Berlex Queensland – Terms & Conditions of Trade

Please note that a larger print version of these terms and conditions is available from Berlex on request. 24415© Copyright – EC Credit Control 1999 – 2016
1. Definitions
1.1 “Berlex” means BQ Promotional Pty (ATF BQ Trading Trust) T/A Berlex Queensland,
its successors and assigns or any person acting on behalf of and with the authority of
BQ Promotional Pty (ATF BQ Trading Trust) T/A Berlex Queensland.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document
or order, and if there is more than one Client is a reference to each Client jointly and
severally.
1.3 “Goods” means all Goods or Services supplied by Berlex to the Client at the Client’s
request from time to time (where the context so permits the terms ‘Goods’ or
‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between Berlex and the
Client in accordance with clause 5 below.
1.5 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax
System (Goods and Services Tax) Act 1999” (Cth).
2. Acceptance
2.1 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
delivery of the Goods.
2.2 These terms and conditions may only be amended with the consent of both parties in
writing, and shall prevail to the extent of any inconsistency with any other document
or agreement between the Client and Berlex.
2.3 The Client acknowledges and accepts that all work undertaken by Berlex will be
subcontracted out in accordance with clause 17.6 and any claims for defects shall be
made to the manufacturer of the Goods in the first instance.
3. Electronic Transactions (Queensland) Act 2001
3.1 Electronic signatures shall be deemed to be accepted by either party providing that
the parties have complied with Section 9 of the Electronic Transactions (Queensland)
Act 2001 or any other applicable provisions of that Act or any Regulations referred to
in that Act.
4. Change in Control
4.1 The Client shall give Berlex 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 Berlex as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At Berlex’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Berlex to the Client; or
(b) the Price as at the date of delivery of the Goods according to Berlex’s current
price list; or
(c) Berlex’s quoted price (subject to clause 5.2) which will be valid for the period
stated in the quotation or otherwise for a period of thirty (30) days.
5.2 The Company reserves the right to change the Price in the event of a variation to
Berlex’s quotation. Any variation from the plan of scheduled works or specifications
(including, but not limited to, any variation as a result of additional works required due
to variations in print, logos, colour, configuration etc or as a result of increases to
Berlex in the cost of materials and labour or as a result of fluctuations in currency
exchange rates) will be detailed in writing and charged for on the basis of Berlex’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.
5.3 At Berlex’s sole discretion a non-refundable deposit may be required.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the
Client on the date/s determined by Berlex, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of progress payments in accordance with Berlex’s payment schedule;
(d) fourteen (14) days following the end of the month in which a statement is posted
to the Client’s address or address for notices.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking,
credit card or by any other method as agreed to between the Client and Berlex.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the
Client must pay to Berlex an amount equal to any GST Berlex must pay for any
supply by Berlex under this or any other agreement for the sale of the Goods. 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.
6. Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that Berlex (or
Berlex’s nominated carrier) delivers the Goods to the Client’s nominated address
even if the Client is not present at the address.
6.2 At Berlex’s sole discretion the cost of delivery is in addition to the Price.
6.3 Berlex may deliver the Goods in separate instalments. Each separate instalment shall
be invoiced and paid in accordance with the provisions in these terms and conditions.
6.4 Any time or date given by Berlex to the Client is an estimate only. The Client must still
accept delivery of the Goods even if late and Berlex will not be liable for any loss or
damage incurred by the Client as a result of the delivery being late.
7. Risk
7.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the
Client must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to
ownership passing to the Client, Berlex is entitled to receive all insurance proceeds
payable for the Goods. The production of these terms and conditions by Berlex is
sufficient evidence of Berlex’s rights to receive the insurance proceeds without the
need for any person dealing with Berlex to make further enquiries.
7.3 Whilst every care is taken by Berlex to carry out the instructions of the Client, it is the
Clients responsibility to undertake a final proof reading of the Goods. Berlex shall be
under no liability whatever for any errors not corrected by the Client in the final proof
reading. Should the Clients alterations require additional proofs this shall be invoiced
as an extra.
7.4 Berlex is under no obligation to provide samples of Goods ordered other than by
virtual (computerised) sample. Whilst every effort will be taken by Berlex to match
virtual colours with physical colours, Berlex will take no responsibility for any variation
between virtual sale samples and either the virtual sale sample displayed on the
Client’s computer and/or the final product. Should a physical sample be required this
will be provided on request by the Client and will be charged for as an extra including
return freight, the charge will be contra against final invoice.
7.5 While every effort will be taken by Berlex to match colours Berlex shall be under no
liability whatever to the Client for any variation in colours between sale samples and
the finished Goods.
7.6 Once accepted by the Client, Berlex’s written quotation shall be deemed to interpret
correctly the Client’s instructions, whether written or verbal. Where verbal instructions
only are received from the Client, Berlex shall not be responsible for errors or
omissions due to oversight or misinterpretation of those instructions.
8. Title
8.1 Berlex and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Berlex all amounts owing to Berlex; and
(b) the Client has met all of its other obligations to Berlex.
8.2 Receipt by Berlex 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.
8.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 8.1
that the Client is only a bailee of the Goods and must return the Goods to Berlex
on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for
Berlex and must pay to Berlex the proceeds of any insurance in the event of the
Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods
other than in the ordinary course of business and for market value. If the Client
sells, disposes or parts with possession of the Goods then the Client must hold
the proceeds of any such act on trust for Berlex and must pay or deliver the
proceeds to Berlex on demand.
(d) the Client should not convert or process the Goods or intermix them with other
goods but if the Client does so then the Client holds the resulting product on trust
for the benefit of Berlex and must sell, dispose of or return the resulting product
to Berlex as it so directs.
(e) the Client irrevocably authorises Berlex to enter any premises where Berlex
believes the Goods are kept and recover possession of the Goods.
(f) Berlex may recover possession of any Goods in transit whether or not delivery
has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant
nor otherwise give away any interest in the Goods while they remain the property
of Berlex.
(h) Berlex may commence proceedings to recover the Price of the Goods sold
notwithstanding that ownership of the Goods has not passed to the Client.
9. Personal Property Securities Act 2009 (“PPSA”)
9.1 In this clause financing statement, financing change statement, security agreement,
and security interest has the meaning given to it by the PPSA.
9.2 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 Goods that have
previously been supplied and that will be supplied in the future by Berlex to the Client.
9.3 The Client undertakes to:
(a) 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 Berlex
may reasonably require to;
(i) register a financing statement or financing change statement in relation to a
security interest on the Personal Property Securities 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 9.3(a)(i) or 9.3(a)(ii);
(b) indemnify, and upon demand reimburse, Berlex 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 Goods
charged thereby;
(c) not register a financing change statement in respect of a security interest without
the prior written consent of Berlex;
(d) not register, or permit to be registered, a financing statement or a financing
change statement in relation to the Goods in favour of a third party without the
prior written consent of Berlex;
(e) immediately advise Berlex of any material change in its business practices of
selling the Goods which would result in a change in the nature of proceeds
derived from such sales.
9.4 Berlex 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.
9.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130,
132(3)(d) and 132(4) of the PPSA.
9.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and
143 of the PPSA.
9.7 Unless otherwise agreed to in writing by Berlex, the Client waives their right to receive
a verification statement in accordance with section 157 of the PPSA.
9.8 The Client must unconditionally ratify any actions taken by Berlex under clauses 9.3
to 9.5.
9.9 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 the
PPSA.
10. Security and Charge
10.1 In consideration of Berlex agreeing to supply the Goods, 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).
10.2 The Client indemnifies Berlex from and against all Berlex’s costs and disbursements
including legal costs on a solicitor and own client basis incurred in exercising Berlex’s
rights under this clause.
10.3 The Client irrevocably appoints Berlex and each director of Berlex as the Client’s true
and lawful attorney/s to perform all necessary acts to give effect to the provisions of
this clause 10 including, but not limited to, signing any document on the Client’s
behalf.
11. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
11.1 The Client must inspect the Goods on delivery and must within seven (7) days of
delivery notify Berlex in writing of any evident defect/damage, shortage in quantity, or
failure to comply with the description or quote. The Client must notify any other
alleged defect in the Goods as soon as reasonably possible after any such defect
becomes evident. Upon such notification, the Client must allow Berlex to inspect the
Goods.
11.2 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).
11.3 Berlex acknowledges that nothing in these terms and conditions purports to modify or
exclude the Non-Excluded Guarantees.
11.4 Except as expressly set out in these terms and conditions or in respect of the Non-
Excluded Guarantees, Berlex makes no warranties or other representations under
these terms and conditions including but not limited to the quality or suitability of the
Goods. Berlex’s liability in respect of these warranties is limited to the fullest extent
permitted by law.
11.5 If the Client is a consumer within the meaning of the CCA, Berlex’s liability is limited
to the extent permitted by section 64A of Schedule 2.
11.6 If Berlex is required to replace the Goods under this clause or the CCA, but is unable
to do so, Berlex may refund any money the Client has paid for the Goods.
11.7 If the Client is not a consumer within the meaning of the CCA, Berlex’s liability for any
defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the
Client by Berlex in Berlex’s sole discretion;
(b) limited to any warranty to which Berlex is entitled, if Berlex did not manufacture
the Goods;
(c) otherwise negated absolutely.
11.8 Subject to this clause 11, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 11.1; and
(b) Berlex has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost
is not significant); and
(d) the Goods are returned in as close a condition to that in which they were
delivered as is possible.
11.9 Notwithstanding clauses 11.1 to 11.8 but subject to the CCA, Berlex shall not be
liable for any defect or damage which may be caused or partly caused by or arise as
a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were
designed;
(c) the Client continuing the use of any Goods after any defect became apparent or
should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by Berlex;
(e) fair wear and tear, any accident, or act of God.
11.10 Notwithstanding anything contained in this clause if Berlex is required by a law to
accept a return then Berlex will only accept a return on the conditions imposed by that
law.
12. Intellectual Property
12.1 Where Berlex has designed, drawn or developed Goods for the Client, then the
copyright in any designs and drawings and documents shall remain the property of
Berlex.
12.2 The Client warrants that all designs, specifications or instructions given to Berlex will
not cause Berlex to infringe any patent, registered design or trademark in the
execution of the Client’s order and the Client agrees to indemnify Berlex against any
action taken by a third party against Berlex in respect of any such infringement.
12.3 The Client agrees that Berlex may (at no cost) use for the purposes of marketing or
entry into any competition, any documents, designs, drawings or Goods which Berlex
has created for the Client.
13. Default and Consequences of Default
13.1 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 Berlex’s sole discretion such interest shall compound monthly at such
a rate) after as well as before any judgment.
13.2 If the Client owes Berlex any money the Client shall indemnify Berlex from and
against all costs and disbursements incurred by Berlex in recovering the debt
(including but not limited to internal administration fees, legal costs on a solicitor and
own client basis, Berlex’s collection agency costs, and bank dishonour fees).
13.3 Without prejudice to any other remedies Berlex may have, if at any time the Client is
in breach of any obligation (including those relating to payment) under these terms
and conditions Berlex may suspend or terminate the supply of Goods to the Client.
Berlex will not be liable to the Client for any loss or damage the Client suffers
because Berlex has exercised its rights under this clause.
13.4 Without prejudice to Berlex’s other remedies at law Berlex shall be entitled to cancel
all or any part of any order of the Client which remains unfulfilled and all amounts
owing to Berlex shall, whether or not due for payment, become immediately payable
if:
(a) any money payable to Berlex becomes overdue, or in Berlex’s opinion the Client
will be unable to make a payment when it falls due;
(b) 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; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is
appointed in respect of the Client or any asset of the Client.
14. Cancellation
14.1 Berlex may cancel any contract to which these terms and conditions apply or cancel
delivery of Goods at any time before the Goods are delivered by giving written notice
to the Client. On giving such notice Berlex shall repay to the Client any money paid by
the Client for the Goods. Berlex shall not be liable for any loss or damage whatsoever
arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any
and all loss incurred (whether direct or indirect) by Berlex as a direct result of the
cancellation (including, but not limited to, any loss of profits).
14.3 Cancellation of orders for Goods made to the Client’s specifications, or for nonstocklist
items, will definitely not be accepted once production has commenced, or an
order has been placed.
15. Privacy Act 1988
15.1 The Client agrees for Berlex to obtain from a credit reporting body (CRB) a credit
report containing personal credit information (e.g. name, address, D.O.B, occupation,
previous credit applications, credit history) about the Client in relation to credit
provided by Berlex.
15.2 The Client agrees that Berlex may exchange information about the Client with those
credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to 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/or
(d) to assess the creditworthiness of the Client including the Client’s repayment
history in the preceding two years.
15.3 The Client consents to Berlex being given a consumer credit report to collect overdue
payment on commercial credit.
15.4 The Client agrees that personal credit information provided may be used and retained
by Berlex for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in
relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit
facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
15.5 Berlex may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client
including credit history.
15.6 The information given to the CRB may include:
(a) personal information as outlined in 15.1 above;
(b) name of the credit provider and that Berlex is a current credit provider to the
Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g.
date of commencement/termination of the credit account and the amount
requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or
outstanding monies which are overdue by more than sixty (60) days and for
which written notice for request of payment has been made and debt recovery
action commenced or alternatively that the Client no longer has any overdue
accounts and Berlex has been paid or otherwise discharged and all details
surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of Berlex, the Client has committed a serious
credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than
one hundred and fifty dollars ($150).
15.7 The Client shall have the right to request (by e-mail) from Berlex:
(a) a copy of the information about the Client retained by Berlex and the right to
request that Berlex correct any incorrect information; and
(b) that Berlex does not disclose any personal information about the Client for the
purpose of direct marketing.
15.8 Berlex will destroy personal information upon the Client’s request (by e-mail) or if it is
no longer required unless it is required in order to fulfil the obligations of this
agreement or is required to be maintained and/or stored in accordance with the law.
15.9 The Client can make a privacy complaint by contacting Berlex via e-mail. Berlex will
respond to that complaint within seven (7) days of receipt and will take all reasonable
steps to make a decision as to the complaint within thirty (30) days of receipt of the
complaint. In the event that the Client is not satisfied with the resolution provided, the
Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
16. Dispute Resolution
16.1 If a dispute arises between the parties to this contract, then either party shall send to
the other party a notice of dispute in writing adequately identifying and providing
details of the dispute. Within fourteen (14) days after service of a notice of dispute,
the parties shall confer at least once, to attempt to resolve the dispute. At any such
conference, each party shall be represented by a person having authority to agree to
a resolution of the dispute. In the event that the dispute cannot be so resolved either
party may by further notice in writing delivered by hand or sent by certified mail to the
other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of
Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the
Conduct of Commercial Arbitration.
17. General
17.1 The failure by either party to enforce any provision of these terms and conditions shall
not be treated as a waiver of that provision, nor shall it affect that party’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.
17.2 These terms and conditions and any contract to which they apply shall be governed
by the laws of Queensland the state in which Berlex has its principal place of
business, and are subject to the jurisdiction of the courts in Queensland.
17.3 Subject to clause 11 Berlex 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 Berlex of these terms and conditions
(alternatively Berlex’s liability shall be limited to damages which under no
circumstances shall exceed the Price of the Goods).
17.4 Berlex may licence and/or assign all or any part of its rights and/or obligations under
this contract without the Client’s consent.
17.5 The Client cannot licence or assign without the written approval of Berlex.
17.6 Berlex may elect to subcontract out any part of the Services but shall not be relieved
from any liability or obligation under this contract by so doing. Furthermore, the Client
agrees and understands that they have no authority to give any instruction to any of
Berlex’s sub-contractors without the authority of Berlex.
17.7 The Client agrees that Berlex may amend these terms and conditions by notifying the
Client in writing. These changes shall be deemed to take effect from the date on
which the Client accepts such changes, or otherwise at such time as the Client makes
a further request for Berlex to provide Goods to the Client.
17.8 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 party.
17.9 Both parties warrant that they have the power to enter into this agreement and have
obtained all necessary authorisations to allow them to do so, they are not insolvent
and that this agreement creates binding and valid legal obligations on them.