STANDARD CONDITIONS OF CONTRACT OF ROTOPRINT (PTY) LIMITED
1. APPLICABILITY OF THE STANDARD CONDITIONS
All and any business undertaken by Rotoprint (Pty) Limited ACN 099 758 406 (“Rotoprint”), including without limitation the supply of services and/or goods (“the work”), is and shall be subject to these terms and conditions (“these conditions”), unless otherwise agreed in writing and signed by Rotoprint. Any conditions or terms imposed by the client that are contrary to these conditions shall be null and void and of no force and effect. For the purposes of these conditions, “client” means any person or persons at whose request or on whose behalf or in respect of whom Rotoprint undertakes any business.
2. THE WORK
2.1 Rotoprint shall provide the client with a quotation on which will be described the work which Rotoprint is to supply to the client.
2.2 This quotation will include a Client Approval Form (“the proof”) which shall contain the requirements of the client’s brief as understood by Rotoprint, pertaining to the work, including the artwork, order quantity, specifications, colours, sizes and all other relevant information for the brief.
2.3 This proof will be an exact proof of what shall be printed by Rotoprint, save that the colours used will be merely representational.
2.4Upon signature of the proof, the client is deemed to have accepted the quotation and a binding contract for the supply of the work (“the Contract”) shall arise between Rotoprint and the client.
2.5 By signing the proof, the client assumes the sole responsibility of the accuracy of the information provided to Rotoprint and warrants that such information comprises the full extent of the requirements of the client’s brief. Furthermore, the client acknowledges and agrees that the contract is subject to these conditions.
2.6 Rotoprint will be deemed to have satisfied and fully discharged its obligations to the client under the contract if the finished work is in accordance the proof.
3.1 The prices at which the work will be supplied will be at Rotoprint’s prices ruling at the date on which the work is delivered to the client, unless otherwise stated in the quotation.
3.2 Unless otherwise stipulated, all prices are exclusive of GST.
3.3 If the client varies its brief, including but not limited to making any changes or alterations to the proof, or if there are delays or changes which are not as a result of any actor omission of Rotoprint, Rotoprint shall be entitled to increase its prices by notice in writing. Payment for all variations must be made in full at their time of completion.
4. GENERAL SALES TAX
The client shall be responsible for and undertakes to pay to Rotoprint, at the same time it is obliged to pay any sum in respect of the work, any tax payable thereon in terms of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and A New Tax System (Goods and Services Tax) Administration Act 1999 or any replacement Act/s.
5.1Time for payment for this work shall be of the essence and will be stated on the quotation and/or invoice. If no time is stated then payment shall be on delivery of the work.
5.2 Rotoprint does not accept risk for any post-dated cheques or cheques sent to it by post. Such payment will only be deemed to have been made when the cheque has been deposited into Rotoprint’s bank account and has cleared.
5.3 The client shall pay all sums to Rotoprint without set off, deduction or demand.
5.4 Any amount not paid on the due date shall, at the discretion of Rotoprint, bear interest from the due date until it is paid, at a rate not exceeding the maximum standard contract default rate prescribed by the Queensland Law Society in respect of that amount.
5.5 If any amount owing by the client to Rotoprint is not paid on the due date then all amounts owing by the client to Rotoprint from any cause whatsoever shall become immediately due and payable.
5.6 If the client defaults in payment of any invoice when due, the client shall indemnify Rotoprint from and against all of Rotoprint’s costs and disbursements including on a solicitor and own client basis and in addition all of Rotoprint’s nominees’ costs of collection.
6. TIME NOT OF THE ESSENCE
The time stated for completion of the work is approximate only. Unless otherwise agreed in writing, the work will be executed by Rotoprint during normal working hours and without overtime. Timeous completion of the work is also subject to the client timelessly providing such information as Rotoprint requires.
7. DELIVERY AND RISK
7.1 The date of delivery will be determined by Rotoprint, in its sole discretion, upon receipt by Rotoprint of the signed proof. Late return of proofs will affect delivery dates.
7.2 Unless otherwise agreed in writing, the client shall take delivery of the completed work at Rotoprint’s premises or at such other place as is specified by Rotoprint in writing. If Rotoprint agrees to deliver the work anywhere else, then the client will be liable for all the costs of delivery.
7.3 Risk in and to the work will pass to the client when the work leaves the premises of Rotoprint or the other premises specified in terms of 7.2.
8.1 Ownership of all work delivered shall remain in Rotoprint until Rotoprint has received payment of the full purchase price.
8.2 Prior to effecting payment in full, the client shall keep, so far as is predictable, the work separate and clearly identified as the property of Rotoprint.
8.3 It is further agreed that:
8.3.1 until such time as ownership of the work shall pass from Rotoprint to the client, Rotoprint may give notice in writing to the client to return the work or any part of it to Rotoprint. Upon such notice, the rights of the client to obtain ownership or any other interest in the work shall cease;
8.3.2 if the client fails to return the work to Rotoprint, Rotoprint or its agent may enter upon and into land and premises owned, occupied or used by the client, or any premises as the invitee of the client, where the work is situated and take possession of the work, without being responsible for any damage thereby caused;
8.3.3 the client is only a bailee of the work and until such time as Rotoprint has received payment in full for the work, then the client shall hold any proceeds from the sale or disposal of the work on trust for Rotoprint;
8.3.4 the client shall not deal with the money of Rotoprint in any way which may be adverse to Rotoprint;
8.3.5 receipt by Rotoprint 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 and until then Rotoprint’s ownership of rights in respect of the work shall continue;
8.3.6 the client shall not charge the work in anyway nor grant or otherwise give any interest in the work while it remains the property of Rotoprint;
8.3.7 Rotoprint may require payment of the purchase price or the balance of the purchase price due together with any other amounts due from the client to Rotoprint arising out of these conditions, and Rotoprint may take any lawful steps to require payment of the amounts due and the purchase price;
8.3.8 Rotoprint can issue proceedings to recover the purchase price for the work notwithstanding that ownership of the work may not have passed to the client;
8.3.9 until such time as the client has Rotoprint’s authority to convert the work into other products and if the work is so converted, the parties agree that Rotoprint will be the owner of the end products and clauses 8.3.2, 8.3.3, 8.3.4 and 8.3.6 apply in respect of the end products that incorporate the work.
9. INTELLECTUAL PROPERTY AND COPYRIGHT
9.1 Subject to 9.4, copyright in the work shall belong to Rotoprint, save that in any photographs that form part of the work, copyright will remain with the photographer who is responsible for taking those photographs.
9.2 The client acknowledges and agrees that all and any intellectual property rights created, whether before or after the date of the contract in connection with Rotoprint’s engagement and the work vest absolutely in Rotoprint upon creation and remain the property of Rotoprint to deal with as it sees fit, until transferred or assigned to the client under clause 9.4.
9.3 By accepting the contract, all and any intellectual property rights, including but not limited to copyright, in the order, instruction, proof and/or information provided to Rotoprint and created by the client prior to the contract are absolutely assigned to Rotoprint.
9.4 Upon receipt of the client’s payment for the work in full, the copyright in the work is transferred and assigned by Rotoprint to the client.
9.5 Until the copyright is assigned to the client under 9.4 and/or in the event of non-payment of any amount due by the client to Rotoprint, Rotoprint shall be entitled to use any part of the finished work and the client shall have no claim of any nature whatsoever against Rotoprint as a result of Rotoprint’s subsequent use of that work.
9.6 While the copyright belongs to Rotoprint, reproduction of the whole or part of the work, whether finished or not, without Rotoprint’s prior written consent, will constitute an infringement of Rotoprint’s copyright. All information, ideas, concepts and designs contained in the work in any form whatsoever, including in the proof or the finished work, are confidential and the client is prohibited from disclosing such information, ideas, concepts and designs to any person without the prior written consent of Rotoprint.
10. FRUSTRATION OF ROTOPRINT’S PERFORMANCE BY MATTERS BEYOND ITS CONTROL
10.1 If performance of the work is prevented or delayed due to any reason outside of Rotoprint’s reasonable control, including without limitation, strikes, shortened working hours, shortage of labour or materials, accidents of any kind, any default or delay by any sub-contractor or supplier of Rotoprint, war, political or civil disturbances, or acts of God, then Rotoprint shall be relieved of its obligation to perform the work, to the extent that it is prevented from doing so, for the duration of the intervening circumstance.
10.2 Rotoprint will notify the client in writing, without delay, of an intervening circumstance and of the cessation thereof and will use its best endeavours to remove the impediment as soon as reasonably possible.
11. NOTIFICATION OF DEFECTS
11.1 All work will be deemed to be complete in all respects and without defects if it is in accordance with the proof signed off by the client.
11.2 Rotoprint will be deemed to have satisfied and fully discharged the client’s brief if it provides finished work in accordance with the proof. If the client reasonably believes that the finished work is defective in that it is not in accordance with the proof, it must notify Rotoprint of these defects within 24 hours after delivery of the work, failing which the finished work shall be deemed to be complete in all respects and without defects.
11.3 Rotoprint shall, in its sole discretion, determine whether or not the work is defective and provided prompt notice was given under clause 11.2, Rotoprint may, in its sole discretion, provide the client with reprinted replacement work, but Rotoprint may claim payment in full for all work that has been completed.
12. LIMITATION OF LIABILITY
12.1 Neither Rotoprint nor any of its directors, officers, employees or agents shall be liable for any loss or damage, whether direct, indirect, consequential or otherwise, including any loss of profit, suffered by the client or the client’s directors, officers, employees or agents (if applicable), arising from any cause in connection with the contract and/or the work, whether such loss or damage results from any breach of contract, tort, negligence of any degree or any other cause without limitation.
12.2 Notwithstanding any other provision to the contrary, any claim which a client may have against Rotoprint in connection with or arising out of any business with Rotoprint shall lapse and become extinguished unless within:
12.2.1 sixty days of such claim arising, the client gives written notice thereof to Rotoprint and at the same time discloses to Rotoprint in writing the material facts on which the claim is based; and
12.2.2 twelve months of such claim arising, the client institutes legal proceedings against Rotoprint in respect of the claim by instituting legal proceedings in the court of competent jurisdiction.
12.3 Subject to and without any way limiting the provision of clause 12.2, in the event of any breach of contract by Rotoprint, the remedies of the client shall be limited to damages and under no circumstances shall the liability of Rotoprint exceed the purchase price of the work.
After completion of the work and delivery to the client, Rotoprint shall not be obliged to store the finished work or any part thereof. If, not withstanding the foregoing, it does so, and the client later requires a copy of the work, Rotoprint shall be entitled to charge the client for such copy.
14. NOTICES AND SERVICE ADDRESSES
14.1All notices to be given in terms of the contract shall be in writing and shall be delivered by hand or sent by prepaid registered post to Rotoprint at 2/2 Calabro Way, Burleigh Heads, QLD, 4220 and to the client at the physical business address set out in any of the proof, quotation or Rotoprint’s invoice which physical address the parties select as their service address.
14.2 Each party shall be entitled at any time to change its service address to any other physical address within Australia, provided that such change shall take effect only upon delivery or deemed delivery of notice thereof to the other party.
15.1 In addition and without prejudice to any other rights it may have, Rotoprint may cancel delivery of the work at any time before the work is delivered by giving written notice, or Rotoprint may cancel the contract if the client commits a breach of the contract and fails to remedy the breach within a period of 5 days after receipt of a notice from Rotoprint calling upon the client to rectify the breach.
15.2 Rotoprint shall not be liable for any loss or damage whatever arising from such cancellation.
15.3 Upon cancellation of the contract by Rotoprint all amounts owing in terms of the contract will immediately become due and payable.
15.4 Notwithstanding the acceptance of the cancellation of a contract by the client, Rotoprint shall be entitled to recover all damages incurred by it arising from or in connection with such cancellation, including but not limited all costs, expenses and loss of profit arising out of or in connection with such cancellation.
16. COMMONWEALTH TRADE PRACTICES ACT 1974 & FAIR TRADING ACTS
Nothing in these conditions is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States or Territories of Australia, except to the extent permitted by those Acts, where applicable.
17. PRIVACY ACT 1988
17.1 The client agrees for Rotoprint to obtain from a credit reporting agency a credit report containing personal credit information about the client in relation to any credit provided by Rotoprint.
17.2 The client agrees that Rotoprint may exchange information about the client with those credit providers named in the application for a credit account or named in a consumer report issued by a reporting agency for the purposes of:
(a)assessing an application by the client;
(b)notifying other credit providers of a default by the client;
(c)exchanging information of other credit providers as to the status of this credit account, where the client is in default with other credit providers; and
(d)to assess the credit-worthiness of the client.
17.3 The client consents to Rotoprint being given a consumer credit report to collect overdue payments on commercial credit (section 18K(1)(h) Privacy Act 1988).
17.4The client agrees that personal data provided may be used and retained by Rotoprint for the following purposes and for other purposes as shall be agreed between the client and Rotoprint required by law from time to time:
17.4.1 provision of the work;
17.4.2 marketing of the work by Rotoprint, its agents or distributors in relation to that work;
17.4.3 analysing, verifying and/or checking the client’s credit, payment and/or status in relation to provision of the work;
17.4.4 processing of any payment instructions, direct debit facilities and/or credit facilities requested by the client; and
17.4.5 enabling the daily operation of the client’s account and/or collection of the amounts outstanding in the client’s account in relation to the work.
17.5 Rotoprint may give information about the client to their credit reporting agency and/or a third party for the following purposes:
17.5.1 to obtain a consumer credit report about the client; and/or
17.5.2 allow the credit reporting agency to create or maintain an information file containing information about the client; and/or
17.5.3 where the client has cited Rotoprint as a trade reference to a third party and the client hereby consents and authorises Rotoprint to give credit history information to such third party.
18.1 No agent or employee of Rotoprint, other than a director of Rotoprint, has Rotoprint’s authority to alter or vary these terms and conditions.
18.2 The client may not rely on a representation which it claims persuaded it to enter the contract.
18.3 No agreement varying, adding to, deleting from or cancelling any of the conditions, and no waiver of any of the conditions, shall be effective unless reduced to writing and, signed by a director of Rotoprint.
18.4 No indulgence granted by Rotoprint shall constitute a waiver of any of Rotoprint’s rights.
18.5 If Rotoprint institutes or defends any legal or other dispute resolution proceedings to enforce or protect its rights, Rotoprint shall be entitled to recover from the client all legal costs (on solicitor and own client basis) incurred by Rotoprint in that regard.
18.6 The client may not cede any of its rights or delegate any of its obligations in terms of the contract unless a director of Rotoprint gives prior written consent. Rotoprint may licence or subcontract all or any part of its rights and obligations without the client’s consent.
18.7 Rotoprint and the client agree that the contract will be governed by and construed in accordance with the laws of Queensland and the parties submit to the jurisdiction of its Courts.
18.8 Unless it conflicts with the context of these conditions, words signifying one gender will include the other genders, words signifying the singular will include the plural and vice versa, and words signifying natural persons will include artificial persons and vice versa.
18.9 Headings of clauses are inserted for the purpose of convenience only and shall be ignored in the interpretation of these conditions.
18.10 If any part of these conditions is or becomes unenforceable, it will be severable from the rest of these conditions which will continue to be binding.
18.11 Rotoprint reserves the right to review these conditions at any time and from time to time, and if following any such review, there is to be any change in the conditions, that change will take effect from the date on which and if Rotoprint notifies the client of such change.