1. In these terms and conditions:
1.1 Business Day means a day on which Graphic Arts Supplies is ordinarily open for business;
1.2 Customer means the entity specified in the Order (or, where a business name is specified, the entity that carries on business under that business name) and, where more than one entity is party to the Order, includes all or any of them;
1.3 Delivery means that the Goods have been delivered to the Customer or made available to the Customer for collection, as the case may be, at the location specified in an Order;
1.4 Delivery Charges means any delivery costs Graphic Arts Supplies charges the Customer for delivery of the Goods from time to time;
1.5 Goods means the goods specified in an Order or otherwise agreed between Graphic Arts Supplies and the Customer;
1.6 GST means goods and services tax or any other similar tax imposed by reason of a supply of goods or services under the Agreement;
1.7 Graphic Arts Supplies means Malvern Technology Pty Ltd T/A Graphic Arts Supplies (ACN 618 905 776);
1.8 Invoice means any invoice provided by Graphic Arts Supplies to the Customer in relation to the supply of Goods;
1.9 Late Charges means the charges (including interest) charged to the Customer in accordance with paragraphs 28.2 and 28.3;
1.10 Order means any order issued by the Customer from time to time requesting a supply of Goods;
1.11 Purchase Price means the price for the supply of Goods the subject of an Order as listed in Graphic Arts Supplies' current price list as amended by Graphic Arts Supplies from time to time without notice; and
1.12 Standard Terms means these Standard Terms and Conditions of Trade, as amended, varied or substituted from time to time.
AMENDMENTS TO STANDARD TERMS
2. Graphic Arts Supplies may amend, vary or substitute the Standard Terms at any time without notice to the Customer.
3. The following comprise the agreement for the supply of all Goods by Graphic Arts Supplies to the Customer from time to time:
3.1 any relevant written agreement between Graphic Arts Supplies and the Customer;
3.2 these Standard Terms; and
3.3 any Invoice; and
3.4 any Order, together, the Agreement.
4. If there is any conflict between the terms described in paragraphs 3.1, 3.2, 3.3 or 3.4, then one has precedence over the other to the extent of the inconsistency in the above order.
5. The Customer agrees that the Agreement prevails over any terms and conditions put out by it in relation to the supply of any Goods or otherwise.
6. The Customer is deemed to accept these Standard Terms when it first issues any Order.
7. Orders are subject to acceptance by Graphic Arts Supplies, and Graphic Arts Supplies may accept or reject any Order in its absolute discretion.
8. The Customer may not cancel an Order once made without the written consent of Graphic Arts Supplies.
AGREEMENT TO SUPPLY THE GOODS AND PAY THE PURCHASE PRICE
9. Subject to paragraph 7, Graphic Arts Supplies agrees to supply the Goods to the Customer and the Customer agrees to pay the Purchase Price (plus any Delivery Charges, Late Charges and GST) to Graphic Arts Supplies, in accordance with the terms of the Agreement.
DELIVERY OF GOODS
10. Graphic Arts Supplies may supply all or part of the Goods the subject of an Order in its absolute discretion.
11. Subject to paragraph 10, Graphic Arts Supplies will deliver the Goods to the Customer or make the Goods available to the Customer for collection, as the case may be, at the location specified in an Order.
12. Graphic Arts Supplies will use reasonable endeavours to Deliver the Goods (or any part of them) by the Customer’s preferred delivery date as specified in an Order.
13. Notwithstanding paragraph 12, Graphic Arts Supplies does not guarantee that the Goods will be supplied by any particular date and is not liable for any costs, losses or damages arising whether directly or indirectly from a failure to deliver the Goods or make the Goods available by any particular date.
14. No request for proof of delivery will be considered where that request is made more than thirty days after the end of the month in which the Invoice is dated.
15. Graphic Arts Supplies may, in its absolute discretion, charge Delivery Charges to the Customer in addition to the Purchase Price.
ACCEPTANCE OF GOODS
16. The Customer accepts the Goods if:
16.1 the Customer advises Graphic Arts Supplies that the Goods have been accepted;
16.2 the Customer has not rejected the Goods within 7 days of Delivery (provided that the Customer may only reject the Goods if the Goods do not comply with the Agreement); or
16.3 the Customer uses the Goods.
TITLE AND RISK
17. Risk in the Goods will pass from Graphic Arts Supplies to the Customer on Delivery.
18. Title in the Goods will pass from Graphic Arts Supplies to the Customer on payment of all amounts owing by the Customer to Graphic Arts Supplies, whether in connection with the Order the subject of the Goods or otherwise.
19. Until all amounts owing by the Customer to Graphic Arts Supplies are paid, the Customer must clearly identify the Goods as being owned by Graphic Arts Supplies.
20. Despite paragraph 17, the Customer may sell the Goods to a third party in the normal course of business provided that:
20.1 where the Customer is paid by that third party, the Customer will hold the whole of the proceeds of sale on trust for Graphic Arts Supplies; and
20.2 where the Customer is not paid by that third party, the Customer will (at Graphic Arts Supplies’ option) assign its claim against that third party to Graphic Arts Supplies. The Customer will pay the stamp duty on any such assignment and, for or the purpose of perfecting any such assignment, the Customer irrevocably appoints Graphic Arts Supplies as its agent.
21. If the Customer makes new goods from the Goods, or if the Goods in any way become constituent of any other goods, Graphic Arts Supplies owns these new goods, until the date of payment. For that purpose, the ownership of such new goods, (whether finished or not) is transferred to Graphic Arts Supplies when the Goods are converted into new goods, or become a constituent of other goods.
PERSONAL PROPERTY SECURITIES ACT 2009 (CTH) (PPSA)
22. To the extent that the Agreement constitutes a ‘security agreement’ and gives rise to a ‘security interest’ under the PPSA, the Customer acknowledges and agrees that Graphic Arts may take all reasonable steps necessary to perfect or otherwise protect its security interest (including, without limitation, by registering that interest on the Personal Property Securities Register) and the Customer agrees to cooperate with Graphic Arts Supplies and provide any information Graphic Arts Supplies requests, for the purpose of perfecting or otherwise protecting such security interest.
23. The Customer agrees that, to the maximum extent permitted by law, sections 142 and 143 of the PPSA are excluded from the Agreement and Graphic Arts Supplies need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 157 or any other provision of the PPSA as notified to the Customer by Graphic Arts Supplies from time to time.
24. Graphic Arts Supplies will provide Invoices upon Delivery or within 7 days of the date of Delivery.
25. Subject to paragraph 23, the Customer must pay each Invoice in full upon the later of the date of Delivery or the date of receipt of the relevant Invoice.
26. Graphic Arts Supplies may, in its absolute discretion, grant the Customer a credit facility. Where so granted, the Customer must pay each Invoice to Graphic Arts Supplies before the end of 30 days after the date of the relevant Invoice.
27. Graphic Arts Supplies may withdraw or vary a credit facility at any time without notice and if withdrawn, the Customer must pay each Invoice in accordance with paragraph 23.
28. If the Customer does not pay an Invoice on time Graphic Arts Supplies may:
28.1 enter any premises owned, leased or otherwise occupied by the Customer to take possession of any Goods; and/or
28.2 charge a reasonable monthly overdue fee as determined by Graphic Arts Supplies in its sole discretion from time to time; and/or
28.3 charge interest on any amounts overdue for more than 7 days at a rate of 2% per annum in excess of the rate charged to Graphic Arts Supplies by its bankers on a commercial unsecured overdraft account, accruing from the due date until the date of payment; and/or
28.4 where Delivery is by instalment, withhold indefinitely any further instalments until full payment for prior instalments has been made.
29. If Graphic Arts Supplies takes possession of any Goods in accordance with paragraph 25.1, it may (but is not required to) credit the Customer the estimated re-sale value of the Goods less Graphic Arts Supplies’ costs in re-possessing and selling the Goods.
30. The Customer may not deduct from any amounts due to Graphic Arts Supplies any set off, counterclaim or other sum unless Graphic Arts Supplies agrees in writing.
31. Unless otherwise stated, any amounts payable under the Agreement are calculated or expressed exclusive of GST.
32. If GST is or becomes payable to the Australian Taxation Office by either party in relation to a supply under the Agreement, the recipient of that supply must pay to the party making that supply an amount equal to the GST.
33. The recipient is not obliged to pay any GST unless a valid tax invoice has been issued.
34. Any party that becomes aware of the occurrence of any adjustment event in connection with the Agreement must notify the other party as soon as possible. The parties must then take whatever steps are necessary and make whatever adjustments are required to ensure that any additional GST, or refund of GST, on that supply is paid no later than 20 Business Days after the parties first become aware of the adjustment event.
35. For the purposes of paragraphs 28 to 31, terms which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meaning given to them in that Act.
LIMITATION OF LIABILITY
36. To the maximum extent permitted by law, Graphic Arts Supplies’ liability under the Agreement in relation to any Order is limited, at Graphic Arts Supplies' option, to the following:
36.1 for defective Goods, the repair, replacement or re-supply of the relevant Goods in relation to that Order; or
36.2 for any other liability, the amount that it is or would be entitled to receive from the Customer in relation to that Order as detailed in the relevant Invoice, and Graphic Arts shall not be liable under the Agreement for any indirect or consequential loss or damage suffered by the Customer in relation to any Order or otherwise.
37. Graphic Arts Supplies provides no warranties in relation to the Goods or the supply of the Goods under the Agreement and to the maximum extent permitted by law, excludes all express and implied warranties in relation to the Goods and the supply of the Goods pursuant to the Agreement or otherwise.
38. Graphic Arts Supplies may terminate the Agreement:
38.1 upon written notice to the Customer if the Customer breaches the Agreement and such breach is incapable of remedy or such breach is capable of remedy and the Customer fails to remedy the breach within 10 Business Days of receiving a notice requiring it to do so; and
38.2 immediately without further notice if the Customer is insolvent or bankrupt.
39. Graphic Arts Supplies is not liable for failure to perform the Agreement to the extent and for so long as its performance is prevented or delayed because of circumstances outside its direct control and without fault or negligence by it, but only if Graphic Arts Supplies promptly gives written notice to the Customer and does everything reasonable to remedy the cause quickly.
40. The Agreement is the whole contract between the parties about its subject matter and the only terms implied in the Agreement are those implied by mandatory operation of law.
41. The Agreement is governed by the laws in South Australia.
42. The courts of South Australia or the Federal Court of Australia (Adelaide Registry) have non-exclusive jurisdiction in connection with the Agreement.
43. The parties submit to the jurisdiction of those courts and any courts which have jurisdiction to hear appeals from those courts.