Terms and Conditions of Trade
CMYKhub (incorporating CMYKhub VIC Pty Ltd ABN 57 163 858 615, CMYKhub NSW Pty Ltd ABN 80 139 444 929, CMYKhub QLD Pty Ltd ABN 26 142 283 672, CMYKhub WA Pty Ltd ABN 29 142 284 053, CMYKhub FAR NORTH QLD Pty Ltd ABN 26 142 283 672 and includes any ‘Related Bodies Corporate’ (as defined in the Corporations Act 2001 (Cth) (“Related Bodies Corporate”)) is referred to in these terms and conditions
By placing any written, verbal or electronic purchase order with Us (“Order”), in accordance with these Trading Terms, for goods supplied by Us (“Goods”), you accept these Trading Terms in your own right and on behalf of any Related Bodies Corporate, collectively referred to in these Trading Terms as “You” and “Your” means belonging to You.
1. APPLICATION OF TRADING TERMS
1.1 Unless otherwise agreed in writing by Us, these Trading Terms (as amended by Us from time to time), together with any quotation, offer, current catalogue, or price list produced by Us from time to time, constitute the entire terms of trade between You and Us, and:
(a) apply to the provision of all Goods by Us to You;
(b) prevail over any terms and conditions You may nominate;
(c) prevail over the terms of any other document (including any Order); and
(d) supersede all previously issued terms and conditions of trade previously issued by Us.
1.2 Any warranty, representation or guarantee not included or provided for in these Trading Terms is of no effect.
1.3 We may amend these Trading Terms from time to time without notice to You and You will be deemed to have had knowledge of and have accepted such amendments if You continue to
purchase Goods from Us.
2. ORDERING GOODS
2.1 Any quotation or offer provided by Us in respect of supplying Goods is subject to review, amendment or withdrawal by Us at any time prior to acceptance by You or the expiry of the quotation or offer (whichever occurs first).
2.2 You may place an Order either by:
(a) directly uploading Your artwork and Order to Our system; or
(b) emailing Your artwork and Order to Our processing department.
2.3 You acknowledge and agree that:
(a) We may, subject to Our acceptance of Your Order, immediately commence manufacturing and providing the Goods to You,
(b) You are solely responsible for the content and accuracy of the artwork provided to Us and You confirm that You have checked that Your Order is suitable for Your requirements;
(c) We will not be responsible for checking, for errors or otherwise, any of the artwork provided by You;
(d) We will not be liable in respect of any errors or defects in the Goods arising from any artwork provided by You; and
(e) it is Your responsibility to maintain a copy of all artwork supplied to Us.
2.4 We have no obligation to supply any Goods until Your Order has been accepted by Us. We will notify You within a reasonable time whether Your Order has been accepted. Our acceptance of Your Order creates a contract between us to supply the Goods to You subject to these Trading Terms (“Contract”) and, other than to the extent We agree in writing to the contrary, on terms consistent with any unexpired quotation of offer which immediately preceded Your Order and has not been withdrawn by Us
2.5 Your Order may only be cancelled or varied by You after acceptance by Us if:
(a) We have accepted Your request for such a cancellation or variation (such requests to be emailed to Us and to include a full explanation of the reasons for such cancellation or variation); and
(b) You have agreed to reimburse Us in full for all reasonable costs and expenses which We will incur as a result of Your cancellation or variation of Your Order.
2.6 Your Order and the corresponding Contract may be cancelled by Us if, after acceptance of Your Order, We are unable to obtain the necessary materials necessary to complete Your Order by the estimated delivery date and if acceptable substitute materials have not been agreed with You within a reasonable period of Us notifying You of the delay.
3. INTELLECTUAL PROPERTY
You acknowledge and agree that We will not accept any responsibility for any infringement of any intellectual property (including, but is not limited to, designs, copyright, patents or trademarks) (“Intellectual Property”) of a third party arising out of or in connection with the artwork provided by You and, without limiting any other clause of these Trading Terms, You agree to indemnify Us against any claims for infringement or unauthorised use of such Intellectual Property arising out of or in connection with the artwork provided by You.
4.1 Subject to clause 4.4, You agree to buy and We agree to supply the Goods for the prices listed in any current quotation, offer, current catalogue, website or price list produced by Us (“Prices”).
4.2. Unless expressly stated by Us, the Prices do not include any sales, goods and services, value added or any other applicable government tax or duty. We will disclose the amount of such taxes and duties as a separate item on Our invoices and these will be payable in addition to the Prices.
4.3. The Prices include the cost of Our standard packaging for the Goods. The cost of any special packaging materials or techniques requested by You in connection with the Goods must be paid for by You in addition to the Prices.
4.4. We reserve the right, from time to time but prior to issuing an invoice to You, to increase the Prices:
(a) to take account of increases in the cost of providing the Goods to You (which may include, but are not limited to, increases in the cost of energy, materials, labour, equipment or delivery) which are due to any factor beyond Our reasonable control or are due to Your failure to provide adequate information, artwork or instructions; or
(b) to correct, without any liability on Our part, any errors or omissions quotation, offer, current catalogue, website or price list produced by Us.
4.5. We reserve the right to pass on to You any additional costs (including merchant fees) incurred by Us where You pay Us by credit card (if applicable).
5. PAYMENT AND CREDIT TERMS
5.1. If You do not have a current credit facility in place with Us, You must pay for all Goods at the time of placing Your Order.
5.2. If You do have a current credit facility in place with Us, We may issue You with an invoice at any time after the Goods have been delivered to You in accordance with these Trading Terms. You must pay each invoice within 30 days from the date of the invoice.
5.3. You acknowledge that We may set, alter or withdraw credit limits and credit terms in Our absolute discretion and without giving prior notice to You or providing any reasons.
5.4. Payments due to Us must be made without any deduction or set-off. We may apply the amounts paid to Us in payment of any amount owed by You.
5.5. If You dispute an invoice, You must nonetheless pay the entire amount. We will refund any agreed amount following resolution of the dispute. If You fail to pay any invoice (whether in whole or in part) by the due date, then without affecting any other right or remedy available to Us, We may:
(a) suspend or cancel any further production and/or delivery of any Goods (whether under an existing or new Order) until full payment of all outstanding amounts owed to Us (including accrued interest if applicable) has been made;
(b) charge interest on any amount outstanding in respect of Our invoices, at the rate set from time to time under the Penalty Interest Rates Act 1983 (Vic) (such interest to be calculated daily and compounded monthly), until full payment has been made;
(c) exercise a general lien on all of Your property within Our possession or control to cover the outstanding amount for the Goods;
(d) withdraw (in full or in part) any discount, concession or allowance which was previously offered to You; and
(e) recover from You, in addition to the outstanding amount, all reasonable costs incurred by Us in collection of the outstanding amount.
6. SECURITY INTEREST
If You have a current credit facility in place with Us, You acknowledge and agree that the following terms apply:
6.1. We may require You to provide security for any Order placed by You as a condition of accepting Your Order and the terms of the Personal Property Securities Act 2009 (Cth) (“PPSA”) apply to all transactions made under these Trading Terms.
6.2. You acknowledge and agree that You will:
(a) grant a security interest in all present and after acquired Goods as security for all amounts owing now and in the future by You to Us;
(b) do all things and sign all documents as are necessary and reasonably required to enable Us to acquire a perfected security interest in all Goods supplied;
(c) provide such information as is required to enable registration of a ‘Purchase Money Security Interest’ (as that term is defined in the PPSA) (“PMSI”);
(d) not, without obtaining Our prior written consent, change Your name or initiate any change to any registered documentation, or act in any manner which would impact on Our registered security interest; and
(e) waive or exclude the application of such sections of the PPSA as We may require, subject to those sections being capable of exclusion.
6.3. You further acknowledge that a PMSI is granted by You, in priority to all other creditors, in favour of Us and in respect of all Goods that We supply You from time to time, as security for Your payment obligations to Us. You agree to indemnify Us for any liability for all costs incurred by Us in relation to any security interest granted by You (including, but not limited to, registration, maintenance, enforcement or discharge of any security interest).
6.4. We reserve the right at any time to make such amendments, alterations to this ‘Security Interest’ clause as We may, in Our absolute discretion, determine are necessary to protect Our security interests.
7. PROPERTY AND RISK
7.1. Risk in relation to Goods passes to You upon delivery in accordance with these Trading Terms.
7.2. Title in relation to Goods shall not pass to You until We have received full payment for the Goods and for any other amounts owing by You to Us in relation to any other matter and You shall hold the Goods (including where such Goods have been converted or changed by any process) as fiduciary bailee and agent for Us.
7.3. Until title to the Goods passes to You, You shall hold the Goods (including where as fiduciary bailee and agent for Us and You are only authorised to sell or use the Goods in the ordinary course of Your business (which does not include sale of the Goods for less than cost or on conditions).
7.4. You acknowledge that We hold a PMSI in respect of any Goods supplied to You until We have received full payment in respect of such Goods and You must not pledge, or in any way charge by way of security or indebtedness, any of the Goods.
7.5. Without prejudice to any of Our other rights, if You fail to comply with these Trading Terms, if You cease to be able to pay Your debts as they become due or if You become subject to any form of insolvency administration:
(a) all amounts owing by You to Us shall immediately become due and payable;
(b) We have the right to immediate possession of the Goods and You irrevocably authorise Us to enter any premises occupied by You at the time (with or without Your consent), in Your name and without notice to any other person, to take possession of such Goods without liability for trespass or any resulting damage;
(c) We may recover from You all reasonable costs incurred by Us in connection with any Goods repossessed by Us under this clause and We shall be entitled, but not obligated, to resell such Goods; and
(d) We may retain all amounts paid to Us on account of the Goods and may suspend or cancel any further production and/or delivery of any Goods;
8.1. Subject to clause 8.2 and any alternative delivery arrangements nominated by You and accepted by Us, the method and date of delivery of Goods purchased shall be on the terms stated in Our current quotation, offer, catalogue, website, or price list (whichever is applicable) and shall be at Your risk, cost and expense. You agree that in the event that any freight or delivery charges are paid by Us, You must reimburse the full amount of such charges on demand.
8.2. Any date quoted for supply or delivery of the Goods are approximate only and although We will use reasonable efforts to meet them, We will not be liable for any delay in such supply or delivery.
9. FORCE MAJEURE
We will not be liable for any failure to perform, or delay in performance of, any obligation where such failure or delay is due to anything beyond Our reasonable control including, but not limited to, adverse weather or terrain, strikes, lockouts and other industrial action, material shortages, failure of any of Our suppliers to supply, accidents, power or data transmission failure, breakdowns of plant or machinery, import or export regulations or embargoes.
10. CLAIMS REGARDING THE GOODS
You will be deemed to have accepted the Goods, free from any defect or other non-conformity, unless We receive a substantiated claim from You within 7 days from the date of delivery of the Goods to You in accordance with these Trading Terms.
11. LIMITATION OF LIABILITY AND WARRANTIES
11.1. The Competition and Consumer Act 2010 (Cth) may imply certain conditions and warranties into these Trading Terms that cannot be excluded or modified. These Trading Terms do not exclude or modify any of those conditions and warranties if to do so would contravene that law or make any part of these Trading Terms void.
11.2. Subject to clause 11.1, all warranties and conditions that may be implied into these Trading Terms are excluded and Our liability for breach of any implied condition or warranty that cannot be
excluded is limited (at Our option) to the repair or replacement of those Goods or reimbursement of the cost of having those Goods repaired or replaced.
11.3. Despite any other provision of these Trading Terms, to the extent permitted by law, We have no liability to You nor will You be entitled to claim against Us in respect of consequential loss arising out of or in connection with the supply of the Goods or otherwise at law or in equity.
11.4. You acknowledge that the exclusions and limitations in this clause 11 are customary for suppliers of goods equivalent to the Goods and are fair and reasonable given the nature of the Goods and the Prices charged for them.
11.5. This clause shall survive termination of these Trading Terms.
12. YOUR WARRANTIES AND INDEMNITY
12.1. You warrant that:
(a) any artwork provided by You for printing or production by Us will not:
(i) contain anything which is offensive, obscene, defamatory or unlawful in any way;
(ii) contain any viruses, corrupted data or files, malicious software or any other such harmful components which may damage or alter Our computer systems or data; and
(iii) infringe the Intellectual Property rights of any other person; and
(b) the printing and/or production of the artwork provided by You will not give rise to any claims against or liabilities for Us, Our officers, employees or agents.
12.2. You indemnify Us against all expenses, losses, damages and costs (including on a solicitor and own client basis and whether incurred by Us or awarded against Us) that We may incur as a
direct or indirect result of any breach by You of these Trading Terms, including any warranty contained in these Trading Terms.
13.1. We may, without affecting any other rights We have, terminate or suspend any Contract with You with immediate effect by giving You written notice if:
(a) if You breach any provision of these Trading Terms and fail to remedy such breach within 7 days of Our notice requiring You to do so;
(b) if You breach any provision of these Trading Terms where such breach is not capable of remedy; or
(c) if You cease to be able to pay Your debts as they become due or if You become subject to any form of insolvency administration.
13.2. If We exercise Our rights pursuant to clause 13.1 to terminate or suspend a Contract with You, We will immediately be entitled to invoice You for any work in progress under that Contract
at Our current rates. This clause does not limit or affect any other remedy which may be available to Us including seeking compensation for any loss or damage suffered by Us.
14. GUARANTEE AND INDEMNITY
If You have a current credit facility in place with Us and any person has given notice, in the application form completed by You for the purpose of establishing a credit facility with Us (“Account Application Form”), of their consent to act as Your guarantor (such person referred to in this clause 14 as a “Guarantor” (and if more than one, each reference to a “Guarantor”
is a reference to them jointly and each of them individually)), You acknowledge and agree that the following terms apply:
14.1. The Guarantor hereby guarantees the due and punctual payment by signature of all amounts that become due and payable by You to Us under these Trading Terms and also the due and punctual performance by You of Your obligations under these Trading Terms (the “Guarantee”).
14.2. In consideration of Us entering into these Trading Terms with You, the Guarantor hereby charges in Our favour the whole of the Guarantor’s estate and interest, legal and equitable, in the Guarantor’s personal and real property to secure the Guarantor’s obligations pursuant to these Trading Terms.
14.3. Without limiting Our rights under these Trading Terms, the Guarantor acknowledges and agrees that the charge on the Guarantor’s property shall provide a caveatable interest in Our favour and the Guarantor consents to Us registering Our interest in the Guarantor’s property, including by way of a caveat.
14.4. The Guarantee is a continuing guarantee and shall not be discharged in whole or in part by the payment at any time of any part of the money payable by under these Trading Terms or by settlement of account, intervening payment, or other matter or thing whatsoever.
14.5. The Guarantee is irrevocable and shall not be affected or prejudiced by the death, bankruptcy or incapacity of the Guarantor or by any variation or modification of these Trading Terms.
14.6. The Guarantee shall at all times be valid and enforceable against the Guarantor notwithstanding that You have not received a demand for payment or that You were prohibited (whether expressly or by implication) by law, contract or otherwise from entering into these Trading Terms or lacked capacity, power or authority to enter into these Trading Terms.
14.7. If any payment made by You to Us is subsequently avoided or set aside by reason of any statutory provision or otherwise, such payment shall not prejudice or otherwise affect the Guarantee, or Our rights pursuant to this clause 14, to the intent that We shall recover any monies secured and be restored to the same position in which We would have been had such payment not been made.
14.8. The Guarantor agrees to indemnify Us in respect of all costs, charges and expenses whatsoever which We may incur by reason of any default by You under or in relation to these Trading Terms and the Guarantor is liable to pay, and further indemnifies Us for, Our reasonable expenses incurred in enforcing the Guarantee.
15. CONSENT TO CREDIT CHECK AND PRIVACY ACT
15.1. By signing the Account Application Form, You acknowledge and agree that the Privacy Act 1988 (Cth) authorises Us to obtain from a credit reporting agency a report containing Your personal credit information for the purpose of assessing Your credit worthiness.
15.2. You authorise Us to contact any of the trade reference provided by You and make such enquiries as are necessary and reasonable to properly consider Your application for credit.
16.1. We may sub-contract the production, manufacture, supply or delivery of all or some of the Goods.
16.2. Any failure by Us to insist on strict compliance with any Contract with You or any delay by Us in exercising Our rights under any Contract with You will not constitute a variation or waiver of any provision of that Contract or of any right available to us.
16.3. If part of all of any provision of these Trading Terms or its application to any person or circumstance is held to be illegal or enforceable, the provision will be interpreted so as to ensure it is not illegal or unenforceable. If any provision or part of it cannot be so interpreted, the provision or relevant part of it will be severed from these Trading Terms and the remaining provisions of these Trading Terms will continue in force.
16.4. Where You are comprised of 2 or more persons, an agreement or obligation to be performed or observed by You binds those persons jointly and each of them severally.
16.5. Any notice or document required to be served under these Trading Terms or under any Contract with You will be sufficiently served if delivered or posted by pre-paid post to the address of that party as stated in the Account Application Form or as otherwise notified by that party from time to time in writing. If the notice or document is posted, service will deemed to have been effected 3 days after the date on which the document or notice was posted.
17. GOVERNING LAW
These Trading Terms are governed by the laws of the State or Territory in Australia which We are located (as stated in the Account Application Form). All parties submit to the nonexclusive jurisdiction of the Courts of that State or Territory.