Terms of Trade (“Terms”)
1 Application of Terms
1.1 These Terms govern our supply of Goods and Services to you, including supplies on a cash basis.
1.2 If you wish to negotiate these Terms with us then you should respond to this document, marking up the Terms and drawing those changes to our attention and obtain our agreement in writing.
1.3 It is not our practice to otherwise review terms and conditions on documents that you issue to us.
1.4 Unless we otherwise agree in writing, we do not accept, and will not be bound by, any terms or conditions included in, attached to, or referenced in, any other document you give to us like a purchase order.
2 Quotations
2.1 Each quotation that we issue:
(a) is an estimate only;
(b) is not an offer or obligation to supply any Goods or to perform any Services;
(c) is exclusive of GST;
(d) does not include the costs of delivering Goods; and
(e) remains valid for acceptance for a period of thirty (30) days from the date of quotation, unless withdrawn by us before a contract for supply is formed,unless the quotation states otherwise.
2.2 A quotation may include additional terms or conditions, which will supplement these Terms.
3 Formation of Contract
3.1 We are not obliged to supply any Goods or provide Services until after a contract for supply is formed.
3.2 A contract for supply is formed, and you have accepted these Terms, when:
(a) you have placed an Order with us; and
(b) we have received any deposit we have required from you in respect of the Order before progressing it; and
either we have:
(c) accepted your Order in writing; or
(d) supplied you with any Goods or performed any Services following receipt of your Order.
3.3 If you revoke an Order:
(a) prior to the formation of a contract for supply then:
(i) we will refund you any deposit you have paid in respect of that Order; and
(ii) you will not be required to pay any fee for the cancellation of the Order; or alternatively
(b) after the formation of a contract for supply then unless we are in breach of the contract for supply:
(i) you must pay all our reasonable costs associated with fulfilment of your Order; and
(ii) we may apply any deposit you have paid towards those costs.
3.4 If we have provided you with a proof of the Goods, and you have approved that proof, we, to the extent permitted by law, will not be responsible for any errors in the Goods which appeared in the proof and which were not corrected by you before we completed your Order. We may charge you, and you will be liable to pay to us, additional charges for any additions, alterations, or corrections we make to any proof after you have approved that proof.
4 Price
4.1 The price payable for the Goods or Services will be:
(a) the price agreed in writing; or alternatively
(b) the price by our prevailing price list/rates as when you place your Order.
4.2 We may vary our price or rates by notice to you if you request:
(a) the Goods or Services be rendered outside Business Hours;
(b) different Goods or Services to be supplied to the contract for supply; or
(c) that we delay provision of the Goods or Services for sixty (60) days or more.
4.3 Where we vary the price or rates payable for the Goods or Services pursuant to subclause 4.2, we will notify you of the new price/rates. Thereafter you may reject the new price/rates within seven (7) days and terminate the contract for supply without any cost or penalty to you, otherwise you agree that the price/rates will apply to the contract.
5 Customer property
5.1 You acknowledge and agree that while we will exercise due care and diligence in the handling and storing of your property while your property is in our possession, we:
(a) are under no obligation to insure your property but may do so at your request if you assume the costs of the insurance; and
(b) will not be liable for any loss, damage, or deterioration to your property (including, for the removal of doubt, any electronic media) while your property is in our possession unless the loss, damage, or deterioration, is a direct result of our failure to exercise due care and diligence in handling or storing such property.
5.2 If you leave any of your property in our possession without any specific instructions as to what is to be done with it, we may dispose of such property in accordance with the Disposal of Uncollected Goods Act 1967 (Qld).
6 Delivery and risk
6.1 We will use reasonable endeavours to deliver the Goods at the time and place agreed for delivery. You will make arrangements necessary to take delivery of the Goods.
6.2 You acknowledge and agree that:
(a) unless the contract for supply expressly states otherwise, time in respect of delivery is not of the essence; and
(b) any timeframe or date for delivery is an estimate only and is not a contractual commitment.
6.3 Risk of loss, damage, or deterioration to the Goods passes to you, and delivery is deemed to occur, at the time:
(a) you or any third party on your behalf collect the Goods from us;
(b) we or our nominated carrier deliver the Goods to the delivery location stated in your Order (or to such other location as agreed in writing); or
(c) your nominated carrier takes possession of the Goods.
6.4 You agree to sign our delivery docket or consignment note or that of our nominated carrier as confirmation that you have received the Goods, and if appropriate, certify that you have received the Goods in apparent good order and condition in the quantity or volume you have ordered.
6.5 If the Goods are delivered on Pallets, the Pallets remain our property. You may be charged for the use of such Pallets. On the return of the Pallets to us:
(a) if the Pallets are returned to us in good condition (in our sole determination), we agree to give you a credit in an amount equal to the fee charged by us in respect of the Pallets; or
(b) if the Pallets are returned to us in a damaged condition (in our sole determination), you will be liable to pay to us the cost to repair or replace the Pallets.
6.6 If delivery of the Goods is deferred:
(a) at your request; or
(b) due to you being unable or unwilling to accept delivery of the Goods (other than as a result of the Goods delivered not being in accordance with the contract for supply);
in circumstances which:
(c) we are ready to deliver the Goods and a delivery date has not been agreed; or
(d) the Goods are due to be delivered on an agreed delivery date,
then you will pay to us:
(e) reasonable daily storage charges (which will continue to accrue until such time as the Goods are delivered); and
(f) any costs associated with us or our nominated carrier attempting to re-deliver the Goods (where we or our nominated carrier has previously attempted to deliver the Goods).
6.7 Without derogating from subclause 6.6, we may agree to hold Goods for you for a period of up to ninety (90) days from the production completion date (as advised by us). After ninety (90) days from the production completion date:
(a) if you request that we store the Goods for a further period, we may do so at our sole discretion (but are under no obligation to do so);
(b) where we agree to store the Goods for a further period, we will warehouse the Goods at your sole expense;
(c) you must provide us with a purchase order for all Goods not yet called off; and
(d) we will invoice for you for those Goods.
6.8 If, for whatever reason, you do not provide us with a purchase order after ninety (90) days from the production completion date, or when otherwise requested to do so, then we may issue you an invoice for all Goods not yet called off.
6.9 You acknowledge and agree that we may deliver the Goods in one or more lots and may invoice you for pro rata progress and storage charges in respect thereof.
7 Payment terms
7.1 Unless you have a Credit Facility with us which is not in default:
(a) deposits we have requested must be paid before we commence providing Goods and Services;
(b) you must pay for all Goods before they are despatched (in cash or cleared funds); and
(c) you must pay for all Services on a progressive hourly basis as performed.
7.2 Payment may be made by cash, cheque, electronic funds transfer, Visa, or Mastercard credit cards. We reserve the right to change the payment methods that we accept at any time.
7.3 We may charge a payment surcharge for applicable payment transactions equal to our reasonable cost of acceptance.
7.4 You agree to pay GST on all taxable supplies upon us issuing you a tax invoice relating to the taxable supply.
7.5 You agree to pay sums due to us free of any set off or counterclaim and without deduction or withholding.
8 Claims
8.1 Subclauses 8.2 to 8.5 only apply if the contract for supply is not a Consumer Contract and not a Small Business Contract.
8.2 You must, within seven (7) days of the date of delivery:
(a) give us notice in writing, with particulars, of any Claim that the Goods delivered are not in accordance with the contract for supply (including any Claim for shortfall, incorrect supply, or damage to the Goods); and
(b) at our request, provide us with photographic evidence (to our satisfaction) of any alleged damage to the Goods.
8.3 Upon receipt of your notice under subclause 8.2, you must:
- at our request, allow our personnel to enter upon any premises or land you occupy to inspect and take samples of the Goods that are the subject of your Claim; and
- leave the Goods in substantially the same condition to that in which they were delivered until such time as our personnel have inspected and taken samples of the Goods.
8.4 You must notify us in writing of any Claim for non-delivery within seven (7) days of the date of the invoice which relates to the Goods the subject of your Claim.
8.5 If you fail to notify us in accordance with subclause 8.2 and 8.4, or fail to allow our personnel to inspect or take samples of the Goods in accordance with subclause 8.3, then, to the extent permitted by law, the Goods are deemed to have been delivered in good condition and in accordance with the contract for supply.
9 Returns
9.1 We will accept the return of any Goods if:
(a) the Goods supplied do not conform with the contract for supply (subject to subclause 3.4);
(b) the Goods are defective; or
(c) we are required by law to accept the return of the Goods.
9.2 At our discretion, we may accept the return of Goods if you change your mind if:
(a) you agree to:
(i) pay the lesser of a handling and administration charge of 20% of the purchase price of the returned Goods or $200; and
(ii) reimburse us for all costs we incur in connection with the return of those Goods (except for Goods we have incorrectly supplied or we agree are defective);
(b) the Goods are in substantially the same condition to the condition in which they were delivered; and
(c) the Goods were not specifically produced or procured at your request.
9.3 You indemnify and release us from any damage that occurs to any Goods in return transit. You should ensure that any returned Goods are insured against such damage.
10 Retention of title
10.1 Until such time as you have made payment in full (in cash or cleared funds) for any Goods we have supplied:
(a) title in the Goods does not pass to you and we retain the legal and equitable title in the Goods;
(b) you will hold the Goods as fiduciary and bailee for us and agree to store the Goods in such a manner as to enable them to be readily identifiable as our property;
(c) you undertake to not mix the Goods with similar goods;
(d) unless and until we notify you to the contrary, you will be entitled to sell the Goods in the ordinary course of your business (provided any such sale is at arm’s length and on market terms) and will sell the Goods as our agent and bailee; and
(e) you undertake to hold any proceeds derived from the sale of the Goods on trust for us absolutely.
10.2 While title in the Goods remains with us, you permit us to enter upon any premises you occupy (or any premises any receiver, receiver and manager, administrator, liquidator, or trustee in bankruptcy of yours occupies) as your invitee to inspect the Goods and, when you are in default of payment of any invoice, to repossess any Goods in your possession, custody, or control.
10.3 Where we exercise our right of entry pursuant to subclause 10.2, you agree that us doing so will not give rise to any Claim for trespass or similar action against us or our officers, employees, and agents.
10.4 Where we have retaken Goods into our possession, we have the right to sell or deal with those Goods, and, if necessary, sell any Goods bearing your name or trade mark, and you hereby grant us an irrevocable licence to do all things necessary to sell those Goods.
10.5 For the removal of doubt, our interest under this clause 10 constitutes a purchase money security interest for the purposes of the PPS Act.
11 Security interest
11.1 Unless you have obtained our prior written and fully informed consent, you undertake not to:
(a) register a financing change statement in respect of a security interest in our favour; or
(b) create, or purport to create, any security interest in the Goods (or any proceeds derived from the sale of such Goods), nor register, nor permit to be registered, a financing statement or financing change statement in relation to the Goods in favour of any third party.
11.2 You:
(a) waive your right to receive a copy of any verification statement in accordance with section 157 of the PPS Act;
(b) agree that, to the extent permitted by the PPS Act:
(i) sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142, and 143 of the PPS Act do not apply and are hereby contracted out of; and
(ii) you waive your right to receive notices under sections 95, 118, 121(4), 127, 130, 132(3)(d), and 132(4) of the PPS Act.
11.3 We need not disclose information of the kind detailed in section 275(1) of the PPS Act, unless required by law.
11.4 Where we have rights in addition to those under Part 4 of the PPS Act, those rights continue to apply.
12 Description of Goods
If you require any Goods for a particular purpose, you must advise us of that purpose prior to placing your Order and must obtain a written assurance from us that the Goods will meet your requirements. If you do not advise us of your requirements and we do not expressly warrant in writing that the Goods will be fit for your particular purpose, then you agree that you did not rely upon our skill or judgment in relation to the suitability of the Goods for that purpose.
13 Intellectual Property Rights
13.1 All right, title, and interest in the Intellectual Property Rights in and to all artistic and literary works we have authored are, and will at all times remain, our property.
13.2 All improvements, derivatives, and modifications to the Intellectual Property Rights contemplated in subclause 13.1 (Improvements) vest in us immediately upon creation.
13.3 You:
(a) warrant to us you either are hold the copyright in, or a licence to authorise us to reproduce, all artistic and literary works supplied by you for the purposes of us fulfilling your Order and you expressly authorise us to reproduce any and all such works for the purpose of fulfilling your Order; and
(b) are liable for and indemnify us in respect of all Claims, damage, loss, and costs (including legal costs on a full indemnity basis) that we may suffer or incur at any time, directly or indirectly, arising out of or in connection with any breach of copyright in respect of any literary and artistic works you have supplied us.
13.4 Conditional on you having made payment in full (in cash or cleared funds) for any Goods supplied by us, we grant you a royalty free, non-exclusive licence to use the copyright in any literary or artistic works we have authored for the purposes of fulfilling your Order. You acknowledge and agree you otherwise have no right to use our Intellectual Property Rights.
14 Periodicals
If the contract for supply relates to more than one issue of a periodical:
(a) each issue will, for the purposes of these Terms, be deemed to be a separate Order; and
(b) a Party may not terminate a contract of which these Terms form part relating to a periodical, unless:
(i) in the case of periodicals published weekly or more frequently, that party has given four (4) weeks’ notice of their intention to terminate the Contract;
(ii) in the case of periodicals published fortnightly or more frequently (but less frequently than weekly), that party has given eight (8) weeks’ notice of their intention to terminate the Contract;
(iii) in the case of periodicals published less frequently than fortnightly, that Party has given thirteen (13) weeks’ notice of their intention to terminate the Contract.
15 Alterations to style
If, before we have prepared our quotation, you do not give us specific instructions in relation to the style, type, or layout in respect of the Goods:
(a) we may use any style, type, or layout which, in our reasonable opinion, is appropriate; and
(b) we will be entitled to charge you an additional reasonable amount for any additional work required to be done (including the production of additional proofs) as a result of you subsequently alternating the style, type, or layout we have adopted.
16 Overset
16.1 You must pay for overset matter (being matter produced on your instructions but not used in a publication for which it was intended).
16.2 You may instruct us to:
(a) retain any overset matter for future issues of a publication; or
(b) discard any overset matter.
17 Materials
17.1 If it is agreed that you are responsible for supplying materials or equipment for the purposes of us fulfilling your Order:
(a) you must supply sufficient quantities of materials to allow for spoilage (such quantities to be specified by us);
(b) we will not normally count or check the materials and if we are requested to do so, we may charge you for counting or checking;
(c) we will not be responsible for any defects in the Goods which are caused due to the unsuitability of any materials or equipment you have supplied; and
(d) property in any materials supplied by you passes to us at the time they are incorporated into the Goods.
17.2 If we procure any materials or consumables specifically to fulfil any Order of yours, you will be liable to pay us the cost of those materials or consumables.
18 Default
18.1 Subclauses 18.2 to 18.4 apply if you fail to pay sums to us when they fall due.
18.2 We may charge you interest on the outstanding debt (including any judgment debt) at the rate of 10% per annum.
18.3 We may suspend or cease the supply of any further Goods or Services to you.
18.4 We may require pre-payment in full for any Goods or Services which have not yet been supplied.
19 Indemnity
19.1 If you default in the performance or observance of your obligations under any contract of which these Terms form part, then:
(a) we will take steps to mitigate our loss and act reasonably in relation to any default by you; and
(b) we will give you notice requesting payment for loss and damage occasioned in respect of those events and requesting that you remedy any breach within a reasonable time; and
(c) if that demand is not met then you indemnify us in respect of loss, damage, costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) that we have suffered arising therefrom.
19.2 Your liability to indemnify us will be reduced proportionally to the extent that any fraud, negligence, or wilful misconduct by us or a breach of our obligations under contract has contributed to the Claim, damage, loss, or cost which is the subject of the indemnity.
19.3 Your liability to indemnify us is a continuing obligation separate and independent from your other obligations and survives the termination or performance of any contract of which these Terms form part.
20 Limitation of liability
20.1 No party is liable to the other party for any Consequential Loss, including under clause 19, however caused arising out of or in connection with any contract for supply of which these Terms form part.
20.2 While we will take reasonable endeavours to meet any estimated delivery date or estimated time for Goods and Services, you acknowledge and agree that we are not liable for any delay associated with meeting those estimated timeframes.
20.3 If the contract for supply is not a Consumer Contract or a Small Business Contract then, to the extent permitted by law, our liability is limited to:
(a) (in the case of a supply of Goods):
(i) us repairing or replacing the Goods; or
(ii)us paying you the cost of having the Goods repaired or replaced.
(b) (in the case of a supply of Services):
(i) us supplying the Services again; or
(ii) us paying you the cost of having equivalent Services supplied.
21 Termination
A party may, with immediate effect, terminate any contract for supply of which these Terms form part by notice in writing, if the other party:
(a) commits a material or persistent breach of these Terms and does not remedy that breach (if capable of remedy) within seven (7) days of the receipt of a notice (or such longer time as specified in the notice) identifying the breach and requiring its remedy; or
(b) has failed to pay sums due to the party within seven (7) days; or
(c) has indicated that it is, or may become, insolvent; or
(d) ceases to carry on business; or
(e) comprises an entity which is the subject of the appointment of receivers or managers; or
(f) comprises a natural person who:
(i) has committed an act of bankruptcy; or
(ii) has been made bankrupt;
(g) comprises a corporation which:
(i) enters into voluntary administration;
(ii) is subject to a deed of company arrangement; or
(iii) is subject to the appointment of liquidators or provisional liquidators.
22 Unpaid seller’s rights
You acknowledge and agree that if you fail to pay sums to us when due, then we will have the right of a lien over any of your property in our possession to secure payment of all amounts we are owed, including any reasonable storage charges, costs associated with disposing of the goods, interest, and any costs you are liable to pay to us.
23 Confidentiality
23.1 You agree to keep confidential, and not use or disclose, other than for your internal business purposes, any Confidential Information provided to or obtained by you before or after a contract for supply is formed.
23.2 The obligations of confidence imposed on you by clause 23.1 do not apply to Confidential Information that is required to be disclosed by any applicable law or under compulsion of a court, government authority, or the rules of any securities exchange (as long as you disclose the minimum amount required to satisfy the law or rules, provide us with prior notice in writing, and take reasonable steps to maintain the confidence of such Confidential Information) or that is in the public domain otherwise than as a result of a breach of these Terms or other obligation of confidence.
24 Variation
We may amend these Terms in the future by notifying you in writing. The amended Terms will thereafter apply to each Order you place unless you earlier give us written notice in advance of placing a further order.
25 Assignment
A party may only assign its rights under the contract for supply with the written consent of the other party.
26 Conflicts and Inconsistencies
If there is any conflict or inconsistency between any of the documents which together govern the relationship between the parties, it is agreed the order of precedence will be (highest to lowest):
(a) any additional terms or conditions contained in our quotation applicable to the supply of Goods or Services;
(b) any terms governing your Credit Facility; and
(c) these Terms.
27 Severance
If any part or term of our agreement with you (including any Credit Facility) is illegal, invalid, or unenforceable, it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from the contract and the remaining provisions will not be affected, prejudiced, or impaired by such severance.
28 Governing law and jurisdiction
28.1 Our relationship is governed by and must be construed according to the law applying in the State of Queensland.
28.2 The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Queensland with respect to any proceedings that may be brought at any time relating to our relationship.
29 Definitions
In these Terms, unless the context otherwise requires, the following apply.
29.1 Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended.
29.2 Business Hours means between 09:00am to 5:00pm on a day that is not a Saturday, Sunday, or gazetted public holiday in the place where the Goods or Services are, or are to be, supplied.
29.3 Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, or award howsoever arising, whether present, unascertained, immediate, future, or contingent, whether based in contract, tort, pursuant to statute or otherwise and whether involving a third party or a Party to a contract for supply.
29.4 Confidential Information includes:
(a) any ideas communicated by us to you in respect of the Goods;
(b) any information relating to our business and affairs;
(c) any information that is by its nature confidential;
(d) any information which is designated by us as confidential;
(e) any information that you know, or ought to know, is confidential; and
(f) all financial information, pricing information, and commercially valuable information of ours.
29.5 Consequential Loss includes any:
(a) consequential loss;
(b) loss of anticipated or actual profits or revenue;
(c) loss of production or use;
(d) financial or holding costs;
(e) loss or failure to realise any anticipated savings;
(f) loss or denial of business or commercial opportunity;
(g) loss of or damage to goodwill, business reputation, future reputation, or publicity;
(h) loss or corruption of data;
(i) downtime costs or wasted overheads; or
(j) special, punitive, or exemplary damages.
29.6 Consumer Contract has the meaning given to this term in section 23(3) of the Australian Consumer Law.
29.7 Credit Facility means an account we have opened for you on which we may, from time to time, extend you with additional time to pay for our Goods and Services and associated charges.
29.8 Goods means all goods supplied by us, as described on our quotation, invoice, or any other form issued by us.
29.9 Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether present or future, and whether protectable by statue, at common law or in equity, including rights in relation to copyright, trade secrets, know how, trade marks (whether registered or unregistered or whether in word or logo/device form), designs, patents and patentable inventions, including the right to apply for registration of any such rights.
29.10 Order means a written or oral order placed by you requesting that we provide Goods or Services.
29.11 Pallets means any pallets, bearers, and any other containers supplied in connection with the Goods.
29.12 PPS Act means the Personal Property Securities Act 2009 (Cth), as amended.
29.13 Services means all services performed by us, as described on our quotation, invoice, or any other form issued by us.
29.14 Small Business Contract has the meaning given to this term in section 23(4) of the Australian Consumer Law.
29.15 Supplier, we, us means Platypus Graphics Pty. Ltd. (ACN 010 942 417).
30 Interpretation
In these terms, unless the context otherwise requires:
30.1 A time is a reference to the time zone of Brisbane, Australia unless otherwise specified.
30.2 $, dollar, or AUD is a reference to the lawful currency of Australia;
30.3 A party includes a reference to that person’s executors, administrators, successors, substitutes (including a person who becomes a party by novation), assigns, and in the case of a trustee, includes any substituted or additional trustee.
30.4 A right includes a benefit, remedy, authority, discretion, or power.
30.5 The singular includes the plural and vice versa, and a gender includes other genders.
30.6 “In writing” or “written” means any expression of information in words, numbers, or other symbols, which can be read, reproduced, and later communicated, and includes electronically transmitted and stored information.
30.7 If a word or phrase is given a defined meaning, its other grammatical forms have a corresponding meaning.
30.8 Words such as “includes”, “including”, and “for example” are not words of limitation and are to be construed as though followed by the words “without limitation”.
30.9 A term of an agreement in favour of two or more persons is for the benefit of them jointly and each of them separately.