Terms and Conditions of Supply

Transcription

1 Terms and Conditions of Supply Page 1 of 5

2 What is this Agreement about and how is it accepted? 1 This Agreement applies to every contract for the sale of goods or services by Whirlwind to the Customer, unless Whirlwind agrees otherwise in writing. 2 Any written quotation provided by Whirlwind to the Customer concerning the proposed supply of goods or services is: (a) valid for 14 days from the date of the quotation; and (b) not an offer to sell, and no order placed by the Customer in response to any quotation will bind Whirlwind unless and until such order is accepted by Whirlwind, acting in its absolute discretion. 3 This Agreement is accepted by the Customer once the Customer places an order with Whirlwind forgoods or No purported cancellation or suspension of an order (or any part of an order) by the Customer is binding on Whirlwind after that order has been accepted by Whirlwind. 4 This Agreement is accepted by Whirlwind when Whirlwind confirms its acceptance of an order in writing or electronic means or provides the Customer with the goods or All quotations are subject to withdrawal or variation by Whirlwind at any time prior to Whirlwind s acceptance of an order by notice in writing to the Customer. What is the pricing structure for goods and services? 1 Prices quoted, whether in a price list, by written quotation or verbally, for the supply of goods and services, include GST and any other taxes or duties imposed on or in relation to the goods and The Customer must pay such GST, taxes or duties. 2 Pricing includes the cost of delivery of the goods to the Customer to any single metropolitan address in any capital city in Australia. Delivery is only included for catalogue items. However, Whirlwind reserves the right to charge for the cost of delivery if the delivery location is outside a metropolitan area, involves multiple locations or requires hand unpacking. Non standard or bespoke quotes are inclusive of freight to the Customer s address only, unless otherwise specified. 3 Quotations are based on the cost of production prevailing at the date of the quotation, and are subject to variation on or after acceptance of any order placed in reliance upon such quotation, to meet any rise or fall in such costs incurred, including a request from the Customer to vary the order. Whirlwind will notify the Customer of any such variation. What are the payment terms for goods and services? 1 Whirlwind s standard payment option is pre payment in full, prior to the commencement of any print work or Other payment terms may be offered at the discretion of Whirlwind and are subject to a satisfactory credit check. 2 Payment by cheque is not deemed made until the proceeds of the cheque have cleared. 3 Whirlwind may amend any payment terms upon giving written notice to the Customer. 4 Whirlwind accepts payment by Visa, Mastercard or AMEX without penalty fees. Whirlwind however reserves the right to charge penalty fees if the agreed payment terms are not met. What are the consequences of non-payment by the Customer? 1 If the Customer does not pay an invoice (in full) by the due date, then all moneys which would become payable by the Customer to Whirlwind at a later date on any account, will become immediately due and payable without the requirement of any notice to the Customer, and Whirlwind may, without prejudice to any other remedy available to Whirlwind: (a) charge the Customer interest on any sum due at the prevailing rate under the Penalty Interest Rates Act 1983 (Vic) plus 4 per cent for the period from the due date until the date of payment in full; (b) charge the Customer for, and the Customer must indemnify Whirlwind from, all costs and expenses (including all legal costs and expenses) incurred by Whirlwind resulting from the non-payment or in taking action to enforce compliance with this Agreement or to recover any goods; (c) cease or suspend for such period as Whirlwind think fit, supply of any further goods or services to the Customer; (d) by notice in writing to the Customer, terminate this Agreement or any contract with the Customer, without affecting Whirlwind s accrued rights under any contract. When does legal title to the goods pass to the Customer? 1 Until full payment in cleared funds is received by Whirlwind for all goods supplied by Whirlwind to the Customer: (a) title and property in all goods remain vested in Whirlwind and do not pass to the Customer; (b) the Customer must hold the goods as fiduciary bailee and agent for Whirlwind; (c) the Customer must keep the goods separate from the Customer s other goods and maintain Whirlwind s labelling and packaging; and (d) Whirlwind may without notice, enter any premises where Whirlwind suspects the goods may be and remove them, notwithstanding that they may have been attached to other goods not being Whirlwind s property, and for this purpose the Customer irrevocably licences Whirlwind to enter such premises and also indemnifies Whirlwind from and against all costs, claims, demands or actions by any party arising from such action. 2 Where payment is not made on or before the due date or if an Insolvency Event occurs: (a) Whirlwind may terminate any contract relating to goods at any time and without prejudice to any other rights it may have against the Customer; and (b) the Customer shall, should Whirlwind so require, deliver up to Whirlwind any goods which have not been paid for in full failing which Whirlwind is hereby irrevocably authorised to enter at any time by its servants or agents the place where the goods are situated and to repossess the goods, and to remove the goods from any vessel, vehicle, or other place whether or not they have at any such time become fixed to any vessel, vehicle, thing or place and for this purpose Whirlwind is hereby appointed the Customer s agent. The Customer agrees to indemnify Whirlwind and keep Whirlwind indemnified against all costs incurred by Whirlwind in removing the goods and against all claims against Whirlwind in removing the goods and arising from such removal. 3 If an Insolvency Event occurs and the goods which have not been paid for in part or in full are mixed with the goods that have been paid for, then the Customer bears the onus of proving that the Whirlwind goods in its possession (whether mixed with other goods or not) have been paid in full by the Customer. If the Customer is unable to prove, to the satisfaction of Whirlwind that the goods identified as Whirlwind goods have been paid for in full, then those goods shall be deemed to relate to unpaid invoices outstanding from time to time and are deemed to be the property of Whirlwind. Whirlwind reserves the right to repossess those goods without having to prove that the goods relate to specific unpaid invoices outstanding at the time of repossession. 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3 4 Notwithstanding the provisions of the preceding sub-clauses the Customer may sell the goods to a third party (in its own name and not as agent for the seller) by way of bona fide sale at full market value and in the ordinary course of business and deliver them to that party provided however that if an Insolvency Event occurs and until the goods have been paid in full to Whirlwind: (a) where the Customer is paid by that third party the Customer holds the whole value of the proceeds of sale on trust for Whirlwind and shall not mingle any of the proceeds of sale with the Customer s own monies or in any bank account with other monies, but shall ensure that all such receipts of sale are separate and identifiable. Moreover, the Customer shall on receipt of the proceeds of sale remit to Whirlwind all monies owing under this Agreement in accordance with Whirlwind s terms of payment; (b) where the Customer is not paid by that party the Customer agrees, at the option of Whirlwind, to assign its claim against that party to Whirlwind. For the purpose of giving effect to this sub-clause the Customer irrevocably appoints Whirlwind as its attorney. Security Interests 1 In consideration for Whirlwind supplying goods to the Customer under this Agreement, the Customer: (a) agrees to treat the security interest created under this Agreement as a continuing and subsisting security interest in the relevant goods with priority over any registered or unregistered general (or other) security and any unsecured creditor (even if the goods become fixtures before paid for in full); (b) grants to Whirlwind a purchase money security interest ( PMSI ) as defined in the Personal Property Securities Act 2009 (Cth) ( PPSA ) in goods supplied; (c) agrees that the PMSI granted herein will continue to apply to any goods coming into existence or proceeds of sale of goods or goods coming into existence; (d) agrees that the PMSI has attached to all goods now or in the future supplied to the Customer by Whirlwind; and (e) agrees, until title in the goods pass to it, to keep all the goods free and ensure all the goods are kept free of any charge, lien or security interest (as defined in the PPSA) except as created under this Agreement, and not otherwise deal with the goods in a way that will or may prejudice any rights of Whirlwind under this Agreement or the PPSA. 2 Whirlwind reserves the right to register a financing statement under the PPSA in respect of the goods. The Customer waives its right to receive a copy of any financing statement, financing change statement or verification statement that is or may be registered, issued or received at any time. 3 The Customer irrevocably grants Whirlwind the right to enter any premises or property (without notice) and without being in any way liable to Whirlwind or any other person if the Customer has cause to exercise any of its rights under the PPSA (and the Customer will indemnify Whirlwind against any such liability). 4 It is agreed that (to the extent permitted under the PPSA), the Customer hereby waives its rights under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142 and 143 of the PPSA. What happens if there are delays in delivery of goods and services? 1 Any period or date for delivery of goods or provision of services is intended as an estimate only and is not a contractual commitment. Whirlwind will use its reasonable endeavours to meet any estimated dates for delivery of the goods or completion of the services but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date. 2 If, through circumstances beyond Whirlwind s control, Whirlwind is unable to effect delivery or provision of goods or services, then Whirlwind may cancel the Customer s order (even if it has already been accepted) by notice in writing including electronic means to the Customer. Can the Customer return or exchange the goods or services? 1 Descriptions, illustrations and material contained in catalogue, price lists, brochures, leaflets, specification sheets or other descriptive materials: (a) While every effort is made to ensure their accuracy, the descriptions, illustrations and material contained in any catalogue, price list, brochure, leaflet, specification sheets or other descriptive materials provided by Whirlwind to the Customer represent the general nature of the items described therein and do not form part of any order or agreement and do not constitute a representation or warranty made by Whirlwind. 2 Artwork: (a) Whirlwind reserves the right to modify the design, drawings or specifications supplied to Whirlwind by the Customer which do not materially affect the quality or usage of the goods by the Customer, without notice. (b) All prices quoted are for the supply of Whirlwind specified print ready artwork. Should any artwork corrections be required Whirlwind reserve the right to make such alterations and request subsequent approval from the Customer to proceed to print. Any charges be associated for this artwork correction may be passed to the Customer, subject to prior notification. (c) Whirlwind holds certification to the ISO :2004 specifications for offset lithography and will ensure that jobs printed by Whirlwind have colour consistency and colour quality certified to these documented International standards. However, Whirlwind cannot ensure an exact match in colour or texture between the Customer s artwork (including electronic graphic files or previously printed materials or any other materials supplied by the Customer) and the final delivered goods. The Customer acknowledges and accepts that there are acceptable levels of colour variation from print run to print run, from stock to stock, from back to front and between different printing processes. (d) The Customer acknowledges that trimming may vary by up to 1 millimetre from the proof, specification or print job to print job and that such variation will not constitute a fault in the print job. (e) Whilst every endeavour will be made to deliver the correct quantity of print items ordered, due to the difficulties of producing exact quantities, Whirlwind shall not be liable for delivering incorrect quantities and there will be no adjustment in the price if the quantity variation does not exceed 10% of the quantity specified in the order. The Customer s remedy, at Whirlwind s sole discretion, will be either a refund of monies paid for the shortage on a pro rata basis or a re-print of the shortage quantity to be undertaken by Whirlwind within a reasonable period of time. 3 General: (a) Whirlwind will not be liable for any defect in the goods manufactured or supplied by Whirlwind which are based in whole or in part upon any designs, drawings or specifications supplied to Whirlwind by the Customer. (b) Subject to clause 1(a), Whirlwind will not be liable for any defects, shortages, damage or noncompliance with the specifications in the Agreement unless the Customer notifies Whirlwind in writing with full details within 7 business days of delivery of the goods or provision of the (c) If the Customer does not give the notice as required in clause 3(a), the Customer is deemed to have accepted the goods or (d) Subject to clause 2(d), when any defects, shortages, claim for damage or noncompliance with the specifications in the Agreement is accepted, Whirlwind may, at its option, replace the defective or missing goods or re-supply the (e) Whirlwind will not accept goods for return that have been altered in any way or have been used. Page 3 of 5

4 (f) (g) (h) Unless Whirlwind reasonably agrees that the defects, shortages, damage or non-compliance referred to in clause 3(a) is due to Whirlwind s fault, the Customer must pay all freight charges associated with the return of goods. Where delivery is requested by the Customer, to be left at an unattended address, Whirlwind will not accept liability for any subsequent issues arising from that delivery. This clause does not affect any other rights pertaining to the goods noted within these terms and conditions. If a hard copy colour proof is not requested then Whirlwind Print will produce to ISO certified colour standards. Whirlwind will not be liable if colour representation fits within these measured standards. Who owns the intellectual property associated with the goods and services? 1 Any Whirlwind Materials (and the Intellectual Property subsisting in the Whirlwind Materials) provided to the Customer by Whirlwind in connection with the goods and services remains Whirlwind s exclusive property and the Customer acknowledges that the Customer has no proprietary right or interest in the Whirlwind Materials or Whirlwind s Intellectual Property. 2 All Whirlwind Materials and Whirlwind s Intellectual Property must be returned to Whirlwinds on demand and the Customer must not: (a) copy or disclose any Whirlwind Materials or Whirlwind s Intellectual Property to any third party without Whirlwind s express written consent; (b) create, sell, manufacture or process any goods or services which use or take advantage of any Whirlwind Materials or Whirlwind s Intellectual Property. 3 Where the Customer provides its own materials, data or information including literary and artistic works (Client Materials) for use by Whirlwind to fulfil any order, the Customer warrants that: (a) the Customer owns (or is licensed to use) the Client Materials and the Intellectual Property in those Client Materials; and (b) the use of the Client Materials by Whirlwind will not infringe the Intellectual Property of any third party; and the Customer hereby grants Whirlwind a licence to use the Client Materials and the Intellectual Property therein: (c) for the purpose of fulfilling the Customer s orders and providing the goods and services under this Agreement; and (d) in Whirlwind s promotional materials to indicate that the Customer is one of Whirlwind s clients and to depict the quality and range of Whirlwind s goods and 4 The Customer indemnifies and agrees to keep Whirlwind indemnified against all liability, losses or expenses incurred by Whirlwind in relation to, or in any way directly or indirectly connected with, the use of the Client Materials by Whirlwind. 5 All works (as that term is defined in the Copyright Act 1968) and other subject matter in which copyright can subsist, and all data, information, materials and processes developed or created pursuant to this Agreement and any Intellectual Property therein: (a) are hereby vested in Whirlwind as and when such rights are brought into existence; (b) are agreed to be the absolute and exclusive property of Whirlwind; and (c) to the extent necessary, are hereby assigned absolutely to Whirlwind. Whirlwind s liability to the Customer 1 Except as specifically set out in this Agreement any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded. 2 Whirlwind s liability for: (a) a breach by Whirlwind of any term of this Agreement; (b) a breach by Whirlwind of any condition or warranty implied in this Agreement; (c) the cancellation or suspension of supply of goods or services by Whirlwind; or (d) any loss or damage suffered or incurred by the Customer or any third party howsoever arising under or in connection with this Agreement is limited to the replacement or the re-supply of the goods or the re-supply of the 3 Whirlwind will not be liable for any indirect, special or consequential loss or damage suffered or incurred by the Customer or any third party, howsoever caused, including loss of turnover, profits, business or goodwill. 4 Nothing in this Agreement is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified. What are each party s privacy obligations? 1 Whirlwind is bound by the Privacy Act 1988 and takes steps to ensure that all personal information obtained in connection with the Customer will be appropriately collected, stored, used, disclosed and transferred in accordance with the Privacy Act Such information may be accessed by request to Whirlwind in accordance with the Privacy Act The Customer must comply with the Privacy Act 1988 in connection with any personal information supplied to the Customer by Whirlwind in connection with this Agreement. Can this Agreement be terminated? 1 Whirlwind may, at its option, immediately terminate this Agreement upon notice in writing: (a) In accordance with section What are the consequences of non-payment by the Customer? clause 1 (d); (b) where the Customer has breached any term or warranty in this Agreement and fails to rectify such breach within 7 days of being provided with a notice from Whirlwind requesting such rectification; (c) where the Customer is an individual, and the Customer becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally; or (d) where the Customer is a corporation, an Insolvency Event occurs. 2 Upon termination of this Agreement, any outstanding fees or charges under this Agreement will become immediately due and payable by the Customer. Page 4 of 5

5 Miscellaneous 1 The laws of Victoria, Australia govern this Agreement and the parties agree to the nonexclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts. 2 Failure by Whirlwind to enforce any terms of this Agreement shall not be construed as a waiver of any of its rights. 3 If any term of this Agreement is unenforceable it shall be read down so as to be enforceable or, if it cannot be so read down, the term shall be severed from this Agreement without affecting the enforceability of the remaining terms. 4 This Agreement constitutes the entire agreement between the parties regarding the matters set out in it and supersedes any prior representations, understandings or arrangements made between the parties, whether orally or in writing. 5 A notice provided under this Agreement must be in writing and handed personally or sent by facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile are deemed received on the date and time the facsimile machine confirms transmission. notification where specified within the agreement will be deemed acceptable. 6 In this Agreement, unless the context clearly indicates otherwise: (a) Agreement means this agreement entered into for the provision of goods or services by Whirlwind to the Customer and includes any document which varies, supplements, replaces, assigns or novates this agreement; (b) Customer means the person to whom any quotation is made and shall include any person contracting or offering to contract with Whirlwind in accordance with this Agreement; (c) goods means any goods provided to the Customer by Whirlwind or procured by Whirlwind for the Customer and includes printing proofs (both conceptual and final), and any printed material or artwork; (d) GST means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended; (e) Insolvency Event shall occur when; (i) an application or order is made, a resolution is made or proposed or other steps are taken for the winding up, liquidation (including provisional liquidation), dissolution, official management or voluntary administration of the Customer (other than a voluntary liquidation for the purpose of amalgamation or reconstruction); (ii) the Customer enters into any arrangement, compromise or composition or assignment for the benefits of its creditors or any class of them; (iii) the Customer ceases, suspends or threatens to cease or suspend the conduct of its business or disposes of or threatens to dispose of its assets other than in the ordinary course of business; (iv) the Customer is or is deemed unable to pay its debts as and when they fall due, or stops or suspends the payments of its debts; or (v) a liquidator, provisional liquidator receiver, a receiver and manager, administration or other officer is appointed to the Customer or any part of its property, or a third party attempts to levy execution against the Customer s property or the goods. (f) Intellectual Property means copyright, patents, designs or trademarks (whether registered or unregistered), rights in confidential information (including trade secrets and know how), and all other proprietary rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields, whether conferred under statute, common law or equity; (g) services means the provision by Whirlwind to the Customer of any services including graphic design and printing; (h) Whirlwind means Whirlwind Print Pty Ltd (ABN ) of 22 Henderson Road, Knoxfield, Victoria 3180; (i) Whirlwind Materials means all works (as that term is defined in the Copyright Act 1968) and other subject matter in which copyright can subsist, and all data, information, materials, specifications and processes owned by or licensed to Whirlwind; (j) a reference to legislation or a legislative provision includes any statutory modification, or substitution of that legislation or legislative provision; (k) a reference to a person includes a natural person, corporation, statutory corporation, partnership or any other organisation or legal entity; (l) a reference to a natural person includes their personal representatives, successors and permitted assigns; (m) a reference to a corporation includes its successors and permitted assigns; (n) an obligation or warranty on the part of 2 or more persons binds them jointly and severally and an obligation or warranty in favour of 2 or more persons benefits them jointly and severally; (o) including and includes are not words of limitation; (p) a reference to a time is to that time in Victoria, Australia; (q) monetary amounts are expressed in Australian dollars; (r) the singular includes the plural and viceversa Page 5 of 5