Clarke Murphy Print Pty Ltd
Terms & Conditions of Trade

1. Definitions

1.1“CMP” means Clarke Murphy Print Pty Ltd (ABN 58 678 251 502), its successors and assigns any person acting on behalf of and with the authority of Clarke Murphy Print Pty Ltd (CMP).

1.2          “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.

1.3          “Goods” means all Goods or Services supplied by CMP to the Client at the Client’s request from time to time (where the context so

permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.4          “Price” means the Price payable for the Goods as agreed between CMP and the Client in accordance with clause 5  below.

2. Acceptance

2.1          The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.

2.2          These terms and conditions may only be amended with CMP’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and CMP.

2.3          Once accepted by the Client, CMP’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, CMP shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.

3. Change in Control

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

4. Electronic Transactions Act 2000

4.1          Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

5. Price and Payment

5.1          At CMP’s sole discretion the Price shall be either:

(a)  as indicated on any invoice provided by CMP to the Client; or

(b)  CMP’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

5.2          CMP reserves the right to change the Price if a variation to CMP’s quotation is requested.

5.3          CMP shall be under no liability whatever to the Client for any variation (beyond the reasonable control of CMP) in colours between the approved prototype and the finished Goods.

5.4          At CMP’s sole discretion a deposit may be required.

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

(a)  on delivery of the Goods;

(b)  before delivery of the Goods;

(c)  the date specified on any invoice or other form as being the date for payment; or

(d)  failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Client by CMP.

5.6          Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to five percent (5%) of the Price), or by any other method as agreed to between the Client and CMP.

5.7          Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to CMP an amount equal to any GST CMP must pay for any supply by CMP under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client 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.

6. Delivery of Goods

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

(a)  the Client or the Client’s nominated carrier takes possession of the Goods at CMP’s address; or

(b)  CMP (or CMP’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.

6.2          At CMP’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.

6.3          The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then CMP shall be entitled to charge a reasonable fee for redelivery and/or storage.

6.4          CMP may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

6.5          Any time or date given by CMP to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and CMP will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.

7. Risk

7.1          Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.

7.2          If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, CMP is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by CMP is sufficient evidence of CMP’s rights to receive the insurance proceeds without the need for any person dealing with CMP to make further enquiries.

7.3          If the Client requests CMP to leave Goods outside CMP’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.

7.4          When style, type or layout is left to CMP’s judgement and then the Client makes further alterations to the copy this will be invoiced as an extra.

7.5          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 CMP’s 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.

7.6          All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client.

7.7          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.

7.8          Unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at its request for the works.

7.9          CMP shall be under no liability whatever to the Client for any variation (beyond the reasonable control of CMP) in colours between the approved prototype and the finished Goods.

7.10      Where the performance of any contract with the Client requires CMP to obtain Goods or Services from a third party, the contract between CMP and the Client shall incorporate and shall be subject to the conditions of supply of such Goods and Services to CMP, and the Client shall be liable for the cost in full including CMP’s margin of such Goods or Services.

7.11      Whilst every care is taken by CMP to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading of the Goods. CMP shall be under no liability whatever for any errors not corrected by the Client in the final proof reading. Should the Client’s alterations require additional proofs this shall be invoiced as an extra.

7.12      CMP is under no obligation to provide samples of Goods ordered other than by virtual (computerised) sample. Whilst every effort will be taken by CMP to match virtual colours with physical colours, CMP 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 final invoice.

7.13      While every effort will be taken by CMP to match PMS colours, CMP 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.

7.14      CMP shall not be held liable for inks wearing off through general wear and tear.

7.15      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 CMP in respect of any such counting or checking requested by the Client.

7.16      In the case of property and materials left with CMP without specific instructions, CMP 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 CMP’s costs in holding and handling such items.

7.17      Where materials or equipment are supplied by the Client for the provision of Services CMP shall accept no liability for imperfect work caused by defects in, or the unsuitability of, such materials or equipment for the works.

7.18      Any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Client which is deemed necessary by CMP to ensure correctly finished work shall be invoiced as an extra.

8.  Proof Reading

8.1         Whilst every care is taken by CMP to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading of the Goods. CMP shall accept no liability whatsoever for any errors not picked up and/or corrected by the Client in the final proof reading.

9. Title

9.1          CMP and the Client agree that ownership of the Goods shall not pass until:

(a)  the Client has paid CMP all amounts owing to CMP; and

(b)  the Client has met all of its other obligations to CMP.

9.2          Receipt by CMP 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.

9.3          It is further agreed that:

(a)  until ownership of the Goods passes to the Client in accordance with clause 9.1 that the Client is only a bailee of the Goods and must return the Goods to CMP on request.

(b)  the Client holds the benefit of the Client’s insurance of the Goods on trust for CMP and must pay to CMP the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.

(c)  the Client 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 Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for CMP and must pay or deliver the proceeds to CMP on demand.

(d)  the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of CMP and must sell, dispose of or return the resulting product to CMP as it so directs.

(e)  the Client irrevocably authorises CMP to enter any premises where CMP believes the Goods are kept and recover possession of the Goods.

(f)    CMP may recover possession of any Goods in transit whether or not delivery has occurred.

(g)  the Client 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 CMP.

(h)  CMP may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

10. Personal Property Securities Act 2009 (“PPSA”)

10.1       In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

10.2       Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by CMP to the Client.

10.3       The Client undertakes to:

(a)  promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up- to-date in all respects) which CMP may reasonably require to;

(i)    register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

(ii)   register any other document required to be registered by the PPSA; or

(iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);

(b)  indemnify, and upon demand reimburse, CMP for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;

(c)  not register a financing change statement in respect of a security interest without the prior written consent of CMP;

(d)  not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of CMP;

(e)  immediately advise CMP of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

10.4       CMP and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

10.5       The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

10.6       The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

10.7       Unless otherwise agreed to in writing by CMP, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

10.8       The Client must unconditionally ratify any actions taken by CMP under clauses 10.3 to 10.5.

10.9       Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

11. Security and Charge

11.1       In consideration of CMP agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

11.2       The Client indemnifies CMP from and against all CMP’s costs and disbursements including legal costs on a solicitor and own client basis

incurred in exercising CMP’s rights under this clause.

11.3       The Client irrevocably appoints CMP and each director of CMP as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.

12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

12.1       The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify CMP in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow CMP to inspect the Goods.

12.2       Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

12.3       CMP acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

12.4       Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, CMP makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. CMP’s liability in respect of these warranties is limited to the fullest extent permitted by law.

12.5       If the Client is a consumer within the meaning of the CCA, CMP’s liability is limited to the extent permitted by section 64A of Schedule 2.

12.6       If CMP is required to replace the Goods under this clause or the CCA, but is unable to do so, CMP may refund any money the Client has paid for the Goods.

12.7       If the Client is not a consumer within the meaning of the CCA, CMP’s liability for any defect or damage in the Goods is:

(a)  limited to the value of any express warranty or warranty card provided to the Client by CMP at CMP’s sole discretion;

(b)  limited to any warranty to which CMP is entitled, if CMP did not manufacture the Goods;

(c)  otherwise negated absolutely.

12.8 Subject to this clause 12, returns will only be accepted provided that:

(a)  the Client has complied with the provisions of clause 12.1; and

(b)  CMP has agreed that the Goods are defective; and

(c)  the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and

(d)  the Goods are returned in as close a condition to that in which they were delivered as is possible.

12.9 Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, CMP shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(a)  the Client failing to properly maintain or store any Goods;

(b)  the Client using the Goods for any purpose other than that for which they were designed;

(c)  the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(d)  the Client failing to follow any instructions or guidelines provided by CMP;

(e)  fair wear and tear, any accident, or act of God.

12.10   Notwithstanding anything contained in this clause if CMP is required by a law to accept a return then CMP will only accept a return on the conditions imposed by that law.

13. Intellectual Property

13.1 Drawings, sketches, painting, photographs, designs or typesetting furnished by CMP, dummies, models or the like devices made or procured and manipulated by CMP and negatives, positives, blocks, engravings, stencils, dies, plates or cylinders made from CMP’s original design, or from a design furnished by the Client, remain the exclusive property of CMP unless otherwise agreed upon in writing.

13.2 Sketches and dummies submitted by CMP on a speculative basis shall remain the property of CMP. They shall not be used for any purpose other than that nominated by CMP and no ideas obtained there from may be used without the consent of CMP. CMP shall be entitled to compensation from the Client for any unauthorised use of such sketches and dummies.

13.3 Disks, artwork and film supplied by the Client and/or other authorised persons remain the property of the Client. Unless otherwise indicated in writing CMP shall assume these disks, artwork and film to be duplicate copies of the original.

13.4 The Client agrees that CMP may(at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, photographs, sketches or Goods which CMP has created for the Client.

14. Default and Consequences of Default

14.1       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 CMP’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

14.2       If the Client owes CMP any money the Client shall indemnify CMP from and against all costs and disbursements incurred by CMP in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, CMP’s contract default fees, and bank dishonour fees).

14.3       Without prejudice to any other remedies CMP may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions CMP may suspend or terminate the supply of Goods to the Client. CMP will not be liable to the Client for any loss or damage the Client suffers because CMP has exercised its rights under this clause.

14.4       Without prejudice to CMP’s other remedies at law CMP shall be entitled to cancel all or any part of any order of the Client which

remains unfulfilled and all amounts owing to CMP shall, whether or not due for payment, become immediately payable if:

(a)  any money payable to CMP becomes overdue, or in CMP’s opinion the Client will be unable to make a payment when it falls due;

(b)  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 its creditors; or

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

15. Cancellation

15.1       CMP 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 CMP shall repay to the Client any money paid by the Client for  the Goods. CMP 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 and all loss incurred (whether direct or indirect) by CMP as a direct result of the cancellation (including, but not limited to, any loss of profits).

15.3       Goods printed or made to special order, Client 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 definitely not be accepted, once these orders are in production.

16. Privacy Act 1988

16.1       The Client agrees for CMP to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by CMP.

16.2       The Client agrees that CMP may exchange information about the Client 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:

(a)  to assess an application by the Client; and/or

(b)  to notify other credit providers of a default by the Client; and/or

(c)  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

(d)  to assess the creditworthiness of the Client.

The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing,  credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

16.3       The Client consents to CMP 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 CMP for the following purposes (and for other purposes as shall be agreed between the Client and CMP or required by law from time to time):

(a)  the provision of Goods; and/or

(b)  the marketing of Goods by CMP, its agents or distributors; and/or

(c)  analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or

(d)  processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

(e)  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       CMP may give information about the Client to a credit reporting agency for the following purposes:

(a)  to obtain a consumer credit report about the Client;

(b)  allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

16.6       The information given to the credit reporting agency may include:

(a)  personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence

number);

(b)  details concerning the Client’s application for credit or commercial credit and the amount requested;

(c)  advice that CMP is a current credit provider to the Client;

(d)  advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty

(60) days, and for which debt collection action has been started;

(e)  that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;

(f)    information that, in the opinion of CMP, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);

(g)  advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;

(h)  that credit provided to the Client by CMP has been paid or otherwise discharged.

17. General

17.1       The failure by CMP to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect CMP’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.

17.2       These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales in which CMP has its principal place of business, and are subject to the jurisdiction of the North Sydney Local courts in New South Wales.

17.3       Subject to clause 12 CMP 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 CMP of these terms and conditions (alternatively CMP’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

17.4       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 CMP nor to withhold payment of any invoice because part of that invoice is in dispute.

17.5       CMP may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

17.6       The Client agrees that CMP may amend these terms and conditions at any time. If CMP makes a change to these terms and conditions, then that change will take effect from the date on which CMP notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for CMP to provide Goods to the Client.

17.7       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.

17.8       The Client 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.