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Terms and Conditions of Trade
To the fullest extent legally possible, all dealings, arrangements and contracts made between Bohemian Tattoo Arts Ltd and any Customer relating to any products, services or transactions are subject to the following Terms & Conditions of Sale ("these Terms") unless otherwise agreed in writing.
1. Payment is to be made, by cash, cheque, bank cheque, credit card or Electronic Funds Transfer in full before the goods are being delivered to the customer.
2. Interest may be charged on overdue accounts at the Penalty Interest Rates Act 1983 (Vic) rate, plus 2%.
3. Property:
a) Property in products shall not pass until payment in full of all monies owed for those products or on any other basis by the Customer & Bohemian Tattoo Arts Ltd reserves the right to take possession & dispose of products as it sees fit at any time until full payment.
b) The Customer grants permission to any authorised representative of Bohemian Tattoo Arts Ltd to enter any property where any product is in order to do so & with such force as is necessary.
c) Immediately upon delivery the Customer accepts liability for the safe custody of the products & agrees to indemnify Bohemian Tattoo Arts Ltd for any losses relating thereto.
d) Upon sale or disposition of any products prior to full payment, the Customer agrees to deposit all proceeds in a separate bank account, agrees not to mix proceeds with any other monies & will forthwith account to Bohemian Tattoo Arts Ltd therefore notwithstanding that Bohemian Tattoo Arts Ltd may have granted any credit facility &/or time to pay or any conduct of ...
e) Until payment in full the Customer agrees:- (i) to keep all products unpaid for as fiduciary for Bohemian Tattoo Arts Ltd & store them in a manner which shows Bohemian Tattoo Arts Ltd as owner; (ii) only to sell products in the usual course of its business on condition that the Customer holds all proceeds in trust for Bohemian Tattoo Arts Ltd (iii) sale on terms or for less than cost shall not be "in the usual course".
f) This clause 3 is not intended to create a charge over any products & shall be read down to the extent necessary to avoid creating a charge.
g) The Customer agrees that products will be deemed at all times to be dealt with by the Customer on a "first in first out" basis for the purpose of all transactions between the Customer and Bohemian Tattoo Arts Ltd
h) The Customer agrees that a certificate purporting to be signed by an officer of Bohemian Tattoo Arts Ltd identifying products as unpaid for shall be conclusive evidence that the goods have not been paid for & of Bohemian Tattoo Arts Ltd's title thereto.
4. Limitation Of Liability:
a) The Customer agrees to limit any claim it makes to the cost of supply of equivalent products or the supply of services again.
b) Bohemian Tattoo Arts Ltd shall not be liable for any claim, loss or expense arising which is made after 14 days from date of delivery of product or services (or at all once products have been unpacked, on-sold or otherwise used or applied) after which there shall be deemed to have been unqualified acceptance.
c) Bohemian Tattoo Arts Ltd will not be liable in any way for any contingent consequential direct or indirect special or punitive damage arising in any way & whether due to customer's negligence or otherwise & the Customer acknowledges this express limit of liability & agrees to limit any claim accordingly.
d) No other term, condition, agreement, warranty, representation or understanding whatsoever whether express or implied in any way extending to, otherwise relating to or binding upon Bohemian Tattoo Arts Ltd, other than these Terms, is made or given.
5. Exclusions:
a) Sample: No contract between Bohemian Tattoo Arts Ltd & the Customer shall be or be deemed to be a sale by sample.
b) If Bohemian Tattoo Arts Ltd publishes material concerning its products, services & prices anything so published which is incompatible with these Terms is expressly excluded.
c) The Customer will rely on its own knowledge & expertise in selecting any product or services for any purpose & any advice or assistance given for or on behalf of Bohemian Tattoo Arts Ltd shall be accepted at the Customer's risk & shall not be or be deemed given as expert or adviser nor to have been relied upon by the Customer or anyone claiming through the Customer.
6.Customer Material etc:
The Customer acknowledges and agrees that it is the Customer's sole responsibility to ensure that materials, designs, drawings, specifications, procedures etc which are provided by or on behalf of the Customer, to be used by É in meeting any orders, are correct and appropriate in every particular and will be relied upon by Bohemian Tattoo Arts Ltd
7. Placement Of Orders:
The Customer agrees
a) in the event of any dispute arising concerning any order (& including any question of identity or authority or any telephone, facsimile e-mail, eÂcommerce or computer generated order) that the internal records of Bohemian Tattoo Arts Ltd will be conclusive evidence of what was ordered in all respects.
b) each order it places shall be & be deemed to be a representation by it, made at the time that it is solvent & able to pay all of its debts as & when they fall due.
c) failure to pay Bohemian Tattoo Arts Ltd in accordance with these Terms shall be & be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in 7.
b) hereof & that the representations were unconscionable, misleading and deceptive.
d) when any order is placed, the Customer shall inform ... of any material facts which would or might reasonably affect the commercial decision by Bohemian Tattoo Arts Ltd to accept the order &/or grant credit in relation thereto & any failure to do so by or on behalf of the Customer shall create & be deemed to create an inequality of bargaining position, shall constitute & be deemed to constitute the taking of an unfair advantage of Bohemian Tattoo Arts Ltd & to be unconscionable, misleading and deceptive.
8. Purchase Price:
a) All sales are made by Bohemian Tattoo Arts Ltd at its ruling price at the time of delivery.
b) Sales tax & government imposts (including any GST or equivalent) will be to the Customer's account. Any Bohemian Tattoo Arts Ltd price lists exclude these unless expressly noted thereon.
c) The Customer will provide its tax file number and any information required by ... prior to seeking any tax exemption.
d) any volume rebate or settlement discount will be calculated on base price exclusive of GST or any government imposts, charges or duty etc
9. Delivery:
The Customer acknowledges & agrees that
a) Bohemian Tattoo Arts Ltd accepts no responsibility or duty for delivery, but may elect to arrange delivery at its discretion & without any liability & at the Customer's costs & responsibility in all things.
b) Bohemian Tattoo Arts Ltd reserves, the right to charge for any delivery.
c) The Customer shall be deemed to have accepted delivery & liability for the products immediately Bohemian Tattoo Arts Ltd notifies the Customer that any products are ready for collection or they are delivered to a carrier or to the Customer's business premises or site whether attended or not.
d) A certificate purporting to be signed by an officer of Bohemian Tattoo Arts Ltd confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket. services.
e) Bohemian Tattoo Arts Ltd will not be liable for delay, failure or inability to deliver any products or perform any
f) Once the Customer is notified products are ready for collection or delivery, the Customer agrees to pay all costs of Bohemian Tattoo Arts Ltd in holdings those products for the Customer.
10.Products and Services
a) Bohemian Tattoo Arts Ltd disclaims any responsibility or liability whatsoever relating to any products or services
i) made or performed to designs, drawings, specifications &lor procedures etc or with materials which are provided or approved (whether in part or fully) by or on behalf of the Customer
ii) utilised, stored, handled or maintained incorrectly or inappropriately b) the Customer agrees to check all products and services for compliance with all relevant applicable standards & regulatory bodies before use, on-sale or application & to use or apply same in accordance with all applicable standards, regulations & guidelines, with all manufacturers and/or Bohemian Tattoo Arts Ltd recommendations & directions as well as with good practice.
11. Other Terms & Conditions:
No terms & conditions sought to be imposed by the Customer upon Bohemian Tattoo Arts Ltd shall apply.
12. Recovery Costs: The Customer will pay to Bohemian Tattoo Arts Ltd any costs & expenses incurred by it or its solicitors, legal advisers, mercantile agents & other parties acting on Bohemian Tattoo Arts Ltd's behalf in respect of anything instituted or being considered against the Customer whether for debt, possession of any products or otherwise.
13. Attorney: For the purpose of giving effect to the Customer's obligation in these Terms, the Customer hereby irrevocably appoints the Credit Manager of Bohemian Tattoo Arts Ltd from time to time, as its attorney in all things.
14. Variation: Any variation or cancellation of these Terms or any order must be in writing.
15. Defaults.
a) Upon any default or breach hereof by the Customer, Bohemian Tattoo Arts Ltd may (inter alia) retain all monies paid & or cease further deliveries & recover from the Customer all loss of profits arising & or at its discretion take immediate possession of any products not paid for, without prejudice to any other of its rights & without being liable in any way to any party.
b) The Customer agrees not to commence or continue or permit to be commenced or continued through it any suit or action against Bohemian Tattoo Arts Ltd whilst the customer is in default under any part of these Terms or in any of its dealings with Bohemian Tattoo Arts Ltd 16. Severability: Any part hereof being a whole or part of a clause, shall be capable of severance without effecting any other part of these Terms.
17. Customer Restructure:
The Customer will notify Bohemian Tattoo Arts Ltd in writing of any change in its structure or management including any change in director, shareholder or management or change in partnership or trusteeship within 7 days of the date of any such change.
18. Jurisdiction:
The Customer agrees that all contracts made with Bohemian Tattoo Arts Ltd shall be deemed to be made in the State nominated by Bohemian Tattoo Arts Ltd & agrees to submit to the jurisdiction of the appropriate Courts nominated by Bohemian Tattoo Arts Ltd
19. Credit Limit:
If ... grants any credit facility or nominates any credit limit, this is an indication only of its intention at the time. Bohemian Tattoo Arts Ltd can vary or withdraw any credit facility at any time at its discretion & without any liability to the Customer or any other party.
20. Waiver:
In the event that Bohemian Tattoo Arts Ltd elects not to exercise any of its rights arising as a result of any breach of these Terms it shall not constitute a waiver of any rights of ... relating to any subsequent or other breach.
21. Notice:
The Customer agrees that it will be deemed to have notice of any change to these Terms, immediately they are adopted by Bohemian Tattoo Arts Ltd & whether or not the Customer has actual notice thereof. The Customer shall be bound by any terms & conditions of sale adopted by Bohemian Tattoo Arts Ltd immediately they are so adopted & notwithstanding any other purported or pre-existing terms & conditions of Bohemian Tattoo Arts Ltd
22. Indemnity:
The Customer indemnifies Bohemian Tattoo Arts Ltd against any claim or loss arising from or related in any way to any contract, dealing or transaction between Bohemian Tattoo Arts Ltd & the Customer or anything arising therefrom, or arising as a result of or subsequent to any breach of these Terms.
23. Security For Payment:
The Customer agrees on request to charge in favour of Bohemian Tattoo Arts Ltd;
(i) by way of a fixed charge all its books of account, financial records, goodwill, documents of title & current & later acquired real property & intellectual property; &
(ii) by way of a floating charge, the whole of the Customers other undertaking, property & assets, with payment of all monies owed to Bohemian Tattoo Arts Ltd
24. Forward Orders:
If the Customer places a forward order the Customer agrees:
a) to pay for so much of any order as is from time to time invoiced by Bohemian Tattoo Arts Ltd;
b) no delay or failure to fulfil any part of any order shall entitle the Customer to cancel or vary any order or delay or reduce any payment.
25. Force Majeur:
Bohemian Tattoo Arts Ltd will not be in default or in breach of any contract with the Customer by as a result of Force Majeur. Force Majeur means beyond the reasonable control of Bohemian Tattoo Arts Ltd and includes any strike or lockÂout.
26. Insolvency:
a) If the Customer commits or is involved in any act of insolvency, it agrees that this should be deemed in default under these terms.
b) An act of insolvency is deemed to include bankruptcy, liquidation, receivership, administration or the like.
27. Packaging:
The Customer agrees that it is solely responsible for ensuring that all product used by it for packaging etc. complies fully with all relevant laws, regulations and standards etc applicable to that use.
28. Tooling:
The Customer agrees that all tooling, material, industrial or intellectual property employed in the preparation for or production of any products or provision of any services will be and remain the property of Bohemian Tattoo Arts Ltd notwithstanding any contribution by the Customer relating thereto.
29. Customer Materials:
The Customer agrees that any of its materials or property used by Bohemian Tattoo Arts Ltd in the production of any product or the provision of any services shall be at the Customer's risk in all things and be of merchantable quality and fit for the purpose.
30.Variations In Quantity:
The Customer agrees to accept a permissible variation of quantity provided the variation does not exceed + or - 10% of the quantity ordered,
31. industrial and Intellectual Property:
The Customer warrants and agrees that at all material times it will have all necessary industrial and intellectual property rights in any product or services it requests of Bohemian Tattoo Arts Ltd
32. Abnormal payments:
the Customer agrees to pay an administration fee of 2% (calculated on the amount paid) on any payment which is made other than as provided in clause I hereof, which fee is agreed as the liquidated cost of processing such abnormal payments.
33. GST :
From I July 2000, the Customer agrees to pay prices or consideration adjusted in accordance with ACCC Guidelines, to take into account GST.