Terms & Conditions
In these Terms and Conditions the following expressions will have the following meanings unless inconsistent with the context:
Anagram International LLC t/as AMSCAN (ASIA PACIFIC) and/or any member of Amscan's Group
the person(s), firm or company whose order for the Products is accepted by Amscan
any contract between Amscan and the Buyer for the sale and purchase of the Products
means in relation to a company, that company and any other company which, at the relevant time, is that company's holding company, or an associated or related entity (in accordance with s.50 or s.50AAA of the Corporations Act 2001) ,or the subsidiary, of any such holding company
means A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended and any of its regulations, further "GST", "Supply", "Taxable Supply", "Registered" and "Tax Invoice" have the same meaning as in the GST Act.
any products which Amscan supplies to the Buyer (including any of them or any part of them) under a Contract
Terms and Conditions
the standard terms and conditions of sale set out in this document together with any special terms agreed in writing between the Buyer and Amscan.
2. FORMATION AND INCORPORATION
2.1. Subject to any variation under Condition 11.5, the Contract will be upon these Terms and Conditions, to the exclusion of all other terms and conditions and all previous oral or written representations including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order or similar document, whether or not such document is referred to in the Contract.
2.2. Each order will be deemed to be an offer by the Buyer to purchase Products upon these Terms and Conditions. The Contract is formed when the order is accepted by Amscan by way of a written acknowledgement of order. No contract will come into existence until a written acknowledgement of order is issued by Amscan.
2.3. Subject to Condition 6.2, the Buyer may not cancel the Contract. Amscan may cancel the Contract at any time prior to delivery of the Product.
3.1. The quantity and description of the Products will be as set out in Amscan’s acknowledgement of order or Amscan’s or the manufacturer’s specification.
3.2. Amscan may make any change to the specification, design, materials or finishes of the Products which are:
3.2.1. required to conform with any applicable safety, statutory or regulatory requirement; or
3.2.2. do not materially affect their quality or performance.
4. PRICE AND PAYMENT
4.1. The price for the Products will be the price set out in Amscan’s published price list current at the date of acceptance of order and unless otherwise specified in Amscan’s written acknowledgement of order or when Amscan accepts the order is:
4.1.1. inclusive of any costs of packaging and carriage, and;
4.1.2. exclusive of GST and any other applicable sales tax or duty which will be added to the sum in question.
4.2. Amscan may invoice the Buyer for the Products on or at any time after delivery, unless the Products are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Products, in which event Amscan shall be entitled to invoice the Buyer for the price at any time after Amscan has notified the Buyer that the Products are ready for collection or (as the case may be) Amscan has tendered delivery of the Products. Payment is due within 30 days of the date of such invoice, (or such other period of time as is agreed in writing by Amscan), or immediately upon termination of the Contract, whichever occurs first.
4.3. All payments to be made by the Buyer under the Contract will be made in full without any set-off, restriction or condition and without any deduction for or on account of any counterclaim, unless expressly agreed in writing by a director of Amscan.
4.4 If any sum payable under the Contract is not paid when due then, without prejudice to Amscan’s other rights under the Contract, that sum will bear interest from the due date until payment is made in full, both before and after any judgement, at 1.5% per month, calculated and charged monthly and Amscan will be entitled to suspend deliveries of the Products, without notice, until the outstanding amount has been received.
5.1. Amscan may deliver the Products by separate instalments. Each instalment will be a separate Contract and no cancellation or termination of any one Contract relating to an instalment stage will entitle the Buyer to repudiate or cancel any other Contract or instalment. Each separate instalment or stage will be invoiced and paid for in accordance with the provisions of the Contract.
6.1. Delivery of the Products shall be made by the Buyer collecting the Products at Amscan’s premises at any time after Amscan has notified the Buyer that the Products are ready for collection or, if some other place for delivery is agreed by Amscan, by Amscan delivering the Products to that place. In the event that Amscan delivers Products to an address, other than the principal place of business nominated by the Buyer, the Buyer will be responsible and pay all costs of delivery.
6.2. If the Buyer fails to take delivery, or provide any necessary documents, the Products will be deemed to have been delivered and Amscan, without prejudice to its other rights, may at its option:
6.2.1. store or arrange for storage of the Products until actual delivery or sale and charge the Buyer for all related costs and expenses (including, without limitation, storage and insurance); and/or
6.2.2. following written notice to the Buyer, sell any of the Products at the best price reasonably obtainable in the circumstances and charge the Buyer for any shortfall below the price under the Contract.
6.3. Amscan will use reasonable endeavours to deliver each of the Buyer’s orders for the Products within the time agreed when the Buyer places an order and, if no time is agreed, then within a reasonable time, but the time of delivery will not be of the essence. If, despite those endeavours, Amscan is unable for any reason to fulfil any delivery or performance on the specified date, Amscan will be deemed not to be in breach of the Contract, nor (for the avoidance of doubt) will Amscan have any liability to the Buyer for direct, indirect or consequential loss (all three of which terms includes, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused (including as a result of negligence) by any delay or failure in delivery except as set out in this Condition 6.3. If Amscan fail to deliver the Products, Amscan's liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Products. Any delay in delivery will not entitle the Buyer to cancel the order unless and until the Buyer has given 45 days’ written notice to Amscan requiring the delivery to be made and Amscan has not fulfilled the delivery within that period. If the Buyer cancels the order in accordance with this Condition 6.3 then:
6.3.1. Amscan will refund to the Buyer any sums which the Buyer has paid to Amscan in respect of that order or part of the order which has been cancelled; and
6.3.2. the Buyer will be under no liability to make any further payments under Condition 4 in respect of that order or part of the order which has been cancelled.
6.4. The Buyer must notify Amscan if not all of the Products scheduled to be delivered are delivered at the time agreed for delivery:
6.4.1. by telephone no later than 48 hours after such time, or
6.4.2. in writing no later than 48 hours after such time
7.1. Risk in the Products will pass to the Buyer upon Amscan’s delivery to the shipping carrier; it being understood and agreed that such delivery will be completed upon completion of loading of such Products.
7.2. Notwithstanding anything contained herein to the contrary, nothing herein shall relieve Buyer of its obligation to pay Amscan in full all sums due to it in respect of:
7.2.1 the Products; and
7.2.2 all other sums which are or which become due to Amscan from the Buyer on any account.
Nothing contained in this Section 7.2 is intended to waive any of Amscan’s rights or remedies available to it at law or equity, all of which are hereby expressly reserved (including, without limitation, rights to repossession, or to seize, the Products without the consent of the Buyer)
7.3. The Buyer’s right to possession of the Products will terminate immediately if any of the circumstances set out in Condition 10.1 occur or if Amscan reasonably believes that any such event is about to happen and notifies the Buyer accordingly.
7.4. Amscan will be entitled to recover payment for the Products notwithstanding that title in any of the Products has passed, or may have passed, from Amscan to the Buyer
7.5. The Buyer grants Amscan, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
7.6. Where Amscan is unable to determine whether any Products are the products in respect of which the Buyer’s right to possession has terminated, the Buyer will be deemed to have sold all products of the kind sold by Amscan to the Buyer in the order in which they were invoiced to the Buyer.
7.7. If the Buyer’s right to possession of the Products terminates in accordance with Condition 7.4, Amscan shall be entitled to issue the Buyer with a credit note for all or any part of the price of the Products together with value added tax, or GST, thereon.
7.8. On termination of the Contract, howsoever caused, Amscan’s (but not the Buyer’s) rights contained in this Condition 7 will remain in effect.
8. LIABILITY OF AMSCAN
8.1. Amscan warrants that (subject to any other provisions of these Terms and Conditions, or the implied warrants imposed by virtue of the terms of the Competition and Consumer Act 2010 (Cth), that cannot be otherwise excluded) on delivery and for a period of 6 months from the date of delivery the Products will be free from defects in material or workmanship. Amscan shall not be liable for a beach of the warranty in this Condition 8.1 if:
8.1.1. the Products have been improperly altered in any way whatsoever, or have been subject to misuse or unauthorised repair;
8.1.2. the Products have been improperly installed or connected;
8.1.3. any instructions as to storage of the Products have not been complied with in all respects; or
8.1.4. the Buyer has failed to notify Amscan of any defect or suspected defect within 14 days of delivery where the defect should be apparent on reasonable inspection, or within 14 days of the same coming to the knowledge of the Buyer where the defect is not one which should be apparent on reasonable inspection, and in any event no later than 6 months from the date of delivery.
8.2. Subject to Condition 8.1 if any Product does not conform to the warranty in Condition 8.1 Amscan shall refund the price of such Product or if agreed with Amscan replace such Product. If Amscan so requests the Buyer shall return the Product which does not conform with the warranty in Condition 8.1 to Amscan.
8.3. Subject to Conditions 8.6 and 8.7 Amscan’s maximum aggregate liability for any breach of the warranty in Condition 8.1 (whether in contract, tort, breach of statutory duty, restitution or otherwise) will be limited to the price of the Product.
8.4. Any Products which have been replaced will belong to Amscan. Any replacement Products will be warranted under the terms specified in Condition 8.1 for the unexpired portion of the 6 month period from the original date of delivery of the replaced Products.
8.5. In the event of any breach of Amscan’s express obligations under Conditions 6.3, 8.1 8.2 and 8.4 above the remedies of the Buyer will be limited to damages in an amount no greater than the value of the Product.
8.6. Subject to Conditions 6.3 and 8.1 to 8.6, Amscan will be under no liability to the Buyer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in connection with:
8.6.1. any of the Products, or the manufacture or sale or supply, or failure or delay in supply, of the Products by Amscan or on the part of Amscan’s employees, agents or sub-contractors;
8.6.2. any breach by Amscan of any of the express or implied terms of the Contract;
8.6.3. any use made or resale by the Buyer of any of the Products, or of any product incorporating any of the Products; or
8.6.4. any statement made or not made, or advice given or not given, by or on behalf of Amscan Subject to Conditions 6.3 and 8.1 to 8.6, Amscan hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Buyer.
8.7. Each of Amscan’s employees, agents and sub-contractors may rely upon and enforce the exclusions and restrictions of liability in Conditions 6.3, 8.3 and 8.5 to 8.8 in that person’s own name and for that person’s own benefit, as if the words “its employees, agents and sub-contractors” followed the word Amscan wherever it appears in those conditions save each reference in Condition 8.5.1.
8.8. Subject to Conditions 8.2, 8.6 and 8.7 Amscan’s aggregate liability under these conditions (whether in contract by way of indemnity or otherwise) or tort (including negligence) breach of statutory duty restitution or otherwise) for any damage or loss howsoever caused will be limited to the price of the Products except as expressly provided in these Conditions.
8.9. The Buyer acknowledges that the above provisions of this Condition 8 are reasonable and reflected in the price which would be higher without those provisions, and the Buyer will accept such risk and/or insure accordingly.
8.10. Other than the above provision of this Condition 8, no express warranty is given in respect of the Products. All warranties, conditions and representations which are capable of exclusion, and are not implied by virtue of the Competition and Consumer Act 2010 (Cth), or are not expressly contained in Condition 8, are expressly excluded.
8.11. Any Product that has been ordered by the Buyer, which does not form part of Amscan's ordinary Product range and catalogue, or is a special order Product, or is a Product that has been customized for the Buyer, shall not, save for any provision of Competition and Consumer Act 2010 (Cth) (where such provision is not capable is not capable of being excluded), eligible for return,
9. FORCE MAJEURE
Amscan will not be liable to the Buyer for any failure or delay or for the consequences of any failure or delay in performance of the Contract, if it is due to any event beyond the reasonable control of Amscan including, without limitation, acts of God, war, industrial disputes, protests, fire, tempest, explosion, an act of terrorism and national emergencies and Amscan will be entitled to a reasonable extension of time for performing such obligations.
10.1. Amscan may by written notice terminate the Contract immediately if any of the following events happen, or Amscan reasonably believes that such events are about to happen:
10.1.1. the Buyer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts or is insolvent within the meaning of the Corporations Act 2001, or (being a partnership) has any partner to whom any of the foregoing apply;
10.1.2. the Buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Buyer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
10.1.3. (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Buyer, the appointment of an administrator, manager or liquidator, other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
10.1.4. (being an individual) the Buyer is the subject of a bankruptcy petition, notice, or sequestration order;
10.1.5. a creditor or encumbrancer of the Buyer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
10.1.6. (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Buyer;
10.1.7. (being a company) a floating charge holder over the Buyer's assets has become entitled to appoint or has appointed an administrative receiver;
10.1.8. a person becomes entitled to appoint a receiver over the Buyer's assets or a receiver is appointed over the Buyer's assets;
10.1.9. any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Condition 10.1.1 to Condition 10.1.8 (inclusive);
10.1.10. the Buyer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its
10.1.11. the Buyer's financial position deteriorates to such an extent that in the Supplier's opinion the Buyer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
10.1.12. (being an individual) the Buyer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
10.2. The termination of the Contract howsoever arising is without prejudice to the rights, duties and liability of either the Buyer or Amscan accrued prior to termination. The conditions which expressly or impliedly have effect after termination will continue to be in force notwithstanding termination.
11.1. Time for performance of all obligations of Amscan is not of the essence.
11.2. Each right or remedy of Amscan under the Contract is without prejudice to any other right or remedy of Amscan whether under the Contract or not.
11.3. If any condition or part of the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Contract and will be ineffective, without, as far as is possible, modifying any other provision or part of the Contract and this will not affect any other provisions of the Contract which will remain in full force and effect.
11.4. No failure or delay by Amscan to exercise any right, power or remedy will operate as a waiver of it, nor will any partial exercise preclude any further exercise of the same, or of any other right, power or remedy.
11.5. Save as set out in the Contract, these Terms and Conditions may only be varied or amended in writing and signed by a director of Amscan.
11.6. Amscan may assign, delegate, license, hold on trust or sub-contract all or any part of its rights or obligations under the Contract.
11.7. The Contract is personal to the Buyer who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without Amscan’s prior written consent.
11.8. The Contract contains all the terms which Amscan and the Buyer have agreed in relation to the Products and supersedes any prior written or oral agreements, representations or understandings between the parties relating to such Products. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Amscan which is not set out in the Contract. Nothing in this Condition 11.8 will exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently. .
11.9. Any notice in connection with the Contract will be in writing addressed to the other party at its registered office, or principal place of business and will be delivered by hand, or pre-paid ordinary post, or registered post. The notice will be deemed to have been duly served, if delivered by hand, when left at the proper address for service or if made by pre-paid ordinary post, or registered post, 48 hours after being posted.
11.10. The formation, existence, construction, performance, validity and all aspects whatsoever of the Contract or of any term of the Contract will be governed by the laws of the State of NSW. The courts of the state of New South Wales will have exclusive jurisdiction to settle any dispute which may arise out of, or in connection with the Contract. The parties agree to submit to the exclusive jurisdiction of the Courts of the State of NSW and the parties consent to the non-exclusive jurisdiction of the Local Court closest to the Company’s head office.
12.1. 1 To secure the due and punctual payment of the Secured Moneys, under this Contract, the Buyer as owner charges, in favour of the Amscan, all its right, title and interest in, to, under or derived from the Products. The Buyer acknowledges that this charge, is the creation of a security interest, pursuant to Personal Property Securities Act 2009 (Cth) (PPSA):
12.2. In the event that payment is not received from by Buyer, in accordance with Condition 4 of this Contract, the Buyer irrevocably, surrenders and transfers their interest, and title, in the Products to Amscan. The Buyer acknowledges that surrender and transfer of title, is the creation of a security interest, pursuant to Personal Property Securities Act 2009 (Cth) (PPSA):
12.3. The Buyer acknowledges that this Contract constitutes a Security Agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA):
(a) the Buyer grants a Security Interest in the Products to Amscan.
(b) Amscan will register its Security Interest in the Products. , The Buyer acknowledges that Amscan may register its Security Interest as a Purchase Money Security Interest, on the PPS Register;
(c) where the PPSA applies to action taken by Amscan in relation to the Products, the Buyer agrees that:
(i) sections 116(2), 120, 125, 142 and 143 of the PPSA will not apply;
(ii) the Buyer waives its right to receive notices under sections 95, 118(1)(b), 121(4), 123(2), 130, 135, 132(3)(d) and 132(4) and any verification statement; and
(d) the terms “Security Agreement”, “Security Interest”, “Purchase Money Security Interest”, “Collateral” and “PPS Register” in this clause have the same meaning as described to them in the PPSA.
(e) the Buyer undertakes to;
(i) Promptly sign any further documents and or provide Amscan further information which Amscan may required to register a financial statement or financing statement or financing change statement, or register any other document required to be registered by the PPSA.
(ii) Indemnify, and upon demand reimburse, Amscan for all expenses incurred in registering a financing statement of financing change statement on the PPSA.
(f) Confidentiality Agreement: The Buyer and Amscan agree to keep information required under the PPSA, and in particular required by section 275(1) of the PPSA confidential and will not disclose this information to any person or any interested person without written consent from Amscan. This clause constitutes a confidentiality agreement for the purposes of section 275(6)(a) of the PPSA. This clause is subject to the information allowed by section 275(7) of the PPSA, which is to be available to interested persons by law.
(g) The Buyer is not permitted to do any of the following: create or allow another interest (other than the present interest) in any Collateral or Products to be created or dispose of;
1. assign or declare a trust over the Collateral;
2. lease or licence the Collateral;
3. change the nature of the Collateral;
4. permit any of the Collateral to became an accession to any goods except with permission from Amscan;
5. permit any of the Collateral to be commingled with any product or mass that is not Collateral or subject to the Security Agreement;
6. change the location of the Collateral from which the Buyer carries on business;
7. remove or permit the removal of the Collateral to any place outside Australia; and/or
8. part with possession of any of the Collateral except with written agreement from Amscan.
(h) The Buyer irrevocably grants to Amscan the right to enter the Buyers premises to seize its Collateral if Amscan is exercising its rights under section 123 and/or 128 of the PPSA. If such an exercise takes place, the Buyer agrees to keep Amscan indemnified against any claims as a result of such exercise.
(i) Any provision , or sub-section within this Condition 12, which is found to be invalid or unenforceable in any jurisdiction will, for the purposes of that jurisdiction, be read down, if possible, so as to be valid and enforceable, or otherwise severed to the extent of the invalidity or unenforceability, without affecting the validity or enforceability of the remaining provisions of this Condition 12, or of that provision in any other jurisdiction.
13. GOODS & SERVICES TAX (GST)
13.1. Amscan reserves the right, upon production of a Tax Invoice, to recover from the Buyer any Goods and Services Tax (GST) payable in respect of supply of Products. Unless expressly included all amounts of consideration expressed or described in any quotation or agreement are exclusive of GST. The Buyer must pay an additional amount equal to any applicable GST. The additional amount must be paid when the other consideration is payable or at any earlier time that the Amscan is obliged to pay or allow credit for the GST.
14. PRIVACY INFORMATIOM
14.1 Amscan may give information about the Buyer, its guarantors, directors or proprietors to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Buyer, its guarantors, directors or proprietors;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer, its guarantors, directors or proprietors; and
(c) to obtain commercial credit information about the Buyer, its guarantors, directors or proprietors from a credit reporting agency.
15. INTELLECTUAL PROPERTY
15.1 Where Products are manufactured to the Buyers specifications, the Buyer indemnifies Amscan against any liability to or action by a third party for infringement or alleged infringement of any patent, registered design, trademark or copyright. The supply of Products to the Buyer does not grant the Buyer any intellectual property rights in or related to the Products, the services of Amscan, or any supplier’s trade-marks, all of which remain the exclusive property of Amscan or the supplier. The Buyer acknowledges that the manufacturer or licensor of the Products may retain intellectual property and licensing rights in the Products. The Buyer accepts the Products subject to the terms and conditions specified by the manufacturer or licensor of the Products and the Buyer agrees to indemnify Amscan for any liability suffered by it to a manufacturer or licensor that may arise from the breach thereof. The Buyer agrees to promptly notify Amscan if the Buyer becomes aware of the actual or possible infringement of any intellectual property or licensing rights in the Products by any person.
16. PRODUCT INFORMATION, PHOTOS AND IMAGES
16.1 The Product range on Amscan’s website may vary from any printed catalogues. Product information, photos and images may differ from the actual Products. Photos and images on the website and in printed material are for general illustration purposes only.
17.1 Unless agreed in writing, all payments to Amscan, and all invoices issued by Amscan, will be in Australian Dollars ($AUD). Payments remitted to Amscan in a foreign currency (not $AUD) must include all related and consequential bank charges, currency conversation costs (regardless of market fluctuations or exchange rates) and all other costs that may be incidental to or flowing from a non $AUD payment.