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Terms & Conditions

Definitions
1.1 OMEGA means Pemberley House Pty Ltd T/A Omega Labels or Omega Promotions, its successors and assigns or any person acting on behalf of and with the authority of Pemberley House Pty LtdT/A Omega Labels or Omega Promotions
1.2 Client means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally..
1.3 Goods means all Goods or Services supplied by OMEGA to the Client at the Clients request from time to time (where the context so permits the termsGoods or Services shall be interchangeable for the other and shall include the supply of any product as requested by the client
1.4 Materials shall mean any item(s) supplied by the Client to OMEGA including but not limited to digital files, samples, or storage devices to facilitate OMEGA to supply any service.
1.5 Price means the Price payable for the Goods as agreed between OMEGA and the Client in accordance with clause 4 below.
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with OMEGAs consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and OMEGA.
3. Change in Control
3.1 The Client shall give OMEGA not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Clients details (including but not limited to, changes in the Clients name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by OMEGA as a result of the Clients failure to comply with this clause.
4. Price and Payment
4.1 At OMEGAs sole discretion the Price shall be either:
(a) as indicated on any invoice provided by OMEGA to the Client; or
(b) OMEGAs quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 OMEGA reserves the right to change the Price if a variation to OMEGAs quotation is requested. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties or as a result of increases to OMEGA in the cost of materials and labour) will be charged for on the basis of OMEGAs quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At OMEGAs sole discretion a non-refundable deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by OMEGA, which may be:
(a) on completion of the Services;
(b) by way of instalments/progress payments in accordance with OMEGAs payment schedule;
(c) thirty (30) days following the end of the month in which a statement is posted to the Clients address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by OMEGA.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to three percent (3%) of the Price), or by any other method as agreed to between the Client and OMEGA.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to OMEGA an amount equal to any GST OMEGA must pay for any supply by OMEGA under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client 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.
5. Delivery of Goods
5.1 Delivery (Delivery) of the Goods is taken to occur at the time that:
(a) the Client or the Clients nominated carrier takes possession of the Goods at OMEGAs address; or
(b) OMEGA (or OMEGAs nominated carrier) delivers the Goods to the Clients nominated address even if the Client is not present at the address.
5.2 At OMEGAs sole discretion the cost of delivery is included in the Price.
5.3 OMEGA may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.4 Any time or date given by OMEGA to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and OMEGA will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
6. Risk
6.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, OMEGA is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by OMEGA is sufficient evidence of OMEGAs rights to receive the insurance proceeds without the need for any person dealing with OMEGA to make further enquiries.
6.3 If the Client requests OMEGA to leave Goods outside OMEGAs premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Clients sole risk.
6.4 The Client acknowledges that any printing supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. OMEGA will make every effort to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
6.5 OMEGA shall not be liable for any damage caused (at any stage of the printing process) to the Materials, or loss incurred by the Client. The Client must notify any alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow OMEGA to inspect the Goods. The Client must at all times confirm that the goods are in every way suitable to the expected use. As the use and application is beyond the control of OMEGA, the product is not warranted, and no consequential damages will be covered under any event. Total liability of OMEGA is limited to the cost of the goods in any event.
7. Title
7.1 OMEGA and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid OMEGA all amounts owing to OMEGA; and
(b) the Client has met all of its other obligations to OMEGA.
7.2 Receipt by OMEGA 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.
7.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 7.1 that the Client is only a bailee of the Goods and must return the Goods to OMEGA on request.
(b) the Client holds the benefit of the Clients insurance of the Goods on trust for OMEGA and must pay to OMEGA the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client 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 Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for OMEGA and must pay or deliver the proceeds to OMEGA on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of OMEGA and must sell, dispose of or return the resulting product to OMEGA as it so directs.
(e) the Client irrevocably authorises OMEGA to enter any premises where OMEGA believes the Goods are kept and recover possession of the Goods.
(f) OMEGA may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client 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 OMEGA.
(h) OMEGA may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
8. Personal Property Securities Act 2009 (PPSA)
8.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
8.2 Upon assenting to these terms and conditions in writing the Client 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 that have previously been supplied and that will be supplied in the future by OMEGA to the Client.
8.3 The Client 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 OMEGA 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 8.3(a)(i) or
8.3(a)(ii);
(b) indemnify, and upon demand reimburse, OMEGA 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 OMEGA;
(d) not register, or permit to be registered, a financing statement or afinancing change statement in relation to the Goods in favour of a third party without the prior written consent of OMEGA;
(e) immediately advise OMEGA 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.
8.4 OMEGA and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
8.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
8.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
8.7 Unless otherwise agreed to in writing by OMEGA, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8.8 The Client must unconditionally ratify any actions taken by OMEGA under clauses 8.3 to 8.5.
8.9 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.
9. Security and Charge
9.1 In consideration of OMEGA agreeing to supply the Goods, the Client 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 Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
9.2 The Client indemnifies OMEGA from and against all OMEGAs costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising OMEGAs rights under this clause.
9.3 The Client irrevocably appoints OMEGA and each director of OMEGA as the Clients true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Clients behalf.
10. Defects, Warranties and Returns, Competition and Consumer Act
2010 (CCA)

10.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify OMEGA in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow OMEGA to inspect the Goods. The Client must at all times confirm that the goods are in every way suitable to the expected use. As the use and application is beyond the control of OMEGA, the product is not warranted, and no consequential damages will be covered under any event. Total liability of OMEGA is limited to the cost of the goods in any event. Omega is not liable for any indirect or consequential losses or expenses suffered by the Client or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
The Client acknowledges that:
A) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by OMEGA in relation to the goods or services or their use or application.
B) it has not made known, either expressly or by implication, to OMEGA any purpose for which it requires the goods and services and it has the sole responsibility of satisfying itself that the goods or services are suitable for the use of the Client.
10.2 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).
10.3 OMEGA acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
10.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, OMEGA makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. OMEGAs liability in respect of these warranties is limited to the fullest extent permitted by law.
10.5 If the Client is a consumer within the meaning of the CCA, OMEGAs liability is limited to the extent permitted by section 64A of Schedule 2.
10.6 If OMEGA is required to replace the Goods under this clause or the CCA, but is unable to do so, OMEGA may refund any money the Client has paid for the Goods.
10.7 If the Client is not a consumer within the meaning of the CCA, OMEGAs 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 Client by OMEGA at OMEGAs sole discretion;
(b) limited to any warranty to which OMEGA is entitled, if OMEGA did not manufacture the Goods;
(c) otherwise negated absolutely.
10.8 Subject to this clause 10, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 10.1; and
(b) OMEGA has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Clients 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.
10.9 Notwithstanding clauses 10.1 to 10.8 but subject to the CCA, OMEGA 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 Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client 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 Client failing to follow any instructions or guidelines provided by OMEGA;
(e) fair wear and tear, any accident, or act of God.
10.10 Notwithstanding anything contained in this clause if OMEGA is required by a law to accept a return then OMEGA will only accept a return on the conditions
imposed by that law.
11. Intellectual Property
11.1 Where OMEGA has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of OMEGA.
11.2 The Client warrants that all designs, specifications or instructions given to OMEGA will not cause OMEGA to infringe any patent, copyright, registered design or trademark in the execution of the Clients order and the Client agrees to indemnify OMEGA against any action taken by a third party against OMEGA in respect of any such infringement.
11.3 The Client agrees that OMEGA may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings
or Goods which OMEGA has created for the Client.
12. Default and Consequences of Default
12.1 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 OMEGAs sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 If the Client owes OMEGA any money the Client shall indemnify OMEGA from and against all costs and disbursements incurred by OMEGA in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, OMEGAs collection agency costs, and bank dishonour fees).
12.3 Without prejudice to any other remedies OMEGA may have, if at any time the Client is in breach of any obligation (including those relating to payment)
under these terms and conditions OMEGA may suspend or terminate the supply of Goods to the Client. OMEGA will not be liable to the Client for any loss or damage the Client suffers because OMEGA has exercised its rights
under this clause.
12.4 Without prejudice to OMEGAs other remedies at law OMEGA shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled
and all amounts owing to OMEGA shall, whether or not due for payment, become immediately payable if:
(a) any money payable to OMEGA becomes overdue, or in OMEGAs opinion the Client will be unable to make a payment when it falls due;
(b) the Client 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 Client or any asset of the Client.
13. Cancellation
13.1 OMEGA 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 Client. On giving such notice OMEGA shall repay to the Client any money paid by the Client for the Goods. OMEGA shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by OMEGA as a
direct result of the cancellation (including, but not limited to, any loss of profits).
13.3 Cancellation of orders for Goods made to the Clients specifications, or for non-stocklist items, will definitely not be accepted once production has
commenced, or an order has been placed.
14. Privacy Act 1988
14.1 The Client agrees for OMEGA to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to
credit provided by OMEGA.
14.2 The Client agrees that OMEGA may exchange information about the Client with those credit providers either named as trade referees by the Client or
named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Clients creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the
Privacy Act 1988.
14.3 The Client consents to OMEGA being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4 The Client agrees that personal credit information provided may be used and retained by OMEGA for the following purposes (and for other purposes as shall be agreed between the Client and OMEGA or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by OMEGA, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Clients credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Clients account and/or the collection of amounts outstanding in the Clients account in relation to the Goods.
14.5 OMEGA may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
14.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Clients name, sex, address, previous addresses, date of birth, name of employer and drivers licence
number);
(b) details concerning the Clients application for credit or commercial credit and the amount requested;
(c) advice that OMEGA is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Clients overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of OMEGA, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by OMEGA has been paid or otherwise discharged.
15. Unpaid Sellers Rights
15.1 Where the Client has left any item with OMEGA for repair, modification, exchange or for OMEGA to perform any other service in relation to the item and OMEGA has not received or been tendered the whole of any moneys
owing to it by the Client, OMEGA shall have, until all moneys owing to OMEGA are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
15.2 The lien of OMEGA shall continue despite the commencement of proceedings, or judgment for any moneys owing to OMEGA having been obtained against
the Client.
16. General
16.1 The failure by OMEGA to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect OMEGAs
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.
16.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which OMEGA has its principal place of
business, and are subject to the jurisdiction of the courts of Leeton, New South Wales.
16.3 Subject to clause 10 OMEGA shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by OMEGA of these terms and conditions (alternatively OMEGAs liability shall be limited to damages which under no circumstances shall exceed the Price of the
Goods).
16.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by OMEGA nor to withhold payment of any invoice because part of that invoice is in dispute.
16.5 OMEGA may license or sub-contract all or any part of its rights and obligations without the Clients consent.
16.6 The Client agrees that OMEGA may amend these terms and conditions at any time. If OMEGA makes a change to these terms and conditions, then that
change will take effect from the date on which OMEGA notifies the Client of such change. The Client will be taken to have accepted such changes if the
Client makes a further request for OMEGA to provide Goods to the Client.
16.7 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.
16.8 The Client 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.
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