Badge-a-minit Pty Ltd
32 Chapel Street, Norwood South Australia 5067
PO Box 659 Kent Town SA 5071
Ph (08) 8363 1655
Fax (08) 8362 0025
ABN: 27 934 675 686
1.1 "Vendor" shall mean Badge-a-minit Pty Ltd ABN 27 934 675 686 whose registered office is situated at 32 Chapel Street, Norwood, South Australia 5067 Australia.
1.2 "Goods" shall mean all or any of the goods or materials which from time to time the Vendor contracts to supply.
1.3 "Services" shall mean all or any of the services which from time to time the Vendor contracts to supply.
1.4 "Purchaser" means the person, firm, company or other corporation who places an order with the Vendor or otherwise contracts with the Vendor for any of the Goods or Services.
1.5 "Insolvency Event" shall mean all or any of the events that any distress or execution shall be levied upon only goods of the Purchaser or if the Purchaser offers to make any arrangement with its creditors or commits any act of bankruptcy or if a petition in bankruptcy is presented against the Purchaser or if any resolution or petition to wind up the Purchaser (other than for the purpose of amalgamation or reconstruction without insolvency) shall be presented or passed or if the Purchaser is placed under administration or if a receiver or manager shall be appointed over the whole or any part of the Purchaser's business or if the Vendor has any genuine reasons to believe the Purchaser is insolvent.
2.1 These conditions shall apply to all contracts, whether written, oral or implied for the supply of Goods or Services.
2.2 Any conditions of purchase or other terms provided by the Purchaser shall be of no effect whatsoever nor shall any variation or alteration of these conditions be of any effect unless made in writing and signed by or on behalf by the Vendor by a duly authorized signatory of the Vendor.
2.3 No binding contract shall be created by the placing of an order by the Purchaser unless and until the Vendor's written acknowledgement of the order shall have been posted or delivered which acknowledgement will be deemed to repeat these conditions. Alternatively, in the event that no such acknowledgement is sent, at the time of acceptance of any order for the Goods or Services by the Vendor binding contract will be created subject to these conditions.
Any quotations in whatever form given to the Purchaser is given subject to these conditions. The Vendor will not accept any obligation in respect of any quotation dated over thirty (30) days unless otherwise indicated in writing.
4.1 Subject to anything to the contrary contained in any quotation issued by the Vendor, prices for the Goods or Services are as referred to in the Vendor's price list current at the time of delivery and unless otherwise stated, are exclusive of GST and any other similar tax.
4.2 The Purchaser shall have no right of set-off whether statutory or otherwise
4.3 Unless otherwise expressly stated in writing by the Vendor, prices are exclusive of carriage, handling, packaging and any other insurance charges.
4.4 Unless otherwise expressly stated in writing by the Vendor, all prices payable must be settled in Australian dollars.
5. Payment and Default by Purchaser
5.1 Subject to sub-clauses 5.2 and 5.3, the Purchaser shall pay the Vendor for the Goods or Services (as the case may be) in full prior to dispatch or collection.
5.1.1 Subject to sub-clauses 5.2 and 5.3 approved account Purchasers will pay the Vendor within 30 days from date of invoice for Goods or Services as the case may be.
5.2 In the event that the Purchaser fails to make payment by the due date or otherwise commits a breach of these conditions or if an Insolvency Event occurs, the Vendor may in its absolute discretion and without prejudice to any other rights which it may have:-
5.2.1 suspend all future deliveries or supplies to the Purchaser under the contract in question or under any other contracts and/or terminate all or any part of such contract(s) without liability upon its part.
5.2.2 require payment in advance for any future deliveries
5.2.3 (in the case of nonpayment on or before the due date or on demand as mentioned in sub-clause 5.3 below) charge interest on the amount due on a day to day basis at the rate of 2.5% per month compounded annually from the time of delivery or date of invoice whichever is the earlier until the date of actual payment, whether before or after judgement.
5.3 Without prejudice to any other right the Vendor may have by virtue of paragraph 5.2 the Vendor may demand immediate payment of all sums whether or not due in the event that the Purchaser is the subject of an Insolvency Event.
5.4 All purchases are non-exchangeable, non-refundable and non transferable.
5.5 The Vendor uses an EFTPOS terminal for online credit care and EFTPOS transactions and does not store any credit information. The Vendor will not pass any of your personal information, including credit or debit card information to any third parties.
5.6 The Purchaser agrees that all details which you provide to us for the purpose of ordering goods, are correct and that the credit card you are using is your own and has sufficient funds to cover the cost of that order.
6. Delivery and Collection
6.1 Subject to the provision of clauses 4.3 and 7; the Vendor may arrange delivery to the Purchaser's premises at the Purchaser's request. In all other circumstances collection or delivery of Goods or goods upon which Services have been rendered will be made at the Vendor's premises at which the Goods are made or Services rendered.
6.2 When delivery or collection takes place at the Purchaser's premises it will be the Purchaser's responsibility to ensure delivery or collection can take place at the time and place specified or otherwise agreed. The Purchaser shall indemnify the Vendor against any loss or expense incurred as a result of these obligations. Without prejudice to the foregoing, if the Vendor or its agents or employees agree to assist in the loading or unloading (as the case may be) then the Vendor will not be liable for any loss or damage howsoever arising through any act, omission or negligence of any of its agents or employees.
6.3 Although given in good faith delivery times for the supply of Goods or the Services specified by the Vendor in its quotation or otherwise are intended as estimates only and are not therefore to be treated as being of the essence of the contract or binding by the Vendor. The Vendor will not be liable to the Purchaser for any loss or damage (direct or indirect) occasioned by its failure (whether as a result of its negligence or otherwise) to deliver the Goods or the Services by the date or within the time stated.
6.4 The right to deliver the Goods or Services in parts is expressly reserved by the Vendor and these conditions shall apply to any such part or parts mutatis mutandis.
6.5 Subject to clause 10 and to the extent permitted by law. In the case of the alleged shortage in or damaged to or defect in the Goods or goods upon which Services have been rendered:-
6.5.1 the Purchaser agrees to notify the Vendor in writing of any claim in respect thereof within seven days of its receipt by the Purchaser in the case of shortage or damage or in the case of a defect within twenty eight days of the defect becoming apparent together with written evidence in support of such claim in relation to the date of receipt: and
6.5.2 the Purchaser agrees to allow the Vendor a reasonable opportunity to inspect any such goods before any use is made of them or alteration is made thereto and to keep them in good order and store them so as to prevent damage arising.
6.5.3 Subject to clause 10 and to the extent permitted by law. The Purchaser shall have no claim against the Vendor for shortage, damage or defects unless the requirements as to notification set out in this sub-clause 6.5.1, .2 and .3 are strictly complied with by the Purchaser.
6.6 In the event that the Purchaser is responsible for collecting the Goods or any goods upon which Services have been rendered and such collection does not occur within seven days of the Purchaser having been informed that such goods are ready for collection, the Vendor may charge the Purchaser for the storage of any such goods until collection occurs in addition to the price for the Goods or Services.
6.7 If Purchaser's delivery address is outside of Australia, the purchaser may be subject to additional import duties and taxes. The Purchaser accepts that any and all charges of this nature are to be paid by the Purchaser. All international orders must be paid for in advance in Australian dollars. Bank transfers will attract processing and filing fees. All exports must have customs labels with brief descriptions of the contents accompanying export.
7.1 The liability for Goods or goods upon which Services have been rendered shall pass to the Purchaser at the time they are collected at the Vendor's works prior to loading or where the Vendor arranges delivery liability shall pass when the carrier collects the Goods or goods upon which services where rendered whilst in the possession of the carrier, the Vendor shall take all reasonable steps, at the Purchaser's expense, to assist the Purchaser to pursue any available claim against the carrier.
The Vendor shall be under no obligation whatsoever to accept any cancellation of any order once accepted. However, if the Vendor at its complete discretion agrees to accept any such cancellation or return, it may levy such charges as it, in its absolute discretion, sees fit.
9.1 The provisions of this clause shall apply until such time as the price of the Goods and/or Services have been paid for in full or payment has been made of all other sums owing to the Vendor at the date of this contract on any account whatsoever or howsoever arising whichever occurrence shall be late.
9.2 The property of the Goods shall remain with the Vendor and the Purchaser shall hold the Goods as fiduciary agent and bailee of the Vendor. 9.3 The Purchaser shall store the Goods separately from any other goods in such a manner that they can be identified as the property of the Vendor and shall ensure that the Goods are not incorporated in or mixed in or used as part of other goods.
9.4 Subject to sub-clauses 9.3, 9.5 and 9.6, the Purchaser shall be at liberty to sell or use the Goods in the ordinary course of its business as agent for the Vendor and the Vendor grants the Purchaser a licence for this purpose. The purchaser shall not however represent to any third parties that it is in any way acting for the Vendor and the Vendor will not be bound by or liable under any contracts or arrangements with third parties for the disposal of the Goods by the Purchaser, who will be solely responsible for any and all such liability.
9.5 The Purchaser shall account to the Vendor of the proceeds of any sale of the Goods and until such account is made, the Purchaser will hold the proceeds of sale upon trust for the Vendor. The Purchaser shall ensure any monies received for the Goods are not mixed with other monies or paid into any overdrawn bank account.
9.6 The power of sale given to the Purchaser by sub-clause 9.4 will automatically terminate if the Purchaser is the subject of an Insolvency Event. An Insolvency Event shall be deemed to be a fundamental breach of contract. Further, the Vendor may terminate the said power of sale at any time by written notice if the Purchaser is in default of payment of any sum due to the Vendor.
9.7 At any time after termination pursuant to 9.6 above the Vendor may repossess the Goods and the Purchaser hereby grants to the Vendor an irrevocable licence to enter upon any premises of the Purchaser for the purpose of so doing.
9.8 The Vendor shall be entitled to appropriate any payment made by the Purchaser in settlement of such invoices or accounts as the Vendor in its absolute discretion thinks fit notwithstanding any proposal to the contrary by the Purchaser.
9.9 Each of the foregoing sub-clauses shall, so far as the context permits, be read and construed independently of the other sub-clauses so that if one or more of them shall be held to be invalid this shall not affect the validity of the remaining sub clause.
10. Limitation of Liability and Indemnity
10.1 All warranties, conditions, liabilities or representations as to the quality of fitness of the Goods or Services the correctness of information, advice or other services concerning the Goods or Services or otherwise (other than the rights which by law can not be excluded, restricted or modified) are expressly excluded.
10.2 To the extent permitted by law, the liability of the Vendor is limited at the Vendors options to:
10.2.1 in the case of the Goods, any one or more of the following:
(a) the replacement of the Goods or the supply of equivalent goods; or
(b) the repair of the Goods;
(c) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(d) the payment of the cost of having the Goods repaired; and
10.2.2 in the case of Services:
(a) the supply of the Service again; or
(b) the payment of the cost of having the Services supplied again.
10.3 In no circumstances, shall the Vendor be liable for any economic loss or damage suffered by the Purchaser howsoever caused and whether foreseeable or contemptible which, for the avoidance of doubt, shall be taken as including any loss of profits, business revenue, goodwill, anticipated saving, overhead and labour costs.
10.3.1 The Purchaser shall waiver all warranty claims if button making machines are purchased for third party use.
10.4 The Vendor's prices are determined on the basis of the limits of liability set out in this clause. In the event that the Purchaser requires the Vendor to accept a higher limit of liability, the Purchaser shall give written notice of this whereupon the Vendor will accept such liability providing insurance can be obtained against that higher level of liability and providing the cost of such insurance is borne by the Purchaser.
10.5 Each of the foregoing sub-clauses shall, so far as the context permits, be read and construed independently of the other sub-clauses so that if one or more of them shall be held to be invalid this shall not affect the validity of the remaining sub-clauses.
11. Vendor's Indemnity
11.1 Where the Purchaser shall supply goods or materials to the Vendor in connection with the supply of Services and any defect or hazard appears in the goods or materials supplied then the Purchaser shall indemnify and keep indemnified the Vendor from and against any and all loss, damage or liability suffered and legal fees and costs incurred by the Vendor as a result of the defect unless the Purchaser can prove that the defect did not arise from any cause within his control.
11.2 The Purchaser indemnifies the Vendor from and holds it harmless against all liabilities, losses, damages, costs or expenses indirectly incurred or suffered by the Vendor as a result of compliance or adherence by the Vendor with any instructions of the Purchaser in relation of the Goods or Services from and against all actions, proceedings, claims or demands made against the Vendor as a result of such compliance or adherence or arising from any of the following;
11.2.1 as a result of the Purchaser's failure to:
(a) ensure the any safety markings on the Goods are adequately displayed
(b) comply with any legislation as to the labeling or marking of Goods;
(c) take any other reasonable precautions either to bring to the attention to any potential users of the Goods any dangers associated with the goods, or to detect any matters in relation to which the Vendor may become liable, including without limitation, liability under Part VA of the Trade Practises Act; or
(d) otherwise comply with any laws, rules, standards or regulations applicable in relation to the Goods or Services or the use of the Goods;
11.2.2 as a result of any other negligence or other breach of duty by the Purchase; or
11.2.3 as a result of any compliance or adherence by the Vendor with any instructions of the Purchaser with relation to the Goods or their manner of fabrication or the Services.
12. Patent Infringement
The Purchaser warrants that any instructions, designs or artwork given to the Vendor shall not be such as will cause the Vendor to infringe any letters patent, copyright, registered design, right of confidence or trademark in execution of the Purchaser's order and agrees to indemnify the Vendor against claims, costs or other expenses incurred by the Vendor in respect thereof.
12.1 The Vendor reserves the right to refuse any order and to edit/omit artwork/text or to contact the Purchaser for alternative artwork/text as it deems appropriate, if any artwork/text appears to the Vendor to be offensive, unacceptable or detrimental to the Vendor's reputation or that of its business partners.
13.1 The Vendor will not accept returns on personalised products that have been approved for production through either: verbal verification, hard copy, printed copy or digital technology files. Button making machines and component returns are at the Vendor's discretion providing claims have been made in writing within 7 days of purchase or dispatch whichever is of the first case.
13.2 Prototypes/Samples will be submitted for your approval and all artwork, set up fees and costs incurred will be charged if not approved for production.
13.3 All content included on the website such as text, graphics, logos, button icons, audio clips, digital downloads, date compilations and software, is owned by Badge-a-minit, or its content supplier and is protected by Australian and International copyright laws.
13.4 Badge-a-minit is committed to protecting your privacy. We will not sell, trade or give your personal information to any person or company. We respect your privacy and will make reasonable efforts to preserve the privacy and safety of your personal information. Badge-a-minit retains all customer data. If you have any queries or concerns regarding privacy, you should contact us.
13.5 These terms and conditions contain an agreement between you and Badge-a-minit relating to your purchase. You are responsible for reading all information in these terms and conditions. Any terms and conditions not applicable or unenforceable will be invalid and the other terms remain.
14. General Lien
The Vendor shall have a general lien over all goods or materials of the Purchaser in its possession for all monies due to the Vendor or liabilities incurred by the Vendor upon whatever account and shall also be entitled to apply any monies of the Purchaser held by it under one contract to the discharge of monies due to it under any other contract. The Vendor shall be entitled to charge rent and other expenses incurred during all periods in which a lien on goods is being asserted. Further, if the Vendor exercises its right of lien over any goods or materials then if the monies due are not paid within one month after it has first retained such goods or if the Purchaser is the subject of an Insolvency Event, the Vendor shall have power. Without giving notice, to sell the whole or part of such goods or materials to cover the monies due and expenses of sale.
15. Catalogues, Advertisements and Drawings
15.1 Whilst the Vendor believes that all specifications, illustrations, performance data and other information contained in any catalogues, advertisements or other documents supplied by the Vendor are as accurate as reasonably possible, they do not constitute a description of the Goods and shall not be taken to be representations made by the Vendor and are not warranted to be accurate.
15.2 The Purchaser shall not copy or otherwise reproduce any drawings, catalogues, advertisement or other documents supplied by the Vendor without the Vendor's prior written consent.
16. Intellectual Property
All intellectual property rights in the Goods or any drawings, specifications, designs prepared by the Vendor shall at all times remain vested in the Vendor's absolute property and the Purchaser shall not reproduce or use any of them without the Vendor's prior written consent.
17. Alterations and Modifications
The Vendor may carry out from time to time and without notice to the Purchaser, alterations or improvements in construction or design, specification, materials or manner of manufacture of Goods.
18. Force Majeure
Without prejudice of the generality of any of the foregoing conditions, the Vendor shall not be liable for any loss or damage caused by non-performance or delay in the performance of any of its obligations hereunder if the same is occasioned by any clause whatsoever which is beyond the Vendor's control, including but not limited to Acts of God, war, civil disturbance, requisitioning, import or export regulations, strike, lockout of trade dispute, difficulties in obtaining materials, breakdown of machinery, fire or accident. Should any such event occur the Vendor may cancel or suspend this contract without incurring any liability for any loss or damage thereby occasioned.
If any contract to which these conditions apply is frustrated and/or the Goods in respect thereof cannot be delivered for any cause whatsoever, it is expressly agreed that:
19.1 If any sum has been paid on account to the Vendor by the Purchaser and is repayable by operation of law the Vendor shall be entitled to deduct all expenses incurred in connection with the said contract; and
19.2 If no sum has been paid on account, the Purchaser shall be bound to pay the Vendor for all expenses incurred in connection with the said contract.
Any notice required to be served pursuant to these conditions shall be served as follows:-
20.1 notices to the Vendor to its offices, 32 Chapel Street, Norwood South Australia 5067 Australia or such other address as it may from time to time notify to the Purchaser.
20.2 notices to the Purchaser as to such address as the Purchaser may notify to Vendor or, in default of notification, to such address as appears on any order by Purchaser, or if the Purchaser is a company, at the Vendor's option to Purchaser's registered office.
21. Governing Law
The construction, validity and performance of the contract shall be governed by and be interpreted in accordance with South Australian Law. The parties hereto agree to submit themselves to the nonexclusive jurisdiction of the South Australian Courts for the purpose of this contract.