Definitions

​

• “Birst Group” shall mean Birst Group P/L (ABN: 44 162 154 225) its successors and assigns or any person acting on behalf of and with the authority of Birst Group P/L.

• “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Birst Group to the Client.

• “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.

• “Goods” shall mean all Goods supplied by Birst Group 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, scope of work or any other forms as provided by Birst Group to the Client.

• “Services” shall mean all Services supplied by Birst Group to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

• “Price” shall mean the Price payable for the Goods as agreed between Birst Group and the Client in accordance with clause 4 of this contract.

​

The Competition and Consumer Act 2010 (“CCA”) and Fair Trading Acts (“FTA”)

​

• Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.

• Where the Client buys Goods as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.

​

Acceptance

​

• Any instructions received by Birst Group from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Birst Group shall constitute acceptance of the terms and conditions contained herein.

• Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.

• Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Birst Group.

• The Client shall give Birst Group not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, phone number, email, or business practice). The Client shall be liable for any loss incurred by Birst Group as a result of the Client’s failure to comply with this clause.

• Goods are supplied by Birst Group only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

​

Price and Payment

​

• At Birst Group’ sole discretion the Price shall be either:

  • as indicated on invoices provided by Birst Group to the Client in respect of Goods supplied; or

  • Birst Group’ quoted Price (subject to clause 4.2) which shall be binding upon Birst Group provided that the Client shall accept Birst Group’ quotation in writing within thirty (30) days. 

• Birst Group reserves the right to change the Price in the event of a variation to Birst Group’ quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to unforeseen circumstances, such as site difficulties affecting installation, or as a result of increases to Birst Group in the cost of materials and labour) will be charged for on the basis of Birst Group’ quotation and will be shown as variations on the invoice.  Payment for all variations must be made in full at their time of completion.

• At Birst Group’ 40% deposit is required before any work commences.

• On request from the Client, Birst Group may charge a rush fee for a fast turnaround on Services for up to an additional twenty-five percent (25%) of the Price,

• At Birst Group’ sole discretion:

  • payment shall be required to be paid 40% on acceptance, 40% due on delivery of the Goods and 20% after the goods have been delivered; or

  • payment for approved Clients shall be due thirty (30) days after the date of the invoice; or

  • payment for approved Clients shall be due on the date specified on the invoice.

• 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 seven (7) days following the date of the invoice.

• Payment will be made by EFT/direct debit, or by credit card @1% surcharge (American Express 2% surcharge), or by any other method as agreed to between the Client and Birst Group.

• 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.

​

Delivery of Goods

​

• At Birst Group’s sole discretion delivery of the Goods shall take place when:

  • the Client takes possession of the Goods at Birst Group’ address; or

  • the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Birst Group or Birst Group’ nominated carrier).

• At Birst Group’ sole discretion the costs of delivery are:

  • included in the Price; or

  • in addition to the Price; or

  • for the Client’s account.

• The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Birst Group shall be entitled to charge a reasonable fee for storage & redelivery.

• 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.

• The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:

  • such discrepancy in quantity shall not exceed five percent (5%); and

  • the Price shall be adjusted pro rata to the discrepancy.

• Birst Group shall not be liable for any loss or damage whatsoever due to failure by Birst Group to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Birst Group.

​

Risk

​

• If Birst Group retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.  Birst Group shall not be liable for any loss, damages or costs in the event the Goods are damaged or vandalised once on site. The Client further agrees that all risk for the Goods passes to the Client on delivery or installation, and in the event any damages or injuries occur from the Goods, Birst Group shall not be held liable for any costs, losses or expenses howsoever caused in relation to the Goods, unless proven to be a direct result of Birst Group’ negligence.

• If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Birst Group is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Birst Group is sufficient evidence of Birst Group’ rights to receive the insurance proceeds without the need for any person dealing with Birst Group to make further enquiries.

• Where the Client expressly requests Birst Group to leave Goods outside Birst Group’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.

• Whilst every care is taken by Birst Group to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proof reading of the Goods. Birst Group shall be under no liability whatever for any errors not corrected by the Client in the final proof reading. Should the Clients alterations require additional proofs this shall be invoiced as an extra.

• The Client acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. Birst Group will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.

• The Client acknowledges and agrees that in the event additional work is required to attempt to accurately match colours of Client supplied artwork, Birst Group reserve the right to charge the additional work as a variation as per clause 4.2.

• The Client acknowledges and agrees that in the event any Services are undertaken on any vehicle (including, but not limited to vinyl work, vehicle wrapping and vinyl lettering), Birst Group shall take all due care, however they shall not be liable for any loss, damage or cost to any paintwork, parts, accessories on the vehicle.

​

Access

​

• The Client shall ensure that Birst Group has clear and free & safe access to the work site at all times, adhering to OH & S requirements to enable them to undertake the works. Birst Group shall not be liable for any loss or damage to the site unless due to the negligence of Birst Group.

​

Title

​

• Birst Group and the Client agree that ownership of the Goods shall not pass until:

  • the Client has paid Birst Group all amounts owing for the Goods; and

  • the Client has met all other obligations due by the Client to Birst Group in respect of all contracts between Birst Group and the Client.

• Receipt by Birst Group 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 Birst Group’ ownership or rights in respect of the Goods shall continue.

• It is further agreed that:

  • where practicable the Goods shall be kept separate and identifiable until Birst Group shall have received payment and all other obligations of the Client are met; and

  • until such time as ownership of the Goods shall pass from Birst Group to the Client Birst Group may give notice in writing to the Client to return the Goods or any of them to Birst Group.  Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and

  • Birst Group shall have the right of stopping the Goods in transit whether or not delivery has been made; and

  • if the Client fails to return the Goods to Birst Group then Birst Group or Birst Group’ agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods; and

  • the Client is only a bailee of the Goods and until such time as Birst Group has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Birst Group for the Goods, on trust for Birst Group; and

  • the Client shall not deal with the money of Birst Group in any way which may be adverse to Birst Group; and

  • 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 Birst Group; and

  • Birst Group 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

  • until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Birst Group will be the owner of the end products.

​

Personal Property Securities Act 2009 (“PPSA”)

​

• In this clause:

  • financing statement has the meaning given to it by the PPSA;

  • financing change statement has the meaning given to it by the PPSA;

  • security agreement means the security agreement under the PPSA created between the Client and Birst Group by these terms and conditions; and

  • security interest has the meaning given to it by the PPSA.

• Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions:

  • constitute a security agreement for the purposes of the PPSA; and

  • create a security interest in:

    • all Goods previously supplied by Birst Group to the Client (if any);

    • all Goods that will be supplied in the future by Birst Group to the Client.

• The Client undertakes to:

  • promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Birst Group may reasonably require to:

    • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

    • register any other document required to be registered by the PPSA; or

    • correct a defect in a statement referred to in clause 9.3 (a) (i) or 9.3 (a) (ii);

  • indemnify, and upon demand reimburse, Birst Group for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;

  • not register a financing change statement in respect of a security interest without the prior written consent of Birst Group;

  • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Birst Group; and

  • immediately advise Birst Group of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

• Birst Group and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

• The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

• The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

• Unless otherwise agreed to in writing by Birst Group, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.

• The Client shall unconditionally ratify any actions taken by Birst Group under clauses 9.3 to 9.5.

​

Defects

​

• The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Birst Group of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Birst Group 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 Birst Group has agreed in writing that the Client is entitled to reject, Birst Group’ liability is limited to either (at Birst Group’ discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.

• Goods will not be accepted for return other than in accordance with 11 below

​

Warranty

​

• For Goods not manufactured by Birst Group, the warranty shall be the current warranty provided by the manufacturer of the Goods. Birst Group shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

• Where the Seller has not manufactured the Goods, the Seller accepts no liability whatsoever, except for any workmanship associated with the supply of the Goods.

• The Seller hereby warrants that subject to the conditions of warranty as specified in clause 10 herein, all Goods supplied are covered by a thirty (30) day warranty against defects arising from workmanship or materials.

• Where the Seller has agreed in writing that the Buyer is entitled to claim under warranty, the Seller’s liability is limited to (at the Seller’s discretion), replacing or repairing the Goods.

• Any costs associated with the return of Goods for the purpose of a warranty claim shall be the responsibility of the Buyer.

​

Conditions of Warranty

​

• The Seller’s warranty will not be applicable in a situation where;

• The Buyer has failed to follow instructions supplied by the Seller in relation to proper use of the Goods.

• The Goods have been used in a manner other than their original intended use.

• Installation of the Goods has not been carried out by persons recognised by the Seller as being trained and accredited to install the Goods.

• The Goods continue to be used after any fault or defect has become known to the Buyer or would have become known to a reasonable person.

• The defect or fault has occurred from reasonable wear and tear in use.

• The defect or fault has occurred as a result of circumstances beyond the control of either the Buyer or the Seller.

• The Seller accepts no responsibility for loss or damage to the Buyer, financial or otherwise, arising from a delay in the time taken for the Seller to replace or repair any Goods covered by the warranty.

• The warranty will become void if any maintenance or alteration is made to the Goods without the Seller’s knowledge and consent.

• Buyer’s Disclaimer

• The Buyer hereby disclaims any right to cancel the contract, or to seek compensation for loss or damages arising from any misrepresentation made to the Buyer by the Seller, or any related corporations of the Seller, and their respective officers, employees, agents and contractors.

• The Buyer acknowledges that the Buyer buys the Goods/Services relying solely upon the Buyer’s own skill and judgement.

​

Intellectual Property

​

• Where Birst Group has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in Birst Group, and shall only be used by the Client at Birst Group’ discretion.

• The Client warrants that all designs or instructions to Birst Group will not cause Birst Group to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Birst Group against any action taken by a third party against Birst Group in respect of any such infringement.

• The Client agrees that Birst Group may use any documents, designs, drawings or Goods created by Birst Group for the purposes of advertising, marketing, or entry into any competition.

• Drawings, sketches, painting, photographs, designs or typesetting furnished by Birst Group, dummies, models or the like devices made or procured and manipulated by Birst Group and negatives, positives, blocks, engravings, stencils, dies, plates, patterns or cylinders made from Birst Group’ original design, or from a design furnished by the Client, remain the exclusive property of Birst Group unless otherwise agreed upon in writing.

• Sketches and dummies submitted by Birst Group on a speculative basis shall remain the property of Birst Group. They shall not be used for any purpose other than that nominated by Birst Group and no ideas obtained there from may be used without the consent of Birst Group. Birst Group shall be entitled to compensation from the Client for any unauthorised use of such sketches and dummies.

• Disks, artwork and film supplied by the Client and/or other authorised persons remain the property of the Client.  Unless otherwise indicated in writing Birst Group shall assume these disks, artwork and film to be duplicate copies of the original.

​

Default and Consequences of Default

​

• Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Birst Group’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

• In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Birst Group.

• If the Client defaults in payment of any invoice when due, the Client shall indemnify Birst Group from and against all costs and disbursements incurred by Birst Group in pursuing the debt including legal costs on a solicitor and own client basis and Birst Group’ collection agency costs.

• Without prejudice to any other remedies Birst Group may have, if at any time the Client is in breach of any obligation (including those relating to payment) Birst Group may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Birst Group will not be liable to the Client for any loss or damage the Client suffers because Birst Group has exercised its rights under this clause.

• If any account remains overdue after thirty (30) days, then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.

• Without prejudice to Birst Group’ other remedies at law Birst Group shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Birst Group shall, whether or not due for payment, become immediately payable in the event that:

  • any money payable to Birst Group becomes overdue, or in Birst Group’ opinion the Client will be unable to meet its payments as they fall due; or

  • 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

  • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

​

Cancellation

​

• Birst Group may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Birst Group shall repay to the Client any sums paid except the cost incurred in respect of the Price. Birst Group shall not be liable for any loss or damage whatsoever arising from such cancellation.

• In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Birst Group (including, but not limited to, any loss of profits) up to the time of cancellation.

• Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.

​

Privacy Act 1988

​

• The Client and/or the Guarantor/s (herein referred to as the Client) agree for Birst Group to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Birst Group.

• The Client agrees that Birst Group may exchange information about the Client 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:

  • to assess an application by the Client; and/or

  • to notify other credit providers of a default by the Client; and/or

  • 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

  • to assess the creditworthiness of the Client.

• The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

• The Client consents to Birst Group being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

• The Client agrees that personal credit information provided may be used and retained by Birst Group for the following purposes (and for other purposes as shall be agreed between the Client and Birst Group or required by law from time to time):

  • the provision of Goods; and/or

  • the marketing of Goods by Birst Group, its agents or distributors; and/or

  • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or

  • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

  • 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.

• Birst Group may give information about the Client to a credit reporting agency for the following purposes:

  • to obtain a consumer credit report about the Client;

  • allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

• The information given to the credit reporting agency may include:

  • personal particulars (the Client’s name, sex, address, previous  addresses, date of birth, name of employer and driver’s licence number;

  • details concerning the Client’s application for credit or commercial credit and the amount requested;

  • advice that Birst Group is a current credit provider to the Client;

  • advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and/or for which debt collection action has been started;

  • that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;

  • information that, in the opinion of Birst Group, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);

  • that credit provided to the Client by Birst Group has been paid or otherwise discharged.

​

Unpaid Birst Group’ Rights

​

• Where the Client has left any item with Birst Group for repair, modification, exchange or for Birst Group to perform any other Service in relation to the item and Birst Group has not received or been tendered the whole of the Price, or the payment has been dishonoured, Birst Group shall have:

  • a lien on the item;

  • the right to retain the item for the Price while Birst Group is in possession of the item;

  • a right to sell the item.

• The lien of Birst Group shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.

​

General

​

• 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.

• If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.

• These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria/Federal Australia and are subject to the jurisdiction of the courts of Victoria/Federal Australia.

• Birst Group shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Birst Group of these terms and conditions.

• In the event of any breach of this contract by Birst Group the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.

• 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 Birst Group nor to withhold payment of any invoice because part of that invoice is in dispute.

• Birst Group may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

• The Client agrees that Birst Group may 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 Birst Group notifies the Client of such change. Except where Birst Group supplies further Goods to the Client and the Client accepts such Goods, the Client shall be under no obligation to accept such changes.

• Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

• The failure by Birst Group to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Birst Group’ right to subsequently enforce that provision.

​