BPC COMMERCIAL PTY LIMITED ABN 69 607 639 476
Terms of Trade for Goods and Services Supplied in Australia
Introduction
Company Information:
BPC Commercial Pty Limited ABN: 69 607 639 476,
Address: 61-65 Geddes St Mulgrave VIC 3170
Acceptance of Terms: By accessing or using our website and/or placing an order for goods or service on the website, you agree to be bound by these Terms of Trade. If you do not agree, you may not use this website
Definitions
- “Goods” refers to tech hardware, such as computers, networking equipment, and other physical technology products.
- “Services” refers to any technical support, maintenance, consulting, or installation services provided by the company.
- “Client” refers to the corporate entity or individual purchasing the goods or services.
- “Website” refers to the company’s online platform used to place orders or access services.
1.Trade Prices
a. Unless otherwise set out in writing, all prices do not include Goods and Services Tax (“GST”).
b. Where possible, BPC Commercial will use its best endeavours to provide the Customer with a fixed price quotation, but the Customer acknowledges and agrees that the BPC Commercial’s costs are subject to factors beyond its control, including but not limited to changes in foreign exchange rates, amounts charged by third party suppliers, compliance costs and transport costs. As such, quotes are subject to change without notice.
c. Credit Terms:
Credit is granted at BPC Commercial’s discretion pursuant to rigorous credit and relevant background checks, and payments for all invoices are due within thirty (30) days from the invoice date, unless otherwise agreed in writing. The Customer’s credit limit will be reviewed periodically, and BPC Commercial reserves the right to adjust or withdraw credit terms based on payment history and account performance. Interest may be charged on overdue accounts, accruing daily from the due date until payment is received.
Certain Customers and/or transactions conducted on a credit basis will be subject to a separate credit terms agreement, this will be at the sole discretion of BPC Commercial. Such credit terms agreements will outline the specific terms and conditions governing the provision of credit. The Customer agrees to abide by the terms of the credit agreement, which must be either signed by both parties and confirmed in writing, including by email, before any credit transactions are processed.
2.Acceptance, Title and Delivery
a. Customer’s Right to Possession:
The Customer’s right to possession of any Supplies does not arise until the delivery of the Supplies and any applicable payment conditions have been met.
b. Risk and Title:
Risk in the Supplies passes to the Customer upon delivery or upon collection by the Customer/Customer agent from BPC Commercial premises, even if the title has not yet passed.
c. Order Acceptance:
BPC Commercial reserves the right to accept or reject any order submitted by the Customer, either in whole or in part. Acceptance of an order is at the sole discretion of BPC Commercial.
d. Liability for Delivery Delays:
BPC Commercial will make every reasonable effort to deliver Supplies within agreed timeframes. However, BPC Commercial is not liable for any loss, damage, or consequential loss or damage arising from third party delays in the delivery of the order or any part thereof.
e. Notification of Damage:
Upon delivery, the Customer must inspect the Supplies and notify the carrier of any damage or suspected damage in writing on the proof of delivery note. The Customer must also notify BPC Commercial in writing within five (5) working days of the delivery.
f. Non-conforming or Incorrect Supplies:
If the Supplies do not conform to the delivery note or are supplied in error; the Customer must notify BPC Commercial within five (5) working days of receipt of the delivery note. Any claim must include details of the delivery note.
g. Proof of Delivery Requests:
Requests by the Customer for proof of delivery must be made to BPC Commercial within seven (7) days from the receipt of the invoice. Any request must include relevant invoice details.
3. Services Performed by BPC Commercial
a. Services Based on Statement of Work:
All services provided by BPC Commercial to the Customer will be governed by a separate Statement of Work (SOW) agreed upon by both parties. The SOW will detail the scope of services, deliverables, timelines, fees, and other relevant terms. No services will be provided unless and until both parties have signed the applicable SOW. Any changes to the scope or nature of services must be agreed to in writing through a revised SOW.
b. Third-Party Warranty:
The Customer acknowledges that any warranty related to Supplies provided by BPC Commercial is offered solely by the third-party manufacturer of the Supplies. BPC Commercial itself does not provide any warranty for the Supplies.
c. Manufacturer Warranty Terms:
All Manufacturer Warranty terms will be made available to the Customer upon request. Alternatively, the Customer can access the Manufacturer Warranty terms directly from the manufacturer.
d. No Obligation to Provide Manufacturer’s Warranty Services:
BPC Commercial has no obligation to provide any services to the Customer under the manufacturer’s warranty for the Supplies.
e. Request for Warranty Services:
Upon the Customer’s request, BPC Commercial may perform warranty services on behalf of the manufacturer for any Supplies provided by BPC Commercial. Such services are subject to the terms of the applicable manufacturer’s warranty.
f. Agency Role for Warranty Services:
The Customer agrees that when BPC Commercial performs any services related to a Manufacturer Warranty, it does so solely as an agent of the manufacturer.
g. Non-Warranty Services:
The Customer may request BPC Commercial to perform additional services not covered by the Manufacturer Warranty. BPC Commercial may agree to provide such non-warranty services, which will be subject to separate terms and conditions, and pricing agreed upon between the parties.
4. Freight and Delivery Charges
The Customer is responsible for the payment of all freight and delivery charges associated with any orders of Supplies. These charges will be calculated based on the delivery method and location specified by the Customer at the time of the order. Any changes to the delivery method or address may result in additional charges. BPC Commercial reserves the right to provide an estimate of these charges prior to dispatch, and the Customer agrees to pay all applicable fees as invoiced.
5. Risk of Carriage, Handling, and Storage
a. Carriage: The risk of loss or damage to the Supplies passes to the Customer upon the Supplies being dispatched from BPC Commercial’s premises. The Customer assumes all risks associated with the carriage of the Supplies, including any loss, damage, or delay occurring during transit, regardless of whether freight and delivery charges are prepaid or payable by the Customer. BPC Commercial is not responsible for any loss or damage once the Supplies leave its premises, and any claims for damage during transit must be made directly with the carrier.
b. Handling: The Customer is responsible for any risks related to the handling of the Supplies upon receipt, including unloading and proper use of any necessary equipment. BPC Commercial will not be liable for any damage caused during the handling of the Supplies by the Customer or its agents.
c. Storage: Once the Supplies are delivered, the Customer assumes full responsibility for their proper storage. The Customer must ensure that the Supplies are stored in suitable conditions to prevent deterioration, damage, or loss. BPC Commercial will not be held responsible for any damage or loss to the Supplies caused by improper storage, including exposure to adverse environmental conditions or failure to follow any specific storage instructions provided.
6. Payment and Title
a. Payment Upon Collection:
Unless BPC Commercial has expressly agreed to extend credit to the Customer, payment for any Supplies is required to be made in cash or bank/account transfer at the time payment is due, or upon collection of any Supplies for which BPC Commercial has performed work.
b. Lien on Supplies:
BPC Commercial reserves the right to retain all or part of the Supplies under a lien until the amount owed by the Customer is paid in full. Payment made by bank/account transfer is not considered complete until the funds have fully cleared and are credited to BPC Commercial’s bank account.
c. Credit Terms:
Where BPC Commercial has agreed to extend credit to the Customer (and for the avoidance of doubt, BPC Commercial is not obligated to extend credit and may withdraw such credit at any time), payment must be made in full in accordance with the written credit terms agreed upon between BPC Commercial and the Customer. In the absence of a written agreement regarding payment terms, if credit has been extended, the payments for all invoices are due within thirty (30) days from the invoice date, with time being of the essence. Payments made by American Express or Diners Club credit cards will incur an additional fee of no less than 3%, which will be added at the time of payment.
d. Queries and Disputes:
All queries or disputes concerning accounts must be raised with BPC Commercial prior to the due date for payment.
e. Consequences of Non-Payment:
If payment for Supplies is not made in full by the due date:
- Any discounts or rebates will lapse, and the Customer must immediately pay the non-discounted price for the Supplies.
- BPC Commercial reserves the right to charge the Customer interest on the overdue balance (both before and after judgment) at a rate of 5% per annum above the current overdraft rate charged by BPC Commercial’s bankers.
- BPC Commercial may, at its discretion, suspend delivery of further Supplies or the performance of any further work until the account is paid in full.
- The Customer agrees to pay and indemnifies BPC Commercial against all costs, fees, damages, and expenses incurred in collecting overdue amounts, including legal costs on a solicitor/client basis and any debt collection agency charges.
f. Retention of Title:
Notwithstanding any credit granted to the Customer or any other provision in these Terms of Trade, BPC Commercial retains full legal and beneficial ownership and title in all Supplies until the purchase price and all other amounts owing to BPC Commercial by the Customer are paid in full.
g. Customer’s Obligations Regarding Supplies:
Until ownership and title in the Supplies pass to the Customer:
- The Customer holds the Supplies as a trustee, fiduciary agent, and bailee for BPC Commercial.
- The Customer must store the Supplies separately, clearly marked to indicate BPC Commercial’s ownership.
- The Customer must not charge, mortgage, or encumber the Supplies in any way.
h. Sale Restrictions and Removal Rights:
In the circumstances described in Clause 6(f), unless otherwise notified in writing, the Customer is not authorised to sell, lease, or otherwise dispose of the Supplies in the ordinary course of business. The Customer irrevocably grants BPC Commercial, or its authorised agents, the right to enter the Customer’s premises to remove any Supplies that are the property of BPC Commercial. The Customer agrees to indemnify and hold harmless BPC Commercial from any loss, damage, or expense arising from such entry and removal.
i. Immediate Payment upon Insolvency Events:
Notwithstanding Clauses 6(b) and 6(d), all payments become immediately due and payable to BPC Commercial if a receiver, receiver and manager, liquidator, provisional liquidator, or administrator is appointed over any of the Customer’s assets or undertaking; if an application is made to the court or a resolution is passed, or an order is made for the winding up or dissolution of the Customer; if the Customer makes or attempts to make an arrangement or composition with creditors or any class of creditors; or if the Customer is declared or taken under any applicable law to be insolvent or commits any act of bankruptcy.
7. Personal Property Securities Act (PPSA) and Security Interests
a. The Customer acknowledges and agrees that these Terms of Trade constitute a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPSA”) and create a security interest in favour of BPC Commercial over all Supplies (including but not limited to, goods and any equipment) provided by BPC Commercial to the Customer, whether now or in the future.
b. The Customer agrees that BPC Commercial may register its security interest on the Personal Property Securities Register (“PPSR”) and waives its right to receive notice of any verification statement or financing statement issued under the PPSA in relation to any registration.
c. The Customer must:
- Provide any information BPC Commercial reasonably requests to complete registration of a financing statement or financing change statement on the PPSR.
- Notify BPC Commercial in writing of any changes to the Customer’s details (including but not limited to changes in name, address, or business structure) at least 14 days before such changes take effect.
- Not register a financing change statement or make any amendment to a financing statement without the prior written consent of BPC Commercial.
- Immediately notify BPC Commercial if any other party attempts to claim a security interest over any Supplies provided by BPC Commercial.
d. The Customer acknowledges that BPC Commercial retains title to all Supplies until full payment has been received, and that BPC Commercial’s security interest continues in the Supplies until full payment is made for the Supplies, or any other amounts due to BPC Commercial.
e. To the extent permitted by the PPSA:
- Sections 142 and 143 of the PPSA, which provide for the redemption of collateral and the reinstatement of security agreements, do not apply; and
- The Customer waives any rights it may have under sections 95, 118, 121, 132, and 135 of the PPSA and any other right to receive notices or statements under the PPSA.
f. The Customer must reimburse BPC Commercial for any costs, expenses, or charges incurred by BPC Commercial in relation to registering or maintaining the registration of any security interest or in enforcing its rights under the PPSA.
g. The Customer must ensure that BPC Commercial’s security interest remains perfected and enforceable, and that the Customer does not create or allow to be created any security interest that ranks equal to or ahead of BPC Commercial’s security interest.
8. Warranties and Liability
a. Manufacturer Warranties:
BPC Commercial will provide the Supplies with any warranties offered by the manufacturer. To the maximum extent permitted by law, BPC Commercial does not provide any warranty of any kind regarding the Supplies, whether express or implied.
b. Limitation of Liability for Supplies:
Any liability of BPC Commercial for loss or damage to the Supplies or any parts thereof is limited, at BPC Commercial’s sole discretion, to the replacement or repair of those Supplies. In the case that the Supplies include services, any liability of BPC Commercial for loss or damage caused by those services is limited to the resupply of such services, at BPC Commercial’s sole discretion.
c. Liability for Faulty or Defective Supplies:
The liability of BPC Commercial for faulty or defective Supplies is limited to the invoice amount for the faulty or defective Supplies as stated in BPC Commercial’s invoice.
d. Complaints Procedure:
Any complaint regarding the Supplies (including complaints about quality) must be accompanied by:
- The Supplies, or a specimen thereof demonstrating the reported defect; and where appropriate, a sample taken from the consignment in its original packaging that includes the reference used for identification.
- Except where an extended period for lodging a complaint has been granted by BPC Commercial, all complaints must be made within fourteen (14) days of delivery of the Supplies.
e. Exclusion of Consequential Loss:
BPC Commercial is not liable to the Customer for any consequential loss or damage, including but not limited to lost profits or business, however that loss or damage is caused. This exclusion of liability encompasses, but is not limited to, losses arising from delays in manufacturing or delivery, faulty installation, unreasonable use, negligence (including a failure to act to prevent loss), faulty design, or any faulty material, equipment, or component part of the Supplies. The exclusion also includes costs incurred in returning the Supplies to BPC Commercial or to any manufacturer.
f. Consumer Law Compliance:
Nothing in these Terms of Trade is intended to contract out of the provisions of the Australian Consumer Law or any other statute that imposes warranties, conditions, or obligations that cannot by law (or which can only to a limited extent by law) be excluded, restricted, or modified. These Terms of Trade must be interpreted to the extent necessary to give effect to this intention.
9. Quality, Packages and Trademarks
a. Quality Assurance:
BPC Commercial warrants that all Supplies provided will conform to the specifications provided by the manufacturer and will be free from defects in material and workmanship at the time of delivery. The Customer acknowledges that any claim regarding quality or performance of the Supplies must be made in accordance with the procedures outlined in Clause 8(d) (Complaints Procedure).
b. Packaging:
All Supplies will be appropriately packaged to ensure protection during transit and storage. BPC Commercial will take reasonable steps to ensure that the packaging meets industry standards. The Customer is responsible for inspecting the packaging upon receipt and must notify BPC Commercial of any damage or defects immediately upon delivery.
c. Trademarks and Intellectual Property:
The Customer acknowledges that all trademarks, trade names, service marks, and logos (collectively, “Trademarks”) used in connection with the Supplies are the exclusive property of BPC Commercial or its licensors. The Customer agrees that it will not, without the prior written consent of BPC Commercial, use, reproduce, or display any of BPC Commercial’s Trademarks in any manner. The Customer further agrees to comply with any guidelines provided by BPC Commercial regarding the use of its Trademarks.
d. Compliance with Laws:
The Customer agrees to use the Supplies in accordance with all applicable laws and regulations, including but not limited to laws related to intellectual property, consumer protection, and safety standards. BPC Commercial will not be liable for any damages or losses resulting from the Customer’s failure to comply with such laws.
e. Indemnity:
The Customer agrees to indemnify and hold harmless BPC Commercial from any claims, damages, losses, or expenses (including legal fees) arising out of or related to the Customer’s breach of this clause, including any unauthorised use of BPC Commercial’s Trademarks.
10. Returns
a. Faulty Installation:
Supplied items that are damaged due to faulty installation by the Customer will not be accepted for return. It is the Customer’s responsibility to ensure proper installation in accordance with the manufacturer’s guidelines.
b. Return of Surplus Supplies:
BPC Commercial may, at its sole discretion, accept the return of Supplies that are surplus to the Customer’s requirements, provided that:
- The Supplies are undamaged and carefully packed in their original packaging, with all original marks and numbers unaltered, and are in a saleable condition;
- The Supplies are returned within seven (7) days of delivery;
- All details of the original invoice accompany the returned Supplies;
- The Supplies are returned at least three (3) months prior to their stated expiry date;
- Prior consent from BPC Commercial has been obtained before the return of the Supplies; and
- The Supplies are returned to BPC Commercial at the Customer’s expense.
c. Handling Fees:
BPC Commercial may charge a handling fee for returned Supplies.
d. Credit for Returned Supplies:
Any Supplies accepted for return by BPC Commercial will be credited to the Customer’s account at the lesser of the actual invoice price or BPC Commercial’s current selling price.
e. Customer Support:
For any inquiries or assistance regarding the return process, the Customer is encouraged to contact BPC Commercial’s customer service team, who will provide guidance and support throughout the returns process.
11. Use of the BPC Commercial Name
a. Permission Required:
The Customer must not use the BPC Commercial name or any associated trademarks in any manner for business purposes without the prior written consent from a BPC Commercial authorised signatory. Unauthorised use may result in legal action.
b. Advertising and Promotion:
When advertising or promoting BPC Commercial’s Supplies, the Customer must consult with BPC Commercial to ensure the proper and authorised use of its trademarks, registered trade names, and other intellectual property. This includes adherence to any branding guidelines provided by BPC Commercial.
c. Ownership of Materials:
All advertising materials, display stands, and Supplies provided to the Customer for its own business use, which are not intended for public distribution, remain the property of BPC Commercial. The Customer agrees to return such materials upon request.
d. No Agency Relationship:
Nothing in these Terms of Trade shall be construed as granting the Customer any authority to act as an agent of BPC Commercial. The Customer does not have the authority to assume or create obligations on behalf of BPC Commercial or to bind BPC Commercial in any manner.
12. GST
a. Definitions:
In this clause, words and expressions defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (the “GST Act”) shall have the same meaning as given in that Act.
b. GST Exclusion:
All amounts payable by the Customer under these Terms of Trade are exclusive of any Goods and Services Tax (GST). If GST is payable on any supply made by BPC Commercial under these Terms of Trade, the Customer shall pay to BPC Commercial, in addition to and at the same time as the payment for the supply, an amount equal to the GST payable on that supply.
c. Reimbursement and Indemnity:
Where the Customer is required by these Terms of Trade to reimburse or indemnify BPC Commercial for any loss or other amount incurred, the amount to be reimbursed or paid will be calculated as follows:
- It will be reduced by the amount of any input tax credit that BPC Commercial is entitled to claim for the loss or amount incurred; and
- It will be increased by the amount of any GST payable by BPC Commercial in respect of the reimbursement or payment.
13. Privacy and Data Collection
a. Acknowledgment of Collection:
The Customer acknowledges and agrees that personal information, as defined in the Privacy Act 1988 (Cth), regarding the Customer may be collected, held, used, and disclosed by BPC Commercial for the purposes outlined in BPC Commercial’s privacy policy. This privacy policy is available on BPC Commercial’s website at www.bpccommercial.com.au/privacy-policy-2/ or can be requested from BPC Commercial.
b. Consent to Use of Personal Information:
The Customer consents to BPC Commercial collecting, holding, using, and disclosing personal information for all purposes specified in BPC Commercial’s privacy policy. This includes, but is not limited to, the following:
- The Customer consents to BPC Commercial, or any financier or credit rating agency, making inquiries and obtaining information regarding the Customer’s financial standing and creditworthiness.
- The Customer authorises BPC Commercial to collect, retain as legally required, and use information about the Customer from any third party for the purpose of assessing the Customer’s creditworthiness.
- The Customer agrees that BPC Commercial may disclose information about the Customer to:
Any person who guarantees, provides insurance, or offers any other credit support in relation to the Customer’s obligations to BPC Commercial; or
Any other person as necessary to enable BPC Commercial to exercise its rights, remedies, and powers under these Terms of Trade.
14. Force Majeure
a. Exemption from Liability:
BPC Commercial shall not be liable for any failure to perform or delay in performing its obligations under these Terms of Trade if such failure or delay results from any event that is beyond its reasonable control. This includes, but is not limited to, acts, events, omissions, or accidents arising from:
- Natural disasters (including, but not limited to, fire, flood, lightning, storm, earthquake, subsidence, or other natural physical disasters);
- Environmental conditions (such as abnormally inclement climate or weather conditions);
- Supply chain disruptions (including failure or shortage of power supplies);
- Social unrest or disturbances (including riot, civil commotion, insurrection, or political instability);
- Armed conflicts (including war, terrorist actions, or threats of such actions);
- Epidemics or pandemics.
b. Notification Requirement:
In the event of a Force Majeure occurrence, BPC Commercial shall notify the Customer in writing as soon as reasonably practicable, providing details of the nature and expected duration of the Force Majeure event.
c. Mitigation of Effects:
BPC Commercial shall take all reasonable steps to mitigate the effects of the Force Majeure event on its ability to perform its obligations under these Terms of Trade.
d. Resumption of Obligations:
Once the Force Majeure event has ceased, BPC Commercial shall resume performance of its obligations under these Terms of Trade as soon as reasonably practicable.
15.General Conditions
a. Precedence of Terms:
These Terms of Trade shall prevail and take precedence over any standard or special terms of trade provided by the Customer for the ordering of Supplies. Any modifications or variations to these Terms of Trade must be expressly stated in writing and agreed to by BPC Commercial in order to be valid.
b. No Waiver of Rights:
The failure of BPC Commercial to enforce any provision of these Terms of Trade or to exercise any right under these Terms of Trade does not constitute a waiver of that provision or right. BPC Commercial’s rights remain enforceable with respect to any subsequent breach or default by the Customer.
c. Severability:
If any provision of these Terms of Trade is held to be invalid, illegal, or unenforceable for any reason, that provision shall be severed, and the remaining provisions shall continue in full force and effect.
d. Governing Law and Jurisdiction:
These Terms of Trade are governed by the laws of the State of Victoria, Australia. Any disputes arising from or in connection with these Terms of Trade shall be submitted to the exclusive jurisdiction of the courts or tribunals located in Melbourne, Victoria.