These terms and conditions apply to and govern the supply by Chilli Promotions Pty Ltd (Chilli Promotions) of goods and or services to the Customer. All orders placed by the Customer, will be subject to these terms and conditions (Terms).
Artwork means the artwork supplied by the Customer to be used by Chilli Promotions in respect of Goods.
Consumer has the meaning provided to it in section 3 of the Australian Consumer Law.
Customer means the person or entity that acquires goods or services from Chilli Promotions
Goods means promotional material and any other goods supplied or to be supplied to the Customer in respect of any agreement.
GST has the same meaning given to it by the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended, varied or modified from time to time.
Intellectual Property means all registered and unregistered rights in respect of patents, copyright, designs, trade marks, trade secrets, know-how, confidential information and all other intellectual property.
Non PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are not of a kind ordinarily acquired for personal, domestic or household use or consumption.
PPSA means the Personal Property Securities Act 2009 (Cth).
PPS Register means the register established under the PPSA.
(a) Prior to placing an order, Chilli Promotions shall provide a quotation for the supply of the requested goods.
(b) Artwork is to be supplied by the Customer in a form as advised by Chilli Promotions.
(c) For large orders Chilli Promotions will provide pre-production samples free of charge. For small orders, pre-production samples are recommended, but will be supplied at the Customer’s cost. Chilli Promotions will advise as to whether any particular order is a large or small order.
3. Variation of order
(a) Orders cannot be cancelled except upon terms which compensate Chilli Promotions for all work done and costs incurred by Chilli Promotions to complete the order to the date of cancellation.
(b) Orders cannot be amended except upon terms as stated by Chilli Promotions which will include payment for any additional work or expense caused by reason of such amendment.
(c) The Customer should take great care in order to ensure that they are ordering the correct size, quantity and branding.
(d) The Customer acknowledges that:
i. Goods advertised on Chilli Promotions’ website, catalogues and/or other promotional material may become unavailable, out of stock or discontinued lines, or changes (of a style nature) may be made from time to time. Chilli Promotions does not guarantee that all goods advertised are in stock or available at the time of order, or that, if the product is available, it is identical to the advertised product;
ii. While all effort is made to match PMS colors it is not always possible to match PMS colors exactly due to differing branding processes and techniques and different product material;
iii. It is not always possible to deliver exact quantities of the product ordered due to availability, quality control and time constraints and Chilli Promotions reserves the right to supply quantities plus or minus 5% of quantity of any product ordered and the price payable by the Customer shall be adjusted accordingly; and
iv. Additional costs/charges will apply to “rush orders”.
4. Payment Terms
(a) Chilli Promotions requires payment at the time of order unless other arrangements are made in writing between Chilli Promotions and the Customer which may include the Customer satisfactorily completing a Credit Application Form and having a satisfactory credit rating and on such other terms as Chilli Promotions may from time to time specify.
(b) Any orders to the value of $10,000 or larger, and/or any offshore produced order will require a 50% deposit be paid at the time of placement of the order. The balance will be prepay or on credit terms if the Customer has been approved for credit.
(c) Chilli Promotions may suspend or cancel any order if the Customer is in breach of these payment terms.
(d) In the event of payment by credit card (Visa, MasterCard, American Express) merchants fees will be on charged to and payable by the Customer. These fees are currently Visa, MasterCard – 2.5%, American Express – 3.5%.
(e) Freight and/or handling charges apply to all deliveries and are payable by the Customer. These fees will be notified of or about the time the order is placed.
Unless expressly stated otherwise, all amounts specified in any agreement have been calculated without regard to GST and do not include GST. Chilli Promotions may recover GST from the Customer as an additional amount payable in respect of any fees or other sums payable by the Customer under these Terms.
6. Title and Risk
Chilli Promotions shall have a general lien on all Goods of the Customer which are in the possession of Chilli Promotions for all sums payable by the Customer to Chilli Promotions and for that purpose shall have the right to sell any such Goods by public auction or private treaty and out of monies arising from the sale, may retain the sum so payable and all charges and expenses relating to the detention and sale. Chilli Promotions can only exercise this right under the lien in the event that i) any amounts invoiced remain unpaid; or ii) an administrator, receiver or liquidator is appointed to manage the affairs of the Customer. The rights of Chilli Promotions under this clause shall survive the termination of the Contract between Chilli Promotions and the Customer, whether by the effusion of time or otherwise.
(a) At any time without prior notice to the Customer but at the Customer’s cost, Chilli Promotions may register in relation to any or all of those rights one or more financing statements/financing change statements on the register maintained under the PPSA.
(b) To any extent Chilli Promotions at any time requests, within 7 days the Customer must do all things necessary to assist such registration(s) and/or ensure the above rights priority over any other security interest (present or future) over the same property.
(a) Words and expressions used in this clause 7 which are not defined in these Terms but are defined in the Personal Property Securities Act 2009 (Cth) (PPSA) have the meaning given to them in the PPSA.
(b) Without limiting anything else in these Terms, the Customer consents to Chilli Promotions effecting a registration on the PPS Register in relation to any security contemplated by these Terms.
(c) The Customer agrees to promptly do all things necessary to ensure that any security interest created under these Terms is perfected and remains continuously perfected, Chilli Promotions’ priority position is preserved or secured and any defect in any security interest, including registration, is overcome.
(d) The Customer must promptly take all reasonable steps which are prudent for their business under or in relation to the PPSA (including doing anything reasonably requested by Chilli Promotions for that purpose in relation to the Goods). Without limiting the foregoing, the Customer must:
i. Create and implement appropriate policies and systems to register a security interest in relation to the Goods where the Customer on sell the Goods to a third party; and
ii. Where appropriate, take reasonable steps to identify Security Interests in relation to the goods in the Customer’s favour and to perfect and protect them, with the highest priority reasonable available.
(e) The Customer must indemnify, and on demand reimburse, Chilli Promotions for all expenses incurred in registering a financing statement or financing change statement on the PPSR, and for the enforcement of any rights arising out of any of Chilli Promotions’ security interests.
(f) The Customer must not change its name, address or contact details without providing prior written notice to Chilli Promotions and must not register a financing change statement or a change demand without Chilli Promotions’ prior written consent.
(g) To the extent that the PPSA permits, the Customer waives its rights to receive a copy of any verification statement or financing change statement; to receive any notice required under the PPSA, including notice of a verification statement; to reinstate the security agreement by payment of any amounts owing or by remedy of any default; and under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 127, 128, 129, 130, 132, 134(2), 135, 136(3), (4) and (5), 137, 142 and 143 of the PPSA.
(h) The Customer may only disclose information or documents, including information of a kind referred to in section 275(1) of the PPSA, if Chilli Promotions has given prior written consent.
(i) This clause 7 survives the termination of these Terms.
8. Returning Goods
(a) Goods must be returned by the Customer’s own courier unless faulty or incorrect;
(b) Goods must be accompanied by either the relevant INVOICE COPY or INVOICE NUMBER;
(c) Any goods that are embellished in any manner, screen printed, embroidered, label changed etc will not be credited and will be returned to the Customer;
(d) Goods cannot be returned for credit after 21 days from despatch date of order (other than returns for breach by Chilli Promotions of the Australian Consumer Law); and
(e) Discrepancy claims against orders will only be accepted within 5 working days from receipt of order.
(a) Chilli Promotions’ warranties
Unless expressly set out herein, all implied warranties and conditions in relation to any supply by Chilli Promotions are expressly excluded (unless such warranties cannot at law be excluded). However, Chilli Promotions shall, if reasonably possible, pass on to the Customer the benefit of any manufacturers’ warranties.
(b) Customer warranties
The Customer warrants and represents to Chilli Promotions that:
i. It is the owner or licensee of the Intellectual Property used in the Artwork for the Goods and it has the right to use, publish, licence or otherwise deal with the Artwork;
ii. The Artwork does not infringe the Intellectual Property or other similar rights of a person or contravene any applicable laws; and
iii. The Customer will indemnify Chilli Promotions against any loss and in respect of any claim alleging that the Artwork or any other material supplied to Chilli Promotions by the Customer infringes Intellectual Property or other similar rights or contravenes any applicable law.
10. Limitation of Liability
(a) Where the Customer acquires Goods and/or Services as a Consumer, nothing in these terms and conditions should be interpreted as attempting to exclude, restrict or modify either the exercise by the Customer of rights or remedies in respect of the Consumer Guarantees or any other rights or remedies conferred by the Australian Consumer Law or the application of the Consumer Guarantees or any other provision of the Australian Consumer Law.
(b) If the Customer acquires Goods and/or Services as a Consumer and the Goods and/or Services supplied are Non PDH Goods or Services, then Chilli Promotions’ liability to the Customer for any claim in respect of a breach or alleged breach by Chilli Promotions of the Consumer Guarantees is limited, at Chilli Promotions’ option to:
i. in the case of Goods:
(A) the replacement of the Goods or the supply of equivalent goods;
(B) the repair of the Goods;
(C) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(D) the payment of the cost of having the Goods repaired; and
ii. in the case of Services:
(A) the supplying of the Services again; or
(B) the payment of the cost of having the services supplied again.
(C) Where the Customer does not acquire Goods and/or Services as a Consumer or where any claim or Loss relates to a non Australian Consumer Law Claim, then to the extent permitted by law, Chilli Promotions excludes all liability for any Loss or claim incurred by Customer in respect of the Goods and/or Services and/or any Non Australian Consumer Law Claim. This clause applies even if Chilli Promotions knew or ought to have known that it was possible or foreseeable that the Customer would incur such Loss.
11. General Provisions
Chilli Promotions may amend these Terms from time to time, by written notice to the Customer, provided that the amended Terms will only apply to orders placed after the date of such notice.