Terms of Trade

BHD Terms and Conditions of Sale of Goods and the Provision of Services by BHD Storage Solutions

The following Terms and Conditions, including all schedules, (“these Terms“) govern all Orders placed by the Customer and will be incorporated into each contract entered into between the Customer and BHD unless otherwise agreed in writing by BHD.

  1. Definitions

BHD” means BHD Storage Solutions A.C.N. 161 740 496.

Customer” means the person or entity (including that person’s or entity’s successors and assigns) to whom Goods and/or Services are supplied or are to be supplied by BHD.

Custom Goods” means Goods produced by BHD to an Approved Design in accordance with clauses 2.5 and 2.6.

Express Warranties” means the warranties set out in Schedule 2.

Force Majeure Event” means any event or circumstance which is beyond the reasonable control of BHD and includes:

(a) Explosion, flood, storm, earthquake, volcano, fire or accident

(b) War or threat of war, sabotage, insurrection, civil disturbance or requisition

(c) Acts, restrictions, regulations, laws, prohibitions, or measures of any kind taken by any local or federal government authority

(d) Defective performance of carriers

(e) Import or export regulations or embargoes

(f) Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of BHD or a third party)

Goods” means any Goods supplied or to be supplied by BHD to the Customer, including by way of hire or loan.

Invoice” means an invoice issued by BHD consequent upon an Order being placed by the Customer.

Loss” means damage, loss, cost, expense, suit, charge, action, right or action, or liability (whether actual or contingent).

Order” means an order placed by the Customer with BHD for the purchase of Goods or Services.

Price” means the price payable for the Goods and/or Services as agreed between BHD and the Customer in accordance with clause 3 of these Terms.

Services” means any services supplied or to be supplied by BHD to the Customer.

  1. Orders
    1. All Orders are subject to acceptance by BHD. BHD may withdraw, revoke or vary a quotation at any time prior to acceptance by BHD of an Order to which that quotation relates; for instance, without limitation, to take into account movements in exchange rates or a shortage of stock. Unless otherwise indicated in writing by BHD, all quotations will lapse thirty (30) days after the date of the quotation.

2.2 An Order will only be accepted by BHD on issuance of an Invoice to the Customer or BHD otherwise communicating acceptance of the Order to the Customer and any deposit required is paid.

2.3 Any terms or conditions attached to or referred to in an Order or any other document issued by the Customer other than these Terms will not apply to a contract between BHD and the Customer for the purchase of Goods or Services and the Customer agrees that any such terms and conditions are excluded (unless those terms are approved in writing by BHD or are imposed or implied by statute in respect of the supply of Goods or Services and in the circumstances are unable to be excluded).

2.4 BHD may require payment of a deposit before an Order is accepted by it. In those circumstances, acceptance of the Order will not take place until such time as payment of the deposit is made by the Customer to BHD.  In the case of custom made Goods or non-standard Goods, BHD may require the Customer to pay the whole of the Price upon acceptance of an Order. 

2.5 In the case of Custom Goods, the Customer is responsible for providing detailed drawings and specifications or approving any detailed drawings or specifications produced by BHD on instruction from the Customer.  The final drawings and specifications must be approved by BHD in writing (an Approved Design) as a pre-condition to acceptance by BHD of an Order to be supplied in accordance with those drawings and specifications.

2.6 BHD will use all reasonable commercial endeavours to produce Goods in all material respects in accordance with an Approved Design.  The Customer must inspect Custom Goods on delivery and advise BHD in writing within 7 days of delivery if the Custom Goods, in its opinion, do not accord with the Approved Design in all material respects.  The parties will co-operate with each other in determining whether or not the Goods do conform.  If BHD accepts that the Goods do not conform in all material respects with the Custom Design, BHD will be given such reasonable time as BHD determines, to rectify the Goods.  If the Custom Goods do conform in all material respects with the Approved Design or no advice to the contrary within 7 days of delivery, the Customer must accept and will be deemed to have accepted the Goods.

2.7 The Customer warrants that any Approved Design will not infringe any other person’s intellectual property rights, and agrees to indemnify BHD against all damages, penalties, costs and expenses to which BHD may become liable as a result of any claim by any person alleging an infringement of any patent, trademark, registered design, copyright or common law right in connection with any work done by BHD pursuant to an Approved Design.

2.8 Acceptance of an Order by BHD will be evidenced by BHD issuing an Invoice.  These Terms will be deemed to be included in all Invoices issued by BHD except to the extent expressly varied in the Invoice itself.

2.9 There is no obligation on BHD to enquire as to the authority of any person placing an Order on behalf of the Customer.

  1. Price and Payment

3.1 The Price is that indicated in the written quotation issued by BHD to the Customer or where a written quotation has not been issued, the Price advised by BHD to the Customer.

3.2 The Price excludes fees, duties (eg. Stamp Duty), taxes (eg. GST), surcharges and all other imposts of any government authority (‘governmental imposts’), delivery, transport, storage, installation and insurance charges unless expressly stated otherwise.

3.3 Subject to clause 2.4 or unless otherwise stipulated by BHD in writing, payment for all Goods and services is to be made by the last day of the month following invoice date.

3.4 The failure of the Customer to pay for Goods and/ or Services on the due date, whether or not acquiesced to by BDH, will in no circumstances constitute a waiver by BHD of it right to payment nor will it be construed as an agreement to provide credit.

3.5 GST

3.5.1 In this clause:

(a) terms used that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) have the meaning given in that Act, unless the context makes it clear that a different meaning is intended; and

(b) consideration includes non-monetary consideration, in respect of which the parties must agree on a market value, acting reasonably; and

(c) in addition to the meaning given in the GST Act, the term “GST” includes a notional liability for GST.

3.5.2 Except where otherwise indicated, all Prices are GST exclusive. Where GST is payable in respect of a supply by BHD, the Customer must also pay an amount (GST amount) equal to the GST payable in respect of that supply.

3.5.3 Subject to first receiving a tax invoice or adjustment note as appropriate, the Customer must pay the GST amount when it is liable to pay the Price. If the Customer pays the GST-exclusive Price in instalments and the taxable supply is not made for a period or on a progressive basis, the Customer must pay the total GST amount when it is liable to provide the first instalment.

3.5.4 If one party must indemnify or reimburse another party (payee) for any loss or expense incurred by the payee, the required payment does not include any amount which the payee (or an entity that is in the same GST group as the payee) is entitled to claim as an input tax credit or would have been entitled to claim as an input tax credit had the other party registered for GST in the event that it was required or entitled to do so, but will be increased under clause this clause 3.5 if the payment is consideration for a taxable supply.

3.5.5 If an adjustment event arises in respect of a taxable supply made by BHD, the GST amount payable by the Customer under this clause will be recalculated to reflect the adjustment event and a payment will be made by the Contractor to BHD or by BHD to the Customer, as the case requires.

3.5.6 If the GST law changes (including without limitation as a result of a change in the GST rate) after the date of the Contract which incorporates these Terms, any consideration that expressly includes GST must be adjusted to reflect the change in the GST law.

3.6 Payment must be in Australian dollars. Time for payment is of the essence.

3.7 The Customer is not entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by BHD, nor is the Customer entitled to withhold payment of any invoice because part of that invoice is in dispute.

4. Delivery

4.1 If a BHD invoice specifies it is the responsibility of BHD to deliver Goods to the Customer or it is otherwise agreed that BHD will deliver the Goods to the Customer the following will apply:

  1. BHD will be entitled to deliver the Goods in instalments.
  1. The Customer agrees to pay a reasonable delivery as determined by BHD.
  1. Whilst the usual delivery time is 6 to 8 weeks from the later of payment of deposit or acceptance of Order, this expectation and any delivery times advised to the Customer are estimates only and BHD will not be liable for any loss, damage or delay suffered or incurred by the Customer or its clients arising from late or non-delivery of the Goods;

(d) If the Customer does not accept delivery of the Goods the Customer has no entitlement to be repaid the Deposit or any amounts already paid and BHD in addition will be entitled to charge a reasonable storage fee or pursue the Customer pursuant to its rights under these Terms or at law or both including but not limited to requiring payment of the balance of the money owing for the relevant Order despite the Customer not accepting delivery.

4.2 If an Invoice specifies it is the responsibility of the Customer to collect the Goods from BHD or it is otherwise agreed that the Customer will collect the Goods from BHD the following will apply:

(a) BHD may require the Customer to collect the Goods in instalments;

(b) Collection times advised to the Customer are estimates only and BHD will not be liable for any loss, damage or delay suffered or incurred by the Customer or its clients arising from late collection or any inability to collect the Goods; and

(c) If the Customer does not collect the Goods within the time specified by BHD for the collection for the Goods the Customer has no entitlement to be repaid the deposit or any amounts already paid and BHD in addition will be entitled to pursue the Customer pursuant to its rights under these Terms and at law including but not limited to the payment of the balance of the money owing for the relevant Order despite the Customer not taking delivery.

4.3 If BHD is contracted to install Goods, the provisions of Schedule 1 shall apply.

5. Title and Risk

5.1 Goods supplied to the Customer by BHD shall remain the sole and absolute property BHD until such time as BHD has been paid all monies due and owing to it by the Customer on any account.

5.2 BHD is entitled to retake possession of and dispose of any Goods supplied by BHD to the Customer as BHD sees fit at any time that monies are due and payable but unpaid.

5.3 The Customer grants permission to BHD to enter any property where any Goods supplied by BHD to the Customer are stored.

5.4 Risk in the Goods supplied by BHD to the Customer will pass from BHD to the Customer:

(a) When the Goods are being shipped or trucked, once the Goods are on board the ship or truck: and

(b) When the Goods are not being shipped or trucked, immediately upon the Goods being dispatched from the premises of BHD.

If Goods are collected by the Customer or delivered by BHD to the Customer from a location other than the premises of BHD (” the Departure Point”) the risk in the Goods will pass to the Customer immediately upon dispatch from the Departure Point.

From the time that the risk in the Goods passes to the Customer until all payments due and owing to BHD are made, the Customer must insure (and keep insured) the Goods on the following conditions until such time as property (including legal and equitable title) passes to the Customer:

(i) the Goods must be insured for their full insurable or replacement value (whichever is higher); and

(ii) the Goods must be insured by an insurer licensed or authorised to conduct the business of insurance in the place where the Goods will be stored.

5.5 Until BHD has been paid all money due and owing to it the Customer agrees:

(a) to keep all Goods supplied by BHD as fiduciary and trustee for BHD and to store the Goods in a manner that discloses BHD is the owner of the Goods; and

(b) to only sell the Goods supplied by BHD in the usual course of business on the condition that the Customer holds all proceeds on trust for BHD.

5.6 If the Customer sells, disposes of, or otherwise deals with the Goods before full payment has been received by   BHD, the   Customer   must   advise   BHD   in writing, at such times as BHD may request, specifying the serial number of the Goods sold, disposed of, utilised or otherwise dealt with.

5.7 Upon the sale or disposition of or other dealing in of any Goods supplied by BHD to the Customer prior to the full payment of all monies owing to BHD, the Customer agrees to deposit all proceeds arising from the sale of or dealing in those Goods in a separate bank account and agrees to not mix the proceeds with any other monies.  The security interest in the Goods created by these Terms continues in respect of the proceeds of disposition.  The Customer must pay the proceeds to BHD upon request.

5.8 The Customer must not create any security interest in the Goods until the earlier of their sale or other disposal in the ordinary course of business and they are fully paid for.

5.9 In addition to any other rights of BHD under statute, at law or under these Terms, if the Customer fails to pay for the Goods in accordance with these Terms:

(a) The Customer must return the Goods to BHD, when demanded by BHD or its agent; or

(b) BHD may recover possession of the Goods by any necessary means at any site owned, possessed or controlled by the Customer and the Customer consents to entry by BHD or its representatives for that purpose; and

(c) The Customer agrees that the rights of BHD under this clause are irrevocable; and

(d) The Customer is liable for all costs associated with the exercise of BHD’s rights under this clause, and this liability will be payable on demand and the Customer releases and forever discharges BHD and its representatives from any claim whatsoever in respect of any loss or damage suffered by the Customer arising out of that recovery.

5.10 Without limiting any other provision of these Terms grants a security interest in all Goods supplied by BHD to the Customer for which payment in full has not been received in cleared funds by BHD.  The Customer agrees to do all such things and sign all documents as may reasonably be required by BHD for the purpose of ensuring the effectiveness of this security interest, the perfection of the security interest and the enforcement of the security interest under the Personal Property Securities Act 2009 (Cth) (PPSA).

5.11 To the extent that the law permits:

  1. for the purposes of sections 115(1) and 117(7) of the PPSA, BHD need not comply with sections 123, 125, 128, 129, 130, 132(3)(d) and 132(4); and
  1. the Customer agrees not to exercise any rights it may have under section 275 of the PPSA to request BHD to send or make available to any person any information specified in that section and acknowledges that no confidentiality agreement exists for the purposes of section 275(6)(a) of the PPSA. 

5.12 If BHD exercises a right, power or remedy in connection with these Terms, that exercise will not be an exercise of a right, power or remedy under the PPSA unless BHD states otherwise at the time of exercise.  However, this clause does not apply to a right, power or remedy which can only be exercised under the PPSA. 

5.13 To the extent the law permits, the Customer waives:

  1. its right to receive any notice that is required by:
  1. any provision of the PPSA; or
  1. any other law before a secured party or receiver exercises a right, power or remedy; and
  1. any time period that must otherwise lapse under any law before BHD or a receiver exercises a right, power or remedy. 

If the law provides that a period of notice or a lapse of time cannot be excluded, but that the period of notice or lapse of time may be agreed, that period or lapse is 1 day or the minimum period the law allows to be agreed (whichever is the longer). 

Nothing in this clause prohibits BHD or any receiver from giving a notice under the PPSA or any other law.

6. Shipped Goods

6.1 In the event the Customer places an Order to purchase:

(a) Goods that are required to be transported to Australia from a foreign country; or

(b) Goods that are in transit to Australia: or

(c) Goods that have been transported to Australia that have not been cleared by Australian Customs from an Australian wharf: or

(d) Goods that are to be shipped from Australia to a foreign wharf,

then the following additional terms will apply unless BHD otherwise notifies the Customer in writing:

(i) The Order must specify the currency (either CAD, USD or AUD) that the Customer proposes to pay BHD for the Goods:

(ii) If the Order is accepted by BHD it will issue an Invoice;

(iii) Notwithstanding clause 3 of these Terms the Customer must pay BHD in cleared funds the amount Invoiced within 48 hours of BHD issuing its Invoice unless BHD notifies the Customer in writing of a later acceptable payment date;

(iv) BHD will arrange for all costs, insurance and freight in transporting the Goods to the relevant wharf;

(v) The Customer will be responsible for all costs and expenses in relation to the Goods being cleared from the wharf and transported from the wharf to the Customer’s premises. These costs and expenses will include but not be limited to customs duties, quarantine and inspection fees, fumigation fees, wharf storage fees, demurrage fees and freight and transportation costs:

(vi) If the Customer fails to arrange for the Goods to be removed from the relevant wharf within seven days of the Goods arriving at the relevant wharf BHD will have the option of transporting the Goods to a storage yard or to the Customer’s premises at the Customer’s risk, cost and expense;

(vii) If BHD notifies the Customer of the name of the ship transporting the Goods and the ship is lost or delayed, BHD may at its option select another ship to transport the Goods and the Customer must accept the Goods with no claim against BHD, providing the Goods arrive at the relevant wharf within six weeks (force majeure excepted) of the original due date.

7. Default by Customer

7.1 In the event the Customer breaches a contract for the supply of Goods or Services and fails to remedy that default within 7 days of written notice, dishonours any cheque or defaults in the payment of any Invoice, all moneys owing by the Customer to BHD on any account whatsoever shall, at BHD’s option, become immediately due and payable in full by the Customer upon BHD giving written notice of exercise of that option.

7.2 BHD shall not be obliged to deliver Goods or provide services pursuant to an Order until it is accepted by BHD and, where applicable, until any deposit and all amounts payable to BHD by the Customer on contracts for supply or Invoices are paid to BHD.

7.3 Unless otherwise agreed, in the event payment is not made in accordance with BHD’s terms, BHD shall be at liberty to charge the Customer, and be paid, interest on the outstanding balance from the date of the Invoice until the date of payment at the rate calculated using the indicative “cash” rate of the Reserve Bank of Australia as published in the Australian Financial Review (“AFR”) or, if not published in the AFR, the equivalent rate as advised by Reuters Information Services plus a margin of 3% per annum.

7.4 In the event that the Customer defaults in any payment owing to BHD then in addition to BHD’s rights under these Terms and at law, the Customer has no entitlement to a refund and the Customer shall pay to BHD all costs and expenses incurred by BHD in respect to the recovery of money owing by the Customer and/or the recovery of Goods in the possession of the Customer or a third party on a solicitor own client basis.

7.5 Payments received by BHD may be credited first against any costs or expenses payable by the Customer to BHD, then accrued interest, and thereafter the debt.

7.6 In the event of the Customer’s insolvency, death, bankruptcy, administration, receivership, liquidation or any other external administration, suspension of payments, dissolution or modification of partnership, non-payment or non-acceptance of any shipment BHD may cancel a contract of supply or suspend or discontinue shipments or deliveries, always reserving all rights to recover from the Customer any loss occasioned thereby, in addition to any lien to which BHD may by statute or otherwise be entitled.

7.7 In the event the Customer is in default and the Customer has been in default thereof for a period of seven days, BHD may, at its election, at any time thereafter cancel any or all contracts for supply yet to be completed or fulfilled and recover from the Customer any or all losses, damages, costs, interest, charges, including handling charges payable to both BHD and its suppliers and expenses incurred or suffered by BHD as a result of the Customer’s default.

7.8 In the event that the Customer purports to cancel any contract for supply, BHD is entitled to view this act as a repudiation of the contract between the parties and the Customer shall pay to BHD all losses, damages, costs, interest, fees, charges, including handling charges payable to both BHD and its suppliers and expenses incurred or suffered by BHD as a result of the repudiation of the contract.

7.9 In the event BHD elects, as a result of the Customer’s prior indebtedness to BHD, to retain possession of Goods, the delivery of or completion date referred to in any contract for supply shall be replaced by a date being thirty days from the date of satisfaction by the Customer of the Customer’s prior indebtedness to BHD.

8. Charge

8.1 BHD’s obligation to deliver or sell or provide services shall always be conditional upon it being satisfied of the Customer’s ability to pay and comply with these Terms. If BHD ceases to be so satisfied on reasonable grounds it must notify the Customer that it has formed this view. Upon the Customer receiving this notification, it must, within 14 days, provide evidence to BHD of its ability to pay and comply with these Terms. If the Customer fails to provide such evidence within the 14-day time period BHD may suspend and/or terminate deliveries and shall not be liable in any way for any claim, damage, expense or cost arising therefrom and all money then outstanding by the Customer shall immediately become due and payable. 

9. Lien

BHD shall also be entitled to a general lien on all property or Goods belonging to the Customer in BHD’s possession for treatment or storage (although such Goods or some of them have been paid for) for the unpaid price of any other Goods or services sold, delivered or provided to the Customer under any contract for supply.

10. Notice

10.1 Notice shall be deemed to have been properly given by BHD to the Customer if such notice is either posted by prepaid postage to the last known business address of the Customer by BHD (whereupon receipt of the notice shall be deemed to have been received by the Customer two business days after posting by BHD) or by transmitting such notice by email to the last known email address to BHD or by personal delivery to the last know business address of the Customer to BHD (in which cases the receipt of the notice shall be deemed to be the date of such transmission or delivery)

10.2 Notice shall be deemed to have been properly given by the Customer to BHD if such notice is posted by security post or its equivalent to the credit department of BHD to its head office located at 3/49 Calarco Drive Derrimut, Victoria 3030 and shall be deemed to have been received by BHD upon delivery of that notice by Australia Post to BHD.

10.3 The Customer shall give notice to BHD of any change to the Customer’s business address, registered office, telephone or email within 48 hours of the change.

The Customer acknowledges that BHD’s powder coated products has the following characteristics:

(a) It is susceptible to exposure to the outdoor elements,

(b) It is a coated product and variations in colour and texture may occur.

(c) It is susceptible to damage which can be caused by long term direct sun and exposure, humidity and or moisture.

11. Liability

11.1 To the extent permitted by law the Customer waives any claim it has against BHD in contract, tort, under statute or otherwise for, or in respect of, any loss, costs, injury, harm or damage (whether direct, special, indirect, consequential or of any other kind, whether loss of profit or any other economic loss) suffered or incurred by the Customer or any other person arising out of or in connection with the supply of Goods and/or provisions of services (including installation services) by BHD.

11.2 To the extent permitted by law, the total liability of BHD in relation to these Terms and/or any contract for supply is limited to the amount of the Price for the relevant Goods. This clause 11.2. will not apply for:

(i) Liability out of which by law BHD cannot contract;

(ii) Liability for fraud or malicious or deliberate criminal acts or omissions on the part of BHD;

(iii) Liability for any act or failure to act by BHD which was intended to cause, or which was in reckless disregard of, or wanton indifference to, the harmful consequences that BHD knew, or ought reasonably to have known, that act or failure to act would have on the safety, property or interests of the Customer.

12. Treatment & Storage

12.1 Where Goods are deposited by a Customer with BHD for any reason, such as relocation, resizing, cutting, storage and the like, these Goods will not be insured by BHD and must be insured by the Customer against loss, damage, fire, theft or for any other ‘insurable’ incident.

12.2 BHD is not responsible for the failure by the Customer to carry out marketing or safe work instructions.

12.3 Risk in Goods referred to in clause 12.1 will at all times remain with the Customer.

12.3 The Customer warrants that Goods left for treatment are free from contamination and in a condition, which will not cause loss or damage to BHD.

13. Warranties

13.1 BHD provides the express warranty set out in Schedule 2.

13.2 Except to the extent that the exclusion, restriction or modification of any rights or remedies which are prohibited in the circumstances by the Australian Consumer Law or, as applicable, the Consumer Guarantees Act 1993 (NZ), or any  other legislation as the same may apply to the supply and, if applicable, the installation, of the Goods, the Express Warranty is in lieu and to the exclusion of, and the Customer hereby waives, all other warranties, guarantees, rights and remedies whatsoever related to the Goods, or any services provided by BHD in connection with the Goods, express or implied, statutory or otherwise.

13.3 Subject to clause 11.2, where a guarantee, warranty or condition is implied by law or a statutory guarantee applies to a supply of Goods or Services by BHD, BHD’s liability, to the extent that the same can be so limited, is limited to one of the followings at the election of BHD:

  1. in the case of Goods:

(i) the replacement of the Goods or supply of equivalent Goods;

(ii) the repair of Goods;

(iii) the payment of the cost of replacing the Goods or acquiring equivalent Goods;

(iv) the payment of the cost of having the good repaired; and

  1. in the case of services:
  1. the resupply of Services;
  1. the payment of the cost of resupplying the Services.

Except to the extent that such liability arises under or is imposed by any applicable and non-excludable and non-modifiable law, BHD shall not be liable to the Customer, including under the Warranties, for the payment of any indirect, special or consequential damages, including, but not limited to, loss of income, profits or revenue, damage to other property, the costs of removing and reinstalling any Products, or costs associated with dismantling and/or reassembly of any structure, fixture or fitting or piece of equipment on which or within which the Product has been installed and legal fees suffered or incurred by the Customer, or any other liability the Customer may have to any other person, whether in an action in contract or tort, or based on a warranty or guarantee however known or otherwise howsoever and relating to the supply of Goods or Services to the Customers.

No defect or claim in respect of Goods delivered will entitle the Customer to reject delivery of other Goods, which are not subject to any defect or claim, whether or not delivered as part of the contract of supply for the rejected Goods.

14. Assignment

14.1 BHD is entitled at any time to assign its rights pursuant to these terms and conditions to any third party. The Customer is not entitled to assign its rights pursuant to these terms and conditions unless with the written consent of BHD.

14.2 BHD reserves the right to subcontract any part of the manufacture and/or supply of the Goods and/or Services quoted for, or any materials or services to be supplied, or any other of its rights and/or obligations without the Customer’s consent.

15. Return of Goods Procedure

BHD’s returns policy is set out in Schedule 3.

16. Jurisdiction

16.1 The Customer and BHD agree that the appropriate jurisdiction for any disputes relating to the sale of Goods or the provision of services by BHD to the Customer shall be the state of Victoria and that the laws of the state of Victoria are the governing laws of this agreement.

17. Entire agreement

17.1 An Invoice and these terms and conditions represent the entire terms and conditions between BHD and the Customer in relation to the supply of Goods and Services.

18. Variation

18.1 Subject to clause 18.2, Any variations to these terms and conditions must be in writing and signed by BHD and the Customer.

18.2 The Customer acknowledges that BHD shall have the right to vary all or any of these terms and conditions by providing one month’s notice of the changes to the Customer. The Customer acknowledges that any changes made by BHD to the terms and conditions in accordance with this clause will apply to all contracts for the supply of Goods or Services by BHD made after the expiry of the notice period.

19. Severability

If any part of these terms and conditions and/or any related document is or becomes void or unenforceable that part is severed so that all parts which are not void or unenforceable remain in full force and effect and are unaffected by the severance.

20. Claims

20.1 The Customer must inspect the Goods upon delivery.

20.2 The Customer will, within two (2) business days of the supply of any Goods and/or Services (time being of the essence), notify BHD of any alleged defect, error, omission, shortage in quantity, damage or failure to comply with the relevant contract for supply.

20.3 The Customer will allow BHD to inspect the alleged defect, error, omission, shortage in quantity, damage or failure to comply within a reasonable time of receiving notification.

20.4  If the Customer fails to give notice in accordance with clause 20.2, BHD will be deemed to have fulfilled the contract for supply and by the Customer may not thereafter make a claim in respect of the Goods unless under a non-excludable statutory term or the Express Warranties.

21. Force Majeure

21.1 BHD will not be liable for any delay or failure in the performance of any obligation under these Terms or for any loss or damage (including indirect or consequential loss or damage) if such performance or exercise is prevented or hindered in whole or in part by reason of a Force Majeure Event.

21.2 BHD may suspend its performance under a contract for supply during the continuance of the Force Majeure Event.

21.3 During a Force Majeure Event and for a reasonable period thereafter, BHD is entitled to allocate at its discretion its available supplies between its Customers and between its requirements and those of its Customers.

22. Privacy

22.1 The Customer agrees that BHD may obtain information about the Customer from the Customer or any other person (including any Person related to BHD and including any company within the wider group of companies of which BHD forms part (the “Wider Company Group”) and any credit or debt collection agencies) in the course of BHD’s business, including credit assessment, debt collecting and direct marketing activities, and the Customer consents to any person providing BHD with such information.

22.2 The Customer agrees that BHD may use any information it has about the Customer relating to the Customer’s creditworthiness and, subject to any confidentiality agreement between the Customer and BHD, give that information to any other person, including any credit or debt collection agency and other members of the Wider Company Group for credit assessment and or, debt collection purposes. The Customer agrees that any other information collected by BHD about the Customer is accessed or collected for the use of any member of the Wider Company Group in the course of its business, including direct marketing activities. Under the Privacy Act 1988 (Cth), the Customer has rights of access to, and correction of, their personal information.

22.3 Notwithstanding any of these Terms, where the Customer is a natural person, the Customer specifically agrees for the purposes of privacy legislation including the Privacy Act 1988 (Cth) to BHD:

(a) being given a credit report on him or her for the purpose of assessing an application for credit or for the purpose of the collection of payments that are overdue under these Terms;

(b) disclosing to or obtaining from another credit provider a credit report or personal information derived from a credit report on him or her for the purpose of assessing or exchanging information relating to his or her creditworthiness, credit history or credit capacity; and

(c) collecting and using personal information as may be required for the purposes of the PPSA, including but not limited to, use in financing statements registered by BHD,

and BHD advises the Customer and the Customer acknowledges that BHD may disclose the information it acquires about the Customer to a credit agency, other members of the Wider Company Group or as may be required by the PPSA.

23. Miscellaneous

23.1 Headings and underlines are for convenience only and do not affect the interpretation of these terms.

23.2 Words importing the singular include the plural or vice versa.

23.3 References to statutes include all statutes amending or consolidating the statutes referred to and the regulations made thereunder.

23.4 In the event of any conflict between these Terms and those that may be included in or implied by any document forming part of any enquiry, specification, order or contract, then these Terms will prevail, except in so far as they are expressly varied by BHD in writing or otherwise by law.

23.5 All intellectual property rights in Goods or Services remain the property of BHD including the copyright in all drawings, specifications and manuals supplied by BHD to the Customer. BHD has the exclusive world-wide royalty free right to use the drawings and specifications prepared for custom Goods for commercial purposes. The Customer must not and must not permit or assist any third party to copy or take extracts from any drawings, specifications or manuals without the prior written consent of BHD.

SCHEDULE 1

INSTALLATION TERMS

1. The Customer, at its cost, must provide:

  1. clear, uninterrupted access to an unloading area and the installation area, clear of all stock and other obstacles at all times;
  1. detailed instructions as to location of installation prior to installation;
  1. all required tools and equipment in proper working order;
  1. uninterrupted use of a suitable fork lift for the duration of installation. Otherwise one will be supplied at an additional cost;
  1. full access to all site amenities;
  1. uninterrupted power supply – including adequate 240V AC power outlets;
  1. adequate lighting at all times;
  1. an installation site which is suitable for the Product and be structurally sound;
  1. an installation site which does not require any removal of material, dismantling or restructuring of premises;
  1. all labour and equipment for the unloading of Product.

2. Goods must be placed within the installation area or a suitable easily accessible area.

3. Additional charges may be incurred if special OHS requirements or inductions are required for Customer’s site.

4. Any additional man-hours incurred as a result of the Customer’s default will be payable by the Customer.

5. All systems must be installed on a level concrete surface.

6. A BHD quotation is based on installation on a continuous basis during a normal working day Monday to Friday.  Where installation is required after hours or on the weekends, BHD would need to quote this separately.

7. The Customer must comply with all directions given by BHD or its on-site manager relating to the safety of persons during the installation of Product.

8.1 All installations are carried out by suitably qualified and licenced installers; including, where applicable, according to the standards outlined under AS4084-2012.

8.2 Appropriate Safety Signage and loading stickers will be provided and / or installed as standard and must NOT be amended without consent of BHD.

8.3 BHD will supply a BHD Racking Safety Inspection log book and Hazard Kit.  The Customer must properly maintain the Racking Safety Inspection log book in a timely manner.

8.4 The Customer must provide a safe working environment at its premises for all persons involved in the installation of Goods.

8.5 The Customer is solely responsible for ensuring compliance with all safety related legislation, statutes, regulations, codes of practices and guidelines including Occupational Health and Safety Act 2004 and the Regulations made thereunder.

8.6 BHD and its employees, agents and sub-contractors have full and complete authority to give oral or written notification of any unsafe practices or unsafe situations to the Customer or to the Customers’ contractors, sub-contractors, agents, employees and it is agreed that BHD may postpone or suspend work at its sole discretion until such time as any unsafe practices or unsafe situations are made safe and remedied to the complete satisfaction of BHD. In this event the Customer shall be responsible for any extra costs, charges or expenses incurred by BHD as a result and the completion date may be extended by BHD without penalty.

8.7 BHD shall not be liable to the Customer for any loss or damage of any nature whatsoever caused by any works, equipment, tools or vehicles whether in contract, tort (including negligence) under statute or otherwise. The Customer indemnifies BHD and agrees to keep BHD indemnified in respect of any such damage or injury caused or suffered by any persons including the customer, its contractors, sub-contractors, employees, agents or invitees.

SCHEDULE 2

EXPRESS WARRANTY

To support BHD’s commitment, to the market and ensure continued compliance with Australian Standard AS4084·2012 where applicable, BHD Storage Solutions (BHD) provides the warranties set out in this document on all BHD products, parts and equipment (Products) which are purchased by the Customer from  BHD and  installed by registered trade  installation  crews approved  by BHD (this Warranty).

The benefits under this Warranty are in addition to other rights and remedies available to You under the law. 

The Warranties are subject to the following conditions, terms and exclusions.

1.  Express Warranty against Defects in Materials and Workmanship

1.1 BHD warrants all new and previously unused products and equipment which are purchased by the Customer from BHD and installed by registered trade installation crews approved by BHD will be free from defects in materials and workmanship (the Defects Warranty).This warranty extends for a period of 2 years from the date of purchase subject to early termination or extension as provided below (the Warranty Period).

1.2    In order to retain the benefit of the Defects Warranty, the Customer must comply with the following:

1.3   During the Warranty Period, the Customer must, allow BHD or an authorised representative of BHD to conduct on annual inspection of any supplied and installed BHD pallet racking. It is the responsibility of the Customer to contact BHD offices to schedule the annual inspections to maintain this warranty.

1.4   The Customer must request an inspection under clause 1.3 by BHD within each 12 month period from the date of purchase.  BHD will inspect the site as soon as is practicable thereafter.  The first annual  inspection  will  be at no cost to the Customer   In  each  subsequent  12  month  period  during the Warranty Period, the Customer will  be charged for inspections at the standard  rate  for inspections  set by BHD  from time  to time.  Any failure to:

  1. make a request as aforesaid;
  2. permit an inspection by BHD; or
  3. pay BHD for an inspection,

will void this warranty.

1.5   Once  a successful  record  of annual  inspection completed by BHD has been  issued and filed with  BHD,  and subject to the  satisfactory findings  of such  inspection  by

BHD or BHD’s representatives (including  confirmation by BHD that the  maintenance and  usage of the  BHD product and  ports by the Customer has been  in  accordance with  all  requirements of BHD)  BHD and or the representative or authorised agent will supply a certificate of warranty to cover the following 12 month term.  If the inspection  reveals that the Customer  is  not using, repairing  or maintaining any of the BHD products  or parts  in  accordance with  the  instructions and  requirements of BHD,  then  the Defects Warranty will terminate.

1.6   Without limiting the foregoing, any failure by the Customer to replace any part or product supplied by BHD that has deteriorated due to normal wear and tear or any environmental conditions or for any other reason not associated with a defect in materials or workmanship (including mis-use) will entitle BHD to terminate the Defects Warranty.

1.7   After each annual inspection has been completed and the Customer has at its cost:

  1. purchased  from BHD any replacement Products  and undertaken all repairs  at the cost of the Customer;
  1. complied with  all other requirements of BHD  in relation  to Products, 

the Customer will be issued with a new warranty certificate to cover the following 12 month period.

    1. The Defects Warranty will be void if the Product:

i)    is  subject  to  misuse, accident,  stress or negligence or if the  need  for  repair or replacement  of the  Product is  the result of any act or neglect by the Customer or any of its  employees, agents,  representatives,  or invitees;

ii)    is used for any application other than as specified by BHD;

iii)   the Customer fails to adhere to any instructions provided by BHD for the use of the Product, including any loading charts for excess supplied by BHD. This includes any failure to comply with  the weight  load  limitation for the  relevant Product  as specified  by BHD in  its  loading charts which the Customer acknowledges  having  received  prior to the  of this warranty; or

iv)  any  failure  by the Customer  to  immediately carry  out any works or purchase any replacement parts recommended by BHD, whether  after an annual inspection  referred  to above or otherwise.  Upon the discovery the Customer  or any of its employees or agents  of any structural damage or defect of any BHD  product  or part thereof,  the Customer  agrees  to allow  any BHD  representative or authorised BHD agent to inspect any  such  damage or suspected  product  failure  at the  place  of installation  and to complete its obligations under this warranty.

1.9  This Warranty is not transferrable.

3. Standards

All BHD pallet rack systems comply with relevant Australian Standards (including AS4084-2012).

4.  BHD Product Maintenance Requirements

The Warranties apply to all Products supplied by BHD and are conditional, upon the Customer undertaking at its cost all scheduled preventative, maintenance as specified  by BHD’s service advisors or engineers throughout the Warranty Period.

5.  BHD Warranty Conditions Agreement Exclusions

5.1      The Warranties are subject to clause 13.2 of the Terms.

5.2  BHD reserves the  right to void  this Warranty Document at the unfettered  discretion of BHD should  the Customer or any third  party,  repair,  alter,  or modify any Product without the  prior  written approval of BHD.

5.3   If any  Product  supplied  by BHD is  removed from  an installed  site  for relocation,  then  that  product  or part  must be re-certified  by a BHD  representative,  in order to  maintain  the Warranties.

5 4  Improvements on Products are made from time to time at the discretion of BHD. BHD does not have an obligation to  apply any such  improvements to Products ordered prior to the date the improvement was made.

6.  Definitions

6.1    The original person or party who purchased the Product is the “Customer” for the purpose of the Warranties.

6.2  A Product has a defect if the Customer establishes on reasonable grounds that the Product is substantially unfit for the purpose for which goods of the same kind are commonly supplied and BHD cannot, easily and within a reasonable time, be remedied to make it fit for such a purpose.

6.3  All “environmental conditions” includes chemical exposure, corrosion, fire, explosions, or acts of God.

6.4   “Including” is not a word of limitation.

7. Provider

This Warranty is provided by BHD Storage Solutions, ACN 161 740 496 of 3/49 Calarco Drive, Derrimut, Victoria 3030.

BHD’s phone numbers are:

Victoria: (03) 8671 1500

Australia: 1300 661 198

Australia: 1300 0RACKING

New Zealand: 1300 0RACKING

A claim can only be made in respect of a defect appearing in the Warranty Period.

8. Making a Warranty Claim

8.1 To make a claim under this Warranty in respect of a Product, BHD must be advised in writing within 10 working days of the initial detection of the alleged defect.  The claim must be submitted to:

BHD Storage Solutions

to the attention of National Sales Manager

by post to Unit 3, 49 Calarco Drive, Derrimut, Victoria 3030, Australia; or

by email to sales@bhdstorage.com.au

8.2 A claim must include the following details:

  1. A sample or photograph of the Product showing the alleged defect;
  2. Date on which defect appeared or became evident;
  3. Evidence of purchase of the Product (invoice and receipt, showing date and place of purchase).
  4. Cost estimates for the removal and disposal of the allegedly defective Product;
  5. Proof of compliance with all installation, use and maintenance instructions for the relevant Product;
  6. Costs incurred to return the Product.

8.3 The cost of making a warranty claim is to the Customer’s account only until such time as BHD agrees or the law provides otherwise.

  1. Processing a Warranty Claim

9.1 Upon receipt of a claim under this Warranty in the required form, BHD will make a determination as to whether or not there is a valid warranty claim in respect of the Product.  In the course of making its determination, BHD may, but is not required to, inspect (in situ) the Product in respect of which the Warranty claim has been made.  BHD is not required to consider a claim under this Warranty unless and until all details requested by BHD have been provided.

9.2 If BHD assesses a claim made under this Warranty and determines the Product to be faulty, BHD will do one of the following at its discretion:

(i) determine whether to repair or replace the Product.

Replacement of the Product will be either with the same or a technically equivalent Product as BHD determines.

As applicable, repair or replacement of any Product by BHD under this Warranty will be at BHD’s cost and will include any preparation and installation works reasonably required.

All rectification works (by way of repair or replacement) undertaken by BHD or its nominee(s) will also include the removal and disposal of any faulty Product. 

(ii) reimburse the Customer for the reasonable out of pocket costs incurred in making the claim, including return of Product to BHD or other agreed product disposal, provided that BHD is notified of such costs and provided with the documentary evidence of those costs incurred within 30 days of BHD notifying the Customer of a successful claim.

9.3 If BHD assesses any Product to be faulty and follows the procedure set out above, it is not required to return anything provided in support of your claim.

9.4 Where BHD determines that there is no valid warranty claim in respect of the Product the subject of the claim, it will only return anything submitted in support of the claim on written request and upon upfront payment of the costs of return as calculated by BHD and notified to the Customer.

  1. Statutory Consumer Guarantees

10.1 BHD’s goods come with guarantees that cannot be excluded under the Australian Consumer Law or, as applicable, guarantees, conditions, warranties and undertakings under the Consumer Guarantees Act 1993 (NZ) which cannot be modified or excluded except in those circumstances contemplated by Section 43(2) of the Consumer Guarantees Act 1993 (NZ)

10.2 For Products sold in Australia, under certain circumstances, the Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

SCHEDULE 3

RETURNS POLICY

1. The Customer will be deemed to have accepted the Goods in the condition in which they are delivered unless, within seven (7) days of the date of delivery, the Customer returns the Goods to BHD or notifies BHD of any claim that the Goods are not as per an Order, of acceptable quality, damaged or defective.

2. In any of above cases, the Customer must clearly and specifically identify the non-conformity defect or damage. Upon notification of any such claim, BHD has a reasonable opportunity to investigate the claim. If satisfied that the Goods are non-conforming, damaged or defective, BHD may, at its sole discretion, replace the Goods or make a reasonable allowance on the Price to the Customer.

3. Any request for the return of conforming, non-defective Goods will be at the sole discretion of BHD and also at the discretion of BHD will be subject to a processing fee of 15% of the Price of those Goods.

  1. Any charges involved in transporting returned Goods to BHD and, where applicable, back to the Customer will be borne by the Customer.
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