Definitions

• “Seller” means Industry and Trade, its successors and assigns or any person acting on behalf of and with the authority of Industry and Trade.
• “Buyer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Buyer is a reference to each Buyer jointly and severally.
• “Goods” means all Goods or Services supplied by the Seller to the Buyer at the Buyer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
• “Price” means the Price payable for the Goods as agreed between the Seller and the Buyer in accordance with clause 4 below.

Acceptance

• The Buyer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Buyer places an order for or accepts delivery of the Goods. Acceptance of quotation must be in written form (email, fax or mobile text). Verbal acceptance will not be accepted.
• These terms and conditions may only be amended with the Seller’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Buyer and the Seller.

Change in Control

• The Buyer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s name, address, contact phone or fax number/s, or business practice). The Buyer shall be liable for any loss incurred by the Seller as a result of the Buyer’s failure to comply with this clause.

Price and Payment

• At the Seller’s sole discretion the Price shall be either: (a) as indicated on any invoice provided by the Seller to the Buyer; or (b) the Seller’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
• The Seller reserves the right to change the Price if a variation to the Seller’s quotation is requested.
• At the Seller’s sole discretion a non-­refundable deposit may be required.
• Payment may be made by bank cheque, electronic/on-­line banking, credit card (plus a surcharge of up to three percent 3% of the Price, at the seller’s discretion), or by any other method as agreed to between the Buyer and the Seller.
• Unless otherwise stated the Price does not include GST. In addition to the Price the Buyer must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement for the sale of the Goods. The Buyer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Buyer pays the Price. In addition, the Buyer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

Time for payment for the Goods being of the essence, the Price will be payable by the Buyer on the date/s determined by the Seller, which may be:

On delivery or collection of the Goods;

Before delivery of the Goods;

By way of instalments/progress payments in accordance with the Seller’s payment schedule;

Thirty (30) days following the end of the month in which a statement is posted to the Buyer’s address or address for notices;

The date specified on any invoice or other form as being the date for payment; or

Failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Buyer by the Seller.

Delivery of Goods

Delivery (“Delivery”) of the Goods is taken to occur at the time that:

• The Buyer or the Buyer’s nominated carrier takes possession of the Goods at the Seller’s address; or
• The Seller (or the Seller’s nominated carrier) delivers the Goods to the Buyer’s nominated address even if the Buyer is not present at the address.
• At the Seller’s sole discretion the cost of delivery is in addition to the Price.
• The Buyer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Buyer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery and/or storage.
• Any time or date given by the Seller to the Buyer is an estimate only. The Buyer must still accept delivery of the Goods even if late and the Seller will not be liable for any loss or damage incurred by the Buyer as a result of the delivery being late.

Risk

• Risk of damage to or loss of the Goods passes to the Buyer on Delivery and the Buyer must insure the Goods on or before Delivery.
• If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
• If the Buyer requests the Seller to leave Goods outside the Seller’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Buyer’s sole risk.
• While all reasonable care will be taken by the Seller, the Seller will not be liable for any damage caused to vehicle paintwork from removal of previous decals or signage.

Printing Risk

• When quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other good copy, any extra work or cost caused by any variation by the Buyer of his original instructions or by the manuscript copy being, in the Sellers opinion, poorly prepared or by the Buyer’s requirements being different from those originally submitted or described, then the cost of such variations may be charged to the Buyer and shown as extras on the invoice.
• All work carried out whether experimentally or otherwise at the Buyer’s request will be charged to the Buyer.
• Any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Buyer and shown as extras on the invoice.
• Unless otherwise agreed, the Buyer shall bear the cost of fonts, or colour proofs, or artwork, specially bought at its request for the works.
• Whilst every care is taken by the Seller to carry out the instructions of the Buyer, it is the Buyers responsibility to undertake a final proof reading of the art work by submission of the Seller’s ‘Proofing” acknowledgement form or online proofing mechanism. The Seller shall be under no liability whatever for any errors not corrected by the Buyer in the final proof reading. Should the Buyers alterations require additional proofs this shall be invoiced as an extra.
• Goods printed or made to special order, Buyer specification or non-­catalogue items are under no circumstances acceptable for credit or return. Cancellation of orders for printed or special or non-­catalogue items will not be accepted, once these orders are in production
• The Seller is under no obligation to provide samples of Goods ordered other than by virtual (computerised) sample. Whilst every effort will be taken by the Seller to match virtual colours with physical colours, the Seller will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Buyer’s computer and/or the final product. Should a physical sample be required this will be provided on request by the Buyer and will be charged for as an extra including return freight. Where possible samples may be included into a production run and where possible a credit may be given to the Buyer for the cost of the samples (excluding freight).
• While every effort will be taken by the Seller to match colours the Seller shall be under no liability whatsoever to the Buyer for any variation in colours between the final art work (or sale samples, if it is available) and the finished Goods.
• The Seller shall not be held liable for inks wearing off through general wear and tear.
• Drawings, sketches, mock-ups, proofs, painting, photographs, designs or typesetting furnished by the Seller, dummies, models or the like devices made or procured and manipulated by the Seller and negatives, positives, blocks, engravings, stencils, dies, plates or cylinders made from the Seller’s original design, or from a design furnished by the Buyer, remain the exclusive property of the Seller unless otherwise agreed upon in writing.
• Sketches, mock-ups, proofs and dummies submitted by the Seller on a speculative basis shall remain the property of the Seller. They shall not be used for any purpose other than that nominated by the Seller and no ideas obtained there from may be used without the consent of the Seller. The Seller shall be entitled to compensation from the Buyer for any unauthorised use of such sketches and dummies.
• Disks, artwork and film supplied by the Buyer and/or other authorised persons remain the property of the Buyer. Unless otherwise indicated in writing the Seller shall assume these disks, artwork and film to be duplicate copies of the original.
• Where the Seller has designed or created Goods for the Buyer then the Buyer undertakes to acknowledge the Sellers work if the designs or images of the Goods are utilised in advertising or marketing material by the Buyer.
• When style, type or layout is left to the Sellers judgement and then the Buyer makes further alterations to the copy this will be invoiced as an extra.
• Once accepted by the Buyer (written or verbal), the Seller’s written quotation shall be deemed to interpret correctly the Buyer’s instructions. Where verbal instructions only are received from the Buyer, the Seller shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.

Buyer’s Property and Material Supplied by Buyer

• Where the Buyer supplies materials, adequate quantities shall be supplied to cover spoilage. Sheets, garments and other materials shall not be counted or checked when received unless requested by the Buyer in writing. An additional charge may be made by the Seller in respect of any such counting or checking requested by the Buyer.
• In the case of property and materials left with the Seller without specific instructions, the Seller shall be free to dispose of them at the end of two months after his receiving them and to accept and retain any proceeds gained from such disposal to cover the Seller’s costs in holding and handling such items.
• Where materials or equipment are supplied by the Buyer for the provision of Services the Seller shall accept no liability for imperfect work caused by defects in, or the unsuitability of, such materials or equipment for the works.
• Any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Buyer which is deemed necessary by the Seller to ensure correctly finished work shall be invoiced as an extra.

Buyers Disclaimer

• The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Buyer by any servant or agent of the Seller and the Buyer acknowledges that the Buyer buys the Goods relying solely upon the Buyers own skill and judgement and that the Seller shall not be bound by nor responsible for any terms, condition, representation or warranty other than the warranty other than the warranty given by the manufacturer which warranty shall be personal to the Buyer and shall not be transferable to any subsequent Buyer.

Title

The Seller and the Buyer agree that ownership of the Goods shall not pass until:

The Buyer has paid the Seller all amounts owing to the Seller; and

The Buyer has met all its other obligations to the Seller.

•  Receipt by the Seller 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.

It is further agreed that:

• Until ownership of the Goods passes to the Buyer in accordance with clause 10.1 that the Buyer is only a bailee of the Goods and must return the Goods to the Seller on request.
• The Buyer holds the benefit of the Buyer’s insurance of the Goods on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
• The Buyer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Buyer sells, disposes or parts with possession of the Goods then the Buyer must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand.
• The Buyer should not convert or process the Goods or intermix them with other goods but if the Buyer does so then the Buyer holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs.
• The Buyer irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are kept and recover possession of the Goods.
• The Seller may recover possession of any Goods in transit whether or not delivery has occurred.
• The Buyer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Seller.
• The Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Buyer.

Defects, Returns and Warranty

• The Buyer must inspect the Goods on delivery and must within seven (7) days of delivery notify the Seller in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Buyer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Buyer must allow the Seller to inspect the Goods.
• If the Buyer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
• For defective Goods, which the Seller has agreed in writing that the Buyer is allowed to reject, the Sellers liability is limited to (at the Sellers discretion) either replacing the Goods or repairing the Goods.
• If Goods supplied are the wrong size or specification as a result of a mistake by the Buyer then the goods if possible will be returned to the supplier and the Buyer will be liable for any restocking fees. If goods are not able to be returned to the supplier for whatever reason, then the Buyer will be liable for the cost of the goods.
• For Goods not manufactured by the Seller the warranty will be the warranty as provided by the manufacturer of the Goods. The Seller will not be responsible for any terms, warranty or representation provided by the manufacturer of the Goods.

Default and Consequences of Default

• Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
• If the Buyer owes the Seller any money the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s collection agency costs, and bank dishonour fees).
• Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Goods to the Buyer. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller has exercised its rights under this clause.

Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:

Any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to make a payment when it falls due;

The Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.

Cancellation

• The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Buyer. On giving such notice the Seller shall repay to the Buyer any money paid by the Buyer for the Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
• In the event that the Buyer cancels delivery of Goods the Buyer shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits).
• Cancellation of orders for Goods made to the Buyer’s specifications, or for non-­stocklist items, will not be accepted once production has commenced, or an order has been placed.

General

• The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
• These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which the Seller has its principal place of business, and are subject to the jurisdiction of the courts in that state.
• Subject to clause 11 the Seller shall be under no liability whatsoever to the Buyer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
• The Buyer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Buyer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
• The Seller may license or sub-­contract all or any part of its rights and obligations without the Buyer’s consent.
• The Buyer agrees that the Seller may amend these terms and conditions at any time. If the Seller makes a change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Buyer of such change. The Buyer will be taken to have accepted such changes if the Buyer makes a further request for the Seller to provide Goods to the Buyer.
• Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-­ out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
• The Buyer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent, and that this agreement creates binding and valid legal obligations on it.