TERMS & CONDITIONS OF TRADE
QLM Label Makers Pty Ltd ABN 46 009 710 614 [hereinafter referred to as ‘QLM’] TERMS & CONDITIONS of TRADE for the Supply of Goods and/or Services to Buyers [hereinafter referred to as “Terms”, “Goods” and “the Buyer”]
Unless otherwise agreed in writing by QLM these Terms apply to all dealings between the QLM and the Buyer.
DEFINITIONS AND INTERPRETATION
For the avoidance of doubt the following definitions apply to these Terms:
Buyer means the person, company, partnership, trust, government body and any other person or organisation that enters into any agreement with QLM; Contract means an instruction from the Buyer to QLM to supply goods and/or services; Goods mean physical and intangible property of any description; Order means an instruction from the Buyer to supply goods and/or services; Quotation means a written submission of price submitted by QLM but does not constitute an irrevocable offer unless stated otherwise in the quotation; QLM means QLM Label Makers Pty Ltd and/or its heirs, successors and assigns; Premises mean the place where delivery and/or services will be undertaken.
1. ACCEPTANCE OF BUYERS ORDER
1.1 These Terms shall apply to every quotation, offer and sale contract (including acceptance of goods and/or services) between QLM and the Buyer. Any terms or conditions of the Buyer’s order deviating from or inconsistent with these Terms are expressly excluded and rejected by QLM. This exclusion and rejection includes any statement by the Buyer that the Buyer’s terms and conditions shall prevail.
1.2 A contract shall only be concluded between QLM and the Buyer for supply of goods when the order has been accepted on QLM’s Terms.
1.3 Whilst QLM may accept verbal or phone orders at QLM’s sole discretion, orders must be in writing and duly signed or authorised by the Buyer.
1.4 QLM reserves the right to specify a minimum order value of $100.00 per invoice at any given point in time and to impose a surcharge should the Buyer require delivery of goods having a value less than the minimum order value.
1.5 For any order or forward order, the Buyer agrees to pay for so much of the order as is invoiced by QLM and no delay or failure to fulfil any part of any order or any alleged delay in or any incomplete delivery shall entitle the Buyer to cancel or vary any order or delay or reduce any payment.
1.6 A binding contract will be established when the Buyer instructs QLM to commence work or order goods on the Buyer’s behalf and the Buyer will be liable for all costs in the event of cancellation which shall be payable immediately upon demand by QLM.
1.7 The Buyer agrees that in that in the event of any dispute concerning an order (including any question of identity or authority or any telephone, facsimile or email order) that the internal records of QLM will be prima facie evidence of what was ordered.
1.8 “The Buyer” in these Terms is the person, company or body that instructs QLM to supply goods and warrants they have the authorisation needed to do so.
1.9 Each order placed by the Buyer shall and be deemed to be a representation by the Buyer that it is solvent and will remain solvent. The Buyer shall inform QLM of any facts which could affect QLM’s decision to accept any order and/or to grant credit, such as, but not limited to, insolvency, potential insolvency or bankruptcy or the likelihood thereof. Failure to inform QLM of any such factors shall be deemed to create an inequality of bargaining position and be unconscionable, misleading and deceptive thereby rendering the person placing the order liable to pay all money owed by the Buyer to QLM.
1.10 If the Buyer requires urgent completion of their order the Buyer acknowledges that urgency increases the risk of defects and whilst QLM will endeavour to avoid defects QLM is not liable for defects as a result of the Buyer’s requirement for urgent completion.
2. PRICES AND PAYMENT
2.1 Estimates are not quotations and are subject to change. Unless stated otherwise GST and other taxes shall be added to the price.
2.2 Prices exclude insurance, delivery and GST and goods shall be invoiced at prices current at date of dispatch.
2.3 All prices quoted by QLM are subject to sighting of artwork and are “ex-warehouse” and specific to the instructions provided by the Buyer at the time of quotation. Prices are subject to change if the Buyer does not accept the quotation within seven days or requests a delay in producing the order.
2.4 If the Buyer requires urgent completion of an order QLM may increase the price to cover overtime or other extra costs incurred as a result.
2.5 QLM may require a non-refundable deposit before procuring materials or commencing work on the Buyer’s order.
2.6 Payments are to be made direct to QLM strictly net without any deduction or discount other than as stated in the relevant invoice or statement. If no specific payment terms have been agreed payment must be made immediately upon request by QLM, time being of the essence as to this obligation.
2.7 Payment shall only occur when cleared funds have been received by QLM.
2.8 Failure by the Buyer to pay invoices by due date shall allow QLM the right to set a minimum account value of $1,000.00 per month which the Buyer shall accept at any given point in time and to impose a surcharge or require COD should the Buyer require delivery of an amount less than the minimum account value.
2.9 If QLM agrees to accept payment by credit card QLM reserves the right to recover the credit card commission.
2.10 QLM can issue proceedings to recover the price of the goods even if ownership has not passed to the Buyer.
2.11 QLM can, at its sole discretion and without prejudice to its other rights and remedies, demand immediate payment of all money outstanding even if not due if QLM is concerned over the Buyer’s ability to pay (or dies if the Buyer is a natural person) or becomes insolvent (or in QLM’s sole opinion appears to be), proposes or enters into an arrangement with creditors or an administrator, receiver, liquidator or similar person is appointed in respect of the Buyer or any asset of the Buyer.
3. DEFAULT, INTEREST, COSTS AND PENALTIES
3.1 Upon any breach of these Terms or default in any dealing with QLM by the Buyer QLM may retain all money paid to QLM and/or cease further deliveries and recover from the Buyer any consequential loss of profits arising and/or at its discretion retain or take possession of any property and/or goods not paid for without prejudice to any other of its rights and without being liable to any party. Furthermore the Buyer agrees not to commence or continue or permit to be commenced or continued through it any action against QLM until any such default or breach is remedied.
3.2 QLM shall be entitled to charge interest at 2.5% a month from the day the account becomes overdue and compounded monthly until all outstanding money has been paid in full.
3.3 If an account is more than thirty days overdue, administration costs of $50.00 or 10% (whichever is greater) up to a maximum of $250.00 may be charged to the Buyer for each month the account remains unpaid.
3.4 The Buyer shall indemnify and reimburse QLM for all costs and expenses incurred in the recovery of possession of goods and/or collecting outstanding debts from the Buyer which shall include dishonour fees, full legal costs on a solicitor-own-client basis, collection agent costs, investigators costs, court, judgement enforcement and bailiff fees, search agent costs, time, travel and all other recovery and collection costs.
3.5 If the Buyer breaches any of its obligations QLM reserves the right, irrespective of whether an order has been accepted and without notice, to withhold supply to the Buyer and QLM shall not be liable for any loss or damage incurred or allegedly incurred by the Buyer or any other parties resulting directly or indirectly from such actions.
3.6 QLM may sell any property of the Buyer which it holds to offset money owed by the Buyer and QLM will not be liable for any alleged loss as a result of such sale. QLM is only liable to account for the balance (if any) from the sale proceeds after all outstanding debts and costs of sale have first been met.
3.7 QLM can vary or withdraw any credit facility at any time at its discretion without liability to the Buyer or any other party.
4.1 Acceptance of the goods delivered shall be deemed for all purposes to have taken place at the expiration of seven (7) days from the date of each delivery.
4.2 Any date of delivery is an estimate only and QLM will not be liable for any loss or damage arising as a result of any failure by QLM to deliver by any agreed or specified date.
4.3 The Buyer shall not be relieved from its obligations to QLM for any delay in delivery or performance of services and shall not be entitled to cancel the whole or part of their order or to claim compensation by reason of failure by QLM to comply with the Buyer’s delivery requirements or to minor variations to the goods as a result of complications within the manufacturing process or specifications.
4.4 Goods shall be invoiced to the Buyer in full (or in part for partial delivery) immediately the Goods are collected by or dispatched to the Buyer or upon QLM advising the Buyer that the Goods are available for collection or dispatch.
4.5 Goods shall be transported in a manner deemed appropriate for the nature of the Goods. If the Buyer requests a specific mode of transportation the Buyer shall be fully responsible for all extra costs incurred as a result of the Buyer’s instructions and absolves QLM from all liabilities as a result of the Buyer’s instructions.
4.6 The Buyer will be deemed to have accepted delivery and liability for goods immediately QLM delivers them to a carrier or to the Buyer’s business premises or site whether attended or not.
4.7 A certificate and/or delivery docket purporting to be signed by an officer of the Buyer confirming delivery shall be prima facie evidence of delivery.
4.8 QLM reserves the right to partially deliver an order or deliver quantities per order with a variation of plus or minus 10% in quantity which shall be charged for or deducted.
4.9 The Buyer is responsible for storage and storage charges if the Buyer does not take delivery within the time specified by QLM. 4.10 The Buyer shall give QLM at least 14 days prior written notice of any change of ownership of the premises where QLM is delivering the Goods.
5. FORCE MAJEURE
QLM shall not be liable for any default or delay due to any act of God, war, power or equipment failure, terrorism, strike, lock-out, industrial action, fire, flood, storm, tempest or other force majeure events beyond their control.
Unless the Buyer gives QLM specific instructions on the style, type or layout QLM may select those which in QLM’s opinion are appropriate. If the Buyer subsequently requests a different style, type or layout QLM may increase the price for additional work required as a result.
If QLM submits a proof to the Buyer which the Buyer approves QLM may charge an extra sum for any subsequent changes, errors or omissions thereto which QLM had not been informed of prior to completion of the order unless such changes are small typographical corrections.
8. BOUGHT-IN GOODS
8.1 If for the completion of the Buyer’s order QLM obtains goods from third party suppliers such as, but not limited to, film, typefaces, plates, bromides, artwork or ornaments that QLM does not normally stock and the Buyer cancels or alters their order QLM may charge the Buyer for the cost of returning the goods to the supplier or for the full costs of the goods if the supplier refuses to take them back.
8.2 If QLM engages a third party to complete part of the Buyer’s order and the Buyer cancels the order, the Buyer is responsible for all costs levied by the third party.
8.3 QLM shall not be liable for any delays, defects or claims made by the Buyer or any other parties that are a result of or connected to goods supplied to QLM by outside suppliers. The Buyer acknowledges and accepts that QLM acquires such goods as agent for the Buyer and not as principal and has no liability whatsoever in relation to the supply of such goods.
The Buyer must pay for overset matter (this being matter produced on the Buyer’s instructions but not used in the order for which it was intended) and the Buyer can instruct QLM to retain overset matter for future orders or to discard the overset.
10. BUYERS MATERIALS AND SUPPLIES
10.1 If QLM agrees to accept materials from the Buyer to use in the order, the Buyer must supply an extra quantity as specified by QLM to allow for spoilage.
10.2 QLM does not normally count or check materials supplied by the Buyer. If the Buyer requests a check QLM may charge the Buyer for doing so.
10.3 QLM accepts no responsibility for imperfect work caused by defects in or unsuitability of materials or equipment supplied by the Buyer.
10.4 QLM is entitled to charge storage for property left by the Buyer after completion of the order and may sell them after 12 months to defray expenses. QLM shall only be liable to account for the balance, if any, after all costs have been deducted.
11. STANDING MATTER
At QLM’s entire discretion, all cutting formes, film plates and other surfaces can be disposed of upon completion of the order unless otherwise agreed by QLM in writing. Title to all matter kept standing shall remain with QLM and if at the Buyer’s request QLM agrees to keep matter standing QLM can charge for storage and attention.
12. RISK AND INSURANCE
12.1 All risks pass to the Buyer upon delivery as defined in the Delivery clause and it is the Buyer’s responsibility to arrange insurance. If the goods are damaged, destroyed prior to payment being received QLM is entitled to payment in full or to the insurance proceeds for the goods. Presenting these Terms to the Buyer’s insurers is sufficient evidence of QLM’s rights to the insurance proceeds.
12.2 All risks pertaining to the Buyer’s property in QLM’s possession remain with the Buyer and it is the Buyer’s responsibility to arrange insurance.
13. ELECTRONIC AND MAGNETIC MEDIA [“MEDIA”]
13.1 With the exception of Media supplied by the Buyer, ownership of all Media used by QLM to store data needed for completing the order are the property of QLM and QLM may charge for supplying such data to the Buyer.
13.2 QLM is not responsible for storing any data on any media and QLM may charge the Buyer for storage.
14. CLAIMS AND RETURNS
14.1 No goods will be accepted for return unless agreed in writing by QLM prior to such return and then only upon conditions acceptable to QLM and at the Buyer’s entire risk as to loss or damage and provided the goods are in the sealed container in which they were delivered.
14.2 Where QLM agrees to accept goods for return, a service/restocking fee of 20% or $75.00 whichever is the greater shall be paid by the Buyer.
15. LIMITED LIABILITY
15.1 QLM shall, in no event, whether the claim is based on warranty, contract, tort, strict liability, negligence or otherwise, be liable for incidental or consequential damages, or for any damages in excess of the amount of the purchase price received by QLM. 15.2 QLM shall not be liable for any claim, loss or expense which is made seven (7) days from date of delivery or performance (or at all once goods have been unpacked, on-sold or otherwise used or applied) after which there shall be deemed to be unqualified acceptance.
16. SECURITY FOR PAYMENT
16.1 If QLM allows the Buyer extra time to pay money or perform obligations for which no guarantees or other securities have been provided, QLM may require security for payment including a guarantee by any director or other persons connected with the Buyer.
16.2 Any requirement for security or guarantees is without prejudice to other rights or remedies QLM may have and does not affect the reservation of title in goods supplied to the Buyer.
17. PERSONAL PROPERTY ACT 2009 (“PPSA”) AND PERSONA PROPERTY SECURITIES REGISTER (“PPSR”)
17.1 If any clauses in these Terms contravene any provisions in the PPSA, or amendments thereto, such clause or clauses shall be deleted without affecting the validity of the remaining clauses of these Terms.
17.2 The Buyer and all other parties such as, but not limited to, the owner(s) of the property where QLM’s goods are located, the Buyer’s bankers, finance companies, receivers, liquidators or other insolvency officials are hereby notified that ownership and possession of QLM’s goods and all other property are subject to “Perfected Security Interests on the PPSR”.
17.3 QLM may have and is entitled to have a “Purchase Money Security Interest” (“PMSI”) and/or other Security Interests on the PPSR for goods delivered but not paid for and for other goods and property of QLM and ownership and possession remains with QLM until all money has been paid in full and all other obligations of the Buyer to QLM have been satisfied.
17.4 In the event that QLM’s Security Interests have not been perfected the Buyer acknowledges and agrees that these Terms create a Security Interest in the Secured Property and consents to QLM registering a Security Interest on the PPSR and to provide all assistance required by QLM to register, perfect and retain the integrity of QLM’s Security Interests.
17.5 The Buyer must not create or permit any other parties to create any form of Security Interest including, but not limited to, a Financing Statement, a Financing Change Statement on QLM’s goods and other property on the PPSR or in any other Register or charge document..
17.6 With regard to Section 64 of the PPSA the Buyer warrants that under no circumstances shall the Buyer permit a bank or other financial institution to register a “super priority security interest” or any other priority security interest on the PPSR on QLM’s unpaid-for goods and/or any other property that may be in premises or on sites that are not under QLM’s direct control.
18. THE COMMONWEALTH COMPETITION AND CONSUMER ACT (“CCCA”)
These Terms are not intended to have the effect of contracting out of any provisions of the CCCA and amendments thereto except where permitted by law. If the Buyer acquires goods/services as a consumer these Terms shall be subject to protection of consumers’ rights legislation and shall not affect the consumer’s statutory rights. If any clauses in these Terms contravene any provisions in the CCCA such clause or clauses shall be deleted without affecting the validity of the remaining clauses of these Terms.
19. PASSING OF TITLE/RESERVATION OF TITLE IN GOODS
19.1 Notwithstanding the delivery of goods title remains with QLM until all money has been paid in full and the Buyer has fulfilled all its obligations to QLM.
19.2 Until full payment in cleared funds is received by QLM for all goods supplied to the Buyer, as well as all other amounts owing to QLM by the Buyer under any other contracts legal title and property in all goods supplied under any contract remain vested in QLM and do not pass to the Buyer.
19.3 The Buyer holds the goods as fiduciary agent and bailee for QLM and the Buyer will not charge the goods in any way or grant or otherwise give any interest in the goods until clean title passes to the Buyer.
19.4 The Buyer must keep the goods separate from other goods and maintain the labelling and packaging of QLM so that they are readily identifiable as the property of QLM; however failure to comply with these requirements will not affect QLM’s title to the goods.
19.5 For Goods on which title has not passed to the Buyer QLM can instruct the Buyer to return them (or any part of them) to QLM if the Buyer’s obligations under these Terms have not been fulfilled.
19.6 The Buyer must not sell the goods except in the ordinary course of the Buyer’s business.
19.7 The Buyer holds and agrees to hold the proceeds of any sale of the goods on trust for QLM in a separate account into which no other money shall be paid; however failure to deposit the proceeds of a sale into a separate account or to keep those money separate will not affect the Buyer’s obligation to deal with the proceeds as trustee of the proceeds for QLM.
19.8 If QLM becomes aware of a breach of these Terms or of an insolvency event (or likelihood of such an event) QLM and/or any representative of QLM may as the invitee of the Buyer enter without notice any premises where it suspects the goods may be located and remove them without committing a trespass, detinue or conversion notwithstanding that the goods may have been attached to other goods or land not the property of QLM, and for this purpose the Buyer irrevocably licences QLM to enter such premises and also indemnifies QLM from and against all costs, claims, demands or actions by any party arising from such action.
19.9 QLM can issue proceedings to recover the price of the Goods/Services even if ownership has not passed to the Buyer.
20. INTELLECTUAL PROPERTY AND OWNERSHIP
20.1 Unless otherwise agreed by QLM in writing, copyright and ownership in all artistic, literary and other property owned by QLM remains with QLM.
20.2 Unless otherwise agreed by QLM in writing the Buyer shall fully compensate QLM for any use of QLM’s artwork, designs dummies and other intellectual and physical property by the Buyer or other parties for any purposes whatsoever apart from that of completing the Buyer’s order with QLM.
20.3 For artistic and/or literary property including, but not limited to, drawings, sketches, models, paintings, photographs, text, designs or typesettings supplied to QLM by the Buyer and/or by the Buyer’s agents the Buyer warrants that the Buyer has copyright in or a licence to authorise QLM to reproduce such property for the purposes of fulfilling the Buyer’s order.
21. SET OFF AND APPLICATION
21.1 QLM is entitled to set off against any money owed to the Buyer an amount equal to the total of all money at such time then owed by the Buyer or on the Buyer’s behalf to QLM.
21.2 QLM can apply any money received from or on behalf of the Buyer to any and all amounts owed by the Buyer as it sees fit and the Buyer waives any rights of notification of such allocation.
22. BUYER RESTRUCTURE
22.1 The Buyer shall notify QLM in writing of any change in its name, address, all other contact details, structure, ownership or the sale of any part of its business within 7 days of any such change. The Buyer will be liable to QLM for any purchases from QLM and for orders/contracts placed with external suppliers on the Buyer’s behalf until such notice is given.
22.2 QLM reserves the right to review or withdraw any credit facilities granted to the Buyer and to review or cancel all contracts upon any change in the Buyer’s structure, change in ownership or sale of any part of its business.
23. NO WAIVER
No waiver by QLM of any rights or provisions of these Terms shall at any time be deemed or implied to limit or exclude any of QLM’s rights against the Buyer under these Terms.
24. PRIVACY ACT AND CREDIT INFORMATION
The Buyer and/or the guarantor(s) irrevocably authorises QLM and its servants and agents to make such enquiries from time to time as QLM may deem necessary to obtain information and/or to investigate the creditworthiness of the Buyer including enquiries with persons nominated as trade references, bankers of the Buyer, any other credit provider, any credit reporting agency, any land titles office, the ASIC, ITSA and/or any similar body and/or related information service [“the Sources”] and including personal credit and consumer credit information and any property, business and/or solvency information. The Buyer by this clause irrevocably authorises the Sources to disclose anything about the Buyer which is in the Sources’ possession and the Buyer agrees that QLM may disclose any information it has about the Buyer to any interested person (subject only to any obligations QLM may have under the Privacy Act 1988 (Cth) and amendments thereto.
Notices from QLM to the Buyer are served when delivered by hand, sent by mail, document exchange, facsimile or email and shall be treated as given when: if delivered by hand when delivered; if sent by mail or document exchange, 48 hours after posting; if sent by fax, and/or email when the fax machine confirms transmission or when the email system confirms transmission. A notice given after 5pm and/or on a day which is not a Business Day is treated as given on the next following Business Day.
If a dispute arises between QLM and the Buyer and a solution thereto is contained in these Terms then such solution shall be a binding full and final settlement of the dispute. If no solution to the dispute exists in these Terms and the dispute cannot otherwise be resolved within 30 days from the date of the dispute then either party can refer the matter to a mediator. If neither party can agree on the mediator the dispute shall be referred to a mediator in accordance with the “Governing Law and Changes to Terms of Trade” clause in these Terms. The Buyer shall be liable for the full costs of the mediation and if this contravenes the Governing Law the parties will equally contribute to the cost of the mediation.
Should any clause or clauses of these Terms be invalid for any reason then such clause or clauses or parts thereof shall be severed without affecting the validity of the remaining clauses of these Terms.
28. GOVERNING LAW AND CHANGES TO TERMS OF TRADE
28.1 The laws of Australia apply to these Terms and to all contracts or other agreements between QLM and the Buyer. The Buyer agrees that all contracts made with QLM shall be deemed to be made in the State nominated by QLM and the Buyer agrees to submit to the jurisdiction of the Court nominated by QLM.
28.2 All modifications and amendments to these provisions or any approvals hereunder must be in writing signed by a duly authorised signatory of QLM, if otherwise, they shall not be binding on QLM.
28.3 QLM may at any time alter, add to or delete any of these Terms and such changes will be effective from the date the changes are notified to the Buyer. The Buyer will be deemed to have accepted the changes upon placing further orders with QLM. 28.4 QLM may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.