Terms of Trade
These Terms of Trade and the Quote issued to the Customer form an agreement (Agreement) between DT and the Customer.
1. Definitions
In this Agreement;
a) DT means Van Den Berg Design Team Pty Ltd trading as Designteam ABN 97 050 046 887, and includes any of its employees, contractors, servants, agents, officers, successors and assigns.
b) Customer means the customer named in the Quote, and includes any of its employees, contractors, servants, agents, officers, successors and assigns.
c) Products means all documents and materials created, prepared or provided by DT to the Customer in the course of providing the Services.
d) Services means the services provided by DT to the Customer pursuant to this Agreement which may include design, branding, exhibition and strategic services.
e) Site means the site or sites where Services are carried out by DT at the Customer’s request.
f) Quote means the quotation issued by DT to the Customer.
2. Acceptance of Quotes
2.1 All Quotes issued by DT are issued in Australian dollars and are valid for a period of 7 days from the date of the Quote, unless otherwise indicated in the Quote or withdrawn earlier by DT in its absolute discretion.
2.2 All Quotes are issued by DT subject to visual inspection of the Site.
2.3 The Customer may accept a Quote by signing and returning a copy of the Quote to DT, by confirming to DT in writing that the Quote is accepted, by making payment of any part of the Fees, or by continuing to request that DT provide Products and/or Services following receipt of the Quote. Upon accepting a Quote the Customer will be deemed to have read and understood, and agreed to be bound by, the terms of this Agreement.
2.4 The Customer acknowledges that any terms and conditions attached to or forming part of any purchase order submitted by the Customer will not form part of this Agreement and will not apply to the provision of Products and/or Services by DT to the Customer.
2.5 Upon the Customer accepting a Quote, the Customer will not have any right to vary or cancel the Products and/or Services to be supplied unless otherwise agreed by DT in writing. If DT does agree;
a) To a requested variation to a Quote by the Customer – DT will be entitled to charge the Customer additional fees to those set out in the original Quote.
b) To a requested cancellation of a Quote by the Customer – DT will be entitled to charge the Customer fees which, in the reasonable opinion of DT, are sufficient to cover the costs and expenses which DT has incurred in preparing for the provision of the Products and/or Services and the administrative time spent in connection with the Quote.
3. Customer Acknowledgements
3.1 The Customer acknowledges that Products and/or Services to be provided by DT will be limited to those specified in the Quote.
3.2 The Customer acknowledges and agrees that;
a) If it becomes apparent during the course of providing the Products and/or Services that additional work will be required outside of the Quote, including but not limited to where changes are required due to conditions or constraints at the Site that were not known at the date the Quote was issued, then DT reserves the right to vary the Quote and charge additional fees calculated on the basis set out in the Quote or as otherwise notified by DT to the Customer;
b) In the event that the Customer requests any additional work outside of the Quote, DT will provide an estimate of the additional fees applying and any change to the estimated timing of the Services, which estimate may be accepted or declined by the Customer.
3.3 The Customer acknowledges and agrees that if a Product referred to in the Quote is not available at the time of delivery, DT will have the right to supply an alternative Product of similar value and likeness.
3.4 The Customer acknowledges and agrees that additional fees may be charged by DT if it is necessary to deliver Products to more than one location or a to a different location than originally requested by the Customer.
3.5 The Customer acknowledges and agrees that whilst DT will use reasonable efforts to provide the Products and/or Services in a timely manner, DT will not be responsible for any delays caused by circumstances beyond its control. The Customer acknowledges and agrees that any estimated time for delivery of the Products and/or completion of the Services is an estimate only, and does not constitute any guarantee of delivery or completion by that time.
3.6 The Customer acknowledges and agrees that whilst DT will provide Products and Services in a professional manner, DT will not be deemed to have breached this Agreement, will not have any liability for loss or damage incurred by the Customer, and will be entitled to all Fees for Products and Services provided notwithstanding the fact that a particular outcome (including but not limited to a certain level of leads generated or sales acquired) has not been achieved.
4. Customer Responsibilities
The Customer acknowledges and agrees;
4.1 That the Customer may provide DT with text, images, sound and video recordings, logos, trademarks, content and/or other intellectual property which the Customer wishes to be incorporated in to the Products. The Customer warrants to DT that it owns or holds a valid licence in respect of all such material, and grants to DT a licence to use such material in the Products. The Customer warrants that the use of such material would not breach any laws or third party’s rights, and indemnifies DT against any loss or damage which DT may incur as a result of any claim of infringement.
4.2 That the Customer must be available to communicate with DT and participate in any meetings as requested by DT in order for the Services to be carried out. In the event that the Customer fails to be available and this affects the provision of the Services, this may result in additional services being required outside of the original Quote and will be dealt with in accordance with clause 3.2.
4.3 That the Customer may be consulted at various stages during the provision of the Services, to confirm whether they approve of particular aspects of the Services and/or Products. The Customer agrees that DT will rely on such approvals in continuing to carry out the Services and should the Customer raise a concern or request changes at a later stage, this may result in additional services being required outside of the original Quote and will be dealt with in accordance with clause 3.2.
4.4 That the Customer will provide all such information, details and other assistance as may reasonably be required by DT in order to provide the Services in a timely manner.
4.5 That the Customer must inspect all Products supplied, and any installation completed by DT, and notify DT of any alleged defect, damage or failure to comply with the Quote. Should the Customer fail to notify DT of any alleged defect, damage or failure to comply with the Quote within a reasonable period (as determined by DT in its absolute discretion), then the Products and any installation will be conclusively considered to comply with the Quote and be free of any defect or damage, and the Customer will have no right to raise any dispute in relation thereto.
4.6 That the Customer will be responsible for arranging, at the Customer’s own cost, all necessary licences and approvals, and for meeting all applicable third party requirements (including of Government authorities) to enable DT to provide the Products and/or Services, unless DT expressly agrees in writing that it will be responsible for any such arrangements.
5. Invoicing and Payment
5.1 DT will charge fees as specified in the Quote (the Fees).
5.2 Goods and Services Tax and any other taxes and duties that may be applicable will be charged in addition, except where expressly stated to be included in the Fees.
5.3 The Fees must be paid by the Customer in accordance with the payment terms specified in the Quote.
5.4 The Customer acknowledges that DT will incur time and cost in relation to providing the Products and/or Services from the date the Quote is accepted, and is entitled to be paid all amounts due as per any invoice issued, notwithstanding that the Customer may not yet have received the Services or the Products.
5.5 The Customer agrees that if it fails to make payment in accordance with this clause, or commits any other breach of this Agreement and fails to rectify such breach within 5 business days of being given written notice to do so, DT is entitled to;
a) Suspend provision of any further Products or Services;
b) Immediately terminate this Agreement;
c) Charge interest on all amounts outstanding at the rate of 15% per annum, calculated on a daily basis;
d) Recover all costs and expenses incurred in trying to obtain payment of amounts outstanding, including legal costs on an indemnity basis; and
e) Exercise a lien over all work carried out and Products produced for the Customer until full payment of the Fees and all other monies owing in accordance with this Agreement is received.
6. Title and Risk
6.1 Risk in all Products and any installation completed by DT, passes to the Customer immediately upon delivery or completion of the installation by DT. Risk will at all times thereafter remain with the Customer unless and until DT retakes possession of the Products in accordance with this Agreement or if applicable, completes the packing down of the installation.
6.2 The Customer will be responsible for the Products and any installation, and for any risk of injury or damage to any persons or Products and/or the installation related to or arising out of the Products and/or the installation, or the use of the Products and/or the installation, from the time of delivery of the Products or completion of the installation by DT as applicable.
6.3 The Customer will take all steps necessary to ensure the safety of any users of the Products and any installation, and will be responsible for any misuse, theft or damage thereto.
6.4 The Customer will be required to maintain, at the Customer’s cost, the following insurances as applicable and must provide DT with certificates of currency upon request;
a) Product and Public Liability Insurance: in an amount of $20,000,000;
b) Professional Indemnity Insurance: in an amount of $1,000,000; and
c) Workers Compensation Insurance.
6.5 In relation to Products supplied to the Customer, ownership and property in the Products vests absolutely with DT and does not pass to the Customer until the Customer;
a) Has paid all money owing in relation to the Products in full; and
b) Has paid in full all other monies owing or unpaid by the Customer to DT including monies in respect of Products previously or subsequently supplied to the Customer by DT and all monies owing in accordance with this Agreement.
7. Security Interest
7.1 The Customer grants to DT a security interest in all Products and any installation provided by DT (for the purposes of this clause referred to as Collateral), now and in the future, to secure the payment and performance of all present and future obligations owed by the Customer to DT, including but not limited to the payment of all Fees owing in accordance with this Agreement.
7.2 The security interest granted by the Customer to DT in accordance with this clause is intended to be a purchase money security interest as defined in the Personal Property Securities Act 2009 (Cth) (PPSA), covering the Collateral provided by DT to the Customer. This security interest will attach to the Collateral immediately upon provision to the Customer.
7.3 In the event of default by the Customer of the terms of this Agreement, DT will have all the rights and remedies available under the PPSA, including but not limited to the right to take possession of the Collateral, sell the Collateral, and apply the proceeds to Fees owing in accordance with this Agreement (without limiting any other rights available to DT under this Agreement or at law).
7.4 The Customer agrees to take all necessary steps to ensure the perfection of the security interest granted in this clause, including but not limited to executing any financing statements or other documentation reasonably required by DT, and hereby waives the right to receive any verification statement or notice which may otherwise be required in accordance with the PPSA.
8. Intellectual Property
8.1 For the purpose of this Agreement, Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trademarks, patents and registered designs.
8.2 The Intellectual Property Rights in Products provided by DT to the Customer will pass to the Customer only upon full payment of all Fees owing pursuant to this Agreement by the Customer to DT.
8.3 The Customer acknowledges that in the course of performing the Services, DT may create materials which could be used by DT for the purpose of publicity and/or to promote DT to the general public, including as part of a portfolio of works. The Customer acknowledges and agrees that DT will be entitled to reproduce and publish those materials or part thereof, across all media, without further authorisation by or compensation to the Customer, unless otherwise agreed in writing by both parties prior to the Services being provided.
9. Performance of Services
9.1 The Customer acknowledges and agrees that in the course of providing the Services, DT may utilise the services, equipment and/or facilities of third parties, including subcontractors, in its absolute discretion, without prior notice to or permission from the Customer.
9.2 DT warrants to the Customer that;
a) The Services will be provided with care, skill and diligence;
b) All Products will be supplied in accordance with Australian industry standards;
c) DT will comply with its obligations under Australian workplace health and safety laws; and
d) DT has current Liability and Professional Indemnity insurance policies in place.
10. Confidential Information
10.1 For the purpose of this Agreement, Confidential Information means any information in respect of the business or affairs of the Customer or its clients, employees, contractors or agents that is not in the public domain including, but not limited to, strategy or planning materials, sales information, documents, records, computer files, products and service information, and customer records.
10.2 The Customer acknowledges that DT may require access to its Confidential Information for the purpose of providing Services to the Customer, and DT will take all reasonable steps to ensure that any records of Confidential Information held by DT are secure from any unauthorised use, misuse or disclosure however cannot guarantee that Confidential Information cannot be accessed by an unauthorised person or that unauthorised disclosure will not occur.
10.3 The Customer hereby acknowledges and agrees that DT will not be liable to the Customer or any third party for any loss or damage whatsoever sustained or incurred as a result of any unauthorised access to or disclosure of Confidential Information.
10.4 The Customer hereby indemnifies DT in respect of all claims, actions, demands, suits, loss and/or damage sustained by any person or party whatsoever caused by or in connection with or arising out of any unauthorised access to or disclosure of Confidential Information, and in respect of all costs and charges in connection therewith whether arising under statute or common law.
11. Warranties
All warranties and conditions which may by law be excluded are expressly excluded. Where such warranties or conditions cannot be excluded, modified or restricted, DT’s liability will be limited, at its option, to;
a) Resupplying the Products and/or Services; or
b) Payment of the reasonable cost of resupplying the Products and/or Services.
12. Limitation of Liability
12.1 To the maximum extent permitted by law, DT will not be liable to the Customer or any third party under any circumstances for any loss of profit, interruption to business, injury or death to any person, or for any indirect, incidental or consequential loss and damage sustained or incurred by the Customer, whether such liability arises directly or indirectly as a result of;
a) Any breach by DT of its obligations under this Agreement; or
b) The supply, performance or use of any Products or Services; or
c) Any negligent act or omission or wilful misconduct on the part of DT.
12.2 The Customer hereby indemnifies DT in respect of all claims, actions, demands, suits, loss and/or damages sustained by any person or party whatsoever for injury to any person(s) and/or property caused by or in connection with or arising out of DT providing Products or Services to the Customer or in the carrying out of this Agreement whether caused by any negligent act or omission or wilful misconduct on the part of DT or otherwise, and in respect of all costs and charges in connection therewith whether arising under statute or common law on an indemnity basis.
12.3 The Customer hereby indemnifies DT against any loss or damage which DT may incur, either directly or indirectly, as a result of any breach of this Agreement by the Customer, including any legal costs incurred on an indemnity basis.
12.4 To the extent permitted, and where not otherwise limited or excluded, DT’s aggregate liability to the Customer for any loss or damage arising in relation to the supply of Products, Services and/or this Agreement generally, including arising from any negligence on the part of DT, is limited in the aggregate to the sum paid by the Customer to DT in connection with the subject Products and/or Services.
13. Amendment
DT reserves the right to amend this Agreement by giving the Customer 14 days’ notice in writing.
14. Assignment
DT may transfer, assign and/or subcontract any of the rights and obligations conferred by this Agreement.
15. Cancellation / Rescheduling
15.1 If an event, exhibition or activation with respect to which DT is providing Products and/or Services for the Customer is cancelled or rescheduled outside of either party’s control, the Customer is obliged to notify DT immediately of such cancellation or rescheduling.
15.2 In such circumstances DT will be entitled to charge the Customer for all works completed up to the date of notification, including any materials which had been purchased or ordered by DT on behalf of the Customer, labour costs incurred and time spent by DT in connection with design, project management and administration.
16. Force Majeure
16.1 For the purpose of this Agreement, an event of force majeure means an event or circumstance which is beyond the reasonable control of DT, including but not limited to any act of God, nature, catastrophes, governmental acts, omissions or enactments, national emergency, insurrection, riots, wars, fire, flood, explosion, power failure, strikes, lock-outs, epidemics or pandemics.
16.2 DT will not be held responsible for any delay or failure to provide Services and/or Products, if DT is prevented or delayed in performing its obligation by an event of force majeure.
16.3 If a delay or failure to provide Services and/or Products by DT due to an event of force majeure exceeds 10 business days, then DT will be entitled to cancel the subject Quote by providing the Customer with notice in writing. In such circumstances DT will be entitled to charge the Customer fees which, in the reasonable opinion of DT, are sufficient to cover the costs and expenses which DT has incurred in preparing for the provision of the Products and/or Services and the administrative time spent in connection with the Quote.
17. Severance and Waiver
17.1 If any part of this Agreement is found to be void, unlawful or unenforceable then that part will be deemed to be severed from the Agreement and the severed part will not affect the validity and enforceability of any remaining provisions.
17.2 Any failure by DT to enforce any of the provisions of this Agreement will not be construed as a waiver of such provision or any other provision hereof unless expressly in writing and signed by an authorised representative of DT.
18. Joint and Several Liability
Any covenant, undertaking or agreement in this Agreement given or entered into by two or more persons binds any two or more of them jointly and each of them severally.
19. Entire Agreement
This Agreement supersedes all prior agreements, arrangements or understandings (whether written or verbal) between the parties with respect to the subject matter of this Agreement.
20. Jurisdiction
This Agreement will be deemed to have been made in New South Wales, and will be interpreted and applied worldwide in accordance with the laws of New South Wales, Australia.
21. Notices and Electronic Transactions
21.1 Any communication (including notice) under this Agreement must be in writing, and may be given to a party by leaving it at or express posting it to the party's address as specified in the Quote (or such other address as is known or notified from time to time), or by sending it by email to the Party's email address as specified in the Quote.
21.2 A communication is deemed to be received by a party when left at the party's address or, if given by email, at the time and on the day shown in the electronic confirmation of delivery obtained by the sender.
21.3 A communication given by express post is to be taken to be received if posted within Australia to an Australian address on the business day after posting and in any other case, on the third business day after posting.
21.4 The parties consent and agree that any notice or signature required or permitted to be given in writing pursuant to this Agreement can be given electronically.
22. Dispute Resolution
22.1 If a dispute (Dispute) arises out of or relates to this Agreement (including any dispute as to breach or termination of the Agreement or as to any claim in tort, in equity, or pursuant to any statute), a party may not commence any court, arbitration proceedings or alternative dispute procedure other than as provided for herein relating to the Dispute unless it has complied with the following paragraphs of this clause except where the party seeks urgent interlocutory relief.
22.2 A party claiming that a Dispute has arisen under or in relation to this Agreement must give written notice (Notice) to the other party specifying the nature of the Dispute.
22.3 On receipt of that Notice by that other party, the parties must endeavour in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation, or similar techniques agreed by them.
22.4 If the parties do not agree within 7 days of receipt of the Notice (or such further period as agreed in writing by them) as to the dispute resolution technique and procedures to be adopted; the timetable for all steps in those procedures; and the selection and compensation of the independent person required for such technique; then the parties must mediate the Dispute in accordance with the Mediation Rules of the Law Society of New South Wales, and the President of the Law Society of New South Wales, or the President’s nominee, will select the mediator and determine the mediator’s hourly remuneration.