SHIRE LABELS TERMS AND CONDITIONS December 2008
1.1 The Application of these terms and conditions
These Terms and Conditions are incorporated into any contract between Shire Labels and the customer for the supply of goods and/or services by Shire Labels to the customer.
In these Terms and Conditions: "Business Day" means a day on which banks are open for general banking business in the State of NSW: "Estimate" means the estimate referred to in sub-clause 2.1(b) (as amended in accordance with clause 2.4). "Goods" means the final goods produced by Shire Labels by completing the order. "Order" means the work required to be done in order to fulfil the customer's instructions. "GST" means the tax system (Goods and Services Tax) Act, 1999. "Interest Rate" means the aggregate of two percentum (2%) and the rate of interest charged by the ANZ Bank from time to time on Overdraft Accounts exceeding One Hundred Thousand Dollars. "Quote" means the quote described in clause 2.1
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, substitutes, 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 be a calendar period.
In these Terms and Conditions, headings are for convenient reference only and do not affect interpretation.
1.5 Business Day
If [Where] 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.
2.1 Shire Labels to supply quote
Shire Labels may give the customer a quote specifying: (a) the work required to be done in order to fulfil the customer's instructions; and (b) an estimate of Shire Labels' charge for the performance of that work.
2.2 Acceptance by customer
When Shire Labels has given the customer the Quote: (a) Shire Labels will not commence work until the Quote has been accepted by the customer. (b) The customer may accept the Quote by instructing Shire Labels to commence work. (c) Acceptance by the customer of the Quote will constitute acceptance by the customer of these Terms and Conditions.
2.3 Quote evidence of Instructions
If a written Quote is accepted by the customer, the work the subject of the Quote shall be carried out and the customer shall pay for the work in accordance with the within Terms and Conditions.
2.4 Shire Labels may revise Estimate
Shire Labels may amend any Estimate before the Order has been completed to take into account any rise or fall in the cost of performing the Order and Shire Labels shall notify the customer of such amendment as soon as practicable thereafter. Upon Shire Labels giving the customer notification of such amendment such amended estimate shall be and be deemed to be the Estimate for the purposes of these Terms and Conditions.
Subject to clause 5.3, when the order has been completed, Shire Labels will issue an invoice to the customer for the amount of the estimate, or if no Estimate was made, for an amount representing Shire Labels' charges for 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, in addition to the amount representing Shire Labels' charge for the work done, Shire Labels 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 Shire Labels before the Quote 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, bromides, 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 For the purposes of these Terms and Conditions: (a) The term "Shire Labels charge" refers in each case to the standard or usual fee charged by Shire Labels from time to time in respect of the Order. (b) "Preliminary Work" means all and any work performed by Shire Labels 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 Shire Labels at the time when Shire Labels supplied the Estimate. (c) "Additional work" includes all work undertaken by Shire Labels as a consequence of the customer's variation, alteration or modification of its instructions in relation to the order; and (d) "Freight costs and charges" includes all costs and expenses incurred by Shire Labels in removing the Goods from its premises, whether by way of actual or attempted delivery to the customer or otherwise.
Shire Labels must notify the customer when the Goods are ready for collection.
The customer must collect the goods from Shire Labels' premises upon being notified by Shire Labels that the Goods are ready for collection. If Shire Labels agrees to deliver the Goods the customer shall bear all freight costs and charges of such delivery.
(a) Shire Labels must be notified immediately. No claims will be upheld after 30 days from invoice date. In the case of new and repeat work it is the customers responsibility to check that the labels delivered are actually the current labels required, in any case If the labels have been subsequently affixed to a product it will be deemed then the customers responsibility for any outcoming liability. (b) 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 Shire Labels of the rejection. (i) If Shire Labels agrees to deliver the Goods to the customer's premises - within 7 days of delivery (or such other time as is mutually agreed) (ii) otherwise - within 7 days of notification that the Goods are ready for collection (or other time as is mutually agreed). (b) In the event of a dispute arising as to whether or not the Goods comply with the customers instructions the matter will be dealt with in accordance with the provisions of clause 8.9 of these Terms and Conditions.
The risk in the Goods passes to the customer. (a) If Shire Labels delivers the Goods to the customer's premise at the time of delivery; (b) otherwise - at the time Shire Labels notifies the customer that the Goods are ready for collection.
5.1 Time for payment
The customer must, within 14 days of the customer receiving Shire Labels' invoice, pay to Shire Labels the total amount set out in the invoice.
Shire Labels may charge interest at the Interest Rate on amounts not paid within the time specified in Clause 5.1
5.3 Advance and progress payments
Shire Labels may: (a) Shire Labels may issue an invoice for the amount 50% of the Estimate before commencing the Order where Shire Labels has not previously carried out work for the customer or where Shire Labels considers it otherwise prudent to do so; (b) Shire Labels may, in the event that Shire Labels is of the view 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 Shire Labels' 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, Shire Labels may issue an invoice for a particular sum (to be specified by Shire Labels) for the work already done and for other costs incurred by Shire Labels (such as storage costs).
The customer must pay to Shire Labels any costs, expenses or losses incurred by Shire Labels as a result of the customer's failure to pay to Shire Labels all sums outstanding from the customer to Shire Labels (including, without limiting the generality of the obligation set out in this clause, any debt collection and legal costs).
6.1 Retention of ownership
Until the customer has paid all sums outstanding in relation to the Goods: (a) Title in the Goods shall not pass from Shire Labels to the customer. (b) If the Goods are in the customer's possession, the customer shall hold the Goods as trustee for Shire Labels and must store the Goods so that they are clearly identifiable as the property of Shire Labels. (c) Shire Labels may call for and recover possession of the Goods (for which purposes Shire Labels' employees or agents may enter the customer's premises and take possession of the Goods without liability to the customer) and the customer must deliver the Goods to Shire Labels if so directed by Shire Labels. (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 are held by the customer as trustee for Shire Labels and the customer must account to Shire Labels for those sums: and (ii) if Shire Labels requires, the customer shall assign to Shire Labels the customer's claim against the third party and must execute all documents necessary to effect that assignment.
6.2 General lien
Shire Labels shall, in respect of all sums owed by the customer to Shire Labels hereunder, have a general lien on all property of the customer in Shire Labels' possession and may, after 14 days' notice to the customer, sell that property and apply the proceeds (nett 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 Shire Labels as aforesaid enjoys copyright protection in favour of the customer, the customer hereby grants to Shire Labels a licence to exercise the rights conferred on Shire Labels under this clause.
If Shire Labels submits to the customer a proof of the Goods Shire Labels 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.
7.2 Non-excludable Rights
The parties acknowledge that, under 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 Disclaimer of Liability
Shire Labels 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 Shire Labels for a breach of a Non-excludable Right is limited at Shire Labels' option, to the supplying of the Goods and/or services again or payment of the cost of having the Goods and/or any services supplied again.
7.4 Indirect losses
Notwithstanding any other provision of these Terms and Conditions, Shire Labels 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 any: (a) increased costs or expenses: (b) loss of profit, revenue, business, contracts or anticipated savings; (c) loss of expense resulting from a claim by a third party; or (d) special, indirect or consequential loss or damage of any nature whatsoever caused by Shire Labels' failure to complete or delay in completing the Order or to deliver the Goods.
7.5 Electronic data
Without limiting the generality of the foregoing clauses, Shire Labels will not be liable to the customer for loss, however caused, of any data stored on disks, tapes, compact discs or other media supplied by the customer to Shire Labels.
7.6 Customer's property
Subject to clause 7.5, Shire Labels will not be liable for the damage, loss or destruction of any property of the customer in Shire Labels' possession unless the loss or damage is due to the failure of Shire Labels to exercise due care and skill in handling or storing the property.
7.7 Force Majeure
Shire Labels will have no liability to the customer in relation to any loss, damage or expense caused by Shire Labels' 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 Shire Labels' normal suppliers to supply necessary materials or any other matter beyond Shire Labels' control.
8. GENERAL MATTERS
If the contract between Shire Labels and customer relates to more than one issue of a periodical: (a) each issue will, for the purposes of these Terms and Conditions, be considered to be one Order. (b) Subject to sub-clause (c), a party may not terminate a contract to which these Terms and Conditions apply unless: (i) in the case of periodicals published weekly or more frequently, that party has given 4 weeks notice of that party's intention to terminate the contract. (ii) in the case of periodicals published fortnightly or more frequently (but less frequently than weekly), that party has given 8 weeks' notice of that party's intention to terminate the contract; (iii) in the case of periodicals published less frequently than fortnightly, that party has given 13 weeks' notice of that party's intention to terminate the contract. (c) Notwithstanding sub-clause (b), Shire Labels may terminate the contract at any time if the customer is in breach of any provision of these Terms and Conditions relating to payment.
8.2 Alterations to style etc.
If, before the Quote is prepared, the customer does not give Shire Labels specific instructions in relation to style, type or layout: (a) Shire Labels may use any style, type and layout which, in Shire Labels' opinion is appropriate and (b) Shire Labels 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 Shire Labels.
The customer must pay for overset matter (being produced on the customer's instructions but not used in a publication for which it was intended). The customer may instruct Shire Labels to retain overset matter for future issues of the publication or to discard the overset matter.
8.4 Outside Work
If Shire Labels has to obtain goods (including typefaces, bromides, film, plates, ornaments or artwork) and/or services not normally stocked or supplied by Shire Labels from a third party in order to carry out the customer's instructions: (a) Shire Labels 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 the goods and/or services. (b) Shire Labels 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 customers 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 the goods and/or services. (d) Property in any goods obtained from a third party and incorporated into the Goods passes to Shire Labels at the time of incorporation.
8.5 Material supplied by customer
If Shire Labels 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 Shire Labels. (b) Shire Labels will not normally count or check the materials and if requested by the customer to do so, may charge for counting or checking. (c) Shire Labels 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 Shire Labels at the time of incorporation.
8.6 Property left with Shire Labels
If the customer leaves the property in Shire Labels' possession without specific instructions as to what is to be done with it, Shire Labels may, 12 months after gaining possession of the property, dispose of or sell the property and retain any proceeds of sale as compensation for holding and handling the property.
8.7 Responsibility to insure
Shire Labels has no obligation to insure any property of the customer in Shire Labels' possession. The customer must pay the cost of any insurance arranged by Shire Labels at the request of the customer.
8.8 Ancillary materials
Unless Shire Labels and customer agree otherwise, drawings, sketches, paintings, photographs, designs, typesetting, dummies, models, negatives, positives, blocks, engravings, stencils, dies, plates or cylinders, electros, stereos, discs, tapes, compact discs or other media or data and other material produced by Shire Labels 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 Shire Labels.
(a) Copyright in all artistic and literary works authored by Shire Labels shall be the property of Shire Labels (b) The customer: (i) warrants that the customer has copyright in or a licence to authorise Shire Labels to reproduce, all artistic and literary works supplied by the customer to Shire Labels for the purposes of the Order and the customer hereby expressly authorises Shire Labels to reproduce all and any of such works for the purposes aforesaid; (ii) hereby indemnifies and agrees to keep indemnified Shire Labels against all liability, losses or expenses incurred by Shire Labels 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 license to use copyright in any literary and/or artistic works authored by Shire Labels for the purposes of the Order however the exercise of such licence shall be conditional upon Shire Labels having received all monies due to Shire Labels under these Terms and Conditions.
The customer must keep confidential and not use any ideas communicated by Shire Labels to the customer without Shire Labels' written consent.
8.11 Electronic/magnetic media
All disks, compact disks or other media (other than media supplied by the customer) used by Shire Labels to store data for the purposes of completing the Order are the property of Shire Labels. The customer cannot require Shire Labels to supply to the customer any data so stored in the event that Shire Labels does supply any data so stored or created Shire Labels may charge for supplying such data to the customer.
8.12 Storage of electronic data
Shire Labels will not be responsible for storing any data on disks, tapes, compact disks or other media when the Order has been completed. If Shire Labels agrees to store such data, Shire Labels may charge for doing so.
8.13 No Waiver
A power or right is not waived solely because the party entitled to exercise that power or right does not do so. A single exercise of a power or right will not preclude any other or further exercise of that power or right or of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
8.15 Governing law and jurisdiction
These Terms and Conditions are governed by the law in force in the State or Territory in which Shire Labels' premises are located and the parties submit to the non-exclusive jurisdiction of the courts of that State or Territory and any courts which may hear appeals from those courts in respect of any proceedings in connection with these Terms and Conditions.
9 GOODS AND SERVICES TAX
9.1 All amounts are GST exclusive amounts
All amounts expressed or described in these Terms and Conditions are GST exclusive amounts.
9.2 All amounts to be increased for any GST
If any GST is payable by Shire Labels in respect of the supply of any goods or services to the customer, then the amount expressed or described in these Terms and Conditions ("Original Amount") is to be increased so that Shire Labels receives an amount ("Increased Amount") which, after subtracting the GST liability of Shire Labels on that Increased Amount, results in Shire Labels retaining the Original Amount after payment of that GST liability.
9.3 Out of pocket expenses are GST inclusive
All out of pocket expenses referred to in these Terms and Conditions are GST inclusive out of pocket expenses.
9.4 Shire Labels to assist customer
Shire Labels will do all things reasonably available 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 Shire Labels. This includes Shire Labels maintaining its registered status for GST purpose, and issuing tax invoices for supplies made under these Terms and Conditions on a timely basis as reasonably requested by the customer.