Terms & Conditions of Sale

1. Interpretation
In these terms

(a) Contract means the contract between the Customer and The Branders 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 The Branders.
(c) Customer IP means all logos, drawings, pictures, materials, designs or information supplied or made available by the Customer to The Branders.
(d) Deposit means 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 The Branders International in a form specified by The Branders International.
(i) Outstanding Amount means the price of the Goods less the Deposit.
(j) Services means design and development services or other services related to the Goods.
(k) Terms means The Branders International’s standard terms and conditions of sale set out in this document, unless the context otherwise requires.
(l) The Branders International means The Branders International Pty Ltd of Room 903, Fourseas Building, 208 - 212 Nathan Road, Hong Kong and any assigns.
(m) The Branders International's Premises means Room 903, Fourseas Building, 208 - 212 Nathan Road, Hong Kong or any other address The Branders International notifies to the Customer.
(n) The Branders International IP means the goods, tools, moulds, casts and any items or materials resulting from the provision of the services as well as any other logos, drawings, pictures, materials, designs, documents or information supplied or made available by The Branders International 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 The Branders International IP.

2. General

(a) The Branders International agrees to sell and the Customer agrees to purchase the Goods in accordance with these Terms.
(b) Where there is a Set Up Charge, that fee is a fee for use of the tools, moulds, casts and other similar The Branders International IP for the sole purpose of enabling the client to place purchase orders with The Branders International.  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 The Branders International.  The Branders International may withdraw or alter it without notice.
(b) Unless The Branders International 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 The Branders International to the Customer is merely an opportunity for the Customer to confirm its order and is not an offer by The Branders International. 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.

4. Descriptions, Specifications and Services

(a) All specifications, drawings, and particulars of weight and dimensions are approximate only.  The Customer cannot claim against The Branders International 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 The Branders International, those Services are provided by The Branders International on the basis of these Terms.

5. Delivery

(a) Any delivery time The Branders International gives the Customer is only an estimate.  The Branders International 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 even if The Branders International delivers late.
(c) Delivery occurs when The Branders International notifies the Customer that the Goods are available for collection at The Branders International’s Premises.

6. Quantity Discrepancy

(a) If the quantity of Goods delivered is less than the amount the Customer ordered, the Customer must notify The Branders International in writing of the shortfall within 7 days of delivery, otherwise The Branders International 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 The Branders International in writing and The Branders International is entitled to charge the Customer for the excess or recover the excess from the Customer at the cost of The Branders International.

7. Storage

If the Customer does not collect the Goods, or provide adequate delivery instructions, within 14 days of request by The Branders International, The Branders International 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 The Branders International otherwise agrees in writing, the price of the Goods or Services will be the price specified in The Branders International’s quotation.
(b) Any price concession or discount The Branders International provides to the Customer is conditional on the Customer’s full compliance with these Terms.
(c) If The Branders International suspends work on any order due to the Customer's instructions or lack of instructions, The Branders International 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, The Branders International may submit a revised quotation.

9. Payment

(a) The Customer must pay the Deposit immediately upon submission of the Order Confirmation.
(b) Unless The Branders International otherwise agrees in writing, the Customer must pay:
(i) the Outstanding Amount in cash on delivery; and
(ii) the Set Up Charge within 7 days of invoice.
(c) If The Branders International has given payment terms to the Customer then The Branders International 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 The Branders International 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 The Branders International:
(A) interest at the rate of 18% per annum;
(B) a late fee of $20 reflecting reasonable collection costs incurred by The Branders International; and
(C) all expenses including, without limitation, legal expenses (on a full indemnity basis), and all debt collection agency costs incurred by The Branders International in enforcing The Branders International’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 The Branders International becomes immediately due and payable; and
(iii) The Branders may, at its election, cancel the Contract.
(b) If The Branders ends the Contract in accordance with this clause 10, The Branders may, without prejudice to any other right or remedy available to The Branders 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 The Branders sufficient to cover both their interests in the Goods until all monies owing to The Branders 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 The Branders.
(c) The Branders is not liable for any loss or damage or deterioration of the Goods after dispatch from The Branders's Premises even if transport is arranged by The Branders.

12. Title

(a) Until the Customer has paid all amounts owing by the Customer to The Branders (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 The Branders are paid, the Customer:
(i) must keep the Goods separate from the goods of the Customer and third parties and identified as The Branders’s Goods; and
(ii) may sell the Goods in the ordinary course of its business, as agent and fiduciary for The Branders and must account to The Branders for the proceeds of such sale which are to be kept in a separate bank account.
(c) The Customer irrevocably authorises The Branders 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 The Branders’s absolute election.

13. Intellectual Property Rights

(a) The Customer warrants that in complying with any direction or instruction given to The Branders by the Customer, The Branders 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 The Branders to use the Customer IP for the purpose of The Branders providing the Services and the Goods to or for the benefit of the Customer.
(c) The Customer grants The Branders 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 The Branders, and holds The Branders 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) The Branders’s design, manufacture or supply of the Goods or supply of the Services in compliance with a direction or instruction given to The Branders by the Customer.
(d) The Customer acknowledges and agrees that all Intellectual Property Rights in and relating to the The Branders IP are and remain the property or under the control of The Branders and the Customer does obtain any right, title or interest in any Intellectual Property Rights in or relating to the The Branders IP.
(e) The The Branders IP (including copies) that The Branders submits, provides or makes available to the Customer remain the property of The Branders. The Customer must treat such The Branders IP as strictly confidential and as a trade secret of The Branders.  The Customer must use the The Branders IP and any information contained in The Branders IP only for the purpose of placing purchase orders with The Branders or for the use and enjoyment of the Goods acquired from The Branders.  The Customer must not use the information in any other way to the advantage of the Customer or the detriment of The Branders.  The Branders 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 The Branders IP; nor
(ii) use The Branders IP to obtain similar services or goods from a third party,
without the prior written consent of The Branders, which consent may be withheld in The Branders’s absolute discretion.
(g) At any time, The Branders may require delivery up of any tools, moulds, casts or similar items of The Branders IP as may be in the Customer’s possession or control.  The Customer must immediately send or arrange the sending of such items to The Branders.
(h) The Customer warrants to The Branders 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) The Branders 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 The Branders's reasonable control.  If such circumstances occur, The Branders 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 The Branders'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) The Branders is not obliged to remedy such circumstances.  The Branders 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 The Branders first agrees in writing.
(b) The Branders will not agree to cancellation or an order unless the Customer compensates The Branders for all loss and damage arising from the cancellation.
(c) The Branders 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) The Branders 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 The Branders for any costs and expenses incurred prior to cancellation and must pay any reasonable cancellation charges fixed by The Branders.

15.2. Cancellation of Contract
The Branders may cancel the Contract in either of the following events:

(a) if The Branders 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.

15.3 No claim
The Customer has no claim against The Branders for any damage, loss, cost or expense arising from cancellation under this clause.

16. Limitation of Liability and Indemnity

(a) The only conditions and warranties that are binding on The Branders 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 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 The Branders 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 The Branders'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, The Branders, 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 The Branders, its employees or agents.
(d) The Customer acknowledges that the Customer does not rely on the skill or judgment of The Branders 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 The Branders from every liability, loss, damage, cost or expense directly or indirectly incurred or suffered by The Branders caused by or contributed to by any of the following:
(i) The Branders 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 The Branders may become liable in any way.

(iii) the Customer making any statement about the Goods (for example, about their performance or characteristics) without The Branders'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. Notices

(a) A notice, consent or other communication under these Terms of sale is only effective if it is in writing, signed and either left at the addressee's address or sent to the addressee by mail or fax.  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.
(b) A person's address and fax number are those set out in the Order Confirmation.  The Branders may send a notice to the Customer's last known address.

18. 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 of the State of Victoria, Australia applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules).

(b) Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria and any court that may hear appeals from any of those courts, for any proceedings in connection with these Terms, and waives any right it might have to claim that those courts are an inconvenient forum.

19. Waiver

(a) A right of The Branders may only be waived in writing, signed by The Branders.
(b) No other conduct of The Branders (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 The Branders 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 The Branders does not prevent any further exercise of that right or of any other right.

20. The Branders' Rights

Any right that The Branders may have under these terms of sale is in addition to, and does not replace or limit, any other right that The Branders may have.

21. 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.

22. Variation

The Branders is entitled to vary these Terms at any time by giving the Customer 7 days’ written notice.