“HWH Crystals” or “HWH” means Health Wealth Happiness Crystals, its successors and assigns or any person acting on behalf of and with the authority of Health Wealth Happiness Crystals .
“Client” means the person/s requesting HWH Crystals to provide the Services as specified in any invoice, document or order, and if there more than one person requesting the Services is a reference to each person jointly and severally.
“Incidental Items” means any goods, software, training materials, databases, proposals, tender documents and other electronic tools (“tools”) supplied, consumed, created or deposited incidentally by HWH Crystals in the course of it conducting, or supplying to the Client, any Services.
“Services” means all Services supplied by HWH Crystals to the Client at the Client’s request from time to time.
“Web Site” means a location which is accessible on the Internet
through the World Wide Web and which provides multimedia content via a
graphical User Interface.
“Prohibited Content” means any content on a Web Site that:
is, or could reasonably be considered to be, in breach of the
Broadcast Services Amendment (Online Service) Act 1999 (Cth); the
Competition and Consumer Act 2010 (Cth); or any other applicable law or
applicable industry code; orcontains, or could reasonably be considered to contain, any
misrepresentations; or is, or could reasonably be considered to be,
misleading or deceptive, likely to mislead or deceive or otherwise
unlawful; oris, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights.
“Price” means the price payable for the Services as agreed between HWH Crystals and the Client in accordance with clause of this
The Client is taken to have exclusively accepted and is immediately
bound, jointly and severally, by these terms and conditions if the
Client places an order for, or accepts Services provided by HWH Crystals.
These terms and conditions may only be amended with HWH Crystals’s consent in writing and shall prevail to the extent of any
inconsistency with any other document or agreement between the Client
and HWH Crystals.
These terms and conditions are meant to be read in conjunction with
the Terms and Conditions posted on HWH Crystals’s website. If
there are any inconsistencies between the two documents then the terms
and conditions contained in this document shall prevail.
The Client shall give HWH Crystals not less than fourteen (14)
days prior written notice of any proposed change of ownership of the
Client and/or any other change in the Client’s details (including but
not limited to, changes in the Client’s name, address, contact phone or
fax number/s, or business practice). The Client shall be liable for any
loss incurred by HWH Crystals as a result of the Client’s failure
to comply with this clause.
At HWH Crystals’s sole discretion the Price shall be either:
as indicated on any invoice provided by HWH Crystals to the Client; orthe Price as at the date of delivery of the Services according to HWH Crystals’s current Price list; or HWH Crystals’s quoted price (subject to clause ) which will be
valid for the period stated in the quotation or otherwise for a period
of thirty (30) days.
HWH Crystals reserves the right to change the Price in the
event of a variation to HWH Crystals’s quotation. Any variation
from the plan of scheduled works or specifications (including, but not
limited to, any variation due to unforeseen circumstances, or as a
result of increases to HWH Crystals in the cost of materials and
labour or due to changes in the advertising rates charged by the
advertising medium provider the website) will be charged for on the
basis of HWH Crystals’s quotation and will be shown as variations
on the invoice. Payment for all variations must be made in full at their
time of completion.
In the event any additional Services are requested once the
quotation has been agreed to, then these additional Services shall be
charged at HWH Crystals’s current hourly rate, or current Price
At HWH Crystals’s sole discretion a non-refundable deposit may be required.
Time for payment for the Services being of the essence, the Price
will be payable by the Client on the date/s determined by HWH Crystals, which may be:
before delivery of the Services;fourteen (14) days following the date of the invoice;the date specified on any invoice or other form as being the date for payment; orfailing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by HWH Crystals.
Payment may be made by electronic/on-line banking, credit card (plus
a surcharge of up to three (3%) of the Price), or by any other method
as agreed to between the Client and HWH Crystals.
Unless otherwise stated the Price does not include GST. In addition
to the Price the Client must pay to HWH Crystals an amount equal
to any GST HWH Crystals must pay for any supply by HWH Crystals under this or any other agreement for providing HWH Crystals’s Services. The Client must pay GST, without deduction or set
off of any other amounts, at the same time and on the same basis as the
Client pays the Price. In addition the Client must pay any other taxes
and duties that may be applicable in addition to the Price except where
they are expressly included in the Price.
Any time specified by HWH Crystals for delivery of the
Services is an estimate only and HWH Crystals will not be liable
for any loss or damage incurred by the Client as a result of delivery
being late. However both parties agree that they shall make every
endeavour to enable the Services to be supplied at the time and place as
was arranged between both parties. In the event that HWH Crystals
is unable to supply the Services as agreed solely due to any action or
inaction of the Client then HWH Crystals shall be entitled to
charge a reasonable fee for re-supplying the Services at a later time
Irrespective of whether HWH Crystals retains ownership of any
Incidental Items all risk for such items shall pass to the Client as
soon as such items are delivered to the Client and shall remain with the
Client until such time as HWH Crystals may repossess the
Incidental Items. The Client must insure all Incidental Items on or
HWH Crystals reserves its right to seek compensation or
damages for any damage, destruction or loss suffered in relation to the
Incidental Items as a result of the Client’s failure to insure in
accordance with clause .
Once accepted by the Client, HWH Crystals’s written quotation
shall be deemed to interpret correctly the Client’s instructions. HWH Crystals shall not be responsible for errors or omissions due to
oversight or inadvertent misinterpretation of those instructions.
The Client acknowledges and agrees that HWH Crystals shall not
be held liable for any supplied content breaching any Acts, legislation
or regulations, unless due to the negligence of HWH Crystals.
HWH Crystals and the Client agree that where it is intended
that the ownership of Incidental Items is to pass to the Client that
such ownership shall not pass until:
the Client has paid HWH Crystals all amounts owing for the Services; andthe Client has met all other obligations due by the Client to HWH Crystals in respect of all contracts between HWH Crystals and
Receipt by HWH Crystals of any form of payment other than cash
shall not be deemed to be payment until that form of payment has been
honoured, cleared or recognised and until then HWH Crystals’s
ownership or rights in respect of the Incidental Items shall continue.
In this clause financing statement, financing change statement,
security agreement, and security interest has the meaning given to it by
Upon assenting to these terms and conditions in writing the Client
acknowledges and agrees that these terms and conditions constitute a
security agreement for the purposes of the PPSA and creates a security
interest in all Incidental Items that have previously been supplied and
that will be supplied in the future by HWH Crystals to the Client.
The Client undertakes to:
promptly sign any further documents and/or provide any further
information (such information to be complete, accurate and up-to-date in
all respects) which HWH Crystals may reasonably require to;
register a financing statement or financing change statement in
relation to a security interest on the Personal Property Securities
Register;register any other document required to be registered by the PPSA; orcorrect a defect in a statement referred to in clause or ;
indemnify, and upon demand reimburse, HWH Crystals for all
expenses incurred in registering a financing statement or financing
change statement on the Personal Property Securities Register
established by the PPSA or releasing any Incidental Items charged
thereby;not register a financing change statement in respect of a security
interest without the prior written consent of HWH Crystals; not register, or permit to be registered, a financing statement or a
financing change statement in relation to the Incidental Items in
favour of a third party without the prior written consent of HWH Crystals.
HWH Crystals and the Client agree that sections 96, 115 and
125 of the PPSA do not apply to the security agreement created by these
terms and conditions.
The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by HWH Crystals, the
Client waives their right to receive a verification statement in
accordance with section 157 of the PPSA.
The Client must unconditionally ratify any actions taken by HWH Crystals under clauses to .
Subject to any express provisions to the contrary nothing in these
terms and conditions is intended to have the effect of contracting out
of any of the provisions of the PPSA.
In consideration of HWH Crystals agreeing to supply Services,
the Client charges all of its rights, title and interest (whether joint
or several) in any land, realty or other assets capable of being
charged, owned by the Client either now or in the future, to secure the
performance by the Client of its obligations under these terms and
conditions (including, but not limited to, the payment of any money).
The Client indemnifies HWH Crystals from and against all HWH Crystals’s costs and disbursements including legal costs on a
solicitor and own client basis incurred in exercising HWH Crystals’s rights under this clause.
The Client irrevocably appoints HWH Crystals and each director of HWH Crystals as the Client’s true and lawful attorney/s to
perform all necessary acts to give effect to the provisions of this
clause including, but not limited to, signing any document on the
Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
The Client must inspect HWH Crystals’s Services on completion
of the Services and must within seven (7) days notify HWH Crystals
in writing of any evident defect in the Services or Incidental Items
provided (including HWH Crystals’s workmanship) or of any other
failure by HWH Crystals to comply with the description of, or
quote for, the Services which HWH Crystals was to supply. The
Client must notify any other alleged defect in HWH Crystals’s
Services or Incidental Items as soon as is reasonably possible after any
such defect becomes evident. Upon such notification the Client must
allow HWH Crystals to review the Services or Incidental Items that
Under applicable State, Territory and Commonwealth Law (including,
without limitation the CCA), certain statutory implied guarantees and
warranties (including, without limitation the statutory guarantees under
the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
HWH Crystals acknowledges that nothing in these terms and
conditions purports to modify or exclude the Non-Excluded Guarantees.
Except as expressly set out in these terms and conditions or in
respect of the Non-Excluded Guarantees, HWH Crystals makes no
warranties or other representations under these terms and conditions
including, but not limited to, the quality or suitability of the
Services. HWH Crystals’s liability in respect of these warranties
is limited to the fullest extent permitted by law.
If the Client is a consumer within the meaning of the CCA, HWH Crystals’s liability is limited to the extent permitted by section 64A
of Schedule 2.
If HWH Crystals is required to rectify, re-supply, or pay the
cost of re-supplying the Services under this clause or the CCA, but is
unable to do so, then HWH Crystals may refund any money the Client
has paid for the Services but only to the extent that such refund shall
take into account the value of Services and Incidental Items which have
been provided to the Client which were not defective.
If the Client is not a consumer within the meaning of the CCA, HWH Crystals’s liability for any defective Services or Incidental Items
limited to the value of any express warranty or warranty card
provided to the Client by HWH Crystals at HWH Crystals’s
sole discretion;otherwise negated absolutely.
Notwithstanding clauses to but subject to the CCA, HWH Crystals shall not be liable for any defect or damage which may be
caused or partly caused by or arise as a result of:
the Client failing to properly maintain or store any Incidental Items;the Client using the Incidental Items for any purpose other than that for which they were designed;the Client continuing to use any Incidental Item after any defect
became apparent or should have become apparent to a reasonably prudent
operator or user;interference with the Services by the Client or any third party without HWH Crystals’s prior approval;the Client failing to follow any instructions or guidelines provided by HWH Crystals; fair wear and tear, any accident, or act of God.
Where HWH Crystals has developed Incidental Items such as
software, training materials, databases, proposals, tender documents and
other electronic tools (“tools”) in providing the Services for the
Client, then the copyright in the software, training materials,
databases, proposals, tender documents and other electronic tools shall
remain vested in HWH Crystals, and shall only be used by the
Client at HWH Crystals’s discretion.
The Client warrants that any software, databases, electronic tools
or instructions provided by the Client to HWH Crystals will not
cause HWH Crystals to infringe any patent, registered design or
trademark in the execution of the Client’s order and the Client agrees
to indemnify HWH Crystals against any action taken by a third
party against HWH Crystals in respect of any such infringement.
Whether HWH Crystals or the Client retains the copyright in
relation to tools which are specifically developed for the Client shall
be as is agreed, recorded in writing, and signed by both parties to this
The Client agrees that HWH Crystals may (at no cost) use for
the purposes of marketing or entry into any competition, any Incidental
Items which HWH Crystals has created for the Client.
Interest on overdue invoices shall accrue daily from the date when
payment becomes due, until the date of payment, at a rate of two and a
half percent (2.5%) per calendar month (and at HWH Crystals’s sole
discretion such interest shall compound monthly at such a rate) after
as well as before any judgment.
If the Client owes HWH Crystals any money the Client shall
indemnify HWH Crystals from and against all costs and
disbursements incurred by HWH Crystals in recovering the debt
(including but not limited to internal administration fees, legal costs
on a solicitor and own client basis, HWH Crystals’s collection
agency costs, and bank dishonour fees).
Without prejudice to any other remedies HWH Crystals may have,
if at any time the Client is in breach of any obligation (including
those relating to payment) under these terms and conditions HWH Crystals may suspend or terminate the supply of Services to the Client. HWH Crystals will not be liable to the Client for any loss or
damage the Client suffers because HWH Crystals has exercised its
rights under this clause.
Without prejudice to HWH Crystals’s other remedies at law HWH Crystals shall be entitled to cancel all or any part of any order
of the Client which remains unfulfilled and all amounts owing to HWH Crystals shall, whether or not due for payment, become immediately
any money payable to HWH Crystals becomes overdue, or in HWH Crystals’s opinion the Client will be unable to make a payment when
it falls due;the Client becomes insolvent, convenes a meeting with its creditors
or proposes or enters into an arrangement with creditors, or makes an
assignment for the benefit of its creditors; ora receiver, manager, liquidator (provisional or otherwise) or
similar person is appointed in respect of the Client or any asset of the
Each party agrees to treat all information and ideas communicated to
it by the other confidentially and agree not to divulge it to any third
party, without the other party’s written consent. The parties will not
copy any such information supplied, and will either return it or destroy
it (together with any copies thereof) on request of the other party.
HWH Crystals may cancel any contract to which these terms and
conditions apply or cancel delivery of Services at any time before the
Services are commenced by giving written notice to the Client. On giving
such notice HWH Crystals shall repay to the Client any money paid
by the Client for the Services. HWH Crystals shall not be liable
for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels delivery of the Services the
Client shall be liable for any and all loss incurred (whether direct or
indirect) by HWH Crystals as a direct result of the cancellation
(including, but not limited to, any loss of profits).
The Client agrees for HWH Crystals to obtain from a credit
reporting agency a credit report containing personal credit information
about the Client in relation to credit provided by HWH Crystals.
The Client agrees that HWH Crystals may exchange information
about the Client with those credit providers either named as trade
referees by the Client or named in a consumer credit report issued by a
credit reporting agency for the following purposes:
to assess an application by the Client; and/orto notify other credit providers of a default by the Client; and/orto exchange information with other credit providers as to the status
of this credit account, where the Client is in default with other
credit providers; and/orto assess the creditworthiness of the Client.
The Client understands that the information exchanged can include
anything about the Client’s creditworthiness, credit standing, credit
history or credit capacity that credit providers are allowed to exchange
under the Privacy Act 1988.
The Client consents to HWH Crystals being given a consumer
credit report to collect overdue payment on commercial credit (Section
18K(1)(h) Privacy Act 1988).
The Client agrees that personal credit information provided may be
used and retained by HWH Crystals for the following purposes (and
for other purposes as shall be agreed between the Client and HWH Crystals or required by law from time to time):
the provision of Services; and/orthe marketing of Services by HWH Crystals, its agents or distributors; and/oranalysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/orprocessing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/orenabling the daily operation of Client’s account and/or the
collection of amounts outstanding in the Client’s account in relation to
HWH Crystals may give information about the Client to a credit reporting agency for the following purposes:
to obtain a consumer credit report about the Client;allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
The information given to the credit reporting agency may include:
personal particulars (the Client’s name, sex, address, previous
addresses, date of birth, name of employer and driver’s licence number);details concerning the Client’s application for credit or commercial credit and the amount requested;advice that HWH Crystals is a current credit provider to the Client;advice of any overdue accounts, loan repayments, and/or any
outstanding monies owing which are overdue by more than sixty (60) days,
and for which debt collection action has been started;that the Client’s overdue accounts, loan repayments and/or any
outstanding monies are no longer overdue in respect of any default that
has been listed;information that, in the opinion of HWH Crystals, the Client
has committed a serious credit infringement (that is, fraudulently or
shown an intention not to comply with the Client’s credit obligations);advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;that credit provided to the Client by HWH Crystals has been paid or otherwise discharged.
16.1 The failure by HWH Crystals to enforce any
provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect HWH Crystals’s right to
subsequently enforce that provision. If any provision of these terms and
conditions shall be invalid, void, illegal or unenforceable the
validity, existence, legality and enforceability of the remaining
provisions shall not be affected, prejudiced or impaired.
terms and conditions and any contract to which they apply shall be
governed by the laws of the New South Wales in which HWH Crystals
has its principal place of business, and are subject to the jurisdiction
of the Moss Vale Court in that state.
16.3 Subject to clause HWH Crystals shall be under no liability whatsoever to the Client for any
indirect and/or consequential loss and/or expense (including loss of
profit) suffered by the Client arising out of a breach by HWH Crystals of these terms and conditions (alternatively HWH Crystals’s liability shall be limited to damages which under no
circumstances shall exceed the Price of the Services).
16.4 The Client
shall not be entitled to set off against, or deduct from the Price, any
sums owed or claimed to be owed to the Client by HWH Crystals nor
to withhold payment of any invoice because part of that invoice is in
16.5 HWH Crystals may license or sub-contract all or any
part of its rights and obligations without the Client’s consent.
The Client agrees that HWH Crystals may amend these terms and
conditions at any time. If HWH Crystals makes a change to these
terms and conditions, then that change will take effect from the date on
which HWH Crystals notifies the Client of such change. The Client
will be taken to have accepted such changes if the Client makes a
further request for HWH Crystals to provide Services to the
16.7 Neither party shall be liable for any default due to any
act of God, war, terrorism, strike, lock-out, industrial action, fire,
flood, storm or other event beyond the reasonable control of either
16.8 The Client warrants that it has the power to enter into this
agreement and has obtained all necessary authorisations to allow it to
do so, it is not insolvent and that this agreement creates binding and
valid legal obligations on it.