Any agreement between you and Hamilton Plains Turf Pty Ltd (ABN 89 628 208 695) trading as Hamilton Plains Turf (“HPT”) determined to be a Trade Contract is made on these Conditions to the exclusion of all other Conditions. By placing your Order, you agree to these Conditions.

1.0 DEFINITIONS

1.1 “Cancellation and Return Policy” means the Policy set out in Clause 10.

1.2 “Carrier” means a third party engaged by HPT to deliver the Turf.

1.3 “Force Majeure Event” means fires, explosions, severe weather, industrial disputes (of HPT’s own or other employees), insurrection, riots, embargoes, raw material shortages, delays in transportation, requirements or regulations of any civil or military authority, war (whether declared or not), civil unrest and terrorist action

1.4 “Order” means your offer to purchase Turf from HPT.

1.5 “Premises” means the farm located at the Corner of Bruce Highway and Shute Harbour Road, Proserpine, Queensland, Australia.

1.6 “Trade Contract” means a contract subject to the conditions outlined in Clause 2.

1.7 “Trade Customer” means someone eligible to enter a Trade Contract.

1.8 “Turf” means the items you order from us as detailed on the Order including turf of one of the varieties available from time to time for purchase from HPT and/or any additional items available to purchase from HPT. It should be noted that Turf is a growing and changeable product.

1.9 “Website” means http://hamiltonplainsturf.com.au/

 

2.0 TRADE CONTRACT

2.1 You may enter a trade contract if you are a frequent purchaser of Turf such as a landscaper, builder, property developer or other such customer.

2.2 You will be required to provide the following details when placing your first Order:

2.2.1 Name, address and contact telephone number for the Trade Customer;

2.2.2 Email address if you request communication by email; and

2.2.3 Any other details reasonably requested by HPT for the purposes of a credit check.

2.3 You will begin at a credit limit as determined by HPT. This may be increased from time to time by written agreement.

 

3.0 PLACING AN ORDER

3.1 You may place an Order for Turf by telephone, email or by attending our Premises. You will need to provide the following details:

3.1.1 Contact name and contact telephone number for the invoice;

3.1.2 Address for the delivery (if required);

3.1.3 Date on which you request delivery/ collection subject to the availability of HPT and/or the Carrier;

3.1.4 Additional delivery instructions and other details that should be made known to HPT and/or the Carrier and other details which HPT may request; and

3.1.5 Email address if you request communication by email.

3.2 After placing the Order, you may request an email confirming the details of the Turf ordered. No such email will be sent unless you request one.

3.3 No agreement exists between you and HPT until you have placed an Order.

 

4.0 PRICE

4.1 All prices quoted are valid for 30 days from the date of the quotation.

4.2 Quotations and estimates are given without commitment. All Orders are subject to availability. Quotations are subject to alteration and/or withdrawal by us provided that notification of the alteration and/or withdrawal will be given to you.

4.3 Quotations for the price of Turf are provided based on postcode and quantity, or collection date and quantity. The price will be confirmed before you place your Order and in the event of a discrepancy between the two prices, the price on the quotation shall prevail.

4.4 The price is inclusive or exclusive of delivery service as stated in the Order.

4.5 HPT reserves the right to increase prices of any item from time to time. However, where the price of Turf and/or delivery charges changes between Order and delivery or collection, the price and/or charge will be as recorded on the Order.

4.6 Unless otherwise stated, the price is exclusive of any GST payable.

 

5.0 PAYMENT

5.1 The amount payable by you shall be the total price of the Turf and the applicable delivery charges as set out in Clause 4.4. When an “Acknowledgement of Order” email is sent out as described in Clause 3.2, it will confirm the price paid by you.

5.2 Payment can be made by credit, debit card, or cash.

5.3 You will be invoiced at the end of each week for the Orders made within that week, or when you have reached your credit limit.

5.4 You are required to pay each invoice within 7 days of the date of the invoice, except as agreed in writing by HPT.

5.5 We reserve the right at any time to charge interest on a day to day basis (at an annual rate of 2% over the interest rate charged on unsecured overdrafts up to $100,000.00 by the Westpac Banking Corporation) from the due date on late payments and as well as after and before any judgment.

5.6 We reserve the right to suspend or terminate any Orders until overdue invoices are paid.

 

6.0 SUSPENSION AND TERMINATION

6.1 If:

6.1.1 you breach any agreed payment terms including any credit limit;

6.1.2 you are in breach of the Contract or any other contract with us; or

6.1.3 any event conferring a right of termination under 6.2 below shall have occurred;

then in any such case we shall be entitled (without prejudice to our other rights) to suspend further performance of the Contract for such reasonable time as we shall deem fit and for this purpose to stop any Turf in transit to you.

6.2 We may suspend or cancel the whole or any part of the Contract due to the occurrence of a Force Majeure Event. If we exercise our right of suspension, you may within 7 days cancel any remaining part of the Contract; conditional on you paying expenses incurred to date and our fair charges. We shall have no liability for any such suspension; and on any such cancellation, whether by us or by you, our liability (if any) is limited to repayment of any part of the price received less our fair charges and any expenses already incurred by us.

6.3 We may by notice to you terminate our supply or service obligations if you are in breach of this Contract or any contract with us (such breach if remediable, not having been remedied with 7 days of notice from us) or any judgment against you is unsatisfied for fourteen (14) days or (being an individual) you die or commit any act of bankruptcy or (being a corporation) you enter into liquidation or receivership or administrative receivership, or you become unable to pay your debts or any event analogous to any of the foregoing shall happen in any other jurisdiction and any such termination shall be without prejudice to your obligations and our rights under the contract.

 

7.0 INSTALMENTS

7.1 If it is agreed that the Turf is to be collected or delivered in instalments each instalment shall be deemed to be a separate contract and no failure of or delay in delivery of one instalment nor any defect in the contents thereof shall entitle you to treat the Contract as repudiated with regard to any remaining instalments or shall entitle you to defer payment for any such remaining instalments.

7.2 If at any time payment is outstanding for Turf already delivered to you under such instalments, we reserve the right to suspend delivery under further instalments until payment has been received in full.

 

8.0 SPECIFICATIONS

8.1 Except where we specifically otherwise agree in writing, the selection and choice of the Turf and the assessment of the Good’s suitability and fitness for your purpose is your sole responsibility.

8.2 Any specifications, formulations, data, literature and statements as to grass rations, grass species, suitability, performance or otherwise, and descriptions and samples given by us in connection with Turf are offered in good faith but are intended to be approximate only and shall not constitute representations nor shall they become warranties or conditions of the contract.

8.3 Any advice or assistance, given by us in any way, in relation to the Turf is given as a gesture of goodwill only and we shall not be liable to you for any such advice or assistance and to the extent we become liable to you or any third party you agree to indemnify us for any losses, costs, damages etc. we may suffer as a result.

8.4 Natural products are subject to some variation in colour, size or texture therefore consistency in and between Orders cannot be guaranteed.

 

9.0 AVAILABILITY

9.1 HPT reserves the right to refund your payment in the event that the Turf ordered by you is unavailable and an alternative product is unacceptable by you.

 

10.0 COLLECTION

Where an Order is accepted for Turf requiring collection your Order will be processed and Clauses 10.1 to 10.4 shall apply:

10.1 You are required to collect the Turf on the date agreed in accordance with Clause 2.1.3 unless modified more than 24 hours prior to the collection date.

10.2 HPT cannot accept liability nor provide a refund/ alternate product for deteriorated Turf that was not collected in accordance with Clause 10.1.

10.3 HPT does not provide materials needed to properly secure your Turf. It is your responsibility to secure your load in accordance with the Queensland legislation contained in section 13Q of the Transport Operations (Road Use Management- Vehicle Standards and Safety) Regulation 2010 or Schedule 7 of the Heavy Vehicle (Mass, Dimension and Loading) National Regulation.

10.4 The risk for the Turf transfers to you when the Turf is loaded onto your vehicle for collection.

 

11.0 DELIVERY

HPT sub-contracts out every delivery to a Carrier. Where an Order is accepted for Turf requiring delivery your Order will be processed and Clauses 11.1 to 11.4 shall apply:

11.1 The Carrier will attempt to deliver the Turf on the delivery date agreed in accordance with clause 3.1.3 to the agreed delivery address, however circumstances outside the Carrier and HPT’s control may delay delivery.

11.2 Deliveries of Turf are made on pallets or unloaded manually. The Carrier will use all reasonable endeavours to place the Turf as close to your property as is deemed safe by the Carrier.

11.3 You must provide sufficient and safe access to the point of unloading. The Carrier is able to deliver Turf if you are not present, but in these circumstances, we cannot accept liability for any deterioration in or theft of any of the items delivered. Neither can we accept responsibility for the consequences of the positioning of the pallets by the Carrier. It is preferable that you are available at the delivery address to accept delivery.

11.4 Turf cannot be delivered to any address outside of Queensland, except as agreed in writing by HPT.

 

12.0 NON-DELIVERY

12.1 If the Carrier does not deliver Turf within 48 hours of the agreed delivery date, unless non-delivery is due to your failure to comply with the provisions of clause 11.3, you should contact HPT using the details available at our Website. You will then be given the option of:

12.1.1 cancelling your Order. HPT will then refund the price you paid in accordance with the Cancellation and Return Policy; or

12.1.2 arranging a revised delivery date, in which case clauses 8.1 to 8.4 shall apply to the revised delivery date.

12.2 HPT shall not be liable for any non-delivery of Turf unless notice is given to HPT within fourteen (14) days starting from the agreed delivery date. Such notice should be to the email or telephone number provided on our Website.

12.3 If for any reason (other than exercising your rights set out in the Cancellation and Return Policy to return the Turf) you will not accept delivery of the Turf or HPT is unable to deliver the Turf on time because you have not provided appropriate instructions, including but not limited to providing the correct delivery address on the Order or because you have failed to comply with clause 8.3, HPT may store the Turf until delivery whereupon you will be liable for all related costs and expenses.

12.4 In respect of Turf, if you will not accept delivery of the Turf for any reason (other than under clause 9.5), or HPT is unable to deliver the Turf because you have not provided appropriate instructions, including but not limited to providing the correct delivery address, or because you have failed to comply with clause 8.3, HPT may store the Turf in accordance with clause 9.3. However, due to the perishable nature of Turf, it may not be possible for HPT to store the Turf, and in the event that it is not possible to store and redeliver the Turf, HPT will not be able to refund any sums paid by you in respect of the Turf.

12.5 Where Turf cannot be delivered because of the circumstances detailed in clause 9.3 or 9.4 and you ask for the Turf to be re-delivered HPT reserves the right to make an additional delivery charge at the applicable rate set out in clause 3.5. In respect of Turf, HPT reserves the right to charge for replacement Turf in addition to the sums already paid by you in respect of the original Turf.

 

13.0 CANCELLATION AND RETURN POLICY

This clause 10 sets out HPT’s Cancellation and Return Policy. It sets out your rights to cancel your Order and return the Turf.

13.1 You may cancel or amend your Order at any point after you place your Order up to 24 hours prior to the agreed delivery or collection date by telephone or email only using the contact details on our Website. In good faith we will do what we can to accept your amendment to your Order.

13.2 Once you have notified us and we have agreed that you are cancelling or amending your Order before delivery, we will repay any sums paid by you for the Turf as soon as possible and in any event within fourteen (14) days of receiving your notice of cancellation or amendment.

13.3 We will not refund and/or accept the return of over-ordered Turf.

 

PLEASE NOTE THAT THE RIGHT TO CANCEL YOUR ORDER UNDER CLAUSE 10.1 DOES NOT APPLY TO TURF ONCE HARVESTED IN FULFILMENT OF YOUR ORDER AS IT IS PERISHABLE AND LIKELY TO DETERIORATE RAPIDLY.

 

13.4 All Turf must be inspected by you on delivery to your premises or to your delivery address and any alleged shortage or defect which should be apparent on inspection must be reported to us in writing within 48 hours. Defects not apparent on inspection must be notified in writing to us within five (5) business days. This clause in no way limits clause 10.5.

13.5 Due to its changing nature, any apparent shortage or defect in relation to Turf should be reported immediately upon inspection.

13.6 If HPT has not supplied the correct Turf, you should contact HPT using the details set out on our Website within 48 hours of discovering the error. If you agree to return the Turf at HPT’s expense, you may ask HPT to send you replacement Turf, or to repay any sums paid by you for the Turf within fourteen (14) days.

13.7 Turf is highly perishable and, if not laid promptly in accordance with the instructions given to you by HPT (and available on our Website) may deteriorate rapidly. Where the Turf is not rolled out immediately in spring/summer and within 24 hours in autumn/winter (or such other timescale as is advised by HPT), HPT will not accept responsibility for such deterioration, and will not accept a return of the Turf due to such deterioration. It is therefore your responsibility to ensure that you are able to lay the Turf before agreeing on a delivery or collection date.

13.8 You should also be aware that the ongoing condition of Turf will be dependent on factors beyond HPT’s control including (without limitation) weather conditions or unintended blown or animal/bird carried seed and will also depend on your care of the Turf after delivery or collection. While HPT shall be liable for any failure of the Turf to comply with these Conditions or your statutory rights, you will not be able to return the Turf because of any defects arising after delivery or collection, whether due to your failure to care for the Turf in the manner advised by HPT or due to external factors.

 

14.0 RISK AND PROPERTY

14.1 Risk of damage to, or loss of, the Turf shall pass to you upon delivery or collection of the Turf.

14.2 Ownership of the Turf shall not pass to you until HPT has received in full (in cleared funds) all sums due to it in respect of the Turf and all other sums which are or which become due to HPT from you on any Order.

 

15.0 LIABILITY

15.1 HPT will not be responsible for any losses suffered by you which were:

15.1.1 not foreseeable to HPT and you when you placed your Order; or

15.1.2 not caused by any breach on the part of HPT.

15.2 Nothing in these Conditions excludes or limits the liability of HPT for fraudulent misrepresentation or death or personal injury caused by the negligence of HPT or its employees.

15.3 In circumstances where Turf have been used (or were intended for use) for purposes related to your trade, business or profession and you are not acting as a consumer, the following limitations of liability shall apply:-

15.3.1 HPT will not be responsible for any consequential loss or damage including (without limitation) loss of profit, loss of business, loss of contracts, loss of opportunity, loss or depletion of goodwill, costs or expenses (whether arising in contract, tort, negligence, breach of statutory duty or otherwise) that might arise.

15.3.2 Subject to clauses 12.3.1, 12.1 and 12.2, HPT’s maximum total liability to you in respect of all losses (whether arising in contract, tort, negligence, breach of statutory duty or otherwise) shall not exceed the total sums paid by you to HPT under this Agreement in respect of the relevant Turf.

 

PLEASE NOTE THAT HPT ACCEPTS NO LIABILITY FOR ANY LOSS OR DAMAGE WHICH MAY OCCUR IF THE TURF IS NOT ROLLED OUT IMMEDIATELY IN SPRING/SUMMER AND WITHIN 24 HOURS IN AUTUMN/WINTER

 

15.5 HPT cannot be held responsible for any failure to deliver the Turf due to anything that is beyond its reasonable control including but not limited to a Force Majeure Event. HPT shall have no liability towards you for any loss or damage that you may suffer as a result of circumstances beyond HPT’s reasonable control.

 

16.0 GENERAL

16.1 Failure or delay by HPT in enforcing or partially enforcing any provision of these Conditions will not be construed as a waiver of any of its rights under them.

16.2 Any waiver by HPT of, or any default under, any provision of these Conditions by you will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of these Conditions.

16.3 HPT reserves the right to defer the date of performance or cancel any agreement under these Conditions without liability to you if it is prevented from or delayed in the carrying on of its business due to circumstances beyond HPT’s reasonable control provided that if the event in question continues for a continuous period in excess of 30 days, you shall be entitled to give written notice to HPT to cancel such agreement and obtain a refund of any sums paid.

16.4 Any notice required to be given to HPT shall be in writing and sent by post or by email to the contact details available at our Website unless otherwise notified. Any notice required to be given to you by HPT shall be in writing and sent by post or email to the addresses that you provided when ordering the Turf, unless otherwise notified.

16.5 You agree with HPT that any agreement made under these Conditions is between you and HPT only and it is not intended to be enforceable by any other person who is not a party to it.

16.6 These Conditions shall be governed by Queensland and Australian law. You submit and HPT submits to the non-exclusive jurisdiction of the Queensland Courts.

16.7 Any provision of these conditions held by a court of law to be invalid shall be severable and shall to the extent necessary to prevent such invalidity be deemed to be omitted from these conditions and any liability which would otherwise have been excluded or limited shall nevertheless be subject to the remaining provisions of these conditions.

16.8 Any agreement between you and HPT is made under these Conditions, and includes, the descriptions of the Turf as provided by us on our Website, the Order, and the Cancellation and Return Policy. Together these constitute the entire agreement and understanding of you and HPT and supersede any previous agreement between you and HPT relating to the subject matter of such agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for fraudulent misrepresentation.

16.9 You may contact us by telephone or email via the contact details available at our Website.

16.10 You acknowledge that HPT may change these Conditions from time to time. The terms which apply to your purchase of the Turf will be the Conditions which were in force on the date you place/d your Order.