shall use all reasonable endeavours to meet the Purchaser’s requested delivery date, but the Seller shall not be liable to the Purchaser for any loss or damage whatsoever should the Seller be delayed or prevented from delivering Goods or otherwise performing its obligations due to any cause or circumstance.
4.2 It is the Purchaser’s responsibility to inspect all Goods delivered. The Seller shall not be liable or responsible to the Purchaser in respect of any defects, shortage in delivery or non-conformity of the Goods to the extent that any such defects, shortage in delivery or non-conformity are discoverable by inspection unless the Purchaser notifies the Seller in writing of such defects, short delivery or non-conformity within fourteen (14) days of delivery of such Goods by the Seller to the Purchaser. Otherwise, the Goods shall, to the extent permitted by law, be deemed free of such defects, short delivery or non-conformity.
5. Retention of Title
5.1 Until the payment by the Purchaser to the Seller of all monies payable by the Purchaser to the Seller in respect of all Goods delivered by the Seller to the Purchaser, title in the Goods shall remain with the Seller notwithstanding that (a) the Goods have been delivered to and actually received by the Purchaser, (b) the Goods may be installed or affixed to any premises and (c) possession of the Goods may have passed to a third party. This condition shall not affect the Seller’s rights as an unpaid Seller to seek to and recover all monies owing by the Purchaser to the Seller.
5.2 The risk in the Goods shall pass to the Purchaser once the Goods have been delivered to the Purchaser unless and until the Seller has retaken possession of the Goods and until then the Purchaser shall insure the Goods against loss or damage accordingly. The policy must name the Seller as an insured.
5.3 The Purchaser acknowledges that until full payment of the Goods, the Purchaser shall hold the Goods as bailee for the Seller and that a fiduciary relationship exists between the Purchaser and the Seller.
5.4 Until payment is made for the product, the Purchaser shall store the Goods separately and in such a manner that they are clearly identified as the property of the Seller, and so that they can be cross-referenced to particular Seller invoices. The Purchaser shall keep true and accurate records of all Goods owned by the Seller.
5.5 The Purchaser is not permitted to dispose of the Goods until they are paid for without the specific consent in writing of the Seller. The Purchaser acknowledges that if it sells any of the Goods, it sells the Goods as fiduciary agent of the Seller provided that such sales shall not give rise to any obligations on the part of the Seller.
5.6 If all or any of the Goods are disposed of by the Purchaser or an insurance claim is made in respect of all or any of them before making full payment for them, the proceeds of the sale or of the insurance claim (as the case may be) shall be received by the Purchaser as agent for the Seller and on the Seller’s account and shall be held by the Purchaser in a separate bank account on trust for the Seller and the Seller shall be entitled to trace the said proceeds.
5.7 If:
(a) the Purchaser defaults in payment of monies to the Seller;
(b) if the Purchaser is an individual, the Purchaser becomes bankrupt, takes or tries to take advantage of Part X of the Bankruptcy Act, makes an assignment for the benefit of its creditors, enters into a composition or arrangement with its creditors;
(c) if the Purchaser is a company, an order is made or a resolution is passed to wind up the Purchaser, goes into liquidation, is placed under official management, has a receiver, including a provisional receiver, or receiver and manager of any of its assets appointed or an administrator appointed, has an inspector appointed under the Australian Securities and Investments Commission Act; or
(d) a Warrant is issued by a Court against the Purchaser to satisfy a judgment and the judgment is not satisfied within 14 days of being issued,
then the Seller shall be entitled to recover the Goods and, without prejudice to any other remedies, the Purchaser grants to the Seller and its duly authorized agents and representatives a licence to enter at all times and without notice any premises believed to be occupied by the Purchaser (without liability for trespass or damage) and recover therefrom the Goods. The Purchaser will be liable for all costs associated with the exercise of the Seller’s rights under this paragraph. The Seller has the right at all times to resell the Goods and recover from the Purchaser any costs, expenses or losses incurred by the Seller.
6. Cancellation
6.1 If the Purchaser cancels an order for Goods before delivery of the Goods to the Purchaser thenin addition to all other rights that the Seller may have against the Purchaser,the Purchaser shall pay to the Seller a cancellation fee of an amount equal to the deposit paid or payable by the Purchaser or ten percent (10%) of the price of the Goods, whichever is the greater. If the Purchaser has paid any deposit for such Goods, the Seller reserves the right to forfeit such deposit as payment, in whole or in part, of the cancellation fee.
6.2 The Seller reserves the right to immediately cancel any order or suspend any delivery of Goods without incurring any liability to the Purchaser if;
(a) the Purchaser defaults in payment of monies to the Seller;
(b) if the Purchaser is an individual, the Purchaser becomes bankrupt, takes or tries to take advantage of Part X of the Bankruptcy Act, makes an assignment for the benefit of its creditors, enters into a composition or arrangement with its creditors;
(c) if the Purchaser is a company, an order is made or a resolution is passed to wind up the Purchaser, goes into liquidation, is placed under official management, has a receiver, including a provisional receiver, or receiver and manager of any of its assets appointed or an administrator appointed, has an inspector appointed under the Australian Securities and Investments Commission Act; or
(d) a Warrant is issued by a Court against the Purchaser to satisfy a judgment and the judgment is not satisfied within 14 days of being issued.
7. Warranty
7.1 Subject to the terms, conditions and limitations specified in this Clause 7, the Seller warrants to the Purchaser that the Goods will maintain their ultra violet stability and tensile strength for a period of 7 years (“Warranty Period”) from the date that the goods are delivered to the Purchaser (“Warranty”).
7.2 To the extent permitted by law, the Warranty shall not apply:-
(a) If the Goods are used for any application other than landscaping, sports fields such as football, mini football, baseball and rugby, playground and other similar outdoor activities;
(b) If the Goods are damaged in any way during the installation of the Goods;
(c) If the goods are damaged due to improper installation, that is, the goods are not installed in accordance with the Sellers then installation recommendations;
(d) If the Goods, after installation, are not maintained in accordance with the Seller’s then maintenance recommendation;
(e) To the extent that any defect or damage to the Goods is caused by:-
(i) burns, cuts, accidents, vandalism, abuse, negligence or neglect;
(ii) wear or abrasion caused by inadequate sub-base, that is, inadequate installation;
(iii) use of inappropriate footwear or sports equipment;
(iv) the Goods being used other than for the purpose for which it was designed and installed;
(v) use of cleaning chemicals, herbicides or pesticides not approved by the Seller;
(vi) use of improper cleaning methods;
(vii) use of infill products of an incorrect grade;
(viii) any harmful chemical reaction to the Goods caused by infill materials;
(ix) post fibrillation after or during installation for purposes other than to ensure that the infill materials are in place;
(x) failure to properly maintain, protect or repair their Goods;
(xi) if the PH value of air and rain is below 7.0 bias Acid or up 9.0 bias Alkaline;
(xii) force majeure, namely any act, event or cause which is beyond the reasonable control of the Seller including acts of God, sabotage, riot, fire, lightning, flood, cyclone, earthquake, landslide, storm or other adverse weather condition, explosion, power shortage, terrorism or the like;
(xiii) normal wear and tear.
7.3 Any claim by the Purchaser under the Warranty must be made to the Seller as follows:-
(a) The claim must be in writing and delivered to the Seller within 30 days of the Purchaser becoming aware of any defect or damage with the Goods falling within the Warranty;
(b) Together with the written submission, the Purchaser must deliver to the Seller:-
(i) proof of purchase of the Goods from the Seller;
(ii) the date of the installation of the Goods;
(iii) the name of the person or company who installed the Goods;
(iv) the batch and lot number (if any) of the Goods;
(v) a sample of the damage or defect to the Goods (if possible);
(vi) a sample of the infill materials used with the Goods;
(vii) a minimum of 3 clear photographs showing the alleged defect or damage.
7.4 The Seller shall not be responsible for any costs or expenses incurred by or on behalf of the Purchaser in relation to any testing, inspection, consultations or expert reports conducted or obtained by or on behalf of the Purchaser in relation to the alleged defect or damage.
7.5 To the extent permitted by law, the Warranty contained in clause 7.1 is in substitution for all other terms, condition, warranties and representations, expressed or implied, by statute or otherwise, as to description, merchantable quality or fitness for purpose which terms, warranties and representations are hereby specifically excluded.
7.6 Certain legislation may imply warranties or conditions or impose obligations upon the Seller which cannot be excluded, restricted or modified except to a limited extent. This agreement must be read and construed subject to any such statutory provisions. If any statutory provisions apply, to the extent to which the Seller is entitled to do so, its liability shall be limited at its option to:
(a) In the case of a supply of Goods:
(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the payment of the cost of replacing the Goods or acquiring equivalent Goods;
(iii) the payment of the cost of having the Goods repaired; or
(iv) the repair of the Goods.
(b) In the case of services:
(i) the supply of the services again; or
(ii) the payment of the cost of having the services performed again.
8. Limitation of Liability
8.1 To the extent permitted by law and subject only to any express exceptions contained in this Agreement, the Seller shall under no circumstances be liable in any way whatsoever to the Purchaser for any form of damages (whether special, indirect, incidental, consequential damages or otherwise), losses, costs, injury or harm (including without limitation damages or costs incurred as a result of loss of time, loss of savings, loss of property, loss of profits or loss of goodwill, whether foreseeable or unforeseeable)sustained or incurred by the Purchaser or any other party in consequence of or resulting directly or indirectly out of the supply, performance or use of the Goods or out of any breach, default or negligence of the Seller under or in connection with the supply of Goods by the Seller to the Purchaser.
9. Non Availability of Goods
9.1 Whilst every effort will be made to fulfill the Purchaser’s orders for Goods, the Seller shall not be liable for any loss or damage of whatsoever nature, including consequential loss or damage, arising as a result of the non availability of Goods.
10. Recovery of Costs
10.1 The Purchaser shall pay to or reimburse the Seller upon demand all costs, expenses, fees and charges incurred or paid by the Seller, including all legal costs on a solicitor and own client basis, in recovering or attempting to recover from the Purchaser all monies of whatsoever nature payable by the Purchaser to the Seller.
11. Waiver
11.1 No failure to exercise and no delay in exercise on the part of the Seller of any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.
12. Total Agreement
12.1 Unless otherwise agreed in writing by the Seller, the foregoing terms and conditions will override any terms and conditions stipulated, incorporated or referred to in any order or negotiation between the Seller and the Purchaser.
13. Severence
13.1 If any condition of this Agreement is void, voidable by any party, unenforceable or illegal it shall be read down so as to be valid and enforceable or if it cannot be so read down, the condition (or where possible, the offending words) shall be severed from this Agreement and without thereby limiting the validity, legality or enforceability of the remaining conditions (or parts of those conditions) of this Agreement which will continue in full force and effect.
14. Assignment
14.1 The Seller shall be permitted to assign, transfer or charge all or any of its rights or benefits hereunder without the consent in writing of the Purchaser, however the Purchaser shall not assign, transfer or charge or purport to assign, transfer or charge all or any of its rights or benefits hereunder without the consent in writing of the Seller.
15. Time
15.1 Time shall be of the essence of this Agreement.
16. Privacy Act
16.1 The Purchaser agrees that the Seller may in accordance with the Privacy Act 1988:
(a) Give to a credit reporting agency personal information in relation to this application by the Purchaser for credit;
(b) Obtain from a credit reporting agency a credit report containing personal information about the Purchaser in order to assess the Purchaser’s application for credit; and
(c) Give to and seek from credit providers named in the credit report information about the Purchaser’s credit arrangement including the Purchaser’s credit worthiness, credit standing, credit history, credit capacity or information otherwise permissible under the Privacy Act 1988, for the following purposes;
(i) to assess this application by the Purchaser for credit;
(ii) to notify other credit providers of default by the Purchaser;
(iii) to exchange information with other credit providers as to the status of the Purchaser’s payments under this Agreement where the Purchaser is in default with other credit providers;
(iv) to assess the Purchaser’s credit worthiness.
17. Advertising & Promotion
17.1 The Purchaser agrees that the Seller may, in the Seller’s absolute discretion and at no cost to the Seller, in any promotional or advertising material of whatsoever nature, expressly make reference tothe supply of the Goods to the Purchaser, to any person or entity who has purchased the Goods from the Purchaser or to any site, location or area where the Purchaser, or any person or entity who has purchased the Goods from the Purchaser, has supplied or installed the Goods. The Purchaser agrees not to object to such promotion or advertising.
18. Guarantee & Indemnity
18.1 The person signing the order for and on behalf of the Purchaser (“the Signatory”) hereby acknowledges having read and hereby accepts the terms and conditions of sale as set out herein.
18.2 In consideration of the Seller agreeing at the request of the Signatory to supply Goods to the Purchaser the Signatory guarantees to the Seller the due and punctual payment of all monies now or at any time hereafter owing by the Purchaser to the Seller on any account whatsoever (“the debts”). The Signatory shall at all times hereafter indemnify and keep the Seller indemnified against the payment of the debts and against all costs and expenses, including legal costs on a solicitor and own client basis, which are paid or incurred by the Seller in attempting to recover and in recovering the debts (“the said costs”).
18.3 The Guarantee and Indemnity shall be a continuing guarantee and indemnity to the Seller for the debts and for the said costs and for all other monies whatsoever and whensoever owing by the Purchaser to the Seller and shall not be effected nor shall the rights or remedies of the Seller against the Signatory be in any way prejudiced or effected by any of the following:-
(a) By payment at any time of any part of the debts or the said costs or by any settlement of any account or intervening payment;
(b) By the Seller granting time or other indulgence to the Purchaser;
(c) By any variation, modification, amendment or novation of any agreement between the Seller and the Purchaser;
(d) By the Seller failing or neglecting to recover from the Purchaser all or part of the debt and the costs;
(e) By the Signatory not executing this Guarantee and Indemnity properly or at all;
(f) By any lack of power on the part of any of the Directors who give this Guarantee and Indemnity;
(g) By the release, discharge or transfer of any security held by the Seller in respect of the debts and the costs.
18.4 The Signatory agrees that he/she is principally responsible to pay all or any parts of the debts and the said costs to the Seller and the Seller may treat the Signatory in all respects as though the Signatory was liable with the Purchaser to the Seller instead of being merely surety for the Purchaser.
