Terms and Conditions of Trade
NA & EP Coon Nominees Pty Ltd trading as THE ELNA PRESS
1. INTRODUCTION
1.1 Application of these Terms and Conditions
These Terms and Conditions are incorporated into any contract
between NA & EP Coon Nominees Pty Ltd trading as The Elna
Press (Elna) and the customer for the supply of goods and/or
services to the customer.
1.2 Interpretation
In these Terms and Conditions:
“Additional Work” includes all work undertaken by Elna as a
consequence of the customer’s variation, alteration or modification of
their instructions in relation to the Order;
“Business Day” means a day on which banks are open for general
banking business in Victoria;
“Estimate” means the estimate referred to in sub-clause 2.1 (as
amended in accordance with clause 2.4);
“Freight Costs and Charge” includes all costs and expenses
incurred by Elna 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
Elna 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 rate 2% 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;
“Preparatory Work” means any and all work performed by Elna 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 Elna at
the time when Elna supplied the Estimate;
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. Estimate
2.1 Elna to supply estimate
Elna may if, requested by the Customer, give the customer an
estimate specifying the work required to be done in order to fulfil the
customer’s instructions.
2.2 Acceptance by customer
Where Elna has provided the customer with an estimate:
(a) Elna need not commence work until the estimate has been
accepted by the customer
(b) The customer may accept the estimate by instructing (orally,
electronically or in writing) Elna to commence work.
(c) Estimates are valid for 30 days from the date of issue. Following
that period, Elna reserves the right to re-price the estimate. rejection and a Return Material Authorisation (RMA) form will be
raised. The rejected goods will be collected and inspected and the
customer will be notified of remedial action and the timing.
4.3 Risk
The risk in the Goods passes to the customer:
(a) if Elna delivers the Goods to the customer’s premises – at the
time of delivery;
(b) otherwise – at the time Elna 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 Elna
at the time the customer notifies Elna that the Goods are rejected.
Elna shall not be liable for insurance, freight or loss or damage to
Goods or Services in transit when arranged by the customer, or
which have been left at the customer’s premises.
Elna has no obligation to insure any property in its possession.
If a client leaves property in Elna’s possession for more than 6
months, Elna may dispose of or sell the property and retain any
proceeds of sale as compensation for holding and handling the
property.
5. PAYMENT
5.1 Time for payment
Unless stated otherwise in the Quotation or Purchase Order,
payment must be made in accordance with the Tax Invoice issued
by Elna. If the customer does not have an approved credit account,
payment is required prior to delivery
5.2 Method of payment
Payment for the Order is to be made by the customer by EFT, cash,
cheque, credit or any other form of payment as agreed by Elna and
the customer. Unless otherwise stated, all payment shall be in
Australian Dollars.
5.3 Credit Card fees
A credit card fee may be charged on amounts paid which are greater
than $1,000
5.4 Interest
Elna may charge interest at the Interest rate on amounts not paid
within 90 days from the date of invoice.
5.5 Advance and progress payments
(a) Elna may issue an invoice for the amount of the Estimate before
commencing the Order where Elna has not previously carried
out work for the customer or where Elna considers it otherwise
prudent to do so;
(b) Elna may, in the event 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 Elna’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, Elna may issue an invoice for a particular sum for
the work already done and for other costs incurred by Elna.
6. NON-PAYMENT
6.1 Damages
The customer must pay Elna any costs, expenses or losses incurred
as a result of the customer’s failure to pay Elna all sums outstanding
from the customer to Elna (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 Elna to the customer,
title and property in the Goods shall not pass from Elna to the
customer
(b) If the Goods are in the customer’s possession, the customer shall
hold the Goods as trustee for Elna and must store the Goods so
that they are clearly identifiable as the property of the Elna
(c) Elna may call for and recover possession of the Goods (for which
purposes Elna’s employees or agents may enter the customer’s
7.6 Electronic data
Without limiting the generality of the foregoing clauses, Elna 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 Elna.
7.7 Customer’s property
Subject to clause 7.5, Elna will not be liable for the damage, loss or
destruction of any property of the customer in Elna’s possession
unless the loss or damage is due to the failure of Elna to exercise
due care and skill in handling or storing the property
7.8 Force Majeure
Elna will have no liability to the customer in relation to any loss,
damage or expense caused by Elna’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 Elna’s normal suppliers to supply necessary materials
or any other matter beyond Elna’s control.
8. GENERAL MATTERS
8.1 Stock Items)
If the contract between Elna and the customer relates to agreed
stock items
(a) Each delivery 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 that party has given
8 weeks’ notice of that party’s intention to terminate the contract The
party must purchase any agreed stock on hand specified in 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 Estimate is prepared, the customer does not give Elna
specific instructions in relation to style, type or layout:
(a) Elna may use any style, type and layout which, in Elna’s opinion,
is appropriate; and
(b) Elna 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 Elna
8.3 Outside work
If Elna has to obtain goods (including film, plates, tooling/dies or
artwork) and/or services not normally stocked or supplied by Elna
from a third party in order to carry out the customer’s instructions:
(a) Elna 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) Elna 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 ordered
by Elna on the customer’s behalf.
(d) Property in any such goods obtained from a third party and
incorporated into the Goods passes to Elna at the time of
incorporation.
8.4 Material supplied by customer
If Elna 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 Elna.
(b) Elna will not normally count or check the materials and if
requested by the customer to do so, may charge for counting or
checking.
(c) Elna 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 Elna at the time of
incorporation.
8.5 Property left with printer
If the customer leaves property in Elna’s possession without specific
instructions as to what is to be done with it, Elna may, 12 months
after gaining possession of the property, dispose of or sell the 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.
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
Victoria and the parties submit to the non-exclusive jurisdiction of the
courts of Victoria 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 exclusive amounts
Unless otherwise stated, all amounts expressed or described in
these Terms and Conditions are GST exclusive amounts
9.2 Out of pocket expenses are GST exclusive
All out of pocket expenses referred to in these Terms and Conditions
are GST exclusive out of pocket expenses.
9.3 Elna to assist Customer
Elna 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 Elna. This includes Elna 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
Elna to the customer (if any) and all Goods that will be supplied in
the future by Elna 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-todate in all respects, which Elna may reasonably require to register a
financing statement on the Personal Property Securities Register;
(b) reimburse Elna for all expenses incurred in registering a
financing statement or financing change statement on the Personal
Property Securities Register;
(c) give Elna 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.
I declare that I have carefully read and fully understand these Terms
and Conditions.
I agree that these Terms and Conditions (as varied by Elna from
time to time by written notice to the customer) are incorporated into
every contract for supply of goods by Elna to the customer,
notwithstanding any other agreement or provision to the contrary
and override any such other provision.
(d) Acceptance by the customer of the estimate, whether express or
implied, will constitute acceptance by the customer of these
Terms and Conditions.
2.3 Estimate evidence of instructions
If the estimate is accepted by the customer, the subject of the
estimate (the work) shall be carried out and the customer shall pay
for the work in accordance with the estimate and these Terms and
Conditions.
2.4 Elna may revise Estimate
Elna 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 Elna shall notify the customer of such amendment as
soon as practicable thereafter. Upon Elna giving the customer
notification of such amendment and the customer’s acceptance 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, Elna will
issue an invoice to the customer for the amount of the Estimate or, if
no Estimate was made, for an amount representing 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, Elna 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 Elna before the estimate 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, 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 Elna will make
every endeavour to produce the exact number of items in
the Order, owing to human and/or machine manufacturing
variables 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 Elna will adjust the amount
charged to the customer for the Order on a pro rata
amount to reflect the actual number of items produced.
4. DELIVERY
4.1
1) If the quote includes delivery Elna agrees to deliver the Goods to
the customer by road using a recognized carrier
2) If the customer wishes to collect the goods or arrange their own
transport Elna shall notify the customer when the Goods are ready
for collection. The customer must collect the Goods from Elna’s
premises upon being notified that the Goods are ready for collection.
4.2 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 Elna of the premises and take possession of the Goods without liability to
the customer) and the customer must deliver the Goods to Elna
if so directed by Elna.
(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 Elna and the customer shall account to
Elna for those sums; and
(ii) if Elna requires, the customer shall assign to Elna the
customer’s claim against the third party and shall execute all
documents necessary to effect that assignment.
6.3 General lien
Elna shall, in respect of all sums owed by the customer to Elna
hereunder, have a general lien on all property of the customer in
Elna’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 Elna as aforesaid enjoys
copyright protection in favour of the customer, the customer hereby
grants to Elna a licence to exercise the rights conferred on Elna
under this clause
7. LIABILITY
7.1 Proofs
If Elna submits to the customer a proof of the Goods Elna 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. The cost of any additions, alterations or corrections to
the proof after prior approval by a Client will be added to the
estimate.
7.2 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”).
7.3 Australian Consumer Law
Elna 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.
7.4 Disclaimer of Liability
Elna 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 Elna for a breach of a nonexcludable right is limited, at Elna’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
7.5 Indirect losses
Notwithstanding any other provision of these Terms and Conditions,
Elna 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. property and retain any proceeds of sale as compensation for
holding and handling the property.
8.6 Responsibility to insure
Elna has no obligation to insure any property of the customer in
Elna’s possession. The customer must pay the cost of any insurance
arranged by Elna at the request of the customer.
8.7 Ancillary materials
Unless Elna and the customer agree otherwise, drawings, sketches,
paintings, photographs, designs, typesetting, dummies, models,
negatives, positives, blocks, engravings, stencils, electros, stereos,
discs, tapes, compact discs, or other media or data and other
material produced by Elna 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 Elna.
8.8 Copyright
(a) Copyright in all artistic and literary works authored by Elna shall
be the property of Elna
(b) The customer:
(i) warrants that the customer has copyright in or a licence to
authorise Elna to reproduce, all artistic and literary works
supplied by the customer to Elna for the purposes of the Order
and the customer hereby expressly authorises Elna to reproduce
all and any of such works for the purposes aforesaid;
(ii) hereby indemnifies and agrees to keep indemnified Elna
against all liability, losses or expenses incurred by Elna 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
Elna for the purposes of the Order. However, the exercise of
such licence shall be conditional upon Elna having received all
monies due to the printer under these Terms and Conditions.
8.9 Ideas
The Customer must keep confidential and not use any ideas
communicated by Elna to the customer without Elna’s written
consent.
8.10 Electronic/magnetic media
All disks, tapes, compact disks or other media (other than media
supplied by the customer) used by Elna to store data for the
purposes of completing the Order are the property of Elna. The
Customer cannot require Elna to supply the customer any data so
stored. In the event Elna does supply any data so stored or created
Elna may charge for supplying such data to the Customer
8.11 Storage of electronic data
Elna will not be responsible for storing any data on disks, tapes,
compact disks or other media when the Order has been completed.
If Elna agrees to store such data, Elna may charge for doing so.
8.12 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 Elna 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 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.
8.13 No Waiver
If I am signing this for and on behalf of a firm, company or other
organisation, I confirm that I am authorised to do so.