1.1 Application of these Terms and Conditions
A.These Terms and Conditions (“T&Cs”) are incorporated into any contract between Networkpak (“Network”) and Customer for the supply of Goods and/or Services by Network to the Customer.
B. These T&Cs, in their present form or as varied in accordance with clause 1.1(C) together with:
(i)any accepted Application for Opening of a Credit Account form;
(ii)all Quotes (as defined in clause 3.1) accepted in accordance with clause 3.2;
(iii)all product warranties provided by Network;
(iv)all accepted orders placed by a Customer with Network for the Network’s Goods or Services;
(v)any document attached to, or incorporated by reference into, this Agreement; and
(vi)any variation to a document listed in (i) to (vi) above, agreed to in writing by the Customer and Network, constitute the contract (Contract) between Network and the Customer pursuant to which Network makes all supplies of its Goods and Services to the Customer. The application of these T&Cs to any order or other arrangement by the Network to supply Goods and/or Services to the Customer may only be varied by agreement in writing between the Customer and Network. C. Except as otherwise agreed in writing, Network may amend these T&Cs at any time with notice in relation to future Orders placed by the Customer or with notice prior to acceptance of a Purchase Order by Network which have already been placed on Network, in which latter case the Customer may decide to withdraw its Purchase Order within if it considers such variation would cause detriment to it.
D. Supply of Goods and/or Services by Network does not create any obligation on Network to supply Goods and/or Services to the Customer on a continuing basis or at any time in the future. Further, except as otherwise agreed in writing, Network reserves the right at any time and without notice to impose a limit on the amount of Goods and/or Services the Customer may purchase.
1.2 Interpretation In these T&Cs:
“Additional Work” means and includes all work undertaken by Network as a consequence of the Customer’s variation, alteration or modification of its instructions in relation to the Order
“Agreement” means the agreement between the Customer and the Network constituted by these T&Cs and any document attached to, or incorporated by reference into this Agreement.
“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the applicable state Fair Trading Acts;
“Business Day” means a day that is not a Saturday or Sunday or a day that is wholly or partly observed as a public holiday throughout Victoria;
“Confidential Information” means Information in any form which is disclosed by a Party (Discloser) to the other Party (Recipient), or otherwise obtained directly or indirectly by the Recipient from or on behalf of the Discloser, that:
(a) is by its nature confidential;
(b) is designated by the Discloser as confidential; or
(c) the Recipient knows or ought to reasonably know is confidential, and includes:
(d) the terms of this Agreement;
(e) information comprised in or relating to any Intellectual Property Rights of the Discloser;
(f) information relating to the personnel of the Discloser including any Personal Information or sensitive information of individuals.
“Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise; “Control” has the meaning set out in the Corporations Act;
“Customer” means the Customer set out in any Quote, Order or other document provided by Network (or, in the absence of such information, the Customer who placed the Order);
“Delivery Address” means the address for the delivery of the Goods and/or Services in a Contract or the address for delivery as otherwise agreed between the parties in writing.
“Delivery Date” means the date for the delivery of the Goods and/or Services in a Contract as otherwise agreed between the parties in writing.
“Force Majeure” means a circumstance beyond the reasonable control of the Parties which results in a Party being unable to observe or perform on time an obligation under this Agreement;
“Freight Costs and Charge” means all costs and expenses incurred by Network in removing the Goods from its premises, whether by way of actual or attempted delivery to the Customer or otherwise;
“Goods” means the final goods produced by Network in completing the Order and Contract;
“GST” means the A New Tax System (Goods and Services Tax) Act 1999 and any related Act imposing such tax or legislation that is enacted to validate, recapture or recoup such tax ;
“Insolvency Event” means any of the following, or any analogous, events:
(a) the Customer disposes of the whole or any part of the Customer’s assets, operations or business other than in the ordinary course of business;
(b) the Customer ceases, or threatens to cease, carrying on business;
(c) the Customer is unable to pay the Customer’s debts as the debts fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Customer’s assets, operations or business;
(e) any step is taken for the Customer to enter into any arrangement or compromise with, or assignment for the benefit of, the Customer’s creditors or any class of the Customer’s creditors; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of the Customer’s assets, operations or business;
“Interest Rate” means charge interest on the overdue account at the rate fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic);
“Intellectual Property Rights” means:
(a) inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, products, technology, processes, methods or techniques;
(b) copyright (including future copyright) throughout the world in any works or subject matter in which copyright subsists and may in the future subsist;
(c) confidential information and trade secrets;
(d) trade and service marks (whether registered or unregistered) business names, trade names, logos and
(e) any application or right to apply for registration of any of the rights referred to above.
“Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
“Network” means The Networkpak Partnership (ABN 24957462340);
“Network’s charge” means in each case to the standard or usual fee charged by Network from time to time in respect of the Order;
“Order” means any written order by the Customer to Network for the Goods and the work required to be done in order to fulfil the Customer’s instructions;
“Personnel” means any employee, servant, contractor, subcontractor, agent, partner, director or officer of a party; “PPSA” means Personal Property Securities Act 2009 (Cth);
“Price” means the price of the Goods and/or Services as nominated by Network from time to time;
“Preliminary Work” means all and any work performed by Network at the Customer’s express or implied request, the performance of which work was necessary to enable the Order to be commenced and which work was not within the reasonable contemplation of Network at the time when Network supplied the Quote;
“Quote” means the quote described in clause 3.1; and
“Services” means the services in a Contract and any services associated with the Goods.
In these T&Cs, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) a reference to a clause is a reference to a clause of these T&Cs;
(c) a reference to a party to these T&Cs or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
(d) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
e) a reference to a period of time (including, without limitation, a year, a quarter, a month and a day) is to a calendar period.
In these T&Cs, headings are for convenient reference only and do not affect interpretation.
1.5 Business Day
If the day on which any act, matter or thing is to be done under these T&Cs is not a Business Day, that act, matter or thing:
(a) if it involves a payment other than a payment which is due on demand, must be done on the preceding Business Day; and
(b) in all other cases, may be done on the next Business Day.
(a) These T&Cs, and no terms and conditions of the Customer, will apply to any Order for and any supply of Goods and/
or Services by Network to the Customer.
(a) Network may if requested by the Customer, give the Customer a Quote specifying:
(i)the work required to be done in order to fulfil the Customer’s instructions; and
(ii) an estimate of Network’s charge for the performance of such work.
(b)The Customer must provide to Network all information, instructions, reports, drawings, plans, specifications and facts (in line with the “Print Visual Communication Association (“PVCA”) standards) relevant to the Goods and performance of Network’s obligations, at the time the Customer requests any Quote from the Network and prior to providing any Purchase Order to Network. If at any time Network considers that any information, instructions, reports, drawings, plans, specifications, properties or facts provided by the Customer to Network are not sufficient to enable Network to supply the Goods to the Customer in accordance with the Contract, the Customer must, at the Customer’s cost, provide such further information, documents or assistance as Network considers reasonably necessary.
(c)If, before the Quote is prepared, the Customer does not provide Network with specific instructions in relation to style, type or layout:
(i)Network may use any style, type and layout which, in Network’s opinion, is appropriate; and
(ii)Network may charge an additional amount for any additional work required to be done (including the production of additional proofs or samples) as a result of the Customer subsequently altering the style, type or layout used by Network.
(d)Network will be entitled to rely on the accuracy of any information, instructions, reports, drawings, plans, specifications, properties and facts provided by the Customer.
(e)If there are any errors in any information, instructions, reports, drawings, plans, specifications, properties or facts provided by the Customer to Network, Network will, in addition to Network’s other rights under these T&Cs or at law, be entitled to vary the Price.
2 Acceptance by Customer
Where Network has given the Customer a Quote:
(a)Unless otherwise stated in writing by Network, any Quote provided by Network will remain valid and open for acceptance for 30 days from the date of the Quote. A Quote may be subject to alteration at any time prior to Network accepting an Order from the Customer.
(b)Any Quote given by Network will not bind Network or form any part of the Contract between the parties unless given, or subsequently confirmed, in writing by Network and accepted by the Customer through placing an Order in accordance with clause 2.
(c)Network will not commence work until the Quote has been accepted in writing by the Customer.
(d)Acceptance by the Customer of the Quote will constitute acceptance by the Customer of these T&Cs.
(e)Quotes given by Network are, except to the extent otherwise stated in such document, subject to these T&Cs.
(a)Upon accepting a valid and binding Quote, the Customer must submit a Purchase Order to Network based on the Quote.
(b)Purchase Orders submitted by the Customer must specify:
(i)The identity of the Customer and the order number;
(iii)The specific Goods to be provided to the Customer, including the quantity of each item required; (iv) The Purchase Price as specified in the relevant Quote;
(v)The Delivery Address;
(vi) a sample clear enough for Network to ascertain instruction from and in conformation with the PVCA standards; and (vii) any other information reasonably required by Network to fulfil the Order.
(c)Notwithstanding that a Purchase Order is placed under a valid and binding Quote, except to the extent otherwise stated in the Quote, Network reserves the right both prior to acceptance of such Purchase Order or after acceptance of such Purchase Order and with notice to the Customer to:
(i)Reject a Purchase Order if:
(A) Network is unable to fulfil the Purchase Order due availability of the Goods or materials necessary to supply the Goods; or
(B) The Customer has overdue amounts under a Tax Invoice.
(ii)add to the Quote any additional cost incurred by Network as a result of:
(A) any agreed change to order quantities;
(B) any relevant increase in exchange rates, costs of labour, parts, materials and other inputs, including, without limitation, energy and other overheads;
(C) in the case where the Customer has provided any goods, tooling or materials for the purpose of Network providing the Goods and/or Services (Customer Materials) or any specific instructions or specifications for the Goods and/or Services, any agreed variation to these.
(iii)Upon Network giving the Customer notification of such amendment, such amended estimate shall be and be deemed to be the Quote for the purposes of these T&Cs.
(d)A Purchase Order placed by the Customer will only form part of the Contract when it has been received and accepted by Network. Acceptance by Network of any Purchase Order issued by the Customer may be in writing or by Network delivering to the Customer the Goods and/or Services which are the subject of a Purchase Order.
(a)The Contract will always be subject to the Customer completing Network’s application for commercial credit and Network at its absolute discretion agreeing to grant credit to the Customer (if the Customer is seeking credit terms).
(b)Network may grant the Customer credit upon the T&Cs based on the Credit Application and such other documents and information as may be required by Network.
(c)Network may cancel a Customer’s credit at its discretion by providing the Customer written notice.
(d)Until Network grants the Customer credit by notice in writing, Network will only supply Goods to the Customer in accordance with clause 4 of these T&Cs.
(e)The granting of credit does not oblige Network to extend any particular amount of credit to the Customer and Network may determine the sum of credit extended at its absolute discretion.
(f)The Customer must notify Network in writing and seek Network’s written consent to any change in the shareholding or ownership of the Customer or any material change in the Customer’s financial position.
3.5 Network reserves the right to correct any significant errors or omissions in its Quotes, order confirmations or Tax Invoices.
3.6 The Customer is not entitled to cancel or vary any Purchase Order or Contract without Network’s written consent and must pay to Network any costs associated with the Customer purporting to cancel or vary any Order or Contract. 3.7 The Customer must ensure the specifications and properties of Goods and/or Services stated in any Order by the Customer will be fit for the intended purpose of the Goods and/or Services. The Customer will also be responsible for the quantity of any Goods and/or Services in any Order and Network will not have any liability to the Customer if there is any excess or shortfall of the Goods and/or Services for the intended purpose.
3.8 Network may cancel any Contract at any time prior to delivery of the Goods and/or Services with no liability other than to repay any amount of the price paid under the relevant Purchase Order/s in advance of the cancellation.
The Customer must pay for overset matter (being matter produced on the Customer’s instructions but not used in a publication for which it was intended). The Customer may instruct Network to retain overset matter for future issues of the publication or to discard the overset matter. Should Network be required to retain overset matter, Network will only be required to retain the overset matter in accordance with clause 11.2.
3.10 Outside work
If Network has to obtain goods (including tooling, materials, film, overflow services, ornaments or artwork) and/or services not normally stocked or supplied by Network from a third party in order to carry out the Customer’s instructions:
(a)Network will not be liable for any breach of these T&Cs if that breach is a result of or is connected in anyway with the supply by the third party of such goods and/or services;
(b)Network acquires such 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. Any claim by the Customer in relation to the supply of those goods and/or services must be made directly against the third party.
(c)The Customer must pay for such third party goods and/or services directly to the third party.
(d)Property in any such goods obtained from a third party and incorporated into the goods passes to Network at the time of incorporation.
3.11 Material supplied by Customer
If Network and the Customer agree that the Customer is responsible for supplying materials or equipment for the purposes of the Order:
(a)The Customer must supply sufficient quantities of materials to allow for spoilage, such quantity will be specified by Network in writing.
(b)Network will not be responsible for counting or checking the materials and if requested by the Customer to do so, may charge for counting or checking and will provide to the Customer an amended Quote to this effect.
(c)Network will not be responsible for any defects in the Goods which are caused by defects in or the unsuitability of materials or equipment supplied by the Customer.
(d)Property in any materials supplied by the Customer and incorporated into the Goods and/or Service passes to
Network at the time of incorporation.
Subject to clause 6.3, when the Purchase Order has been completed, Network will issue a Tax Invoice to the Customer in respect of the Goods supplied pursuant to the relevant Purchase Order, or, if no Purchase Order was made, for an amount representing Network’s charge for the work done in filling the Order, and for any of the other charges specified in clause 4.2 or these T&Cs.
4.2 Additional Charges
In addition to the amount of the Quote, or where no Quote was given, in addition to the amount representing Network’s charge for the work done, Network may charge to the Customer additional fees including but not limited to:
(a)fees for any preliminary work performed at the Customer’s request;
(b)fees for additional work required to be done as a result of the Customer changing his, her or its instructions;
(c)fees for having to work from poor copy;
(d)fees for work which involves tables or foreign language and which was not notified to Network before the Quote was prepared;
(e)fees for additional work required to be done as a result of Network’s corrections, including repagination or reformatting;
(f)fees and other charges for work required to be done urgently, including any overtime costs;
(g)fees for handling or storing material or equipment supplied by the Customer for the purposes of the Order;
(h)fees for changing or correcting, in order to ensure that the Goods and/or Services are properly produced, any files, film, cutting formes, artwork or any document including computer files supplied for the purposes of the Order by the Customer;
(i)freight costs and charges;
(j)other charges, fees or disbursements referred to in these T&Cs and not specified in this clause; and
(k)fees for any machine waiting time due to press approval or issues deemed to be reason to hold the machine for the Customer.
4.3 Under/Over supplies
(a)The Customer acknowledges that whilst Network will use their reasonable endeavours to produce the exact number of items in the Order, there are many manufacturing variables which will cause the number of items actually produced to be 10% over or under the number specified in a Purchase Order (a Discrepancy).
(b)Where a Discrepancy occurs Network will adjust the amount charged to the Customer for the Order pro rata to reflect the actual number of items produced (a Discrepancy Price). The Customer acknowledges and agrees that they will accept any Discrepancy in the Order and will make payment of the Discrepancy Price.
(a)The Customer must, within 30 days from the end of the month that the Tax Invoice was issued, pay to Network the total amount set out in the Tax Invoice, without offset or deduction.
4.5 Disputed Invoice
(a)If the Customer disputes the Tax Invoice (whether in whole or in part) for any reason, the Customer must pay the Tax Invoice in full, and notify Network of the amount the Customer believes is due for payment. If the Customer and Network are unable to agree on the balance of the invoiced amount, the dispute will be referred for determination in accordance with this Agreement.
4.6 Overdue Amounts and Interest
(a)In the event payment of a Tax Invoice has not been paid, the Customer must and Network is entitled to recover interest on any overdue amount at Interest Rate.
(b)For the purposes of this clause 4.6, overdue amount means an amount that has been not been paid under a Tax Invoice when due and payable pursuant to that Tax Invoice.
(c)The Customer will pay all collection costs including but not limited to bank and legal expenses (on a full indemnity basis) and debt collection commissions incurred in obtaining payment for any overdue amounts.
(d)Network reserves the right to refuse to make any further deliveries under the Contract until the overdue amount has been paid in full.
4.7 Advance and progress payments
(a)Network may at its discretion issue a Tax Invoice for the amount of the Quote before commencing the Order where Network has not previously carried out work for the Customer or where Network considers it otherwise prudent to do so.
(b)Network may, in the event that Network is of the view that completing the Purchase Order will take more than a month, at any time before the Purchase Order is completed, issue one or more Tax Invoices for a proportion of the amount of the Purchase Order (the proportion to be at Network’s discretion) and require that proportion of the Purchase Order to be paid in advance of any further work being completed under the relevant Purchase Order.
(c)If the Purchase Order is suspended for more than 30 days at the request of the Customer or as a result of something for which the Customer is responsible, Network may issue a Tax Invoice for a particular sum (to be specified by Network) for the work already completed and for other costs incurred by Network (including but not limited to storage costs).
The Customer must pay to Network any costs, expenses or losses incurred by Network as a result of the Customer’s failure to pay to Network all sums outstanding from the Customer to Network (including, without limiting the generality of
the obligation set out in this clause, any debt collection and legal costs)
5.1 Collection and Delivery
(a)The Customer must collect the Goods within three (3) business days from Network’s premises upon being notified by Network that the Goods are ready for collection.
(b)Network will hold the Goods for a maximum of twelve (12) weeks, should the Customer not arrangement for collection of the Goods at the expiration of twelve (12) weeks, Network will invoice the Goods and will use reasonable efforts to arrange for delivery of the Goods within three (3) business days and otherwise in accordance with these T&Cs.
(b)If Network agrees to deliver the Goods:
(i)Network will charge freight costs and charges, demurrage, waiting time and other charges as nominated by Network from time to time;
(ii)Network will use their reasonable endeavours to deliver the Goods to the Delivery Address on the Delivery Date; and
(iii)Network may charge further delivery charges if the Customer is unable to receive delivery of the Goods at the Delivery Address or on the Delivery Date or in accordance with any other delivery arrangements.
(c)Network will only deliver Goods during Network’s usual business hours unless Network agrees otherwise in writing.
(d)Network will not be liable for any delay in the delivery of Goods to the Delivery Address.
(e)Network may deliver Goods in separate instalments.
(f)The Customer will ensure a member of the Customer’s Personnel will be at the Delivery Address on the Delivery Date to sign the delivery docket on the Customer’s behalf.
(g)Network may deliver Goods to the Delivery Address regardless of whether there is anyone at the Delivery Address at the time of delivery.
(h)The Customer acknowledges and agrees that Network is not bound by any Delivery Date and/or Delivery Address specified in a Purchase Order.
5.2 The Customer agrees:
(a)Network’s responsibility for delivery of Goods will cease at the kerbside or public roadway frontage of the Delivery Address;
(b)the Customer must provide safe access for delivery of Goods including but not limited to providing safety measures such as traffic control; and
(c)Network may refuse to deliver Goods, and return the Goods at the Customer’s cost, if Network or a member of Network’s Personnel considers it would be unsafe to delivery the Goods.
5.3 The signature of a member of the Customer’s Personnel on the delivery docket will represent the Customer’s acknowledgement that the Goods comply with the Contract and these T&Cs.
5.4 A certificate signed by a director or secretary of Network in relation to delivery of the Goods will be prima facie evidence of the fact and the Customer will not object to the admissibility of such a certificate in any legal proceedings. 5.5 Risk
(a)If Network agrees to deliver Goods, the risk in the Goods will pass to the Customer, and the Customer will be deemed to have accepted the Goods, immediately when the Goods are delivered to the Delivery Address regardless of whether there is anyone at the Delivery Address at the time of delivery.
(b)If the Customer agrees to collect the Goods, the risk in the Goods will pass to the Customer, and the Customer will be deemed to have accepted the Goods, immediately when the Customer has been notified in writing that the Goods
are ready for collection.
(a)Network will use reasonable endeavours to ensure the Goods supplied to the Customer comply with any specifications made known to Network in a Purchase Order by the Customer.
(b)The Customer must inspect any Goods immediately on collection or delivery of the Goods and within seven (7) days of collection or delivery of the Goods give full particulars in writing to Network and only reject the Goods if they:
(i)do not comply with the Customer’s written instructions; or
(ii)are not free from major defects in design, materials and workmanship.
(c)Should the Customer not provide the notice as specified in clause 6(b) above, the Customer shall be bound to pay for the Goods and, except where the Customer is a consumer as that term is defined in the Australian Consumer Law (Consumer), then the Goods shall be deemed in all respects to have complied with their relevant Purchase Order.
(d)If the Customer rejects any of the Goods due to above clause 6.2 (Rejected Goods), the following must apply:
(i)the Customer must set the Rejected Goods aside for inspection by a suitably qualified representative of Network;
(ii)Network will arrange for the inspection of the Rejected Goods as soon as practicable and within a maximum of 5 Business Days after receipt of notice referred to in 6.2(b);
(iii)If the Goods are found to be defective, Network will remove the defective Goods and at its discretion, either replace the defective Goods as soon as reasonably practicable, repair the defective Goods or the invoice price of the defective
Goods to the Customer.
(a)The Customer will not receive title to Goods until the Customer, in cleared funds, makes full payment of the Price and any other amounts outstanding and payable from the Customer to Network.
(b)Until title in the Goods passes to the Customer in accordance with these T&Cs, the Customer will:
(i)be only a bailee of the Goods;
(ii)ensure the Goods are kept separate and identifiable from other goods;
(iii)not grant any charge over, or interest in, the Goods to any third party; (iv) return any Goods to Network immediately on request;
(v)authorise Network or any agent of Network to enter any land and premises owned, occupied or controlled by the Customer where the Goods are located and take possession of the Goods; and
(vi) hold the proceeds from any sale or disposal of the Goods on trust for Network, and Network may repossess, retain, deal with and/or sell the Goods as Network determines in Network’s absolute discretion.
(a)If the Customer:
(i)defaults in paying any sums due to Network under any Order or any other amounts outstanding and payable from the Customer to Network; or
(ii)is an individual and becomes insolvent, bankrupt, commits any act of bankruptcy, compounds with or enters into any compromise or arrangement with its creditors or if a mortgagee takes possession of any of the Customer’s assets; or
(iii)is a company and has a provisional liquidator, liquidator, receiver, receiver and manager, trustee for creditors or in bankruptcy, administrator or analogous person appointed to it or its property, or if a mortgagee takes possession of any of the Customer’s assets; or
(iv) the Customer disposes or parts with possession of the Goods otherwise than expressly authorised by the Agreement or direction of Network; or
(v)is otherwise unable to pay its debts as and when they fall due,
(vi) any amount to become due under the Contract shall become immediately due and payable and the Customer shall not sell or otherwise deal with any Goods in its possession and, upon the Network’s request, the Customer will return the Goods to Network immediately.
(a)Network may, for the purposes of exercising Network’s rights under clause 7.1, enter any premises owned, occupied or controlled by the Customer and remove the Goods including but not limited to by detaching or unfixing the Goods from any goods or land to which the Goods are attached or fixed.
7.2 General Lien
(a)Network shall, in respect of all sums owed by the Customer to Network hereunder, have a general lien on all property of the Customer in Network’s possession and may, after 14 days’ notice to the Customer, sell that property and apply the proceeds (net of any sale costs) in satisfaction of all or any part of the sums owed In the event that any of the Customer’s
property held by Network as aforesaid enjoys copyright protection in favour of the Customer, the Customer hereby grants to Network a licence to exercise the rights conferred on Network under this clause
By accepting these T&Cs which the parties agree form a general security agreement under the Personal Property Securities Act 2009 (Cth) (PPSA) the Customer agrees that for the purposes of securing the punctual payment of any and all amounts owed by the Customer to Network:
(a)the Customer grants to Network a security interest (as defined under the PPSA) over all present and
(b)the Customer will, if required by the Service Provider, sign any further security agreement (as defined under the PPSA) charging all of its present and after acquired personal and real property, assets and undertakings in favour of the Service Provider.
(c)The Service Provider may register a security interest arising under clauses 7.3(a) or 7.3(b) above on the Personal Property Securities Register (PPSR) and the Customer must do anything (such as obtaining consents and signing documents) which the Service Provider may require for the purposes of:
(i)ensuring that the security interest is enforceable, perfected and otherwise effective under the PPSA;
(ii)enabling the Service Provider to gain first priority (or any other priority agreed to in writing) for the security interest; and
(iii)enabling the Service Provider to exercise rights in connection with the security interest.
(d)In respect of any security interest arising under clauses 7.3 (a) or 7.3(b) above:
(i)the Customer agrees that sections 96 and 125 of the PPSA do not apply;
(ii)the Customer waives its rights to receive notices under sections 95, 121(4), 129, 130, 132(3)(d), 132(4) and 157 of the PPSA; and
(iii)the Customer waives its rights as a Grantor and/or a Debtor under sections 142 and 143 of the PPSA.
(e)In addition to any other rights under these T&Cs or otherwise arising, the Service Provider may exercise any and all remedies afforded to it as a secured party under Chapter 4 of the PPSA including, without limitation: entry into any building or premises owned, occupied or used by the Customer to search for and seize, dispose of or retain property in respect to which the Customer has granted a security interest to the Service Provider.
7.4 Personal Guarantee
(a)Where the Customer is a corporate entity and Network requires security in the form of a personal guarantee from the Customer’s officeholder’s or other person/s, the Guarantor named in the Purchase Order is bound by the following provisions:
(i)The Guarantor in consideration of Network having entered into this Contract at the Guarantor’s request —
(a)guarantees that the Customer will perform all its obligations under this Contract;
(b)must pay on demand any amount which the Service Provider is entitled to recover from the Customer under this Contract; and
c. indemnifies the Service Provider against all loss resulting from Network having entered into this Contract.
d. The liability of the Guarantor will not be affected by Network granting the Customer or the Guarantor time or any other indulgence.
e. If any of the Customer’s obligations are unenforceable against them, then this clause is to operate as a sep- arate indemnity and the Guarantor indemnifies Network against all loss resulting from Network’s inability to enforce performance of those obligations. The Guarantor must pay Network the amount of the loss resulting from the unenforceability.
f. If there is more than one guarantor, this guarantee binds them separately, together and in any combination.
(a)If Network submits to the Customer a proof or sample of the Goods, Network will not be responsible for any errors in the Goods, including but not limited to barcodes, which appeared in the proof and which were not corrected by the Customer before the Order was completed.
(a)Network does not warrant the Goods and/or Services are fit for any purpose whether or not made known to Network or any member of the Network’s Personnel.
(b)Network excludes all express and implied conditions and warranties in relation to the Goods and/or Services except those conditions or warranties that cannot be excluded by law and Network’s liability under any such conditions or warranties is limited to, at Network’s option, arranging to replace or repair the Goods and/or the outcome of the Services or resupplying the Goods and/or Services.
(c)Nothing in these T&Cs are intended to have the effect of contracting out of any applicable provisions of the Australian Consumer Law except to the extent permitted by such Acts.
(d)Network disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Nonexcludable Rights To the extent permitted by law, the liability of Network for a breach of a
(e)Network shall be under no liability to the Customer in respect of any defect in the Goods arising from fair wear and tear, minor imperfections, any wilful damage, negligence, subjection to abnormal working conditions, failure to follow the Network’s written instructions, misuse or alteration or repair of the Goods without the Network’s written approval, or any other act or omission on the part of the Customer, its Personnel or any third party in respect to the Goods.
8.3 Cap on Liability
(a)Network’s liability for any Liability or Claim in relation to these T&Cs, any Contract, and any supply of Goods and/ or Services (whether under statute, contract, tort, negligence or otherwise) will be limited to the amount paid under a Purchase Order by the Customer to Network. For the avoidance of doubt, Network excludes any liability for legal costs and disbursements on a solicitor and own client basis and, without limitation, any indirect or consequential expense, loss or damage, loss of profits, revenue, use, expectation or opportunity, wasted expenditure, lost production or similar losses suffered by the Customer under or in connection with these T&Cs.
(b)Network will not be liable to the Customer for any Liability or Claim of any kind arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any remote, abnormal or unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the parties.
8.4 Release and Indemnity
The Customer indemnifies Network and each member of the Network’s Personnel from and against any Liability or Claim arising directly or indirectly in relation to:
i. the accuracy of all information provided by the Customer to Network in relation to the Services, the Delivery Address or any other matters;
ii. the Customer’s breach of these T&Cs or any Contract;
iii. the negligence or wilful misconduct of the Customer or any member of the Customer’s Personnel;
iv. Network or any member of Network’s Personnel delivering the Goods in accordance with the Customer’s instructions; v. Network or any member of Network’s Personnel entering the Delivery Address;
vi. damage to the property of the Customer or any third party during any delivery of Goods; vii. any spillage, breakage or contamination of Goods during any transport or delivery; viii. the Goods and/or Services not being fit for any particular purpose;
ix. any tests in relation to Goods and/or Services;
x. the Customer or any member of the Customer’s Personnel directly or indirectly causing any delay in the supply of any Goods and/or Services;
xi. Network having to resupply the Goods and/or Services, or undertake any rework, as a result of the actions or omissions of the Customer or any third party;
xii. the Customer or any member of the Customer’s Personnel refusing to accept any delivery;
xiii. the Customer or any member of the Customer’s Personnel purporting to cancel any Order or Contract; and
xiv. any proceedings, claims and demands in relation to any secured property.
(a)The Customer will not use, or disclose, any Confidential Information of Network disclosed to the Customer.
(b)b All Intellectual Property Rights in all designs, drawings, technical information and documents created by Network in relation to the Goods and/or Services will remain with Network and will not be assigned to the Customer and no supply of Goods and/or Services to the Customer will grant to the Customer any Intellectual Property Rights in respect of the Goods and/or Services or such designs, drawings, technical information or documents.
(c)If Network supplies any designs, drawings, technical information or documents to the Customer as part of the Goods and/or Services, Network grants the Customer a
(d)The Customer warrants that Network’s use of any designs, instructions or documents provided by the Customer to Network will not infringe the Intellectual Property Rights of any other party.
9.2 Electronic data
Without limiting the generality of the foregoing clauses, Network will not be liable to the Customer for loss, however caused, of any data stored on disks, tapes, compact disks or other media supplied by the Customer to Network.
9.3 Customer’s property
aSubject to clause 9.2, Network will not be liable for the damage, loss or destruction of any property of the Customer in Network’s possession unless the loss or damage is due to the failure of Network to exercise due care and skill in handling or storing the property.
9.4 Force Majeure
A Party will not be liable for any delay or failure to perform its obligations under this Agreement if such delay is due to Force Majeure. If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party’s obligations will be suspended while the Force Majeure continues. If a delay or failure by the Service Provider to perform the Service Provider’s obligations due to Force Majeure exceeds 45 days, the Customer
may immediately end this Agreement by notice in writing to the Service Provider.
Network may immediately terminate, or suspend the performance of, any Contract and the Customer must immediately pay any money owed to Network if:
(a)the Customer breaches a term of these T&Cs or any Contract and does not remedy the breach within 7 days of receiving a notice from Network requiring the Customer to do so;
(b)the Customer breaches a term of these T&Cs or any Contract which is not capable of remedy;
(c)there is any change in the Control of the Customer; or
(d)an Insolvency Event arises in relation to the Customer.
If the Contract between Network and the Customer relates to more than one issue of a periodical:
(a) Each issue will, for the purposes of these T&Cs, be considered to be one Order; and
(b) Subject to sub clause (c), a party may not terminate a contract to which these T&Cs apply unless:
(i) in the case of periodicals published weekly or more frequently, that party has given 4 weeks’ notice of that party’s intention to terminate the contract;
(ii) in the case of periodicals published fortnightly or more frequently (but less frequently than weekly), that party has given 8 weeks’ notice of that party’s intention to terminate the contract; or
(iii) in the case of periodicals published less frequently than fortnightly, that party has given 13 weeks’ notice of that party’s intention to terminate the contract.
11.2 Property left with Network
If the Customer leaves property in Network’s possession without specific written instructions as to what is to be done with it, Network may, 12 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. For the purposes of this clause, property means any Customer Material, cutting formes, printing plates, blocks and associated tooling. Network reserves the right to charge the Customer reasonable storage fees for property left in Network’s possession.
(a) Network has no obligation to insure any property of the Customer in Network’s possession. The Customer must pay the cost of any insurance arranged by Network at the request of the Customer.
(b) Until property in the Goods passes to the Customer, the Customer shall keep the Goods insured, with Network noted as an additional insured and will produce upon demand evidence of the existence of such insurance as Network may require. If the Customer defaults in the performance of its obligations under this clause 11.3(b), Network may insure the Goods and the cost of effecting such insurance shall be payable by the Customer on demand.
(c) If any Goods are damaged or destroyed prior to property in them passing to the Customer, Network shall be entitled, without prejudice to any of its rights or remedies under these T&Cs, to receive all insurance proceeds which are payable in respect thereof (whether or not the purchase price of such Goods has become payable under these T&Cs) and the production of these T&Cs by Network shall be sufficient evidence of the Network’s right to receive payment of such insur- ance proceeds without the need for further enquiry by any person dealing with Network. Any such insurance proceeds shall be applied by Network as follows:
(i) first, in payment of the purchase price of the Goods which are damaged or destroyed, if unpaid;
(ii) secondly, in payment of the outstanding purchase price of any other Goods supplied to the Customer by Network, whether under these T&Cs or otherwise; and
(iii) thirdly, in payment of any other sums payable to Network by the Customer whether under these T&Cs or otherwise. 11.4 Ancillary materials
Unless Network and the Customer agree otherwise in writing, drawings, sketches, paintings, photographs, designs, typesetting, dummies, models, negatives, positives, blocks, files, engravings, stencils, dies, plates or cylinders, electros, stereos, discs, tapes, compact discs, or other media or data and other material produced by Network 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 Network.
(a) Copyright in all artistic and literary works authored by Network shall be the property of Network.
(b) The Customer:
(i) warrants that the Customer has copyright in or a licence to authorise Network to reproduce, all artistic and literary works supplied by the Customer to Network for the purposes of the Order and the Customer hereby expressly authorises Network to reproduce all and any of such works for the purposes aforesaid; and
(ii) hereby indemnifies and agrees to keep indemnified Network against all liability, losses, damages, claims or expenses incurred by Network in relation to or in any way directly or indirectly connected with any breach of copyright or of any rights in relation to copyright in such literary and artistic works supplied as aforesaid.
(c) The Customer is hereby granted a
The Customer must keep confidential and not use any ideas communicated by Network to the Customer without Net- work’s written consent.
11.7 Electronic/magnetic media
All disks, tapes, files, compact disks or other media (other than media supplied by the Customer) used by Network to store data for the purposes of completing the Order are the property of Network (“Stored Data”). The Customer cannot require Network to supply to the Customer any data of the Stored Data.
If any of these T&Cs are found to be invalid or unenforceable in any jurisdiction, such terms must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these T&Cs or affecting the validity or enforceability of that provision in any other jurisdiction.
11.9 Storage of electronic data
Network will not be responsible for storing any data on disks, tapes, files, compact disks or other media when the Order has been completed. If Network agrees to store such data, Network may charge for doing so.
11.10 No Waiver
A power or right is not waived solely because the party entitled to exercise that power or right does not do so. A single exercise of a power or right will not preclude any other or further exercise of that power or right or of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
Network may charge for supplying such data to the Customer. claim on a timely basis any input tax credits (if any) the Customer may be entitled to claim for any acquisition of goods and services from Network. This includes Network maintaining its registered status for GST purposes, and issuing tax invoices for supplies made under these T&Cs on a timely basis as reasonably requested by the Customer.
11.12 Governing law and jurisdiction
These T&Cs are governed by the law in force in the State of Victoria where Network’s premises are located and the parties submit to the
12.1 All amounts are GST inclusive amounts Unless otherwise stated, all amounts expressed or described in these T&Cs are GST inclusive amounts.
12.2 Out of pocket expenses are GST inclusive All out of pocket expenses referred to in these T&Cs are GST inclusive out of pocket expenses.
12.3 Network to assist Customer
Network 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 any acquisition of goods and services from Network. This includes Network maintaining its registered status for GST purposes, and issuing tax invoices for supplies made under these T&Cs on a timely basis as reasonably requested by the Customer.