RM Gregory Promoprint – Terms & Conditions of Trade

  1. Definitions

    1. “Seller” means Cosmopolitan Printers Pty Ltd T/A RM Gregory Promoprint, its successors and assigns or any person acting on behalf of and with the authority of Cosmopolitan Printers Pty Ltd T/A RM Gregory Promoprint.

    2. “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting the Seller to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:

      • if there is more than one Client, is a reference to each Client jointly and severally; and
      • if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
      • includes the Client’s executors, administrators, successors and permitted assigns.
    3. “Goods” means all Goods or Services supplied by the Seller to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

    4. “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between the Seller and the Client in accordance with clause 6

    5. “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999”.

 

  1. Acceptance

    1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.

    2. These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Seller.

    3. The Client acknowledges that the inclusions of certain Goods on Price lists, catalogues, advertising material and otherwise, or a verbal quotation or representation regarding Goods, does not mean that such Goods are items normally stocked by the Seller or that such Goods continue to be available from the manufacturer.

    4. Where Goods have either been quoted by the Seller to the Client and/or Goods were present on an order (indent or otherwise) submitted by the Client to the Seller, and such Goods are no longer available from the manufacturer and/or such Goods are subject to delayed delivery from the manufacturer, the Seller shall be under no obligation to substitute the Goods with other Goods (similar in description, application, or otherwise) at the same Price or any Price or make available for current or future delivery any Goods of similar or improved description or application at either the Price so ordered or any other particular Price.

 

  1. Electronic Transactions Act 2000

    1. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

  1. Errors and Omissions

    1. The Client acknowledges and accepts that the Seller shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

      • resulting from an inadvertent mistake made by the Seller in the formation and/or administration of this contract; and/or
      • contained in/omitted from any literature (hard copy and/or electronic) supplied by the Seller in respect of the Services.
    2. In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of the Seller; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.

 

  1. Change in Control

    1. The Client shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Seller as a result of the Client’s failure to comply with this clause.

 

  1. Price and Payment

    1. At the Seller’s sole discretion, the Price shall be either:

      • as indicated on any invoice provided by the Seller to the Client; or
      • the Price as at the date of delivery of the Goods according to the Seller’s current price list; or
      • the Seller’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
    2. The Seller reserves the right to change the Price if a variation to the Seller’s quotation is requested, including, but not limited to, any variation to the Price as a result of an increase in the manufacturer prices, change of design, a fluctuation in exchange rates or duties, or rising freight costs. Variations will be charged for on the basis of the Seller’s quotation, and will be detailed in writing, and shown as variations on the Seller’s invoice. The Client shall be required to respond to any variation submitted by the Seller within ten (10) working days.  Failure to do so will entitle the Seller to add the cost of the variation to the Price.  Payment for all variations must be made in full at the time of their completion.

    3. At the Seller’s sole discretion, a non-refundable deposit may be required.

    4. Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by the Seller, which may be:

      • on delivery of the Goods;
      • before delivery of the Goods;
      • by way of instalments/progress payments in accordance with the Seller’s payment schedule;
      • thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
      • the date specified on any invoice or other form as being the date for payment; or
      • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Seller.
    5. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Seller.

    6. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.

    7. Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

    8. All quoted Prices include standard packaging. Any special packaging shall be treated as a variation to the Price.

    9. Any credit amount owing to the Client is non-transferrable and shall not be refunded under any circumstances, by the Seller to the Client, by way of cash, cheque, electronic or other immediate or non-immediate settlement means. Furthermore, any outstanding credit shall expire twelve (12) months after the date the credit was issued by the Seller to the Client in the event the credit has not been offset against other orders.

 

  1. Delivery of Goods

    1. Delivery (“Delivery”) of the Goods is taken to occur at the time that:

      • the Client or the Client’s nominated carrier takes possession of the Goods at the Seller’s address; or
      • the Seller (or the Seller’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
    2. At the Seller’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.

    3. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

    4. Any time specified by the Seller for delivery of the Goods is an estimate only and the Seller will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that the Seller is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then the Seller shall be entitled to charge a reasonable fee for redelivery and/or storage.

 

  1. Risk

    1. Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.

    2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.

    3. If the Client requests the Seller to leave Goods outside the Seller’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.

    4. When quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other good copy, any extra work or cost caused by any variation by the Client of his original instructions or by the manuscript copy being, in the Sellers opinion, poorly prepared or by the Client’s requirements being different from those originally submitted or described, then the cost of such variations may be charged to the Client and shown as extras on the invoice.

    5. All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client.

    6. Any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Client and shown as extras on the invoice.

    7. Any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Client which is deemed necessary by the Seller to ensure correctly finished work shall be invoiced as an extra.

    8. Unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at its request for the works.

    9. Where the performance of any contract with the Client requires the Seller to obtain Goods or Services from a third party, the contract between the Seller and the Client shall incorporate and shall be subject to the conditions of supply of such Goods and Services to the Seller, and the Client shall be liable for the cost in full including the Seller’s margin of such Goods or Services.

    10. Whilst every care is taken by the Seller to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proof reading of the Goods. The Seller shall be under no liability whatever for any errors not corrected by the Client in the final proof reading. Should the Clients alterations require additional proofs this shall be invoiced as an extra.

    11. Goods printed or made to special order, Client specification or non-catalogue items are under no circumstances acceptable for credit or return. Cancellation of orders for printed or special or non-catalogue items will definitely not be accepted, once these orders are in production.

    12. The Seller is under no obligation to provide samples of Goods ordered other than by virtual (computerised) sample. Whilst every effort will be taken by the Seller to match virtual colours with physical colours, the Seller will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Client’s computer and/or the final product. Should a physical sample be required this will be provided on request by the Client and will be charged for as an extra including return freight, the charge will be contra against final invoice.

    13. The Seller shall be under no liability whatsoever to the Client for any variation (beyond the reasonable control of the Seller) in colours between the approved prototype and the finished Goods.

    14. The Seller shall not be held liable for inks wearing off through general wear and tear.

    15. Where the Client supplies materials, adequate quantities shall be supplied to cover spoilage. Sheets and other materials shall not be counted or checked when received unless requested by the Client in writing. An additional charge may be made by the Seller in respect of any such counting or checking requested by the Client.

    16. In the case of property and materials left with the Seller without specific instructions, the Seller shall be free to dispose of them at the end of twelve months after his receiving them and to accept and retain any proceeds gained from such disposal to cover the Seller’s costs in holding and handling such items.

    17. Where materials or equipment are supplied by the Client for the provision of Services the Seller shall accept no liability for imperfect work caused by defects in, or the unsuitability of, such materials or equipment for the Services.

    18. Any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Client which is deemed necessary by the Seller to ensure correctly finished work shall be invoiced as an extra.

    19. Whilst every care is taken by the seller to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading of the Goods. The Seller shall accept no liability whatsoever for any errors not picked up and/or corrected by the Client in the final proof reading.

    20. Any advice, recommendation, information, assistance or service provided by the Seller in relation to Goods or Services supplied is given in good faith is based on the Sellers own knowledge and experience and shall be accepted without liability on the part of the Seller and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods or Services.

 

  1. Specifications

    1. All specifications, drawings and images, and particulars of weight and dimensions and other information submitted to the Client are as supplied by the manufacturer and the Seller shall not be liable for any loss or damage resulting from any discrepancies between this information and the Goods.

    2. The Client acknowledges that neither the Seller nor any person acting on the Seller’s behalf has made any representation or given any promise or undertaking not expressly set out in the contract whether as to the fitness of the Goods for any particular purpose or any other application or matter.

 

  1. Title

    1. The Seller and the Client agree that ownership of the Goods shall not pass until:

      • the Client has paid the Seller all amounts owing to the Seller; and
      • the Client has met all of its other obligations to the Seller.
    2. Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.

    3. It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 1:

      • the Client is only a bailee of the Goods and must return the Goods to the Seller on request.
      • the Client holds the benefit of the Client’s insurance of the Goods on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
      • the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand.
      • the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs.
      • the Client irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are kept and recover possession of the Goods.
      • the Seller may recover possession of any Goods in transit whether or not delivery has occurred.
      • the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Seller.
      • the Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

 

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

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

    2. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to the Seller for Services – that have previously been supplied and that will be supplied in the future by the Seller to the Client.

    3. The Client undertakes to:

      • promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to;
        (a)  register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        (b)  register any other document required to be registered by the PPSA; or
        (c)  correct a defect in a statement referred to in clause 3(a)(i) or 11.3(a)(ii);
      • indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
      • not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of the Seller;
      • immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
    4. The Seller and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

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

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

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

    8. The Client must unconditionally ratify any actions taken by the Seller under clauses 3 to 11.5.

    9. Subject to any express provisions to the contrary (including those contained in this clause 11) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

  1. Security and Charge

    1. In consideration of the Seller agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

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

    3. The Client irrevocably appoints the Seller and each director of the Seller as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.

 

  1. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

    1. The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify the Seller in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Client must allow the Seller to inspect the Goods.

    2. Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

    3. The Seller acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

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

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

    6. If the Seller is required to replace the Goods under this clause or the CCA, but is unable to do so, the Seller may refund any money the Client has paid for the Goods.

    7. If the Client is not a consumer within the meaning of the CCA, the Seller’s liability for any defect or damage in the Goods is:

      • limited to the value of any express warranty or warranty card provided to the Client by the Seller at the Seller’s sole discretion;
      • limited to any warranty to which the Seller is entitled, if the Seller did not manufacture the Goods;
      • otherwise negated absolutely.
    8. Subject to this clause 13, returns will only be accepted provided that:

      • the Client has complied with the provisions of clause 1; and
      • the Seller has agreed that the Goods are defective; and
      • the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
      • the Goods are returned in as close a condition to that in which they were delivered as is possible.
    9. Notwithstanding clauses 1 to 13.8 but subject to the CCA, the Seller shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

      • the Client failing to properly maintain or store any Goods;
      • the Client using the Goods for any purpose other than that for which they were designed;
      • the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • the Client failing to follow any instructions or guidelines provided by the Seller;
      • fair wear and tear, any accident, or act of God.
    10. Notwithstanding anything contained in this clause if the Seller is required by a law to accept a return then the Seller will only accept a return on the conditions imposed by that law.

 

  1. Intellectual Property

    1. Drawings, sketches, painting, photographs, designs or typesetting furnished by the Seller, dummies, models or the like devices made or procured and manipulated by the Seller and negatives, positives, blocks, engravings, stencils, dies, plates or cylinders made from the Seller’s original design, or from a design furnished by the Client, remain the exclusive property of the Seller unless otherwise agreed upon in writing.

    2. Sketches and dummies submitted by the Seller on a speculative basis shall remain the property of the Seller. They shall not be used for any purpose other than that nominated by the Seller and no ideas obtained there from may be used without the consent of the Seller. The Seller shall be entitled to compensation from the Client for any unauthorised use of such sketches and dummies.

    3. Disks, artwork and film supplied by the Client and/or other authorised persons remain the property of the Client. Unless otherwise indicated in writing the Seller shall assume these disks, artwork and film to be duplicate copies of the original.

    4. The Client agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, photographs, sketches or Goods which the Seller has created for the Client.

 

 

 

 

  1. Default and Consequences of Default

    1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

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

    3. Further to any other rights or remedies the Seller may have under this contract, if a Client has made payment to the Seller, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Seller under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.

    4. Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:

      • any money payable to the Seller becomes overdue, or in the Seller’s opinion the Client will be unable to make a payment when it falls due;
      • the Client has exceeded any applicable credit limit provided by the Seller;
      • the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

 

  1. Cancellation

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

    2. The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Seller shall repay to the Client any money paid by the Client for the Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.

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

    4. Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

 

  1. Privacy Act 1988

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

    2. The Client agrees that the Seller may exchange information about the Client with those credit providers and with related body corporates for the following purposes:

      • to assess an application by the Client; and/or
      • to notify other credit providers of a default by the Client; and/or
      • to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
      • to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
    3. The Client consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit.

    4. The Client agrees that personal credit information provided may be used and retained by the Seller for the following purposes (and for other agreed purposes or required by):

      • the provision of Goods; and/or
      • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
      • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
      • enabling the collection of amounts outstanding in relation to the Goods.
    5. The Seller may give information about the Client to a CRB for the following purposes:

      • to obtain a consumer credit report;
      • allow the CRB to create or maintain a credit information file about the Client including credit history.
    6. The information given to the CRB may include:

      • personal information as outlined in 1 above;
      • name of the credit provider and that the Seller is a current credit provider to the Client;
      • whether the credit provider is a licensee;
      • type of consumer credit;
      • details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
      • advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Seller has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
      • information that, in the opinion of the Seller, the Client has committed a serious credit infringement;
      • advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
    7. The Client shall have the right to request (by e-mail) from the Seller:

      • a copy of the information about the Client retained by the Seller and the right to request that the Seller correct any incorrect information; and
      • that the Seller does not disclose any personal information about the Client for the purpose of direct marketing.
    8. The Seller will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.

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

 

  1. Unpaid Seller’s Rights

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

      • a lien on the item; and
      • the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
    2. The lien of the Seller shall continue despite the commencement of proceedings, or judgment for any monies owing to the Seller having been obtained against the Client.

 

  1. Service of Notices

    1. Any written notice given under this contract shall be deemed to have been given and received:

      • by handing the notice to the other party, in person;
      • by leaving it at the address of the other party as stated in this contract;
      • by sending it by registered post to the address of the other party as stated in this contract;
      • if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
      • if sent by email to the other party’s last known email address.
    2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

 

  1. Dispute Resolution

    1. If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:

(a)  referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b)  conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

 

  1. Trusts

    1. If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Seller may have notice of the Trust, the Client covenants with the Seller as follows:

      • the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
      • the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
      • The Client will not without consent in writing of the Seller (the Seller will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
        (a)  the removal, replacement or retirement of the Client as trustee of the Trust;
        (b)  any alteration to or variation of the terms of the Trust;
        (c)  any advancement or distribution of capital of the Trust; or
        (d)  any resettlement of the trust property.

 

  1. General

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

    2. These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which the Seller has its principal place of business, and are subject to the jurisdiction of the courts in New South Wales.

    3. Subject to clause 13 the Seller shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

    4. The Seller may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.

    5. The Client cannot licence or assign without the written approval of the Seller.

    6. The Seller may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Seller’s sub-contractors without the authority of the Seller.

    7. The Client agrees that the Seller may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Seller to provide Goods to the Client.

    8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

    9. Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.