In these Terms, unless the contrary intention appears:
The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these Terms if the Customer places an Order for or accepts a Delivery of the Goods.
The Terms are subject to change at any time. If the Terms are amended they will be effective immediately and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Blackchrome.
These Terms are meant to be read in conjunction with the Website Terms and Conditions posted on the Website. If there are any inconsistencies between the two (2) documents then the Terms shall prevail.
When placing an order, as required, electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 10 of the Electronic Transactions Act 2000 (Cth) or any other applicable provisions of that Act or any Regulations referred to in that Act.
The Customer acknowledges and agrees that the supply of Goods for accepted Orders may be subject to:
At Blackchrome’s sole discretion the Price shall be either:
Blackchrome reserves the right to change the Price if a variation to Blackchrome’s quotation is requested. Any variation from the plan of scheduled designs, quantities or specifications (including, but not limited to, for overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges, availability of stock or as a result of increases to Blackchrome in the cost of materials and labour) will be charged for on the basis of Blackchrome’s quotation and will be shown as variations on the invoice. The Customer shall be required to respond to any variation submitted by Blackchrome within ten (10) working days. Failure to do so will entitle Blackchrome to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
At Blackchrome’s sole discretion a non-refundable deposit may be required.
The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to The Customer by Blackchrome nor to withhold payment of any invoice because part of that invoice is in dispute.
Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Blackchrome an amount equal to any GST Blackchrome must pay for any supply by Blackchrome under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pay the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
4.1 The Deposit must be paid contemporaneously with placement of an Order unless otherwise agreed in writing.
4.2 The Customer acknowledges and agrees that:
Time for payment for the Goods being of the essence, the Price and any other costs including but not limited to Freight, Taxes and duties, will be payable by the Customer on the date/s determined by Blackchrome, which may be:
Payment may be made by cash, cheque, bank cheque, electronic/online banking, eftpos, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and Blackchrome.
The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with Blackchrome and it has been approved with a credit limit established for the Account.
In the event that the supply of Goods request exceeds the Customer’s credit limit and/or the Account exceeds the payment terms, Blackchrome reserves the right to refuse Delivery of goods.
If the Customer fails to comply with the Terms of this clause 5, then the default provisions set out at clause 8 shall apply.
The Customer is liable for any and all Freight cost and which costs will be displayed on the tax invoice.
Blackchrome will use reasonable endeavours to meet the requirements of the Customer’s requested Delivery date.
The Customer acknowledges and agrees that Blackchrome will not be liable for any losses the Customer suffers as a result of a delay or failure to deliver the Goods.
Orders will only be shipped once payment and Delivery details have been approved by Blackchrome at their sole discretion.
Estimated Delivery dates are approximate and for guidance only.
Blackchrome shall use reasonable endeavours to get an Order dispatched to the Customer as soon as practicable.
Time for Delivery of the Goods is not of the essence.
Blackchrome reserves the right to cancel or discontinue the production of any of the Goods in its range. If this occurs, any payment received for the cancelled and or discontinued Goods will be refunded in full.
If the Customer defaults on payment for Goods, then Default Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment.
If the Customer owes Blackchrome any money the Customer shall indemnify Blackchrome from and against all costs and disbursements incurred by Blackchrome in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor/client basis, Default Interest, and bank dishonour fees).
Further to any other rights or remedies Blackchrome may have under these Terms, if a Customer has made payment to Blackchrome, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Blackchrome under this clause 8 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under these Terms.
Without prejudice to Blackchrome’s other remedies at law, Blackchrome shall be entitled to cancel or suspend all or any part of any Order of the Customer which remains unfulfilled and all amounts owing to Blackchrome shall, whether or not due for payment, become immediately payable if:
Blackchrome will not be liable to the Customer for any loss or damage the Customer suffers because Blackchrome has exercised its rights under this clause 8.
Without prejudice to any other remedies Blackchrome may have:
The Customer must inspect the Goods on Delivery and must within seven (7) days of Delivery notify Blackchrome in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify Blackchrome of any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Blackchrome to inspect the Goods.
Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these Terms (Non-Excluded Guarantees).
Blackchrome acknowledges that nothing in these Terms purports to modify or exclude the Non-Excluded Guarantees.
Except as expressly set out in these Terms or in respect of the Non-Excluded Guarantees, Blackchrome makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Blackchrome’s liability in respect of these warranties is limited to the fullest extent permitted by law.
If the Customer is a consumer within the meaning of the CCA, Blackchrome’s liability is limited to the extent permitted by section 64A of Schedule 2 of the CCA.
If Blackchrome is required to replace the Goods under this clause or the CCA, but is unable to do so, Blackchrome may refund any money the Customer has paid for the Goods.
If the Customer is not a consumer within the meaning of the CCA, Blackchrome’s liability for any defect or damage in the Goods is:
Subject to this clause 10, returns will only be accepted provided that:
Notwithstanding clauses 10.1 to 10.8 but subject to the CCA, Blackchrome shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
Blackchrome may in its absolute discretion accept non-defective Goods for return in which case Blackchrome may require the Customer to pay handling fees of up to fifteen percent (15%) of the value of the returned Goods plus any Freight costs.
Notwithstanding anything contained in this clause 10, if Blackchrome is required by a law to accept a return then Blackchrome will only accept a return on the conditions imposed by that law.
If the Customer is a wholesaler, the Customer must, at all times:
Wholesaler Customer Returns
The Customer agrees to nominate one (1) authorised representative to liaise directly with Blackchrome, and that once introduced as such to Blackchrome, that person shall have the full authority to deal with Blackchrome including but not limited to submit Orders, and/or to request any variation thereto on the Customer’s behalf.
The Customer acknowledges and agrees that they will be solely liable to Blackchrome for all additional costs incurred by Blackchrome (including Blackchrome’s profit margin) in providing any Goods or variation/s requested thereto by the Customer’s duly authorised representative.
The Customer acknowledges and agrees that ownership of the Goods shall not pass until:
Receipt by Blackchrome 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.
It is further acknowledged and agreed that:
The Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Blackchrome and must sell, dispose of or return the resulting product to Blackchrome as it so directs.
The Customer irrevocably authorises Blackchrome to enter any premises where Blackchrome believes the Goods are kept and recover possession of the Goods.
Blackchrome may recover possession of any Goods in transit whether or not Delivery has occurred.
The Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Blackchrome.
Blackchrome may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
In this clause, financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
Upon assenting to these terms and conditions pursuant to these Terms the Customer acknowledges and agrees that these Terms constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by Blackchrome to the Customer.
The Customer undertakes to:
The Customer acknowledges and agrees that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms.
The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by Blackchrome, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
The Customer must unconditionally ratify any actions taken by Blackchrome pursuant to this clause 14.
Subject to any express provisions to the contrary (including those contained in this clause 14) nothing in these Terms is intended to have the effect of contracting out of any of the provisions the PPSA.
In consideration of Blackchrome agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
The Customer indemnifies Blackchrome from and against all Blackchrome’s costs and disbursements including legal costs on a solicitor/client basis incurred in exercising Blackchrome’s rights under this clause.
The Customer irrevocably appoints Blackchrome and each director of Blackchrome as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Customer’s behalf.
All marks and images and product copy of the Goods are subject to copyright and are the property of Blackchrome.
The Customer is prohibited from trading or registering a business name, trade mark, or creating a website or social media site using or incorporating in any way shape or form the Trade Mark.
The Customer is prohibited from using the Trade Mark for Google AdWords (or similar platform) as a paid advertisement.
Blackchrome reserves the right in its sole discretion to vary from time to time any Trade Mark, or permitted use of any or all of the Trade Mark, or to withdraw at any time any consent given to the Customer under this Agreement.
If the Customer is a wholesaler, then, that Customer may use any of the images on the Website for the sole purpose of promoting the Goods.
Goods must not be modified in any way for resale or distribution without the express written consent of Blackchrome. For proper care of the Goods, please see the care instructions attached to the Goods.
Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, Blackchrome is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms by Blackchrome is sufficient evidence of Blackchrome’s rights to receive the insurance proceeds without the need for any person dealing with Blackchrome to make further enquiries.
If the Customer requests Blackchrome to leave Goods outside Blackchrome’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
In the event that the Customer provides Blackchrome with any information and/or measurements relating to the supply of the Goods, Blackchrome shall be entitled to rely on the accuracy of any such information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, Blackchrome accepts no responsibility for any loss, damages, or costs however resulting from the supply of inaccurate measurements or other information.
The Customer acknowledges that variations of colour and shade are inherent in fabric dye lots. While every effort will be taken by Blackchrome to match colour and shade of the Goods, Blackchrome shall not be liable for any loss, damage or costs, howsoever arising resulting from any variation in colour and shading between batches of the Goods or sale samples and the final Goods supplied.
An obligation under these Terms shall be suspended to the extent and for so long as the performance of that obligation is prevented or delayed by an event or circumstance which:
(‘Force Majeure’).
The party whose obligation is suspended under clause 19.1 must:
Assignment
The rights and obligations of the Customer are personal and cannot be assigned, charged or otherwise dealt with, without Blackchrome prior written consent and which consent may be given at its sole discretion.
These Terms record the entire agreement between the parties as to its subject matter. Any prior negotiations, agreements, arrangements, representations and understandings related to the subject matter of this Agreement are superseded by these Terms.
Governing law and Jurisdiction
The rights and obligations of the parties will not merge on completion of any transaction under the Terms or upon the execution of any other agreement or other document in connection with the subject matter of the Terms.
All rights under the Terms are in addition to and do not abrogate, limit or reduce any other rights that party may have.
Unless otherwise specified, nothing in the Terms creates a relationship of principal and agent, employer and employee, partnership or joint venture between the parties.
Any provision of the Terms that are invalid, unenforceable or illegal must be read down to the extent necessary to avoid that effect. If that is not possible, that provision must be excluded from the Terms but only to the extent necessary to avoid that effect. All other provisions of the Terms continue to be valid and enforceable.
A right or obligation under the Terms cannot be waived except by a document executed by the party waiving that right or obligation and specifying the waiver.
