1 – INTERPRETATION
In these terms
(a) Contract means the contract between the Customer and Inck Merchandise for the sale and purchase of Goods and Services and includes these Terms.
(b) Customer means the person(s) named in the Order Confirmation or such other person who acquires Goods from Inck Merchandise.
(c) Customer IP means all Intellectual Property Rights in logos, drawings, pictures, materials, designs or information supplied or made available by the Customer to Inck Merchandise.
(d) Deposit means, unless otherwise stated or not otherwise required in the transaction, an amount equal to 50 per cent of the price of the Goods.
(e) Goods means promotional goods and other related items.
(f) Insolvency Event means one or more of the following events
(i) an application is made, or a resolution is passed, to wind up the Customer;
(ii) a controller or administrator is appointed in respect of the Customer or any of its assets;
(iii) the Customer commits any act of bankruptcy; or
(iv) the Customer dies, ceases to be of full legal capacity or becomes incapable of managing its own affairs for any reason.
(g) Intellectual Property Right means all copyright, trade mark rights, design and patent rights.
(h) Order Confirmation means the order confirmation provided by the Customer to Inck Merchandise in a form specified by Inck Merchandise.
(i) Outstanding Amount means the price of the Goods or Services less the Deposit.
(j) Services means design and development services or other services related to the Goods.
(k) Terms means Inck Merchandise’s standard terms and conditions of sale set out in this document, unless the context otherwise requires.
(l) Inck Merchandise means Inck Merchandise Pty Ltd (ABN 29 107 900 363) of Level 4, The Elan, 1 Kings Cross Road, Darlinghurst, NSW 2010 and any assigns.
(m) Inck Merchandise’s Premises means Inck Merchandise Ltd of Level 4, The Elan, 1 Kings Cross Road, Darlinghurst, NSW 2010 or any other address Inck Merchandise notifies to the Customer.
(n) Inck Merchandise IP means all Intellectual Property Rights in the goods, tools, moulds, casts and any items or materials resulting from the provision of the services as well as such rights in any other logos, drawings, pictures, materials, designs, documents or information supplied or made available by Inck Merchandise to the Customer whether prior to engagement (e.g. as samples, storyboards, teasers), during the term of engagement or after engagement. Any Customer IP is excluded from the definition of Inck Merchandise IP.
2 – GENERAL
(a) Inck Merchandise agrees to sell and the Customer agrees to purchase the Goods and Services in accordance with these Terms which apply to all transactions including, without limitation, any online/e-commerce sales.
(b) Where there is a Set Up Charge, that fee is a fee for use of the tools, moulds, casts and other similar Inck Merchandise IP for the sole purpose of enabling the client to place purchase orders with Inck Merchandise. Payment of the Set Up Charge does not give the Customer ownership in or the right to possess such items.
(c) These Terms prevail over any inconsistent terms in any document of the Customer.
(d) If the Customer places an order, signs on the Order Confirmation, accepts delivery of Goods, makes any payment or performs any of these terms, the Customer is taken to have accepted these Terms.
3 – QUOTATIONS AND ORDER CONFIRMATION
(a) A quotation is not an offer by Inck Merchandise. Inck Merchandise may withdraw or alter it without notice.
(b) Unless Inck Merchandise withdraws it, a quotation is valid for the period stated in it, or if no period is stated, for 15 days after the date of the quotation.
(c) An Order Confirmation form provided by Inck Merchandise to the Customer is merely an opportunity for the Customer to confirm its order and is not an offer by Inck Merchandise. To the extent of any inconsistency between a prior order by the Customer and an Order Confirmation provided by the Customer, the Order Confirmation prevails. Further to the extent of any inconsistency between the terms of an Order Confirmation, including without limitation, an online or e-commerce Order Confirmation, and these Terms, the terms of the Order Confirmation shall prevail to the extent of the inconsistency.
4 – DESCRIPTIONS, SPECIFICATIONS AND SERVICES
(a) All specifications, drawings, and particulars of weight and dimensions are approximate only. The Customer cannot claim against Inck Merchandise for any deviation.
(b) The descriptions, illustrations and material contained in any advertisement, catalogue, price list or brochure do not form any part of the Contract.
(c) If the Customer requests Services from Inck Merchandise, those Services are provided by Inck Merchandise on the basis of these Terms.
5 – DELIVERY
(a) Any delivery time Inck Merchandise gives the Customer is only an estimate. Inck Merchandise is not liable to the Customer for any loss or damage (including any consequential loss or damage) arising from late delivery.
(b) The Customer must still accept and pay for the Goods and Services even if Inck Merchandise delivers late.
(c) Delivery occurs when Inck Merchandise notifies the Customer that the Goods are available for collection at Inck Merchandise’s Premises or have been delivered to a location specified by the Customer.
6 – QUANTITY DISCREPANCY
(a) If the quantity of Goods delivered is less than the amount the Customer ordered, the Customer must notify Inck Merchandise in writing of the shortfall within 7 days of delivery, otherwise Inck Merchandise will be deemed to have delivered the correct quantity of Goods, and the Customer must accept the Goods and pay for them in full despite the shortfall.
(b) If the quantity of Goods delivered is more than the amount the Customer ordered, the Customer must immediately inform Inck Merchandise in writing and Inck Merchandise is entitled to charge the Customer for the excess or recover the excess from the Customer at the cost of Inck Merchandise.
7 – STORAGE
If the Customer does not collect the Goods, or provide adequate delivery instructions, within 14 days of request by Inck Merchandise, Inck Merchandise may charge for storage. The Customer must pay charges monthly at commercial rates. The Goods are to be stored at the Customer’s risk.
8 – PRICE & COSTS
(a) Unless Inck Merchandise otherwise agrees in writing, the price of the Goods or Services will be the price specified in Inck Merchandise’s quotation.
(b) Any price concession or discount Inck Merchandise provides to the Customer is conditional on the Customer’s full compliance with these Terms.
(c) If Inck Merchandise suspends work on any order due to the Customer’s instructions or lack of instructions, Inck Merchandise may increase the price to cover any extra expense or cost incurred (including a proportional adjustment for fixed costs and profit).
(d) Any prices quoted apply only if all of the Goods and Services included in the quotation are acquired. If the Customer orders part only, Inck Merchandise may submit a revised quotation.
9 – PAYMENT
(a) The Customer must pay the Deposit in accordance with the payment terms specified on the invoice
(b) Unless Inck Merchandise otherwise agrees in writing, the Customer must pay the Outstanding Amount in cash on delivery which, for the sake of clarity, means the full order total, less any deposit payments already paid, in accordance with the payment terms specified on the invoice.
(c) If Inck Merchandise has given payment terms to the Customer then Inck Merchandise may require immediate payment of all amounts outstanding (whether or not then due and payable):
(i) if the Customer does not comply with any one or more of its obligations under these Terms;
(ii) if Inck Merchandise considers that the creditworthiness of the Customer has become unsatisfactory; or
(iii) if one or more Insolvency Events occur.
10 – DEFAULT
(a) If the Customer defaults in the payment of money:
(i) the Customer must pay Inck Merchandise:
(A) interest at the rate of 18% per annum;
(B) a late fee of $20 reflecting reasonable administration costs incurred by Inck Merchandise; and
(C) all expenses including, without limitation, legal expenses (on a full indemnity basis), and all debt collection agency costs incurred by Inck Merchandise in enforcing Inck Merchandise’s rights under these Terms;
(ii) All money owing under the Contract which is not yet due for payment upon service of a notice by Inck Merchandise becomes immediately due and payable; and
(iii) Inck Merchandise may, at its election, terminate the Contract.
(b) If Inck Merchandise terminates the Contract in accordance with this clause 10, Inck Merchandise may, without prejudice to any other right or remedy available to Inck Merchandise suspend any further Services and any further deliveries of the Goods to the Customer and sell or otherwise dispose of the Goods and apply the proceeds of the sale to the overdue amount.
11 – RISK
(a) Risk in the Goods passes to the Customer when delivery occurs pursuant to clause 5 or when the Goods are in the Customer’s custody, whichever is first.
(b) The Customer must take out and pay for insurance in both the names of the Customer and Inck Merchandise sufficient to cover both their interests in the Goods until all monies owing to Inck Merchandise have been paid. The Customer must, upon request, produce a certificate of insurance to show that the Customer has taken out this insurance if so requested by Inck Merchandise.
(c) Inck Merchandise is not liable for any loss or damage or deterioration of the Goods after dispatch from Inck Merchandise’s Premises even if transport is arranged by Inck Merchandise.
12 – TITLE
(a) Until the Customer has paid all amounts owing by the Customer to Inck Merchandise (and all cheques or negotiable instruments have been paid) the title and property in the Goods does not pass to the Customer.
(b) Until all amounts owed to Inck Merchandise are paid, the Customer:
(i) must keep the Goods separate from the goods of the Customer and third parties and identified as Inck Merchandise’s Goods; and
(ii) may sell the Goods in the ordinary course of its business, as agent and fiduciary for Inck Merchandise and must account to Inck Merchandise for the proceeds of such sale which are to be kept in a separate bank account.
(c) The Customer irrevocably authorises Inck Merchandise to enter any premises where the Goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods.
(d) If the Customer does not specify what Goods each payment is made for, the payments will be treated in the following order:
(i) first, to the Goods that are no longer in the Customer’s possession;
(ii) then, to whatever Goods that are still in the Customer’s possession, at Inck Merchandise’s absolute election.
13 – INTELLECTUAL PROPERTY RIGHTS
(a) The Customer warrants that in complying with any direction or instruction given to Inck Merchandise by the Customer, Inck Merchandise will not infringe any third party rights (including third party Intellectual Property Rights).
(b) The Customer warrants that it holds all necessary Intellectual Property Rights in relation to the Customer IP, and is entitled to permit Inck Merchandise to use the Customer IP for the purpose of Inck Merchandise providing the Services and the Goods to or for the benefit of the Customer.
(c) The Customer grants Inck Merchandise an irrevocable, royalty free licence to exploit the Intellectual Property Rights in the Customer IP for the provision of the Services and the Goods to the Customer. The Customer indemnifies Inck Merchandise, and holds Inck Merchandise harmless, against any liability, cost or expense arising from or related to breach of the warranty provided in clause 13(b) and against any infringement or alleged infringement of any third party Intellectual Property Rights related to or arising from:
(i) use or exploitation of Intellectual Property Rights in relation to the Customer IP; or
(ii) Inck Merchandise’s design, manufacture or supply of the Goods or supply of the Services in compliance with a direction or instruction given to Inck Merchandise by the Customer.
(d) The Customer acknowledges and agrees that all Intellectual Property Rights in and relating to the Inck Merchandise IP are and remain the property or under the control of Inck Merchandise and the Customer does obtain any right, title or interest in any Intellectual Property Rights in or relating to the Inck Merchandise IP.
(e) The Inck Merchandise IP (including copies) that Inck Merchandise submits, provides or makes available to the Customer remain the property of Inck Merchandise. The Customer must treat such Inck Merchandise IP as strictly confidential and as a trade secret of Inck Merchandise. The Customer must use the Inck Merchandise IP and any information contained in Inck Merchandise IP only for the purpose of placing purchase orders with Inck Merchandise or for the use and enjoyment of the Goods acquired from Inck Merchandise. The Customer must not use the information in any other way to the advantage of the Customer or the detriment of Inck Merchandise. Inck Merchandise is not obliged to disclose the methods or techniques used in production.
(f) The Client must not:
(i) copy or procure a third party to copy any Inck Merchandise IP; nor
(ii) use Inck Merchandise IP to obtain similar services or goods from a third party,
without the prior written consent of Inck Merchandise, which consent may be withheld in Inck Merchandise’s absolute discretion.
(g) At any time, Inck Merchandise may require delivery up of any tools, moulds, casts or similar items of Inck Merchandise IP as may be in the Customer’s possession or control. The Customer must immediately send or arrange the sending of such items to Inck Merchandise.
(h) The Customer warrants to Inck Merchandise that the Customer owns all Intellectual Property Rights in and to the Goods or holds a valid licence from the owner of the Intellectual Property Rights.
14 – FORCE MAJEURE
(a) Inck Merchandise is not liable for failure to comply with these Terms, any Contract or an agreement for sale of Goods or Services if the failure (directly or indirectly) arises out of any circumstances that are not within Inck Merchandise’s reasonable control. If such circumstances occur, Inck Merchandise may delay or cancel the provision of the Services and the delivery of the Goods or reduce the quantity to be delivered.
(b) The circumstances are taken to be beyond Inck Merchandise’s reasonable control includes, without limitation, strikes, lock-outs, accidents, war, fire, flood, explosion, shortage of power, breakdown of plant or machinery, shortage of raw materials from normal source of supply, act of God or any order or direction of any local, state or federal government, government authority or instrumentality.
(c) Inck Merchandise is not obliged to remedy such circumstances. Inck Merchandise is especially not obliged to settle any strike, lockout or any other kind of labour dispute.
15 – CANCELLATION
15.1 Cancellation of order or return of Goods
(a) The Customer may not cancel an order or return any Goods unless Inck Merchandise first agrees in writing.
(b) Inck Merchandise will not agree to cancellation or an order unless the Customer compensates Inck Merchandise for all loss and damage arising from the cancellation.
(c) Inck Merchandise may cancel any order in whole or in part by notice to the Customer and resell the Goods if the Customer fails to comply with any of its obligations under these Terms of sale or under an agreement for sale of Goods.
(d) Inck Merchandise may cancel any order in whole or in part by notice to the Customer and resell the Goods if one or more Insolvency Events occur.
(e) Upon cancellation or an order the Customer must indemnify Inck Merchandise for any costs and expenses incurred prior to cancellation and must pay any reasonable cancellation charges fixed by Inck Merchandise.
15.2. Termination of Contract
Inck Merchandise may terminate the Contract in either of the following events:
(a) if Inck Merchandise reasonably considers that it may be unable to satisfy the order within a reasonable time; or
(b) if Goods remain uncollected or the Customer fails to give satisfactory instructions for the dispatch of the Goods after a period of 14 days from notification to the Customer that they are ready for collection; or
(c) an application to wind up the Customer is made or if a controller or administrator is appointed in respect of the Customer or any of its assets.
The Customer has no claim against Inck Merchandise for any damage, loss, cost or expense arising from termination under this clause 15.
15.3 No claim
16 – LIMITATION OF LIABILITY AND INDEMNITY
(a) The only conditions and warranties that are binding on Inck Merchandise in respect of:
(i) information, advice, recommendations or Services supplied to the Customer in relation to the Goods; or
(ii) the suitability, use, quality or condition of the Goods or Services,
are either those set out in clause 17 or are those applying by operation of law and required to be binding. All other warranties and conditions are excluded.
(b) To the extent permitted by law, the liability of Inck Merchandise and its employees or agents for a breach of any warranty or liability which by law cannot be excluded, restricted or modified, or under any express warranty, is limited, at Inck Merchandise’s option, to:
(i) in the case of Goods:
(A) the replacement of the Goods or the supply of equivalent Goods;
(B) the repair of the Goods;
(C) the payment of the costs of replacing the Goods or of acquiring equivalent Goods; or
(D) the payment of the cost of having the Goods repaired; and
(ii)in the case of Services:
(A) the supplying again of the Services; and
(B) the payment of the costs of having the Services supplied again.
(c) Other than as provided in this clause 16, Inck Merchandise, its employees or agents shall not be liable for any loss or damage (including any consequential loss or damage) of any kind whatsoever, even if due to the negligence of Inck Merchandise, its employees or agents.
(d) The Customer acknowledges that the Customer does not rely on the skill or judgment of Inck Merchandise as to whether or not the Goods or Services are fit for any particular purpose and that the sale of the Goods is not a sale by sample.
(e) The Customer indemnifies Inck Merchandise from every liability, loss, damage, cost or expense directly or indirectly incurred or suffered by Inck Merchandise caused by or contributed to by any of the following:
(i) Inck Merchandise complying with any instruction of the Customer about the Goods or the Services;
(ii) the Customer’s failure to:
(A) adequately provide or display safety markings or safety information on or with the Goods;
(B) comply with any law about the Goods or their use (for example, their sale, marketing, labelling or marking);
(C) take any reasonable precaution to bring to the attention of any potential users of the Goods any dangers associated with Goods;
(D) take any reasonable precaution to detect any matters in relation to which Inck Merchandise may become liable in any way.
(iii) the Customer making any statement about the Goods (for example, about their performance or characteristics) without Inck Merchandise’s approval;
(iv) the use or operation of the Goods or the product of the Services by the Customer; and
(v) any negligence or breach of duty by the Customer or any breach by the Customer of these Terms.
17 – WARRANTIES AND INSURANCES BY INCK MERCHANDISE
(a) Inck Merchandise warrants to the Customer that it holds and will keep current during the term of the Contract a Professional Indemnity Policy of up to AUD5,000,000 and a Public and Product Liability Policy of up to AUD20,000,000. These policies will be made available for viewing by a Customer upon reasonable request.
(b) Inck Merchandise warrants compliance with:
(i) all relevant mandatory Australian safety and performance standards; and
(ii) the guidelines promoted and endorsed by the Australian Government under the Australian Consumer Law which can be found HERE.
18 – NOTICES
(a) A notice, consent or other communication under these Terms is only effective if it is in writing and either left at the addressee’s address or sent to the addressee by mail, fax or email. If it is sent by mail, it is taken to have been received 3 working days after it is posted. If it is sent by fax, it is taken to have been received when the addressee actually receives it in full and in legible form. If it is sent by email by Inck Merchandise, it is taken to have been received by the addressee within one hour of the email being sent from Inck Merchandise’s server. If it is sent by email to Inck Merchandise, it is taken to have been received when the email is received in full and legible form.
(b) A person’s address, fax number and/or email address are those set out in the Order Confirmation. Inck Merchandise may send a notice to any of the Customer’s last known physical or email addresses.
19 – GOVERNING LAW AND JURISDICTION
(a) The validity and interpretation of these Terms and Conditions of Sale shall be governed by, and construed and enforced in accordance with, the laws and courts of New South Wales, Australia.
20 – WAIVER
(a) A right of Inck Merchandise may only be waived in writing, signed by Inck Merchandise.
(b) No other conduct of Inck Merchandise (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right.
(c) A waiver of a right by Inck Merchandise on one or more occasions does not operate as a waiver of that right if it arises again.
(d) The exercise of a right by Inck Merchandise does not prevent any further exercise of that right or of any other right.
21 – INCK MERCHANDISE’S RIGHTS
Any right that Inck Merchandise may have under these terms of sale is in addition to, and does not replace or limit, any other right that Inck Merchandise may have.
22 – SEVERABILITY
Any provision of these Terms that is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make these Terms enforceable, unless this would materially change the intended effect of the Terms.
23 – VARATION
Inck Merchandise is entitled to vary these Terms at any time by giving the Customer 7 days’ written notice provided such variation is not materially detrimental to the rights of the Customer.