Bullant Designs Terms of Service
These Terms and Conditions are to be incorporated into any contact between the Company and the Customer for the supply of Goods and/or Services by the Company to the Customer.
General Definitions and Interpretation
The following definitions apply unless the context requires otherwise:
(a) ‘Company’ means BullAnt Designs ABN 36 798 670 474;
(b) ‘Customer’ means any person, firm, company, government body or other entity which the Company contract to supply Goods and/or Services;
(c) ‘Goods’ means all Goods supplied by the Company to the Customer or to such other party or location that the Customer may direct;
(d) ‘Services” means all Services supplied by the Company to the Customer or to such other party or location that the Customer may direct;
(e) ‘GST’ means A New Tax System (Goods and Services) Act, 1999;
(f) ‘Order’ means an order placed with the Company for Goods and/or Services’
(g) ‘Quotation’ means the price estimation for the provision of Goods and/or Services provided by the Company in respect of any enquiry made by the Customer;
(h) ‘Insolvency event’ shall occur when: (except for the purpose of a solvent reconstruction or amalgamation previously approved by the Company in writing:
– an application or an order appointing an Administrator, Receiver, Provisional Liquidation or Liquidator is made;
– proceedings are commenced;
– a resolution is passed or proposed in a notice of meeting for the winding up, dissolution, official management or voluntary administration of the Customer;
– an application to a court of other steps are taken for the winding up, dissolution, official management or voluntary administration of the Customer;
– the Customer enters into any arrangement, compromise or composition with or assignment for the benefits of its creditors or any class of them;
– the Customer ceases, suspends or threatens to cease or suspend the conduct of its business or disposes of or threatens to dispose of its assets other than the ordinary course of its business;
– the Customer is or is deemed under any application legislation to be, unable to pay its debts when they fall due (other than as a result of the failure to pay, deed or claim the subject of a good faith dispute) or stops or suspends or threatens to stop or suspend the payment of all or any class of its of its debts:
– a receiver, manager, administrator or similar officer is appointed to the Customer or any part of its property or a distress, attachment or other execution is levied or enforced;
– or (in the case of a Customer who is a natural person) the Customer commits an act of bankruptcy.
1.1 Any Quotation given by the Company is open for acceptance for a period of (30) Thirty Days. The Company many extend this acceptance period under certain circumstances in writing.
1.2 The prices quoted in any Quotation/Order are inclusive of GST (Goods and Services Tax) however a split up of prices and taxes will be provided.
1.3 The Price for Goods and/or Services shall be as specified by the Company from time to time and may be varied at the Company’s discretion and all prices quoted in any Quotation are subject to alternation at any time within (3) Thirty days of such Quotation. Prices quoted in ay Quotation are subject to the cost of raw materials used in the manufacturing of the Goods/Services and also the rates of pay and conditions of employment of employees of the Company remaining unaltered from the date of the Quotation. If any rise or all in one or more of these items shall take place prior to or during manufacture of the Goods/Services the subject of any Quotation, the price quoted for the Goods not then manufactured shall be varied by such amount as the accountant of the Company certifies in writing is the amount of the rise or fall in the costs to the Company of manufacturing the said Goods/Services. Any such certificate shall be conclusive evidence of the matters stated in it.
1.4 Alterations to garments/articles (whether the property of the Customer, of the Company or of any third party) to meet Customers’ requirements and replacement or renewal of such garments/articles shall be paid for by the Customer.
1.5 If the Customer provides the Company with a sample or samples of any Goods and the Customer subsequently places an order with the Company, which the Company accepts, the Company reserves the right to charge for any sample or samples made on behalf and specifically for that Customer.
1.6 Quotations and orders placed by Customers on such quotations are based on the information and details provided by the Customer to the Company. Where exact specifications of the scope, nature or extent of the work are not available to the Company at the time of providing a quotation, such quotations are estimates only. In the event the scope, nature or extent of the work required to be undertaken by the Company to produce the Goods or provide the service change or the Customer requests any changes to be made, the Customer will be responsible for and pay for all extra costs and charges associated with such changes.
2.1 The Customer shall pay all amounts due to the Company upon the Customer placing the order.
2.2 The Company also reserves the right to the extent permitted by law to charge all bank and other credit provider or facility fees and charges incurred by the Company in processing the Customer’s payment, including (without limitation) by credit card or for dishonoured payment.
3. Supply of Goods and Services
The Company may at any time, as its sole discretion, refuse to supply or refuse to continue to supply, Goods to the Customer when money is outstanding on previous orders.
All orders for Goods or Services from Customers which may be accepted by the Company are accepted on the following conditions (the “Conditions”). Any conditions of purchase offered by Customers which purport to add to or are otherwise inconsistent with the Conditions shall be deemed to be waived by the Customer upon placement of an order by the Customer with the Company unless such conditions of purchase are expressly agreed to by the Company in writing.
No order accepted by the Company (in writing, orally or by conduct) may be cancelled or deferred by the Customer without the prior written consent of the Company.
The Company reserves the right to require orders to be for a minimum value determined by the Company from time to time and to otherwise accept in whole or in part any orders for Goods or Services by Customers or to decline such orders.
The Company making the Goods available for collection by the Customer Ex Works (the Company’s premises) (unless other terms of supply have been agreed and accepted by the Company in writing on an order by order basis).
4.1 The Customer is not entitled to make any complaint or receive any adjustment in price for defects in the Goods where such defects comprise of less than 2.5% of the amount of the Goods on order.
4.2 The Company may from time to time, by notice in writing to the Customer, vary these Conditions of Sale and fix, give or vary any price, amount or direction referred to in these Conditions of Sale as being fixed or given by the Company.
4.3 Any variation to this Agreement must be in writing and signed by both parties PROVIDED THAT a director of the respective party in accordance with this Agreement are hereby authorised by that party to sign on its behalf of any variations to this Agreement.
5. Entire Conditions
These Conditions of Sale are the entire contact between the Company and the Customer and whether or note there is any inconsistency, apply to the entire exclusion of and prevail over any terms and conditions included in any Order placed by the Customer.
6.1 The Customer may inform the Company when deliveries of Goods are required. If the Company fails to deliver the Goods at the times so informed, the Customer shall not be entitled to cancel the contract for those Goods and any other Goods ordered but then undelivered, not shall the Company be liable for damages in any way attributable to the said failure.
6.2 If the Customer has not collected or taken delivery of Goods ordered by any date by which the Customer has informed the Company that the delivery of the Goods is required or by a date six (6) months after the date of the Customers order for the Goods (whichever is earlier) the Company shall be entitled to deliver and the Customer is obliged to accept the whole of the Goods ordered which are then undelivered. Payment of those Goods and any outstanding will be enforceable upon delivery of those Goods.
7. Goods in Transit
The Company shall not be responsible for any loss or damage to Goods in transit or otherwise once they have been delivered to the Customer as aforesaid. If (where applicable) the Customer has not made or notified the Company of arrangements for delivery, the Customer hereby authorises and requests the Company to nominate a carrier to take delivery of the Goods from the Company on behalf and at the risk of the Customer for carriage to the Customer or as the Customer directs. Arrangements for insurance of the Goods are the responsibility of the Customer. Where the Company nominates a carrier on behalf of the Customer, all freight and other carriage charges will be billed to the Customer.
Signature of any delivery note by any agent, employee or representative of the Customer (or where delivery is to the Customer’s carrier, by such carrier or its agent) shall be conclusive proof of delivery.
The Company will render to the Customer such reasonable assistance as may be necessary to press claims on carriers provided the Customer must have notified the Company and the carrier in writing immediately if any loss or damage is discovered on receipt of Goods and must lodge a claim on the carrier within 3 days of the date of receipt of the Goods. Upon the delivery the insurable risk in the Goods passes to the Customer.
8. Returns and Cancellation
8.1 The Customer acknowledges that where Goods of a particular style, colour and finish are specified, the Company may not be able to match such style, colour and finish and any minor variations in the total Order placed by the Customer are acceptable and do not give the Customer grounds to reject the Goods or cancel the Agreement on that basis.
8.2 Without limiting the generality of anything else in this Agreement, the Company may in it discretion and without any legal obligation to do so permit Goods, which have been collected by Customer or delivered to a Customer to be returned upon terms that the Customer is allowed the credit for the price of the Goods. However, the Company warns that it will not exercise its discretion in favour of a Customer unless:
– the Goods have been previously inspected at the customers premises by a duly authorised representative of the Company who after such inspection agrees to receive them back; or
– the Goods are returned to the Company’s premises accompanied by a form of advice showing the relevant invoice number, total quantity supplied, quantity rejected and reason for rejection within (14) fourteen days of delivery, and the Company, after inspection agrees to receive them back.
– the Company must be informed of the Customer’s intention to return Goods and any return must be authorised in writing by the Company including nominated freight carrier for such return.
8.3 Credit claims shall not be accepted by the Company where the Goods are samples
8.4 Goods for return must be in original packaging and be in a saleable condition
8.5 Superseded or deleted range items cannot be returned for credit by the Customer
8.6 No returns on SALE items
8.7 Without prejudice to any other rights of the Company to sue for breach of contract, it is expressly agreed and understood that once the Company has written a production order for Goods ordered any cancellation of the order can only be made with the consent in writing of the Company. The Company warns that if such consent is given it shall only be on terms, which indemnify it against loss.
8.8 If the Goods have been modified, altered or changed in any way as request by Customer to suit their needs a refund can not be provided. However, the Company will do everything possible to ensure that the Customer is satisfied with their Goods.
8.9 If Artwork has been created as requested by Customer and the Customer has decided to no longer progress with order, Artwork must be paid in full.
9.1 The Company makes not warranties or representations (other than those warranties and representations implied by statute and which cannot be excluded, restricted or modified by the agreement of the parties) in relation to the Goods, their manufacture or use, and the Customer accepts the Goods entirely at his own risk. The Customer further acknowledges and agrees that the Company shall not be liable for any loss or damage whatsoever attributable to any quality or defect of the Goods or the use thereof in any way arising out of any warranty or duty express or implied contractual or statutory or otherwise and not being a warranty implied or duty imposed by statute which cannot be excluded restricted or modified by the agreement of the parties.
In relation to any loss or damage whatsoever attributable to any quality or defect of the Goods or the use thereof in any way arising out of the warranty implied or duty imposed by statute which cannot be excluded restricted or modified by the agreement of the parties the liability of the Company shall be limited to the replacement or repair of those particular Goods supplied by the Company the subject of such loss or damage. The Company shall not be liable for any consequential loss or damage, which may be sustained by the Customer in relation to the Goods.
The loss or damage referred to in this clause shall include without limiting the foregoing loss or damage caused by the negligence or wilful act or default of the Company or others whether or not such loss or damage is foreseeable or contemplated by the Company. The Customer in accepting the delivery of the Goods and not seeking a credit from them strictly in accordance with the provisions of Clause 14 hereof agrees that no warranties or representations (other than those warranties and representations implied by statute and which cannot be excluded restricted or modified by the agreement of the parties) have been made by the Company in relation to the Goods their manufacture or use.
9.2 The Customer releases and indemnifies, agrees to release and indemnify, keep released and indemnified the Company and save harmless the Company from any and all suits actions claims costs demands or proceedings (whether brought by the Customer or any other person or persons, corporation or corporations) in respect of or arising out of anything attributed to any quality or defect of the Goods or the use thereof to the extent that such suits actions claims costs demands or proceeding are in excess of the liability accepted by the Company to replace or repair the particular Goods supplied by the Company the subject of such loss or damage where such liability arises out of warranty implied or duty imposed by statute which cannot be excluded restricted or modified by agreement of the parties.
9.3 The Company shall have no legal liability for any loss or damage to garments/articles (whether the property of the Customer or of any third party, whether arising by negligence or otherwise). The Company shall have no legal liability for any consequential loss arising from such loss or damage to garments/articles. The Customer agrees to indemnify the Company against all claims whatsoever for loss or damage to such garments/articles. It is expressly agreed that the Company is not obliged to insure such garments/articles.
9.4 In the event that the Company has provided or shall provide any information or advice to the Customer in whatsoever form in relation to the manufacture or use of the Goods, it is agreed by the Customer that all such information and advice has been or will be provided by the Company without liability on the part of the Company, its servants or agents for any loss or damage howsoever caused including negligence or wilful act or default for any other reason whatsoever and the Customer acknowledges that no reliance is placed by the Customer upon the accuracy or otherwise of such information or advice.
9.5 The Customer agrees with the Company, that it will not bring any claim, suit, action or proceeding against any director, employee or agent for the Company, arising from or related to the supply of any Goods by the Company to the Customer or the performance or any work by the Company for the Customer or the tendering of any advice by the Company to the Customer.
10. General Matters
10.1 It is a condition of sale of any article or drawing or design or prototype that the
copyright, patent rights and design rights contained in the article or in the article to which the design drawing or prototype relates remain the property of the Company, and no transfer of any rights included in the price paid or agreed to be paid whether or not such a price includes a figure for designing or producing the article. All persons are warned that any unauthorised manufacture, use or sale of such article may constitute an infringement of such rights, a breach of contract, and give rise to an action for damages.
10.2 If a Customer shall submit to the Company an order which bears printed terms and conditions, it is expressly agreed that those terms and conditions shall not be part of any contract between the Company and the Customer. The General Terms and Conditions of the Company shall be the ones which apply to any contract between the Company and the Customer. Without limiting the generality of the foregoing, the Customer agrees that if it accepts any Goods from the Company and does not seek a credit from them in strict accordance with clause 8 hereof, it shall be acknowledging and agreeing that the General Terms and Conditions of the Company apply to the sale of those Goods, and that the Company has relied upon the applicability of its General Terms and Conditions in the manner in which it has conducted its business.
10.3 If any of these Terms and Conditions of Sale or any part thereof is found to be invalid or illegal then that term or condition or part thereof shall be deemed deleted and such invalidity or illegality shall not affect any other term or condition in whole or in part.
11. Dispute Resolution
11.1 The parties shall, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this Agreement prior to commencing any court proceedings.
11.2 If any party requires resolution of a dispute, it shall do so in accordance with the provisions of this clause and compliance with these provisions in condition precedent to any entitlement to claim relief or remedy whether by way of proceedings in a court of law or otherwise in respect of such disputes, but nothing contained herein prevents or precludes a party from applying at any time from a court for interim injunctive relief.
11.3 If a party requires a resolution of a dispute it shall immediately submit full details of the dispute to the chief executive officer of the other party.
11.4 If the dispute is not resolved through negotiation between the parties either party may submit the dispute for mediation in accordance with and subject to the Australian Commercial Disputes Centre’s Guidelines for Commercial Mediation.
11.5 If after a period of forty-two (42) days from the commencement of the mediation, the parties have not been able to resolve or agree on a process to resolve the dispute, at the written request of either party the dispute will be submitted for arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations of the Institute of Arbitrators Australia or other similar commercial arbitration organisation and generally in accordance with the Commercial Arbitrations Act (QLD).
11.6 The arbitration will be conducted in Sydney, Australia by the Australian Commercial Disputes Centre. Each party shall be entitled to representation at such arbitration by duly qualified legal practitioners.
11.7 The finding of the arbitrator is final and binding on the parties and no appeal lies therefrom except on an issue of law.
11.8 Until a dispute is resolved, whether by agreement between the parties or by arbitration, the parties are obliged to perform their obligations under this Agreement.
11.9 If a dispute arises out of or relates to this Agreement or the breach, termination, validity or subject matter thereof, the parties agree to make every effort to resolve the dispute by mutual negotiation.
11.10 Nothing in this clause prevents any party from commencing legal proceedings at any time against the other party provided that such proceedings do not relieve any party from carrying out their obligations under this clause.
12. Force Majeure
The Company is not liable for any loss incurred by the Customer as a result of the Company’s delay or failure to meet an Order or to observe these Conditions of Sale due to any event beyond the reasonable control of the Company.
13. No Merger
The provisions of clauses 2, 6, 7, 8, 9 and 11 of this Agreement do not merge on termination of this Agreement or on payment of the full contract price and shall continue in full force and effect.
This agreement shall be governed and construed in accordance with the laws in force in Queensland and the parties hereby agree to submit to the non-exclusive jurisdiction of the Courts of that State.
Any notice demand or other document under or related to this Agreement shall be in writing and shall be sufficiently served if delivered personally or sent by facsimile or prepaid ordinary mail addressed to the party to be served at the address of such party specified in the Schedule or at such other address that may from time to time be notified in writing and such notice, demand or other document shall be deemed to have been delivered at the time of delivery or, if service is affected in any other manner set out above, at the time when it would in the ordinary course be delivered.
Each provision of this Agreement is severable and, in the event, that any provision is declared invalid or unenforceable for any reason then each and every other provision shall nevertheless remain in full force and effect.
This Agreement may be executed in as many counterparts as may be necessary or convenient and all such counterparts taken together constitute one and the same instrument.
18. Legal Fees
Each party will bare its own legal fees associated with the preparation, negotiation, engrossment and execution of this Agreement.
The failure of a party at any time to enforce or assist upon the strict observance of any provision of this Agreement, does not operate and may not be construed as a waiver of any subsequent breach of this Agreement.
Goods and Services are guaranteed to be free of defects in material and workmanship at the time of delivery, taking into account reasonable tolerances and variations. Should any such defect exist at the time of delivery, which in the Company’s opinion is due to faulty materials or workmanship the Company undertakes to repair or to replace any such defective Goods or Services without charge, provided the Goods have not been tampered with, repaired by persons other than the Company or otherwise altered or damaged and are advised and returned to the Company at the Customer’s expense.
To the maximum extent permitted by law and subject to the following paragraph of this Clause 20, shall be in lieu of and to the exclusion of any warranty, condition or liability express or implied by law in respect of the description, quality, suitability or fitness for any particular purpose of Goods or Services or otherwise, and the Company shall not be under any liability, whether in contract, tort or otherwise, for any injury, damage or loss whatsoever arising in any way in connection with the supply or use of the Goods or from any service provided, including (without limitation) direct, indirect, special or consequential loss or damage of any kind arising from claims by the Customer, third parties or otherwise.
The Customer agrees that the liability of the Company (which cannot be limited beyond the following provisions) is limited to:
(a) in the case of the supply of Goods, any 1 or more of the following (at the Company’s option):
(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair of the Goods;
(iii) the payment of the costs of replacing the Goods or of acquiring equivalent Goods; or
(iv) the payment of the costs of having the Goods repaired; or
(b) in the case of the supply of Services, any 1 or more of the following (at the Company’s option):
(i) the supply of the Services again; or
(ii) the payment of the costs of having the Services supplied again.
Without reducing the effect of, and subject always to, the Company’s total aggregate liability (if any) to a Customer for any particular order for the supply of Goods or Services by the Company to the Customer will not, in any event, exceed the amount invoiced by the Company to the Customer for the said order.