C Results Terms and Conditions
1. INTRODUCTION
1.1 Application of these Terms and Conditions
These Terms and Conditions are incorporated into any contract between C Results and the Customer for the supply of goods and/or services by C Results to the Customer.
1.2 Interpretation
In these Terms and Conditions:
"Additional Work" includes all work undertaken by C Results as a consequence of the Customer's variation, alteration or modification of its instructions in relation to the Order;
"Business Day" means a day on which banks are open for general banking business in the State or Territory in which C Results' premises are located;
"Clause" means a clause of these terms and conditions;
"Customer" means the customer of C Results;
"Freight Costs and Charge" includes all costs and expenses incurred by C Results in removing the Goods from its premises, whether by way of actual or attempted delivery to the Customer or otherwise;
"Goods" means all present and after acquired goods produced by C Results under an Order;
"GST" means Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
"Interest Rate" means a rate 2% higher than the Cash Target Rate as. fixed by the Reserve Bank of Australia;
"Order" means the work required to be done in order to fulfil the Customer's instructions;
"Party" or "Parties" means a party or parties to these Terms and Conditions;
"Preliminary Work" means any and all work performed by C Results 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 C Results at the time when C Results supplied the Quote;
"Printer's Charge" refers in each case to the standard or usual fee charged by C Results from time to time in respect of the Order;
"Quote" means the quote referred to in sub-Clause 2.1 (b) (as amended in accordance with Clause 2.4); "Terms and Conditions" means these terms and conditions.
1.3 General
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, successors and permitted assigns;
(d) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding
meaning; an
(e) a reference to a period of time (including, without limitation, a year, a quarter, a month and a day) is to a calendar period.
1.4 Headings
In these Terms and Conditions, headings are for convenient reference only and do not affect interpretation.
1.5 Business Day
If 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. QUOTES
2.1 Printer to supply quote
C Results may if, requested by the Customer, give the Customer a quote specifying:
(a) the work required to be done in order to fulfil the Customer's instructions; and
(b) C Results' charge for the performance of such work.
2.2 Acceptance by Customer
Where C Results has given the Customer a Quote:
(a) C Results will not commence work until the Quote has been accepted by the Customer;
(b) the Customer may accept the Quote by instructing (orally or in writing) C Results to commence work;
(c) Quotes are valid for 30 days from the date of issue. Following that period, C Results reserves the right to re-price the Quote; and
(d) acceptance by the Customer of the Quote, whether express or implied, will constitute acceptance by the Customer of these Terms and Conditions.
2.3 Quote evidence of instructions
If the Quote is accepted by the Customer, the subject of the Quote (the work) shall be carried out and the Customer shall pay for the work in accordance with the Quote and these Terms and Conditions.
3. CHARGES
3.1 Invoice
Subject to Clauses 3.2 and 5.3, when the Order has been completed, C Results will issue an invoice to the Customer for the amount of the Quote or, if no Quote was made, for an amount representing C Results' 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 Quote, or where no Quote was given, in addition to the amount representing C Results' charge for the work done, C Results 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 C Results 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; and
(j) other charges, fees or disbursements referred to in these Terms and Conditions and not specified in this Clause.
4. DELIVERY
4.1 Notification
C Results shall notify the Customer when the Goods are ready for collection.
4.2 Collection
The Customer must collect the Goods from C Results' premises upon being notified by C Results that the Goods are ready for collection. If C Results agrees to deliver the Goods the Customer shall bear all freight costs and charges of such delivery.
4.3 Rejection
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 C Results of the rejection:
(a) if C Results agrees to deliver the Goods to the Customer's premises -within 48 hours of delivery (or such other time as is mutually agreed);
(b) otherwise - within 5 days of notification that the Goods are ready for collection (or such other time as is mutually agreed).
4.4 Risk
The risk in the Goods passes to the Customer:
(a) if C Results delivers the Goods to the Customer's premises - at the time of delivery;
(b) otherwise - at the time C Results notifies the Customer that the Goods are ready for collection.
If the Customer is entitled to reject the Goods and rejects the Goods in accordance with these Terms and Conditions, risk reverts to C Results at the time the Customer notifies C Results that the Goods are rejected.
C Results shall not be liable for insurance, freight or loss or damage to Goods or Services in transit incurred in delivery or which have been left at C Results' premises.
C Results has no obligation to insure any property in C Results' possession.
Subject to the Disposal of Uncollected Goods Act 1970 (WA), if a client leaves property in C Results' possession for more than 6 months, C Results may dispose of or sell the property and retain any proceeds of sale as compensation for holding and handling the property.
5. PAYMENT
5.1 Time for payment
The Customer must, within 30 days of the Customer receiving C Results' invoice, pay to C Results the total amount set out in the invoice.
5.2 Method of payment
Payment for the Order is to be made by the Customer by cash, cheque, credit or any other form of payment as agreed by C Results and the Customer. Unless otherwise stated, all payment shall be in Australian Dollars.
5.3 Interest
C Results may charge interest at the Interest Rate on amounts not paid within the time specified in Clause 5.1.
5.4 Advance and progress payments
(a) C Results may issue an invoice for the amount of the Quote before commencing the Order where C Results has not previously carried out work for the Customer or where C Results considers it otherwise prudent to do so;
(b) C Results may, in the event that C Results 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 Quote (the proportion to be at C Results' discretion) and require that proportion of the Quote 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, C Results may issue an invoice for a particular sum (to be specified by C Results) for the work already done and for other costs incurred by C Results (such as storage costs).
6. NON-PAYMENT
6.1 Damages
The Customer must pay to C Results on a full indemnity basis any costs, expenses or losses incurred by C Results as a result of the Customer's failure to pay to C Results all sums outstanding from the Customer to C Results (including, without limiting the generality of the obligation set out in this Clause, any debt collection and legal costs).
6.2 Retention of title
(a) Until the Customer has paid all amounts outstanding in relation to the Goods and any other goods supplied by C Results to the Customer, title and property in the Goods shall not pass from C Results to the Customer.
(b) If the Goods are in the Customer's possession, the Customer shall hold the Goods as bailee for C Results and must store the Goods so that they are clearly identifiable as the property of C Results.
(c) C Results may call for and recover possession of the Goods (for which purposes C Results' 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 C Results if so directed by C Results.
(d) The Customer may, in the ordinary course of the Customer's business, and, only in an arm's length agreement for valuable consideration, sell the Goods to a third party but:
(i) any proceeds of sale to the third party must be held by the Customer on behalf of C Results and the Customer shall account to C Results for those sums; and
(ii) if C Results requires, the Customer shall assign to C Results any claim that the Customer has against a third party and shall execute all documents necessary to effect that assignment.
6.3 General lien
C Results shall, in respect of all sums owed by the Customer to C Results hereunder, have a general lien on all property of the Customer in C Results' possession and may, after 14 days' notice to the Customer, sell that property and apply the proceeds (net 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 C Results as aforesaid enjoys copyright protection in favour of the Customer, the Customer hereby grants to C Results a licence to exercise the rights conferred on C Results under this Clause.
7. LIABILITY
7.1 Proofs
If C Results submits to the Customer a proof of the Goods C Results 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. The cost of any additions, alterations or corrections to the proof after prior approval by a Client will be added to the price.
7.2 Non-excludable Rights
The parties acknowledge that, under the Australian Consumer law and other 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 Australian Consumer Law
C Results acknowledges that the Australian Consumer Law provides guarantees in relation to the supply of goods and services. The liability for any failure to comply with such guarantees is limited to:
• In the case of goods, any one of the following:
1. The replacement of the Goods or the supply of equivalent goods;
2. The repair of the Goods;
3. Payment equivalent to the cost of replacing the Goods; or
4. Payment equivalent to the cost of repairing the Goods
• In the case of Services:
1. Supplying the services again; or
2. Payment equivalent to the cost of having the Services supplied again.
7.4 Disclaimer of Liability
C Results 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 nonexcludable rights. To the extent permitted by law, the liability of C Results for a breach of a nonexcludable right is limited, at C Results' option, to the supplying of the Goods and/or any services again or payment of the cost of having the Goods and/or any services supplied again.
7.5 Indirect losses
Notwithstanding any other provision of these Terms and Conditions, and subject to applicable law, C Results 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:
(a) any increased costs or expenses;
(b) any loss of profit, revenue, business, contracts or anticipated savings;
(c) any loss or expense resulting from a claim by a third party; or
(d) any special, indirect or consequential loss or damage of any nature whatsoever caused by C Results' failure to complete or delay in completing the Order or to deliver the Goods.
7.6 Electronic data
Without limiting the generality of the foregoing Clauses, C Results will not be liable to the Customer for loss, however caused, of any data stored on disks, tapes, compact disks or other media supplied by the Customer to C Results.
7.7 Customer's property
Subject to Clause 7.5, C Results will not be liable for the damage, loss or destruction of any property of the Customer in C Results' possession unless the loss or damage is due to the failure of C Results to exercise due care and skill in handling or storing the property.
7.8 Force Majeure
C Results will have no liability to the Customer in relation to any loss, damage or expense caused by C Results' 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 C Results' normal suppliers to supply necessary materials or any other matter beyond C Results' control.
8. GREEN MATTERS
8.1 Periodicals
If the contract between C Results 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), C Results 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 C Results specific instructions in relation to style, type or layout:
(a) C Results may use any style, type and layout which, in C Results' opinion, is appropriate; and
(b) C Results 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 C Results.
8.3 Overset
The Customer must pay for overset matter (being matter produced on the Customer's instructions but not used in a publication for which it was intended). The Customer may instruct C Results to retain overset matter for future issues of the publication or to discard the overset matter.
8.4 Outside work
If C Results has to obtain goods (including typefaces, bromides, film, plates, ornaments or artwork) and/or services not normally stocked or supplied by C Results from a third party in order to carry out the Customer's instructions:
(a) C Results 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 such goods and/or services.
(b) C Results 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 Customer 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 such goods and/or services; and
(d) property in any such goods obtained from a third party and incorporated into the Goods passes to C Results at the time of incorporation.
8.5 Material supplied by Customer
If C Results 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 C Results;
(b) C Results will not normally count or check the materials and if requested by the Customer to do so, may charge for counting or checking;
(c) C Results 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; and
(d) property in any materials supplied by the Customer and incorporated into the Goods passes to C Results at the time of incorporation.
8.6 Property left with printer
If the Customer leaves property in C Results' possession without specific instructions as to what is to be done with it, C Results may, 6 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
C Results has no obligation to insure any property of the Customer in C Results' possession. The Customer must pay the cost of any insurance arranged by C Results at the request of the Customer.
8.8 Ancillary materials
Unless C Results 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 C Results 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 C Results.
8.9 Copyright
(a) copyright in all artistic and literary works authored by C Results shall be the property of C Results;
(b) the Customer:
(i) warrants that the Customer has copyright in or a licence to authorise C Results to reproduce, all artistic and literary works supplied by the Customer to C Results for the purposes of the Order and the Customer hereby expressly authorises C Results to reproduce all and any of such works for the purposes aforesaid;
(ii) hereby indemnifies and agrees to keep indemnified C Results against all liability, losses or expenses incurred by C Results 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 licence to use the copyright in any literary and/or artistic works authored by C Results for the purposes of the Order. However, the exercise of such licence shall be conditional upon C Results having received all monies due to C Results under these Terms and Conditions.
8.10 Ideas
The Customer must keep confidential and not use any ideas communicated by C Results to the Customer without C Results' written consent.
8.11 Electronic/magnetic media
All disks, tapes, compact disks or other media (other than media supplied by the Customer) used by C Results to store data for the purposes of completing the Order are the property of C Results. The Customer cannot require C Results to supply the Customer any data so stored. In the event C Results does supply any data so stored or created C Results may charge for supplying such data to the Customer.
8.12 Storage of electronic data
C Results will not be responsible for storing any data on disks, tapes, compact disks or other media when the Order has been completed. If C Results agrees to store such data, C Results may charge for doing so.
8.13 Immediate Termination
In the event that:
1. the Customer becomes insolvent (within the meaning of the Corporations Act 2001) or makes any voluntary arrangement with its creditors, or
2. a petition is presented or a resolution is passed to wind up the Customer (other than for the purposes of reconstruction or amalgamation as a solvent company), or
3. a receiver or other external administrator is appointed over the whole or any part of the assets of the Customer, or
4. the Customer shall otherwise cease trading, or
5. any distress, writ of execution or other process is levied or enforced against any property of the Customer;
then in any such event C Results shall (without prejudice to any other right or remedy available to it) be entitled to terminate or cancel any contract between itself and the Customer or suspend any further deliveries of the Project or Goods and/or Services without any liability to the Customer and if any materials or Goods and/or Services have been delivered or supplied but not paid for, the price of such materials and Goods and/or Services shall become immediately due and payable, notwithstanding any previous agreement or arrangement to the contrary.
8.14 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.
8.15 Severability
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.
8.16 Governing law and jurisdiction
These Terms and Conditions are governed by the law in force in Western Australia and the Parties submit to the non-exclusive jurisdiction of the courts of Western Australia 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
9.1 All amounts are GST inclusive amounts
Unless otherwise stated, all amounts expressed or described in these Terms and Conditions are GST inclusive amounts.
9.2 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.
9.3 Printer to assist Customer
C Results will do all things reasonably available to it 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 C Results. This includes C Results maintaining its registered status for GST purposes, and issuing tax invoices for supplies made under these Terms and Conditions on a timely basis as reasonably requested by the Customer.
10. PERSONAL PROPERTY SECURITIES ACT
10.1 Security Interest
The Customer acknowledges and agrees that:
(a) these Terms and Conditions give rise to a security interest and constitute a security agreement for the purposes of the Personal Property Securities Act 2009; and
(b) the security interest is taken in all Goods previously supplied by C Results to the Customer (if any) and all Goods that will be supplied in the future by C Results to the Customer during the continuance of the parties' relationship.
10.2 Undertaking
The Customer undertakes to:
(a) sign any further documents and/or provide any further information, such information to be complete, accurate and up-to-date in all respects, which C Results may reasonably require to register a financing statement on the Personal Property Securities Register;
(b) reimburse C Results, on a full indemnity basis, for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register; and
(c) give C Results not less than 14 days' prior written notice of any proposed change in the Customer's name and/or any other change in the Customer's details.
10.3 Verification Statement
The Customer waives any rights to receive notice of any verification statement issued under the Personal Properties Securities Act.