7.3 Non-excludable Rights
The parties acknowledge that, under the Australian Consumer law and other 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”).
7.4 Australian Consumer Law
The printer acknowledges that the Australian Consumer Law provides guarantees in relation to the supply of goods and services. The liability for any failure to comply with such guarantees is limited to:
(1) In the case of goods, any one of the following:
a. The replacement of the Goods or the supply of equivalent goods;
b. The repair of the Goods;
c. Payment equivalent to the cost of replacing the Goods; or
d. Payment equivalent to the cost of repairing the Goods
(2) In the case of Services:
a. Supplying the services again; or
b. Payment equivalent to the cost of having the Services supplied again.
7.5 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.
7.6 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.
7.7 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.
7.8 Customer’s property
Subject to clause 7.6, 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.
7.9 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
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.
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.
(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, 6 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.
(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.
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 the customer any data so stored. In the event 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 Immediate Termination
In the event that:
1. the Customer becomes insolvent (within the meaning of the Corporations Act 2001) or makes any voluntary arrangement with its creditors, or
2. a petition is presented or a resolution is passed to wind up the Customer (other than for the purposes of reconstruction or amalgamation as a solvent company), or
3. a receiver or other external administrator is appointed over the whole or any part of the assets of the Customer, or
4. the Customer shall otherwise cease trading, or
5. any distress, writ of execution or other process is levied or enforced against any
property of the Customer;
then in any such event the printer shall (without prejudice to any other right or remedy available to it) be entitled to terminate or cancel any contract between itself and the Customer or suspend any further deliveries of the Project or Goods and/or Services without any liability to the Customer and if any materials or Goods and/or Services have been delivered or supplied but not paid for, the price of such materials and Goods and/or Services shall become immediately due and payable, notwithstanding any previous agreement or arrangement to the contrary.
8.14 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.
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.
8.16 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.
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. The Customer hereby agrees to the above and to be bound by all EPG’s terms and conditions as set out above herein and it is expressly agreed and acknowledged that such terms and conditions have been read and fully understood.
11. CUSTOMER AGREEMENT
The Customer hereby agrees to the above and to be bound by all EPG’s terms and conditions as set out above herein and it is expressly agreed and acknowledged that such terms and conditions have been read and fully understood.