TERMS & CONDITIONS
These are the entire terms and conditions of all goods, merchandise and services (Goods) supplied by Kerryn Howell and Jane Klose trading as JAK Creative and Events (ABN 59 925 464 618) (collectively JAK Creative and Events) to any person, firm or company placing an order with or hiring Goods from JAK Creative and Events (Customer), or where Goods are used during the provision of a service to the Customer (Terms and Conditions). Except as otherwise expressly agreed upon in writing between a duly authorised officer of JAK Creative and Events and the Customer, these Terms and Conditions shall apply notwithstanding any provisions to the contrary which may appear on any form or other document issued by the Customer.
All orders placed with JAK Creative and Events shall only be accepted subject to these Terms and Conditions and such altered Terms and Conditions shall apply after notification by JAK Creative and Events to the Customer.
JAK Creative and Events reserves the right to accept or decline, in whole or in part, any order placed by the Customer.
If a Customer cancels or alters any order or part order at any time after JAK Creative and Events has received the order then JAK Creative and Events reserves the right to charge to the Customer the costs of any Goods or materials already acquired for the order together with the cost of any labour and tooling expended to the date of such cancellation or alterations.
Goods and Services Tax (GST), Sales Tax or any other applicable tax or duty payable shall be paid by or reimbursed by the Customer to JAK Creative and Events on demand and the Customer shall indemnify and keep indemnified JAK Creative and Events in respect of all taxes and duties including GST arising out of any sale of Goods or the subsequent use of Goods after the sale to the Customer.
All prices shall be those referred to in JAK Creative and Events price lists and/or arrangements current at the date of invoice and prices shall be subject to change without notice.
Each Party undertakes that it shall not, at any time after the making of the Agreement divulge any confidential information, including without limitation any drawing, report, information and data (and all copies and extracts made of or from such information and data) concerning the Event.
4.Terms of paymenT
(a) Unless otherwise stated on the invoice all prices are strictly 50% non-refundable deposit on order acceptance, with net payable 7 days prior to delivery. The granting of credit to a Customer shall be at the absolute discretion of JAK Creative and Events and unless otherwise demanded by JAK Creative and Events the Customer shall make payment of all amounts payable within 7 days of the date of invoice.
(b) Customers shall not be entitled to withhold payment of any account by reason of any account query, dispute or set-off. The Customer agrees to pay JAK Creative and Events administration and handling fees in respect of any copies of documents required or other processing involved in the conduct of the account and such fees will be charged to the Customer's account.
If the Customer fails to make payment in accordance with clause 3, JAK Creative and Events shall be entitled to:
(a) require the payment of cash upon order of any further Goods;
(b) charge an interest charge at the rate of 1.75% per month on a cumulative basis on all overdue amounts (including late payment charges and amounts other than the price) calculated on a day-to-day basis on any monies due but unpaid, such interest charge to be computed from the due date for payment and the parties agree that such interest charge is not a penalty but is a true measure of damages incurred by JAK Creative and Events. Payments received from the Customer will be credited first against any interest charge and all such fees shall be payable on demand;
(c) claim from the Customer all costs, expenses and charges incurred on any account whatsoever including but not limited to any action taken by JAK Creative and Events to recover monies or Goods due from the Customer including but not limited to any mercantile agents' costs and legal costs and disbursements on a solicitor-client basis; and
(d) cease any further deliveries to the Customer and to terminate any agreement in relation to Goods that have not been delivered.
Any date or time quoted for delivery is an estimate only and JAK Creative and Events shall endeavour to effect delivery at the time or times required by the Customer but failure to do so shall not confer any right of cancellation or refusal of delivery on the Customer or render JAK Creative and Events liable for any loss or damages directly or indirectly sustained by the Customer as a result thereof.
To the full extent allowed by law, JAK Creative and Events is not liable to the Customer for any loss or damage whatsoever (including inconsequential loss) caused directly or indirectly by any delay or failure in delivery. Any delay in delivery does not relieve the Customer of its obligation to accept that delivery and any remaining delivery.
If the Customer requests special delivery services (e.g. express post or air freight) which are not part of JAK Creative and Events’ standard delivery services, then the charges for special delivery services may be charged to the Customer.
JAK Creative and Events’ obligations to deliver shall be discharged on arrival of the Goods at the Customer's nominated delivery destination, nominated transport company, nominated agent or the address appearing on the invoice. The Customer shall unload the Goods upon delivery, provided that if the Customer is unable or unwilling to accept physical delivery of the Goods when the Goods are ready for delivery, JAK Creative and Events shall be entitled to charge a fee for any delay experienced or arrange for the storage and other consequential costs. JAK Creative and Events may, at its discretion, make and invoice partial deliveries and each partial delivery shall be a separate sale pursuant to these Terms and Conditions.
The Customer shall examine the Goods immediately after delivery and JAK Creative and Events shall not be liable for any misdelivery, shortage, defect or damage unless JAK Creative and Events receives details in writing within seven days of the date of delivery of the Goods.
7.Property and risk
Notwithstanding delivery of the Goods or their installation, property in any given Goods shall remain with JAK Creative and Events. Any payment made by or on behalf of a Customer which is later avoided by the application of any Statutory Provision shall be deemed not to discharge the Customer's amount owing and, in such an event the parties are to be restored to rights which each respectively would have had if the payment had not been made
The risk in the Goods shall pass to the Customer upon delivery to the Customer or his agent or to a transport company nominated by the Customer until and/or if the Goods are returned, whereby the risk reverts to JAK Creative and Events upon delivery to JAK Creative and Events.
The Customer shall notify JAK Creative and Events if any Goods are not in proper working order. The Customer shall not repair or attempt to repair the Goods without written authorisation from JAK Creative and Events
The Customer acknowledges the receipt of instructions and/or training, where required, in the appropriate use of the Goods.
The Customer acknowledges that it is in possession of the Goods solely as a bailee for JAK Creative and Events until payment as defined in clause 3. has been made in full to JAK Creative and Events and until such payment:
(a) the Customer shall be fully responsible for any loss or damage to the Goods whatsoever and howsoever caused following delivery;
(b) the Customer shall store the Goods separately from its own Goods and those of any other party and in a manner which clearly identifies the Goods, whether as separate chattels or as components, as the property of JAK Creative and Events; and
(c) the Customer shall maintain records of Goods owned by JAK Creative and Events identifying them as JAK Creative and Events property. The Customer shall allow JAK Creative and Events to inspect these records and the Goods themselves on request.
(d) The Customer shall maintain, at the their own cost, all necessary insurance to a level which will adequately cover the value of the Goods and any other liability associated with the use of the Goods.
The Customer hereby irrevocably grants to JAK Creative and Events, its agents and servants, an unrestricted right and licence, without notice to enter premises occupied by the Customer to identify and remove any of the Goods the property of JAK Creative and Events in accordance with the Terms and Conditions without in any way being liable to the Customer or any person claiming through the Customer. JAK Creative and Events shall have the right to sell or dispose of any such Goods removed or otherwise in its sole discretion and shall not be liable for any loss occasioned thereby.
If the Goods are affixed to other materials, the totality thereof shall be the sole and exclusive property of JAK Creative and Events until payment as defined in clause 3.1 has been made in full to JAK Creative and Events unless the other materials or part thereof are or is the property or a party or parties other than the Customer in which case the totality thereof shall be deemed to be owned as tenants-in-common with such other party or parties in shares corresponding to the respective amounts paid or payable by the Customer in respect of such other party or parties.
If a term used in this clause has a particular meaning in the Personal Property Securities Act 2009 (Cth) (PPSA) it has the same meaning in this clause.
If JAK Creative and Events determines in its absolute discretion that the PPSA applies to any transaction subject to these Terms and Conditions, the Customer agrees that:
(a) it grants a first ranking security interest and purchase money security interest in the Goods supplied to it for the purposes of the PPSA, as security for all Amounts Owing, which is a continuing security despite any settlement of account or other matter or thing until a final discharge is given to JAK Creative and Events (where applicable);
(b) it will execute such further documents and take steps required by JAK Creative and Events to register a financing statement or financing charge statement in relation to the Goods on the Personal Property Securities Register, or otherwise perfect JAK Creative and Events’ interest in the Goods, including any agreements required from other secured parties, and if requested by JAK Creative and Events, will not take possession of the Goods unless JAK Creative and Events has registered a financing statement designating a purchase money security interest over them;
(c) it waives its right under s157 of the PPSA to receive notice of any verification statement relating to the registration of any such financing statement or any related financing change statement; and
(d) JAK Creative and Events may appropriate (or re-appropriate despite any prior appropriation) moneys received in respect of the Customer in its absolute discretion toward any part of the Amount Owing, including in order to maximise the extent to which it can have recourse to its security interest in the Goods held by the Customer.
Both JAK Creative and Events and the Customer agree that the following provisions of the PPSA do not apply:
(a) to the extent that s115(1) of the PPSA allows them to be excluded: ss95, 118, 121(4), 125, 130, 132(3)(d), 135, 138B(4), 142 and 143; and
(b) to the extent that s115(7) of the PPSA allows them to be excluded ss 127, 129(2) and (3), 132, 134(2), 135, 136(5) and 137.
The terms of this clause 7.2 prevail over any other term in these Terms and Conditions or any other agreement between JAK Creative and Events and the Customer to the extent of any inconsistency.
In addition to any right of lien to which JAK Creative and Events may be entitled under the common law, JAK Creative and Events shall be entitled to exercise a general lien over all items in its possession belonging to the Customer until the Customer has paid in full for all Goods supplied by JAK Creative and Events to the Customer. JAK Creative and Events may in its sole discretion sell any item that is subject to the said lien, provided that JAK Creative and Events shall pay the Customer any surplus proceeds that are realised by it from a sale of any such items after discharging in full all monies outstanding to JAK Creative and Events in respect of Goods that have been delivered to the Customer and all reasonable costs of sale incurred by JAK Creative and Events
The Customer acknowledges that JAK Creative and Events has a security interested (for the purposes of the PPSA) in these items, and the proceeds of these items, until the Customer has paid in full for all Goods supplied by JAK Creative and Events in accordance with this clause 8. The Customer will do anything required by JAK Creative and Events to enable JAK Creative and Events to register this security interest, with the priority JAK Creative and Events requires, and to maintain that registration. Despite this requirement for registration of this security interest, and regardless of whether or not it is actually registered, JAK Creative and Events may perfect this security interest by possession of the relevant items.
Subject to payment in full being made as defined in clause 3, JAK Creative and Events shall use its best endeavours to pass on to the Customer the benefit of any warranties or guarantees it receives in respect of Goods or parts thereof supplied to the Customer.
11.Limitation of liability
These Terms and Conditions do not exclude, restrict or modify the application of any provisions of any Commonwealth, State or Territorial Law which by law cannot be excluded, restricted or modified.
Notwithstanding anything to the contrary in these Terms and Conditions, to the extent that the Customer acquires Goods from JAK Creative and Events as a consumer within the meaning of the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) as amended or replaced from time to time, the Customer may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement. Nothing in this clause 10 operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:
(a) contravene that statute; or
(b) cause any term of these Terms and Conditions to be void,
Except in relation to the Non-excludable Obligations, all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied by custom, under the general law or by statute that impose any liability on JAK Creative and Events are expressly excluded under these Terms and Conditions.
Except in relation to Non-excludable Obligations and subject to clause (?). JAK Creative and Events’ liability to the Customer (and any party claiming through the Customer against (JAK Creative and Events) for any claim for loss or damages (including legal expenses) made in connection with the supply of Goods by JAK Creative and Events and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity is limited as follows:
(a) JAK Creative and Events will have no liability whatsoever to the Customer for any loss, harm, damage, cost or expense (including legal fees), or in the nature of special, indirect or consequential loss or damage (including, without limitation, economic loss, loss of contract, loss of profit or revenue, loss of opportunity, loss of production, production stoppage, loss of contract, loss of customers, loss of business opportunity or business, loss of goodwill or reputation, loss of value of intellectual property, loss or damage resulting from the loss or damage to Goods other than the Goods or loss of data); and
(b) the aggregate of JAK Creative and Events’ liability to the Customer in respect of any Order is otherwise limited to an amount not exceeding the consideration for the Goods paid by the Customer in respect of an order.
In relation to the Non-excludable Obligations (other than a guarantee as to title, encumbrances or quiet possession conferred by the Australian Consumer Law), except for Goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption (in respect of which JAK Creative and Events’ liability is not limited under these Terms and Conditions), JAK Creative and Events’ liability to the Customer for a failure to comply with any Non-excludable Obligation is limited to the cost of replacing the Goods, supplying equivalent Goods, or payment of the cost of replacing the Goods or supplying equivalent Goods.
Unless the claim is by a consumer within the Australian Consumer Law, any claim by the Customer in respect of defective Goods or damaged Goods must be made in writing within 48 hours of the delivery of the Goods, unless a longer period is expressly agreed to by JAK Creative and Events in writing.
JAK Creative and Events shall not be liable for any failure or delay in supply or delivery of the Goods where such failure or delay in wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of JAK Creative and Events including, but not limited to, war, strikes, lockouts, industrial disputes or unrest, government restrictions or intervention, transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, storm or tempest, theft, vandalism, riot, civil commotion or accident of any kind.
If the Customer fails to comply with any of these Terms and Conditions or being a natural person or persons commits any act of bankruptcy, or being a corporation passes a resolution for winding-up or liquidation (other than for the purposes of reorganisation or reconstruction) or administration or enters into any composition or arrangement with creditors or if a receiver or manager or administrator or controller is appointed for any property or assets of the Customer or becomes liable to be wound-up by reason of insolvency or if any petition is presented for its winding-up, or if a liquidator or provisional liquidator or administrator is appointed, JAK Creative and Events may, in addition to exercising all or any of its rights against the Customer, suspend any further deliveries and immediately recover possession of any Goods not paid for in accordance with these Terms and Conditions.
The Customer agrees that these Terms and Conditions shall be construed according to the laws of the State or Territory as JAK Creative and Events may in its sole discretion determine. Proceedings may be instituted in such State or Territory as JAK Creative and Events may in its sole discretion determine. Failing such determination the Customer consents to any proceedings being instituted and heard by any appropriate Court sitting in the State of Victoria applying the laws of the State of Victoria.
15.Service of documents
The Customer agrees that service of any notices or Court documents may be effected by forwarding same by prepaid post or facsimile to the last known address of the Customer.
16.Statement of debt
A certificate signed by a director, secretary, financial controller or credit manager of JAK Creative and Events shall be prima facie evidence of the Amount Owing of the Customer to JAK Creative and Events at that time.