LegalLegal
No information or advice contained in this website is binding in any way shape or form. All dimensions are nominal, specifications and photographs are indicative only and subject to change without notice. All pricing, sales, communications and transactions are subject to Blue Chip Group's terms and conditions of trade as outlined below.
BLUE CHIP GROUP TERMS & CONDITIONS OF TRADE:
To the fullest extent legally possible all contracts, dealings and/or arrangements made between Blue Chip Group ABN 62 008 668 291 and each of its subsidiaries, affiliates, associated companies and related entities (“BCG”) and any Customer (“Customer”) relating to any products, services or transactions are subject to the following Terms and Conditions of Trade (“these Terms”) unless otherwise agreed in writing.
1. PAYMENT:
1a. Payment is to be by cash, cheque or electronic funds transfer (EFT) without set-off or deduction of any kind and within 30 days from the end of month of invoice.
1b. BCG may apply a payment received from the Customer to any amounts owed by the Customer including; interest part payment of an invoice, administration, collection and any other costs and in any order.
1c. BCG is entitled to set-off or deduct any amount payable by BCG to the Customer.
1d. A payment dishonour fee may be charged by BCG if a Customer’s payment is dishonoured in any way.
2. INTEREST:
2a Interest is payable on all overdue accounts at a rate of 2% per month compounded monthly.
3. PROPERTY:
3a. Property in goods will not pass until payment in full of all monies owed to BCG on any basis (“Full Payment”).
3b. BCG reserves the right to take possession and dispose of goods as it sees fit at any time until Full Payment and the Customer grants permission to BCG to enter any property (whether owned by it or otherwise) where any goods are, in order to do so and with such force as is necessary.
3c. Immediately upon delivery the Customer accepts liability for the goods.
3d. A document signed by an officer of BCG identifying goods and certifying that monies are owing to BCG will be conclusive evidence of BCG’s title thereto.
3e. Upon sale or disposition of goods prior to Full Payment the Customer agrees to hold all proceeds Upon Trust for BCG in a separate bank account, agrees not to mix proceeds with any other monies and will immediately account to BCG therefore even if BCG may have granted any credit facility and/or time to pay. Failure by the Customer to comply with this subclause does not render invalid the trust to be established under this subclause.
3f. Until Full Payment the Customer agrees:
(i). to keep all goods as fiduciary for BCG and to store them in a manner which shows BCG as owner and will keep them safe and free from deterioration, destruction, loss or harm.
(ii). Only to sell goods in the usual course of business; and
(iii). Sale on terms, at no cost or at less than cost will not be “in the usual course”.
3g. Clause 3 is not intended to create a charge and must be read down to the extent necessary to avoid being a charge.
3h. If the Customer uses or incorporates any goods in any production, process or manufacture or combines them with anything to create a finished or combined new thing for disposition then upon such disposition prior to Full Payment, the Customer agrees to hold such part of the proceeds thereof (and until payment is received by the Customer, that part of any applicable book debt) as equal the costs of the goods used and/or incorporated therein (at the prices invoiced by BCG to the Customer) Upon Trust for BCG until Full Payment.
4. LIMITATION OF LIABILITY:
4a. The Customer must limit any claim upon BCG relating to goods, to the cost of replacement of goods or the supply of equivalent goods and relating services, to the cost of having services supplied again.
4b. BCG will not be liable for any claim arising after 7 days from delivery of goods or performance of services (or at all once goods have been unpacked, modified, on-sold or otherwise used or applied) after which there will be deemed to be unqualified acceptance.
4c. BCG will not be liable in any way for any contingent, consequential, direct, indirect, special or punitive damage arising whether due to BCG’s negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly.
4d. No other term, condition, agreement, warranty, representation or understanding whether express or implied in any way extending to or otherwise relating to or binding upon BCG is made or given.
4e. BCG will not be liable for any claim relating to or arising from any alleged fault or defect, whether caused or contributed to by BCG, the Customer or any 3rd party or otherwise.
5. RETURNS:
5a. If BCG elects to take back product it must be in as new and saleable condition and upon terms agreed and a re-stocking fee of not less than 20% of invoice value will apply.
5b. Custom made or custom processed goods or goods produced and/or acquired by BCG specifically for the Customer will not be returnable.
5c. Any goods which are accepted by BCG as defective may be returned and will be replaced free of charge or be subject to a credit for the invoiced value. “Free of Charge” does not include labour, transport or material costs.
6. PLACEMENT OF ORDERS:
6a. If any dispute arises concerning any order (and including any measurement, quality, identity, or authority or any telephone, facsimile, email or computer generated order) the internal records of BCG will be conclusive evidence of what was ordered.
6b. Each order placed will be and be deemed to be a representation made by the Customer at the time that it is solvent and able to pay all of its debts as and when they fall due.
6c. Failure to pay in accordance with these Terms will be deemed to be conclusive evidence that the customer had no reasonable grounds for making the representation referred to in 6b and that the representations were unconscionable, misleading and deceptive.
6d. When any order is placed, the Customer must inform BCG of any material facts which would or might reasonably affect the commercial decision by BCG to accept the order and/or grant credit in relation thereto. Any failure to do so will create and be deemed to create an inequality of bargaining position and will constitute and be deemed to constitute the taking of an unfair advantage of BCG and to be unconscionable, misleading and deceptive.
7. DELIVERY:
7a. BCG accepts no responsibility for delivery but may elect to arrange delivery at its discretion and without any liability and at the Customer’s costs and responsibility in all things.
7b. BCG reserves the right to charge for any delivery.
7c. The Customer will be deemed to have accepted delivery and liability for the goods immediately BCG notifies that they are ready for collection or when they are delivered to a carrier or to the Customer’s business premises or site whether attended or not.
7d. A document (including without limitation a consignment note) purporting to be signed by an officer of BCG confirming delivery will be conclusive evidence of delivery as will any signed delivery docket.
7e. BCG will not be liable for delay, failure or inability to deliver any goods.
7f. Once the Customer has been notified that goods are ready for collection, the Customer agrees to pay all costs of holding or handling goods.
7g. The Customer shall provide reasonable and proper access to any site specified for delivery and Council approved crossing facilities.
7h. The Customer agrees to pay all costs and expenses arising from frustrated or delays in delivery.
7i. The Customer shall be responsible for any damage, costs (including clean-up costs) or fines caused in the course of delivery whether to footpaths or to any other property.
7j. BCG may unilaterally delay, cancel or suspend any delivery for any period or cancel any agreement for sale without any liability to any party.
8. VARIATION:
8a. Variation or cancellation of any order, dealing or arrangement must be agreed in writing by BCG.
9. EXCLUSIONS:
9a. No dealing with the Customer will be deemed to be a sale by sample or description.
9b. If BCG publishes material about its goods and prices, any part which is incompatible with these Terms is expressly excluded.
9c. The Customer will rely on its own knowledge and expertise in choosing any product for any purpose.
9d. Any advice or assistance given for or on behalf of BCG must be accepted at the Customer’s risk and must not be deemed given as expert or adviser nor to have been relied upon.
10. ON-SALE:
10a. The Customer agrees upon the on-sale of any goods to inform any third party involved of these Terms and in particular the provisions of clause 3 and especially clause 3g.
11. SEVERABILITY:
11a. Any part of these Terms can be severed without affecting any other part.
12. PURCHASE PRICE:
12a. All sales are made by BCG at its ruling price at the time of delivery.
12b. All government imposts and any GST (“Imposts”) will be to the Customer’s account.
12c. BCG’s price lists exclude Imposts unless expressly noted thereon.
12d. All prices quoted will be subject to adjustment should there be any increase in current rates used for labour and materials.
13. DEFAULT:
13a. Default or breach by the Customer of these Terms or in any dealings with BCG will entitle BCG to retain all monies paid, call-up all monies due or owing (whether currently due and owing or not), cease further deliveries, recover from the Customer all loss f profits and/or take immediate possession of any product, without prejudice to any other of its rights and without liability to any party.
13b. The Customer agrees not to commence or continue or permit to be commenced or continued any action against BCG whilst the Customer is in default under any part of these Terms.
13c. If the Customer on-sells any product, the Customer agrees to pay to a Stakeholder nominated by BCG, the cost price incurred or payable by BCG for the acquisition of the product for supply to the Customer (estimated at 75% of the amount invoiced to the Customer by BCG), before the Customer is entitled to take any step in any proceedings commenced by BCG for payment for that product. The Customer agrees that this clause may be pleaded as a bar to any action by the Customer until payment to the Stakeholder has been made. The Stakeholder nominated is authorised to invest the moneys at 30 day call with any major banking institution in Australia. The money so held to be applied in accordance with the appropriate Court determination or agreement between the parties resolving the proceedings.
14. PRODUCTS AND SERVICES:
14a. BCG disclaims any responsibility or liability whatsoever relating to suitability for any particular purpose or process.
14b. The Customer agrees to check all goods prior to use, alteration or any application thereof whether in relation to suitability for any particular purpose, process or otherwise.
14c. The Customer agrees to check and test all goods for compliance with all relevant applicable standards and regulatory bodies before use, on-sale or application and to use or apply same in accordance with all applicable standards, regulations and guidelines, with all manufacturers and/or BCG recommendations and directions as well as with good commercial practice.
14d. The Customer agrees to identify, undertake and pay the cost of any maintenance or actions which are required to ensure the goods provide the ongoing appearance and performance intended, specified and/or desired.
14e. BCG may update, modify, make substitution or alter any of its goods or any component or raw material incorporated in or used in forming any part of any goods as part of its ongoing business. The Customer agrees to accept current goods in substitution for any goods ordered provided they are not materially different.
14f. BCG disclaims any responsibility or liability relating to any goods;
(i). processed or made to designs, drawings, specifications or measurements etc. Or with materials which are provided or approved (whether in part or fully) by or on behalf of the Customer: and/or
(ii). utilised, stored, handled or used incorrectly or inappropriately.
15. OTHER TERMS AND CONDITIONS AND NOTICE:
15a. Terms and/or conditions sought to be imposed by the Customer upon BCG will not apply unless agreed in writing by BCG.
15b. The Customer will be deemed to have notice of any change to these Terms, immediately BCG adopts them, whether or not the Customer has ‘actual’ notice.
15c. The Customer shall be bound by any terms and conditions of trade adopted by BCG immediately they are adopted, notwithstanding any other purported, pre-existing or other terms and conditions.
16. RECOVERY COSTS:
16a. The Customer will pay (on a full indemnity basis) all costs and expenses of BCG, its legal advisers, mercantile agents and others acting on its behalf in respect of anything instituted or being considered as a result of any breach of these Terms or breach of any dealings with BCG
17. ATTORNMENT:
17a. To give effect to its obligations arising under these Terms (and especially Clause 22) the Customer hereby irrevocably appoints any solicitor for BCG from time to time, as its attorney.
18. CUSTOMER RESTRUCTURE:
18a. The Customer will notify BCG of any change in its structure or management including any sale or disposition of any part of the business of the Customer, any change in director, shareholder, management, partnership or trusteeship or sale of any material part of the business (“Restructure”) within 7 days of any such change.
18b. The Customer agrees it will:
(i). cause any new entity created by virtue of a Restructure (“New Entity”) to be bound by these Terms;
(ii). continue to be bound by these Terms despite a Restructure and will indemnify BCG for any loss or damage it suffers as a result of a breach of these Terms by the New Entity.
19. JURISDICTION:
19a. All contracts made with BCG will be deemed to be made in the state or Territory in which the goods and/or services were supplied by BCG and the parties submit to the jurisdiction of the appropriate Courts in or nearest the capital city of that State or Territory. In the event of any dispute as to the correct jurisdiction (or if the goods and/or services have been supplied to the Customer in more than one State or Territory), the determination (at any time) by BCG of the jurisdiction will be binding on the Customer.
20. CREDIT LIMIT:
20a. BCG can vary or withdraw any credit facility or limit it at any time at its discretion and without any liability to the Customer or any other party.
21. WAIVER:
21a. If BCG elects not to exercise any of its rights arising as a result of a breach of these Terms it will not constitute a waiver of any rights relating to any subsequent or other breach.
22. SECURITY FOR PAYMENT:
The Customer agrees that:
22a (i). it must on written request charge in favour of BCG: a) by way of fixed charge, all its books of account, goodwill, documents of title and current and later acquired intellectual property rights; and b) by way of a floating charge the whole of the Customer’s other undertaking, property and assets with Full Payment; and
(ii). it hereby charges in favour of BCG by way of a fixed charge all of its legal and equitable interest (both present and future) of whatsoever nature held in any current and later acquired real property, with Full Payment;
22b. It grants a lien to BCG over any of its property in the possession or control of BCG until Full Payment;
22c. It will execute any documents and to do all things requested by BCG to register a mortgage (or such other security BCG requires) over any current or later acquired real property the Customer has an interest in;
22d. It consents unconditionally to BCG lodging a caveat noting BCG’s interest in any current or later acquired real property the Customer has an interest in; and
22e. BCG may (without limitation) exercise its rights under clause 17 to effect compliance with this clause 22 where the Customer fails to comply with any provision of these Terms.
23. FORCE MAJEURE:
BCG will not be in default or breach of any dealing with the Customer as a result of Force Majeure (i.e: anything beyond BCG’s reasonable control).
24. INTELLECTUAL PROPERTY:
24a. If BCG utilises any design, patent or intellectual property or follows any instruction provided by or on behalf of the Customer, the Customer indemnifies BCG against any claim, proceeding, damages or liability for any loss, cost or expenses arising as a result whether for any alleged infringement of any intellectual property or otherwise.
24b. The Customer must not advertise, use or represent any intellectual property of BCG or of any goods themselves in any way without the prior written consent of BCG.
24c. If the Customer breaches or permits any breach of this clause, it acknowledges BCG may suffer claims by third parties as a result (e.g: by models who’s images are reproduced without authority and/or by parties who are entitled to exploit any intellectual property) and clause 31 will apply;.
25. NO SET-OFF:
25a. No set-off or counterclaim will be made or applied by the Customer until payment in full of all bona fide invoices raised by BCG (whether current or overdue) and this clause may be pleaded as a bar to any action taken prior to such payment in full.
26. TRUSTS:
26a. The Customer agrees that these Terms binds it not only in its own capacity but also as the Trustee of every trust of which it is a trustee.
27. NO MERGER:
27a. Termination of these Terms and/or dealings between the Customer and BCG (“Cessation”) will not end those provisions of these Terms that are capable of surviving Cessation.
28. STOCK DISCRETION:
BCG has a continuing discretion to allocate available stock and gives no warranty as to certainty of supply unless expressly agreed in writing in advance.
29. PARTIAL DELIVERY / FORWARD ORDERS:
29a If the Customer places forward orders or request partial or instalment delivery, the Customer agrees:
(i). to pay for so much of any order as is from time to time delivered by BCG; and
(ii). that no delay or failure to fulfil any part of any order will entitle the Customer to cancel or vary any order or delay or reduce any payment.
30. ACCEPTABLE VARIATION:
30a. The Customer will accept variation in quantities at plus or minus 10% and will pay pro-rata for the actual quantity delivered.
31. INDEMNITY:
31a. The Customer indemnifies BCG against any claim or loss arising from or related in any way to any contract or dealing between BCG and the Customer or anything arising therefrom or arising as a result of or subsequent to any breach of these Terms.
32. INSOLVENCY:
32a. If the Customer commits or is involved in any act of insolvency, it will be deemed in default under these Terms.
32b. An act of insolvency includes bankruptcy, liquidation, receivership, administration or the like and failure to pay in accordance with these Terms.
33. EXPORTS:
33a. Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) are expressly excluded unless otherwise stipulated in these Terms or on BCG’s invoice for the goods.
34. PANEL, TIMBER AND COMPOSITES:
34a. Panel: The Customer acknowledges that laminated, veneered, moulded, extruded, fabricated, plywood, and decorated products are not or may not be manufactured or processed by BCG and accepts all risks associated with any delamination or failure.
34b. Timber & Composites: The Customer acknowledges that BCG timber and composite goods have (inter alia) the following characteristics:
(i). it is in part or in whole a natural product and variation in colour, texture and inherent quality occur;
(ii). it is susceptible to changes in quality, structural strength, appearance, finish and/or colour due to mistreatment, poor storage, poor handling, inadequate, uninformed and/or inappropriate preparation, treatments, installation or use and by exposure to the elements, chemicals, sunlight and foreign materials etc;
(iii). It is susceptible to bending, warping, splitting, cracking, crushing, swelling, delamination, deterioration, fungal growth, insect attack etc., if not stored or used properly;
(iv). It is susceptible to damage and size variations which may be caused (inter alia) by relative humidity and/or moisture content, variations in temperature and as well as those things set out in clause 34b(ii) above;
(v). It may contain or be treated with poisons and/or potentially toxic chemicals (Formaldehyde, preservatives, adhesives etc) and should be stored and worked upon in well ventilated areas with proper exhaust systems and personal protective equipment as required by relevant Occupation, Health and Safety directives and not burned; and
(vi). Product related dust and saw dust are inherently dangerous if inhaled and may be associated serious illness and death.
35. PACKAGING:
35a. The Customer will return all pallets and any reusable packaging provided with the goods and indemnifies BCG for the full replacement cost thereof, if not returned to BCG promptly and in good order.
36. EXCLUSION OF WARRANTY:
36a. BCG is not bound by any warranty (and the customer agrees not to make any claim against BCG in relation to any warranty) in respect of goods or services unless all goods and services have been paid for in full without set-off or deduction of any kind.