HOT FROG Terms & Conditions
HOTFROG PTY. LTD. (ABN 62 912 494 776)
STANDARD TERMS AND CONDITIONS OF SUPPLY
The Customer must carefully read all of these terms and conditions
and will be bound by them.
1. Definitions
1.1 “Contract” means the contract constituted by the Quotation and these terms and conditions which is formed on the Customer’s acceptance of the Quotation.
“Customer” means the party to whom HFP has supplied its Goods, 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 HFP by whatever means or when HFP advised the Customer the Goods were available for collection. “Goods” means the goods (or any part thereof) specified in the Quotation.
“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 (“The GST Act”) as amended from time to time.
“Notice” means a letter, hard copy or soft copy with an authorised signature. “Price” means the purchase price for the Goods and other charges set out in the Quotation.
“Quotation” means the quotation or acknowledgment of an order issued by HFP or other written agreement to which these terms and conditions are annexed.
“HFP” means Hotfrog Promotional Pty. Ltd. (ABN 62 912 494 776).
1.2 Headings are for convenience and shall not affect interpretation .
1.3 If there is any inconsistency or variance between the Quotation and these terms and conditions, the Quotation shall prevail.
2. Contract
2.1 The supply of Goods to the Customer pursuant to the Quotation will be governed by these terms and conditions.
2.2 The Quotation and these terms and conditions constitute the entire agreement of the parties regarding its subject matter and any previous contracts, understandings, negotiations, quotations, purchase or supply orders, inquiries or representations on that subject matter cease to have any effect.
2.3 The Quotation, including these terms and conditions, shall be deemed to be accepted by the Customer if the Customer gives notice or a purchase order (or equivalent) to HFP for the Goods, or seven (7) days after HFP dispatches an acknowledgment of order to the Customer notwithstanding any inconsistent, contradictory or other terms and conditions stipulated by the Customer in its notice or purchase order.
2.4 HFP shall not be responsible in any way for any act or omission in pursuance of any unwritten request or instruction by the Customer.
3. Payment and Lien
3.1 Unless otherwise specified in the credit application, all payments are without deduction unless otherwise agreed and all payments are due within thirty (30) days from invoice date.
3.2 In addition to any right of lien to which HFP may be entitled by law, HFP shall, in respect of all unpaid debts due from the Customer under this or any other contract, have a general lien on all Goods and property of the Customer in HFP’s possession although such Goods or property may have been paid for by the Customer.
3.3 A surcharge applies on payments made by credit card: Visa, Mastercard 2.5% and American Express 3.5%
4. Interest
The Customer must pay interest on any money not paid on or by the due date. Interest will be calculated daily at the rate that is 2% per annum above HFP’s cost of funding the overdue amount. Unpaid interest will be compounded monthly and interest will be payable on compounded interest.
5. Property
Even if HFP grants any credit facility and/or time to pay:
5.1 property in Goods shall not pass to the Customer until payment in full of all monies owed and HFP 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 HFP to recover possession wherever the Goods may be and the Customer shall assist and indemnify HFP in relation to such recovery;
5.2 the Customer agrees that a certificate purporting to be signed by an officer of HFP identifying Goods as unpaid for shall be conclusive evidence that the Goods have not been paid for and of HFP’s title thereto;
5.3 upon sale or disposition of any Goods prior to full payment, the Customer shall deposit all proceeds in a separate bank account, agrees not to mix such proceeds with any other monies and the Customer shall account for same to HFP as fiduciary bailee; and
5.4 all pallets supplied by HFP for delivery remain the property of HFP and must be returned or exchanged by the Customer. Any pallets not returned to or exchanged with HFP on or by the earliest of the next delivery of Goods to the Customer or thirty (30) days from the receipt of the pallets by the Customer, must be paid for by the Customer at the rate of $25.00 per pallet. Clause 3 applies to the purchase of such pallets as if the pallets were Goods.
6. Limitation of Liability
6.1 The Customer agrees to limit any claim it makes to the cost of replacement of the subject Goods.
6.2 HFP shall not be liable for any loss or expense arising after seven (7) days from delivery (or at all once Goods have been unpacked or otherwise used) after which there shall be deemed to be unqualified acceptance.
6.3 HFP 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.
6.4 No other term, condition, agreement, warranty, representation or understanding whether express or implied, in any way extending to, otherwise relating to or binding upon HFP, other than these terms, is made or given by or on behalf of HFP.
7. Exclusions
7.1 No dealing between HFP and the Customer shall be or be deemed to be a sale by sample.
7.2 The Customer will rely on its own knowledge and expertise in selecting any Goods for any purpose and any advice or assistance given by or on behalf of HFP shall be accepted at the Customer’s risk and shall not be deemed given as expert or adviser to have been relied upon.
8. Returns, Rejections
8.1 HFP may elect to take back Goods in saleable condition or otherwise within fourteen (14) days of delivery on terms agreed and a re-stocking fee of 15% of invoice value shall apply.
8.2 Any Goods which HFP has elected to accept back must be returned by way of a HFP approved carrier.
8.3 HFP is not obliged to provide a refund for Goods purchased.
8.4 Any custom made, custom processed or custom acquired Goods will not be returnable at all.
9. Orders
9.1 The Customer agrees that 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.
9.2 When any order is placed, the Customer shall inform HFP 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 HFP and to be unconscionable, misleading and deceptive.
9.3 From the time of HFP taking an order, the Customer is obliged to accept and pay for the Goods in accordance with these terms and conditions 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.
9.4 Customers cannot cancel orders once they are in production without paying for the costs that have been incurred up until the order requires to be cancelled. Any amendments to orders that are in production will incur additional costs and the customer will be advised of these costs and be expected to pay for these additional costs.
10. Prices
10.1 Unless otherwise stated in the Quotation, Prices are exclusive of freight, GST or other taxes, imposts or duties of any kind and the Customer agrees to pay such amounts in addition to the Price.
10.2 Prices are based on current costs and unless otherwise agreed, are subject to amendment by HFP, before or after acceptance of the Quotation to meet any rise and fall in such costs between the date of Quotation and the date of execution of the order. In the event of price increases in such circumstances, the Customer agrees to pay the increased Prices.
10.3 Any extra costs incurred by HFP as a result of delays or interruptions caused, or additions or variations of any kind requested by the Customer, shall be added to the Price and shall be paid by the Customer.
10.4 HFP shall endeavour to deliver the quantities of Goods ordered by the Customer. However, the Customer acknowledges and agrees that quantities of Goods supplied by HFP may be up to 10% greater or less than the quantity ordered by the Customer. The purchase price payable in respect of the quantity of Goods ordered by the Customer shall be pro rata adjusted to reflect the quantity actually delivered.
10.5 Unless otherwise stated, Prices do not include the costs of storage, handling, reporting, print management services, design studio services, artwork amendments, systems development services, project management services, dedicated on site personnel services or facility management services.
10.6 Artwork is to be supplied as per the artwork requirements. Artwork that is submitted that does not fall within the requirements will incur costs that will be added to the final invoice. Please refer to the Artwork Requirements for a clear representation of the details.
10.7 Art approvals are generated by the HFP design team as per the quotation supplied. Any additional changes requested by the customer will incur additional costs. If the changes are due to HFP not supplying the art in the correct format initially requested by the customer, there will be no additional cost.
10.8 Pre-production samples will be charged as an additional cost unless already specified within the quote.
11. Delivery and Risk
11.1 HFP accepts no responsibility or duty to deliver but may elect to arrange delivery at its discretion without liability and at the Customer’s cost and risk in all things.
11.2 HFP will not be liable for delay, failure or inability to deliver.
11.3 Goods shall be deemed delivered as soon as they are ready for delivery.
11.4 A charge will be made for frustrated delivery to cover HFP’s costs of attempts etc.
12. Other Terms and Conditions
No terms and conditions sought to be imposed by the Customer upon HFP shall apply.
13. Recovery Costs
The Customer shall pay all costs and expenses incurred by HFP, its legal advisers, mercantile agents and others in respect of anything instituted or being considered against the Customer, whether for debt, possession of any Goods or otherwise.
14. Customer Restructure
The Customer shall notify HFP in writing of any change in its structure or management including any change in directors, shareholders or management or change in partnership or trusteeship within fourteen (14) days of the date of any such change.
15. Jurisdiction
The Customer agrees that all Contracts made with HFP shall be deemed to be made in the State of Victoria.
16. Credit Limit
The grant of any credit facility and/or the nomination of any credit limit is an indication only of HFP’s intention at that time and HFP 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.
17. Security for Payment
The Customer agrees upon request to register a charge for payment of all monies owed and/or owing to HFP from time to time in favour of HFP:
17.1 by way of a fixed charge over its books of account, financial records, goodwill, documents of title and current and later acquired real property and intellectual property; and
17.2 by way of a floating charge, the whole of its other undertakings, property and assets.
18. Forward Orders
The Customer agrees:
18.1 to pay for so much of any order as is from time to time invoiced by HFP;
18.2 that no delay or failure to fulfil part of such order will entitle any cancellation or variation of that order or delay or reduce any payment; and
18.3 to pay any demurrage and/or other costs and expenses incurred by HFP in handling and/or holding any Goods once ready for delivery.
19. Force Majeure
19.1 HFP shall not be liable for any loss or damage of any kind whatsoever caused directly or indirectly, wholly or partially, by force majeure. Force majeure shall mean acts or conditions beyond HFP’s reasonable control, including but not limited to Acts of God, strikes, lockouts, boycotts, labour disturbances, war, riot, civil commotions, flood, governmental or municipal laws, regulations, bylaws, or actions taken thereunder, acts omissions or delays of the Customer, delays or defaults of HFP’s subcontractors or suppliers in supplying materials for all or any part of the Goods, shortages of labour, materials, power, fuel, water, transport or any other requirement.
19.2 If an event of force majeure arises, HFP may, by written notice to the Customer, cancel the Contract either wholly or partially. Such termination shall be without prejudice to the parties’ accrued rights. HFP shall not be liable for any damages or penalty by reason of such cancellation.
20. Attornment
For the purpose of giving effect to the Customer’s obligations pursuant to these terms and conditions (and in particular anything arising from Clause 17), the Customer hereby irrevocably appoints the public officer of HFP its attorney in all things.
21. Disputes
The Customer agrees to pay into a trust account (earning market interest) in the joint names of HFP and the Customer any amount claimed by HFP 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 dispersed according to the resolution. This clause shall operate as a bar to any defence and/or counterclaim by the Customer until complied with.
22. Defaults
Upon any default or breach hereof by the Customer, HFP may (inter alia) retain all monies paid and/or cease further deliveries and/or at HFP’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.
23. Severability
Any part hereof being a whole part of a clause shall be capable of severance without affecting any other part of these terms and conditions.
24. GST
To the extent that a supply of Goods and/or services provided by HFP, or any other supply, made under or pursuant to these terms and conditions, is a “taxable supply” as defined in The GST Act, HFP will increase its price in respect of that supply by the amount of GST applicable to the supply.
25. Customer Supplied Data
25.1 The Customer warrants that all drawings, designs, plans, specifications, proposals, data and other materials submitted by the Customer to HFP:
(a) do not and will not infringe the intellectual property rights including, without limitation, copyright of any person and do not breach an obligation of confidence to any person; and
(b) are not defamatory.
25.2 The Customer indemnifies HFP, its employees and agents against all costs, loss, liability, damages and expenses which may be suffered or incurred in connection with a breach of a warranty in this clause.
26. Termination
26.1 HFP may terminate the Contract:
(a) on thirty (30) days written notice to the Customer if the Customer has breached the Contract and failed to remedy the breach within thirty (30) days of delivery of notice requiring it to do so; or
(b) immediately by written notice to the Customer if the Customer becomes or threatens to become insolvent or subject to any form of insolvency administration. Termination is without prejudice to any rights of the parties accrued to termination.
26.2 Upon termination of this Contract for any reason, the Customer must pay for all Goods ordered by the Customer which are in production or held in stock by HFP, and take delivery of all such Goods.
27. Special Conditions Related to Artwork Requirements
27.1 HFP requires your company logo and art in an Illustrator EPS Vector format. This file type allows all the layers to be incorporated within the file to provide HFP decorators an art file that they can use to reproduce your logo that is quality.
27.2 If you do not have your logo within the specified format, and your designers cannot provide it to you, our designers can recreate it. To re-produce your logo there will be an extra charge of: $60 per hour. If there are any artwork amendments that are required that are made by the client there will be a charge of $60.00 per change.
28. Privacy Policy
HFP will not use any personal information collected for any purpose that is not related to the Goods and services it provides or for any purpose which would not reasonably be expected by the Customer. The Customer agrees that HFP may make any inquiries it deems necessary to investigate the Customer’s creditworthiness including undertaking inquiries with financial institutions, credit reporting agencies and any personal credit and/or consumer credit information providers (“Sources”). The Customer authorises the Sources to disclose any information concerning its creditworthiness in their possession to HFP. The Customer agrees that HFP may disclose any information in its possession concerning the Customer’s creditworthiness to the Sources.
29. Notices
Any notices under this Contract must be delivered personally or sent by pre-paid post to the last known address or registered address of the other party. Any such notice delivered personally will be deemed to have been served on the other party on the same day as delivery of the notice and in the case of a notice being sent by post, it will be deemed to have been served on the second weekday (not being a public holiday) following the day it was posted.
30. Statement by HFP
A statement by any officer of HFP is conclusive evidence of any fact, matter or thing.
31. Acceptance
Acceptance of HFP’s Quotation will be acceptance of these terms and conditions.