The Supplier: BART KELSEY
The Customer: The Customer or any person acting on behalf of and with the authority of the Customer.
- The Supplier is BART KELSEY.
- The Customer is the party as described above.
- The Guarantor is person (or persons), or entity, who agrees to be liable for the debts of the Customer.
- The Order shall be defined as any request for the provision of Goods by the Customer with the Supplier which has been accepted by the Supplier, and includes the Order form.
- The Goods are the prints, master file, plates and other products provided by the Supplier.
- The Price is the amount invoiced for Goods supplied.
- Indirect, Special or Consequential loss or damage includes i) any loss of income profit or business; ii) any loss of good will or reputation; iii) any loss of value of intellectual property.
- Invoices include invoices for Goods supplied.
- Any Order requested by the Customer is deemed to be an Order incorporating these Terms & Conditions notwithstanding any inconsistencies which may be introduced in the Customer Order or acceptance unless expressly agreed to by the Supplier in writing.
- No subsequent correspondence or document or discussion shall modify or otherwise vary these Terms & Conditions unless such variation is in writing and signed by the Supplier.
- The Terms & Conditions are binding on the Customer, his heirs, assignees, executors, trustees and where applicable, any liquidator, receiver or administrator.
- In these Terms & Conditions, the singular shall include the plural, the masculine shall include feminine and neuter and words importing persons shall apply to corporations.
- Where more than one Customer completes this agreement each shall be liable jointly and severally.
- If any provision of these Terms & 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.
- The Supplier may sub-contract all or any part of its rights and obligations without the Customer’s consent.
- The Supplier reserves the right to review these Terms & Conditions at any time. If, following any such review, there is to be any change to these Terms & Conditions, then that change will take effect from the date on which the Supplier notifies the Customer of such change.
- At the Supplier’s sole discretion the Price shall be either:
- as detailed on invoices provided by the Supplier to the Customer in respect of Goods supplied; or
- the Supplier’s quoted Price for the Order (subject to clause 4.2).
- The Supplier reserves the right to change the Price in the event of a variation to the Supplier’s Order, and notice will be provided by the Supplier within a reasonable time.
- Any written quotation provided by the Supplier to the Customer concerning the proposed supply of goods or services is:
- valid for 30 days from the date of the quotation; and
- not an offer to sell, and no order placed by the Customer in response to any quotation will bind the Supplier unless and until such order is accepted by the Supplier acting in its absolute discretion.
- All prices quoted are based on the Customer supplying artwork which conforms to the Supplier’s file requirements. Should artwork correction be required, the Supplier reserves the right to make such alterations and request subsequent approval from the Customer to proceed to print. Any charges associated for this artwork correction may be passed to the Customer, subject to prior notification.
- Any variation from the plan of scheduled works or specifications will be charged for on the basis of the Supplier’s quotation and will be shown as variations on the invoice.
5. DEPOSIT, PAYMENT & CREDIT POLICY
- Once a Customer has placed an Order for Goods, a 50% deposit is required to be paid to the Supplier within three (3) working days from the date of the Order. Work will not commence until payment receipt has been confirmed.
- Standard payment terms require a 50% deposit with the purchase order prior to commencement of any print work or services. The balance is due cash on delivery.
- Payment by direct deposit or cheque is not deemed made until the proceeds of the transfer have cleared.
- Credit terms may be offered at the Supplier’s discretion and are subject to a satisfactory credit check.
Application may be made for credit terms once a satisfactory payment history has been established. For credit purposes, the two main groups of Customers are Non-Account Customers and Account Customers.
- Account Customers
- The Customer must pay a fifty percent (50%) deposit to the Supplier prior to the commencement of any work or services, and make full payment of the Price to the Supplier within thirty (30) days from the date of issue of invoices for the Goods.
6. GOODS AND SERVICES TAX
- GST refers to Goods and Services tax under the Goods and Services Act 1999 (“GST Act”) and terms used herein have the meanings contained within the GST Act.
- It is hereby agreed between the Customer and the Supplier that the consideration for the Supplier expressed in this agreement is exclusive of the Supplier’s liability of GST.
- On sale:
- The Customer will pay to the Supplier, in addition to the total purchase Price, the amount payable by the Supplier of GST on the taxable supply made by the Supplier under this agreement;
- The Supplier shall deliver to the Customer a Tax Invoice for the supply in a form which complies with the GST Act and Regulations.
- On sale:
7. DISHONOUR OF CHEQUE
- If any cheque issued by the Customer or by any third party in payment of the Price is dishonoured:
- The Supplier may refuse to supply any further Goods until satisfactory payment is received in full, including bank fees and charges;
- The Supplier is entitled to treat the dishonour of the Customer’s cheque as a repudiation of this agreement and to elect between terminating this agreement or affirming this agreement, and in each case claiming and recovering compensation for loss or damage suffered from the Customer.
- The Customer may be liable for a dishonoured cheque fee of $40.00.
8. DELIVERY OF GOODS
- Delivery of the Goods shall be deemed to take place when the Goods are delivered by the Supplier or the Supplier’s nominated carrier and:
- the Customer or the Customer’s nominated carrier receives the Goods; or
- a person over the legal age at the Customer’s address or the Customer’s nominated address receives the Goods.
- At the Supplier’s sole discretion, the costs of delivery are either included in the Price, or in addition to the Price.
- The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Supplier shall be entitled to charge a reasonable fee for redelivery.
- The Supplier may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
- The failure of the Supplier to deliver shall not entitle either party to treat this contract as repudiated.
- Shortages not to exceed ten percent (10%) of the quantity ordered shall constitute an acceptable delivery. In the event of a shortage not exceeding 10% of the ordered amount, the Supplier may at its sole option issue a pro-rated credit for the amount shorted in lieu of reprinting the shorted amount.
- The Supplier shall not be liable for any loss or damage or for consequential loss or damage whatever due to failure by the Supplier to deliver the Goods promptly or at all.
9. RISK & LIABILITY
- The Customer acknowledges that the Supplier shall not be liable for and the Customer releases the Supplier from :
- Any reasonable variation in the colour of or in the positioning of the image on the Goods as opposed to what was on the proof;
- Any claims in respect of faulty or defective design of any Goods supplied;
- Physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of supply, layout, assembly, installation or operation of the Goods or arising out of the Supplier’s negligence or in any way whatsoever.
- Except as provided in these conditions all express and implied warranties, guarantees and conditions under statute or general law as to merchantable quality, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise is expressly excluded.
10. RETENTION OF TITLE
- While risk in the Goods shall pass on delivery (including all risks associated with unloading), legal and equitable title in the Goods shall remain with the Supplier until full payment for all Goods supplied by the Supplier to the Customer is made. Pending such payment, the Customer shall hold the Goods as bailee for the Supplier and shall return the Goods to the Supplier if so requested.
- The Supplier reserves the following rights in relation to the Goods until the balance owed to the Supplier by the Customer are fully paid:
- To enter the Customer’s premises (or the premises of any third parties, associated company or agent where the Goods are located) without liability for trespass or any resulting damage in retaking possession of the Goods; and
- To keep or resell any Goods repossessed pursuant to above. If the Goods are resold, or products manufactured using the Goods are sold, by the Customer, the Customer shall hold such part of the proceeds of any such sale as represents the invoiced Price of the Goods sold or used in the manufacture of the Goods sold in a separate identifiable account as the beneficial property of the Supplier and shall pay such amount to the Supplier upon request. Notwithstanding the provisions above the Supplier shall be entitled to maintain an action against the Customer for the purchase Price and the risk of the Goods shall pass to the Customer upon delivery.
11. AGREED USE
- The Customer acknowledges that the Customer may forfeit any rights if any he may have against the Supplier if:
- The Goods are applied for any other use to which the Goods are not intended for;
- Any alteration to the Goods sold or quoted is carried out without the Supplier’s written consent.
- The Goods have been subjected to temperatures which cause heat distortion to the lenticular plastic -nominally around 69 degrees Celsius and above.
- The Customer further acknowledges sole responsibility for any damage or injury to property or person caused by using the sold Goods in any way which the Customer may forfeit their rights against the Supplier.
12. DEFAULT, SECURITY & CHARGE
- Invoices issued by the Supplier shall be due and payable prior to dispatch of Goods for Non-Account Customers, and invoices issued by the Supplier shall be due and payable within seven (7) or thirty (30) days of the date of issue for Account Customers (“Default Date”) depending on the terms agreed with the Supplier. Without prejudice to any other rights of the Supplier, the Customer may be charged account keeping fees of $10.00 monthly on any payment in arrears.
- If the Supplier does not receive the outstanding balance for the Goods on or before the Default Date, the Supplier may, without prejudice to any other remedy it may have, forward the Customer’s outstanding account to a debt collection agency for further action. The Customer acknowledge and agree that:
- After the Default Date, the Outstanding Balance shall include, but not limited to, all applicable fees and charges under this agreement;
- The Supplier may incur commission costs charged by the debt recovery agency on the Aggregate Sum (as defined below) at an applicable rate agreed between the Supplier and the debt recovery agency (“Commission Rate”);
- The Customer will be responsible for payment of the aggregate of the Outstanding Balance on the Customer’s account and all commission costs incurred by the Supplier (“Aggregate Sum”), the intention of the parties being that the Supplier will receive the whole outstanding balance after the deduction of commission costs and other expenses;
- The Aggregate Sum will be calculated as follows: Aggregate Sum = Outstanding Balance / (1 – Commission Rate)
- The Aggregate Sum may be referred to a debt collection agency for further action;
- The Aggregate Sum will be payable as a liquidated debt on demand;
- The Customer is also responsible for all expenses in relation to the collection of the Aggregate Sum including, but not limited to, all charges and fees, legal costs on an indemnity basis, and disbursements.
- Any Order can only be cancelled by the Customer prior to the proof being approved.
- For any such cancellation, the Customer will incur a cancellation fee in the sum of ten percent (10%) of the Price.
14. INTELLECTUAL PROPERTY
- Where the Supplier has prepared the master file for the prints for the Customer, then the copyright in the file shall remain vested in the Supplier, and shall only be used by the Customer at the Supplier’s discretion.
- The Customer warrants that all designs or instructions to the Supplier will not cause the Supplier to infringe any patent, registered design or trademark in the execution of the Customer’s Order and the Customer agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
- Unless otherwise stated by the Customer in writing, the Customer warrants that the Supplier can use Customer materials and Goods in the Supplier’s promotional materials and to depict the quality and range of the Supplier’s Goods and services.
- The Customer shall have no right of set-off in any suit, claim or proceeding brought by the Supplier against the Customer for default in payment.
- The Customer acknowledges that the Supplier can produce this clause in bar of any proceeding for set-off.
- The Customer is responsible to effect whatever insurance cover he requires at his own expense.
- If any of the Goods are damaged or destroyed prior to property in them passing to the Customer, the Supplier is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
- Any claims for defects, damages, or shortages must be made in writing within five (5) business days after receipt of the Goods. The Customer shall afford the Supplier an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way.
- If the Customer does not give the notice as required in clause 17.1. the Customer is deemed to have accepted the Goods or Services in accordance with the terms and conditions and free from any defect or damage.
- If the Goods are delivered in a damaged condition or in damaged boxes, it is the Customer’s responsibility to note this on the delivery docket with the courier immediately upon delivery.
- The Supplier will replace only those orders that were processed incorrectly.
- The Supplier at its sole option will repair or reprint any order or part thereof that contains abnormal imperfections or fails to provide a reasonable representation of the approved colour proof. A reasonable colour variation between the approved proof and final printed product is unavoidable, expected and shall constitute an acceptable delivery.
- The Supplier at its sole option may elect to provide, in lieu of repair or reprinting of an order a pro-rated credit for the damaged portion of an order. The replacement of the order will take place only after the receipt of returned merchandise in its original packaging.
- The Supplier will not replace the order if it determines that the order was misused or mishandled by the Customer or part of the order was used by the Customer and part of the order is being returned. The Customer must receive a written authorisation to return a defective order or portion in advance of return.
- The Supplier’s liability for defective orders is limited to the price of the order exclusive of any shipping or postage charges.
- This agreement is deemed to be made in the State of Victoria and all disputes hereunder shall be determined by the appropriate courts of Victoria.
19. ENTIRE AGREEMENT
- The conditions set out in this agreement constitute the whole agreement made between the Customer and the Supplier.
- This agreement can only be amended in writing signed by each of the parties.
- All prior discussions and negotiations are merged within this document and the Supplier expressly waives all prior representations made by him or on his behalf that are in conflict with any clauses in this document in any way.