Terms of Trade

Terms of Trade – Orders

1. Definitions

1.1 “Blush” means Blush Photography Pty Ltd ATF Blush Busness Trust T/A Blush Creative, its successors and assigns or any person acting on behalf of and with the authority of Blush Photography Pty Ltd ATF Blush Busness Trust T/A Blush Creative.

1.2 “Client” means the person/s requesting Blush to provide the Services as specified in any invoice, document or order, and if there more than one person requesting the Services is a reference to each person jointly and severally.

1.3 “Incidental Items” means any goods, digital images, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by Blush in the course of it conducting, or supplying to the Client, any Services.

1.4 “Services” means all Services supplied by Blush to the Client at the Client’s request from time to time.

1.5 “Price” means the price payable for the Services as agreed between Blush and the Client in accordance with clause 4 of this contract.

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 Services provided by Blush.

2.2 These terms and conditions may only be amended with Blush’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Blush.

2.3 In the event that Client does not collect the Goods from Blush as agreed, Blush shall be free to dispose of them at the end of twelve months after advising the Client that the Goods are ready for collection and the Client accepts Blush will retain any proceeds gained (if any) from such disposal to cover Blush’s costs in holding and handling such items.

3. Change in Control

3.1 The Client shall give Blush 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 Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Blush as a result of the Client’s failure to comply with this clause.

4. Price and Payment

4.1 At Blush’s sole discretion the Price shall be either: (a) as indicated on any invoice/order form provided by Blush to the Client; or (b) the Price as at the date of delivery of the Services according to Blush’s current price list; or (c) Blush’s 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 Blush reserves the right to change the Price if a variation to Blush’s quotation/order form is requested.

4.3 At Blush’s sole discretion a non-refundable deposit may be required.

4.4 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by Blush, which may be: (a) on delivery of the Services; (b) before delivery of the Services (at least a 50% deposit is required on the day of placing the order and signing the contract; (c) by lay-by (special conditions apply refer clause 5); (d) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices; (e) the date specified on any invoice or other form as being the date for payment; or (f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Blush.

4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card – excluding American Express and Diners (plus a surcharge of up to two percent (2%) of the Price), or by any other method as agreed to between the Client and Blush.

4.6 Unless otherwise stated the Price noted on the contract/order form includes GST. The Client must pay to Blush an amount equal to any GST Blush must pay for any supply by Blush under this or any other agreement for providing Blush’s Services. 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. Lay-by Conditions

5.1 In the event that the Client purchases the Incidental Items on lay-by then these terms and conditions shall be deemed to be a lay-by agreement.

5.2 Blush and the Client agree that ownership of the Incidental Items shall not pass until: (a) the Client has paid Blush all amounts owing to Blush; and (b) the Client has met all of its other obligations to Blush.

5.3 The lay-by agreement shall commence upon payment by the Client to Blush of a deposit of twenty-five percent (20%) of the Price of the Goods and final payment for the Incidental Items on lay-by shall be due no later than twelve weeks after the deposit is paid.

5.4 In the event that the lay-by agreement is cancelled by the Client (cancellation must be submitted in writing) and provided Blush has not breached any terms of the agreement then Blush shall refund all monies paid to date less a twenty percent (50%) cancellation fee to cover Blush’s reasonable costs in relation to the agreement (including but not limited to, materials, labour, storage and administrative costs). Upon cancellation of the lay-by agreement by the Client Blush shall refund to the Client all monies already paid to Blush for the lay-by Goods less the cancellation fee.

6. Delivery of Services

6.1 At Blush’s sole discretion delivery of the Services shall take place when: (a) the Services or products are supplied to the Client at Blush’s address; or (b) the Services are supplied to the Client at the Client’s nominated address.

6.2 At Blush’s sole discretion the cost of delivery (via Registered Post) is in addition to the Price, minimum charge is twenty dollars ($20.00).

6.3 Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.

6.4 Blush may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.

6.5 Any time specified by Blush for delivery of the Services is an estimate only and Blush will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that Blush is unable to supply the Services as agreed solely due to any action or inaction of the Client then Blush shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.

7. Risk

7.1 Irrespective of whether Blush retains ownership of any Incidental Items all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as Blush may repossess the Incidental Items in accordance with clause 8.3(f). The Client must insure all Incidental Items on or before delivery.

7.2 Blush reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Client’s failure to insure in accordance with clause 7.1.

8. Title

8.1 Blush and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until: (a) the Client has paid Blush all amounts owing for the Services; and (b) the Client has met all other obligations due by the Client to Blush in respect of all contracts between Blush and the Client.

8.2 Receipt by Blush 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 and until then Blush’s ownership or rights in respect of the Incidental Items shall continue.

8.3 It is further agreed that: (a) the Client is only a bailee of the Incidental Items and must return the Incidental Items to Blush immediately upon request by Blush; (b) the Client holds the benefit of the Client’s insurance of the Incidental Items on trust for Blush and must pay to Blush the proceeds of any insurance in the event of the Incidental Items being lost, damaged or destroyed; (c) the Client must not sell, dispose, or otherwise part with possession of the Incidental Items. If the Client sells, disposes or parts with possession of the Incidental Items then the Client must hold the proceeds of sale of the Incidental Items on trust for Blush and must pay or deliver the proceeds to Blush on demand. (d) the Client should not convert or process the Incidental Items 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 Blush and must dispose of or return the resulting product to Blush as Blush so directs. (e) the Client shall not charge or grant an encumbrance over the Incidental Items nor grant nor otherwise give away any interest in the Incidental Items while they remain the property of Blush; (f) the Client irrevocably authorises Blush to enter any premises where Blush believes the Incidental Items are kept and recover possession of the Incidental Items.

9. Personal Property Securities Act 2009 (“PPSA”)

9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

9.2 Upon assenting to these terms and conditions in writing the Buyer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in: (a) all Incidental Items previously supplied by Blush to the Buyer; (b) all Incidental Items will be supplied in the future by Blush to the Buyer; and (c) all the Buyer’s present and after acquired property being a charge, including anything in respect of which the Buyer has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Buyer to Blush for Services – that have previously been provided and that will be provided in the future by Blush to the Buyer.

9.3 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 Blush 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 9.2(a)(i) or 9.2(a)(ii); (b) indemnify, and upon demand reimburse, Blush 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 Incidental Items charged thereby; (c) not register a financing change statement in respect of a security interest without the prior written consent of Blush; (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items in favour of a third party without the prior written consent of Blush.

9.4 Blush 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.

9.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

9.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

9.7 Unless otherwise agreed to in writing by Blush, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

9.8 The Client must unconditionally ratify any actions taken by Blush under clauses 9.2 to 9.5.

9.9 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.

10. Security and Charge

10.1 In consideration of Blush agreeing to supply Services, 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).

10.2 The Client indemnifies Blush from and against all Blush’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Blush’s rights under this clause.

10.3 The Client irrevocably appoints Blush and each director of Blush as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf.

11. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)

11.1 The Client must inspect Blush’s Services on completion of the Services and must within fourteen (14) days notify Blush in writing of any evident defect in the Services or Incidental Items provided (including Blush’s workmanship) or of any other failure by Blush to comply with the description of, or quote for, the Services which Blush was to supply. The Client must notify any other alleged defect in Blush’s Services or Incidental Items as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Blush to review the Services or Incidental Items that were provided.

11.2 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).

11.3 Blush acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

11.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Blush makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. Blush’s liability in respect of these warranties is limited to the fullest extent permitted by law.

11.5 If the Client is a consumer within the meaning of the CCA, Blush’s liability is limited to the extent permitted by section 64A of Schedule 2.

11.6 If Blush is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then Blush may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Incidental Items which have been provided to the Client which were not defective.

11.7 If the Client is not a consumer within the meaning of the CCA, Blush’s liability for any defective Services or Incidental Items is: (a) limited to the value of any express warranty or warranty card provided to the Client by Blush at Blush’s sole discretion; (b) otherwise negated absolutely.

11.8 Notwithstanding clauses 11.1 to 11.7 but subject to the CCA, Blush 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 Incidental Items; (b) the Client using the Incidental Items for any purpose other than that for which they were designed; (c) the Client continuing to use any Incidental Item after any defect became apparent or should have become apparent to a reasonably prudent operator or user; (d) interference with the Services by the Client or any third party without Blush’s prior approval; (e) the Client failing to follow any instructions or guidelines provided by Blush; (f) fair wear and tear, any accident, or act of God.

12. Intellectual Property

12.1 Blush shall retain ownership of the copyright to all Incidental Items (including, but not limited to, photographic prints, digital images, and negatives) produced by Blush during the course of the Services. The Client shall only have a licence to use such Incidental Items for the purposes stated in the Client’s brief supplied (such as their own promotional and/or personal use), and the quotation accepted by the Client and is not entitled to any additional use without Blush’s express approval in writing.

12.2 The Client shall not edit, deface or otherwise modify the Incidental Items, or use of, in any way that may be deemed to be defamatory, insulting or used in a negative way. In such an event, Blush shall be entitled to seek compensation from the Client for any unauthorised use of such Incidental Items, or any other breach of this clause 12.

12.3 If the Client requests to obtain the copyright to designs, photographs, drawings and/or documents, then Blush may (at its sole discretion) supply the Client full copyright ownership of the materials subject to the Client agreeing to pay a fee as specified by Blush. Any such agreement must be in writing between both parties.

12.4 The Client warrants that all designs, specifications or instructions and/or any props or images given to Blush will not cause Blush to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Blush against any action taken by a third party against Blush in respect of any such infringement.

12.5 The Client understands that by placing any Incidental items online (i.e. website or social media platform) such information may be accessible to all internet users and in doing so the Incidental Items could be subject to copyright infringement or other wrongful activity. The Client assumes full responsibility for their use of the Services provided by Blush, and the Client agrees to indemnify Blush against any action taken by a third party against Blush in respect of any such infringement.

12.6 The Client agrees that Blush may (at no cost) use for the purposes of marketing or entry into any competition, any designs, photographs, images or Incidental Items which Blush has created for the Client.

12.7 If the Client is in breach of any obligation under these terms and conditions (including those relating to payment), Blush may revoke the licence referred to in clause 12.1.

13. Default and Consequences of Default

13.1 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 Blush’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

13.2 If the Client owes Blush any money the Client shall indemnify Blush from and against all costs and disbursements incurred by Blush in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Blush’s contract default fee, and bank dishonour fees).

13.3 Without prejudice to any other remedies Blush may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Blush may suspend or terminate the supply of Services to the Client. Blush will not be liable to the Client for any loss or damage the Client suffers because Blush has exercised its rights under this clause.

13.4 Without prejudice to Blush’s other remedies at law Blush shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Blush shall, whether or not due for payment, become immediately payable if: (a) any money payable to Blush becomes overdue, or in Blush’s 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.

14. Cancellation

14.1 Blush may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client (24 hours from signing the Order Form/Contract). On giving such notice Blush shall repay to the Client any money paid by the Client for the Services. Blush shall not be liable for any loss or damage whatsoever arising from such cancellation.

14.2 In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by Blush as a direct result of the cancellation (including, but not limited to, any loss of profits).

14.3 Cancellation of orders will definitely not be accepted once an order has been placed and/or where the Client is in receipt of the Incidental Items or part thereof, whichever occurs first.

14.4 Cancellation of a lay-by agreement must be provided in writing in accordance with clause 5 and shall be subject to the agreed cancellation fee.

15. Privacy Act 1988

15.1 The Client agrees for Blush to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by Blush.

15.2 The Client agrees that Blush may exchange information about the Client with those credit providers and with related body corporates 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 including the Client’s repayment history in the preceding two years.

15.3 The Client consents to Blush being given a consumer credit report to collect overdue payment on commercial credit.

15.4 The Client agrees that personal credit information provided may be used and retained by Blush for the following purposes (and for other agreed purposes or required by): (a) the provision of Services; and/or (b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or (d) enabling the collection of amounts outstanding in relation to the Services.

15.5 Blush may give information about the Client to a CRB for the following purposes: (a) to obtain a consumer credit report; (b) allow the CRB to create or maintain a credit information file about the Client including credit history.

15.6 The information given to the CRB may include: (a) personal information as outlined in 15.1 above; (b) name of the credit provider and that Blush is a current credit provider to the Client; (c) whether the credit provider is a licensee; (d) type of consumer credit; (e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested); (f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Blush has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments); (g) information that, in the opinion of Blush, the Client has committed a serious credit infringement; (h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

15.7 The Client shall have the right to request (by e-mail) from Blush: (a) a copy of the information about the Client retained by Blush and the right to request that Blush correct any incorrect information; and (b) that Blush does not disclose any personal information about the Client for the purpose of direct marketing.

15.8 Blush will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.

15.9 The Client can make a privacy complaint by contacting Blush via e-mail. Blush will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

16. Unpaid Seller’s Rights

16.1 Where the Client has left any item with Blush for repair, modification, exchange or for Blush to perform any other service in relation to the item and Blush has not received or been tendered the whole of any monies owing to it by the Client, Blush shall have, until all monies owing to Blush 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.

16.2 The lien of Blush shall continue despite the commencement of proceedings, or judgment for any monies owing to Blush having been obtained against the Client.

17. General

17.1 The failure by Blush to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Blush’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which Blush has its principal place of business, and are subject to the jurisdiction of the courts in that state.

17.3 Subject to clause 11 Blush 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 Blush of these terms and conditions (alternatively Blush’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).

17.4 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 Blush nor to withhold payment of any invoice because part of that invoice is in dispute. 17.5 Blush may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

17.6 The Client agrees that Blush may amend these terms and conditions at any time. If Blush makes a change to these terms and conditions, then that change will take effect from the date on which Blush notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Blush to provide Services to the Client.

17.7 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.

17.8 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.