HEADWEAR AUSTRALIA - TERMS AND CONDITIONS OF TRADE Page 1 of 2
© Ledger Guard March 2012
1. APPLICATION OF THESE TERMS & CONDITIONS
The Customer agrees that prior to placing an order with the Supplier, the Customer has read and agreed to the terms and conditions as set out hereunder. For the purposes of this agreement, “the Supplier” is HEADWEAR AUSTRALIA PTY LTD ABN 27 124 103 199 its successors and assigns and any person acting on behalf of and with the authority of Headwear Australia Pty Ltd; “the Customer” is the applicant named on the account with the Supplier or where no account exists then on the quote and/or work authorisation provided by the Supplier to the Customer; “Goods” means promotional products and associated goods as more particularly described on the Supplier’s quotes, tax invoices and other paperwork given to the Customer; “Contract” means the agreement between the Supplier and the Customer including these terms and conditions; “Artwork” means artwork and ancillary materials; “Proof/s” means the standard by which the Goods will be made; and “Sign Off” means the Customer’s signed confirmation that the Artwork and/or Proof is accepted.
2.1 Supplier’s Quote
The Supplier shall give the Customer a quote specifying the work required to be done in order to fulfill the Customer’s instructions and an estimate of the Supplier’s charge for the performance of such work. The Supplier’s quoted prices are GST exclusive.
2.2 Acceptance by the Customer
2.2.1 When the Supplier has given the Customer a quote:
a) the Supplier need not commence work until the quote has been accepted by the Customer;
b) the Customer shall accept the quote by signing and returning a true copy of the quote and/or the Supplier’s work authorisation form accompanied by a purchase order number if applicable; and
c) a quote is valid for fourteen (14) days only unless an extension has been authorised by the Supplier.
2.2.2 In acceptance of the quote, the Customer warrants that it has not relied on any representation by the Supplier other than as supplied in writing in the quote.
2.3 The Supplier may amend the quote before the work has been completed to take into account any rise or fall in the cost of performing the work and the Supplier shall notify the Customer of such amendment as soon as practicable thereafter.
3. PROOFS/ARTWORK APPROVAL
3.1 The Customer must supply finished Artwork in the appropriate format; JPEG for embroidery Goods and Vector, EPS or AI for print Goods. The Customer will indemnify the Supplier from additional charges should the Supplier need to redraw the Artwork.
3.2 The Customer must promptly check design Proofs/Artwork thoroughly and once satisfied, shall Sign Off on the appropriate approval form provided by the Supplier. The Customer shall indemnify the Supplier from any costs or expenses incurred by the Supplier using Customer approved Proofs/Artwork.
3.3 Once approval has been obtained from the Customer and the Goods are in production the Contract cannot be cancelled.
3.4 The Customer may be charged by the Supplier for alterations required by the Customer after the Sign Off.
3.5 When Sign Off has not been obtained from the Customer and the Supplier has been instructed by the Customer to proceed the Customer shall subsequently indemnify the Supplier from any errors or omissions resulting from those instructions (e.g. embroidery, once a stitch-out has been approved by the Customer).
Any variation to the Customer’s original brief, unless agreed in writing by the Supplier, will attract additional costs. For instance, as prices for most of the Goods are based on specific quantities, variations in quantities will result in an amended unit cost.
5. COLLECTION OF FINISHED GOODS
5.1 Finished Goods will be ready for collection from the Supplier’s premises twenty one (21) days from receipt of the Artwork approval unless advised otherwise in writing.
5.2 Stock items will be delivered in 2-5 days.
5.3 The Customer must uplift the Goods promptly when notified that the Goods are ready for collection. Should the Customer fail to uplift the Goods within seven (7) days of such notification then a storage and insurance charges may apply and an invoice raised with a payment due date as specified in the invoice.
5.4 Collection of the Goods by a third party nominated by the Customer is deemed to be collection by the Customer for the purpose of this Contract.
5.5 When orders involve large quantities of Goods, two percent (2%) over or under the original amount ordered is to be considered fulfillment of the order.
5.6 Completion dates cannot be guaranteed for Goods requested sooner than the time frame specified in clause 5.1.
6.1 It is understood that the Customer has agreed to the delivery lead time quoted by the Supplier when placing an order for Goods.
6.2 The Customer will accept split deliveries from the Supplier.
6.3 Delivery of the Goods shall be made to the Customer’s nominated address. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
6.4 Delivery of Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purpose of this agreement.
6.5 Failure by the Supplier to deliver shall not entitle either party to treat the Contract as repudiated. The Supplier shall not be liable for any loss or damage whatsoever due to the failure by the Supplier to deliver the Goods.
7. ERRORS/RETURN OF GOODS
7.1 The Customer shall inspect the Goods on collection/delivery and must, within seven (7) days of collection/delivery, notify the Supplier of any alleged shortage in quantity, damage or failure to comply with the description.
7.2 The Customer shall afford the Supplier an opportunity to inspect the Goods within a reasonable time following collection/delivery if the Customer believes the Goods are defective in any way.
7.3 For all claims, the Goods must be returned in the original condition and packaging and accompanied by the written acceptance of the Supplier.
7.4 If the Customer shall fail to comply with the provisions set out in clauses 7.1, 7.2 & 7.3, the Goods shall be conclusively presumed to be in accordance with these terms and conditions and free from any damage.
7.5 The Supplier reserves the right to repair, replace or refund faulty Goods.
The Supplier will require a deposit of fifty percent (50%) from the Customer and the Supplier is under no obligation to undertake any work as requested by the Customer until the deposit is received by the Supplier in full and when all details pertaining to contract are finalised. In the event of default as to payment owing to the Supplier on the part of the Customer, the Supplier shall be entitled to forfeit the deposit and claim for the balance owing on the order and for any other loss suffered by the Supplier by way of any remedy available to it as provided in these terms and conditions or at law or in equity generally.
8.2 Balance of Payment
Unless otherwise agreed in writing by the Supplier, the Customer must, before delivery or when collecting the finished Goods, pay the Supplier the total balance set out on the invoice. When payment is made by cheque then the Customer shall allow the Supplier time to clear the funds before assuming the right to the Goods.
8.3 Urgent Orders
If Goods must be ready for collection earlier than the standard collection time specified in 5.1, the Customer may incur a forty percent (40%) surcharge.
8.4 Changes to Artwork
The original price includes two (2) changes to the Artwork/ Proof/s. Any additional changes will incur charges unless proven to be the Supplier’s mistake.
8.5 Unacceptable Reason
After Proofs/Artwork have been approved by the Customer, a reason given such as “I don’t like it” is not an acceptable reason for not paying for Goods and the Customer agrees to this assertion.
The Supplier may charge interest at the rate of two percent (2%) above the commercial lending rate of the Commonwealth Bank of Australia (CBA) on amounts not paid within the time specified in the Supplier’s invoice
The Customer must pay to the Supplier any costs, expenses or losses incurred by the Supplier as a result of the Customer’s failure to pay to the Supplier all sums outstanding as owed by the Customer to the Supplier including without limiting the generality of the forgoing any debt collection and legal costs incurred in enforcing payment on a solicitor and own client basis.
9. BYO PRODUCTS
The Supplier will take due care with products supplied by the Customer and the Customer shall make no claim against the Supplier from any costs or expenses incurred should the products be damaged in any way whatsoever.
10. INTELLECTUAL PROPERTY AND OWNERSHIP OF CREATIVE MATERIALS
10.1.1 The copyright in all artistic and literary works authored by the Supplier shall be the property of the Supplier.
10.1.2 The Customer warrants that it has copyright or a licence to authorise the Supplier to reproduce all artistic or literary works supplied by the Customer to the Supplier for the purposes of the order and the Customer hereby expressly authorises the Supplier to reproduce all and any of such works for those purposes.
10.1.3 The Customer must indemnify the Supplier against all liability, losses or expenses incurred by the Supplier in relation to or in any way directly or indirectly connected with any breach of copyright or of any rights in relation to copyright
10.2 Intellectual Property Rights
The Customer warrants that the use by the Supplier of any designs or instructions supplied by the Customer will not infringe any intellectual property of any other person and the Customer indemnifies the Supplier against any claim relating to or arising from the infringement of any intellectual property of any other person.
10.3 Illegal Matter
The Supplier is not obliged to print any illegal or libelous matter and the Customer agrees to indemnify the Supplier against any claim relating to or arising from the printing or reproduction of such matter. HEADWEAR AUSTRALIA - TERMS AND CONDITIONS OF TRADE Page 2 of 2
© Ledger Guard March 2012
11. PERSONAL PROPERTY SECURITIES ACT (PPSA)
11.1 In this clause, the following words have the respective meanings given to them in the PPSA: Financing Statement, Financing Change Statement, Proceeds, Register, Security Agreement, Security Interest and Verification Statement.
11.2 The Customer acknowledges and agrees:
a) that these Terms & Conditions constitute a Security Agreement that creates a Security Interest in all Goods (and Proceeds):
(i) previously supplied by the Supplier to the Customer;
(ii) to be supplied in the future by the Supplier to the Customer;
b) that the Security Interest created by these Terms & Conditions is a continuing Security Interest in all Goods (supplied now or in the future by the Supplier to the Customer) and Proceeds, which will operate (despite any intervening payment or settlement of account) until the Supplier has signed a release;
c) to waive its rights in relation to the sections listed in sub-section 115(1) of the PPSA (or as otherwise amended), which will not apply (to the extent, if any, mentioned) to the Security Agreement created by these Terms & Conditions.
11.3 The Customer undertakes to:
a) keep all Goods free of any charge, lien or Security Interest except as created under these Terms & Conditions and not otherwise deal with the Goods in a way that may prejudice any rights of the Supplier under these Terms & Conditions or the PPSA;
b) sign any further documents and provide any further information (which must be complete, accurate and up-to-date in all respects) that the Supplier may require to:
(i) register a Financing Statement or Financing Change Statement in relation to a Security Interest on the Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 11.3(b) (i) or 11.3(b) (ii);
c) indemnify, and upon demand reimburse, the Supplier for all fees (including actual legal fees on a solicitor/own client basis), costs, disbursements and expenses in:
(i) registering and maintaining a Financing Statement or Financing Change Statement on the Register or releasing any Goods charged thereby; and
(ii) enforcing or attempting to enforce the Security Interest created by these Terms & Conditions.
d) not register, or allow to be registered, a Financing Statement or a Financing Change Statement in respect of the Goods or Proceeds in favour of a third party, without the prior written consent of the Supplier; and
e) immediately advise the Supplier of any material change in its business details (including, but not limited to, it’s trading name, address, facsimile number) or business practices.
12.1 The Supplier shall mirror the warranty that the manufacturer/wholesaler provides to the Supplier. The Customer acknowledges that inexpensive Goods will have a limited warranty, if any. The Supplier will endeavor to raise those aspects with the Customer before the Supplier’s confirmation of the order.
12.2 The Supplier gives those warranties implied by consumer protection legislation in relation to the Goods. All other warranties are excluded to the extent permitted by law.
12.3 The Supplier reserves the right to make null and void the warranty should the Goods be modified, altered, damaged or put to any undue stress other than in the way the Goods were designed to perform.
12.4 In respect of all claims the Supplier shall not be liable to compensate the Customer for any delay in either replacing or repairing the Workmanship/Goods.
13.1 Non-excludable Rights
The parties acknowledge that, under the Australian Consumer Law, certain conditions and warranties may be implied in these terms and conditions and there are rights and remedies conferred on the Customer in relation to the provision of the Goods or of services which cannot be excluded, restricted or modified by the Agreement (“Non-excludable Rights”).
13.2 Disclaimer of Liability
The Supplier disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. To the extent permitted by law, the liability of the Supplier for a breach of a Non-Excludable Right is limited, at the Supplier’s option, to the supplying of the Goods and/or any services again or payment of the cost of having the Goods and/or services supplied again.
13.3 Indirect Losses
Notwithstanding any other provision of these Terms and Conditions, the Supplier is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Customer for:
a) any increased costs or expenses;
b) any loss of profit, revenue, business, contracts or anticipated savings;
c) any loss or expense resulting from a claim by a third party; or
d) any special, indirect or consequential loss or damage of any nature whatsoever caused by the Supplier’s failure to complete or delay in completing the work.
13.4 Force Majeure
The Supplier will have no liability to the Customer in relation to any loss, damage or expense caused by the Supplier’s failure to complete the work as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of the Supplier’s normal manufacturers/wholesalers to supply necessary products or any other matter beyond the Supplier’s control.
13.5 Customer’s Property
Customer’s property held by the Supplier is at the Customer’s own risk.
14.1 The Customer hereby authorises the Supplier to collect, retain, record, use and disclose commercial and/or consumer information about the Customer’s credit worthiness, credit standing, credit history or credit capacity, in accordance with the Privacy Act 1988, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by the Supplier, a debt collector, credit reporting agency and/or any other individual or organisation which maintains credit references and/or default listings.
14.2 The Supplier may give information about the Customer to a credit reporting agency for the purposes of obtaining consumer and commercial credit reports and/or lodging consumer and commercial defaults on the Customer’s credit file. This information may be given before, during or after the provision of credit to the Customer and will be in accordance with the Privacy Act 1988 and subsequent amendments.
15. SECURITY & CHARGE
The Customer hereby charges all property, both equitable and legal, present or future of the Customer in respect of any monies that may be owing by the Customer to the Supplier under the terms and conditions or otherwise and hereby authorises the Supplier or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the Customer at any time..
16. GENERAL MATTERS
16.1 Supplier’s Samples
The value of the sample/s taken by a Customer and not returned or returned damaged will be charged to the Customer.
16.2 Prototype Work
The Customer shall pay all costs, losses or expenses incurred by the Supplier for prototype Work requested by the Customer.
16.3 Colour Variation
16.3.1 The Customer accepts that there may be a slight colour variation from the original sample an order was taken from.
16.3.2 The Customer agrees to allow a colour variation of ten percent (10%) on reordered Goods.
16.4 Title in the Goods
Title in the Goods shall pass to the Customer on full payment of the Goods made to the Supplier.
Any provision in these terms and conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these terms and conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
16.6 Governing Law and Jurisdiction
These terms and conditions are governed by the laws of the State of Queensland and all disputes arising between the Customer and the Supplier will be submitted to the Brisbane Registry of any Court as is competent to hear the matter.