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Terms and Conditions of Trade
Mercury Walch Pty Ltd ABN 71 126 726 276
1. INTRODUCTION
1.1 Application of these Terms and Conditions
These Terms and Conditions are incorporated into any contract between a printer and customer for
the supply of goods and/or services by the printer to the customer.
1.2 Interpretation
In these Terms and Conditions:
Additional Work includes all work undertaken by the printer as a consequence of the customer s
variation, alteration or modification of its instructions in relation to the Order;
Business Day means a day on which banks are open for general banking business in the State or
Territory in which the printer s premises are located; Estimate means the estimate referred to in
sub-clause 2.1(b) (as amended in accordance with clause 2.4); Freight Costs and Charge includes all
costs and expenses incurred by the printer in removing the Goods from its premises, whether by way
of actual or attempted delivery to the customer or otherwise; Goods means all present and after
acquired goods produced by the printer under an Order;
GST means Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999
(Cth);
Interest Rate means a rate2% higher than the Cash Target Rate as fixed by the Reserve Bank of
Australia;
Order means the work required to be done in order to fulfil the customer s instructions;
Preliminary Work means any and all work performed by the printer 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 the printer at the time when the
printer supplied the Estimate;
Printer s Charge refers in each case to the standard or usual fee charged by the printer from time
to time in respect of the Order; Quote means the quote described in clause 2.1.
1.3 General
In these Terms and Conditions, 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 Terms and Conditions;
(c) a reference to a party to these Terms and Conditions 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.
1.4 Headings
In these Terms and Conditions, 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 this agreement 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.
2. QUOTES
2.1 Printer to supply quote
The printer may if, requested by the Customer, give the customer a quote specifying:
(a) the work required to be done in order to fulfil the customer s instructions;
and
(b) an estimate of the printer s charge for the performance of such work.
2.2 Acceptance by customer
Where the printer has given the customer a Quote:
(a) The printer need not commence work until the Quote has been accepted by the customer.
(b) The customer may accept the Quote by instructing (orally or in writing) the printer to commence
work.
(c) Acceptance by the customer of the Quote, whether express or implied, will constitute acceptance
by the customer of these Terms and Conditions.
2.3 Quote evidence of instructions
If the Quote is accepted by the customer, the subject of the quote (the work) shall be carried out
and the customer shall pay for the work in accordance with the Quote and these Terms and
Conditions.
2.4 Printer may revise Estimate
The printer may amend the Estimate before the Order has been completed to take into account any
rise or fall in the cost of performing the Order and the printer shall notify the customer of such
amendment as soon as practicable thereafter. Upon the printer giving the customer notification of
such amendment such amended estimate shall be and be deemed to be the
Estimate for the purposes of these Terms and Conditions.
3. CHARGES
3.1 Invoice
Subject to clause 5.3, when the Order has been completed, the printer will issue an invoice to the
customer for the amount of the Estimate or, if no Estimate was made, for an amount representing the
Printer s Charge for the work done in filling the Order, and for any of the other charges specified
in clause 3.2.
3.2 Additional Charges
In addition to the amount of the Estimate, or where no Estimate was given, in addition to the
amount representing the Printer s Charge for the work done, the printer may charge to the customer:
(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 the
printer before the Quote was prepared;
(e) fees for additional work required to be done as a result of author 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 are properly produced, any
plates, film, bromides, 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 Terms and Conditions and not
specified in this clause.
3.3 Under/Over supplies
(a) The customer acknowledges that whilst the printer will make every endeavour to produce the
exact number of items in the Order, owing to human and/or machine/computer error the number of
items actually produced may be 10% over or under the number specified in the Order ( a discrepancy
).
(b) Where a discrepancy occurs the printer will adjust the amount charged to the customer for the
Order a pro rata amount to
reflect the actual number of items produced.
4. DELIVERY
4.1 Notification
The printer shall notify the customer when the Goods are ready for collection.
4.2 Collection
The customer must collect the Goods from the printer s premises upon being notified by the printer
that the Goods are ready for collection. If the printer agrees to deliver the Goods the customer
shall bear all freight costs and charges of such delivery.
4.3 Rejection
Subject to clause 7.1 the customer may only reject the Goods if they do not comply with the
customer s instructions. If the customer wishes to reject the Goods, the customer must notify the
printer of the rejection:
(a) if the printer agrees to deliver the Goods to the customer s premises within 7 days of delivery
(or such other time as is mutually agreed);
(b) otherwise - within 7 days of notification that the Goods are ready for collection (or such
other time as is mutually agreed).
4.4 Risk
The risk in the Goods passes to the customer:
(a) if the printer delivers the Goods to the customer s premises - at the time of delivery;
(b) otherwise - at the time the printer notifies the customer that the Goods are ready for
collection.
If the customer is entitled to reject the Goods and rejects the Goods in accordance with these
Terms and Conditions, risk reverts to the printer at the time the customer notifies the printer
that the Goods are rejected.
5. PAYMENT
5.1 Time for payment
The customer must, within 14 days of the customer receiving the printer s invoice, pay to the
printer the total amount set out in the invoice.
5.2 Method of payment
Payment for the Order is to be made by the customer by cash, cheque credit or any other form of
payment as agreed by the printer and the customer. Unless otherwise stated, all payment shall be in
Australian Dollars.
5.3 Interest
The printer may charge interest at the Interest Rate on amounts not paid within the time specified
in clause 5.1.
5.4 Advance and progress payments
(a) The printer may issue an invoice for the amount of the Estimate before commencing the Order
where the printer has not previously carried out work for the customer or where the printer
considers it otherwise prudent to do so;
(b) The printer may, in the event that the printer is of the view that completing the Order will
take more than a month, at any time before the Order is completed, issue one or more invoices for a
proportion of the amount of the Estimate (the proportion to be at the printer s discretion) and
require that proportion of the Estimate to be paid in advance of any further work being done.
(c) If the 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, the printer may issue an invoice for a
particular sum (to be specified by the printer) for the work already done and for other costs
incurred by the printer (such as storage costs).
6. NON-PAYMENT
6.1 Damages
The customer must pay to the printer any costs, expenses or losses incurred by the printer as a
result of the customer s failure to pay to the printer all sums outstanding from the customer to
the printer (including, without limiting the generality of the obligation set out in this clause,
any debt collection and legal costs).
6.2 Retention of title
(a) Until the customer has paid all amounts outstanding in relation to the Goods and any other
goods supplied by the printer to the
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customer, title and property in the Goods shall not pass from the printer to the customer.
(b) If the Goods are in the customer s possession, the customer shall hold the Goods as trustee for
the printer and must store the Goods so that they are clearly identifiable as the property of the
printer.
(c) The printer may call for and recover possession of the Goods (for which purposes the printer s
employees or agents may enter the customer s premises and take possession of the Goods without
liability to the customer) and the customer must deliver the Goods to the printer if so directed by
the printer.
(d) The customer may, in the ordinary course of the customer s business, sell the Goods to a third
party but:
(i) the proceeds of sale to the third party shall be held by the customer as trustee for the
printer and the customer shall account to the printer for those sums; and
(ii) if the printer requires, the customer shall assign to the printer the customer s claim against
the third party and shall execute all documents necessary to effect that assignment.
6.3 General lien
The printer shall, in respect of all sums owed by the customer to the printer hereunder, have a
general lien on all property of the customer in the printer 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 the printer as aforesaid enjoys copyright protection in favour of the customer, the
customer hereby grants to the printer a licence to exercise the rights conferred on the printer
under this clause.
7. LIABILITY
7.1 Proofs
If the printer submits to the customer a proof of the Goods the printer will not be responsible for
any errors in the Goods which appeared in the proof and which were not corrected by the customer
before the Order was completed.
7.2 Non-excludable Rights
The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and
warranties may be implied in these Terms and Conditions and there are rights and remedies conferred
on the customer in relation to the provision of the Goods or of services which cannot be excluded,
restricted or modified by agreement ( Non-excludable Rights ).
7.3 Disclaimer of Liability
The printer 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 Non-excludable Rights. To the extent permitted by law, the liability of the printer
for a breach of a Non-excludable Right is limited, at the printer s option, to the supplying of the
Goods and/or any services again or payment of the cost of having the Goods and/or any services
supplied again.
7.4 Indirect losses
Notwithstanding any other provision of these Terms and Conditions, the printer is in no
circumstance (whatever the cause) liable in contract, tort (including, without limitation,
negligence or breach of statutory duty) or otherwise to compensate the customer for:
(a) any increased costs or expenses;
(b) any loss of profit, revenue, business, contracts or anticipated savings;
(c) any loss or expense resulting from a claim by a third party; or
(d) any special, indirect or consequential loss or damage of any nature whatsoever caused by the
printer s failure to complete or delay in completing the Order or to deliver the Goods.
7.5 Electronic data
Without limiting the generality of the foregoing clauses, the printer 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 the printer.
7.6 Customer s property
Subject to clause 7.5, the printer will not be liable for the damage, loss or destruction of any
property of the customer in the printer s
possession unless the loss or damage is due to the failure of the printer to exercise due care and
skill in handling or storing the property.
7.7 Force Majeure
The printer will have no liability to the customer in relation to any loss, damage or expense
caused by the printer s failure to complete the Order or to deliver the Goods as a result of fire,
flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war,
the inability of the printer s normal suppliers to supply necessary materials or any other matter
beyond the printer s control.
8. GENERAL MATTERS
8.1 Periodicals
If the contract between the printer and customer relates to more than one issue of a periodical:
(a) Each issue will, for the purposes of these Terms and Conditions, be considered to be one Order.
(b) Subject to sub-clause (c), a party may not terminate a contract to which these Terms and
Conditions 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;
(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.
(c) Notwithstanding sub-clause (b), the printer may terminate the contract at any time if the
customer is in breach of any provision of these Terms and Conditions relating to payment.
8.2 Alterations to style etc
If, before the Quote is prepared, the customer does not give the printer specific instructions in
relation to style, type or layout:
(a) the printer may use any style, type and layout which, in the printer s opinion, is appropriate;
and
(b) the printer may charge an additional amount for any additional work required to be done
(including the production of additional proofs) as a result of the customer subsequently altering
the style, type or layout used by the printer.
8.3 Overset
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 the printer to
retain overset matter for future issues of the publication or to discard the overset matter.
8.4 Outside work
If the printer has to obtain goods (including typefaces, bromides, film, plates, ornaments or
artwork) and/or services not normally stocked or supplied by the printer from a third party in
order to carry out the customer s instructions:
(a) The printer will not be liable for any breach of these Terms and Conditions if that breach is a
result of or is connected with the supply by the third party of such goods and/or services.
(b) The printer 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 goods and/or services.
(d) Property in any such goods obtained from a third party and incorporated into the Goods passes
to the printer at the time of incorporation.
8.5 Material supplied by customer
If the printer 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 to be specified by the printer.
(b) The printer will not normally count or check the materials and if requested by the customer to
do so, may charge for counting or checking.
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(c) The printer 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 passes to
the printer at the time of incorporation.
8.6 Property left with printer
If the customer leaves property in the printer s possession without specific instructions as to
what is to be done with it, the printer 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.
8.7 Responsibility to insure
The printer has no obligation to insure any property of the customer in the printer s possession.
The customer must pay the cost of any insurance arranged by the printer at the request of the
customer.
8.8 Ancillary materials
Unless the printer and customer agree otherwise, drawings, sketches, paintings, photographs,
designs, typesetting, dummies, models, negatives, positives, blocks, engravings, stencils, dies,
plates or cylinders, electros, stereos, discs, tapes, compact discs, or other media or data and
other material produced by the printer 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 the
printer.
8.9 Copyright
(a) Copyright in all artistic and literary works authored by the printer shall be the property of
the printer.
(b) The customer:
(i) warrants that the customer has copyright in or a licence to authorise the printer to reproduce,
all artistic and literary works supplied by the customer to the printer for the purposes of the
Order and the customer hereby expressly authorises the printer to reproduce all and any of such
works for the purposes aforesaid;
(ii) hereby indemnifies and agrees to keep indemnified the printer against all liability, losses or
expenses incurred by the printer 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; and
(c) The customer is hereby granted a non-exclusive licence to use the copyright in any literary
and/or artistic works authored by the printer for the purposes of the Order. However the exercise
of such licence shall be conditional upon the printer having received all monies due to the printer
under these Terms and Conditions.
8.10 Ideas
The customer must keep confidential and not use any ideas communicated by the printer to the
customer without the printer s written consent.
8.11 Electronic/magnetic media
All disks, tapes, compact disks or other media (other than media supplied by the customer) used by
the printer to store data for the purposes of completing the Order are the property of the printer.
The customer cannot require the printer to supply to the customer any data so stored. In the event
that the printer does supply any data so stored or created the printer may charge for supplying
such data to the customer.
8.12 Storage of electronic data
The printer will not be responsible for storing any data on disks, tapes, compact disks or other
media when the Order has been completed. If the printer agrees to store such data, the printer may
charge for doing so.
8.13 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.
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8.14 Severability
Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction
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
Terms and Conditions or affecting the validity or enforceability of that provision in any other
jurisdiction.
8.15 Governing law and jurisdiction
These Terms and Conditions are governed by the law in force in the State or Territory in which the
printer s premises are located and the parties submit to the non-exclusive jurisdiction of the
courts of that State or Territory and any courts which may hear appeals from those courts in
respect of any proceedings in connection with these Terms and Conditions.
9 GOODS AND SERVICES TAX
9.1 All amounts are GST inclusive amounts
Unless otherwise stated, all amounts expressed or described in these Terms and Conditions are GST
inclusive amounts.
9.2 Out of pocket expenses are GST inclusive
All out of pocket expenses referred to in these Terms and Conditions are GST inclusive out of
pocket expenses.
9.3 Printer to assist Customer
The printer 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 the printer. This includes the printer maintaining its
registered status for GST purposes, and issuing tax invoices for supplies made under these Terms
and Conditions on a timely basis as reasonably requested by the customer.
10. Personal Property Securities Act
10.1 Security Interest
The customer acknowledges and agrees that:
(a) these Terms and Conditions give rise to a security interest and constitute a security agreement
for the purposes of the Personal Property Securities Act 2009; and
(b) the security interest is taken in all Goods previously supplied by the printer to the customer
(if any) and all Goods that will be supplied in the future by the printer to the customer during
the continuance of the parties' relationship.
10.2 Undertaking
The customer undertakes to:
(a) 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 printer may reasonably require to
register a financing statement on the Personal Property Securities Register;
(b) reimburse the printer for all expenses incurred in registering a financing statement or
financing change statement on the Personal Property Securities Register;
(c) give the printer not less than 14 days' prior written notice of any proposed change in the
customer s name and/or any other change in the customer s details.
10.3 Verification Statement The customer waives any rights to receive notice of any verification
statement issued under the Personal Properties Securities Act.