BHD Terms and Conditions of Sale of Goods and the Provision of Services by BHD
Storage Solutions Pty Ltd
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.
“BHD” means BHD Storage Solutions Pty Ltd A.C.N. 629 285 061.
“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 or the Customer and, without limiting the generality of this definition, 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.
“Personal Property Securities Register” means the register established by the Personal Property Securities Act 2009 (Cth).
“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.
1.1. All Orders are subject to acceptance by BHD. BHD may provide a quote in response to an Order, setting out the price to the Customer at which BHD offers to provide the Goods and Services requested in the Order (General Quote). BHD may withdraw, revoke or vary a General Quote at any time prior to acceptance by BHD of an Order to which that General Quote 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 at 4:00 pm on the date seven (7) days after the date of the quotation.
1.2 A General Quote from BHD is an offer from BHD to provide the Goods and Services at the price set out in the General Quote. To accept a General Quote, you must indicate your acceptance in writing and pay any deposit or advance payment as required by the General Quote. A General Quote will not be considered to have been accepted unless and until all deposits and advanced payments it requires have been received in full.
1.3 When the Customer accepts a General Quote, then that Quote and these Terms shall form a contract for the provision of the Goods and Services in the General Quote, and shall together form an entire agreement between the Customer and BHD (the Contract). No earlier negotiations, agreements, or representations between the parties shall form part of the Contract or be referred to in construing the Contract. Without limiting the generality of this clause, the Order is expressly not part of the Contract.
1.5 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. The Customer must make their own investigations as to the fitness of Custom Goods for their purposes, and acknowledges that BHD does not warrant the fitness of Custom Goods for any particular purpose. The Customer acknowledges and agrees that BHD shall not be responsible for any aspects or properties of Custom Goods arising from the design, drawings, or specifications of the Custom Goods, which are the responsibility of the Customer.
1.6 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 rectify the Goods in such time as it determines acting reasonably. If the Customer does not advise BHD that it considers Custom Goods to not conform to the Approved Design Material within 7 days of delivery, the Customer must accept and will be irrevocably deemed to have accepted the Goods. The Customer agrees that the limitations of liability in clauses 1.5 and 1.6 are reasonable and necessary for the protection of BHD to provide Custom Goods.
1.7 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.
1.8 There is no obligation on BHD to enquire as to the authority of any person placing an Order on behalf of the Customer.
2. Price and Payment
2.1 The Price for Goods and Services is that indicated in the General Quote issued by BHD to the Customer, or where a written quotation citing the Price has not been issued, the Price advised by BHD to the Customer. The Customer agrees that the Price for an Order is not bound by reference to the Price for any previous Order.2.2 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.
2.3 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.
2.4 The failure of the Customer to pay for Goods and/ or Services on the due date, whether or not acquiesced to by BHD, 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.
2.5.1 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.
2.5.2 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.
2.5.3 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.
2.5.4 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.
2.5.5 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.
2.5.6 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.
2.6 Payment must be in Australian dollars. Time for payment is of the essence.
2.7 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.
3.1 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:
(a) BHD will be entitled to deliver the Goods in instalments.
(b) The Customer agrees to pay a reasonable delivery fee as determined by BHD, which may include a margin as well as reimbursement for cost. Where delivery is by instalments, BHD may issue invoices in respect of each instalment or in respect of multiple instalments collectively, at the absolute discretion of BHD;
(c) BHD may indicate an expected delivery time from the later of payment of deposit or acceptance of Order, however 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 delivery of the Goods or from non-delivery of the Goods on or before any particular time. The Customer acknowledges that the actual delivery time for an Order depends upon factors outside the control of BHD;
(d) If the Customer does not accept delivery of the Goods then:
(i) the Customer waives any entitlement or right that the Customer has or might otherwise have had to be repaid the Deposit and any other amounts already paid by the Customer;
(ii) BHD will be entitled to charge an administration storage fee of $15.00 and pallet charges of $25.00 per pallet each day until the Customer completes collection of the Goods, and claim reimbursement for any third-party costs incurred by BHD for that storage; and
(iii) 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.
3.2 If a Quote specifies it is the responsibility of the Customer to collect the Goods from BHD, if it is otherwise agreed that the Customer will collect the Goods from BHD, or if the Order and the Quote do not allocate responsibility for delivery or collection of the Goods, then 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 the Goods the Goods being unavailable for collection at any particular time; and
(c) If the Customer does not collect the Goods within the time specified by BHD for the collection for the Goods, then:
(i) the Customer waives any entitlement or right to be repaid the deposit or any amounts already paid to BHD;
(ii) the Customer will be in breach of a condition of this Agreement and BHD will be entitled 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.
3.3 If BHD is contracted to install Goods, the provisions of Schedule 1 shall apply.
4. Title and Risk
4.1 Ownership in Goods supplied subject to these Terms shall not pass to the Customer until BHD has received payment in full of all monies owing to it by the Customer on any account. If the Customer takes possession of the Goods prior to ownership in the Goods passing, then the Customer shall hold those Goods on bailment for any disclosed purpose for which possession was passed to the Customer.
4.2 The Customer agrees that to secure the retention of title in clause 5.1:
(a) 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 for those Goods are due and payable but unpaid;
(b)The Customer grants permission to BHD to enter any property where any Goods supplied by BHD to the Customer are stored at any time during which the Customer owes any sum of money to BHD secured by a retention of title subject to this clause; and
(c) The Customer consents to BHD registering its interest in the Goods on the Personal Property Securities Register as a Purchase Money Security Interest. 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).
4.3 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 by BHD, once the Goods are on board the ship or truck;
(b) When the Goods are being delivered by BHD other than by being shipped or trucked, immediately upon the Goods being dispatched from the premises of BHD; or(c) If the Goods are collected by the Customer, immediately upon the earlier of the Customer taking control or possession of the Goods. BHD may require that the Customer maintain an insurance policy for the full insurable or replacement value of the Goods as a condition for releasing Goods to the Customer prior to receiving payment in full. BHD may require that the Customer provide them with a certificate of currency for any such policy as evidence of that cover.
4.5 Until BHD has been paid all money due and owing to it the Customer agrees to:
(a) keep all Goods supplied by BHD on bailment for reversion to BHD, and to store the Goods in a manner that discloses BHD is the owner of the Goods; and
(b) 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.
4.6 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.
4.7 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.
4.8 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.
4.9 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. 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.
4.10 To the extent that the law permits:
(a) 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
(b) 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.
4.11 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.
To the extent the law permits, the Customer waives:
(a) its right to receive any notice that is required by any provision of the PPSA or any other law before a secured party or receiver exercises a right, power or remedy; and
(b) 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 may specify the currency (either CAD, USD or AUD) that the Customer proposes to pay BHD for the Goods, but BHD is not bound to accept payment in that currency and may require payment in a particular currency of its choice as a condition of a General Quote to which this clause applies;
(ii) Notwithstanding clause 2 of these Terms, the Customer must pay BHD in cleared funds the amount of any Invoice within 48 hours of BHD issuing its Invoice unless BHD notifies the Customer in writing of a later acceptable payment date. BHD shall be entitled to issue invoices in advance of costs it shall incur pursuant to this clause;
(iii) BHD will arrange for all costs, insurance and freight in transporting the Goods to the relevant wharf. If BHD issues an invoice in advance of costs to be incurred under this subclause, then payment by the Customer of that invoice is a condition precedent to BHD performing its obligations under this subclause;
(v) The Customer will be responsible for the arrangement of and 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 right but not obligation to arrange the transport of the Goods to a storage yard or to the Customer’s premises at the Customer’s risk, cost and expense. If BHD exercises this right;
(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 incorporating these terms 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 BHD has received written acceptance of a General Quote 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 waives any common law right 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 terminate 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 remains in default for a period of at least seven days, BHD may, at its election, at any time terminate 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 terminate 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.
8.1 In consideration for the provision of goods and services by BHD to the Customer, the Customer grants a charge to BHD over all of the Customer’s property without exception, including property acquired after the Customer agrees to grant this security, for the performance of these Terms. The Customer agrees that BHD shall be entitled to register this charge on the Personal Property Securities Register.
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.
10.1 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.
11.1 Nothing in these Terms is intended to or shall have the effect of excluding the operation of the Australian Consumer Law. These Terms shall be construed to agree with the Australian Consumer Law to the greatest extent possible, and in the event of any irreconcilable difference between these Terms and the Australian Consumer Law, the difference shall be severed from these Terms to the extent necessary to resolve the inconsistency.
11.2 Except to the extent that liability arises under or is imposed by a non-excludable law which prohibits the limitation of that liability, BHD shall not be liable to the Customer for any indirect, special or consequential damages. This limitation includes, but is 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,
aggravated, punitive or exemplary damages, or any other liability the Customer may have or incur to any third party regardless of the law under which that liability arises or any notice BHD has or may have regarding the circumstances of that liability. total liability of BHD in relation to these Terms and any contract incorporating these Terms is limited to the total price of the Price for the relevant General Quote. This clause 11.2. will not apply for:
(i) Liability which by law BHD cannot limit or exclude by 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.
11.3 Subject to clause 11.2, where a guarantee, warranty, or condition implied by law or a statutory guarantee applies to a supply of Goods or Services by BHD, BHD’s liability shall be limited to the extent legally permitted to one of the following 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;
the payment of the cost of resupplying the Services.
11.4 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.
11.5 BHD does not give advice about the fitness of Goods for particular sites or purposes, but only warrants that Goods are fit for the common purposes of products of their kind. Without limiting the generality of this clause, BHD will not be liable to the Customer if the size, weight, or shape of Goods are not fit for the site at which the Customer intends to instal those Goods.
11.6 BHD will not be liable for any loss, damage, or diminution of value to or arising from the Goods after risk passes to the Customer, unless that loss, damage, or diminution of value was caused or contributed to by either a defect in the manufacture or materials of the Goods or in the course of BHD providing services under contract. Without limiting the generality of this clause, BHD will not be liable
for damage caused by transport, storage, installation, or improper maintenance of the Goods once risk in the Goods has passed to you, unless BHD is providing the transport, storage, installation, or maintenance services which cause the harm.
11.7 The Customer warrants that:
(a) The Customer has read any product disclosures incorporated in the General Quote, including by reference, or provided by notice to the Customer prior to acceptance of a General Quote, and that by accepting the General Quote the Customer accepts the Goods subject to those product disclosures; and
(b) The Customer has made their own investigations regarding the Goods and Services they purchase from BHD, and the Customer does not rely upon any representation or understanding which is not incorporated in the Order, the General Quote, or by notice from BHD prior to acceptance of the General Quote. Without limiting the generality of this clause, the Customer warrants that they do not rely upon any verbal statements by BHD, its employees or agents, unless those statements have been reduced to writing and incorporated in the Order, General Quote, or in a notice as required by this subclause.
12. Treatment & Storage
12.1 The Customer may ask BHD to hold or store Goods for them, which BHD may agree or refuse to do at BHD’s unfettered discretion. Where Goods are held or stored for the Customer by BHD for any reason these Goods will not be insured by BHD. Risk in the Goods will remain with the Customer at all times, and the Customer releases and indemnifies BHD in respect of any damage or loss of value to the Goods arising in any way, including but not limited to negligence by BHD, its employees and agents, but not for damage or loss of value to the Goods caused by wilful damage by BHD, its
employees, or agents.
12.2 BHD is not responsible for the failure by the Customer to carry out marketing or safe work instructions.
12.3 If BHD holds or stores Goods for the Customer under this clause, then the Customer agrees to pay a storage fee of $25.00 to BHD per pallet for each day of such storage, or such other amount as expressly agreed between BHD and 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. The Customer indemnifies BHD from and against any loss, damage, liability, or claim arising from or because of Goods or the condition of Goods which the Customer asks BHD to hold or store for them.
13.1 BHD provides the express warranty set out in Schedule 2.
13.2 BHD may provide product disclosures by notice or by incorporation in a General Quote, including incorporation by reference. The content of any product disclosure provided pursuant to this subclause prior to the acceptance of a General Quote by the Customer shall supersede any prior warranty, representation, or understanding to the extent of any inconsistency.
14.1 BHD is entitled at any time to assign its rights pursuant to these terms and conditions to any third party, and such assignment shall be effective by BHD providing eight weeks’ notice in writing to the Customer. The Customer is not entitled to assign its rights pursuant to these terms and conditions unless with the written consent of BHD, which consent BHD may refuse at its unfettered discretion.
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.
16.1 The Customer and BHD agree that the laws of the state of Victoria are the governing laws of any agreement incorporating these Terms, and irrevocably submit to the non-exclusive jurisdiction of the Courts and Tribunals of Victoria.
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.
18.1 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.
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.
20.1 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 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.
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 a non-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.
1. The Customer may request that BHD perform the installation of Goods purchased from BHD (Installation Works). If BHD agrees to perform Installation Works, which it may refuse to do at its absolute discretion, then BHD will provide a quote for the costs of those Installation Works, including an estimate for the total works, and rates for labour which may become payable pursuant to other clauses in this Schedule (Installation Quote). If the Customer accepts an Installation Quote then the Installation Quote and these terms and conditions shall form an entire agreement which shall supersede and
shall not be construed by reference to any prior agreements, negotiations, or representations.
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. If special OHS requirements or inductions are required for Customer’s site, then BHD may charge the Customer for any increase in cost plus a margin of 15%, and may charge for any additional labour required at the rates set out in the Installation Quote. If BHD becomes aware of special OHS requirements or inductions after providing the Installation Quote, then BHD shall provide a written variation of the Installation Quote for those costs to the Customer, and acceptance of that variation by the Customer shall be a condition precedent for performance of any remaining obligations under the
contract incorporating the Installation Quote.
4. Any additional man-hours incurred as a result of the Customer’s default will be payable by the Customer at the labour rates set out in the Installation Quote.
5. All systems must be installed on a level concrete surface fit for the intended weight of the system with loading. The Customer is responsible to ensure that an appropriate surface is available, and releases and indemnifies BHD from and against any loss, damage, claim or liability arising from or in relation to the Customer directing BHD to install a system on an unfit surface.
6. An Installation Quote 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 reserves the right to issue a supplementary quote for the costs of performing works outside its ordinary terms.
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. The safety of all persons at a worksite, including but not limited to the employees and agents of BHD, is paramount. In order to maintain a safe worksite:
8.1 All installations performed by BHD are carried out by suitably qualified and licenced installers; including, where applicable, according to the standards outlined under AS4084-2012. The Customer will not cause or allow third parties to work on the site during the Installation Works without obtaining the prior written consent of BHD, which BHD may withhold at its absolute discretion.
8.2 BHD will provide and apply Appropriate Safety Signage and loading stickers as standard. Any signage or stickers applied by BHD 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. In the event that the Customer believes there is any inconsistency between this subclause and directions given by BHD under clause 7 above of subclause 8.6 below, the Customer must notify BHD and their site manager of the perceived inconsistency as soon as practicably possible.
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.
8.8 Any breach of clauses 5, 7, or 8 of this Schedule or of their subclauses by the Customer is grounds for immediate termination of the contract for that Installation Quote by BHD. Termination under this clause may be effected by BHD or its site manager giving verbal or written notice to the Customer of the breach and that BHD is terminating the contract pursuant to this clause.
To support BHD’s commitment to the market and ensure continued compliance with Australian Standard AS4084·2012 where applicable, Beholden Storage Solutions Pty Ltd (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.
1.8 The Express Warranty will not apply to the Product, and other warranties in respect of the Product may be adversely affected, if:
i) the Product 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. Without limiting the generality of this clause, BHD will not be liable for any damage or decline in value to the Product caused by third parties, including during the installation of the Product unless that installation is performed under a contract with BHD;
ii) the Product 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.
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 actions and maintenance as specified by BHD’s service advisors or engineers throughout the Warranty Period.
5. BHD Warranty Exclusions
5.1 The Warranties are subject to clause 13.2 of the Terms.
5.2 Should the Customer or any third party, repair, alter, or modify any Product without the prior written approval of BHD then BHD shall no longer be bound by this
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, and shall not be subject to the Warranties from the time of that removal until the re-certification has been completed.
5 4 BHD may make improvements to Products from time to time. BHD does not have an obligation to apply any such improvements to Products ordered prior to the date the improvement was made, and no Products shall be considered to breach any warranty merely because BHD offers an improved version of those Products, regardless of when BHD first offers those improvements.
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 the balance of probability that the Product is:
(a) unfit for the purpose for which goods of the same kind are commonly supplied;
(b) unacceptable in appearance or finish;
(d) unreasonably lacking in durability 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.
This Warranty is provided by BHD Storage Solutions Pty Ltd, ACN 629 285 061of 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 under this contractual warranty 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 should be advised in writing within 10 working days of the initial detection of the alleged defect and in any event as soon as possible after initial detection. Delay in notifying BHD of detection of a defect may adversely affect a claim in respect of that 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 firstname.lastname@example.org
8.2 A claim should 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. A failure to provide one or more of these details in a claim may result in delays to that claim being processed or adversely affect the decision in that claim.
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, 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 and require answers to questions relating to the subject matter of the claim. BHD is not required to consider a claim under this Warranty unless and until all details reasonably 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 or more of the following:
(i) determine whether to repair or replace the Product, or offer a refund for 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 may 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 Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
to cancel your service contract with us; and
to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
This BHD Returns Policy is supplemental to, and in no way in replacement of, the warranty and claims provisions in these Terms. This Policy governs claims made on an informal basis, and requests for assistance from BHD where the Customer does not have a right to claim such assistance.
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.
4. BHD may refuse to replace Goods, even where those Goods are defective, if the Goods have become damaged or otherwise diminished in value while at the risk of the Customer, unless that damage or diminution of value was caused by BHD, its employees, or its agents.
1. Any charges involved in transporting returned Goods to BHD and, where applicable, back to the Customer will be borne by the Customer.