The whole of the Agreement between Clearwater Lakes & Ponds Pty Ltd (ACN 135 133 925) trading as Love My Pond (“Love My Pond”) and the Applicant referred to in the Credit Application or the Purchaser of the goods and services (“Customer”) are those set out in these Terms and Conditions as amended from time to time and those, if any, which are implied and which cannot be excluded by law (“Terms”). Any other contractual terms of the Customer (whether upon the Customer’s order or elsewhere) which are contrary to or inconsistent with these Terms shall not apply nor shall they constitute a counter-offer. By placing an order for all or a portion of the goods, materials and/or parts and/or labour and/or services supplied by Love My Pond under these Terms (“Goods and Services”), the Customer shall be deemed to have accepted these Terms and to have agreed that they shall apply to the exclusion of all other written agreements with Love My Pond.
2 Credit Terms
2.1 Payment is due on or prior to 30 days from the date of invoice rendered in respect of the supply of the Goods and Services unless otherwise stated in writing by Love My Pond. Love My Pond may charge liquidated damages at a rate equivalent to two percent (2%) in excess of the rate of interest for the time being fixed under Section 2 of the Penalty Interest Rates Act 1983 if payment is not received by the due date.
2.2 Love My Pond express or implied approval for extending credit to credit account customers may be revoked or withdrawn by Love My Pond at any time.
2.3 Love My Pond is entitled to set-off against any money owing to the Customer amounts owed to Love My Pond by the Customer on any account whatsoever.
2.4 Any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs referred to in Clause 2.5, and then to principal.
2.5 The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by Love My Pond for enforcement of obligations and recovery of monies due from the Customer to Love My Pond.
3 Quotations and Pricing
3.1 Prices charged for Goods and Services will be according to a current quotation for those Goods and Services. Otherwise, they will be determined by Love My Pond by reference to its standard prices in effect at the date of the order. Subject to clause 18, Love My Pond reserves the right to increase the prices, however, it will not change any prices for an existing order that has been accepted by it; the prices that apply to the order are the prices that applied at the time the Customer placed the order.
3.2 Any quotation by Love My Pond shall not constitute an offer. Quotations will remain valid for 30 days from the date of the quotation. A quotation is subject to variation with notice to the Customer prior to its acceptance of the quotation. The Customer is responsible for ensuring the accuracy of all specifications, details, sizes and quantities which form the basis of a quotation and otherwise in accordance with clause 18. Love My Pond does not accept any responsibility for any errors in such specifications, details, sizes and quantities and shall fulfil the order in conformity with the information supplied by the Customer.
3.3 Any quotation, acceptance of quotation, purchase order or other document which requires signature may be signed in electronic form, and such signature shall be binding upon the person affixing that signature.
3.4 Unless otherwise specified by Love My Pond, the prices exclude:-
3.4.1 Any statutory tax, including any GST, duty or impost levied in respect of the Goods and Services and which has not been allowed for by Love My Pond in calculating the price.
3.4.2 Costs and charges in relation to insurance, packing (other than the standard packing of Love My Pond), crating, delivery (whether by road, rail, ship or air) and export of the Goods and Services.
3.5 Love My Pond endeavours to be as accurate as possible with any product descriptions, but does not warrant that the product description of Goods on its website or otherwise is accurate, complete, reliable, current or error-free.
3.6 Prices shown on the Love My Pond website are in Australian Dollars.
4 Delivery and Supply
4.1 Any times quoted for delivery and/or supply of the Goods or Services are estimates only and Love My Pond shall not be liable for failure to deliver/supply, or for delay in delivery/supply. The Customer shall not be relieved of any obligation to accept or pay for Goods and Services, by reason of any delay in delivery/supply or dispatch. Love My Pond reserves the right to stop supply at any time if the Customer fails to comply with the Terms.
4.2 Love My Pond may refuse to supply any order by the Customer for Goods and Services in its absolute discretion and may make acceptance of an order conditional upon it receiving a satisfactory credit assessment of the Customer.
4.3 If the Customer directs that delivery of the Goods or supply of the Services be staggered over different times or to different addresses from those specified in the Credit Application, then the Customer:-
4.3.1 Shall be liable for any additional cost, charge and expense incurred by Love My Pond in complying with the Customer’s direction.
4.3.2 Shall pay for the whole of the invoiced value of the Goods and Services notwithstanding the staggered deliveries.
4.3.3 Such action shall be deemed to be delivery to the Customer.
4.4 The Customer is deemed to accept delivery of the Goods or Services where they are either delivered or supplied to the Customer’s premises or when Love My Pond notifies the Customer that the Goods are available for collection.
4.5 If the Customer is unable or fails to accept delivery of the Goods, Love My Pond may deliver it to a place of storage nominated by the Customer and, failing such nomination, to a place determined by Love My Pond. Such action shall be deemed to be delivery to the Customer. The Customer shall be liable for all cost, charge and expense incurred by Love My Pond on account of storage, detention, double cartage/delivery or similar causes.
5.1 Until full payment has been made for all Goods and Services, and any other sums in any way outstanding from the Customer to Love My Pond from time to time:-
5.1.1 All sums outstanding become immediately due and payable by the Customer to Love My Pond if the Customer makes default in paying any other sums due to Love My Pond, becomes bankrupt, or commits any act of bankruptcy, compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in these Terms.
5.1.2 The property in the Goods shall not pass to the Customer and the Customer shall hold the Goods as bailee for Love My Pond (returning the same to Love My Pond on request). The Goods shall nevertheless be at the risk of the Customer from the time of delivery/supply and the Customer must insure the Goods from the time of delivery/supply.
5.1.3 The Customer is only authorised to sell the Goods (or any portion of them) to third parties as the fiduciary agent of Love My Pond provided that there shall be no right to bind Love My Pond to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by the Customer for the Goods (or any portion of them) shall be held on trust for Love My Pond pursuant to the fiduciary relationship.
5.1.4 In the event that the Customer incorporates or transforms the Goods (or any portion of them) into any other goods or products produced by the Customer (or a third party), then the Customer must hold a proportion of any payment (“relevant proportion”) received by the Customer for such goods or products on trust for Love My Pond. The Customer expressly acknowledges that the relevant proportion shall be equal to the dollar value of the Goods incorporated or transformed and the Customer further acknowledges that any part payment (not exceeding the relevant proportion) received by the Customer for such goods or products is received as payment first of the relevant proportion.
5.1.5 Love My Pond is irrevocably authorised to enter any premises where the Goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods without liability for trespass or any resulting damage.
5.2 In addition to any lien to which Love My Pond may, by statute or otherwise, be entitled, Love My Pond shall in the event of the Customer’s insolvency, bankruptcy or winding up, be entitled to a general lien over all property or goods belonging to the Customer in Love My Pond’ possession (although all or some of such property or goods may have been paid) for the unpaid price of any Goods and Services sold or delivered to the Customer under this or any other contract.
6 Availability of Stock
Any order for Goods that cannot be fulfilled on its receipt will automatically be back ordered and processed when stock becomes available unless it is the Customer’s stated standard policy not to accept back orders or the Customer specifically marks its order, “Do Not Back Order”. Deliveries at any time are subject to availability of stock and Love My Pond will not be liable for any charges due to product unavailability.
7 Returns, Cancellations and Claims
7.1 The Customer shall not return any Goods to Love My Pond without obtaining prior authorisation from Love My Pond. No returns will be accepted unless a copy of the relevant invoice is enclosed with the returned Goods. A list of the Goods returned including product descriptions, quantity, date of return and the Customer’s name and address must also be enclosed. Freight charges must be paid by the Customer. All Goods must be returned in the original packaging and the Customer shall be responsible for all damage incurred during return shipment. A credit note will be issued by Love My Pond only after Goods returned are either collected by Love My Pond’ authorised representative or agent or returned to it by the Customer as set out above. The Customer shall not deduct the amount of any anticipated credit from any payment due to Love My Pond but must await receipt of a credit note.
7.2 If Love My Pond accepts the return of any Goods that have been ordered, Love My Pond may charge the Customer up to fifty per cent (50%) of the invoice price as a handling fee with freight costs and risk remaining the responsibility of the Customer.
7.3 Change of mind – A request to return Goods (except pond and dam liners) for change of mind must be made within 7 days of delivery, unless otherwise agreed. Freight charges must be paid by the Customer for all change of mind returns.
7.3.1 Pond & dam liners – when handled, the pond and dam liners can easily rip or incur damage. Love My Pond cannot accept returns of these products, subject to clauses 7.5 and 11.
7.4 Cancellation – No cancellations or partial cancellation of an order by the Customer shall be accepted by Love My Pond unless it has first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by Love My Pond, will indemnify Love My Pond against all direct loss, without limitation. Cancellation will not be accepted on goods that are not regular stock which are in the process of manufacture or ready for shipment.
7.5 Complaints – All complaints, claims, or notification of lost Goods, incomplete Goods and Services, Goods damaged in transit or Goods and Services that do not comply with the Customer’s purchase order must be submitted by the Customer to Love My Pond in writing within 48 hours of the date of delivery of the Goods and Services (with the exception of pond and dam liners which must be submitted to Love My Pond immediately on receipt of the products). Otherwise, the Customer shall be deemed to have accepted the Goods and Services and shall not refuse to pay for the Goods and Services on the basis that they were lost, incomplete, damaged in transit, or do not comply with the Customer’s purchase order.
8 Personal Property Security Interest
8.1 The Customer grants Love My Pond a Security Interest in the Goods supplied as Commercial Property, more particularly described as Other Goods and their Proceeds (as defined in the Personal Property Securities Act 2009 (‘PPSA’)) to secure the obligation of the Customer to pay the purchase price of the goods and any other obligations of the Customer to Love My Pond under these Terms (together the “Indebtedness”) and, where the goods and/or Proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the Indebtedness, the security interest shall also extend to all the goods present and after acquired by the Customer, of which the Goods form part, to the extent required to secured the Indebtedness.
8.2 The Customer waives any right to receive notice in relation to any registration or amendment to a registration on the Personal Property Security Register (‘PPSR’). At your its expense, the Customer will provide all reasonable assistance and relevant information to enable Love My Pond to register on the PPSR and generally to obtain, maintain, register and enforce the security interests created by these Terms.
8.3 As and when required by Love My Pond the Customer shall, at its own expense, provide all reasonable assistance and relevant information to enable Love My Pond to register a Financing Statement or a Financing Change Statement and generally to obtain, maintain, register and enforce Love My Pond’ Security Interest in respect of the goods supplied, in accordance with the PPSA.
8.4 The Customer shall not change its name without first notifying Love My Pond of the new name not less than 7 days before the change takes effect.
8.5 Notwithstanding any reference to a particular invoice/order, where any sum remains outstanding by the Customer on more than one invoice/order, any payments received from the Customer shall be deemed to be made by the Customer and applied by Love My Pond in the following order:
8.5.1 To any obligation owed by the Customer to Love My Pond which is unsecured, in the order in which the obligations were incurred;
8.5.2 To any obligations that are secured, but not by a Purchase Money Security Interest, in the order in which those obligations were incurred;
8.5.3 To obligations that are secured by a Purchase Money Security Interest, in the order in which those obligations were incurred.
8.6 Until the Customer has paid all money owing to Love My Pond, the Customer shall at all times ensure that:
8.6.1 All goods supplied by Love My Pond, while in the Customer’s possession, can be readily identified and distinguished, and/or
8.6.2 All Proceeds (in whatever form) that the Customer received from the sale of any of the goods are readily identifiable and traceable.
8.7 Subject to clause 5.1.3, where the Goods are purchased by the Customer and held as Inventory, nothing in this clause shall prevent the Customer from selling or leasing and delivering the Goods in the ordinary course of the Customer’s business. Otherwise until the Customer has paid all money owing to Love My Pond the Customer shall not sell or grant a Security Interest in the Goods without the written consent of Love My Pond.
8.8 To the extent permissible by law, the Customer agrees that the following provisions of the PPSA will not apply and it will have no rights under them: Section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notice to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142; section 143.
8.9 Section 115(7) of the PPSA allows for the contracting out of provision of the PPSA, the following provisions of the PPSA will not apply and the Customer will not have any rights under them: section 127; section 129(2),(3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137.
8.10 Unless otherwise agreed and to the extent permitted by the PPSA, the parties agree not to disclose any information of a kind referred to in section 275(1) of the PPSA to an interested person or any other person. You waive any right you may have, or but for this clause may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.
9 Privacy Act 1988 (“Privacy Act”)
9.1 To enable Love My Pond to assess the Customer’s application for credit, it authorises Love My Pond: (1) to obtain from a credit reporting agency/body a consumer or commercial credit report containing personal information about the Customer and any guarantors; and (2) to obtain a report from a credit reporting agency/body and other information in relation to the commercial credit activities of the Customer, and (3) to give to a credit reporting agency/body information including identity particulars and application details.
9.2 The Customer authorises Love My Pond to give to and obtain from any credit provider named in the accompanying Credit Application and credit providers that may be named in a credit report issued by a credit reporting agency/body information about the Customer’s credit arrangements. The Customer understands that this information can include any information about the Customer’s credit worthiness.
9.3 The Customer understands that information can be used for the purposes of assessing its application for credit, assisting it to avoid defaulting on its credit obligations, assessing its credit worthiness and notifying other credit providers and credit reporting agencies of a default by the Customer under these Terms.
The Customer must notify Love My Pond in writing within seven (7) days of:-
10.1 Any alteration of the name or ownership of the Customer.
10.2 The issue of any legal proceedings against the Customer.
10.3 The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer.
10.4 Any change in the ownership of the business name of the Customer. The Customer agrees that it shall be liable to Love My Pond for all Goods and Services supplied to the new owner by Love My Pond until notice of any such change is received.
11.1 No warranties except those implied and that by law cannot be excluded are given by Love My Pond in respect of Goods and Services supplied. If the Customer is a consumer for the purposes of the Australian Consumer Law (“Consumer”) or these Terms are deemed to be a small business contract under the Australian Consumer Law (“Small Business Contract”), the liability of Love My Pond for a breach of a condition or warranty is limited to:
11.1.1 The repair of the Goods or resupply of the Services or the cost of repairing the Goods or Services if Love My Pond determines that there has been a minor fault; or
11.1.2 If it is not possible to repair the Goods, or if Love My Pond determines that there has been a major fault (which may include multiple minor faults), the replacement of the Goods or refund of the price paid for the Goods, as determined by the Customer; or
11.1.3 If a minor fault prevents the Good(s) from being used for their intended purpose within 30 days after purchase, the replacement of the Goods or refund of the price paid for the Goods as determined by the Customer; or
11.1.4 Cancelling the agreement and granting a refund if there is a major fault with the Services.
11.2 If the Goods are returned in accordance with this clause 11, the Customer is responsible for returning the Goods to Love My Pond’ premises. If the Goods are confirmed to have a minor fault or major fault, the Customer may recover reasonable postage or transportation costs from Love My Pond and no handling fee is payable by the Customer.
11.3 The Customer acknowledges that Love My Pond supplies products that may contain chemicals that may be harmful to the user, and that the Customer is responsible for ensuring that all Goods are used in accordance with the instructions provided by Love My Pond or on the packaging of the Goods. To the fullest extent permitted by law, Love My Pond excludes liability relating from such harm caused.
11.4 The Customer acknowledges and agrees that water clarifying agent products may not function as intended in all circumstances, and that Love My Pond is not liable for any damage or loss that results in a failure of this product.
11.5 The Customer acknowledges and warrants that it has relied on its own skill and judgment or, alternatively, on the skill and judgment of tradesmen and professional advisers retained by it to provide advice and assistance on the suitability of the Goods and Services for specific purposes and procedures and, in this respect, shall indemnify Love My Pond from and against any suit, claim, demand or compensation which, but for these Terms, the Customer may have had against Love My Pond, except if the Customer is a Consumer or these Terms are deemed to be a Small Business Contract.
11.6 The Customer warrants to Love My Pond that it is purchasing Goods and Services as the principal and not as an agent.
12 Website Terms and Conditions
All content included on Love My Pond’ website is copyright to Love My Pond, or used under licence by Love My Pond from its content providers. The website is provided by Love My Pond on an “as-is” and “as-available” basis, and Love My Pond makes no representations or warranties of any kind, express or implied, as to the operation of the website or the information, content, material and/or products included on the website. Customers acknowledge that the use of the website is at their sole risk. Love My Pond does not warrant that the website servers or any emails forwarded from Love My Pond are free of any virus or other damaging components, and Love My Pond will not be liable for any damages arising from use of the website.
13 Intellectual Property
13.1 All intellectual property rights (including all rights resulting from intellectual activity and includes copyright, inventions, patent rights, registered and unregistered trademarks, design rights, circuit layouts and all rights and interests of a like nature, including but not limited to methods and techniques, together with any documentation relating to such our rights and interests), including those developed during the supply of the Goods remain the sole property of Love My Pond at all times.
13.2 If Love My Pond terminates this agreement, it may immediately reclaim any material incorporating its intellectual property and the Customer grants Love My Pond an irrevocable licence to enter upon its premises to reclaim such material without incurring liability to it or any other person.
The Customer shall, to the extent reasonably practicable, maintain the confidentiality around any discussions, documents, quotations or proposals relating to these Terms or supply of the Goods or Services and shall refrain from making any public announcement or disclosure of such information without the prior written consent of Love My Pond, except to the extent that it concludes in good faith that such disclosure is required under applicable law or regulations, in which case Love My Pond shall be notified in advance.
15 Force Majeure
Love My Pond shall be released from its obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties renders provision of the Goods and Services impossible, where all money due to Love My Pond shall be paid immediately and, unless prohibited by law, Love My Pond may elect to terminate the Agreement.
16 Equitable Charge
The Customer as beneficial owner and/or registered proprietor now charges in favour of Love My Pond all of the Customer’s estate and interest in any real property (including but not limited to any applicable land owned by the Customer named or described as the Customer’s Street Address in the Credit Application if applicable) (“Land”) to secure payment of accounts rendered by Love My Pond to the Customer for the delivery and/or supply of the Goods and Services including interest payable on these accounts and costs (including legal costs on a full indemnity basis) incurred by Love My Pond and including the costs to prepare and lodge a Caveat against the Land and to remove the Caveat.
17 Failure to Act
Love My Pond’ failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or Love My Pond’ failure to exercise any right or remedy available under these Terms or at law, or Love My Pond’ failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under these Terms shall not constitute a waiver of any subsequent default or a waiver of Love My Pond’ right to demand timely payment of future obligations or strict compliance with the Terms.
18.1 Love My Pond may vary these Terms by providing written notice to the Customer (by email, conventional mail or by posting the amended terms on its website).
18.2 If the Customer is a Consumer, or these Terms are deemed to be a Small Business Contract, and the Customer does not deem the variation acceptable, it may elect not to proceed with the purchase of the Goods ordered before the date of the variation but which are intended to be subject to the variation.
18.3 If the Customer is not a Consumer and these Terms are not deemed to be a Small Business Contract, the Customer agrees that the variation applies from the date of receiving notice of the varied Terms.
19 Legal Construction
19.1 These Terms shall be governed by and interpreted according to the laws of Victoria and Love My Pond and the Customer consent and submit to the jurisdiction of the Courts of Victoria.
19.2 Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.