Terms and Conditions of Trade
1. Definitions
1.1 “Seller” means Classique International Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Classique International Pty Ltd.
1.2 “Customer” means the person/s buying the Products as specified in any invoice, document, or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Products” means all Products or Services supplied by the Seller to the Customer at the Customer’s request from time to time; and:
(b) includes:
(ii) advice provided by the Seller to the Customer, such as technical advice and support, and all charges for time and attendance;
(iii) the supply of carry bags and related items;
(iv) hire charges, insurance charges or any fee or charge associated with the supply of Products.
1.4 “Price” means the Price payable for the Products as agreed between the Seller and the Customer in accordance with clause 6 below, and:
(a) includes all disbursements (e.g. charges the Seller pays to others on the Customer’s behalf); and
(b) is quoted in Australian Dollars ($AUD)
2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for Products or accepts Delivery.
2.2 These terms and conditions may only be amended with the Seller’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Seller.
3. Orders
3.1 Orders can be made by phone, fax, or email. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 (NSW & SA), the Electronic Transactions Act 2001 (ACT), the Electronic Transactions (Victoria) Act 2000, the Electronic Transactions Act 2003 (WA), the Electronic Transactions (Northern Territory) Act 2000, Section 14 of the Electronic Transactions (Queensland) Act 2001, Section 7 of the Electronic Transactions Act 2000 (TAS), Section 22 of the Electronic Transactions Act 2002 (NZ) (whichever is applicable), or any other applicable provisions of that Act or any Regulations referred to in that Act.
3.2 The Customer acknowledges that a minimum order level applies, and the Seller shall not accept orders of less than seventy-five dollars ($75).
3.3 In the event the Products ordered are out of stock the Customer may either cancel the order or the Products can be placed on back order and supplied when they become available.
3.4 The final quantity (and subsequent invoice) for custom print orders is conditional on a variance of ten percent (10%) for shortages and over-runs, and may vary accordingly. Any surplus within this tolerance will be invoiced to the Customer accordingly.
4. “Pull and Pay‟ Option
4.1 Bulk ordered Products may (subject to clause 4.2) be stored with the Seller until such time as they are required for use. In this circumstance, the Customer will be invoiced for the Products only as the Products are delivered to the Customer.
4.2 This facility may be provided to the Customer at the Seller’s sole discretion and subject to minimum order levels and on the condition that all ordered Products will be delivered to the Customer, and correspondingly invoiced in full by the Seller, within six (6) months from the date of the original order.
4.3 If any ordered Products remain in the Seller’s possession at the expiry of the six (6) month period, they will either be delivered to the Customer and invoiced in full at that time, or treated according to clause 17.
5. Change in Control
5.1 The Customer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply with this clause.
6. Price and Payment
6.1 At the Seller’s sole discretion the Price shall be either:
6.3 At the Seller’s sole discretion, a non-refundable deposit may be required, the amount of which equates to thirty percent (30%) of the Price.
6.4 Time for payment for the Products (“Due Date”) being of the essence, the Price will be payable by the Customer on the date/s determined by the Seller, which may be:
6.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and the Seller.
6.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement for the sale of the Products. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer 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.7. Delivery
7.1 Delivery of the Products (“Delivery”) is taken to occur at the time that:7.2 At the Seller’s sole discretion, the cost of Delivery is in addition to the Price.
7.3 The Customer must take Delivery by receipt or collection of the Products whenever they are tendered for In the event that the Customer is unable to take Delivery as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.4 The Seller may deliver the Products in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7.5 Any time or date given by the Seller to the Customer is an estimate only. The Customer must still accept Delivery even if late and the Seller will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late.
8. Risk
8.1 Risk of damage to or loss of the Products passes to the Customer on Delivery and the Customer must insure the Products on or before Delivery.
8.2 If any of the Products are damaged or destroyed following Delivery but prior to ownership passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Products. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
8.3 If the Customer requests the Seller to leave Products outside the Seller’s premises for collection, or to deliver the Products to an unattended location, then such Products shall be left at the Customer’s sole risk.
9. Title
9.1 The Seller and the Customer agree that ownership of the Products shall not pass until:
(a) the Customer has paid the Seller all amounts owing to the Seller; and
(b) the Customer has met all of its other obligations to the Seller.
9.2 Receipt by the Seller 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 the Seller’s rights and ownership in relation to the Products, and this agreement, shall continue.
9.3 It is further agreed that, until ownership of the Products passes to the Customer in accordance with clause 9.1:
(a) the Customer is only a bailee of the Products and must return the Products to the Seller on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Products on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Products being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Products other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Products then the Customer must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand.(d) the Customer should not convert or process the Products or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs.
(e) the Customer irrevocably authorises the Seller to enter any premises where the Seller believes the Products are kept and recover possession of the Products (and any other property to which the Products are attached or in which the Products are incorporated). The Seller shall not be liable for any costs, damages, expenses, or losses incurred by the Customer (or any third party) as a result of this action, nor liable in contract or tort (or otherwise) in any way whatsoever, unless by statute such liability cannot be excluded. The Seller may either resell any repossessed Products and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain the repossessed Products and credit the Customer’s account with the invoice value thereof less such sum as the Seller reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs.
(f) the Seller may recover possession of any Products in transit whether or not Delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Products nor grant nor otherwise give away any interest in the Products while they remain the property of the Seller.
(h) the Seller may commence proceedings to recover the Price notwithstanding that ownership of the Products has not passed to the Customer.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Customer 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 Products and/or collateral (account) – being a monetary obligation of the Customer to the Seller for Services – that have previously been supplied and that will be supplied in the future by the Seller to the Customer.
10.3 The Customer undertakes to:
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 3(a)(i) or 10.3(a)(ii);
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Products and/or collateral (account) in favour of a third party without the prior written consent of the Seller;
(e) immediately advise the Seller of any material change in its business practices of selling the Products which would result in a change in the nature of proceeds derived from such sales.
10.4 The Seller and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by the Seller, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Customer must unconditionally ratify any actions taken by the Seller under clauses 10.3 to 10.5.
10.9 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 of the PPSA.
11. Security and Charge
11.1 In consideration of the Seller agreeing to supply the Products, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Customer indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.
11.3 The Customer irrevocably appoints the Seller and each director of the Seller as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Customer’s behalf.
12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
12.1 The Customer must inspect the Products on Delivery and must within seven (7) days of such time notify the Seller in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Products as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Seller to inspect the Products.
12.2 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”).
12.3 The Seller acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Seller makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Products. The Seller’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Customer is a consumer within the meaning of the CCA, the Seller’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If the Seller is required to replace the Products under this clause or the CCA, but is unable to do so, the Seller may refund any money the Customer has paid for the Products.
12.7 If the Customer is not a consumer within the meaning of the CCA, the Seller’s liability for any defect or damage in the Products is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by the Seller at the Seller’s sole discretion;
(b) limited to any warranty to which the Seller is entitled, if the Seller did not manufacture the Products;
(c) otherwise negated absolutely.
(b) the Seller has agreed that the Products are defective; and
(c) the Products are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Products are returned in as close a condition to that in which they were delivered as is possible.
12.9 Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, the Seller shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(b) the Customer using the Products for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Products after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by the Seller;
(e) fair wear and tear, any accident, or act of God.
12.10 The Seller may in its absolute discretion accept non-defective Products for return in which case the Seller may require the Customer to pay handling fees of up to ten percent (10%) of the value of the returned Products plus any freight costs.
12.11 Notwithstanding anything contained in this clause if the Seller is required by a law to accept a return then the Seller will only accept a return on the conditions imposed by that law.13. Intellectual Property
13.1 Where the Seller has designed, drawn or developed Products for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Seller.
13.2 The Customer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
13.3 The Customer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Products which the Seller has created for the Customer.
14. Default and Consequences of Default
14.1 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 the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Customer owes the Seller any money the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s contract default fee, and bank dishonour fees).
14.3 Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Products to the Customer. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause.
14.4 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
(a) any sums payable to the Seller become overdue, or in the Seller’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer 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 Customer or any asset of the Customer.
15. Cancellation
15.1 The Seller may cancel any contract to which these terms and conditions apply or cancel Delivery at any time before the Products are delivered by giving written notice to the Customer. On giving such notice the Seller shall repay to the Customer any sums paid by the Customer for the Products. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Customer cancels Delivery the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits).
15.3 Cancellation of custom orders, or orders for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
16. Privacy Act 1988
16.1 The Customer agrees for the Seller to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by the Seller.
16.2 The Customer agrees that the Seller may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
16.3 The Customer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit.
16.4 The Customer agrees that personal credit information provided may be used and retained by the Seller for the following purposes (and for other agreed purposes or required by):
(a) the provision of Products; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Products; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Products.
16.5 The Seller may give information about the Customer 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 Customer including credit history.
16.6 The information given to the CRB may include:
(a) personal information as outlined in 16.1 above;
(b) name of the credit provider and that the Seller is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’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 Customer no longer has any overdue accounts and the Seller has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of the Seller, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
16.8 The Seller will destroy personal information upon the Customer’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.
16.9 The Customer can make a privacy complaint by contacting the Seller via e-mail. The Seller 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 Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
17. General Lien
17.1 The Customer agrees that the Seller may exercise a general lien against any Products, or property belonging to the Customer that is in the possession of the Seller, for all sums outstanding under this agreement, and any other contract to which the Customer and the Seller are parties to, and if the lien is not satisfied within seven (7) days of the Due Date, the Seller may (having given notice of the lien) at their sole discretion either:
(a) remove such Products and store them in such a place and in such a manner as the Seller shall think fit and proper and at the risk and expense of the Customer; or
(b) sell such Products (or part thereof) upon such terms as they shall think fit, and apply the proceeds in, or towards, discharge of the lien and costs of sale, without being liable to any person for damage caused.
17.2 The lien of the Seller shall continue despite the commencement of proceedings, or judgment for any sums owing to the Seller having been obtained against the Customer.
18. General
18.1 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that 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.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which the Seller has its principal place of business, and are subject to the jurisdiction of the courts in that state.
18.3 Subject to clause 12, the Seller shall be under no liability whatsoever to the Customer (or any other person) for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer (or any other person), whether in contract or tort, arising out of a breach by the Seller of these terms and Alternatively, the Seller’s liability shall be limited to damages which under no circumstances shall exceed five hundred dollars ($500) per incident.
18.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
18.5 The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
18.6 The Customer agrees that the Seller may amend these terms and conditions at any time. If the Seller makes a change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Seller to provide Products to the Customer.
18.7 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 party.
18.8 The Customer 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.