HEPBURN HARDWARE - TRADING TERMS
These are the standard trading terms governing the supply of goods and/or services by Hepburn Hardware Pty Ltd (ABN 52 631 505 596) (“Hepburn”, “us” or “our”) of: 14 Hawker St, Currumbin Waters QLD 4223, Australia; and email@example.com.
- These trading terms apply to all purchases of Goods by you from Hepburn via our Website. These trading terms apply whether you are a Retail Customer or Wholesale Customer, although some terms apply to only one only of these Customers (the relevant clause will itself indicate if this is the case). Please read these trading terms carefully. Your use of our Website, and/or ordering Goods from us via the Website, indicates your acceptance of these terms. For Wholesale Customers, these trading terms supersede or prevail over any other terms or conditions of that Wholesale Customer whether or not such terms or conditions are signed by us. We expressly reject any terms you propose that vary or add to our trading terms.
- We reserve the right to make changes to our Website at any time.
- These trading terms apply notwithstanding any forbearance or failure by us to enforce any of the terms, any course of conduct by you and us, or despite any industry practice to the contrary.
- You can place an order for Goods by following and completing all necessary information via our Website (for Wholesale Customers, via the “Trade Login” section of the Website).
- We can accept orders in our discretion, and subject to receipt of payment and availability of stock. We will confirm orders we accept by sending you an order confirmation, in which we will specify the intended delivery date. However, even if you receive an electronic or other form of order confirmation this does not signify legal acceptance of your order, nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order to accept or decline your order for any reason (including for Wholesale Customers that the order is for less than any minimum quantity requirements from time to time). We also reserve the right at any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. All orders placed must obtain pre-approval with an acceptable method of payment, as established by
Website (or the third-party provider of the shop section of our Website). We may require additional verifications or information before accepting any order.
- You are bound to purchase the Goods upon completing the purchase process via our Website. You can not change or cancel an order once confirmed by us.
- If we cancel an order then we will make all reasonable attempts to contact you using the details you provided to us. We will refund to you all monies you paid to us, using the same method for repayment as you used in paying us.
- If a Good is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, we may refuse or cancel any orders placed for Goods listed at the incorrect price (whether or not the order has been confirmed and your credit card charged or other payment method processed).
- At your request we may, consistently with the returns policy published on the Website, in our discretion, allow you to return any Goods. You must not return any Goods to us until we have issued you an authorised return number for those Goods. You must deliver to us at your cost Goods returned for credit undamaged and accompanied by notice setting out the return authorisation number, the original invoice number, the date of purchase and the reason for return.
- Returns must be in as new condition, unless faulty.
- Any items returned outside of the returns period (unless faulty) or items returned damaged (unless faulty) remain purchased by you and it is your responsibility to retrieve them. We will not pay to return these items to you and will not refund to you their purchase price.
- Prices are subject to change without notice.
- The price for the Goods is the price displayed on the Website at the time you complete the purchasing process (providing there is stock of all Goods ordered at that time).
- You (other than Wholesale (Credit) Customers) must pay for the Goods at the time of completing the purchase via the Website. You warrant that, concerning the payment method selected by you, you are the person whose account or card is nominated and that there are sufficient funds to pay for your purchases. If this is not the case, we are entitled not to fulfil your purchase request.
- At the time of completing your purchase on the Website, it will indicate the additional cost (if any) of freight, which you also agree to pay.
- You must pay all GST arising from the supply of the Goods to you.
- If you pay by a credit card, we may also charge you the costs incurred by us from the credit card provider in taking payment from you.
- You must pay us in the currency indicated in the Website.
- All credit cards are charged in Australian Dollars. Non-Australian currency figures are all approximations based on a exchange rate.
- All orders are subject to pre-authorisation checks by Hepburn’s merchant provider to ensure sufficient funds are available and to confirm the validity of the payment method.
- For Wholesale (Credit) Customers:
- We may require a deposit at the time you place your order via the Website, or payment in full (e.g. for SMU orders), before Goods are dispatched to you (or before the Goods are made, for an SMU order). Such deposit or payment is not-refundable, unless we elect to cancel the order;
- at the time of delivery, we will invoice you for the Goods
- you must pay for the Goods within the time indicated in the invoice but no later than within 30 days of the date of the invoice. Your payment must be made without any set-off, discount or by way of exchange of your goods or services;
- if your account is overdue then we can, without notice to you, cease to supply you or cease to supply you on credit; and
- you must inform us in writing of any discrepancies in our invoices within 7 days of the invoice date.
- We will arrange delivery of the Goods to you, at the address nominated by you when completing your purchase via the Website.
- Unless provided for otherwise in the order confirmation, Goods ordered by you will be delivered to the place nominated by you and acceptable to us from time to time.
- We typically endeavour to deliver Goods in Australia within 3 to 7 days of approving your order, but all statements or forecasts of delivery times, whilst made in good faith, are estimates only.
- Customers who choose express shipping (no signature) give authority for their order to be left unattended at their delivery address. We will not replace orders using this shipping method.
- Certain factors such as order size, weight and shipping address may require us to ship via a method other than the method selected by you when you purchased the Goods. We reserve the right to change your shipping method in these cases and will provide tracking details for the new carrier when this is available.
- You must notify us within 7 days after delivery of any quality issues with the Goods delivered or missing Goods compared with the Goods ordered. We will investigate your claim within a reasonable time. If we are satisfied that there was a shortage or quality issue, then we deliver the missed Goods or replace the Goods that have a quality issue (and this is the maximum extent of our potential liability).
- We are not liable to you for any loss or damage arising directly or indirectly from any delay in delivery of, or failure to deliver, the Goods. If we are not able to deliver the Goods to you, then we will notify you.
- If the Website includes a special instructions box on the delivery page of the checkout then this is used for any instructions to help the driver make delivery of your order (e.g. "Last house at end of driveway", "Office hours 9-5"). Drivers are unable to grant specific requests such as "Deliver between 3-4pm" or "Leave parcel under caravan in carport". We are not responsible if your instructions are not followed.
- We reserve the right to dispatch your order in one delivery or by instalments. If we fail to deliver any instalment this does not entitle you to cancel or repudiate any remaining instalments.
- The shipping address for your order is shown in the checkout and on your order confirmation. If an incorrect address was entered, address changes can only be made until the order commences being processed. We cannot accommodate all address change requests.
- We take no responsibility for orders shipped to an incorrect or invalid address and are not liable for any associated loss.
Title & Risk
- Risk in the Goods (including responsibility for insurance) passes to you upon the bag or parcel containing your Goods being collected by the nominated courier company (who is your agent for delivery).
- Other than for Wholesale (Credit) Customers, title passes to you upon the bag or parcel containing your Goods being collected by the nominated courier company (who is your agent for delivery).
Title for Wholesale (Credit) Customers
- For Wholesale (Credit) Customers, until you have paid to us in full the price for the Goods ordered by you:
(a) We are and remain the legal and equitable owner of the Goods;
(b) You hold the Goods as a fiduciary bailee for us and you must store the Goods safely; and
(c) you grant to us, our employees and authorised representatives an irrevocable licence to enter your premises (or any other premises either under your control or where the Goods are stored on behalf of you) at any time, if you default in paying for those Goods, to use reasonable force to take possession of the Goods without liability for trespass, negligence, payment of any compensation to you, another person or otherwise. Any exercise of this right is without prejudice to any other rights we may have against you, including the right at all times to make a claim against you for the invoiced price of the Goods, when due and payable.
- Notwithstanding clause 1, you may, subject to clause 7.3, re-sell and deliver the Goods in the ordinary course of business but if you:
(a) are paid for that sale, you hold all of the proceeds of sale on trust for us and you must promptly pay those proceeds to us (keeping them separate and identifiable from your other funds until you have done so);
(b) intermingle those proceeds of sale with your other funds, you acknowledge that we have a beneficial interest in those intermingled funds to the extent of the monies owing by you to us; and
(c) are not paid for that sale, you must assign to us, if we so elect by notice in writing, your claims against the person who bought the Goods from you. For this purpose, you irrevocably appoint us as your attorney.
- Your right to re-sell the Goods pursuant to clause 2 ceases if we exercise our right to the return of the Goods pursuant to this clause 7. You also acknowledge that any purported exercise of your rights under clause 7.2, once we elect to exercise our rights for the return of the Goods (either by notice in writing to you or by physical recovery of the Goods pursuant to clause 7.1 (c)), would be outside the ordinary course of your business.
- If you pay for Goods by cheque, then payment only occurs when all cheques have been presented and cleared in full.
- This clause applies only to Wholesale (Credit) Customers (or other Customers who haven’t paid in full for the Goods at the time of ordering them).
- You acknowledge and agree:
(a) that you grant us a Security Interest in the Goods and amounts held pursuant to clause 7.2 above (including any accounts and accessions) by virtue of the retention of title under clause 7;
(b) the Security Interest secures the purchase price for all Goods supplied to you by us;
(c) the Security Interest attaches to the Goods purchased by you from us at the time risk in the Goods passes to you; and
(d) that we are entitled to register the Security Interest pursuant to the PPS Law.
- To avoid any doubt, the Parties intend this document to create a purchase money security interest in the Goods and any funds held pursuant to clause 2 above for the purposes of the PPS Law.
- The Security Interest ranks in priority ahead of all other Security Interests over the Goods and any funds held pursuant to clause 2 above.
- You agree to do anything (such as obtaining consents, completing, signing and producing documents and supplying information) which we consider necessary for the purpose of:
(a) ensuring that the Security Interest is enforceable, perfected and otherwise effective;
(b) enabling us to apply for any registration or give any notification (including registering a Financing Statement or Financing Change Statement on the PPSR as a Security Interest and a Purchase Money Security Interest pursuant to the PPSA), in connection with the Security Interest so that it has the priority required by us;
(c) enabling us to exercise any powers in connection with the Security Interest; and
(d) obtaining possession or control of any Goods for the purpose of perfecting any Security Interest in the Goods by possession or control for the purposes of the PPS Law.
- You agree not to change your name, or any other details required on the PPSR, without first notifying us in writing.
- Without limiting any other provision of this document, you waive your right to receive any Verification Statement (or notice of any Verification Statement) in respect of any Financing Statement or Financing Change Statement relating to any Security Interest created under this document.
- To the maximum extent permitted by law, you waive any right you may have pursuant to, and hereby contract out of the following sections of the PPSA: Section 95 (notice of removal of accession) to the extent it requires us to provide you with a notice, Section 125 (obligation to dispose of or retain collateral), Section 130 (notice of disposal) to the extent it requires us to provide you with a notice, Section 132(4) (statement of account if no disposal), Section 135 (notice of retention), Section 142 (redemption of collateral) and 143 (reinstatement of security agreement).
- You and we agree that subject to section 275(7) of the PPSA neither of us will disclose information of the kind described in section 275(1) of the PPSA in response to a request made pursuant to section 275(1) of the PPSA or otherwise.
- You agree to pay our costs of any discharge or necessary amendment of any Financing Statement or Financing Change Statement.
International Orders – customs duty and tax
- Some orders may incur customs or import duty or other tax. We do not have any control over these charges and are unable to advise what they will be, as it is based on your own country’s tax regime. For further information, please contact your local customs office.
- All customs, local tax or other charges are to be paid by the Customer on delivery of order. Orders cannot be returned to sender and we are not responsible for, and will not pay, these customs charges on your behalf. If you refuse to pay these charges your parcel may be abandoned, and we are not responsible for any loss you suffer as a result and are not responsible for paying you a refund. We cannot mark international orders as a gift in order to bypass or reduce any custom fees. This is an illegal practice and we will not do this.
- We guarantee to you that the Goods are of acceptable quality as defined in the Australian Consumer Law.
- The guarantee in clause 1 operates for 6 months from the date of purchase or such other period allowed in the Australian Consumer Law.
- If within 7 days of receipt of the Goods you believe any Goods do not conform to our warranty, then please contact us at our address, phone number or email address listed at the start of these trading terms.
- If any particular Good does not conform to the guarantee in clause 1 then:
(a) at our request, you must send that Good to us (at your cost); and
(b) if we agree that the Good do not conform to our warranty, we will (at our option) repair or replace that Good and return it to you (at our cost, and also refund your reasonable costs of returning the Good to us) or provide you with a refund.
- To the maximum extent permitted by law:
(a) us repairing, replacing or providing a refund for the Goods pursuant to clause 10.4(b) is the limit of our liability to you; and
(b) we are not liable to you or any other person, whether in contract, tort or otherwise, for more than the price paid by you for the Goods.
- This warranty does not apply and we are not obliged to repair, replace or provide a refund for any Goods if:
(a) the Goods were damaged after risk in those Goods passed to you for a reason not related to a defect, or if the Goods are lost, destroyed or disposed of;
(b) you or another person undertakes any unauthorised repairs or alterations to the Goods;
(c) the goods are damaged due to misuse, accident or neglect by you or you do not follow any applicable instructions; or
(d) the Goods are exposed to salt air and corrode or oxidise.
- To the maximum extent permitted by law, we are not liable in any circumstances for:
(a) any injury, damage or loss, including consequential damage or loss (including without limitation loss of market, loss of profit or loss of contracts) whether arising directly or indirectly, whether arising in contract, tort, in equity or on some other basis, to people or property arising out of us supplying the Goods to you (or you supplying the Goods to another person including another consumer who uses them) including because of any latent or other defects therein, or your use of the Website; or
(b) any loss of or damage to the Goods or caused by the Goods whilst in transit.
- Mandatory Statement in favour of Australian Consumers:
“Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service you are entitled to:
- cancel your service contract with us; and
- a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done, then you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.”
- The benefits to you pursuant to this clause are in addition to the other rights and remedies you may have pursuant to applicable law.
- You agree to comply with Hepburn’s returns policy from time to time.
No resale by Retail Customers
- This Clause applies to Retail Customers.
- You warrant that you are an end consumer of the Goods and you must not resell the Goods, via the internet or otherwise.
- This clause applies to Wholesale Customers.
- You may only sell our Goods to consumers for end use and through designated outlets approved by us.
- You must ensure your approved outlets are open for at least 5 full days’ trading per week.
- If you wish to open a new site or move an existing site, then you must give us notice in writing. We will determine if we will supply our Goods to that new site and you acknowledge that we are not obliged to do so.
- You must not sell or divert our Goods at any place other than the outlets approved by us or through or to any other entity or person for resale, or to any entity or person who you know or should know has the intention of reselling the Goods.
- You may only sell the Goods via the internet or via social media through sites or social media owned and operated by you and only with our prior written approval. You must not under any circumstances seek to resell the product via a marketplace, such as Ebay or Amazon. You may advertise via the internet.
- You acknowledge that damages will not be an adequate remedy for a breach of this clause and that we may immediately cease trading with you and obtain injunctive or other equitable relief.
Termination of trading account with Wholesale Customers
- This clause applies to Wholesale Customers.
- In addition to clause 3, either party may close the trading account at any time by giving 90 days’ notice in writing to the other, which you acknowledge and agree is a reasonable notice period.
- Notwithstanding clause 2, either party may close the trading account at any time with immediate effect upon giving notice in writing to the other party if either the other party has breached these trading terms or the notifying party has grounds for suspecting that the other party is, or may be, or may be about to become, unable to pay its debts as and when they become due.
- You must indemnify us for all costs (including legal costs on a solicitor own client basis) we incur arising either during the term of this Agreement from you breaching these standard trading terms, including pursuant to clause 6, in enforcing these standard trading terms or upon termination.
- Termination of the agreement pursuant to this clause is without prejudice to rights accruing to either party up to the date of termination.
- You acknowledge that all intellectual property in the Goods, their associated trademarks and marketing and advertising material are our sole property.
- You must not advertise or use our name, trademarks or other intellectual property in any manner without our prior written consent and must immediately ceasing using them at our request. However, subject to any direction given by us from time to time, Wholesale Customers may use our name and style names for Goods in promoting the Goods.
- You must keep all information we provide to you that is not commonly known to the public, including our price lists, absolutely confidential.
- The Website is owned and operated by us. Unless otherwise specified, all materials appearing on this Website, including the text, site design, logos, graphics, icons, and images, as well as the selection, assembly and arrangement thereof, are our sole property.
- All software used on the site is our sole property or those supplying the software.
- You may use the content of the Website only for the purpose of shopping on this site or placing an order for Goods on this site and for no other purpose.
- No materials from this site may be copied, reproduced, modified, republished, uploaded, posted, transmitted, or distributed in any form or by any means without our prior written permission. All rights not expressly granted herein are reserved. Any unauthorised use of the materials appearing on this site may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties.
- The Website may contain links to other sites on the internet that are owned and operated by third parties. You acknowledge that we are not responsible for the operation of, or content located on or through, any such other site.
Privacy and personal Information
- We, in operating the Website, abide by, to the extent applicable, the Privacy Act 1988 and the Australian Privacy Principles.
- In certain circumstances, we may collect personal information about you, for example when you create an account, contact us, enter a competition, make a purchase or join a mailing list. The types of personal information we may collect includes your name, contact details, payment details and enquiry or complaint details. We also collect personal information through our records of your transactions and interactions (including by email, phone and online) with us or on the Website. We collect personal information from you and in some cases from third parties including our related companies, your representatives and public sources. You consent to our collection of this information.
- We collect and use your personal information to provide, administer, improve and personalise the Website and our products and services, to run competitions, conduct surveys, process payments and refunds, understand you better, maintain and update our records, complete registrations, verify your identity, train and manage our people, protect our lawful interests and facilitate any acquisitions or potential acquisitions of our business. We may not be able to do these things without your personal information. For example, we may not be able to deliver your orders or respond to your enquiries.
- Much of the information We collects is "aggregated" -- meaning that the information from many users is grouped together in a way that does not reveal the personal information of any particular user. We may use this aggregated information to evaluate which products and services are successful and which ones are not, and in order to evaluate which new services we should make available on the Website. We may also use the anonymous click stream data to help our advertisers deliver better-targeted advertisements.
- You can also contact us as set out below if you wish to access or correct any personal information we hold about you. We may need to verify your identity. If we deny any request to access or correct personal information, we will provide our reasons. Where we decide not to make a requested correction to your personal information, you may ask us to note your request with the information.
- By ordering or registering on our Website you grant us the right to add your contact details to our database and email to you your transactional order, shipping information and product review emails. From time to time we may contact you about offers and new products. You can easily be removed by either unsubscribing via the link at the footer of any marketing communications or contacting our customer service team and we will remove you from marketing communications.
- We may exchange your personal information with our related companies and with third party service providers who assist us with payment, marketing, data processing, IT, archival, auditing, accounting, customer contact, legal, business consulting, banking, delivery, data analysis, document management, research, investigation, insurance, website and other services. Some of these third parties may be located in Australia, USA, EU or other countries.
- Contact: Privacy Officer; Email: firstname.lastname@example.org. Phone: + 61 0407 459 180. For more information about the Privacy Act, or if your concern is not resolved to your satisfaction, you may contact the Privacy Commissioner on 1300 363 992 or www.oaic.gov.au.
- The laws of Queensland, without reference to “choice of law” principles, govern these trading terms. You and we submit to the non-exclusive jurisdiction of the courts of that place.
- Other than clause 3 [others] time is not of the essence under these trading terms.
- A reference to “includes”, “including”, “in particular” or “such as” are to be read as if followed by the words “without limitation”.
- All rights and powers enjoyed by us and any discretion, consent or decision to be made by us pursuant to these trading terms may be exercised by us in our absolute discretion and may be given or withheld subject to conditions. All approvals by us are only effective and binding when given in writing by an authorised officer.
- If any provision or part of any provision of these terms is unenforceable (including any of the sub-clauses in clause 5) then it will be severed from the rest and such unenforceability does not affect any other part of such provision or any other provision of these terms.
- For Wholesale (Credit) Customers, you irrevocably appoint us and our representatives as your attorney (Attorney) to do any or all of the following on your behalf and in your or the attorney's name if you default on your payment obligations to us:
(a) anything which the Attorney considers necessary or expedient to give effect to these trading terms or any other agreement with you, or to perfect or register these trading terms or any other agreement with you, including by signing any document for that purpose;
(b) execute and register a caveat over any real property owned by you to support any debt owing to us pursuant to these trading terms or any other agreement with you; and
(c) anything which an Attorney is expressly empowered to do under these trading terms or any other agreement with you.
- You agree to ratify anything done by the Attorney under this power of attorney. An Attorney may delegate its powers (including the power to delegate) to any person for any period and may revoke the delegation.
- If you are a trustee or if any party gives us a guarantee and indemnity as a trustee, then the following provisions apply:
(a) you shall be personally liable for the performance of all obligations and undertakings under these trading terms and/or under any guarantee given by you;
(b) you warrant that you have full, complete and valid authority pursuant to the trust to enter into the relevant supply contract and/or any relevant guarantee or indemnity;
(c) notwithstanding that there is no reference to a specific trust our rights of recourse shall extend to both your assets personally and the assets of the trust; and
(d) you undertake to us that your rights of indemnity against the trust assets have not been excluded by the provisions of the trust or by any breach of trust or otherwise and that you will not release or otherwise prejudice such rights of indemnity.
- In these trading terms, the following terms apply:
Customers mean Retail Customers and Wholesale Customers;
Goods mean any product delivered by us to you pursuant to these trading terms;
GST means any consumption tax imposed by any government or government agency, whether at the point of sale or at some other occurrence, by whatever name, which operates during the time we supply you with Goods and includes a goods and services tax, an indirect tax and value added tax;
PPS Law means:
(a) the PPSA and any regulation made at any time under the PPSA, including the PPS Regulations (each as amended from time to time); and
(b) any amendment made at any time to any other legislation as a consequence of a law or regulation referred to in paragraph (a);
PPS Regulations means the Personal Property Securities Regulations 2010 (Cth).
PPSA means the Personal Property Securities Act 2009 (Cth).
PPSR means the Personal Property Securities Register.
Retail Customers mean people who buy our Goods as end consumers;
Wholesale Customers mean customers who buy our Goods with the intention of resupply or otherwise use in their business with end consumers;
Wholesale (Credit) Customers mean Wholesale Customers who, as approved by us from time to time, are not required to pay, or not required to pay all, of the price for Goods at the time they make their order via the Website.
Website means our website or websites, or other form of electronic or social media, that permits Customers to buy Goods for subsequent delivery by us (or click and collect).