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.
2.1. Subject to any variation under Condition 12.5, 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 7.2, 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. SERVICE LEVELS, SURCHARGES & FREIGHT
4.1. Amscan shall endeavour to dispatch all orders received for ‘Quick and Compact’ service before 12 midday AEST that same day. Orders received for the ‘Shelf Filler’ service shall be targeted for dispatch within 48 hours of receipt. These objectives are only in relation to orders that have been prepaid by the cutoff time, or for which the order is able to be processed without the buyer being outside of their credit terms (limit or due date).
4.2. Orders under the value of $100 excluding GST will attract a surcharge of $10 plus GST
4.3. If the Buyer requires Amscan to send your order directly to a customer, the Buyer will be responsible for Amscan’s actual cost of freight to deliver that order
4.4. Otherwise, for a standard delivery service (where Amscan nominates the carrier), Amscan will invoice the Buyer a flat rate freight cost which varies by order value, according to the freight charge table published at the time of order
4.5. If the Buyer requests a specific service provider, or an expedited delivery, Amscan may choose to invoice an additional or higher freight charge according to the costs of providing the specified service.
4.6. Amscan only accepts goods returned in the event that they are defective, unless separately agreed in writing. Where such agreement is made, a surcharge of 20% of the order value will be applied as a restocking fee.
5. PRICE AND PAYMENT
5.1. 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:
5.1.1. inclusive of any costs of packaging and carriage, and;
5.1.2. exclusive of GST and any other applicable sales tax or duty which will be added to the sum in question.
5.2. 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.
5.3. Payment is due prior to delivery unless a credit period is agreed in writing by Amscan, or immediately upon termination of the Contract, whichever occurs first.
5.4. 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.
5.5. 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.
6.1. 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.
7.1. 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.
7.2. 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:
7.2.1. 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
7.2.2. 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.
7.3. 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:
7.3.1. 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
7.3.2. 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.
7.4. The Buyer must notify Amscan if not all of the Products scheduled to be delivered are delivered at the time agreed for delivery:
7.4.1. by telephone no later than 48 hours after such time, or
7.4.2. in writing no later than 48 hours after such time
8. RISK AND TITLE
8.1. Risk in the Products will pass to the Buyer on completion of delivery. Delivery of the Products shall be completed on completion of loading of the Goods at Amscan's premises (if being collected) or on the Products arrival at any delivery locations specified in Condition 7.1 (if being delivered).
8.2. Ownership of the Products will not pass to the Buyer until Amscan has received in full (in cash or cleared funds) all sums due to it in respect of:
8.2.1. the Products; and
8.2.2. all other sums which are or which become due to Amscan from the Buyer on any account.
8.3. Until ownership of the Products has passed to the Buyer, the Buyer must:
8.3.1. hold the Products on a fiduciary basis as Amscan’s bailee;
8.3.2. store the Products (at no cost to Amscan) separately from all other Products of the Buyer or any third party in such a way that they remain readily identifiable as Amscan’s property;
8.3.3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and
8.3.4. maintain the Products in satisfactory condition insured on Amscan’s behalf for their full price against all risks to the reasonable satisfaction of Amscan, and will whenever requested by Amscan produce a copy of the policy of insurance.
8.4. The Buyer’s right to possession of the Products will terminate immediately if any of the circumstances set out in Condition 11.1 occur or if Amscan reasonably believes that any such event is about to happen and notifies the Buyer accordingly.
8.5. Amscan will be entitled to recover payment for the Products notwithstanding that title in any of the Products has not passed from Amscan.
8.6. 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.
8.7. 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.
8.8. If the Buyer’s right to possession of the Products terminates in accordance with Condition 8.4, 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.
8.9. On termination of the Contract, howsoever caused, Amscan’s (but not the Buyer’s) rights contained in this Condition 8 will remain in effect.