Sale Terms and Conditions

These Sale Terms apply between Xchange Design Australia Pty Ltd ACN 167 106 210 (referred to as we, us or our) and the person named on a Quotation or Sales Order (referred to as you or your) in relation to your purchase of Goods or Services from us under an Agreement.

1. If you do not accept these Sale Terms, we will not process your Sales Order.
2. An Agreement is subject to any special conditions set out in a Quotation, Sales Order or Sales Invoice, these Sale Terms and our Privacy Policy. This applies whether you place your order in store, by telephone, by email or through our Online Shop. If you place your order through our Online Shop, our Website Terms will also form part of the Agreement.
3. No other terms and conditions apply to the Agreement, including any terms you seek to impose when placing an order with us.
4. An Agreement may only be cancelled or varied with our prior written consent.

Definitions and Interpretation

Unless the context requires otherwise, the following terms have these meanings in these Sale Terms:

• Agreement means a contract between you and us for the sale and purchase of Goods or Services, subject to the terms and conditions referred to in clause 1.3.
• Anticipated Delivery Date means the later of your requested delivery date and the delivery date we can achieve.
• Goods means any goods we agree to supply to you under the Agreement.
• Payment has the meaning given in clause 8.1.
• PPSR means the Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth).
• Quotation means a form, tender or quotation we submit to you regarding Goods or Services.
• Sales Order means the schedule detailing the Goods or Services ordered on your behalf, confirmed by you and to be delivered in accordance with these Sale Terms.
• Sales Invoice means a sales invoice we issue to you that is subject to these Sale Terms.
• Services means any services we agree to perform for you under the Agreement.

Person includes an individual, the estate of an individual, a government body, a corporation, an association (incorporated or unincorporated) and a statutory or other authority.

Quotations, Sales Orders and Sales Invoices

1. A Quotation is valid for 30 days, or for any other period stated in the Quotation, unless we withdraw it earlier.
2. A Quotation is not an obligation to sell and is an invitation to treat only. No contractual relationship arises from a Quotation until we accept your order in writing and, where required under clause 4, you have paid the deposit in full.
3. Any special conditions specified in a Quotation, Sales Order or Sales Invoice take precedence over these Sale Terms to the extent of any inconsistency.
4. Every Quotation, Sales Order and Sales Invoice is subject to obtaining any necessary import, export or other licence. If we cannot obtain a required licence, we may cancel the Quotation or Sales Invoice without liability to you, except that we will promptly return any deposit you paid under a Sales Invoice.

Conformity to Description

1. We make reasonable efforts to ensure that Goods conform to their descriptions. However:
   
   • slight variations in size may occur;
   • variations in colour and quantity may occur between samples and supplied Goods;
   • we cannot guarantee that materials supplied will exactly match the quality of samples submitted to you or referred to in a Quotation; and
   • colours may vary slightly from what you see on your monitor, depending on your monitor settings.

   To the extent permitted by law, we are not liable for these variations or inconsistencies.

2. Photographs, drawings, illustrations and other particulars in our descriptive literature or catalogues are approximate representations of the Goods or Services and should not be relied on as exact representations.
3. Any performance data provided by us or a manufacturer is an estimate only and should be treated accordingly.

Price

1. All prices for Goods and Services are quoted in Australian dollars and include GST.
2. Unless we state otherwise in writing, prices quoted in a Quotation or Sales Order, or set out in a Sales Invoice, exclude delivery, installation, transit insurance, packaging, crating, handling charges, agents’ charges and any other charge for a Good or Service.

Terms of Payment

1. You must pay us in Australian dollars in accordance with the payment terms set out in the Quotation or Sales Order.
2. For orders placed through our Online Shop, payment in full is required.
3. If you do not hold an account with us, we require payment in full before we deliver the Goods or perform the Services.
4. If you hold an account with us, you must pay our invoices within 7 days of the invoice date, unless the Quotation or Sales Order specifies otherwise.
5. We accept Visa, Mastercard and American Express. American Express payments incur a surcharge of 2.70% at the time of payment.
6. We will handle and use any confidential or private information we receive while processing your payments in accordance with our Privacy Policy.
7. Time for payment is of the essence. If you do not pay on time, we may, without prejudice to our other rights:
   
   • suspend any outstanding delivery;
   • cancel the Agreement and seek damages for breach of contract and our recovery costs; and/or
   • charge interest on the outstanding amount at 6% above the RBA cash rate from time to time, calculated daily from the payment due date until payment is received, both before and after judgment.
8. You must not deduct or withhold any amount from a Payment due to us unless a valid court order requires us to pay you an amount equal to that deduction or withholding.

Shipment and Delivery

1. When we accept an order, we may confirm the shipment or delivery period and will notify you of any variation from the period quoted. Unless you object in writing within 7 days after we notify you, the period we notify you of will become the contractual shipment or delivery period.
2. A quoted delivery period starts on the later of:
   
   • the date you approve our drawings, specifications and finishes schedules, where applicable; and
   • the date you pay the deposit.

   We may extend the quoted period if you request changes to drawings or finishes schedules after that date.

3. We are not liable or responsible for delays in delivery of Goods. We are liable for liquidated damages for a delivery delay only if they are specified in the Quotation, Sales Order or Sales Invoice, and those damages are limited to 5% of the Agreement’s contract value.
4. Delivery estimates are provided in good faith but are not guaranteed. Time is not of the essence for delivery of the Goods or the Anticipated Delivery Date unless the Quotation, Sales Order or Sales Invoice expressly says otherwise. You cannot make delivery time of the essence by giving notice.
5. Delivery is deemed to occur when the Goods are delivered to the place specified in the Quotation, Sales Order or Sales Invoice.
6. We may make part deliveries. Each part delivery is a separate sale of Goods under these Sale Terms and may be invoiced separately. A part delivery does not invalidate the balance of the order.
7. If you do not accept delivery of the Goods or performance of the Services when they are ready, or if we cannot deliver the Goods or perform the Services on time because you have not provided appropriate instructions, documents, licences or authorisations, we may:
   
   • invoice you for up to 80% of the total amount of the Sales Invoice; and
   • charge weekly storage fees, calculated in weekly increments or part thereof at the applicable rates below. Storage fees accrue from 2 weeks after the Anticipated Delivery Date until delivery.

Weekly Storage Charges

Title and Risk

1. Title to the Goods does not pass to you, or to any financial institution or agent facilitating your acquisition of the Goods, until we have received the total purchase Price and all other amounts due to us under these Sale Terms, including any late payment charges, in cleared funds (Payment).
2. Until Payment has been made:
   
   • you hold the Goods and any money received from their sale or disposal on trust for us. If any Goods are damaged or destroyed, this also applies to any insurance or other compensation money you receive; and
   • you must store the Goods or hold the money in a way that clearly identifies them as our property.
3. Until Payment has been made, you irrevocably authorise us to enter, at any time, any premises where:
   
   • our Goods are stored or held, so we can inspect them and, if you are in default under clause 6, reclaim them. You indemnify us and release us from liability for actions taken under this Agreement; and
   • you keep records concerning the Goods, so we can inspect and copy those records where necessary.
4. Risk in the Goods passes to you on delivery. From that time, you are responsible for insuring the Goods. Delivery does not transfer ownership to you until Payment has been made in full.
5. Until final Payment has been made in accordance with these Sale Terms, neither you nor any administrator appointed under the Corporations Act 2001 (Cth) may move any of the Goods from the location where we delivered them. You must not sell, agree to sell, mortgage, charge, lease, dispose of or part with possession of the Goods, or any part of them.
6. We may register a retention-of-title security interest in the Goods on the PPSR. You agree to provide any assistance we require to make that registration.

Inspection and Acceptance

1. You must inspect all Goods on delivery.
2. You must notify us within 48 hours of delivery or performance if the Goods or Services do not conform to the Quotation, Sales Order or Sales Invoice. If you do not give notice within that period, then, to the extent permitted by law, the Goods or Services and their condition will be deemed to have been delivered or performed and accepted by you.

Cancellations and Returns

1. We will not accept the return of Goods that you have accepted, or are deemed to have accepted, or the return of Goods because you have changed your mind and wish to cancel the Sales Order, unless we choose to accept the return or cancellation in our sole discretion.
2. If we accept a cancellation, you must arrange and pay for the return of the Goods, at your risk, to a returns depot or store nominated by us. You must return the Goods in their original condition and in their original, unopened and sealed packaging, with the original Sales Order docket or another form of proof of purchase. We may deduct from any refund the original delivery cost and an amount we reasonably consider reflects our loss from accepting the cancellation, including storage costs and any reduction in the Goods’ price.
3. If, after paying a deposit required under the Quotation, Sales Order or Sales Invoice but before delivery of the Goods, you change your mind and ask to cancel the Sales Order, and we accept the cancellation, we may retain the full deposit. We may also charge you an additional amount we reasonably consider reflects our loss from accepting the cancellation, including transportation or storage costs and any reduction in the Goods’ price.

Warranties

1. Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law (ACL). You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if they fail to be of acceptable quality and the failure does not amount to a major failure.
2. In addition to any rights and remedies available to you under the ACL and other applicable legislation, we offer, on behalf of the manufacturers of the Goods, the manufacturers’ express warranties described in the Warranties section of our website (Express Warranties). The Express Warranties do not exclude, restrict or modify your statutory rights or remedies.

Important Exclusions and Limitations of Liability

1. Subject to any Express Warranties, guarantees we must provide under the ACL and other applicable laws that cannot be excluded, we will not be liable to you or anyone else, to the maximum extent permitted by law, for:
   
   • any liability, damage, loss, cost or expense beyond the normal measure of loss you suffer or incur from a breach of this Agreement, or any consequential loss flowing from such a breach, whether immediate or eventual;
   • expenses you incur because of a breach of the Agreement;
   • any decision, action or inaction taken in reliance on information provided by us or connected with our website; or
   • loss of profit, revenue, business, opportunity, production, goodwill, reputation or contract; loss in replacing or restoring data; loss of anticipated savings; or financing costs or increased operating costs, whether direct, indirect, normal or consequential, or arising on any other basis.
2. To the extent permitted by law, we are not liable to you if:
   
   • you use the Goods or Services after notifying us that they are defective;
   • a defect arises because you did not follow our or the manufacturer’s instructions for storage, installation, commissioning, maintenance or use;
   • you remove a manufacturer’s serial number;
   • the damage or defect was not caused by a defect in workmanship or materials; or
   • you alter or repair the Goods without our prior written approval.
3. To the extent permitted by law and subject to clause 10, our liability for non-compliance with a statutory guarantee, or for loss or damage arising out of or in connection with the supply of Goods or Services under this Agreement, is limited to:
   
   • For Services:
     
     • resupplying the Services; or
     • paying the cost of resupplying the Services.
   • For Goods:
     
     • replacing the Goods or supplying equivalent Goods;
     • repairing the Goods;
     • paying the cost of replacing the Goods or acquiring equivalent Goods; or
     • paying the cost of having the Goods repaired.
4. Clause 11.2 is not intended to exclude, restrict or modify:
   
   • the application of any provision of Part 5-4 of Schedule 2 to the ACL;
   • the exercise of a right conferred by such a provision; or
   • any liability we have for failing to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of Goods or Services.
5. To the extent permitted by law, if we breach these Sale Terms, our liability to you, whether in contract, tort, breach of statutory duty or otherwise, is limited to an amount not exceeding the total amount you have paid us under the Quotation, Sales Order or Sales Invoice as at the date of the breach.
6. You acknowledge that you have relied on your own skill and judgment in entering into the Agreement and have not relied on a statement or representation made by anyone on our behalf.

Your Default

1. If you default by failing to pay or perform an obligation under this Agreement, or if bankruptcy, liquidation or insolvency proceedings are commenced by or against you, we may:
   
   • declare all unpaid amounts under the Sales Invoice immediately due and payable;
   • require you to provide all relevant documentation, assemble any parts of the Goods that have not been paid for and make them available at a time and place reasonably convenient to us;
   • take possession, without demand or notice (which you expressly waive under this clause), of any parts of the Goods that have not been paid for;
   • sell, lease or otherwise dispose of the Goods publicly or privately;
   • terminate the Agreement in whole or in part; and/or
   • pursue any other remedy available at law or in equity.
2. In addition to your other payment obligations under the Agreement, you agree to pay our costs and expenses, including reasonable legal fees and costs, incurred in exercising any of our rights and remedies.

Intellectual Property Protection

1. We indemnify you against legal action arising out of or connected with infringement of a patent, registered design or copyright by any Goods or Services we provide to you.
2. You indemnify us against legal action arising from designs you provide to us and warrant that those designs will not cause us to infringe any third party’s patent, registered design or copyright.
3. Unless the Sales Invoice states otherwise, any design, drawing, investigation, bill of materials, software, data, general material or other work we produce specifically in connection with the Quotation, Sales Order or Sales Invoice remains our intellectual property.

Confidentiality

We will not disclose commercial or technical details associated with the Quotation, Sales Order or Sales Invoice and will keep that material confidential and handle it in accordance with our Privacy Policy.

Work Site Conditions

Access

You must provide site access as required and in good time. We will give you reasonable notice of when work is due to commence on site. You must advise us immediately of any access problems.

Insurance

We will ensure that all persons we employ are covered by appropriate workers’ compensation insurance. We will provide public liability insurance to your reasonable satisfaction. Where required by the Quotation, Sales Order or Sales Invoice, we will provide full comprehensive insurance for the Services until acceptance.

Site Facilities

You must provide the site facilities described in the Quotation, Sales Order or Sales Invoice. You are responsible for checking that those facilities are satisfactory and arranging any additional facilities required. Site tests should be carried out as soon as practicable after the site facilities are in place. You must give us at least 7 days’ notice before testing site readiness.

Force Majeure

If a force majeure event prevents, restricts or affects our performance of an obligation under this Agreement, we may give you prompt notice of the event. To the extent our performance is prevented, restricted or affected, we are excused from performing or observing the relevant obligation. A force majeure event includes a strike, lockout, industrial dispute, raw material shortage, breakdown of plant, transport or equipment, or any other cause beyond our reasonable control.

General

1. The Agreement is the entire agreement between the parties and replaces all prior representations, agreements, statements and understandings, whether verbal or written.
2. A party’s failure or delay in exercising a right, power or remedy does not waive that right, power or remedy. A single or partial exercise does not prevent any further exercise of that or another right, power or remedy. A waiver is not valid or binding unless made in writing by the party granting it.
3. We may give you notice by email, conventional mail, facsimile or personal service. You may give us written notice by email to contact@xchangedesign.com.au, or by letter to Xchange Design Australia, PO Box 44, St Ives NSW 2075, Australia.
4. If a provision of these Sale Terms is invalid, illegal or unenforceable, that provision must be disregarded to the extent of the invalidity, illegality or unenforceability. All other provisions remain in full force and effect.
5. The Agreement is governed by the laws applicable in New South Wales, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of that State.