“BDBD” shall mean Benita Dwyer Graphic Design T/A BD Brand Design its successors and assigns or any person acting on behalf of and with the authority of Benita Dwyer Graphic Design T/A BD Brand Design.
“Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by BDBD to the Client.
“Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
“Goods” shall mean Goods supplied by BDBD to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by BDBD to the Client.
“Services” shall mean all Services supplied by BDBD to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
“Price” shall mean the price payable for the Goods as agreed between BDBD and the Client in accordance with clause 3 of this contract.
BDBD shall have the right to display their logo on the Client's marketing documentation and websites.
Any instructions received by BDBD from the Client for the supply of Goods and/or the Client's acceptance of Goods supplied by BDBD shall constitute acceptance of the terms and conditions contained herein.
Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of BDBD.
The Client shall give BDBD not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client's name and/or any other change in the Client's details (including but not limited to, changes in the Client's address, facsimile number, or business practice). The Client shall be liable for any loss incurred by BDBD as a result of the Client's failure to comply with this clause.
Price And Payment
At BDBD's sole discretion the Price shall be either:
as indicated on invoices provided by BDBD to the Client in respect of Goods supplied; or
BDBD's quoted Price (subject to clause 3.2) which shall be binding upon BDBD provided that the Client shall accept BDBD's quotation in writing within thirty (30) days; or
as indicated on BDBD's estimate form or work authority form.
BDBD reserves the right to change the Price in the event of a variation to BDBD's quotation.
Where the Client's order is valued up to six hundred dollars ($600), work will commence once BDBD has received full payment for such order.
All initial concepts developed by BDBD shall be charged at BDBD's standard hourly rate as shall all additional concepts.
At BDBD's sole discretion a deposit may be required.
BDBD may submit a detailed payment claim at intervals not less than two weeks for work performed up to the end of each two weeks. The value of work so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has been finally agreed between the parties.
Payment shall be due on delivery of the Goods.
Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice and work may cease with any late payments.
Payment will be made by cash, or by cheque, or by bank cheque, or by credit card excluding Amex and Diners (plus a surcharge of up to three point seven two percent (3.72%) of the Price), or by direct credit, or by any other method as agreed to between the Client and BDBD.
GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
Delivery Of Goods
At BDBD's sole discretion delivery of the Goods shall take place when:
the Client takes possession of the Goods at BDBD's address; or
the Client takes possession of the Goods at the Client's nominated address.
The costs of delivery are included in the Price.
The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then BDBD shall be entitled to charge a reasonable fee for redelivery.
Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
such discrepancy in quantity shall not exceed five percent (5%); and
the Price shall be adjusted pro rata to the discrepancy.
The failure of BDBD to deliver shall not entitle either party to treat this contract as repudiated.
BDBD shall not be liable for any loss or damage whatever due to failure by BDBD to deliver the Goods (or any of them) promptly or at all.
If BDBD retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, BDBD is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by BDBD is sufficient evidence of BDBD's rights to receive the insurance proceeds without the need for any person dealing with BDBD to make further enquiries.
Where third party service providers are utilised, BDBD has no responsibility for the services provided by that provider or any issues resulting from the engagement of such provider.
BDBD and Client agree that ownership of the Goods shall not pass until:
the Client has paid BDBD all amounts owing for the particular Goods; and
the Client has met all other obligations due by the Client to BDBD in respect of all contracts between BDBD and the Client.
Receipt by BDBD 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 BDBD's ownership or rights in respect of the Goods shall continue.
It is further agreed that:
where practicable the Goods shall be kept separate and identifiable until BDBD shall have received payment and all other obligations of the Client are met; and
until such time as ownership of the Goods shall pass from BDBD to the Client BDBD may give notice in writing to the Client to return the Goods or any of them to BDBD. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
BDBD shall have the right of stopping the Goods in transit whether or not delivery has been made; and
if the Client fails to return the Goods to BDBD then BDBD or BDBD's agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
the Client is only a bailee of the Goods and until such time as BDBD has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for BDBD; and
the Client shall not deal with the money of BDBD in any way which may be adverse to BDBD; and
the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of BDBD; and
BDBD can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that BDBD will be the owner of the end products.
The Client hereby disclaims any right to rescind, or cancel any contract with BDBD or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by BDBD and the Client acknowledges that the Goods are bought relying solely upon the Client's skill and judgment.
Where BDBD provides advice to the Client, such advice is given in good faith only. The Client acknowledges that BDBD shall not be liable for any claims howsoever arising out of any advice given.
The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify BDBD of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford BDBD an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which BDBD has agreed in writing that the Client is entitled to reject, BDBD's liability is limited to either (at BDBD's discretion) replacing the Goods or repairing the Goods, except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer's discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
Goods will not be accepted for return other than in accordance with 8.1 above.
The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
For Goods not manufactured by BDBD, the warranty shall be the current warranty provided by the manufacturer of the Goods. BDBD shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
Where BDBD has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in BDBD, and shall only be used by the Client at BDBD's discretion. The Client shall not reproduce any material without the express written permission of BDBD. The Client shall not share any material provided by BDBD to a third party who can or may use such material for commercial gain.
The Client warrants that all designs or instructions to BDBD will not cause BDBD to infringe any patent, registered design or trademark in the execution of the Client's order and the Client agrees to indemnify BDBD against any action taken by a third party against BDBD in respect of any such infringement.
Default & Consequences of Default
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 one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
If the Client defaults in payment of any invoice when due, the Client shall indemnify BDBD from and against all costs and disbursements incurred by BDBD in pursuing the debt including legal costs on a solicitor and own client basis and BDBD's collection agency costs.
Without prejudice to any other remedies BDBD may have, if at any time the Client is in breach of any obligation (including those relating to payment), BDBD may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. BDBD will not be liable to the Client for any loss or damage the Client suffers because BDBD has exercised its rights under this clause.
If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
Without prejudice to BDBD's other remedies at law BDBD shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to BDBD shall, whether or not due for payment, become immediately payable in the event that:
any money payable to BDBD becomes overdue, or in BDBD's opinion the Client will be unable to meet its payments as they fall due; or
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
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Security And Charge
Despite anything to the contrary contained herein or any other rights which BDBD may have howsoever:
where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to BDBD or BDBD's nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that BDBD (or BDBD's nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
should BDBD elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify BDBD from and against all BDBD's costs and disbursements including legal costs on a solicitor and own client basis.
the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint BDBD or BDBD's nominee as the Client's and/or Guarantor's true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
BDBD 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 BDBD shall repay to the Client any sums paid in respect of the Price. BDBD shall not be liable for any loss or damage whatever arising from such cancellation.
In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by BDBD (including, but not limited to, any loss of profits) up to the time of cancellation.
In the event the Client cancels delivery of the Goods after work has commenced, then BDBD reserves the right to charge a cancellation fee up to or equal to fifty percent (50%) of the original price:
any monies already paid shall be applied as part settlement of this cancellation fee.
the Goods shall be deemed cancelled where BDBD is unable to contact the Client on more than three (3) separate occasions.
The Client is required to give forty eight (48) hours' notice to cancel or postpone on-site work including meetings. Should the Client give less than forty eight (48) hours' notice, BDBD reserves the right to shall a cancellation fee equivalent to fifty percent (50%) of the fees for the affected work.
Privacy Act 1988
The Client and/or the Guarantor/s agree for BDBD to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by BDBD.
The Client and/or the Guarantor/s agree that BDBD may exchange information about the Client and the Guarantor/s 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 Client; and/or
to notify other credit providers of a default by the Client; and/or
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
to assess the credit worthiness of Client and/or Guarantor/s.
The Client consents to BDBD 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 BDBD for the following purposes and for other purposes as shall be agreed between the Client and BDBD or required by law from time to time:
provision of Goods; and/or
marketing of Goods by BDBD, its agents or distributors in relation to the Goods; and/or
analysing, verifying and/or checking the Client's credit, payment and/or status in relation to provision of Goods; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
enabling the daily operation of Client's account and/or the collection of amounts outstanding in the Client's account in relation to the Goods.
BDBD may give information about the Client to a credit reporting agency for the following purposes:
to obtain a consumer credit report about the Client; and/or
allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
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.
These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
BDBD shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by BDBD of these terms and conditions.
In the event of any breach of this contract by BDBD the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
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 BDBD.
BDBD may license or sub-contract all or any part of its rights and obligations without the Client's consent.
BDBD reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which BDBD notifies the Client of such change.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
The failure by BDBD to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect BDBD's right to subsequently enforce that provision.