1.1 “Badger” means BGA National Pty Ltd T/A Badger Australia, its successors and assigns or any person acting on behalf of and with the authority of BGA National Pty Ltd T/A Badger Australia.
1.2 “Buyer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Buyer is a reference to each Buyer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by Badger to the Buyer at the Buyer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between Badger and the Buyer in accordance with clause 6 below.
2.1 The Buyer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Buyer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with Badger’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Buyer and Badger.
2.3 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on Badger’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
3.1 The Buyer acknowledges and agrees that:
(a) Badger does not guarantee the websites performance or availability of any of its Goods; and
(b) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades; and
(c) there are inherent hazards in electronic distribution and as such Badger cannot warrant against delays or errors in transmitting data between the Buyer and Badger including orders, and you agree that to the maximum extent permitted by law, Badger will not be liable for any losses which the Buyer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders.
3.2 Badger reserves the right to terminate your order if it learns that you have provided false or misleading information, interfered with other users or the administration of Badger’s Services, or violated these terms and conditions.
4.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
5.1 The Buyer shall give Badger not less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s name, address, contact phone or fax number/s, or business practice). The Buyer shall be liable for any loss incurred by Badger as a result of the Buyer’s failure to comply with this clause.
6.1 At Badger’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Badger to the Buyer; or
(b) the Price as at the date of delivery of the Goods according to Badger’s current price list; or
(c) Badger’s quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
6.2 Badger reserves the right to change the Price if a variation to Badger’s quotation is requested, including but not limited to where a bulk discount (quantity pricing) has been offered by Badger, and the Buyer subsequently reduces the quantity of Goods ordered.
6.3 Any discounts applicable to the Price shall become null and void if payment is not made by the due date stated on the invoice and/or statement.
6.4 At Badger’s sole discretion a deposit may be required.
6.5 Time for payment for the Goods being of the essence, the Price will be payable by the Buyer on the date/s determined by Badger, which may be:
(a) on placement of the Goods;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Buyer by Badger.
6.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to one and a half percent (1.5%) of the Price), or by any other method as agreed to between the Buyer and Badger.
6.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Buyer must pay to Badger an amount equal to any GST Badger must pay for any supply by Badger under this or any other agreement for the sale of the Goods. The Buyer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Buyer pays the Price. In addition the Buyer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Buyer or the Buyer’s nominated carrier takes possession of the Goods at Badger’s address; or
(b) Badger (or Badger’s nominated carrier) delivers the Goods to the Buyer’s nominated address even if the Buyer is not present at the address.
7.2 At Badger’s sole discretion the cost of delivery is included in the Price.
7.3 Any time or date given by Badger to the Buyer is an estimate only. The Buyer must still accept delivery of the Goods even if late and Badger will not be liable for any loss or damage incurred by the Buyer as a result of the delivery being late.
8.1 Risk of damage to or loss of the Goods passes to the Buyer on Delivery and the Buyer must insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, Badger is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Badger is sufficient evidence of Badger’s rights to receive the insurance proceeds without the need for any person dealing with Badger to make further enquiries.
8.3 If the Buyer requests Badger to leave Goods outside Badger’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Buyer’s sole risk.
8.4 Whilst every care is taken by Badger to carry out the instructions of the Buyer, it is the Buyer’s responsibility to undertake a final proof reading of any customised logos or text to be applied to the Goods. Badger shall accept no liability whatsoever for any errors not picked up and/or corrected by the Buyer in the final proof reading.
9.1 The Buyer acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in Badger’s or manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Buyer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by Badger.
9.2 The Buyer shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
10.1 Badger and the Buyer agree that ownership of the Goods shall not pass until:
(a) the Buyer has paid Badger all amounts owing to Badger; and
(b) the Buyer has met all of its other obligations to Badger.
10.2 Receipt by Badger of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
10.3 It is further agreed that:
(a) until ownership of the Goods passes to the Buyer in accordance with clause 10.1 that the Buyer is only a bailee of the Goods and must return the Goods to Badger on request.
(b) the Buyer holds the benefit of the Buyer’s insurance of the Goods on trust for Badger and must pay to Badger the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Buyer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Buyer sells, disposes or parts with possession of the Goods then the Buyer must hold the proceeds of any such act on trust for Badger and must pay or deliver the proceeds to Badger on demand.
(d) the Buyer should not convert or process the Goods or intermix them with other goods but if the Buyer does so then the Buyer holds the resulting product on trust for the benefit of Badger and must sell, dispose of or return the resulting product to Badger as it so directs.
(e) the Buyer irrevocably authorises Badger to enter any premises where Badger believes the Goods are kept and recover possession of the Goods.
(f) Badger may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Buyer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Badger.
(h) Badger may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Buyer.
11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
11.2 Upon assenting to these terms and conditions in writing the Buyer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Buyer to Badger for Services – that have previously been supplied and that will be supplied in the future by Badger to the Buyer.
11.3 The Buyer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Badger may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 11.3(a)(i) or 11.3(a)(ii);
(b) indemnify, and upon demand reimburse, Badger for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Badger;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of Badger;
(e) immediately advise Badger of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
11.4 Badger and the Buyer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
11.5 The Buyer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.6 The Buyer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7 Unless otherwise agreed to in writing by Badger, the Buyer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.8 The Buyer must unconditionally ratify any actions taken by Badger under clauses 11.3 to 11.5.
11.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
12.1 In consideration of Badger agreeing to supply the Goods, the Buyer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Buyer either now or in the future, to secure the performance by the Buyer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
12.2 The Buyer indemnifies Badger from and against all Badger’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Badger’s rights under this clause.
12.3 The Buyer irrevocably appoints Badger and each director of Badger as the Buyer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Buyer’s behalf.
13.1 The Buyer must inspect the Goods on delivery and must within seven (7) days of delivery notify Badger in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Buyer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Buyer must allow Badger to inspect the Goods.
13.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
13.3 Badger acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Badger makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Badger’s liability in respect of these warranties is limited to the fullest extent permitted by law.
13.5 If the Buyer is a consumer within the meaning of the CCA, Badger’s liability is limited to the extent permitted by section 64A of Schedule 2.
13.6 If Badger is required to replace the Goods under this clause or the CCA, but is unable to do so, Badger may refund any money the Buyer has paid for the Goods.
13.7 If the Buyer is not a consumer within the meaning of the CCA, Badger’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Buyer by Badger at Badger’s sole discretion;
(b) limited to any warranty to which Badger is entitled, if Badger did not manufacture the Goods;
(c) otherwise negated absolutely.
13.8 Subject to this clause 13, returns will only be accepted provided that:
(a) the Buyer has complied with the provisions of clause 13.1; and
(b) Badger has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Buyer’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
13.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, Badger shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Buyer failing to properly maintain or store any Goods;
(b) the Buyer using the Goods for any purpose other than that for which they were designed;
(c) the Buyer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Buyer failing to follow any instructions or guidelines including garment care instructions provided by Badger or written on the garment;
(e) fair wear and tear, any accident, or act of God.
13.10 Badger may in its absolute discretion accept non-defective Goods for return in which case Badger may require the Buyer to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
13.11 Notwithstanding anything contained in this clause if Badger is required by a law to accept a return then Badger will only accept a return on the conditions imposed by that law.
14.1 Where Badger has designed, drawn or developed Goods for the Buyer, then the copyright in any designs and drawings shall remain the property of Badger.
14.2 The Buyer agrees that Badger may (at no cost) use for the purposes of marketing or entry into any competition, any designs, drawings or Goods which Badger has created for the Buyer.
15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Badger’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 If the Buyer owes Badger any money the Buyer shall indemnify Badger from and against all costs and disbursements incurred by Badger in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Badger’s contract default fee, and bank dishonour fees).
15.3 Further to any other rights or remedies Badger may have under this contract, if a Buyer has made payment to Badger, and the transaction is subsequently reversed, the Buyer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Badger under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Buyer’s obligations under this agreement.
15.4 Without prejudice to any other remedies Badger may have, if at any time the Buyer is in breach of any obligation (including those relating to payment) under these terms and conditions Badger may suspend or terminate the supply of Goods to the Buyer. Badger will not be liable to the Buyer for any loss or damage the Buyer suffers because Badger has exercised its rights under this clause.
15.5 Without prejudice to Badger’s other remedies at law Badger shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to Badger shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Badger becomes overdue, or in Badger’s opinion the Buyer will be unable to make a payment when it falls due;
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.
16.1 Badger may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Buyer. On giving such notice Badger shall repay to the Buyer any money paid by the Buyer for the Goods. Badger shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Buyer cancels delivery of Goods the Buyer shall be liable for any and all loss incurred (whether direct or indirect) by Badger as a direct result of the cancellation (including, but not limited to, any loss of profits).
16.3 Cancellation of orders for Goods made to the Buyer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
17.1 The Buyer agrees for Badger to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Buyer in relation to credit provided by Badger.
17.2 The Buyer agrees that Badger may exchange information about the Buyer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Buyer; and/or
(b) to notify other credit providers of a default by the Buyer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Buyer including the Buyer’s repayment history in the preceding two years.
17.3 The Buyer consents to Badger being given a consumer credit report to collect overdue payment on commercial credit.
17.4 The Buyer agrees that personal credit information provided may be used and retained by Badger for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Buyer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
17.5 Badger may give information about the Buyer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Buyer including credit history.
17.6 The information given to the CRB may include:
(a) personal information as outlined in 17.1 above;
(b) name of the credit provider and that Badger is a current credit provider to the Buyer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Buyer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Buyer no longer has any overdue accounts and Badger has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Badger, the Buyer has committed a serious credit infringement;
(h) advice that the amount of the Buyer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
17.7 The Buyer shall have the right to request (by e-mail) from Badger:
(a) a copy of the information about the Buyer retained by Badger and the right to request that Badger correct any incorrect information; and
(b) that Badger does not disclose any personal information about the Buyer for the purpose of direct marketing.
17.8 Badger will destroy personal information upon the Buyer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
17.9 The Buyer can make a privacy complaint by contacting Badger via e-mail. Badger will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Buyer is not satisfied with the resolution provided, the Buyer can make a complaint to the Information Commissioner at www.oaic.gov.au.
18.1 The failure by Badger to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Badger’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of South Australia in which Badger has its principal place of business, and are subject to the jurisdiction of the courts in south Australia.
18.3 Subject to clause 13, Badger shall be under no liability whatsoever to the Buyer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by Badger of these terms and conditions (alternatively Badger’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
18.4 The Buyer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Buyer by Badger nor to withhold payment of any invoice because part of that invoice is in dispute.
18.5 Badger may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
18.6 The Buyer agrees that Badger may amend these terms and conditions at any time. If Badger makes a change to these terms and conditions, then that change will take effect from the date on which Badger notifies the Buyer of such change. The Buyer will be taken to have accepted such changes if the Buyer makes a further request for Badger to provide Goods to the Buyer.
18.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
18.8 The Buyer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.