Brandwise Pty Ltd
Terms & Conditions of Trade
1.1 “Brandwise” shall mean Brandwise Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Brandwise Pty Ltd.
1.2 “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by Brandwise 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 Brandwise to the Client
1.5 “Services” shall mean all services supplied by Brandwise to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the cost of the Goods as agreed between Brandwise and the Client subject to clause 3 of this contract.
1.7 “Final Artwork” Shall mean (and be limited to) a high resolution PDF file.
2.1 Any instructions received by Brandwise from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Brandwise shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be amended with the written consent of Brandwise.
2.4 The Client undertakes to give Brandwise at least fourteen (14) days notice of any change in the Client’s name, address and/or any other change in the Client’s details.
2.5 Where the performance of any contract with the Client requires Brandwise to obtain Goods from a third party, the contract between Brandwise and the Client shall incorporate and shall be subject to the conditions of supply of such Goods to Brandwiseand the Client shall be liable for the cost in full of such Goods.
3.1 At Brandwise’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by Brandwise to the Client in respect of Goods supplied; or
(b) Brandwise’s quoted Price (subject to clause 3.2 and 3.3) which shall be binding upon Brandwise provided that the Client shall accept Brandwise’s quotation in writing within thirty (30) days.
3.2 Brandwise reserves the right to change the Price in the event of a variation to Brandwise’s quotation.
3.3 Where a quotation has been submitted to the Client without a written brief and/or sighting by Brandwise of the material involved, Brandwise reserves the right to submit a revised quotation if required.
3.4 At Brandwise’s sole discretion a deposit may be required.
3.5 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 fourteen (14) days following the date of the invoice.
3.6 At Brandwise’s sole discretion;
(a) payment shall be due before delivery of the Goods, or
(b) payment for approved Clients shall be made by instalments in accordance with Brandwise’s payment schedule.
3.7 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit.
3.8 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.
4.1 The Goods shall be delivered at the Client’s cost to either the Client’s nominated address or the Client’s nominated carrier. The Client’s nominated carrier shall be deemed to be the Client’s agent. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
4.2 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.
4.3 Brandwise may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.4 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
(a) such discrepancy in quantity shall not exceed 5%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
4.5 The failure of Brandwise to deliver shall not entitle either party to treat this contract as repudiated.
4.6 Brandwise shall not be liable for any loss or damage whatever due to failure by Brandwise to deliver the Goods (or any of them) promptly or at all.
5.1 If Brandwise retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Brandwise is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Brandwise is sufficient evidence of Brandwise’s rights to receive the insurance proceeds without the need for any person dealing with Brandwise to make further enquiries.
6.1 It is the intention of Brandwise and agreed by the Client that ownership of the Goods shall not pass until:
(a) the Client has paid all amounts owing for the particular Goods, and
(b) the Client has met all other obligations due by the Client to Brandwise in respect of all contracts between Brandwise and the Client.
6.2 Receipt by Brandwise 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 Brandwise’s ownership or rights in respect of the Goods shall continue.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Brandwise shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Brandwise to the Client Brandwise may give notice in writing to the Client to return the Goods or any of them to Brandwise. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Brandwise shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Brandwise then Brandwise or Brandwise’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
(e) the Client is only a bailee of the Goods and until such time as Brandwise 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 Brandwise; and
(f) the Client shall not deal with the money of Brandwise in any way which may be adverse to Brandwise; and
(g) 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 Brandwise; and
(h) Brandwise 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
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Brandwise will be the owner of the end products.
7.1 The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by Brandwise and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgement.
8.1 The Client shall inspect the Goods on delivery and shall within seven (7) days notify Brandwise of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Brandwise 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 Brandwise has agreed in writing that the Client is entitled to reject, Brandwise’s liability is limited to either (at Brandwise’s discretion) replacing the Goods or repairing the Goods.
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Brandwise has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
(d) Brandwise will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
11.1 Brandwise agrees to provide the Client Final Artwork free and clear of all lien and encumbrances which the Client may lawfully use without infringing upon the rights of others including, and without limiting the generality of the foregoing, any copyright, trade secret patent or trademark rights of any third party.
11.2 The Client warrants that all designs or instructions to Brandwise will not cause Brandwise to infringe any patent, registered design or trademark in the execution of the Client’s order.
11.3 The Client hereby authorises Brandwise to utilise images of the Goods designed or drawn by Brandwise in advertising, marketing, or competition material by Brandwise.
11.4 Brandwise reserves the right to exhibit, enter into competition, or showcase in any manner the work produced for the Client.
11.5 Brandwise hereby authorises the Client to retain and reproduce any Goods as approved by the Client and produced for the Client’s purposes. This does not extend to the use of concepts and, but not limited to, peripherals developed during the course of the project which were not selected as part of the final design.
11.6 The Client may re-use any royalty-free photographs or illustrations included as part of the finished Goods created for the Client’s project. However, any rights-protected photographs or illustrations may not be reproduced without written permission of Brandwise and/or payment of additional fees.
12.1 Whilst every care is taken by Brandwise to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proof reading of the Goods, before approval of artwork. Brandwise shall be under no liability whatever for any errors made by the Client in the final proof reading. Should the Client’s alterations require additional proofs, this will be invoiced as an extra.
12.2 When style, type or layout is left to Brandwise’s judgement, if the Client makes further alterations to the copy, this will be invoiced as an extra.
12.3 When checking a printer’s proof or PDF on the Client’s behalf, Brandwise will do so to the best of Brandwise’s ability based on the artwork approved by you. This will be done under a strict “all care but no responsibility” policy should the end Goods differ to the Client’s expectations.
13.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
13.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify Brandwise from and against all costs and disbursements incurred by Brandwise in pursuing the debt including legal costs on a solicitor and own client basis and Brandwise’s collection agency costs.
13.3 Without prejudice to any other remedies Brandwise may have, if at any time the Client is in breach of any obligation (including those relating to payment), Brandwise may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Brandwise will not be liable to the Client for any loss or damage the Client suffers because Brandwise exercised its rights under this clause.
13.4 If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
13.5 Without prejudice to Brandwise’s other remedies at law Brandwise shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to Brandwise shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Brandwise becomes overdue, or in Brandwise’s opinion the Client will be unable to meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14.1 Despite anything to the contrary contained herein or any other rights which Brandwise may have howsoever:
(a) 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 Brandwise or Brandwise’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that Brandwise (or Brandwise’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) should Brandwise elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Brandwise from and against all Brandwise’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Brandwise or Brandwise’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 14.1.
15.1 Brandwise may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. On giving such notice Brandwise shall repay to the Client any sums paid in respect of the Price. Brandwise shall not be liable for any loss or damage whatever arising from such cancellation.
15.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Brandwise (including, but not limited to, any loss of profits) up to the time of cancellation.
16.1 The Client and/or the Guarantor/s agree for Brandwise 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 Brandwise.
16.2 The Client and/or the Guarantor/s agree that Brandwise 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:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) 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
(d) to assess the credit worthiness of Client and/or Guarantor/s.
16.3 The Client consents to Brandwise being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Client agrees that personal credit information provided may be used and retained by Brandwise for the following purposes and for other purposes as shall be agreed between the Client and Brandwise or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by Brandwise its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) 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.
16.5 Brandwise may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
17.1 When quotations are based on specifications, roughs, layouts, samples, dummies or printed, typewritten or other good copy, any extra work or cost caused by:
(a) any variation by the Client of the Client’s original instructions; or
(b) the manuscript copy being, in Brandwises opinion, poorly prepared; or
(c) the Client’s requirements being different from those originally submitted or described, may be charged to the Client and shown as extras on the invoice.
17.2 Unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at the Client’s request for use with in the Client’s Goods.
17.3 Brandwise shall be under no liability whatever to the Client for any variation (beyond the reasonable control of Brandwise) in colours between the approved prototype and the finished Goods.
17.4 While Brandwise does offer professional copywriting as a Service, it is not included in the quotation unless specifically listed.
18.1 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.
18.2 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.
18.3 Brandwise 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 Brandwise of these terms and conditions.
18.4 In the event of any breach of this contract by Brandwise the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of Brandwise exceed the Price of the Goods.
18.5 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 Brandwise.
18.6 Brandwise may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.7 Brandwise 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 Brandwise notifies the Client of such change.
18.8 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.