PO Box Designs – Trading Terms
In these Trading Terms:
(a) ACL means the Australian Consumer Law set out in a Schedule to the Competition and Consumer Act 2010 (Cth);
(b) Approved Credit Limit has the meaning given to that term in clause 6(d);
(c) Consumer Guarantee has the meaning given to that term in the Competition and Consumer Act 2010 (Cth);
(d) Customer means the person or entity ordering a Job, as shown on the invoice, purchase order or other document evidencing an order for a Job;
(e) Credit Application means any form accepted by PBD as an application for credit;
(f) GST means the goods and services tax levied under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended;
(g) Job means the provision of goods and services by PBD to the Customer from time to time and described on an invoice;
(h) PBD means Bubbalooba Pty Ltd ACN 151030796 trading as PO Box Designs ABN 15 151 030 796;
(i) PPSA means the Personal Property Securities Act 2009 (Cth);
(j) Quote means a quote given to the Customer by the Supplier outlining the Job to be done by the Supplier and the price payable by the Customer to the Supplier in respect of same; and
(k) terms not defined but referred to in a Quote have the meaning given to them in the Quote
(a) These Trading Terms apply to all Jobs performed by PBD for the Customer unless expressly waived or varied by PBD in writing.
(b) These Trading Terms prevail over any conditions on the Customer’s order to the extent of any inconsistency.
(c) Each order of a Job by the Customer and each payment made by the Customer to PBD represents the Customer’s unequivocal and irrevocable acceptance that these Trading Terms apply as a legally binding contract between PBD and the Customer, whether or not the Customer signs a Quote or any other document.
PBD’s Quotes are open for acceptance within the period stated within them, or if no period is stated, within 30 days.
PBD’s products are custom made to order. The Customer accepts that works and items produced in order to complete the Job may slightly differ from 3D-rendered designs and photographs of previous Jobs completed by PBD.
(a) The order of precedence for determining the price of each Job shall be:
(i) the price shown on PBD’s invoice;
(ii) PBD’s current ruling price at the date of delivery; and
(iii) any Quote given by PBD.
(b) PBD makes no warranty that the price of a Job at the date of delivery shall be the same as at the date of order or quotation. If the Customer requests or agrees to variations, the Customer must pay the cost of such variations (as assessed by PBD) in addition to the price.
(c) Prices quoted do not include freight or delivery.
(d) Unless specifically stated, all prices quoted exclude GST.
(a) PBD may, but is not obliged to, perform a Job on terms that do not require payment in full at the time of delivery. If it does so, this clause applies.
(b) PBD may require the Customer to complete a Credit Application as a condition of extending credit.
(c) PBD may withdraw, suspend or vary the conditions of credit at any time.
(d) PBD may set and vary credit limits for the Customer from time to time (Approved Credit Limit).
(e) PBD may:
(i) vary the Customer’s Approved Credit Limit at any time; and/or
(ii) require the Customer to make a payment on or prior to delivery at any time.
(f) The Customer warrants and acknowledges that:
(i) the Customer has read and understood the Credit Application and these Trading Terms;
(ii) all of the information provided by the Customer to PBD is true and correct in every particular;
(iii) the Customer can pay its debts as and when they fall due;
(iv) each person who submits a Credit Application and makes orders on behalf of the Customer is (or at the time of making each order will be) authorised to do each of those things on behalf of the Customer, and the Customer promises not to make any claim or seek to withhold any payment or avoid its obligations, in respect of any of the above matters.
(g) If the Customer is a company, each director of the company must execute a guarantee & indemnity (in the form required by PBD) as security for obligations and payments due by the Customer to PBD under these Trading Terms.
(h) The Customer authorises and consents to the release to PBD of any information sought by PBD from any bank, financial institution, credit provider, credit reporting agency or register. If requested by PBD, the Customer must sign any document needed to enable PBD to obtain
(i) PBD may obtain, and the Customer must provide, further information from time to time.
(j) PBD’s rights under paragraphs (h) and (i) above extend to any person who has or is required to give a guarantee under this clause.
(a) Notwithstanding any prior grant of credit to the Customer, PBD reserves the right to:
(i) require a deposit to be paid before commencing manufacture of and/or ordering inputs and/or
setting aside the Job; and
(ii) demand progress payments as a condition of continuing or completing any job; and
(iii) demand payment prior to delivery in respect of any delivery of Job.
(b) Payment for each Job is due:
(i) for Customers with an Approved Credit Limit, by no later than the 14th day from the date of invoice; and
(ii) in all other cases, on or before the date of delivery/installation.
(c) All payments must be made in full without set off.
(d) PBD may charge and the Customer must pay:
(i) interest at the rate of 18% per annum, on all amounts not paid by the due date for payment, with such interest calculated from the due date until the date that all amounts due (including interest) are received as clear funds by the PBD; and
(ii) any other costs or fees incurred or applicable as a consequence of the late payment
(a) Delivery times made known to the Customer are estimates only and PBD will not be liable for any loss, damage or delay to the Customer (or its customers) arising from late delivery or non-delivery.
(b) For the purpose of these Trading Terms, a Job will be deemed to have been delivered:
(i) when delivered to or installed at the address shown on the Quote; or
(ii) when delivered into the possession of the Customer or a carrier engaged by the Customer, at the premises of PBD.
(c) PBD is not responsible to the Customer or any other person claiming through the Customer for any loss or damage to a Job in transit.
(a) The Customer shall inspect all goods immediately upon delivery/completion and shall not make any claim in respect of the Job unless the Job is defective and the Customer provides written notice of any alleged defect to PBD (defect notice) within seven (7) days of delivery.
(b) If the Customer fails to give a defect notice in accordance with this clause, then subject to
any non-excludable condition implied by law, the Job shall be deemed to have been accepted by the Customer.
(c) If PBD accepts a defect notice, the Customer must permit PBD to have access for the purpose of attending to any agreed remedial work.
No order may be cancelled except with PBD’s written consent and on terms which indemnify PBD against loss and damage occasioned by the cancellation.
Except as required under any applicable law, PBD is not obliged to accept return of any Job, and will only do so on terms agreed in writing.
(a) Title to each Job does not pass to the Customer until payment in full is received by PBD from the Customer, and until the price is paid in full the Customer must:
(i) store goods which have not been installed or paid for separately;
(ii) keep separate records in relation to the proceeds of the sale of any Job which has not been paid for, hold the proceeds of any such sale upon trust for and immediately remit such funds to the credit of PBD; and
(iii) if any Jobs are used or mixed with other materials, record the value of the Job so consumed in relation to each unit of finished product and upon sale of any unit of finished product immediately remit that amount from the proceeds of sale to PBD.
(b) If the Customer does not pay for any Job on the due date specified in each invoice, PBD is irrevocably authorised by the Customer to enter the Customer’s premises (or any premises under the control of the Customer or as agent of the Customer if the Job is stored at such premises) and use reasonable force to take possession of the Job without liability for the tort
of trespass, negligence or payment of any compensation to the Customer or anyone claiming
through the Customer whatsoever. Repossession of goods does not limit PBD’s right to claim for the price or for any other loss or damage.
(c) Even after delivery, the Job shall remain the property of PBD until all outstanding debts owed by the Customer to PBD, including part paid debts and secured debts, are paid.
(a) In this clause 13, terms which are defined in the PPSA have the meaning given to them in the PPSA.
(b) The Customer agrees to grant PBD a security interest in all of the Customer’s present and after-acquired property and their proceeds, as security for payments due from the Customer to PBD.
(c) At the request of PBD, the Customer agrees to promptly execute any documentation necessary, or to do anything else required by PBD, to ensure that the security interest created under these Trading Terms shall constitute a first ranking, perfected security interest over the Customer’s property and their proceeds. This includes providing any information necessary for PBD to complete a financing statement or financing change statement.
(d) The Customer waives the Customer’s right to receive a copy of a verification statement under the PPSA.
(e) The Customer agrees to reimburse PBD for all costs and charges incurred, expended or payable by PBD in relation to the filing of a financing statement or financing change statement in accordance with these Trading Terms.
Risk in each Job passes to the Customer upon delivery/installation.
Except as expressly set out, PBD makes no express warranties or other representations under these Trading Terms.
(a) Nothing in these Terms & Conditions purports to modify or exclude the Consumer Guarantees, or any other right available to the Buyer under the Competition and Consumer Act 2010 (Cth) (including the ACL).
(b) Except as expressly set out, PBD makes no express warranties or other representations under these Terms & Conditions.
(a) PBD’s liability in respect of the Consumer Guarantees and any other warranties is limited to the fullest extent permitted by law.
(b) To the extent permitted by statute, the Consumer Guarantees and any other warranties or representations are void if the Customer or any other person:
(i) attempts to modify, reverse engineer, decompile, create other works or products from, or disassemble part or all of the Job;
(ii) interferes with, alters or removes any packaging or labelling from a component of the Job;
(iii) causes or permits any contamination to part or all of the Job; or
(iv) fails to comply with manufacturer’s instructions in relation to the use, application, storage and integrity of any component comprising the Job (including specifications and installation guidelines set out in any product manual).
(c) To the extent permitted by law, the liability of PBD from the failure of any Job to comply with the Consumer Guarantees or any other warranty or condition implied by law shall be limited to (at PBD’s option):
(i) the replacement or resupply of a part or parts of the Job;
(ii) the cost of replacement or resupply of a part or parts of the Job;
(iii) the repair of the Job; or
(iv) the cost of the repair of the Job.
(a) Safety: Where PBD works at a site controlled by or at the request of the Customer, the Customer must ensure that the site is safe and that the Customer complies with all applicable health & safety requirements. PBD agrees to comply with the Customer’s reasonable directions regarding health & safety whilst on site. PBD reserve the right to refuse to enter
and perform work at any site which it considers to be unsafe.
(b) Force Majeure: The Customer releases PBD from any claim, liability or responsibility concerning late delivery or failure to deliver a Job if this is due to strike, lockout, riot, industrial action, fire, storm, tempest, act of God, material shortage, government law or regulation or requirement or any other cause beyond the control of PBD and no such failure shall entitle the Customer to cancel and order or withhold payment.
(c) Entire Agreement:
(i) These Trading Terms contain the entire agreement between the parties and supersede all previous agreements concluded between the parties. Each order and invoice (or delivery slip) shall constitute a binding and enforceable contract between PBD and the Customer on the terms set out in these Trading Terms.
(ii) Any attempt by the Customer to impose any variation or additional terms inconsistent with these Trading Terms shall not bind PBD.
(d) Proper law: These Trading Terms are to be interpreted in accordance with the Acts of the State of Victoria Australia, and the parties submit to the jurisdiction of the Courts of that State.
(e) Dispute Resolution: If a dispute arises out of, or in any way in connection with, or otherwise relates to the supply of a Job, these Trading Terms or the breach, termination, validity or subject matter thereof, or as to any related claim at law, in equity or pursuant to any statute, the parties agree that they must not commence proceedings (other than for urgent interlocutory relief) in respect of such dispute until the parties first meet in good faith and use
their best endeavours to resolve the dispute to their mutual satisfaction.
PBD may vary these Trading Terms from time to time, by notice in writing to the Customer.