Terms and Conditions
In these Terms and Conditions, unless the context or subject matter otherwise require:
- Business Premises means any premises at which we carry out our business;
- Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent;
- Contract means a legally binding agreement entered between you and Yogerhum for the supply of Goods comprising these Terms and Conditions from time to time;
- Contract Goods means the Goods supplied or agreed to be supplied under a Contract;
- Contract Price means the total amount payable by you under a Contract for the supply of Contract Goods including any Delivery costs and any discounts or allowances;
- Customer (you/your) means the person or entity to whom Goods are supplied from time to time and that person or entity’s servants and agents;
- Debt means any and all moneys due and owing by you to Yogerhum whether in relation to one or more Contracts and includes, without limitation, any Overdue Amounts;
- Delivery means the relocation of Contract Goods from our Business Premises to a location agreed between us and you or, where it is practically impossible to relocate the Contract Goods to that location, the location that we, at our sole discretion, consider reasonable in the circumstances;
- Deposit means the amount that we, at our sole discretion, may require you to pay us to accept a Quote;
- Descriptive Material includes, without limitation, specifications, drawings, diagrams, plans or other document containing particulars of dimensions of Goods submitted with or prior to any Quote from us to you or visible on our website, catalogues, price lists, marketing materials or advertising materials;
- Dispute means a genuine disagreement between the Parties regarding any aspect of a Contract, performance of a Contract, or the operation of these Terms and Conditions;
- Goods means any of Transportable Shade sheds, Motor bikes, Quadbikes, Jet skis, ATV's, Outboards, Light aircrafts, Caravans, Boats and other Yogerhum goods that are supplied to you from time to time;
- IP means all intellectual and industrial property rights (such as copyright and related Rights), all Rights in relation to inventions (including patents and patent Rights), all registered and unregistered trade-marks, all Rights relating to registered designs, and all other Rights resulting from intellectual activity in the artistic, literary or scientific fields excluding any moral attribution Rights;
- Manufacture means the making of Goods or any part or component of Goods;
- Obligation means any express or implied legal, equitable, contractual, statutory or other obligation, promise, agreement, covenant, commitment, duty, undertaking or liability;
- Overdue Amount means any amount of money that remains unpaid thirty (30) days after Yogerhum issues an invoice to you requiring payment for that amount;
- Parties means you and Yogerhum;
- Personal Information has the definition attributed to it under the Privacy Act 1988 (Cth);
- Purchase Order means any written communication made by you (or any person on your behalf) requesting Yogerhum to supply Goods to you in the approved form supplied by Yogerhum;
- Right means any legal, equitable, contractual, statutory or proprietary right, chose in action, power, authority, benefit, privilege, remedy, or discretion;
- Special Condition means any condition set out in writing in signed by the Parties that apply to the Contract;
- Terms and Conditions means the terms and conditions set out in this document and includes the Special Conditions;
- Yogerhum (we/us/our) means Yogerhum Pty Ltd A.C.N. 624 339 498 and its servants and agents.
When you enter into a Contract with us you agree that;
- you have read and understood these Terms and Conditions and you agree to be bound by them;
- these Terms and Conditions apply to every transaction for the supply of Goods; and
- any variation to a Contract or these Terms and Conditions must be made with the consent of both Parties and must be in writing and signed by both Parties
- These Terms and Conditions or any Contract arising from them will not be interpreted, construed or applied adversely to Yogerhum by reason of their having been drafted by or on behalf of Yogerhum.
3. Entire Agreement
- No other terms or conditions apply to a Contract between the Parties.
- You fully indemnify and hold us harmless from any Claim based on terms and conditions beyond these Terms and Conditions.
4. Descriptive Material
- All Descriptive Material is intended merely to present a general idea of Goods described within the Descriptive Matter.
You acknowledge that:
- Descriptive Matter does not form part of a Contract;
- you have not relied upon any representation contained within any Descriptive Matter; and
- you have not relied upon any inducement, representation or statement made by us or any other entity purporting to be acting on our behalf in engaging us to provide Goods to you.
If you wish to request us to supply Goods to you, you may:
- deliver a Purchase Order to us by email, facsimile, post or hand-delivery; or
- request a Quote from us
- Purchase Orders must not contain, or incorporate by reference, any other document, terms or conditions other than these Terms and Conditions.
- We will endeavour to inform you whether we accept or do not accept a Purchase Order within seven days after that Purchase Order is received by us.
We may accept a Purchase Order by:
- delivering written notice of acceptance to you;
- verbally communicating acceptance to you or your personnel; or
- supplying the Goods requested by that Purchase Order.
- Upon our acceptance of a Purchase Order, a Contract for the supply of Goods is formed.
- If you deliver a Purchase Order to us and we accept it, the Contract Price for the Goods set out in that Purchase Order will be as set out in that Purchase Order unless you and we agree, either verbally or in writing, to vary the Contract Price.
- If we deliver a Quote to you and you accept it, you will be deemed to have accepted the Contract Price for the Goods set out in that Quote
You acknowledge that in addition to the Contract Price for Contract Goods you will become immediately liable to us for the following costs as and when they are incurred by us:
- float charges, freight and any other costs of Delivery of Contract Goods that are not included in the Contract Price;
- all taxes, duties and charges whatsoever imposed by any government or other government-related authority and payable in respect of or by reason of the sale or Delivery of the Contract Goods, whether or not the same were payable at the date you delivered the relevant Purchase Order to us or accepted our Quote, and that are not included in the Contract Price;
- the amount of any increase in the costs of our supplying or delivering Contract Goods or any part thereof to you occurring after the date of a Contract for any reason including, without limitation, changes in costs to manufacture Contract Goods, rates of exchange, landing charges, port dues or the cost of carriage, insurance or handling, that were not allowed for in the Contract Price;
- any excess incurred over the amount estimated or quoted by us to be incurred for supplying or delivering the Contract Goods, even where such excess results from an error or omission on our part, that are not included in the Contract Price.
- Unless we inform you otherwise, you must pay to us the Contract Price of Contract Goods before the Contract Goods are dispatched or Delivered to you.
- Where we issue you an invoice under a Contract, you must pay the full amount of the invoice on the same date as the invoice is issued as the full amount of the invoice will be immediately due and payable by you. You agree that our payment terms shall apply to the invoice and that your payment terms shall not apply.
- If you fail to pay an invoice in accordance with paragraph (b), this is an event of default (Event of Default) and the unpaid portion of the amount of that invoice becomes an Overdue Amount.
- You do not have any right to set-off an amount against a Debt or Overdue Amount and any Claim you believe that you have against us for monetary remuneration shall be made separately to your Obligations to make payment of a Debt under a Contract.
We may upon an Event of Default:
- charge interest at the rate of 4% per month on any Overdue Amount until the Overdue Amount is paid;
- demand that any Goods supplied to you under a Contract be returned to us and, where you fail to return those Goods within 7 days of such demand being made, repossess those Goods;
- institute legal proceedings to recover an Overdue Amount plus interest and all legal costs (on a solicitor and own client basis) incurred by us in the course of those proceedings; and/or
seek indemnity for:
- any and all costs incurred by us in taking any action under this clause; and
- any Claims against us that arise from us taking any action under this clause; and/or
- prosecute any action we are entitled to prosecute against your directors or guarantors without first proceeding against you.
- Payment can be made to us by cash, EFTPOS, direct deposit or credit card.
- We do not accept payment by American Express.
- We may accept payment by money order on occasion at our sole discretion.
If you have made a credit application to us and have been granted different payment terms to those stipulated above, the payment terms stipulated in your “Credit Acceptance Letter” will apply until such time as we revoke your entitlement to credit, which may occur entirely at our discretion.
- You may arrange with us to collect Contract Goods from us or have those Contract Goods delivered to you.
- If you wish to have Contract Goods delivered to you, you must request us to deliver the Contract Goods to you and inform us of your proposed site for Delivery of the Contract Goods.
Where you request us to deliver Contract Goods to you:
- we may, at our sole discretion, charge you a Delivery fee in addition to the price for those Contract Goods, thereby allowing for any repeated attempts at Delivery;
- you must fully prepare your nominated site for Delivery;
- you must allow sufficient access to the site for Delivery;
- you will accept Delivery of Contract Goods in accordance with the Contract;
- if you fail to accept Delivery of Contract Goods or provide sufficient access to the site for Delivery, you will be liable for any costs incurred by, or losses suffered by, us on account of your failure to do so;
- all risk of, and liability for, damage to Contract Goods passes to you when those Contract Goods are dispatched to you from our Business Premises;
- we will not be liable for any costs incurred by, or losses suffered by, you as a result of late Delivery of the Contract Goods, inability to access the nominated site, or any obligations incurred by you in reliance on any expected Delivery date; and
- your acceptance of Delivery is acknowledgement of the fact that there are no defects or damages to the Goods delivered and that you have received all parts and components of the Contract Goods including, without limitation, assembly instructions.
- Where you or another party on your behalf collects Contract Goods from us, all risk of, and liability for, damage to those Contract Goods passes to you upon commencement of the loading of those Contract Goods to your or that other party’s vehicle from our Business Premises.
10. Retention of Title/Purchase Money Security Interest
- Ownership of Contract Goods does not pass to you until you have fully paid for those Contract Goods.
- Until Contract Goods are fully paid for, we have an irrevocable Right to enter and remain on any place or premises where those Contract Goods are stored or located at any time to inspect them and/or to recover their possession.
- Until Contract Goods are fully paid for, you may only resell Contract Goods with our express written consent.
- If you deal with Contract Goods in a manner inconsistent with paragraph (c), we are entitled to claim the sum the greater of $25,000 or 50% of the value of the Contract Goods as liquidated damages from you, which sum is payable immediately and in addition to any Debt.
- We will only consider consenting to a resale of Contract Goods before full payment of those Contract Goods if the sale is for full market value and in the ordinary course of your business. The proceeds of any sale of Contract Goods by you in accordance with this clause must be held in a separate account on trust on our behalf.
- Any sale of Contract Goods by you before full payment of those Contract Goods is completed in your own right and not as our agent and you must hold us harmless and fully indemnify us from any Claims made against us by the recipient of the resold Contract Goods or any other party to the transaction.
- Any Rights against the recipient of the resold Contract Goods arising as a consequence of the sale or resale of Contract Goods will be enforceable by us and you will assign in writing to us any such Rights upon request by us.
- You must, on request, disclose to us all relevant information regarding the resale of Contract Goods by you.
- You must inform us immediately of any levy or execution by any party against Contract Goods, to which ownership remains with us.
You acknowledge and agree that pursuant to a Contract and for the purposes of the PPSA until we have received full payment for Contract Goods:
- you grant us a security interest in all Contract Goods delivered or dispatched to you and all Rights in relation to any proceeds;
- the Contract Goods shall constitute collateral under the PPSA for our security interest;
- if the Contract Goods become fixtures then you acknowledge and agree that we shall be entitled to claim any proceeds to the full extent permitted by law;
if you incorporate or mix the Contract Goods with any other items to create new products (the Products) such that the Contract Goods are not a readily identifiable and removable part of the Products, then:
- you will store the Products separately so as to be readily identifiable;
- we are vested with ownership of the Products;
- paragraphs (j)(i)-(iii) will apply as if references to Contract Goods were references to the Products; and
- we retain a security interest in the Products and the proceeds;
- You must immediately inform us in writing of any levy or execution or security interest claimed or asserted by any party against Contract Goods.
Termination by you
- You may terminate a Contract upon written notice to us sent by registered post to our head office at 77 Caloundra Street, Landsborough QLD 4550 therein stating the date of termination and reason for terminating. For purchase order & commercial customers only.
- If you terminate a Contract before we commence ordering parts for and producing the Contract Goods, you will not be liable to pay us the price of those Contract Goods; however, you will still be liable to pay us any expenses incurred to process your order.
- If you terminate a Contract after commencement of manufacture of the Goods relating to that Contract, you will still be liable to pay us all Debts, Overdue Amounts and a cancellation fee equal to the greater of fifty percent of the price of those Goods or a % commensurate with the progress of manufacture of those Goods.
Termination by us
- We may terminate a Contract immediately upon notice to you in any form at any time and for any reason including, without limitation, where the Customer has been underquoted or is in breach of the Customer’s obligations under a Contract.
- Our only liability to you upon termination of a Contract is limited to refunding payments made in advance for Goods not yet delivered to you less any Debt owing by you to us.
12. Intellectual Property
- If you provide us with specifications, designs, plans, descriptions, prototypes, samples, tooling or components (Specifications) to enable us to custom design, manufacture or supply Goods, you agree to indemnify us against any claims, actions, demands, costs, damages, or expenses arising from or incurred by reason of any infringement of any IP or confidential information arising from the supply or use of such Specifications.
- We are not required to defend any action, Claim, or demand or to contest any costs or expenses covered by this indemnity before we are entitled to invoke the indemnity under paragraph (a).
- Any IP vested in Goods remains our property.
- Only a limited licence to use IP in the most limited extent necessary to enjoy the benefit from Goods for which they are designed is included in the provision of Goods irrespective of whether payment for any Goods includes an amount for design or production.
- All instruction manuals, instructional DVDs, engineering plans, documents, information systems and know-how provided or disclosed to you by us must be treated as confidential
- by you and you warrant not to lend, copy, use, dispose of or sell such instruction manuals, instructional DVDs, engineering plans, documents, information systems and know-how without the prior written consent of the board of directors of Yogerhum.
- We expressly disclaim, to the fullest extent permitted by law, all express, implied and statutory warranties.
Any warranty as to the condition of Goods will be void where any instruction or recommendation given by us in respect of those Goods via our website (https://www.yogerhum.com/) or via any one of the following of our publications is not strictly adhered
- booklet entitled ‘Assembly Instructions’;
- DVD entitled ‘Assembly’;
- videos uploaded by Yogerhum to Youtube online.
14. Complaints/Limitation of Liability
If you have a genuine grievance with any Contract Goods you must notify us in writing by completing our Complaint form and delivering it, together with proof of purchase, to us (Complaint). We will then consider the merits of your Complaint and at our sole discretion:
- repair or replace any Contract Goods;
- provide a partial refund for those Contract Goods; and/or
- decline to provide any remedy contained in this clause.
- You will be liable for all reasonable travel expenses incurred by us to repair or replace any Contract Goods under paragraph (a)(i).
- Where any statutory warranties may not be excluded, our liability is limited to an amount equal to the cost of replacement of the Contract Goods subject to the statutory warranty.
We are not obliged to repair or replace any Contract Goods supplied to you, or to uphold a warranty for those Goods, where those Goods are damaged, either wilfully or unintentionally, by or in connection with:
- an accident or collision;
- fire, winds or lightning;
- temperatures or force that the Goods cannot withstand;
- a natural disaster, including but not limited to, fire, flood, tsunami, earthquake, tornado or cyclone;
- your inability to maintain a suitable environment for the Contract Goods;
- neglect, negligence or misuse;
- the use of replacements parts not approved by us;
- a device, whether electronic or otherwise, used to operate the Goods, unless supplied or installed by us;
- use of Contract Goods outside ordinary conditions and purposes;
- servicing, maintenance or repair of the Goods not conducted by our personnel;
- your failure to service, maintain, store or otherwise deal with Goods strictly in accordance with our instruction manuals, specifications and verbal instructions; or
- other acts or events beyond our control.
We will not be liable for any damage, loss, expense, charge or cost incurred by you as a consequence of:
- erection, installation, assembly or storage of Contract Goods except where performed by us or performed by another party strictly in accordance with our instruction manuals, specifications and verbal instructions;
- incorrect measurements or specifications given by you to us for custom made Goods;
- lack of approval from local government or another relevant authority regarding the erection, installation, assembly or storage of Contract Goods;
- failure of the Contract Goods to comply with requirements imposed by local government or other relevant authorities;
- any delay by us to supply Contract Goods to you, whether caused by breakdown, accident, collision, termination of a Contract by you, termination of a Contract by us or otherwise;
- any injury or death to a person; or
- any damage to property whether caused directly or indirectly by us or any employee, agent or other person on our behalf.
You must fully indemnify us against any Claim that becomes due and payable by us under a Contract or as a result of entering into a Contract and arises from or in connection with:
- any injury or death to a person; or
- any damage to or theft of Goods or property.
15. Dispute Resolution
- If, after you have delivered a completed Complaint form to us and we have taken action under subclause 14(a)(i)-(iii), you consider there is a Dispute then before seeking arbitration or commencing other legal proceedings you must give us notice in writing setting out full details of the dispute (Dispute Notice).
- The Parties agree that, for a period of 14 days after a Dispute Notice is given (or a longer period if the Parties agree in writing), the Parties will engage in negotiations in order to seek to resolve the Dispute.
- The Parties must participate in Dispute negotiations and use all reasonable endeavours to resolve a Dispute.
- The Parties may also appoint third party consultants to assist in the resolution of a Dispute.
If the Parties cannot resolve a Dispute within the period stated in paragraph (b), the Dispute may be referred to:
- mediation provided that you undertake to pay and do pay all mediation costs and that the Parties agree to refer the matter to mediation and to the appointment of a particular mediator; or
- a court of competent jurisdiction or an adjudicator with jurisdiction to determine the Dispute, such referral being made by either of the Parties.
16. Site Clean Up
- If we, Yogerhum deliver and install Goods, we will remove from the delivery address all plant, equipment, demolished material, rubbish and surplus material associated with the installation of the Goods.
- All demolished and surplus material associated with the installation of the Goods will, upon installation of the Goods, become our property unless the Parties agree otherwise in writing.
18. Illegality and Severability
So far as possible a Contract will be construed so as not to be invalid, illegal or unenforceable but if any provision on a proper construction is illegal, invalid or unenforceable:
- that provision will be read down to the extent necessary to ensure that it is not illegal, invalid or unenforceable and in such manner as may be reasonable in all the circumstances so as to give it a valid operation of a partial character; or
- (a) if the provision or part of it cannot be read down in a manner that will give it a valid operation, then the provision or relevant part will be deemed to be void and severable and the remaining provisions of this document will not in any way be affected or impaired.
- You agree that the laws of Queensland apply to a Contract regardless of your business location, residential location, the location nominated for delivery of any Goods or any other factor.
- In consideration for Yogerhum supplying Goods to you, the Guarantor identified on page 12 and/or execution page 13 unconditionally and irrevocably guarantees to Yogerhum the Customer’s performance of the Customer’s Obligations under a Contract and the payment of all monies owing at any time by the Customer to Yogerhum, whether owing under a Contract or otherwise.
- Description, supply, installation of any Yogerhum products by an approved Yogerhum reseller to an individual or company are bound by the resellers own terms of trade.