1. Definitions and Interpretation 

1.1 Definitions 

In these Standard Conditions, the following terms have the meanings set out below: 

Avocado Expandable Sheds Group means the Company and: 

(a) any Related Body Corporate of the Company; 

(b) any unincorporated Joint Venture in which the Company or any Related Body Corporate of the Company has a participating interest of not less than 50 per cent; and 

(c) any body corporate or unincorporated Joint Venture managed by the Company or any Related Body Corporate of the Company. 

Business Day means a day on which banks are open for business in Brisbane, Queensland, Australia except for the purposes of clause 22.2. 

Claim means any action, suit, proceeding or demand of any kind. 

Company, Avocado Expandable Sheds, We, Our and Us each means Avocado Homes Australia Pty Ltd ACN 606 792 983 trading as Avocado Expandable Sheds and Homes, a member of the Avocado Expandable Sheds Group (even if not a company) or other person (as identified in the Quotation) responsible for supplying the Services and/or supplying the Goods (as the case may require).  

Company Representative means the representative of the Company identified in the Quotation or any other person authorised by the Company from time to time. 

Confidential Information means the Contract and any information (in whatever form) or Documentation of a confidential nature (or which the Company or its Personnel ought reasonably to know to be confidential) which relates to the business, affairs or activities of the Customer or an End User (including in relation to the Services) and which: 

(d) is disclosed to the Customer or its Personnel by or on behalf of the Company; 

(e) is generated by the Customer or its Personnel in supplying the Services; or 

(f) otherwise comes to the knowledge of the Customer or its Personnel. 

Contract means the following documents: 

(g) Quotation 

(h) any special conditions and attachments,  

(i) these Standard Conditions of Supply, and 

(j) Our Policies. 

Contract Price means: 

(k) if it is a fixed price, the amount payable (excluding Taxes payable in accordance with clause 10) by the Customer to the Company in relation to the Services and/or Goods as set out in a Quotation, or 

(l) alternatively, such amount as calculated by reference to the Goods supplied and for the Services, and costs incurred or as otherwise specified in the Quotation, and 

as adjusted by clause 9 (Contract Price), clause 10 (for Taxes) and any other clause in this Contract. 

Corporations Act means the Corporations Act 2001 (Cth). 

Customer, you and your means the customer named in the Quotation. 

Customer Representative is, initially, as defined in the Quotation and includes: 

(m) the Customer; or 

(n) such other person as the Customer may, in writing to the Company, substitute for that representative. 

Delivery Date means the date/s specified in the Quotation for delivery of each of the Services and the Goods (where applicable). 

Delivery Point means the place/s identified in the Quotation for delivery of each of the Services and Goods (where applicable) or as otherwise agreed by the parties. 

Dispute means any dispute, question or difference of opinion between the Company and the Customer arising out of or under the Contract. 

Documentation includes plans, designs, drawings, calculations, engineering information, data, Specifications, sketches, notes, samples, reports, maps, accounts, operating manuals, training materials and any other material specified in the Contract (and whether embodied in tangible or electronic form). 

End User means either the Customer or an entity identified in the Contract (or notified to the Company by the Customer) to whom the Customer provides goods and/or services comprising or derived from, in whole or in part, the Goods and Services. 

Excise Duties means any tax imposed, claimed, levied or assessed by or payable to any Government Agency in relation to the production or manufacture of Goods. 

Facilities means any accommodation, sustenance, transportation, medical or toilet facilities. 

Force Majeure means an event or cause or contributing factor which is beyond the control of the Party claiming force majeure, not able to be overcome by the exercise of reasonable care, proper precautions and the consideration of reasonable alternatives with the intention of avoiding the effects of the force majeure by that Party, and which could not have been reasonably foreseen, and includes (subject to satisfying the requirements of the foregoing): 

(o) Act of God, earthquake, cyclone, typhoon, tornado, hurricane, fire, explosion, flood, landslide, lightning, storm or other adverse weather conditions, tempest, drought ,fire or meteor or meteorite, magnetic or solar event, emergency (declared or not) ,and other heavy and inclement weather or other event that adversely affects such things as (but is not limited to) the internet and world wide web, electronic and other forms of communications, computer hosting, computer functions, electricity and other essential services, manufacturing processes, treatment processes, transportation, supply chain processes, delivery, installation, construction, erection, commissioning, repairs, servicing and decommissioning and all other types of business interruptions; 

(p) War (declared or undeclared), invasion, act of a foreign enemy, hostilities between nations, civil insurrection or militarily usurped power; 

(q) Act of public enemy, sabotage, malicious damage, terrorism or civil unrest; 

(r) Confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government or government authority; 

(s) Industrial action of any kind not specific to the Party claiming the force majeure;  

(t) A breakdown or failure of equipment; 

(u) Contamination of any kind,  

(v) Health related events (including declared health emergencies, local and large scale outbreaks of contagions, infections, diseases, illnesses, epidemics and/or pandemics (whether natural, artificial, physical , mental or a combination of things),  and   

(w) An act or omission of a third party that could not have been reasonably prevented or avoided by the Party claiming the force majeure. 

Goods means the goods (if any) identified in the Quotation that are to be supplied by the Company and, where applicable, includes any other goods associated with the supply of the Services. 

Government Agency means any government or governmental, semi-governmental, administrative, municipal, fiscal or judicial body, department, commission, authority, tribunal, agency or entity. 

Indirect Transaction Taxes means any value added tax, goods and services tax or similar tax including, without limit, sales, use or consumption taxes, imposed, claimed, levied or assessed by, or payable to, any Government Agency, but does not include any related penalty, fine or interest thereon. 

Input Tax Credit means any entitlement to a credit for, or offset against, reduction in or refund of, Indirect Transaction Taxes, in relation to any acquisition or the receipt of any supply. 

Intellectual Property Rights and IPR means all industrial and intellectual property rights whether protectable (or no) by statute, at common law or in equity, including all copyright and similar rights which may subsist or may hereafter subsist in works or any subject matter, rights in relation to inventions (including all patents and patent applications), trade secrets and know-how, rights in relation to designs (whether or not registerable), rights in relation to registered or unregistered trade marks, circuit layout designs and rights in relation to circuit layouts, but excludes non-assignable moral rights and similar non-assignable personal rights of authors and producers. 

Liabilities means damages, Claims, losses, liabilities, costs and expenses of any kind including but not limited to: 

(x) loss of profit, data, business contracts, revenues or anticipated savings; or 

(y) loss resulting from any claim made by any third party; or 

(z) special, indirect or consequential loss or damage of any nature whatsoever. 

Party means a party to the Contract. 

Personal Information has the meaning given in the Privacy Act. 

Personal Information means the Personal Information that one party transfers to the other party from time to time in connection with the Contract. 

Personnel means: 

(aa) in relation to the Company, any of its officers, employees, agents and representatives, contractors, successors, assignees and others acting for The Company and/or its related entities (if any).; and 

(bb) in relation to the Customer or an End User any of its past or present officers, employees, agents or representatives. 

Privacy Act means the Privacy Act 1988 (Cth). 

Policy means one or more of our policies in relation to any of the things in these Standard Conditions of Supply Including (without limiting) the following: 

(cc) Warranties; 

(dd) Pricing and Payments; 

(ee) Delivery, and 

(ff) Returns and Refunds. 

Process means collect, hold, use, transfer, destroy and any other dealing. 

Quotation or Quote means an individual quotation or estimate and any invoice issued by the Company to the Customer in respect of the supply of Services or the provision of Goods which shall be subject to the terms of the Contract and includes, where applicable, a variation in accordance with clause 9. 

Related Body Corporate has the meaning given in the Corporations Act. 

Services means the work identified in the Quotation to be supplied (and includes any supply of any incidental goods not specified but otherwise required in accordance with the Contract). Such work may include (but is not limited to) induction, training, design, modelling, construction, erection, demolition, excavation and tunnelling, installation, earthworks, transportation, electrical works, delivery, commissioning, testing, compliance, audit, repair, maintenance, remediation, hire and/or operation of machinery. 

Site means the Customer’s premises, or such other location specified. 

Specifications means the specifications for the Services and Goods (as applicable) and any modification of those specifications. 

Tax or Taxes means, unless the contrary intention is expressed, any and all taxes, including, without limitation, Indirect Transaction Taxes, excise, stamp, documentary, customs, import/export, payroll, personal, property, real property, interest equalisation, business, occupation, turnover, income, corporation, capital, profits, gains, gross receipts, or other taxes, fees, withholdings, imposts, levies, duties or other charges of any nature whatsoever or whensoever, together with any penalties, fines or interest thereon or similar additions thereto, imposed, levied or assessed by any Government Agency or otherwise payable. 

Tax Invoice means an invoice or other document, including, without limit, a credit note or debit note, in a form that is valid under the applicable law of the jurisdiction in which a liability to pay Indirect Transaction Taxes is imposed, claimed, levied or assessed, which must be held by a person for that person to be able to claim Input Tax Credits. 

Warranty Period means (as applicable) the period identified as such in the Quotation or, where such period is not identified in the Quotation, the period of 1 year following the receipt of any particular Goods by the Customer. 

1.2 Interpretation 

Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise. 

(a) The singular includes the plural and conversely. 

(b) A gender includes all genders. 

(c) If a word or phrase is defined, its other grammatical forms have a corresponding meaning. 

(d) The meaning of general words is not limited by specific examples introduced by “including” or “for example”. 

(e) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes all of them. 

(f) A reference to a person or a Party includes a reference to that person’s or Party’s executors, administrators, successors, substitutes (including persons taking by way of novation), assigns (in the case of a person) and permitted assigns (in the case of a Party). 

(g) A reference to an Act or legislation, includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it. 

(h) A reference to “use”, in the context of dealing with Intellectual Property Rights, includes using, exploiting, copying, adapting, creating derivate works, developing, modifying, disclosing and communicating. 

(i) A reference to conduct includes, without limitation, an omission, statement or undertaking, whether or not in writing. 

2. Precedence of Documents etc 

2.1 Precedence of Contract documents 

If there is any conflict or inconsistency between the documents constituting the Contract, unless otherwise provided, the documents will rank in order of precedence in accordance with the order in which they are listed in the definition of Contract. 

2.2 Entire agreement 

(a) The Contract contains the entire agreement between the Customer and the Company with respect to its subject matter and supersedes all prior communications and negotiations between the Customer and the Company in this regard, unless those communications expressly form part of the Contract. 

(b) No terms or conditions submitted by the Customer that are in addition to, different from or inconsistent with those contained herein, including, without limitation, the Customer’s printed/published terms and conditions and any terms and conditions contained in any Customer’s purchase order, order acknowledgment, confirmation, acceptance, bill of lading or other instrument, shall be binding upon the Company unless specifically and expressly agreed to in writing and signed by a duly authorised representative of the Company. 

2.3 Amendment to be in writing 

No amendment or variation of the Contract is valid or binding on a Party unless made in writing and signed by the Company and the Customer, as the case may be. 

2.4 Policy Documents 

The Company issues Policy documents from time to time. The Standard Terms of Supply override any inconsistency with a Policy. A Policy is subject to revocation or change at the Company’s discretion without notice at any time, but any change will not apply retrospectively. 

3. Terms of Supply  

3.1 The Company is an Agent Not a Supplier, Importer or Manufacturer 

(a) Supplier includes a retailer, reseller, supplier, importer and/or manufacturer. 

(b) The Company in arranging for the supply of any Goods or Services (including quoting, providing information, providing advice (if any), arranging for delivery and/or installation or collection, and the physical supply of goods and/or the provision of associated services) to you or any third party (including End User) at your request will do so/does so as agent of the relevant supplier only unless it specifically states otherwise. Any services provided by the Company are also provided in its capacity as agent of the relevant supplier unless it specifically states otherwise.  

(c) On no account is the Company a supplier in its own right except where the Company expressly states otherwise in writing. 

3.2 Release from Liability as agent 

(a) To the fullest extent permissible at law, the Company is irrevocably and unconditionally released from any and all Liability to each person or organisation: 

(i) In connection with the supply of Goods and Services where it is acting as agent for the relevant supplier, and 

(ii) using any Information provided by the Company as a result of any information being incorrect or incomplete. 

3.3 Arranging for Supply 

The Company must arrange for the supply the Goods and the Services in accordance with the terms of the Contract and in consideration of the payment of the Contract Price by the Customer. 

3.4 Terms  

Unless otherwise stated in writing by the Company in the Quotation or elsewhere, the following are the terms for payment and credit: 

(a) For all orders the Company requires a nonrefundable deposit and additional progress payments. Pricing and Payments Policy applies.

(b) Credit accounts, where approved, will require payment in full within 30 days from the date of shipment of Goods, unless prior written agreement has been made to vary these terms. If the Customer does not have an approved credit account with Avocado Expandable Sheds, then the total amount of the order will be payable prior to dispatch. 

3.5 Quotation Valid for 7 days 

Unless otherwise stated in writing by the Company in the Quotation or elsewhere, prices are valid for 7 days from the date of the Quotation and shipment is normally up to 18 weeks from receipt of an order. 

4. Company Standards of Supply and Customer’s Warranty 

4.1 Company’s warranties 

In addition to the warranty contained in clause 5.2, the Company warrants that: 

(a) all of the Services will be provided in accordance with all applicable legislation and laws or regulations; 

(b) all of the Services will be in accordance with any applicable standards set by the Standards Association of Australia, and 

(c) in relation to the provision of Goods IF AND ONLY IF, Avocado Expandable Sheds is the manufacturer (actual or deemed) of the Goods: 

(i) the Goods will be of merchantable quality; 

(ii) the Goods will be free from defects in design, materials and workmanship, and suitable for the relevant purpose of those Goods; and 

(iii) the Company has good and marketable title to the Goods and the Customer will receive title to the Goods free of any charge or encumbrance; 

4.2 The Customer warrants all information and materials forming part of any offer, tender or order are true and correct in every respect and are not misleading or deceptive, and the Customer has prior to entry into the Contract provided to, and not withheld from, the Company any information concerning the Customer, its experience or expertise which might reasonably be supposed to be material to the Company in determining whether or not to provide the Services and/or Goods or the price at which or the terms on which the Company would be prepared to provide the Services and/or Goods. 

5. Warranty for Goods and Services 

5.1 Correction of deficient Services 

Upon receipt of a notice from the Customer Representative during the Term of any deficiency in the Services (except for a defect in any of the Goods in respect of which clauses 5.2, 5.3 and 5.4 apply), the Company must assess or arrange to be assessed if there has been a deficiency and if in its reasonable opinion there has been a deficiency then correct such deficiency (including by way of providing such additional services necessary to correct such deficiency) at no cost to the Customer. 

5.2 Warranty of Goods 

If Avocado Expandable Sheds is the manufacturer (actual or deemed), it warrants each of the Goods against a defect in manufacturing which becomes apparent during the Warranty Period. 

5.3 Commencement of Warranty Period 

In respect of each of the Goods, the Warranty Period will commence on and from the date that each of the Goods is received at the Delivery Point by the Customer. 

5.4 Rectification of defects 

Upon receipt of a notice from the Customer Representative of any defect in any of the Goods during the Warranty Period due to a defect in manufacture then IF AND ONLY IF Avocado Expandable Sheds is the manufacturer (actual or deemed) of the Goods: 

(a) Defective equipment will be repaired or replaced at its option, free of charge, provided that the faults are solely due to a defect in manufacturing;  

(b) Damage caused by misuse, accident, abuse, faulty installation, mishandling or damage in transit is not covered by warranty;  

(c) Freight costs will be charged to the Customer. No Goods will be accepted unless freight has been prepaid by the Customer;  

(d) Avocado Expandable Sheds reserves the right to apply handling charges or inspection charges in the case of Goods improperly returned as defective, and/or being in warranty, and 

(e) Avocado Expandable Sheds reserves the right to reject any claim if, in its opinion, the Goods have been subjected to misuse or neglect. 

Note: All consumable items are excluded from this warranty. 

6. Customer Support 

6.1 Avocado Expandable Sheds provides internet support for the purchase of Goods.   

7. Representatives 

7.1 Supply 

The Goods and Services will be supplied in accordance with the Contract and in accordance with any reasonable directions of the Customer Representative pursuant to the provisions of the Contract. 

7.2 Customer Representative 

The Customer Representative is responsible for giving directions for and on behalf of the Customer as provided in the Contract and the Customer Representative will have full power to legally bind the Customer in respect of all matters arising out of the Contract. 

7.3 Company Representative 

The Company Representative is responsible for liaising with the Customer Representative. 

8. Delivery, Title and Risk 

8.1 Delivery 

The Company will arrange at the Customer’s cost for the Goods and/or Services (if applicable) to be delivered to the Delivery Point. 

The Company shall use its best endeavours to arrange for delivery by the Delivery Date, but the Company shall not be liable for late delivery of any of the Goods or Services.  

8.2 Title 

Full unencumbered title to each of the Goods will pass to the Customer upon the Customer making payment in full to the Company for each of the Goods. 

For the sake of clarity, title will pass for each individual Good at the relevant time. 

8.3 Risk 

Risk in each of the Goods will pass to the Customer upon shipment of the Goods from the relevant factory. It is the Customer’s responsibility to insure the Goods for transit for the Delivery. 

9. Contract Price 

9.1 Contract Price to be exclusive 

The Contract Price means the aggregate amount payable (excluding Indirect Transaction Taxes payable in accordance with clause 11) by the Customer in relation to the Services and/or Goods. 

9.2 Variation 

(a) The supply of the Goods and Services to the Customer will be in accordance with this agreement at the Contract Price. 

(b) The Company may vary the Contract Price if there are increased costs in any one or more of the following: 

(i) raw materials; 

(ii) freight; 

(iii) labour and overheads;  

(iv) fluctuation in the currency exchange rate, and 

(v) any other cost or expense where the increase is outside the control of the Company. 

9.3 Currency fluctuations 

(a) Without limiting clause 9.2(b), where the Contract Price is specified to be in AUD, the Company reserves the right to issue a revised Contract Price where there is a decrease  of 1% or more of the AUD against the relevant overseas currency from where the Goods are imported by the Company, when measured against the daily foreign exchange rate available to the Company. 

(b) The Company may issue a revised Contract Price at any time from the date of this Contract to the date of actual full payment for the Goods by the Customer. 

(c) If the Company exercises its rights under this clause 9.2, it will give the Customer seven (7) days from notification of the revised Contract Price to exercise a right to cancel this Contract provided the Customer pays any costs reasonably incurred by the Company. 

9.4 Custom Import Duties 

(a) Unless otherwise specified, the Contract Price is exclusive of any custom import duties payable in respect of import of any Goods into Australia.   

(b) If the Contract Price is specified to be inclusive of any such custom import duties for Goods supplied, then if there is any change in the dutiable classification or effective rate of the applicable custom import duties the Contract Price will be adjusted to pass through the effect of the change to the Customer and the Customer must pay the adjusted Contract Price. 

9.5 Greenhouse gas emissions 

The Company is entitled to be reimbursed by the Customer for any amount that the Company pays or is liable to pay as a result of the Company, or a Related Body Corporate of the Company, being required by a law to surrender tradeable permits or to pay a Tax as a consequence of: 

(a) the emission of greenhouse gases in the course of supplying the Services or producing any Goods supplied under the Contract; or 

(b) supplying the Services and/or Goods. 

10. Taxes 

10.1 Taxes (including Indirect Transaction Taxes) 

(a) All amounts payable under or in connection with the Contract, (including any amount by way of reimbursement, indemnity, damages or otherwise) are exclusive of Indirect Transaction Taxes, unless expressed otherwise in the Quotation or special conditions. 

(b) If Indirect Transaction Taxes are payable on a supply, transfer or sale (supply) made under or in connection with the Contract, and if the Party making that supply (the Company) is liable, under the applicable law, to pay or collect and remit, the Indirect Transaction Taxes to the appropriate Government Agency, the Party receiving that supply (recipient) shall pay to the Company an additional amount equal to the Indirect Transaction Taxes payable by the Company in respect of the supply.  The recipient must pay the additional amount to the Company on the date when the Contract Price (or part thereof) is provided to the Company (subject to a Tax Invoice being received prior to payment date). This subclause does not apply to the extent that the consideration for the supply is expressed to be inclusive of Indirect Transaction Taxes. 

(c) The Company shall ensure that each invoice it presents to the recipient in respect of any Indirect Transaction Taxes is a Tax Invoice. 

(d) Any reference in: 

(i) the Contract to a cost, expense or other liability (Cost) incurred by a Party; or 

(ii) the calculation of consideration or of any indemnity, reimbursement or similar amount to a Cost, 

must exclude the amount of any Input Tax Credit entitlement of that Party in relation to that Cost. 

(e) Each Party will take all reasonable steps to cooperate with and provide all necessary assistance to the other Party to ensure, so far as possible, that the Taxes treatment is accepted by the relevant Government Agency, including the provision of invoices, proof of payment, proof of source and/or origination and other documentation for this purpose. 

10.2 Withholding Taxes 

(a) If a Party (payer) is required by any applicable law to make a deduction or withholding from a payment to the other Party (payee) for or on account of any Taxes, the payer is entitled to make that deduction or withholding unless the payee provides the payer with valid documentation (received prior to the date when the payment is to be made) showing to the satisfaction of the payer that an exemption applies. If the payer is required by law to deduct or withhold, then the payer shall use its best endeavours to furnish the payee with all receipts, proof of payment and other relevant documentation for all deductions and withholding Taxes so paid to the relevant Government Authority. For the avoidance of doubt, the payer will not be liable to pay any amount to the payee on account of an amount deducted or withheld in accordance with this clause. 

(b) Where a payment is made without a deduction or withholding for or on account of Taxes and such a deduction or withholding was required by any applicable law, the payee shall reimburse the payer for, or otherwise pay to the payer, the amount that should have been withheld or deducted within 14 days of receiving an official receipt (or certified copy) or other documentation evidencing the amount that was required to have been withheld or deducted. 

10.3 Customs and Excise Duties 

Where the Customer acquires Goods and the Company is the importer, the Customer will: 

(a) be responsible for, and remit payment of, all Customs Duties assessed by or payable to any Government Agency, as well as any other foreign shipping charges; and 

(b) use its best endeavours to ensure that any Goods are imported free of Customs Duties, including, without limit, through the use of applicable bilateral free trade agreements (or the equivalent). 

10.4 Survival 

This clause will continue to apply after expiration or termination of the Contract. 

11. Payments to Company 

11.1 Method of payment 

Unless otherwise provided in the Contract, all payments required to be made to the Company by the Customer pursuant to the Contract in relation to the supply of the Services and/or Goods must be made in the currency specified in the Quotation by electronic funds transfer into a nominated bank account. If no currency is specified, then it shall be treated as Australian Dollars unless proven to the contrary. 

11.2 Tax Invoices 

(a) The Company must, unless otherwise agreed with the Customer, render a Tax Invoice to the Customer in relation to the supply of the Services and / or Goods at the end of each month during the period in which the Services and / or Goods are supplied and calculated by reference to the prices, fees or other amounts specified in the Quotation. 

(b) A Tax Invoice must contain the following information: 

(i) the number of the Quotation to which the Tax Invoice relates; and 

(ii) a description of the Services and/or Goods provided in the period covered by the Tax Invoice. 

11.3 Payment of Tax Invoices 

Subject to clauses 11.4 and 15.2(b), the Customer must pay to the Company the amount shown on the Tax Invoice within the Company’s payment terms as specified or 30 days of the date of the Tax Invoice whichever is the earlier. 

11.4 Disputed Tax Invoices 

If the Customer disputes any amount shown on a Tax Invoice, it will notify the Company within a reasonable time and in the notice will specify why it disputes any amount. 

11.5 Errors or exceptions in invoicing 

Without limiting clause 11.3, if the Company discovers or is advised of any errors or exceptions relating to its invoicing, the Company and the Customer will jointly review the nature of the errors or exceptions, and, if appropriate, take prompt corrective action and the relevant person shall adjust the relevant Tax Invoice or refund overpayments or pay shortfalls. 

12. Packing, Despatch and Transport 

12.1 Customer responsible 

The Customer is responsible, at its cost, for arranging packing and transporting the Goods to the Site unless otherwise stated in the Quotation. 

12.2 Where Customer to arrange transport 

If, pursuant to the terms of the Contract, the Customer is obliged to arrange transport of all or some of the Goods, then the Company must notify the Customer Representative of the details of those Goods ready for despatch in sufficient time to enable transport to be arranged. 

12.3 Notification of despatch dates 

The Company will notify the Customer Representative of the date of despatch of each item and the estimated date of arrival at the Site. 

13. Information and content of Websites 

13.1 Information on website not advice etc 

(a) Information means all information (including data) in any form provided by any means including that information and /or data derived from using the Website. 

(b) Website means website https://www.avocado.homes or related website. 

(c) The Information provided is correct to the best of the Company’s knowledge, but the Company: 

(i) Makes no warranty as to accuracy, 

(ii) Makes no representations, either expressed or implied, as to the suitability of the Information for any particular purpose, 

(iii) Accepts no Liability for any interference with or damage to a your or anyone else’s computer, mobile or other device, software or data occurring in connection with or relating to the Website or its use or any website linked to the Website, 

(iv) Does not represent or warrant that applications or payments initiated through the Website will in fact be received or made to the intended recipient. Users are advised to confirm the application or payment by other means,  

and each person or organisation should not act on the basis of the Information without taking appropriate independent advice. 

(d) The Information is made available on the understanding that it does do not constitute professional or expert advice. 

(e) The Information is also provided at your sole risk. If you rely on the Information, you are responsible for ensuring by independent verification its accuracy, currency or completeness. 

14. Force Majeure 

14.1 Notice of Force Majeure 

A Party will not be liable for any delay or failure to perform any of its obligations under the Contract (other than an obligation to pay money) if as soon as possible after the beginning of the Force Majeure affecting the ability of the Party to perform any of its obligations under the Contract, it gives a notice to the other Party that complies with clause 14.2. 

14.2 Force Majeure notice 

A notice given under clause 14.1 must: 

(a) specify the obligations the Party cannot perform; 

(b) fully describe the Force Majeure; 

(c) estimate the time during which the Force Majeure will continue; and 

(d) specify the measures proposed to be adopted to remedy or abate the Force Majeure. 

14.3 Obligation to remedy and mitigate 

The Party that is prevented from carrying out its obligations under the Contract as a result of Force Majeure must: 

(a) remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible; and 

(b) take all action reasonably practicable to mitigate any Liabilities suffered by the other Party as a result of its failure to carry out its obligations under the Contract. 

15. Default 

15.1 Default Notice 

If either party breaches any term of the Contract, the innocent party may serve a notice of default (Default Notice) on the defaulting party containing the information specified in clause 15.2. 

15.2 Default Notice requirements 

A Default Notice must: 

(a) either require that the breach be remedied within a specified period of not less than 30 days (or a shorter period if justifiable) after service of the Default Notice on the defaulting party or state that the breach is incapable of remedy; and 

(b) state that if the breach is not remedied within the period specified in the Default Notice or is incapable of remedy, then the innocent party may by further notice to the defaulting party do one or more of the following: 

(i) elect wholly or partly to suspend payment under the Contract until the breach has been remedied; 

(ii) take such action as necessary to cure the breach (the cost of such action so taken being recoverable from the defaulting party as a debt due); 

(iii) terminate the Contract or any part of it with effect from a specified date (Cancellation Date); or 

(iv) take such other or additional action available at law. 

15.3 Obligations upon termination 

If an innocent party gives notice pursuant to clause 15.2(b)(iii), the Contract is terminated from the Cancellation Date and the defaulting party must: 

(a) If applicable, cease supply of the Services in accordance with, but only to the extent specified in, the Default Notice; 

(b) immediately take all possible action at its cost to ensure the safety of all Personnel and the protection of all the Goods; 

(c) immediately take all possible action to mitigate any Liabilities incurred by it as a result of such termination; and 

(d) take any other action reasonably required in relation to the termination. 

16. Dispute Resolution 

16.1 Dispute 

In the event of any Dispute, a Party may give to the other Party a Dispute Notice specifying the Dispute and requiring its resolution under this clause 16. 

16.2 Dispute Representatives to seek resolution 

(a) If the Dispute is not resolved within 7 days after a Dispute Notice is given to the other Party, each Party must nominate one representative to resolve the Dispute (each, a Dispute Representative). 

(b) If the Dispute is not resolved within 30 days of the Dispute being referred to the respective Dispute Representatives, then either Party may commence legal proceedings in an appropriate court to resolve the matter. 

16.3 Performance of obligations during Dispute 

During the existence of any Dispute, the Parties must continue to perform all of their obligations under the Contract without prejudice to their position in respect of such Dispute, unless the Parties otherwise agree. 

16.4 Urgent interlocutory relief 

Nothing in this clause 16 prevents a Party from seeking any urgent interlocutory relief which may be required in relation to the Contract. 

17. Confidentiality 

17.1 Obligation of confidentiality 

The Parties undertake to each other and agree: 

(a) to hold in strict confidence all Confidential Information and not to disclose or permit or cause the Confidential Information to be disclosed to any person other than any of its Personnel who require the Confidential Information for the purposes of providing the Goods and Services; and 

(b) not to make use of the Confidential Information (including duplicating, reproducing, distributing, disseminating or directly or indirectly deriving information from the Confidential Information), except and solely to the extent necessary for the supply of the Goods and Services, 

unless the prior written consent of the other Party to do so has been obtained. 

17.2 Exceptions 

Clause 17.1 does not apply to: 

(a) information after it becomes generally available to the public other than as a result of the breach of this clause 17 or any other obligations of confidence imposed on the Parties; or 

(b) the disclosure of information in order to comply with any applicable law or legally binding order of any court, Government Agency or recognised stock exchange. 

17.3 Breach of consent 

The breach of any of the conditions contained in a consent granted pursuant to clause 17.1 will be deemed to be a breach of the Contract. 

17.4 Indemnity 

Each Party indemnifies the other, and must keep them indemnified, in respect of any Liabilities incurred or sustained by them resulting from a breach of this clause 17 by that Party or its Personnel. 

17.5 Additional obligations 

The obligations in this clause 17 are in addition to and do not diminish the obligations of the Parties in respect of secret and confidential information at common law or under any statute or trade or professional custom or use. 

17.6 Return of Confidential Information 

If requested by a Party, whether prior to or after the expiry or earlier termination of the Contract, the other Party must promptly deliver all Confidential Information in their custody, possession or control. 

17.7 Survival of clause 

This clause 17 will survive the termination of the Contract. 

18. Intellectual Property Rights 

18.1 Company Intellectual Property Rights 

The Customer acknowledges that the Company retains ownership of the Intellectual Property Rights of the Company used or created under the Contract and/or in the provision of the Services and can only deal with such IPR as provided for in the Contract.   

19. Notices 

19.1 Form of Notices 

Any notice, demand, consent or other communication (Notice) given or made pursuant to the Contract: 

(a) must be in writing; 

(b) must, where given by a Party, be signed or authorised by a Representative; and 

(c) may be delivered by prepaid post, by hand, or by email to the Party to whom the Notice is addressed at its address shown in the Contract or such other address as that Party may have notified to the other Party. 

19.2 Notices deemed given 

A Notice will be taken to be duly given: 

(a) in the case of delivery by hand, when delivered; 

(b) in the case of delivery by post, 5 Business Days after the date of posting (if posted to an address in the same country) or 10 Business Days after the date of posting (if posted to an address in another country); or 

(c) if the Communication is sent by email, then it is deemed to be received at the time and on the date it was noted as sent by the computer of the sender except in the case it was received after 5pm then it will be deemed received the next Business Day, unless in any case a message indicating it was not received is noted or received by the sender’s computer (then it will be deemed not received). 

For the purposes of this Clause 22.2 “Business Day” and time shall be a reference to the relevant jurisdiction where the receiver has its place of business. 

20. Costs 

20.1 Each Party to bear its own costs 

Each Party must bear its own costs arising out of: 

(a) the negotiation, preparation and execution of the Contract; and 

(b) except as expressly provided otherwise in the Contract, any transaction contemplated by the Contract. 

21. Status of Company 

21.1 Independent contractor 

At all times during the Term, and in the provision of Goods and Services, the Company is an independent contractor and will not act as, or be or be regarded as, an agent or employee of the Customer, and the Supplier and its Personnel will not be entitled to any benefits which would ordinarily accrue to any employee of the Customer by virtue of their status as an employee. 

22. Privacy and Data Protection 

22.1 Personal information 

Each Party agrees to comply with their obligations under the Privacy Act in respect of Personal Information obtained by or disclosed to them pursuant to the Contract. 

22.2 Warranty 

Each Party warrants to the other Party that it has complied with the Privacy Act in obtaining any Personal Information disclosed by it pursuant to the Contract. 

22.3 Data protection and use etc 

22.4 In addition to its obligations under the Privacy Act, the Parties agree to: 

(a) only Process the Personal Information for the purposes of the Contract; 

(b) not disclose the Personal Information to any other person without the other Party’s prior written consent, unless the disclosure is required by law; 

(c) immediately notify that the disclosure of the Personal Information may be required by law; 

(d) put into place and maintain appropriate technical and organisational measures against unauthorised and/or unlawful Processing of the Personal Information; 

(e) put into place and maintain appropriate technical and organisational measures against unauthorised access, loss, destruction, misuse, modification, disclosure or damage to the Personal Information; and 

(f) take all necessary steps to ensure that its Processing of the Personal Information will be fair and lawful. 

22.5 Subject to the above and any law to the contrary, Avocado Expandable Sheds shall not have any Liability to the Customer or any End User in relation to any: 

(a) data loss, encryption, mis-encryption, corruption, manipulation, error, miscalculation, misinterpretation or mis-interpolation (whether by use of any website of Avocado Expandable Sheds or other way (for example use of a third party website); 

(b) cybersecurity attack or incident (on any website or in relation to any data) not directly caused by Avocado Expandable Sheds; 

(c) failure by Avocado Expandable Sheds to: 

(i) monitor, maintain or repair: 

(A) any of its websites, and/or 

(B) any software, or 

(C) any data, or 

(d) failure to notify the Customer or any End User of any of the above (either in a timely way or at all). 

22.6 Survival of clause 

This clause 22 will survive the termination of the Contract. 

23. Waiver 

A failure to exercise, or any delay in exercising any right, power or remedy by a Party does not operate as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing. 

24. Further Assurances 

Each Party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of the Contract and the transactions contemplated by it. 

25. Severability 

25.1 Severability 

Any provision of the Contract which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability.  This does not invalidate the remaining provisions of the Contract nor does it affect the validity or enforceability of that provision in any other jurisdiction. 

25.2 Negotiation in good faith 

Where a provision is prohibited or unenforceable, the Parties must negotiate in good faith to replace the invalid provision by a provision which is in accordance with the applicable law and which must be as close as possible to the Parties’ original intent and appropriate consequential amendments (if any) will be made to the Contract. 

26. Governing Law 

The Contract is governed by the laws of Queensland, Australia.  Each Party submits to the non-exclusive jurisdiction of the Courts exercising jurisdiction in Queensland, Australia in connection with matters concerning the Contract.