1.1. Agreement means the agreement between Home Based Salons and the Customer consisting of these terms and conditions and the Purchase Agreement.
1.2. Associated Entity means, in relation to a party, an associated entity of that party as defined by the Corporations Ac.
but excluding any such information:
1.3. Claim means, in relation to a person, any action, allegation, claim, demand, judgment, liability, determination, arbitral or legal proceeding, remedy, right of action or right of set-off made against the person concerned however it arises whether:
1.4. Confidential Information means, in relation to each party (for the purposes of this definition, the “Discloser”), all information disclosed by or on behalf of the Discloser, relating to:
1.5. Corporations Act means the Corporations Act 2001 (Cth).
1.6. Customer means the entity/party identified as the Customer on the Purchase Agreement.
1.7. Delivery Date means the date by which Delivery must be achieved as set out in the Purchase Agreement, where no date is specified, by the date notified to Home Salons in writing, as extended or reduced in accordance with the relevant provisions of this agreement.
1.7.1. disclosed before, on or after the date of this agreement;
1.7.2. disclosed orally, in writing or in electronic or machine readable form; or
1.8. Execution Date means the date the Purchase Agreement is signed by the customer.
1.9. Execution Date means the date the Purchase Agreement is signed by the Customer or issued to Home Based Salons, whichever is the earlier.
1.10. Goods means either (or both as particularised in the Purchase Agreement):
1.11. GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and/or associated Commonwealth legislation, regulations, and publicly available rulings.
1.12. Home Based Salons means Singh Attwal Pty Ltd A.C.N 622 758 972 or any other associated entity.
1.12.1. it involves a third party or a party to this agreement.
1.12.2. it is based in contract, tort, statute or otherwise; or
1.12.3. it is present, unascertained, immediate, future or contingent;
1.12.4. know-how, trade secrets, ideas, marketing strategies, operational information, research, designs, plans, drawings, specifications, sheets, manuals, technical information and financial information;
1.12.5. other information, which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential;
1.12.6. Principal Technology, Contractor Technology and New IP;
1.13. Purchase Agreement means the agreement completed by the Customer and issued either in writing or electronically to Home Based Salons.
1.14. Purchase Price means the amount of money particularised on the purchase agreement to be paid in exchange for the goods.
1.15. Supplier means the party identified as the Supplier on the Purchase Agreement.
1.16. Supply means the Goods to be delivered to the customer and the whole of the works to be executed in accordance with this Agreement.
1.16.1. The Home Based Salons Portable Basin Chair.
1.16.2. The Home Based Salons Portable Basin;
1.16.3. their business affairs (including products, services, customers and suppliers); and whether such information was:
1.16.4. which is developed independently by the other party without reliance on any of the Confidential Information.
1.16.5. which is disclosed to the other party without restriction by a third party (other than the Discloser) and without any breach of confidentiality by that third party; or
1.16.6. which is publicly known;
2.1. Unless the contrary intention appears, a reference in this agreement to:
2.1.1. this agreement or another document includes any variation or replacement of it despite any change in the identity of the parties;
2.1.2. one gender includes the others;
2.1.3. the singular includes the plural and the plural includes the singular;
2.1.4. a person, partnership, corporation, trust, association, joint venture, unincorporated body, Government Body or other entity includes any other of them;
2.1.5. an item, recital, clause, subclause, paragraph, schedule or attachment is to an item, recital, clause, subclause, paragraph of, or schedule or attachment to, this agreement and a reference to this agreement includes any schedule or attachment;
2.1.6. a party includes the party’s executors, administrators, successors, substitutes (including a person who becomes a party by novation) and permitted assigns;
2.1.7. any statute, ordinance, code or other law includes regulations and other instruments under any of them and consolidations, amendments, re-enactments or replacements of any of them;
2.1.8. money is to Australian dollars, unless otherwise stated; and
2.1.9. a time is a reference to Brisbane, Australia time unless otherwise specified.
2.2. The words include, including, such as, for example and similar expressions are not to be construed as words of limitation.
2.3. Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
2.4. Headings and any table of contents or index are for convenience only and do not affect the interpretation of this agreement.
2.5. A provision of this agreement must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for the preparation of this agreement or the inclusion of the provision in this agreement.
3. Business Days
3.1. If anything under this agreement must be done on a day that is not a Business Day, it must be done instead on the next Business Day.
3.2. If an act is required to be done on a particular day, it must be done before 5.00pm on that day or it will be considered to have been done on the following day.
4.1. If a party consists of more than one person, this agreement binds each of them separately and any two or more of them jointly.
4.2. An agreement, covenant, obligation, representation, or warranty in favour of two or more persons is for the benefit of them jointly and each of them separately.
4.3. An agreement, covenant, obligation, representation, or warranty on the part of two or more persons binds them jointly and each of them separately.
5. Purchase Agreements
5.1. These terms and conditions are incorporated into and apply to all purchase agreements issued by Home Based Salons.
5.2. A customer will be deemed to have accepted these terms and conditions and will be bound by their contents where they have:
5.2.1. Assented to these terms and conditions in writing;
5.2.2. Acted in a manner consistent with their obligations under these terms and conditions;
5.2.3. Paid any money to Home Based Salons in connection with the supply of any goods; or
5.2.4. Otherwise, through their acts or omissions, indicated an intention to obtain supply of the goods or be bound by these terms and conditions.
5.3. Upon receipt of the Purchase Agreement and subject to compliance with the terms of this Agreement, Home Based Salons will process the Purchase Agreement and provide the Goods to the Customer.
5.4. If a product is described as available for pre-order, the customer acknowledges that the placement of the order is for a product not currently available, and the delivery of the product will be subject to availability.
6. Purchase Price
6.1. The total purchase price of the Goods is set out in the Purchase Agreement and is inclusive of GST as well as Delivery or freight up to a value of $500.
6.2. If the cost of freight/delivery exceeds $500 the Customer will be responsible for paying any amount exceeding $500 to Home Based Salon before the obligation to deliver the Goods will arise.
7.1. Subject to payment of the total price of the Goods, Home Based Salons will use its best endeavours to deliver the Goods purchased by the Customer to the Customer’s nominated address, and on the Delivery Date specified in the Purchase Agreement.
7.2. The supply of goods is subject to availability. If Home Based Salons is unable to supply the Customer’s total order the Seller may deliver the order in instalments and the Customer must pay an amount for that instalment as notified by the Seller in writing.
7.3. If a delivery date is specified in the Purchase agreement, that date is an estimate only and the Customer acknowledges and agrees that time is not of the essence in relation to delivery. Home Based Salons accepts no liability for delays in delivery of the Goods.
7.4. The Customer is required to be present at the time of delivery to accept the Goods and Services.
7.5. If, due to any act, omission, or matter/thing beyond the control of the Supplier, the address for delivery is unattended, delivery cannot otherwise be affected or the Goods cannot be dispatched, the Supplier, in its sole discretion, may store the Goods at the Customer’s risk and expense or take such other steps as it considers appropriate.
7.6. The delivery of any Goods is deemed to have occurred and be carried out in accordance with these Terms and Conditions where the goods are unloaded as the Customer’s nominated address.
7.7. Home Based Salons will notify the Customer, orally or in writing, promptly when it considers (acting reasonably) that the Services have been completed.
7.8. Upon receipt of the notice pursuant to clause 7.6, The Customer must:
7.8.1. promptly inspect the Goods on delivery and;
7.8.2. notify Home Based Salons of any defects in the goods in writing within 24 hours of delivery or from the notice of completion as applicable.
7.9. Unless Homes Based Salons receives a notice under clause 7.8.2 within the time required by that clause, the Customer is deemed, to the extent relevant, to have accepted that the Goods comply with, and have been delivered in accordance with, the Terms and Conditions and that Home Based Salons may claim and invoice for, and is entitled to payment of, the Purchase Price for the Goods.
7.10. If Home Based Salons receives a written notice from the Customer pursuant to clause 7.8.2, Home based Salons must:
7.10.1. promptly rectify the Goods;
7.10.2. Notify the Customer again when they are rectified or re-delivered.
7.11. All extra shipping, freight, or delivery costs associated with the rectification of the goods pursuant to clause 7.10 will be the responsibility of the Customer.
7.12. Home Based Salons will provide a 30 day guarantee, whereby if the product is faulty or fails within the first 30 days and the Customer notifies Home Based Salons within 30 days of receiving the Product, and the cause of the fault/failure relates to the manufacture of the product, and not the use of the product by the Customer, Homes Based Salons will arrange for the collection of the Product and a replacement Product will be supplied at no cost to the Customer. Notification of the fault or failure by the Customer to Home Based Salons must occur within the 30 day guarantee period for such guarantee to apply.
8. Risk and Title
8.1. Risk in connection with any Goods sold or supplied to the Customer passes upon delivery occurring in accordance with clause 7.6 of these Terms and Conditions but passes back in the event of any returned Goods.
8.2. Legal and equitable title, property and ownership in any Goods sold or supplied by Home Based Salons under these Terms and Conditions only passes on receipt of payment by Home Based Salons of the Purchase Price in full, cleared funds and without any deduction or set off.
8.3. The Buyer acknowledges and agrees that, from the date of commencement of operation of the Personal Property Securities Act (2009) (PPSA), and in consideration for Seller supplying goods to the Buyer:
8.3.1. This clause 8 creates a security interest, which attaches as a purchase money security interest under the PPSA in all goods supplied by the Seller to Buyer under these terms and conditions, including any present and after acquired property. This security interest will continue and subsist in all such goods (including any goods coming into existence), and attaches to the proceeds of sale of all such goods (including any proceeds coming into existence);
8.3.2. on request by Home Based Salons, the Customer must provide (at the Customer’s cost, including expenses in registering a financing statement or financing change statement) all requested assistance to enable Home Based Salons to register its security interest in the goods;
8.3.3. The Customer must provide at least 7 days prior written notice to Seller of any change in its name, address or contact details, and must not register a financing statement or financing change statement without Seller’s prior written consent;
8.3.4. to the extent permitted by the PPSA, the Customer waives its rights to receive any statements or notices referred to in the PPSA (including under sections 95, 118, 121(4), 129, 130, 132(3)(d), 132(4) and 157), and acknowledges that sections 96, 125, 135, 142 and 143 do not apply to this agreement; and
8.3.5. The Customer will not disclose any security agreement or other documentation disclosing any security interest, nor any information of the kind described in section 275(1) of the PPSA without Seller’s prior written consent, unless required by law.
8.4. Any words in bold in this clause 8.3 have the same meaning as in the PPSA.
9. Cancellation and Return of Goods
9.1. Once Home Based Salons has received the Purchase Agreement from the Customer, no cancellations will be permitted, unless with the written consent of Home Based Salons (in its sole discretion).
9.2. Home Based Salons will, in compliance with applicable laws, take all reasonable steps to ensure the Goods are in a fit and workable order. However, once the Goods have been delivered, Home Based Salons will not accept any return of goods (except in accordance with clause 7) or provide a refund due to a change of mind.
10. Vienna Sales Convention
10.1. The parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) to or in connection with any Purchase Agreement for the supply of goods placed by the Customer.
11. Limited Warranty
11.1. Home Based Salons warrants, and the Customer agrees that in relation to Goods supplied by Home Based Salons to which a manufacturer’s warranty applies, that the benefits and obligations of the manufacturer’s warranty apply in all respects and is the sole and exclusive warranty for those Goods.
11.2. Any mishandling and/or misuse of the Goods as well as damage caused from moving/transporting the goods from their delivery address will void all warranty for the goods.
11.3. The Customer may not assign the warranty and the Customer agrees that the warranty will be void if it is sold or assigned by any other means.
11.4. The Australian Competition and Consumer Act 2010 and other Acts of Parliament imply warranties or conditions or impose obligations on GK which cannot (or only to a limited extent) by law be excluded or modified. Regarding any such implied warranties, conditions, or obligations, GK’s liability shall, where it is permitted, be excluded or, if not able to be excluded, only apply to the minimum extent required by the relevant statute.
12. Warranty Claim Procedure
12.1. The Customer must notify Home Based Salons of any event or circumstance which may give rise to a warranty claim by the earlier of:
12.1.1. the time expressly required by the manufacturer’s warranty for the notification of claims, if any such time applies; or
12.1.2. if no such time applies, within 90 days of the event or circumstance occurring that gave rise to the warranty claim, and in any event, within the relevant warranty period.
12.2. If the Customer fails to notify in accordance with clause 12.1, Home Based Salons may, in its sole discretion, rectify the defect but otherwise has no liability to do so.
12.3. The Customer must send a warranty claim to:
Home Based Salons
12.4. The Customer warrants that any claim made by it on warranty is valid and one to which the warranty responds.
12.5. To the extent that the Customer makes an invalid warranty claim, it must reimburse Home Based Salons for that work at list rates and prices.
13. Limitation of Liability and Indemnity
13.1. (Limit and overall cap) To the extent permitted by law, the liability of Home Based Salons, if any, arising out of or in connection with the supply of Goods, including for negligence, is limited:
13.1.1. in the case of Goods to which a manufacturer’s warranty applies or has applied but expired, to that warranty;
13.1.2. for any other Goods, at the option and in the absolute discretion of Home Based Salons:
188.8.131.52. (i) to the replacement of the Goods or the supply of equivalent Goods;
184.108.40.206. (ii) to the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
220.127.116.11. (iii) to the repair of the Goods by Home Based Salons or to the payment of the cost of having the goods repaired; and
13.2. (Mutual time limit) Each party must notify the other of any claim, right, obligation or liability whatsoever arising under or in connection with the Terms and Conditions within 12 months of when the party claiming was aware or ought reasonably to have been aware of the events or circumstances giving rise to the claim. Any failure to do so, releases the other party from all liability in connection with that claim and its subject matter.
13.3. (Consequential loss) Home Based Salons shall not be liable to the Customer for any consequential, indirect, or incidental loss, loss of profits, lost production or revenue, loss of anticipated savings, loss of opportunity, business reputation or damage to goodwill arising from or in connection with its supply under these terms and conditions or the Customers use of the goods in any way.
13.4. Subject to clause 14, without prejudice to any other right or remedy, the Customer must indemnify and keep indemnified, Home Based Salons in respect of all Loss, costs, expenses, fees, claims, damages, and liabilities suffered, paid, or incurred by Home Based Salons or for which Home Based Salons is or may become liable by reason of, in relation to or in connection with any breach of these terms and conditions.
14. Dispute Resolution
14.1.1. All disputes between the parties in connection with these terms and conditions, including any disputes relating to or following termination of the agreement, are subject to the provisions of this clause 14.
14.2. Notice of Dispute
14.2.1. If a party considers that a dispute exists in connection with these terms and conditions, that party may give the other party written notice detailing the nature of the dispute (Notice of Dispute).
14.3. Initial meeting to resolve
14.3.1. Upon receipt of a Notice of Dispute, Home Based Salons and the Customer must meet within ten Business Days (or such other time as may be agreed) and use their best efforts to resolve the dispute.
14.4. Unresolved disputes
14.4.1. If the meeting referred to in clause 14.3.1 does not, within a further period of ten Business Days after that meeting (or such other time as may be agreed), result in written agreement between the parties resolving of the dispute, then each party may take whatever action they think fit toward a resolution of the dispute.
14.5. Performance of agreement unaffected by disputes
14.5.1. Notwithstanding the existence of a dispute, the parties must continue to perform the agreement in accordance with these Terms and Conditions.
14.6. Urgent relief
14.6.1. Nothing in this clause shall prejudice the right of a party to institute proceedings for urgent injunctive or declaratory relief in respect of a dispute under this clause 16 or any matter arising under this agreement.
15.1. Any notice or other communication to or by any party must be:
15.1.1. in writing and in the English language;
15.1.2. addressed to the address of the recipient in clause 19.4 or to any other address as the recipient may have notified the sender; and
15.1.3. be signed by the party or by an Authorised Officer of the sender.
15.2. In addition to any other method of service authorised by Law, the notice may be:
15.2.1. personally served on a party;
15.2.2. left at the party’s current address for service;
15.2.3. sent to the party’s current address for service by prepaid ordinary mail or if the address is outside Australia by prepaid airmail;
15.2.4. sent by facsimile to the party’s current numbers for service; or
15.2.5. sent by electronic mail to the party’s electronic mail address.
16.1. If a notice is sent or delivered in the manner provided in clause 15 it must be treated as given to or received by the addressee in the case of:
16.1.1. delivery in person, when delivered;
16.1.2. delivery by post:
18.104.22.168. in Australia to an Australian address, the fourth Business Day after posting; or
22.214.171.124. in any other case, on the tenth Business Day after posting;
16.1.3. facsimile, when a transmission report has been printed by the sender’s facsimile machine stating that the document has been sent to the recipient’s facsimile number; or
16.1.4. electronic mail, when the sender’s computer reports that the message has been delivered to the electronic mail address of the addressee, but if delivery is made after 5.00pm on a Business Day it must be treated as received on the next Business Day in that place.
17. Governing Law
17.1. These terms and conditions are governed by the Laws of Queensland and Home Based Salons and the Customer irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Queensland.
18.1. A single or partial exercise or waiver by a party of any right under or relating to these terms and conditions will not prevent any other exercise of that right or the exercise of any other right.
18.2. If the liability of a party to pay money under these terms and conditions becomes merged in any deed, judgment, order or other thing, the party liable must pay interest on the amount owing from time to time under that deed, judgment, order, or other thing at the higher of the rate payable under this agreement and that fixed by or payable under that deed, judgment, order or other thing.
18.3. Any Law which varies prevents or prejudicially affects the exercise by a party of any right, power or remedy conferred on it under these terms and conditions are excluded to the extent permitted by Law.
18.4. A party must not assign, transfer, or novate all or any part of its rights or obligations under or relating to these terms and conditions or grant, declare, create, or dispose of any right or interest in it, without the prior written consent of each other party.
18.5. The rights and remedies under these terms and conditions are cumulative and not exclusive of any rights or remedies provided by Law.
19.1. If a provision of these terms and conditions are illegal, invalid, unenforceable, or void in a jurisdiction it is severed for that jurisdiction and the remainder of these terms and conditions have full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.
20.1. Time is of the essence with respect to the obligations of the customer pursuant to these terms and conditions.
20.2. Time is not of the essence with respect to Home Based Salon’s obligations pursuant to these terms and conditions.
20.3. An agreement to vary a time requirement must be in writing.
21.1. A party’s waiver of a right under or relating to this agreement, whether prospectively or retrospectively, is not effective unless it is in writing and signed by that party.
21.2. No other act, omission or delay by a party will constitute a waiver of a right.
22.1. This agreement may be executed in any number of counterparts each of which will be considered an original but all of which will constitute one and the same instrument. A party who has executed a counterpart of this agreement may deliver it to, or exchange it with, another party by:
22.1.1. faxing; or
22.1.2. emailing a pdf (portable document format) copy of, the executed counterpart to that other party.
23. Entire Agreement
23.1. This agreement:
23.1.1. is the entire agreement and understanding between the parties relating to the subject matter of this agreement; and
23.1.2. supersedes any prior agreement, representation (written or oral) or understanding on anything connected with that subject matter.