To the fullest extent legally possible, all contracts and dealings between Briner Ads Pty Ltd (ACN 066 878 911) (and each subsidiary, affiliate, associated company and related entities and any successors and assigns) ("Briner") and any applicant ("the Customer") relating to any goods, products or services ("goods") are subject to the Terms and Conditions of Trade set out below ("these Terms") unless otherwise expressly agreed in writing.
1 Definitions: For the purposes of these Terms and Conditions:-
"additional work" incudes all work undertaken by Briner as a consequence of the Customer’s variation, alteration or modification of its instructions in relation to the Order;
"Briner Online Order Entry System" means the online ordering facility made available by Briner to certain approved Customers;
"Briner’s fee" refers in each case to the standard or usual fee charged by Briner from time to time in respect of the Order;
"Customer" means the party to whom Briner has supplied its goods, products or services, including but not limited to their subsidiaries, affiliates, associated companies, related company successors or assigns;
"Delivery or delivered" means the time when the goods are transported from the premises of Briner by whatever means or when Briner advised the Customer the goods were available for collection;
"freight costs and charge" includes all costs and expenses incurred by Briner in removing the goods from its premises, whether by way of actual or attempted delivery to the Customer or otherwise;
"GST" means any tax or imposition on the supply of goods and services covered by A New Tax System (Goods and Services Tax) Act 1999 Commonwealth (the GST Act) as amended from time to time;
"Order" means the work required to be done in order to fulfil the Customer’s instructions; and
"preliminary work" means all and any work performed by Briner at the Customer’s express or implied request, the performance of which work was necessary to enable the Order to be commenced and which work was not within the reasonable contemplation of Briner at the time when Briner supplied the Estimate.
2 Briner to Supply Quote: Briner may if, requested by the Customer, give the Customer a quote ("Quote") specifying:-
(a) the work required to be done in order to fulfil the Customer’s instructions; and
(b) an estimate of Briner’s fee for the performance of such work ("Estimate").
3 Acceptance by Customer: Where Briner has given the Customer a Quote:-
(a) Briner need not commence work until the Quote has been accepted by the Customer;
(b) The Customer may accept the Quote by placing an Order in the manner specified in clause 6.
(c) Acceptance by the Customer of the Quote will constitute acceptance by the Customer of these Terms and Conditions.
4 Quote Evidence of Instructions: If a written Quote is accepted by the Customer, the work the subject of the Quote shall be carried out and the Customer shall pay for the work in accordance with these Terms.
5 Briner may Revise Estimate: Briner may amend the Estimate before the Order has been completed to take into account any rise or fall in the cost of performing the Order and Briner shall notify the Customer of such amendment as soon as practicable thereafter. Upon Briner giving the Customer notification of such amendment, such amended estimate shall be and be deemed to be the Estimate for the purposes of these Terms.
6 Orders: Orders may be placed directly with Briner or (for those granted access by Briner), via the Briner Online Order Entry System. The Customer agrees that:-
(a) each Order it places shall be deemed to include a representation that it is solvent and able to pay all of its debts as and when they fall due;
(b) when any Order is placed, the Customer shall inform Briner of any facts which might reasonably affect any decision to accept the order and/or grant credit. Any failure to do so shall be deemed to create an inequality of bargaining position, the taking of an unfair advantage of Briner and to be unconscionable, misleading and deceptive;
(c) from the time of making an Order, the Customer is obliged to accept and pay for the goods in accordance with these Terms and a cancellation of the Order or change in mind on the part of the Customer as to the content of the Order shall not discharge this obligation to accept the goods and make payment.
7 Invoice: Subject to clause 11, when the Order has been completed, Briner will issue an invoice to the Customer for the amount of the Estimate or, if no Estimate was made, for an amount representing Briner’s fee for the work done in fulfilling the Order, and for any of the other charges specified in clause 8.
8 Additional Charges: In addition to the amount of the Estimate, or where no Estimate was given, in addition to the amount representing Briner’s fee for the work done, Briner may charge to the Customer:
(a) fees for any preliminary work performed at the Customer’s request;
(b) fees for additional work required to be done as a result of the Customer changing his, her or its instructions;
(c) freight costs and charges;
(d) fees to complete non-standard installation or delivery of goods; and
(e) other charges, fees or disbursements referred to in these Terms and Conditions and not specified in this clause.
9 Payments: Unless otherwise specified in the Credit Application, all payments are without deduction unless otherwise agreed and all payments are due within 30 days from the invoice date.
10 Interest: Will be charged on overdue accounts at the rate provided for by the Penalty Interest Rates Act 1983 (Vic) plus 2%.
11 Advance and progress payments:
(a) Briner may issue an invoice for the amount of the Estimate before commencing the Order where Briner has not previously carried out work for the Customer or where Briner considers it otherwise prudent to do so;
(b) Briner may, in the event that Briner is of the view that completing the Order will take more than a month, at any time before the Order is completed, issue one or more invoices for a proportion of the amount of the Estimate (the proportion to be at Briner’s discretion) and require that proportion of the Estimate to be paid in advance of any further work being done;
(c) If the Order is suspended for more than 30 days at the request of the Customer or as a result of something for which the Customer is responsible, Briner may issue an invoice for a particular sum (to be specified by Briner) for work already done and for other costs incurred by Briner (such as storage costs).
12 Property: Even if Briner grants any credit facility and/or time to pay:
(a) title in the goods (other than real estate sign boards) shall not pass from Briner to the Customer until payment in full of all monies owed and Briner reserves the right to take possession and dispose of goods as it sees fit at any time until full payment is received and the Customer grants permission to Briner to enter any property where any goods are in order to do so and with such force as is necessary;
(b) where the goods supplied are real estate sign boards ("boards"), the Customer acknowledges that at all times the boards remain the exclusive property of Briner and that title to such boards shall never pass to the Customer and it further acknowledges that the boards are merely loaned by Briner to the Customer for the term and for the purpose(s) specified in the Order, Briner at all times retaining the right to enter any property and to re-take possession and dispose of such boards as it sees fit at any time until full payment is received;
(c) the Customer agrees that a certificate purporting to be signed by an officer of Briner identifying goods as unpaid for shall be conclusive evidence that the goods have not been paid for and of Briner’s title thereto; and
(d) upon sale or disposition of any goods prior to full payment, the Customer shall deposit all proceeds in a separate bank account, agrees to not mix such proceeds with any other monies and the Customer shall account for same to Briner as fiduciary and bailee.
13 Limitation of liability: The Customer agrees:
(a) to limit any claim it makes to the cost of replacement of the subject goods;
(b) Briner shall not be liable for any claim for loss or expense arising after 7 days from delivery (or at all once goods have been installed, displayed or otherwise used) after which there shall be deemed to be unqualified acceptance;
(c) Briner will not be liable for any contingent, consequential, direct, indirect, special or punitive damage, whether due to negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly; and
(d) no other term, condition, agreement, warranty, representation or understanding whether express or implied, in any way extending to, otherwise relating to or binding upon Briner, other than these Terms, is made or given by or on behalf of Briner.
14 Exclusions: The Customer agrees that the Customer will rely on its own knowledge and expertise in selecting any goods for any purpose and any advice or assistance given for or on behalf of Briner shall be accepted at the Customer’s risk and shall not be deemed given as expert or adviser not to have been relied upon.
15 Purchase Price: All sales are made by Briner at its ruling price at the time of delivery.
16 Delivery: The Customer agrees that:-
(a) Briner accepts no responsibility or duty to deliver but may elect to arrange delivery at its discretion and without liability and at the Customer’s cost and risk in all things;
(b) Briner will not be liable for delay, failure or inability to deliver;
(c) Products shall be deemed delivered as soon as they are ready for delivery; and
(d) A charge will be made for frustrated delivery to cover Briner’s costs of attempts and related expenses.
17 Other Terms and Conditions: No terms and conditions sought to be imposed by the Customer upon Briner shall apply.
18 Recovery Costs: The Customer must pay to Briner any costs, expenses or losses incurred by Briner as a result of the Customer’s failure to pay to Briner all sums outstanding from the Customer to Briner (including, without limiting the generality of the obligations set out in this agreement, any debt collection and legal costs).
19 Customer Restructure: The Customer shall notify Briner in writing of any change in its structure, control or management including any change in majority shareholding, partnership or trusteeship within 14 days of the date of any such change.
20 Jurisdiction: The Customer agrees that all contracts made with Briner shall be deemed to be made in the State of Victoria and subject to the exclusive jurisdiction of Victorian Courts.
21 Credit Limit: The grant of any credit facility and/or the nomination of any credit limit is an indication only of Briner’s intention at that time and Briner may vary or withdraw any credit facility at any time at its discretion and without any liability to the Customer or any other person or entity. The Customer agrees to pay on demand all sums owing in connection with this credit facility in the event the credit facility is withdrawn.
22 Security For Payment: The Customer agrees upon request to charge with payment of all monies owed and/or owing to Briner from time to time in favour of Briner:-
(a) by way of a fixed charge all its books of account, financial records, goodwill, documents of title and current and later acquired real property and intellectual property; and
(b) by way of a floating charge, the whole of its other undertakings, property and assets.
23 Copyright: Copyright in all artistic and literary works authored by Briner shall remain the property of Briner unless there is specific agreement to the contrary at the time of Briner's acceptance of the Customer’s Order. The Customer:-
(a) has warranted to Briner, and Briner has accepted the Customer's warranty that the Customer has copyright in or a licence to authorise Briner to reproduce all artistic and literary works supplied by the Customer to Briner for the purpose of the relevant Order and the Customer hereby expressly authorises Briner to reproduce all and any of such works for the purposes of completing the services required;
(b) indemnifies and agrees to keep indemnified Briner against all liability, losses or expenses incurred by Briner in any way directly or indirectly connected with any breach of copyright on materials supplied by the Customer; and
(c) is hereby granted a non-exclusive license to use the copyright works created by Briner for the purposes of the relevant Order, however such licence is conditional upon Briner having received all monies due to Briner under these Terms and Conditions.
24 Force Majeure: Briner will not be or deemed in default or breach of any contract as a result of the effects of force majeure. Force majeure will include (but is not limited to) any fire, flood, strike, civil disturbance, theft, crime, the inability of Briner’s normal suppliers to supply necessary materials or any other matter beyond the control of Briner .
25 Disputes: The Customer agrees to pay into a trust account (earning market interest) in the joint names of Briner and the Customer any amount claimed by Briner as a condition precedent to disputing any such claim on the basis that upon resolution of the dispute the trust funds and any interest shall be disbursed according to the resolution. This clause shall operate as a bar to any defence and/or counterclaim by the Customer until complied with.
26 Defaults: Upon any default or breach hereof by the Customer, Briner may (inter alia) retain all monies paid and/or cease further deliveries and/or at Briner’s discretion take immediate possession of any goods not paid for, without prejudice to any other of its rights and without being liable in any way to any party.
27 Severability: Any part hereof being a whole or part of a clause shall be capable of severance without effecting any other part of these Terms.
28 GST: To the extent that a supply of services provided by Briner, or any other supply, made under or pursuant to this agreement, is a "taxable supply" as defined in the GST Act, Briner will increase its price in respect of that supply it makes by the amount of GST applicable to the supply.
29 Privacy Act: The Customer agrees that Briner may make any inquiries it deems necessary to investigate the Customer’s creditworthiness including undertaking inquiries with financial institutions, credit reporting agencies, any personal credit and/or consumer credit information providers ("the Sources"). The Customer authorises the Sources to disclose any information concerning its creditworthiness in their possession to Briner. The Customer agrees that Briner may disclose any information in its possession concerning the Customer’s creditworthiness to the Sources.
30 Statement by Briner: A statement by any officer of Briner is conclusive evidence of any fact, matter or thing.