Terms & Conditions
Terms & Conditions of Trade
Forster Elite Operations Pty Ltd trading as Crystal House – Terms & Conditions of Trade
- 1. Definitions
- 2. Acceptance
- 3. Change in Control
- 4. Price and Payment
- 5. Delivery of Services
- 6. Risk
- 7. Title
- 8. Personal Property Securities Act 2009 (“PPSA”)
- 9. Security and Charge
- 10. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
- 11. Intellectual Property
- 13. Confidentiality
- 15. Privacy Act 1988
- 16. General
1.1 “Crystal House” means Forster Elite Operations Pty Ltd trading as Crystal House, its successors and assigns or any person acting on behalf of and with the authority of Forster Elite Operations Pty Ltd.
1.2 “Client” means the person/s requesting Crystal House to provide the Services as specified in any invoice, document or order, and if there more than one person requesting the Services is a reference to each person jointly and severally.
1.3 “Incidental Items” means any goods, software, training materials, databases, proposals, tender documents and other electronic tools (“tools”) supplied, consumed, created or deposited incidentally by Crystal House in the course of it conducting, or supplying to the Client, any Services.
1.4 “Services” means all Services supplied by Crystal House to the Client at the Client’s request from time to time.
1.5 “Web Site” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
1.6 “Prohibited Content” means any content on a Web Site that: is, or could reasonably be considered to be, in breach of the Broadcast Services Amendment (Online Service) Act 1999 (Cth); the Competition and Consumer Act 2010 (Cth); or any other applicable law or applicable industry code; orcontains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; oris, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights.
1.7 “Price” means the price payable for the Services as agreed between Crystal House and the Client in accordance with clause of this contract.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by Crystal House.
2.2 These terms and conditions may only be amended with Crystal House’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Crystal House.
2.3 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on Crystal House’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
3. Change in Control
3.1 The Client shall give Crystal House not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Crystal House as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At Crystal House’s sole discretion the Price shall be either: as indicated on any invoice provided by Crystal House to the Client; or the Price as at the date of delivery of the Services according to Crystal House’s current Price list; or Crystal House’s quoted price (subject to clause ) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 Crystal House reserves the right to change the Price in the event of a variation to Crystal House’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to unforeseen circumstances, or as a result of increases to Crystal House in the cost of materials and labour or due to changes in the advertising rates charged by the advertising medium provider the website) will be charged for on the basis of Crystal House’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 In the event any additional Services are requested once the quotation has been agreed to, then these additional Services shall be charged at Crystal House’s current hourly rate, or current Price list.
4.4 At Crystal House’s sole discretion a non-refundable deposit may be required.
4.5 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by Crystal House, which may be: before delivery of the Services;fourteen (14) days following the date of the invoice;the date specified on any invoice or other form as being the date for payment; or failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Crystal House.
4.6 Payment may be made by electronic/on-line banking, credit card (plus a surcharge of up to three (3%) of the Price), or by any other method as agreed to between the Client and Crystal House.
4.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Crystal House an amount equal to any GST Crystal House must pay for any supply by Crystal House under this or any other agreement for providing Crystal House’s Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Delivery of Services
5.1 Any time specified by Crystal House for delivery of the Services is an estimate only and Crystal House will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that Crystal House is unable to supply the Services as agreed solely due to any action or inaction of the Client then Crystal House shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
6.1 Irrespective of whether Crystal House retains ownership of any Incidental Items all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as Crystal House may repossess the Incidental Items. The Client must insure all Incidental Items on or before delivery.
6.2 Crystal House reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Client’s failure to insure in accordance with clause .
6.3 Once accepted by the Client, Crystal House’s written quotation shall be deemed to interpret correctly the Client’s instructions. Crystal House shall not be responsible for errors or omissions due to oversight or inadvertent misinterpretation of those instructions.
6.4 The Client acknowledges and agrees that Crystal House shall not be held liable for any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of Crystal House.
7.1 Crystal House and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until: the Client has paid Crystal House all amounts owing for the Services; and the Client has met all other obligations due by the Client to Crystal House in respect of all contracts between Crystal House and the Client.
7.2 Receipt by Crystal House of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Crystal House’s ownership or rights in respect of the Incidental Items shall continue.
8. Personal Property Securities Act 2009 (“PPSA”)
8.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
8.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Incidental Items that have previously been supplied and that will be supplied in the future by Crystal House to the Client.
8.3 The Client undertakes to: promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Crystal House may reasonably require to; register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;register any other document required to be registered by the PPSA; or correct a defect in a statement referred to in clause or ; indemnify, and upon demand reimburse, Crystal House for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Incidental Items charged thereby;not register a financing change statement in respect of a security interest without the prior written consent of Crystal House; not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items in favour of a third party without the prior written consent of Crystal House.
8.4 Crystal House and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
8.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
8.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
8.7 Unless otherwise agreed to in writing by Crystal House, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8.8 The Client must unconditionally ratify any actions taken by Crystal House under clauses to .
8.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
9. Security and Charge
9.1 In consideration of Crystal House agreeing to supply Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
9.2 The Client indemnifies Crystal House from and against all Crystal House’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Crystal House’s rights under this clause.
9.3 The Client irrevocably appoints Crystal House and each director of Crystal House as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause including, but not limited to, signing any document on the Client’s behalf.
10. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
10.1 The Client must inspect Crystal House’s Services on completion of the Services and must within seven (7) days notify Crystal House in writing of any evident defect in the Services or Incidental Items provided (including Crystal House’s workmanship) or of any other failure by Crystal House to comply with the description of, or quote for, the Services which Crystal House was to supply. The Client must notify any other alleged defect in Crystal House’s Services or Incidental Items as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Crystal House to review the Services or Incidental Items that were provided.
10.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
10.3 Crystal House acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
10.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Crystal House makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. Crystal House’s liability in respect of these warranties is limited to the fullest extent permitted by law.
10.5 If the Client is a consumer within the meaning of the CCA, Crystal House’s liability is limited to the extent permitted by section 64A of Schedule 2.
10.6 If Crystal House is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then Crystal House may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Incidental Items which have been provided to the Client which were not defective.
10.7 If the Client is not a consumer within the meaning of the CCA, Crystal House’s liability for any defective Services or Incidental Items is: limited to the value of any express warranty or warranty card provided to the Client by Crystal House at Crystal House’s sole discretion;otherwise negated absolutely.
10.8 Notwithstanding clauses to but subject to the CCA, Crystal House shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of: the Client failing to properly maintain or store any Incidental Items;the Client using the Incidental Items for any purpose other than that for which they were designed;the Client continuing to use any Incidental Item after any defect became apparent or should have become apparent to a reasonably prudent operator or user;interference with the Services by the Client or any third party without Crystal House’s prior approval;the Client failing to follow any instructions or guidelines provided by Crystal House; fair wear and tear, any accident, or act of God.
11. Intellectual Property
11.1 Where Crystal House has developed Incidental Items such as software, training materials, databases, proposals, tender documents and other electronic tools (“tools”) in providing the Services for the Client, then the copyright in the software, training materials, databases, proposals, tender documents and other electronic tools shall remain vested in Crystal House, and shall only be used by the Client at Crystal House’s discretion.
11.2 The Client warrants that any software, databases, electronic tools or instructions provided by the Client to Crystal House will not cause Crystal House to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Crystal House against any action taken by a third party against Crystal House in respect of any such infringement.
11.3 Whether Crystal House or the Client retains the copyright in relation to tools which are specifically developed for the Client shall be as is agreed, recorded in writing, and signed by both parties to this agreement.
11.4 The Client agrees that Crystal House may (at no cost) use for the purposes of marketing or entry into any competition, any Incidental Items which Crystal House has created for the Client.
12. Default and Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Crystal House’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 If the Client owes Crystal House any money the Client shall indemnify Crystal House from and against all costs and disbursements incurred by Crystal House in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Crystal House’s collection agency costs, and bank dishonour fees).
12.3 Without prejudice to any other remedies Crystal House may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Crystal House may suspend or terminate the supply of Services to the Client. Crystal House will not be liable to the Client for any loss or damage the Client suffers because Crystal House has exercised its rights under this clause.
12.4 Without prejudice to Crystal House’s other remedies at law Crystal House shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Crystal House shall, whether or not due for payment, become immediately payable if: any money payable to Crystal House becomes overdue, or in Crystal House’s opinion the Client will be unable to make a payment when it falls due;the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
13.1 Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
14.1 Crystal House may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice Crystal House shall repay to the Client any money paid by the Client for the Services. Crystal House shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by Crystal House as a direct result of the cancellation (including, but not limited to, any loss of profits).
15. Privacy Act 1988
15.1 The Client agrees for Crystal House to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Crystal House.
15.2 The Client agrees that Crystal House may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes: to assess an application by the Client; and/orto notify other credit providers of a default by the Client; and/orto exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/orto assess the creditworthiness of the Client. The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
15.3 The Client consents to Crystal House being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Crystal House for the following purposes (and for other purposes as shall be agreed between the Client and Crystal House or required by law from time to time): the provision of Services; and/or the marketing of Services by Crystal House, its agents or distributors; and/or analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services.
15.5 Crystal House may give information about the Client to a credit reporting agency for the following purposes: to obtain a consumer credit report about the Client;allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
15.6 The information given to the credit reporting agency may include: personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);details concerning the Client’s application for credit or commercial credit and the amount requested;advice that Crystal House is a current credit provider to the Client;advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;information that, in the opinion of Crystal House, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;that credit provided to the Client by Crystal House has been paid or otherwise discharged.
16.1 The failure by Crystal House to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Crystal House’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the New South Wales in which Crystal House has its principal place of business, and are subject to the jurisdiction of the Moss Vale Court in that state.
16.3 Subject to clause Crystal House shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Crystal House of these terms and conditions (alternatively Crystal House’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
16.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Crystal House nor to withhold payment of any invoice because part of that invoice is in dispute.
16.5 Crystal House may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
16.6 The Client agrees that Crystal House may amend these terms and conditions at any time. If Crystal House makes a change to these terms and conditions, then that change will take effect from the date on which Crystal House notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Crystal House to provide Services to the Client.
16.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
16.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.