Printabox PTY LTD| TERMS AND CONDITIONS
The whole of the Agreement between Printabox Pty Ltd ACN 610 188 022 and the Applicant referred to in the Credit Application (“Customer”) are those set out in these Terms and Conditions as amended from time to time and those, if any, which are implied and which cannot be excluded by law (“Terms”). Any other contractual terms of the Customer (whether upon the Customer’s order or elsewhere), which are contrary to or inconsistent with these Terms, shall not apply nor shall they constitute a counter-offer. By receiving delivery and/or supply of all or a portion of the goods, materials and/or parts and/or labour and/or services supplied by Printabox Pty Ltd under these Terms ("Services"), the Customer shall be deemed to have accepted these Terms and to have agreed that they shall apply to the exclusion of all others.
2. Credit Terms
2.1 Payment is due on or prior to:
2.1.1 Thirty (30) days for credit account customers;
2.1.2 Seven (7) days for non-credit account customers; from the date of invoice rendered in respect of the supply of the Services unless otherwise stated in writing by Printabox Pty Ltd Printabox Pty Ltd may charge liquidated damages at a rate equivalent to two percent (2%) in excess of the rate of interest for the time being fixed under Section 2 of the Penalty Interest Rates Act 1983 if payment is not received by the due date.
2.2 Printabox Pty Ltd’s express or implied approval for extending credit to the Customer may be revoked or withdrawn by Printabox Pty Ltd at any time.
2.3 Printabox Pty Ltd is entitled to set-off against any money owing to the Customer amounts owed to Printabox Pty Ltd by the Customer on any account whatsoever.
2.4 Any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs referred to in Clause 2.5, and then to principal.
2.5 The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by Printabox Pty Ltd for enforcement of obligations and recovery of monies due from the Customer to Printabox Pty Ltd
3 Quotations and Pricing
3.1 Prices charged for Services will be according to a current quotation for those Services. Otherwise, they will be determined by Printabox Pty Ltd by reference to its standard prices in effect at the date of delivery (whether notified to the Customer or not and regardless of any prices contained in the order). Printabox Pty Ltd will use its best endeavours to notify the Customer of price changes but bears no liability in respect of this.
3.2 Any quotation by Printabox Pty Ltd shall not constitute an offer. Quotations will remain valid for thirty (30) days from the date of the quotation.
3.3 Where the Customer requests Printabox Pty Ltd to supply Services to the Customer, Printabox Pty Ltd may give the Customer a written quote (“Quote”) specifying:
3.3.1 The work required to be done in order to fulfill the Customer’s instructions; and
3.3.2 an estimate for that work.
3.4 When Printabox Pty Ltd has given the Customer the Quote:
3.4.1 Printabox Pty Ltd need not commence work until the Quote has been accepted by the customer;
3.4.2 the Customer may accept the Quote in writing (including email or other electronic form) and unless and until that time a Quote does not give rise to a binding contract;
3.4.3 acceptance by the Customer of the Quote will constitute acceptance by the Customer of these Terms; and
3.4.4 Printabox Pty Ltd reserves the right to correct any obvious errors in the Quote, whether technical, stenographic or otherwise.
3.5 If a written Quote is accepted by the Customer:
3.5.1 the Quote shall be carried out and the Customer shall pay for the work in accordance with these Terms;
3.5.2 the Quote will be conclusive proof of the Customer’s instructions (written and verbal) and the order; and
3.5.3 unless otherwise agreed in writing by Printabox Pty Ltd the order may not be cancelled by the Customer.
3.6 An Estimate is based on the current cost of production and is subject to amendment before or after acceptance of the Quote to meet any cost variation between the date of the Quote and the date of execution of the order. Printabox Pty Ltd may amend an Estimate at any time before the order is completed to take into account any rise or fall in the cost of performing the order.
3.7 In addition to the Estimate, Printabox Pty Ltd may charge to the Customer the following, except to the extent that such costs are expressly included in any Quote:
3.7.1 fees for any preliminary work performed at the Customer’s request;
3.7.2 fees for additional work required to be done as a result of the Customer changing the Customer’s instructions;
3.7.3 fees for having to work off poor copy;
3.7.4 fees for additional proofs required;
3.7.5 fees for work which involves tables or foreign language and which was not notified to Printabox Pty Ltd before the Quote was prepared;
3.7.6 fees for additional work required to be done as a result of author’s corrections, including repagination or reformatting;
3.7.7 fees and other charges for work required to be done urgently, including any overtime costs;
3.7.8 fees for handling or storing material or equipment supplied by the Customer for the purposes of the order;
3.7.9 fees for changing or correcting, in order to ensure that the Goods are properly produced, any plates, film, bromides, artwork or any document including computer files, or any other materials which are unsuitable or substandard supplied for the purposes of the order by the Customer;
3.7.10 freight and/or installation costs and charges;
3.7.11 other charges, fees or disbursements referred to in these Terms and not specified in this clause.
3.8 The Customer acknowledges that while Printabox Pty Ltd will make every endeavour to produce the exact number of items in the order, owing to human and/or machine/computer error the number of items actually may be up to 10% over or under the number specified in the order. Where such a discrepancy occurs, Printabox Pty Ltd will adjust the amount charged to the Customer at a pro-rata rate to reflect the actual number of items produced.
3.9 If, before the Quote is prepared, the Customer does not give Printabox Pty Ltd specific instructions in relation to style, type or layout:
3.9.1 Printabox Pty Ltd may use any style, type and layout which, in
Printabox Pty Ltd’s opinion, is appropriate; and
3.9.2 Printabox Pty Ltd may charge an additional amount for any additional work required to be done (including the production of additional proofs) as a result of the Customer subsequently altering the style, type or layout used by Printabox Pty Ltd
3.10 Printabox Pty Ltd may:
3.10.1 issue a pro forma invoice for the amount of the Estimate before commencing the order, if Printabox Pty Ltd has not previously done work for the Customer or otherwise considers it prudent;
3.10.2 if Printabox Pty Ltd is of the view that completing the order will take more than a month, at any time before the order is completed, issue one or more invoices for a proportion of the amount of the Estimate (the proportion to be at Printabox Pty Ltd’s discretion) or require a portion of the Estimate to be paid in advance of any work being done.
3.11 If the Order is suspended for more than thirty days at the request of the Customer or as a result of something for which the Customer is responsible, Printabox Pty Ltd may issue an invoice for a particular sum (to be specified by Printabox Pty Ltd for the work already done and for other costs incurred by Printabox Pty Ltd (including, by way of example but without limitation, storage costs).
3.12 If Printabox Pty Ltd has to obtain goods and/or services not normally stocked or supplied by Printabox Pty Ltd from a third party in order to carry out the Customer’s instructions:
3.12.1 Printabox Pty Ltd will not be liable for any breach of these
Terms if that breach is a result of or is connected with the supply by the third party of the goods and/or services;
3.12.2 Printabox Pty Ltd acquires the goods and/or services as agent for the Customer and not as principal and will have no liability to the Customer in relation to the supply of those goods and/or services; and
3.12.3 the Customer must pay for such goods and/or services.
3.13 Any quotation, acceptance of quotation, purchase order or other document which requires signature may be signed in electronic form, and such signature shall be binding upon the person affixing that signature.
3.14 Unless otherwise specified by Printabox Pty Ltd, the prices exclude: -
3.14.1 Any statutory tax, including any GST, duty or impost levied in respect of the Services and which has not been allowed for by Printabox Pty Ltd in calculating the price.
3.14.2 Costs and charges in relation to insurance, packing (other than the standard packing of Printabox Pty Ltd, crating, delivery (whether by road, rail, ship or air) and export of the goods.
3.15 Any variations in the invoice or contract price as a consequence of currency fluctuations shall be payable by the Customer.
3.16 The contract between Printabox Pty Ltd and the Customer shall not be affected by any impositions or alterations of customs duties or by decisions of the Customs Department with regard to either classification or value of duty or landing charges occasioned thereby. Any such impositions shall be to the account of the Customer.
4 Delivery and Supply
4.1 Any times quoted for delivery and/or supply are estimates only and Printabox Pty Ltd shall not be liable for failure to deliver/supply, or for delay in delivery/supply. The Customer shall not be relieved of any obligation to accept or pay for Services, by reason of any delay in delivery/supply or dispatch. Printabox Pty Ltd reserves the right to stop supply at any time if the Customer fails to comply with the Terms.
4.2 Printabox Pty Ltd may refuse to supply any order by the Customer for Services in its absolute discretion and may make acceptance of an order conditional upon it receiving a satisfactory credit assessment of the Customer.
4.3 The Customer is deemed to accept delivery of the goods where it is either delivered to the Customer's premises or when Printabox Pty Ltd notifies the Customer that the goods are available for collection.
4.4 If the Customer is unable or fails to accept delivery of the goods, Printabox Pty Ltd may deliver it to a place of storage nominated by the Customer and, failing such nomination, to a place determined by Printabox Pty Ltd Such action shall be deemed to be delivery to the Customer. The Customer shall be liable for all cost, charge and expense incurred by Printabox Pty Ltd on account of storage, detention, double cartage/delivery or similar causes.
5.1 Until full payment has been made for all Services, and any other sums in any way outstanding from the Customer to Printabox Pty Ltd from time to time: -
5.1.1 All sums outstanding become immediately due and payable by the Customer to Printabox Pty Ltd if the Customer makes default in paying any other sums due to Printabox Pty Ltd, becomes bankrupt, or commits any act of bankruptcy, compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in these Terms.
5.1.2 The property in the goods shall not pass to the Customer and the Customer shall hold the goods as bailee for Printabox Pty Ltd (returning the same to Printabox Pty Ltd on request).
5.1.3 The Customer is only authorised to sell the goods (or any portion of them) to third parties as the fiduciary agent of Printabox Pty Ltd provided that there shall be no right to bind Printabox Pty Ltd to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by the Customer for the goods (or any portion of them) shall be held on trust for Printabox Pty Ltd pursuant to the fiduciary relationship.
5.1.4 Printabox Pty Ltd is irrevocably authorised to enter any premises where the goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the goods without liability for trespass or any resulting damage.
5.2 In addition to any lien to which Printabox Pty Ltd may, by statute or otherwise, be entitled, Printabox Pty Ltd shall in the event of the Customer's insolvency, bankruptcy or winding up, be entitled to a general lien over all property or goods belonging to the Customer in Printabox Pty Ltd’s possession (although all or some of such property or goods may have been paid) for the unpaid price of any Services to the Customer under this or any other contract.
6 Customer’s Property
6.1 If Printabox Pty Ltd and the Customer agree that the Customer is responsible for supplying materials or equipment for the purposes of the order:
6.1.1 the Customer must supply sufficient quantities of materials to allow for spoilage, such quantity to be specified by Printabox Pty Ltd;
6.1.2 Printabox Pty Ltd will not normally count or check the materials and if requested by the Customer to do so, may charge for counting or checking;
6.1.3 Printabox Pty Ltd will not be responsible for any defects in the Services which are caused by defects in or the unsuitability of materials or equipment supplied by the Customer;
6.2 If the Customer leaves property in Printabox Pty Ltd’s possession without specific instructions as to what is to be done with it, Printabox Pty Ltd may, six months after gaining possession of the property, dispose of or sell the property and retain any proceeds of sale as compensation for holding and handling the property.
6.3 Printabox Pty Ltd will hold any property of the Customer at the Customer’s risk.
7 Intellectual Property and Ownership of Printing Materials
7.1 Unless Printabox Pty Ltd and the Customer agree otherwise in writing, drawings, sketches, paintings, photographs, designs, typesetting, dummies, models, negatives, positives, dies, plates or cylinders, disks, tapes, compact disks or any other media and other material produced by Printabox Pty Ltd in the course of or in preparation for performing the order (whether or not in fact used for the purposes of performing the order) are the property of Printabox Pty Ltd
7.2 The copyright in all artistic and literary works authored by Printabox Pty Ltd shall be the property of Printabox Pty Ltd The Customer:
7.2.1 warrants that the Customer has copyright or a licence to authorise Printabox Pty Ltd to reproduce all artistic and literary works supplied by the Customer to Printabox Pty Ltd for the purposes of the order and the Customer hereby expressly authorises Printabox Pty Ltd to reproduce all and any of such works for those purposes; and
7.2.2 must indemnify Printabox Pty Ltd against all liability, losses or expenses incurred by Printabox Pty Ltd in relation to or in any way directly or indirectly connected with any breach of copyright or of any rights in relation to copyright; and
7.2.3 is hereby granted a non-exclusive licence to use the copyright in any literary and/or artistic works authored by Printabox Pty Ltd for the purposes of the order, provided that the exercise of such licence is conditional upon Printabox Pty Ltd having received all monies due to Printabox Pty Ltd under the Terms and Conditions.
7.3 Printabox Pty Ltd is not obliged to print any illegal or libelous matter and the Customer agrees to indemnify Printabox Pty Ltd against any claim relating to or arising from the printing of such matter.
7.4 All disks, tapes, compact disks or other media (other than media supplied by the Customer) used by Printabox Pty Ltd to store data for the purposes of completing the order are the property of Printabox Pty Ltd The Customer cannot require Printabox Pty Ltd to supply to the Customer any data so stored, but in the event that Printabox Pty Ltd agrees to do so, Printabox Pty Ltd may charge for supplying such data to the Customer.
7.5 Printabox Pty Ltd will not be responsible for storing any data on disks, tapes, compact disks or other media when the order has been completed. If Printabox Pty Ltd agrees to store such data, Printabox Pty Ltd may charge for doing so.
8 Returns, Cancellations and Claims
8.1 The Customer shall not return any goods to Printabox Pty Ltd without obtaining prior authorisation from Printabox Pty Ltd No returns will be accepted unless a copy of the relevant invoice is enclosed with the returned goods. A list of the goods returned including product descriptions, quantity, date of return and the Customer's name and address must also be enclosed. Freight charges must be paid by the Customer. The Customer shall not deduct the amount of any anticipated credit from any payment due to Printabox Pty Ltd but must await receipt of a credit note.
8.2 No cancellations or partial cancellation of an order by the Customer shall be accepted by Printabox Pty Ltd unless it has first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by Printabox Pty Ltd, will indemnify Printabox Pty Ltd against all loss, without limitation.
8.3 All complaints or claims must be submitted by the Customer to Printabox Pty Ltd in writing within seven (7) business days of the date of the invoice rendered for the supply of the Services. Otherwise, the Customer shall be deemed to have accepted the Services.
9 Privacy Act 1988 (“Privacy Act”) To enable Printabox Pty Ltd to assess the Customer’s application for credit, the Customer authorises Printabox Pty Ltd;
9.1 To obtain from a credit reporting agency a consumer or commercial credit report containing personal information about the Customer and its guarantors pursuant to Section 18K (1) of the Privacy Act; and
9.2 To obtain a report from a credit reporting agency and other information in relation to the Customer’s commercial credit activities, and
9.3 To give to a credit reporting agency information including identity particulars and application details AND in accordance with Section 18N (1) of the Privacy Act the Customer authorises Printabox Pty Ltd to give to and obtain from any credit provider named in the accompanying credit application and credit providers that may be named in a credit report issued by a credit reporting agency information about the Customer’s credit arrangements. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act. The Customer understands that information can be used for the purposes of assessing its application for credit (Section 18L(4) Privacy Act), assisting it to avoid defaulting on its credit obligations, assessing its credit worthiness and notifying other credit providers and credit reporting agencies of a default by it under these Terms.
The Customer must notify Printabox Pty Ltd in writing within seven (7) days of: -
10.1 Any alteration of the name or ownership of the Customer.
10.2 The issue of any legal proceedings against the Customer.
10.3 The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer.
10.4 Any change in the ownership of the business name of the Customer. The Customer agrees that it shall be liable to Printabox Pty Ltd for all Services supplied to the new owner by Printabox Pty Ltd until notice of any such change is received.
11.1 No warranties except those implied and that by law cannot be excluded are given by Printabox Pty Ltd in respect of Services supplied. Where it is lawful to do so, the liability of Printabox Pty Ltd for a breach of a condition or warranty is limited to the re-supply of Services, or the payment of the cost of acquiring equivalent Services, as determined by Printabox Pty Ltd
11.2 The Customer acknowledges and warrants that it has relied on its own skill and judgment or, alternatively, on the skill and judgment of tradesmen and professional advisers retained by it to provide advice and assistance on the suitability of the Services for specific purposes and procedures and, in this respect, shall indemnify Printabox Pty Ltd from and against any suit, claim, demand or compensation which, but for these Terms, the Customer may have had against Printabox Pty Ltd
11.3 The Customer warrants to Printabox Pty Ltd that it is purchasing the Services as the principal and not as an agent.
12 Force Majeure
Printabox Pty Ltd shall be released from its obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties renders provision of the Services impossible, where all money due to Printabox Pty Ltd shall be paid immediately and, unless prohibited by law, Printabox Pty Ltd may elect to terminate the Agreement.
13 Equitable Charge
The Customer as beneficial owner and/or registered proprietor now charges in favour of Printabox Pty Ltd all of the Customer's estate and interest in any real property (including but not limited to any applicable land owned by the Customer named or described as the Customer's Street Address in the Credit Application if applicable) ("Land") to secure payment of accounts rendered by Printabox Pty Ltd to the Customer for the delivery and/or supply of the Services including interest payable on these accounts and costs (including legal costs on a full indemnity basis) incurred by Printabox Pty Ltd and including the costs to prepare and lodge a Caveat against the Land and to remove the Caveat.
14 Failure to Act
Printabox Pty Ltd’s failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or Printabox Pty Ltd’s failure to exercise any right or remedy available under these Terms or at law, or Printabox Pty Ltd’s failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under these Terms shall not constitute a waiver of any subsequent default or a waiver of Printabox Pty Ltd’s right to demand timely payment of future obligations or strict compliance with the Terms.
15 Legal Construction
15.1 These Terms shall be governed by and interpreted according to the laws of Victoria and Printabox Pty Ltd and the Customer consent and submit to the jurisdiction of the Courts of Victoria.
15.2 Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.