1.1 "Carbon8" shall mean Carbon8 Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Carbon8 Pty Ltd.
1.2 "Client" shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Carbon8 to the Client.
1.3 "Guarantor" means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 "Goods" shall mean Goods supplied by Carbon8 to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Carbon8 to the Client.
1.5 "Services" shall mean all Services supplied by Carbon8 to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 "Price" shall mean the Price payable for the Goods as agreed between Carbon8 and the Client in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 ("TPA") and Fair Trading Acts ("FTA")
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1 Any instructions received by Carbon8 from the Client for the supply of Goods and/or the Client's acceptance of Goods supplied by Carbon8 shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Carbon8.
3.4 The Client shall give Carbon8 not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client's name and/or any other change in the Client's details (including but not limited to, changes in the Client's address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Carbon8 as a result of the Client's failure to comply with this clause.
3.5 Goods are supplied by Carbon8 only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client's order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3.6 Once accepted by the Client, Carbon8's written quotation shall be deemed to interpret correctly the Client's instructions, whether written or verbal. Where verbal instructions only are received from the Client, Carbon8 shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
4. Price and Payment
4.1 At Carbon8's sole discretion the Price shall be either:
as indicated on invoices provided by Carbon8 to the Client in respect of Goods supplied; or
Carbon8's current price at the date of delivery of the Goods according to Carbon8's current Price list; or
Carbon8's quoted Price (subject to clause 4.2) which shall be binding upon Carbon8 provided that the Client shall accept Carbon8's quotation in writing within thirty (30) days.
4.2 Carbon8 reserves the right to change the Price in the event of a variation to Carbon8's quotation. Any variation from the plan of scheduled designs, quantities or specifications (including, but not limited to, any variation as a result of availability of stock or increases to Carbon8 in the cost of materials and labour) will be charged for on the basis of Carbon8's quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At Carbon8's sole discretion a non refundable deposit may be required.
4.4 At Carbon8's sole discretion:
payment shall be due on delivery of the Goods; or
payment shall be due before delivery of the Goods; or
payment for approved Clients shall be due thirty (30) or sixty (60) days following the date of invoice.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Carbon8.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4.8 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 Client of his original instructions or by the manuscript copy being, in Carbon8s opinion, poorly prepared or by the Client's requirements being different from those originally submitted or described, then the cost of such variations may be charged to the Client and shown as extras on the invoice. 4.9 All work carried out whether experimentally or otherwise at the Client's request will be charged to the Client.
4.10 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 Client and shown as extras on the invoice.
4.11 Unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at its request for the works.
5. Delivery of Goods
5.1 At Carbon8's sole discretion delivery of the Goods shall take place when:
the Client takes possession of the Goods at Carbon8's address; or
the Client takes possession of the Goods at the Client's nominated address (in the event that the Goods are delivered by Carbon8 or Carbon8's nominated carrier); or
the Client's nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client's agent.
5.2 At Carbon8's sole discretion the costs of delivery are:
included in the Price; or
in addition to the Price; or
for the Client's account.
5.3 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.4 Carbon8 may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
such discrepancy in quantity shall not exceed five percent (5%); and
the Price shall be adjusted pro rata to the discrepancy.
5.6 The failure of Carbon8 to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Carbon8 shall not be liable for any loss or damage whatsoever due to failure by Carbon8 to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Carbon8.
6.1 If Carbon8 retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Carbon8 is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Carbon8 is sufficient evidence of Carbon8's rights to receive the insurance proceeds without the need for any person dealing with Carbon8 to make further enquiries.
6.3 Where the Client expressly requests Carbon8 to leave Goods outside Carbon8's premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client's sole risk and it shall be the Client's responsibility to ensure the Goods are insured adequately or at all.
6.4 Whilst every care is taken by Carbon8 to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proof reading of the Goods. Carbon8 shall be under no liability whatever proof reading. Should the Clients alterations require additional proofs this shall be invoiced as an extra.
6.5 While every effort will be taken by Carbon8 to match the Goods to the design proof, Carbon8 will take no responsibility for any variation due to substrates, half tones and/or detailed graphics between sale samples (including but not limited to virtual or physical samples) and the final product.
6.6 Carbon8 shall not be held liable for inks wearing off through general wear and tear.
8.5 Carbon8 shall be under no liability whatever to the Client for any variation (beyond the reasonable control of Carbon8) in colours between the approved prototype and the finished Goods.
6.7 Where the performance of any contract with the Client requires Carbon8 to obtain Goods or Services from a third party, the contract between Carbon8 and the Client shall incorporate and shall be subject to the conditions of supply of such Goods and Services to Carbon8, and the Client shall be liable for the cost in full including Carbon8's margin of such Goods or Services.
6.8 Carbon8 is under no obligation to provide samples of Goods ordered other than by virtual (computerised) sample. Whilst every effort will be taken by Carbon8 to match virtual colours with physical colours, Carbon8 will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Client's computer and/or the final product. Should a physical sample be required this will be provided on request by the Client and will be charged for as an extra including return freight, the charge will be contra against the final invoice.
7. Client's Property and Material Supplied by Client
7.1 Where the Client supplies materials, adequate quantities shall be supplied to cover spoilage. Sheets and other materials shall not be counted or checked when received unless requested by the Client in writing. An additional charge may be made by Carbon8 in respect of any such counting or checking requested by the Client.
7.2 In the case of property and materials left with Carbon8 without specific instructions, Carbon8 shall be free to dispose of them at the end of twelve months after his receiving them and to accept and retain any proceeds gained from such disposal to cover Carbon8's costs in holding and handling such items.
7.3 Where materials or equipment are supplied by the Client for the provision of Services Carbon8 shall accept no liability for loss or damage to the materials or equipment while in Carbon8's possession or for imperfect work caused by defects in, or the unsuitability of, such materials or equipment for the works.
7.4 Any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Client which is deemed necessary by Carbon8 to ensure correctly finished work shall be invoiced as an extra.
7.5 Where the Client supplies materials, adequate quantities must be supplied to cover spoilage.
8.1 Carbon8 and the Client agree that ownership of the Goods shall not pass until:
the Client has paid Carbon8 all amounts owing for the particular Goods; and
the Client has met all other obligations due by the Client to Carbon8 in respect of all contracts between Carbon8 and the Client.
8.2 Receipt by Carbon8 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 and until then Carbon8's ownership or rights in respect of the Goods shall continue.
8.3 It is further agreed that:
where practicable the Goods shall be kept separate and identifiable until Carbon8 shall have received payment and all other obligations of the Client are met; and
until such time as ownership of the Goods shall pass from Carbon8 to the Client Carbon8 may give notice in writing to the Client to return the Goods or any of them to Carbon8. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
Carbon8 shall have the right of stopping the Goods in transit whether or not delivery has been made; and
if the Client fails to return the Goods to Carbon8 then Carbon8 or Carbon8's agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
the Client is only a bailee of the Goods and until such time as Carbon8 has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Carbon8 for the Goods, on trust for Carbon8:and
the Client shall not deal with the money of Carbon8 in any way which may be adverse to Carbon8; and
the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Carbon8; and
Carbon8 can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Carbon8 will be the owner of the end products.
9.1 The Client shall inspect the Goods on delivery and shall within two (2)days of delivery (time being of the essence) notify Carbon8 of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Carbon8 an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Carbon8 has agreed in writing that the Client is entitled to reject, Carbon8's liability is limited to either (at Carbon8's discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (Cwlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer's discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
10.1 To the extent permitted by statute, no warranty is given by Carbon8 as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Carbon8 shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
11. Intellectual Property
11.1 Where Carbon8 has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in Carbon8, and shall only be used by the Client at Carbon8's discretion.
11.2 The Client warrants that all designs or instructions to Carbon8 will not cause Carbon8 to infringe any patent, registered design or trademark in the execution of the Client's order and the Client agrees to indemnify Carbon8 against any action taken by a third party against Carbon8 in respect of any such infringement.
11.3 Drawings, sketches, painting, photographs, designs or typesetting furnished by Carbon8, dummies, models or the like devices made or procured and manipulated by Carbon8 and negatives, positives, blocks, engravings, stencils, dies, plates or cylinders made from Carbon8's original design, or from a design furnished by the Client, remain the exclusive property of Carbon8 unless otherwise agreed upon in writing.
11.4 Sketches and dummies submitted by Carbon8 on a speculative basis shall remain the property of Carbon8. They shall not be used for any purpose other than that nominated by Carbon8 and no ideas obtained there from may be used without the consent of Carbon8. Carbon8 shall be entitled to compensation from the Client for any unauthorised use of such sketches and dummies.
11.5 Disks, artwork and film supplied by the Client and/or other authorised persons remain the property of the Client. Unless otherwise indicated in writing Carbon8 shall assume these disks, artwork and film to be duplicate copies of the original.
11.6 Where Carbon8 has designed or drawn Goods for the Client then the Client undertakes to acknowledge Carbon8s design or drawings in the event that images of the Goods are utilised in advertising or marketing material by the Client.
11.7 The Client hereby authorises Carbon8 to utilise images of the Goods designed or drawn by Carbon8 in advertising, marketing, or competition material by Carbon8.
12. Illegal Matter
12.1 Carbon8 reserves the right to decline to print any content which in its opinion is or may be of an illegal or libellous nature or which might involve any infringement of any third party rights or which would otherwise involve any criminal or tortuous liability of any kind. The Client agrees to indemnify Carbon8 against all actions, claims, demands, costs and expenses of whatever nature which Carbon8 may suffer, incur or sustain in connection with, or arising in any way whatsoever from the Goods.
13. Default and Consequences of Default
13.1 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 Carbon8's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 In the event that the Client's payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Carbon8.
13.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Carbon8 from and against all costs and disbursements incurred by Carbon8 in pursuing the debt including legal costs on a solicitor and own client basis and Carbon8's collection agency costs.
13.4 Without prejudice to any other remedies Carbon8 may have, if at any time the Client is in breach of any obligation (including those relating to payment) Carbon8 may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Carbon8 will not be liable to the Client for any loss or damage the Client suffers because Carbon8 has exercised its rights under this clause.
13.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
13.6 Without prejudice to Carbon8's other remedies at law Carbon8 shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Carbon8 shall, whether or not due for payment, become immediately payable in the event that:
any money payable to Carbon8 becomes overdue, or in Carbon8's opinion the Client will be unable to meet its payments as they fall due; or
the Client 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 it's creditors; or
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14. Security and Charge
14.1 Despite anything to the contrary contained herein or any other rights which Carbon8 may have howsoever:
where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Carbon8 or Carbon8's nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Carbon8 (or Carbon8's nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
should Carbon8 elect to proceed in any manner in accordance with this clause and/or its sub- clauses, the Client and/or Guarantor shall indemnify Carbon8 from and against all Carbon8's costs and disbursements including legal costs on a solicitor and own client basis.
the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Carbon8 or Carbon8's nominee as the Client's and/ or Guarantor's true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
15.1 Carbon8 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 Client. On giving such notice Carbon8 shall repay to the Client any sums paid in respect of the Price. Carbon8 shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Carbon8 (including, but not limited to, any loss of profits) up to the time of cancellation
15.3 Cancellation of orders for Goods made to the Client's specifications or non-stocklist items will definitely not be accepted, once production has commenced.
16. Privacy Act 1988
16.1 The Client and/or the Guarantor/s agree for Carbon8 to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by Carbon8.
16.2 The Client and/or the Guarantor/s agree that Carbon8 may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
to assess an application by Client; and/or
to notify other credit providers of a default by the Client; and/or
to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
to assess the credit worthiness of Client and/or Guarantor/s.
16.3 The Client consents to Carbon8 being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Client agrees that personal credit information provided may be used and retained by Carbon8 for the following purposes and for other purposes as shall be agreed between the Client and Carbon8 or required by law from time to time:
provision of Goods; and/or
marketing of Goods by Carbon8, its agents or distributors in relation to the Goods; and/or
analysing, verifying and/or checking the Client's credit, payment and/or status in relation to provision of Goods; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
enabling the daily operation of Client's account and/or the collection of amounts outstanding in the Client's account in relation to the Goods.
16.5 Carbon8 may give information about the Client to a credit reporting agency for the following purposes:
to obtain a consumer credit report about the Client; and/or
allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
17.1 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.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Carbon8 shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Carbon8 of these terms and conditions.
17.4 In the event of any breach of this contract by Carbon8 the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Carbon8 nor to withhold payment of any invoice because part of that invoice is in dispute.
17.6 Carbon8 may license or sub-contract all or any part of its rights and obligations without the Client's consent.
17.7 The Client agrees that Carbon8 may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Carbon8 notifies the client of such change.
17.8 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.
17.9 The failure by Carbon8 to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Carbon8's right to subsequently enforce that provision.