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DPA DOCUMENT PRINTING AUSTRALIA PTY LTD ACN 070 420 718
GENERAL TERMS AND CONDITIONS OF SUPPLY
PLEASE READ CAREFULLY
In these terms and conditions the Supplier means DPA DOCUMENT PRINTING AUSTRALIA PTY LTD (ACN 070 420 718) (“DPA”), a company duly incorporated in the State of Victoria and having its offices situated at 332-342 Lorimer Street, Port Melbourne in the State of Victoria, and the Customer means the purchaser whose details are set out in Parts 1 and 2 or Parts 1 and 3 of the attached Credit Application Form or a person or entity whose order for the purchase of the Supplier’s goods is accepted by the Supplier.
1. Acceptance of Customer’s Order
These terms and conditions apply to every sale contract between the Supplier and the Customer and any terms and conditions of the Customer’s order deviating from or inconsistent with these terms and conditions are expressly excluded, obviated and rejected by the Supplier. This exclusion and rejection includes any statement by the Customer that the Customer’s terms and conditions shall prevail notwithstanding any stipulation by the Customer regarding the manner of declaring such rejection. A contract is only concluded between the Supplier and Customer for the supply of goods when the order has been accepted by the Supplier. The terms of this Clause apply to every quotation or offer by the Supplier for the supply of goods.
2. Prices
All prices are “ex-warehouse” and do not include insurance or delivery/freight charges and the Supplier may invoice the goods sold at the Supplier’s price relevant to the goods ordered at the date of delivery of each order. Where the Supplier publishes or discloses a price list, this list is an invitation to treat only and the Supplier reserves the right to accept or reject in its absolute unfettered discretion any orders which may be received by it. Any price list of the Supplier’s is subject to alteration at any time without notice.
The Customer acknowledges that the price of the products may change from time to time without notice and it is the Customer’s responsibility to confirm the price at the time the order is placed, otherwise the Customer is taken to have accepted the price that is applicable at the time as shown on the invoice issued by the Supplier.
Where the Customer varies the initial order in any way whatsoever resulting in the supply of further goods and/or the provision of further services and/or the incurring of further expenses on the part of the Supplier, the Customer shall be charged a fee in addition to the initial quoted or invoiced fee, such fee to be calculated at the Supplier’s standard fees for the time being.
Where the Supplier provides a quotation to the Customer, the quotation shall be:
(a) exercisable for one (1) calendar month; and
(b) subject to the sighting of the artwork and counting of originals; and
(c) subject to any alterations as requested by the Customer.
3. Property & Risk
The risk in the goods sold pass to the Customer when all or part of the goods are loaded for consignment at the Supplier’s warehouse whether by carrier employed or engaged by the Supplier or the Customer. Notwithstanding anything contained herein, property in and legal title to the goods does not pass to the Customer until payment for all debts owing to the Supplier by the Customer has been received by the Supplier. Until such payment has been received by the Supplier, the Customer will store the goods separately and apart from its own goods and those of any other person or company. The Supplier is entitled to re-take possession of all goods delivered until all debts owing to the Supplier by the Customer have been paid in full.
The Customer acknowledges that all goods supplied by the Supplier are of a unique nature particular to that Customer, and as such, the Supplier is not likely to be able to re-sell such goods and therefore, it may not be possible for the Supplier to mitigate any damages as a result of the Customer’s failure to pay for the goods. As a result, until payment of all debts owing to the Supplier by the Customer, the Supplier may, at its discretion, without further notice and without prejudice to any other of its rights re-take possession of the goods and may enter upon the Customer’s premises, by its servants or agents, for that purpose, without any liability on the part of the Supplier for any loss or damage suffered as a consequence of such entry or re-taking of possession and the Customer hereby agrees to provide the Supplier with an irrevocable licence to so enter any premises occupied by it if:
(a) there is a breach of any term of any contract between the Supplier and the Customer; or
(b) the Customer has provided any false or misleading information to the Supplier including information set out in any application for credit or to open an account with the Supplier; or
(c) the Customer commences to be wound up or is placed in liquidation, under official management, or a receiver, or a receiver and manager or voluntary administrator is appointed in respect of the Customer, its undertaking or property or any part thereof, or an encumbrancer, by itself or by an agent, takes or purports to take possession of the Customer’s undertaking or property or any part thereof; or
(d) the Customer parts with possessions of the goods or any of them otherwise than by way of sale in the ordinary course of its business.
These provisions apply despite any arrangement under which the Supplier provides credit to the Customer and these provisions will prevail to the extent of any inconsistency between these provisions and any other agreement or arrangement entered into by the Customer and the Supplier. In addition, the Supplier may recover the purchase price of the goods sold to the Customer by legal proceedings and may file an application for the appointment of a liquidator to the Customer notwithstanding that property in the goods has not been passed to the Customer.
4. Insurance
The Customer will, at its own cost, insure the goods, in the Supplier’s name, against such risks as a prudent owner of the goods would insure for at their full insurable value.
5. Payment
The Customer will pay cash on delivery for all goods delivered. If the Supplier extends trading terms to the Customer, payment for all goods sold will be within seven (7) days from the date of invoice
Interest is payable by the Customer, on all amounts overdue to the Supplier from the date the payment is due until payment at the rate of eighteen (18) per centum per annum. Where payment is not made by the due date, the Customer shall, in addition to any other obligations imposed hereunder, pay to the Supplier on demand all costs of the Supplier (including but not limited to legal costs on a full indemnity basis). All payments received by the Supplier shall be applied as follows:
(a) firstly, towards any costs of the Supplier referred to above (or any part thereof);
(b) secondly, towards any interest payable as set out above (or any part thereof); and
(c) thirdly, towards any other amounts payable by the Customer to the Supplier including but not limited to the price payable for the goods. Time of payment for any goods sold to the Customer is an essential term of any contract between the Supplier and the Customer.
6. Cancellation
Cancellation of any contract of sale between the Customer and the Supplier requires an approval in writing from the Supplier otherwise the goods will be delivered to the Customer and the Supplier will be entitled to payment from the Customer.
The Customer must notify the Supplier of any cancellation within seven (7) days of placement of the order. In the event that the Supplier has commenced production in relation to the cancelled order, a cancellation will not be acceptable unless the Supplier is reimbursed for reasonable expenditure in relation to same. The Supplier is not obliged to supply goods in relation to any contract and may cancel the contract at any time if:
(a) there is a breach of any term of any contract between the Supplier and the Customer; or
(b) the Customer has provided any false or misleading information to the Supplier including information set out in any application for credit or to open an account with the Supplier; or
(c) the Customer commences to be wound up or is placed under official management, or a receiver, or a receiver and manager or voluntary administrator is appointed in respect of the Customer, its undertaking or property or any part thereof, or an encumbrance by itself or by an agent, takes or purports to take possession of the Customer’s undertaking or property or any part thereof; or
(d) The Supplier is unable to supply goods as a result of the failure of any supplier of the Supplier to deliver goods or provide services which are required in order for the Supplier to supply the goods to the Customer.
7. Scope of Services
The Services we will provide to you are those requested in your order. You authorise us to perform such Services (including related Services) which in our reasonable opinion are necessary to fully carry out the terms or your order, even if you have specified all the particular Services in your order.
8. Quantities
You will supply to us sufficient quantities of your products or materials to enable us to produce the Goods and/or fully perform such Services, allowing for a reasonable amount of wastage.
9. Failure to Provide Exact Quantities
We will endeavour to provide the agreed quantity of Goods, however, due to the difficulty in producing exact quantities, you will allow a margin of 5 percent for surpluses or deficiencies in the quantity of Goods we supply.
10. Acceptance and Claims
Acceptance of the goods delivered shall be deemed for all purposes to have taken place immediately upon delivery. You will be deemed to have accepted the Goods and/or the provision of the Services (as the case may be) free of defects or other non conformity with your order unless we receive a substantial written claim as to any defects or other non conformity within 7 days from the delivery or provision as the case may be. No goods will be accepted for return unless agreed in writing by the Supplier prior to such return and then only upon conditions acceptable to the Supplier and at the Customer’s entire risk as to loss or damage. No goods that are accepted or deemed accepted shall be returned unless agreed in writing by the Supplier prior to such return and then only upon conditions acceptable to the Supplier and at the Customer’s entire risk as to loss or damage, and provided the goods are and remain sealed in the manner in which they were delivered.
The Supplier’s liability for a breach of any conditions or warranty implied by Division 3 of Part V of the Trade Practices Act 1974 (other than a condition or warranty implied by Section 69 of the Act) is limited to such one or more of the following as the Supplier decides:
(a) the replacement of the goods or the supply of equivalent goods; or
(b) the repair of the goods; or
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) the payment of the cost of having the goods repaired.
To the extent permitted by law, the Supplier is not under any liability to the Customer or to any other person in respect of any loss or damage (including consequential loss or damage) however caused, which may be suffered or incurred or which may arise either directly or indirectly in respect of the supply of the goods or any ancillary services or advice or the failure or omission on the part of the Supplier to comply with its obligation hereunder.
Except as expressly provided to the contrary in these terms and conditions, all terms, conditions, warranties, undertakings, inducements or representation whether express, implied, statutory or otherwise are excluded to the extent permitted by law, including but not limited to the United Nations Convention on Contracts for the International Sale of Goods.
11. Material Supplied to Us by You
(a) It is your responsibility to maintain a copy of all material supplied to us.
(b) We will not be responsible for accidental damage to materials supplied by you or for the accuracy of supplied input or final output which depends on the input supplied by you.
(c) Until digital input can be evaluated by us, no claims or promises are made about our ability to work with materials submitted in digital format, and we assume no liability for problems that may arise.
(d) Any additional translating, editing or programming needed to use your digital files will be charged to you at our current rates.
12. Data Transmissions
Unless otherwise agreed in writing by us, you must pay for all data transmission charges relating to the Goods and/or Services. We will not be responsible for any errors, omissions or extra costs resulting from faults in data transmissions which are beyond our reasonable control.
13. Prepress Proofs
(a) For printed Goods, we will submit prepress proofs along with original copy for your review and approval.
(b) You must return corrections on a ‘master set’ marked either ‘OK’ or ‘OK with corrections’ or ‘Revised proofs required’ and signed by you. Until the mater copy set is received, we are under no obligation to perform additional work. We will not be responsible for production errors of:
(i) proofs are not required by you;
(ii) the work us printed per your OK; or
(iii) requests for changes are communicated by you orally.
14. Press Check
By arrangement, you may be present at the press during makeready to conduct a press check. You will be charged at our current rates for any press time lost because of any delay by you, or for any alterations/corrections made by you.
15. Colour Proofing and Register
You acknowledge and agree that:
(a) variation in colour between colour proofs and completed Goods is likely to occur due to differences in equipment, paper, inks and other conditions between colour proofing and production pressroom operations;
(b) minor loss of register may occur due to production press room operations; and
(c) you will allow and accept any such variation which reasonably occurs.
16. Materials and Artwork
(a) Property in all tangible items such as digital image files, plates, film and production material, but not artwork, produced by us as part of the Services remains at all times our property and we are under no obligation to retain such materials;
(b) Property in tangible artwork produced by us for you in the performance of the Services or the Production of the Goods is yours, and you must collect it within thirty (30) days after the Services are completed or the goods are supplied. If you fail to do so, we may dispose of it free from any action or claim.
(c) Intellectual property rights, such as copyright in artwork produced by us for you, unless agreed otherwise in writing by us, remains at all times our property.
17. Acknowledgement
You acknowledge and agree that:
(a) you are solely responsible for the content and accuracy of supplied input and other material provided to us;
(b) we will not responsible for checking, for errors or otherwise, such input or other materials;
(c) we will be under no liability in respect of any error or defect in the Goods and/or Services arising from any materials or specifications provided to us by you.
18. Force Majeure
If delivery is prevented or delayed, in part or all, by reason of Act of God, or the consequence thereof including, but not limited to fire, flood, typhoon, earthquakes, or by reason of riots, wars, hostilities, government restrictions, trade embargoes, strikes, lockouts, labour disputes, boycotting of goods, ship shortage, manufacturer’s bankruptcy, delays or damage in transportation or other causes beyond the Supplier’s control, the Supplier may, at its option, perform the contract or the unfulfilled portion thereof within a reasonable time from the removal of the cause preventing or delaying performance, or rescind unconditionally and without liability this contract or the unfulfilled portion thereof.
19. Exclusions and Limitations
These terms and conditions do not exclude, restrict or modify the application of any statutory provision (including a provision of the Trades Practices Act 1974) where to do so would:
(a) contravene that statute; or
(b) cause any part of these terms and conditions to be void.
(c) We exclude all implied conditions and warranties except any implied condition or warranty the exclusion of which would contravene any statute or cause any part of this cause to be void (‘Non-excludable Condition’).
(d) To the extent permitted by law, our liability to you for breach of any Non-excludable Condition (other than an implied warranty of title) is limited, at our option, to refunding the price of the Goods and/or Services in respect of which the breach occurred or to providing, replacing or repairing those Goods and/or providing those Services again.
(e) Except for liability for breach of any Non-excludable Condition and to the extent permitted by law:
(i) we exclude liability for loss of profits or consequential or indirect loss or damage;
(ii) our total liability to you (including any breach of any provision of a contract between us) arising directly or indirectly in relation to the provision of any Goods and/or Services, is limited to the amount paid by you to us for those Goods and/or Services; and
(iii) in circumstances where paragraph (ii) above cannot legally operate, our total liability to you (including any breach of any provision of a contract between us) arising directly or indirectly in relation to the provision of any Goods and/or Services, is limited to the agreed price of those Goods and/or Services.
20. Warranty
Goods sold will have the benefit of any warranty, as may be provided from time to time, given by the Supplier provided that the return of the goods or any part of them is in accordance with the Supplier’s warranty; but the Supplier shall not be liable for any loss or damage either direct or consequential arising out of any defects arising from the use of the goods.You warrant that:
(a) any material to be printed, produced or distributed by us will not:
(i) contain anything illegal, obscene, defamatory or offensive; or
(ii) infringe the copyright or other protected right of any person; and
(b) the printing, production and distribution of all the material will not give rise to any claims against or liabilities to us or our officers, employees or agents.
21. Clerical Errors
Clerical errors, typing errors or other errors in computations, catalogue, quotation, acceptance, offer, invoice, delivery docket, credit note or specification of the Supplier shall be subject to correction by the Supplier.
22. Modification
All modifications and amendments to these provisions or any approvals hereunder shall be in writing by a duly authorised signatory of the Supplier, and if otherwise, shall not be binding upon the Supplier.
23. DELIVERY
The Supplier may deliver the goods by instalments or partial shipment and the Customer will accept each such delivery. Unless otherwise agreed by the parties, delivery by the Supplier within seven (7) days shall constitute delivery by the due date. Requirements of the Customer are not a condition or of the essence of the contract. The Supplier is under no liability for either direct or consequential loss or damage to the Customer arising from delay or postponement in delivery
24. Goods and Services Tax (“GST”)
(a) All amounts expressed or described in any sale contract between the Customer and Supplier are GST exclusive amounts unless expressly stated otherwise.
(b) Subject to Clause 15(a), if any GST (within the meaning of the A New Tax System (Goods and Services) Act 1999 as amended from time to time, ‘GST’) is payable by any party (‘Supplier’) in respect of the supply of any goods, (‘Customer’), then the amount expressed or described in any sale contract (‘Original Amount’) is to be increased so that the Supplier receives an amount (‘Increased Amount’) which, after subtracting the GST liability of the Supplier on that Increased Amount, results in the Supplier retaining the Original Amount after payment of that GST liability.
(c) The Supplier will do all things reasonably available to it to assist the Customer to claim on a timely basis any input tax credits (if any) the Customer may be entitled to claim for purchase of goods. This includes the Supplier maintaining its registered status for GST purposes, and issuing tax invoices for supplies made under this Agreement on a timely basis as reasonably requested by the Customer.
25. Sales Tax
Exemptions from sales tax can only be granted when a sales tax number or exemption is quoted and confirmed in writing on an official order form or letterhead of the Customer by a duly authorised officer of the Customer.
26. Authority to Obtain and Exchange Credit Information
(a) In accordance with section 15K(1)(b) of the Privacy Act 1988 you authorise us to obtain from a credit reporting agency a credit report containing personal credit information about you in order to assess whether we will provide or continue to provide credit to you.
(b) You authorise us to contact any of the contacts or references provided by you and make any such enquiries as are necessary and reasonable to give proper consideration to your application for credit.
(c) We reserve the right to suspend the supply of further Goods and/or Services on credit to you without prior notice of such action to you.
27. Jurisdiction
All contracts between the Supplier and the Customer shall be governed by the laws of the State of Victoria and the parties shall submit to the non-exclusive jurisdiction of the courts of the State of Victoria (and any courts which can hear appeals from such courts).
28. Execution
Any contract between the Supplier and the Customer may be executed on behalf of the Customer by any agent or employee of the Customer and the Customer shall be bound by these terms and conditions irrespective of whether any such execution was unauthorised or fraudulent.
29. Indemnification
(a) The Customer acknowledges and agrees to defend, indemnify and hold harmless the Supplier from and against any and all claims, actions, demands, proceedings, suits, penalties, fines, judgements, costs, losses, damages, omissions, injuries and expenses, including legal fees (on a solicitor-own-client basis) and expenses, which are related to, in connection with or arise out of or incidental to the provision by the Supplier to the Customer of any goods sold or delivered.
(b) In the event that the Customer neglects and/or fails and/or refuses to defend, indemnify or hold harmless the Supplier, the Customer acknowledges and agrees:
(i) to being joined by the Supplier as a party to any proceeding as contained in Condition 19(a) initiated against the Supplier
(ii) to pay to the Supplier all legal and other costs (on a solicitor own client basis) associated or in connection with the joinder of the Customer;
(iii) waive and forever abandon any rights which the Customer may have against the Supplier to claim or seek payment of any costs orders which may be made against the Supplier in favour of the Customer in connection with any proceedings initiated as a consequence of Condition 18(a) herein.
30. Directors Guarantee
Any Customer who is a company shall cause to be executed by one or more of its directors, a Guarantee and Indemnity provided by the Supplier in a form as determined by the Supplier.