Hotel Luxury Collection Worldwide Pty Limited
ABN 97 123 113 235
PO Box 248 Potts Point NSW 1335
Conditions of Sale Effective 1 August 2011
In these Conditions of Sale:
‘Goods’ means all products and services agreed to be supplied by Hotel Luxury Collection to the Buyer under any Contract;
‘Buyer’ means any person who acquires Goods from Hotel Luxury Collection under a Contract;
‘Contract’ means any contract for the supply of Goods entered into between Hotel Luxury Collection and the Buyer;
‘Hotel Luxury Collection’ means Hotel Luxury Collection Pty Limited ACN 123 113 235 and its agents, servants and employees and any related bodies corporate as defined in the Corporations Law (if such related body corporate is named as party to the Contract);
‘Overdue rate’ means 12 percent per annum;
‘Quoted Date’ means the date of delivery as agreed between the Buyer and Hotel Luxury Collection;
‘Statutory Provisions’ means the Australian Consumer and Competition Act 2010 (ACC Act), any statutory amended or re-enactment thereof for the time being in force and any other relevant and applicable State and/or Commonwealth legislation;
2. STATUTORY PROVISIONS
These Conditions of Sale:
- unless Hotel Luxury Collection otherwise agrees in writing, are the only Conditions of Sale for the supply of Goods by Hotel Luxury Collection to the Buyer to which Hotel Luxury Collection will be bound and the Buyer agrees that these Conditions of Sale will in all circumstances prevail over the Buyer’s Conditions of Purchase (if any); and
- supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods including, but not limited to, those relating to the performance of the Goods or the results that ought to be expected from using the Goods.
- Other than for sales of mattresses, mattress toppers, pillows, pillow protectors, duvets and bedding ensembles (which items are covered by the relevant manufacturers’ warranties) Hotel Luxury Collection warrants that the Goods supplied are of merchantable quality;
- Hotel Luxury Collection’s liability for breach of sub-clause 3 or a condition or warranty implied into the Contract by law including without limitation the Statutory Provisions (other than a condition implied by Part 3-2 Division 1 of Schedule 2 of ACC Act) is limited to any one of the following as determined by Hotel Luxury Collection:
The Buyer will examine the Goods for defects and shall notify Hotel Luxury Collection of any defects in writing within 7 days of the earlier of the date of collection of the Goods from Hotel Luxury Collection by the Buyer or a Carrier engaged by the Buyer to deliver the Goods to the Buyer or by an authorised collection agent of the Buyer or the date of delivery of the Goods to the Buyer by Australia Post or a Carrier engaged by Hotel Luxury Collection. If the Buyer does not notify Hotel Luxury Collection within 7 days of delivery the Buyer shall be deemed to have accepted the Goods.
- the replacement of the Goods or the supply of equivalent Goods;
- the repair of the Goods or payment of the cost of having the Goods repaired; or
- the refund of the price paid by the Buyer for the Goods.
- To the extent the law permits, Hotel Luxury Collection excludes all other liability whatsoever to the Buyer arising out of or in any way connected with a Contract including any liability for consequential or indirect losses of any kind howsoever arising and whether caused by breach of statute, breach of contract, negligence or other tort.
- The Buyer hereby acknowledges that it has not relied on any service involving skill or judgement, or on any advice, recommendation, information or assistance provided by Hotel Luxury Collection in relation to the Goods or their use or application.
- Notwithstanding the fact that catalogues, material, specifications or photographs may have been supplied by Hotel Luxury Collection to the Buyer no contract shall constitute a sale by sample or by description.
Hotel Luxury Collection will make all reasonable efforts to have the Goods delivered to the Buyer on the date agreed between the parties as the Quoted Date, but Hotel Luxury Collection shall not be liable for any failure to deliver or delay in delivery for any reason and should it transpire that Hotel Luxury Collection is, for any reason, unable to deliver the Goods to the Buyer by the Quoted Date Hotel Luxury Collection can, by written notice to the Buyer, elect to terminate the contract for the sale of the Goods to the Buyer in which event Hotel Luxury Collection will refund any monies paid by the Buyer to Hotel Luxury Collection for the Goods in advance of delivery within seven (7) days of the date that Hotel Luxury Collection notifies the Buyer that the contract for the sale of such Goods has been terminated. Hotel Luxury Collection will, unless otherwise agreed between Hotel Luxury Collection and the Buyer, arrange for the Goods to be delivered, at the Buyer’s expense, to the Buyer by Australia Post under its Registered Parcel Post mailing system or by courier. The Goods shall be coded by Hotel Luxury Collection for delivery tracking purposes and if despatched by Australia Post shall also be traceable under its registered parcel system. The Goods shall be insured, at the Buyer’s expense, for loss and/or damage in transit by Hotel Luxury Collection on behalf of the Buyer. If the Goods are despatched through Australia Post and no one is available at the Buyer’s nominated delivery address to accept delivery of the Goods when delivery is attempted by Australia Post personnel the Goods will not be left at the delivery address but instead shall be taken to the nearest Australia Post post office and held there for collection by the Buyer and a notice to that effect should be left in the Buyer’s post box at the delivery address by Australia Post personnel when delivery is attempted or, if no such post box exists, under the front door of the place of delivery.
(b) Hotel Luxury Collection will endeavour to ensure deliver of the ordered goods in accordance with the time line outlined at the time of purchase. Where goods are being manufactured by third parties and are not in store Hotel Luxury Collecion has not control over the performance of third parties and does not warrant that such delivery will occur within the indicative time line.
- Unless otherwise agreed in writing, all risk in and to the Goods purchased shall pass from Hotel Luxury Collection to the Buyer:-
- upon payment being made for the Goods by the Buyer to Hotel Luxury Collection, together with any freight and/or Carrier insurance charges, on a cleared funds basis; and
- upon collection of the Goods by the Buyer from Hotel Luxury Collection; or
- alternatively, upon collection of the Goods for delivery to the Buyer by a Carrier engaged by Hotel Luxury Collection on behalf of the Buyer or by a Carrier or other person or entity engaged or authorised by the Buyer to act is the Buyer’s collection agent or Carrier of the Goods.
- Without in any way limiting the operation of the foregoing, the Buyer shall bear the risk of any theft, loss or damage to the Goods that may occur while the Goods are in transit to the Buyer and, in the event that the Buyer elects to use its own Carrier to transport the Goods from Hotel Luxury Collection’s premises to the Buyer, the Buyer covenants and warrants to Hotel Luxury Collection that, in the storage and handling of the Goods, the Buyer and his agents and Carriers shall comply with all relevant environmental laws and regulations, and do comply with all necessary and/or relevant permits or licences pertaining to the storing and handling of the Goods, and the Buyer shall ensure that the Buyer and his agents and Carriers are familiar with and adhere to all the necessary and appropriate precautions and safety measures relating to the storing and handling of the Goods.
- If the Buyer elects to have the Goods dispatched to the Buyer by a Carrier organised by Hotel Luxury Collection, the Buyer must notify Hotel Luxury Collection of the Buyer’s delivery address in writing on the date that the Goods are ordered by the Buyer from Hotel Luxury Collection. If the Buyer wants to change the delivery address it must do so by written notice served upon Hotel Luxury Collection via email or Hotel Luxury Collection’s website facility for such notices no later than seven (7) days prior to the anticipated date of collection of the Goods from Hotel Luxury Collection’s storage facility by the Carrier engaged to deliver the Goods to the Buyer.
- If the Buyer fails to notify Hotel Luxury Collection of the Buyer’s delivery address when the Goods are ordered from Hotel Luxury Collection by the Buyer and Hotel Luxury Collection does not receive forwarding instructions sufficient to enable it to despatch the Goods within 14 days of Hotel Luxury Collection’s notification to the Buyer that they are ready for delivery or collection, the Buyer shall be deemed to have taken delivery of the Goods from such date. The Buyer shall be liable for storage charges payable monthly on demand.
- If Hotel Luxury Collection arranges Carrier insurance on behalf of the Buyer for theft, loss or damage to the Goods whilst they are in transit from Hotel Luxury Collection’s premises to the Buyer by a Carrier organised by Hotel Luxury Collection any claims in respect of such insurance cover must be made by the Buyer to the relevant insurer and, if it becomes necessary for the Buyer to make an insurance claim because the Goods are stolen, lost or damaged when in transit, whilst Hotel Luxury Collection will provide all reasonable assistance to the Buyer by providing details of collection of the Goods from Hotel Luxury Collection by the relevant Carrier to assist the Buyer to make such claim, it shall be the Buyer’s responsibility to make any such insurance claim and Hotel Luxury Collection shall be in no way liable to the Buyer or their insurer in respect of any such insurance claims.
- Title in and to the Goods will not pass from Hotel Luxury Collection to the Buyer until Hotel Luxury Collection receives payment in full for all Goods and all monies owing by the Buyer to Hotel Luxury Collection on any account whatsoever.
- Until title in and to the Goods has passed to the Buyer in accordance with clause 7(a), if the Goods are delivered to or collected by the Buyer or its Carrier or authorised agent before the Buyer pays Hotel Luxury Collection for the Goods and/or freight and insurance charges, the Buyer holds the Goods as fiduciary agent and bailee for Hotel Luxury Collection and the Buyer will store the Goods separately in such a manner that they are clearly identified as the property of Hotel Luxury Collection . If the Goods are delivered to the Buyer before all contractual payment liabilities owing to Hotel Luxury Collection in respect of the Goods is received by Hotel Luxury Collection, Hotel Luxury Collection shall be entitled at any time to demand the return of the Goods and shall be entitled without notice to the Buyer to enter the Buyer's premises or any other premises upon which the Goods are held in order to search for and remove the Goods.
- If the Buyer sells any of the Goods before title in and to the Goods has passed in accordance with clause 7(a), the Buyer will hold such part of the proceeds of sale as relates to the price of the Goods sold on trust for Hotel Luxury Collection and will hold such proceeds in a separate account which clearly identifies the proceeds as monies held on trust for and on behalf of Hotel Luxury Collection.
- Unless otherwise agreed in writing, the price charged for the Goods shall be the price agreed between Hotel Luxury Collection and the Buyer on the date that Hotel Luxury Collection accepts the Buyer’s order of the Goods from Hotel Luxury Collection and any Carrier and/or insurance charges shall be payable by the Buyer to Hotel Luxury Collection in addition to such price.
- Hotel Luxury Collection operates on a currency surcharge / currency credit system and the price of any Item ordered may change relative to any fluctuations in currency between the time of writing the order and dispatch of Goods from their country of origin. If the Buyer pays for the Goods in advance and, due to currency exchange rate fluctuations between the date of payment for the Goods by Buyer and the Quoted date or any other date when Hotel Luxury Collection is able to deliver the Goods to the Buyer, and Hotel Luxury Collection decides that it has to increase the price payable by the Buyer for the Goods, the Buyer must pay the additional amount to Hotel Luxury Collection within seven (7) days of receiving written notification of the adjustment to the price payable for the Goods and Hotel Luxury Collection will, after such additional payment has been made by the Buyer to Hotel Luxury Collection, deliver the Goods to the Buyer or the Buyer can collect the Goods from Hotel Luxury Collection or arrange for a Carrier retained by the Buyer or an agent authorised by the Buyer to collect the Goods from Hotel Luxury Collection’s premises.
- Where a transaction tax, including a goods and services tax (GST) and any transaction taxes that come into existence after the date of these Conditions of Sale, applies to any supply made under these Conditions of Sale, Hotel Luxury Collection may recover from the Buyer an additional amount on account of that transaction tax.
- Promotional offers and discounts cannot be combined and only one discount offered by Hotel Luxury Collection for Goods being sold can be applied to an order. Discounts do not apply to gift wrapping.
- Promotional offers are only capable of acceptance by the Buyer’s written order made during the period indicated when such promotional offers are made.
9. NON DAMAGED GOODS AND/OR WARRANTY RETURNS
Excepting Goods sold at a discount ‘on sale’ and sales of pillows, duvets, mattresses, mattress toppers, pillows, pillow protectors, duvets and bedding ensembles or any other types of Goods stated as being so excluded by Hotel Luxury Collection at the time of acceptance by Hotel Luxury Collection of the Buyer’s order of the Goods, the Buyer can return the Goods to Hotel Luxury Collection provided they are returned to Hotel Luxury Collection’s premises within 14 days of the date of delivery of the Goods to the Buyer or the date of collection of the Goods by the Buyer or its authorised representative from Hotel Luxury Collection’s premises AND PROVIDED ALWAYS THAT Goods are not so returnable in this manner if their packaging has been opened or the Goods have been damaged. The Buyer must insure the returned Goods for loss or damage in transit for the return transportation at its expense and pay for the cost of the return delivery. Hotel Luxury Collection will then allow the Buyer to purchase alternative goods sold by Hotel Luxury Collection in lieu of the returned goods (provided such alternative goods are selected and purchased by the Buyer within 30 days of the date of delivery of the original Goods purchased by the Buyer from Hotel Luxury Collection), credit the price of the returned goods, less the original postage and insurance fees relative to the returned goods, and apply such credit towards the purchase price of the alternative goods. The Buyer will be obliged to pay any then balance owing on the purchase price of the alternative goods being purchased by the Buyer and the Buyer shall also be liable to pay the cost of freight and insurance charges associated with transporting the alternative goods from Hotel Luxury Collection’s premises to the Buyer’s nominated place of delivery. If the Buyer selects alternative goods, the purchase price of which is less than the available credit amount of the returned goods the Buyer is not entitled to claim a refund of the balance of the purchase price of the returned goods not being so credited. No refunds of the purchase price of returned goods will be paid by Hotel Luxury Collection on returned goods.
10. FORCE MAJEURE
Deliveries may be totally or partially suspended by Hotel Luxury Collection during any period in which Hotel Luxury Collection may be prevented or hindered from manufacture, delivery or supply through any circumstances outside Hotel Luxury Collection ’s reasonable control, including but not limited to strikes, lockouts or other labour difficulty, inability to obtain any necessary materials, equipment, facilities or services, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication network. Hotel Luxury Collection shall not incur any liability to the Buyer in respect of such suspension.
11. PAYMENT AND DEFAULT
- Unless otherwise agreed in writing all accounts shall be payable within 7 days of the date of order by the Buyer, or as otherwise identified on any statement of account issued by Hotel Luxury Collection.
- If any of the events set out in (i) to (v) below occur, Hotel Luxury Collection may at its option withhold further deliveries, cancel any pre-existing credit arrangements for payment for the Goods by the Buyer, or cancel the Contract without notice to the Buyer and without prejudice to any other action or remedy which Hotel Luxury Collection has or might otherwise have had and all moneys owing and outstanding to Hotel Luxury Collection on any account whatsoever and irrespective of whether the due date on any statement of account has occurred or passed shall become immediately due and payable:
- the Buyer makes default in any payments or is unable or states that it is unable to pay its debts as and when they fall due;
- the Buyer being an individual commits an act of bankruptcy or has a controller or trustee appointed in respect of the Buyer’s estate or any part of the Buyer’s property or assets;
- the Buyer being a company passes a resolution for its winding up or enters into liquidation or has an application for winding up filed against it;
- a receiver, receiver and manager, controller or voluntary administrator is appointed over any part of the property or assets of the Buyer;
- the Buyer experiences any analogous event having substantially similar effect to any of the events specified above.
- In the event of the Buyer failing to effect payment on the due date and in the manner herein before specified then notwithstanding anything to the contrary herein contained, the Buyer shall pay to Hotel Luxury Collection interest on the whole of the monies so due and payable, calculated from the date of default up to and including the day upon which cleared funds are received in Hotel Luxury Collection's nominated bank at the 'Overdue Rate'.
12. GENERAL LIEN
In addition to any right of lien to which Hotel Luxury Collection may be entitled under the common law, Hotel Luxury Collection shall be entitled to exercise a general lien over all items in its possession belonging to the Buyer until the Buyer has paid in full for all Goods ordered by the Buyer from Hotel Luxury Collection and has otherwise paid all monies due to Hotel Luxury Collection under these Conditions of Sale. Hotel Luxury Collection may in its sole discretion sell any item that is subject to the said lien, without having any obligation to pay to the Buyer any surplus proceeds that are realised by it from a sale of any such items.
The failure of Hotel Luxury Collection at any time to insist on performance of any provision of these Conditions of Sale is not a waiver of Hotel Luxury Collection's rights at any time later to insist on performance of that or any other provision.
If any provision of these Conditions of Sale or its application to any person or circumstance is or becomes invalid, illegal or unenforceable the provision shall so far as possible be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of these Conditions of Sale shall not in any way be affected or impaired.
15. INTELLECTUAL PROPERTY
- Copyright in all photographs, drawings, designs, specifications, catalogues and other similar works supplied to the Buyer by Hotel Luxury Collection is vested in Hotel Luxury Collection and the Buyer shall not copy or reproduce or allow the copying or reproduction of any such works without the prior written consent of Hotel Luxury Collection.
- The Buyer shall not use the Hotel Luxury Collection name and/or any names or marks attached to any item the subject of this contract for advertising or promotional purposes in any manner or medium whatsoever without the prior written consent of Hotel Luxury Collection.
16. GOVERNING LAW
The supply of Goods under these Conditions of Sale is governed by the law of the State of New South Wales and Hotel Luxury Collection and the Buyer submit to the non-exclusive jurisdiction of the courts of the State of New South Wales.