Terms & Conditions of Trade
Label Print Systems Pty Ltd ABN 46 009 710 614 [hereinafter referred to as ‘LPS’] TERMS & CONDITIONS of TRADE for the Supply of Goods and/or Services to Buyers [hereinafter referred to as “Terms”, “Goods” and “the Buyer”]
Unless otherwise agreed in writing by LPS these Terms apply to all dealings between the LPS and the Buyer.
Definitions and Interpretation
For the avoidance of doubt the following definitions apply to these Terms:
Buyer means the person, company, partnership, trust, government body and any other person or organisation that enters into any agreement with LPS; Contract means an instruction from the Buyer to LPS to supply goods and/or services; Goods mean physical and intangible property of any description; Order means an instruction from the Buyer to supply goods and/or services; Quotation means a written submission of price submitted by LPS but does not constitute an irrevocable offer unless stated otherwise in the quotation; LPS means Label Print Systems Pty Ltd and/or its heirs, successors and assigns; Premises mean the place where delivery and/or services will be undertaken.
1. Acceptance of Buyers Order
1.1 These Terms shall apply to every quotation, offer and sale contract (including acceptance of goods and/or services) between LPS and the Buyer. Any terms or conditions of the Buyer’s order deviating from or inconsistent with these Terms are expressly excluded and rejected by LPS. This exclusion and rejection includes any statement by the Buyer that the Buyer’s terms and conditions shall prevail.
1.2 A contract shall only be concluded between LPS and the Buyer for supply of goods when the order has been accepted on LPS’s Terms.
1.3 Whilst LPS may accept verbal or phone orders at LPS’s sole discretion, orders must be in writing and duly signed or authorised by the Buyer.
1.4 LPS reserves the right to specify a minimum order value of $100.00 per invoice at any given point in time and to impose a surcharge should the Buyer require delivery of goods having a value less than the minimum order value.
1.5 For any order or forward order, the Buyer agrees to pay for so much of the order as is invoiced by LPS and no delay or failure to fulfil any part of any order or any alleged delay in or any incomplete delivery shall entitle the Buyer to cancel or vary any order or delay or reduce any payment.
1.6 A binding contract will be established when the Buyer instructs LPS to commence work or order goods on the Buyer’s behalf and the Buyer will be liable for all costs in the event of cancellation which shall be payable immediately upon demand by LPS.
1.7 The Buyer agrees that in that in the event of any dispute concerning an order (including any question of identity or authority or any telephone, facsimile or email order) that the internal records of LPS will be prima facie evidence of what was ordered.
1.8 “The Buyer” in these Terms is the person, company or body that instructs LPS to supply goods and warrants they have the authorisation needed to do so.
1.9 Each order placed by the Buyer shall and be deemed to be a representation by the Buyer that it is solvent and will remain solvent. The Buyer shall inform LPS of any facts which could affect LPS’s decision to accept any order and/or to grant credit, such as, but not limited to, insolvency, potential insolvency or bankruptcy or the likelihood thereof. Failure to inform LPS of any such factors shall be deemed to create an inequality of bargaining position and be unconscionable, misleading and deceptive thereby rendering the person placing the order liable to pay all money owed by the Buyer to LPS.
1.10 If the Buyer requires urgent completion of their order the Buyer acknowledges that urgency increases the risk of defects and whilst LPS will endeavour to avoid defects LPS is not liable for defects as a result of the Buyer’s requirement for urgent completion.
2. Prices and Payment
2.1 Estimates are not quotations and are subject to change. Unless stated otherwise GST and other taxes shall be added to the price.
2.2 Prices exclude insurance, delivery and GST and goods shall be invoiced at prices current at date of dispatch.
2.3 All prices quoted by LPS are subject to sighting of artwork and are “ex-warehouse” and specific to the instructions provided by the Buyer at the time of quotation. Prices are subject to change if the Buyer does not accept the quotation within seven days or requests a delay in producing the order.
2.4 If the Buyer requires urgent completion of an order LPS may increase the price to cover overtime or other extra costs incurred as a result.
2.5 LPS may require a non-refundable deposit before procuring materials or commencing work on the Buyer’s order.
2.6 Payments are to be made direct to LPS strictly net without any deduction or discount other than as stated in the relevant invoice or statement. If no specific payment terms have been agreed payment must be made immediately upon request by LPS, time being of the essence as to this obligation.
2.7 Payment shall only occur when cleared funds have been received by LPS.
2.8 Failure by the Buyer to pay invoices by due date shall allow LPS the right to set a minimum account value of $1,000.00 per month which the Buyer shall accept at any given point in time and to impose a surcharge or require COD should the Buyer require delivery of an amount less than the minimum account value.
2.9 If LPS agrees to accept payment by credit card LPS reserves the right to recover the credit card commission.
2.10 LPS can issue proceedings to recover the price of the goods even if ownership has not passed to the Buyer.
2.11 LPS can, at its sole discretion and without prejudice to its other rights and remedies, demand immediate payment of all money outstanding even if not due if LPS is concerned over the Buyer’s ability to pay (or dies if the Buyer is a natural person) or becomes insolvent (or in LPS’s sole opinion appears to be), proposes or enters into an arrangement with creditors or an administrator, receiver, liquidator or similar person is appointed in respect of the Buyer or any asset of the Buyer.
3. Default, Interest, Costs and Penalties
3.1 Upon any breach of these Terms or default in any dealing with LPS by the Buyer LPS may retain all money paid to LPS and/or cease further deliveries and recover from the Buyer any consequential loss of profits arising and/or at its discretion retain or take possession of any property and/or goods not paid for without prejudice to any other of its rights and without being liable to any party. Furthermore the Buyer agrees not to commence or continue or permit to be commenced or continued through it any action against LPS until any such default or breach is remedied.
3.2 LPS shall be entitled to charge interest at 2.5% a month from the day the account becomes overdue and compounded monthly until all outstanding money has been paid in full.
3.3 If an account is more than thirty days overdue, administration costs of $50.00 or 10% (whichever is greater) up to a maximum of $250.00 may be charged to the Buyer for each month the account remains unpaid.
3.4 The Buyer shall indemnify and reimburse LPS for all costs and expenses incurred in the recovery of possession of goods and/or collecting outstanding debts from the Buyer which shall include dishonour fees, full legal costs on a solicitor-own-client basis, collection agent costs, investigators costs, court, judgement enforcement and bailiff fees, search agent costs, time, travel and all other recovery and collection costs.
3.5 If the Buyer breaches any of its obligations LPS reserves the right, irrespective of whether an order has been accepted and without notice, to withhold supply to the Buyer and LPS shall not be liable for any loss or damage incurred or allegedly incurred by the Buyer or any other parties resulting directly or indirectly from such actions.
3.6 LPS may sell any property of the Buyer which it holds to offset money owed by the Buyer and LPS will not be liable for any alleged loss as a result of such sale. LPS is only liable to account for the balance (if any) from the sale proceeds after all outstanding debts and costs of sale have first been met.
3.7 LPS can vary or withdraw any credit facility at any time at its discretion without liability to the Buyer or any other party.
4.1 Acceptance of the goods delivered shall be deemed for all purposes to have taken place at the expiration of seven (7) days from the date of each delivery.
4.2 Any date of delivery is an estimate only and LPS will not be liable for any loss or damage arising as a result of any failure by LPS to deliver by any agreed or specified date.
4.3 The Buyer shall not be relieved from its obligations to LPS for any delay in delivery or performance of services and shall not be entitled to cancel the whole or part of their order or to claim compensation by reason of failure by LPS to comply with the Buyer’s delivery requirements or to minor variations to the goods as a result of complications within the manufacturing process or specifications.
4.4 Goods shall be invoiced to the Buyer in full (or in part for partial delivery) immediately the Goods are collected by or dispatched to the Buyer or upon LPS advising the Buyer that the Goods are available for collection or dispatch.
4.5 Goods shall be transported in a manner deemed appropriate for the nature of the Goods. If the Buyer requests a specific mode of transportation the Buyer shall be fully responsible for all extra costs incurred as a result of the Buyer’s instructions and absolves LPS from all liabilities as a result of the Buyer’s instructions.
4.6 The Buyer will be deemed to have accepted delivery and liability for goods immediately LPS delivers them to a carrier or to the Buyer’s business premises or site whether attended or not.
4.7 A certificate and/or delivery docket purporting to be signed by an officer of the Buyer confirming delivery shall be prima facie evidence of delivery.
4.8 LPS reserves the right to partially deliver an order or deliver quantities per order with a variation of plus or minus 10% in quantity which shall be charged for or deducted.
4.9 The Buyer is responsible for storage and storage charges if the Buyer does not take delivery within the time specified by LPS. 4.10 The Buyer shall give LPS at least 14 days prior written notice of any change of ownership of the premises where LPS is delivering the Goods.
LPS shall not be liable for any default or delay due to any act of God, war, power or equipment failure, terrorism, strike, lock-out, industrial action, fire, flood, storm, tempest or other force majeure events beyond their control.
6. Style Unless the Buyer gives LPS specific instructions on the style, type or layout LPS may select those which in LPS’s opinion are appropriate. If the Buyer subsequently requests a different style, type or layout LPS may increase the price for additional work required as a result.
If LPS submits a proof to the Buyer which the Buyer approves LPS may charge an extra sum for any subsequent changes, errors or omissions thereto which LPS had not been informed of prior to completion of the order unless such changes are small typographical corrections.
8.1 If for the completion of the Buyer’s order LPS obtains goods from third party suppliers such as, but not limited to, film, typefaces, plates, bromides, artwork or ornaments that LPS does not normally stock and the Buyer cancels or alters their order LPS may charge the Buyer for the cost of returning the goods to the supplier or for the full costs of the goods if the supplier refuses to take them back.
8.2 If LPS engages a third party to complete part of the Buyer’s order and the Buyer cancels the order, the Buyer is responsible for all costs levied by the third party.
8.3 LPS shall not be liable for any delays, defects or claims made by the Buyer or any other parties that are a result of or connected to goods supplied to LPS by outside suppliers. The Buyer acknowledges and accepts that LPS acquires such goods as agent for the Buyer and not as principal and has no liability whatsoever in relation to the supply of such goods.
The Buyer must pay for overset matter (this being matter produced on the Buyer’s instructions but not used in the order for which it was intended) and the Buyer can instruct LPS to retain overset matter for future orders or to discard the overset.
10. Buyers Materials and Supplies
10.1 If LPS agrees to accept materials from the Buyer to use in the order, the Buyer must supply an extra quantity as specified by LPS to allow for spoilage.
10.2 LPS does not normally count or check materials supplied by the Buyer. If the Buyer requests a check LPS may charge the Buyer for doing so.
10.3 LPS accepts no responsibility for imperfect work caused by defects in or unsuitability of materials or equipment supplied by the Buyer.
10.4 LPS is entitled to charge storage for property left by the Buyer after completion of the order and may sell them after 12 months to defray expenses. LPS shall only be liable to account for the balance, if any, after all costs have been deducted.
11. Standing Matter
At LPS’s entire discretion, all cutting formes, film plates and other surfaces can be disposed of upon completion of the order unless otherwise agreed by LPS in writing. Title to all matter kept standing shall remain with LPS and if at the Buyer’s request LPS agrees to keep matter standing LPS can charge for storage and attention.
12. Risk and Insurance
12.1 All risks pass to the Buyer upon delivery as defined in the Delivery clause and it is the Buyer’s responsibility to arrange insurance. If the goods are damaged, destroyed prior to payment being received LPS is entitled to payment in full or to the insurance proceeds for the goods. Presenting these Terms to the Buyer’s insurers is sufficient evidence of LPS’s rights to the insurance proceeds.
12.2 All risks pertaining to the Buyer’s property in LPS’s possession remain with the Buyer and it is the Buyer’s responsibility to arrange insurance.
13. Electronic and Magnetic Media [“Media”]
13.1 With the exception of Media supplied by the Buyer, ownership of all Media used by LPS to store data needed for completing the order are the property of LPS and LPS may charge for supplying such data to the Buyer.
13.2 LPS is not responsible for storing any data on any media and LPS may charge the Buyer for storage.
14. Claims and Returns
14.1 No goods will be accepted for return unless agreed in writing by LPS prior to such return and then only upon conditions acceptable to LPS and at the Buyer’s entire risk as to loss or damage and provided the goods are in the sealed container in which they were delivered.
14.2 Where LPS agrees to accept goods for return, a service/restocking fee of 20% or $75.00 whichever is the greater shall be paid by the Buyer.
15. Limited Liability
15.1 LPS shall, in no event, whether the claim is based on warranty, contract, tort, strict liability, negligence or otherwise, be liable for incidental or consequential damages, or for any damages in excess of the amount of the purchase price received by LPS. 15.2 LPS shall not be liable for any claim, loss or expense which is made seven (7) days from date of delivery or performance (or at all once goods have been unpacked, on-sold or otherwise used or applied) after which there shall be deemed to be unqualified acceptance.
16. Security for Payment
16.1 If LPS allows the Buyer extra time to pay money or perform obligations for which no guarantees or other securities have been provided, LPS may require security for payment including a guarantee by any director or other persons connected with the Buyer.
16.2 Any requirement for security or guarantees is without prejudice to other rights or remedies LPS may have and does not affect the reservation of title in goods supplied to the Buyer.
17. Personal Property Securities Act 2009 (“PPSA”) and Personal Property Securities Register (“PPSR”)
17.1 If any clauses in these Terms contravene any provisions in the PPSA, or amendments thereto, such clause or clauses shall be deleted without affecting the validity of the remaining clauses of these Terms.
17.2 The Buyer and all other parties such as, but not limited to, the owner(s) of the property where LPS’s goods are located, the Buyer’s bankers, finance companies, receivers, liquidators or other insolvency officials are hereby notified that ownership and possession of LPS’s goods and all other property are subject to “Perfected Security Interests on the PPSR”.
17.3 LPS may have and is entitled to have a “Purchase Money Security Interest” (“PMSI”) and/or other Security Interests on the PPSR for goods delivered but not paid for and for other goods and property of LPS and ownership and possession remains with LPS until all money has been paid in full and all other obligations of the Buyer to LPS have been satisfied.
17.4 In the event that LPS’s Security Interests have not been perfected the Buyer acknowledges and agrees that these Terms create a Security Interest in the Secured Property and consents to LPS registering a Security Interest on the PPSR and to provide all assistance required by LPS to register, perfect and retain the integrity of LPS’s Security Interests.
17.5 The Buyer must not create or permit any other parties to create any form of Security Interest including, but not limited to, a Financing Statement, a Financing Change Statement on LPS’s goods and other property on the PPSR or in any other Register or charge document..
17.6 With regard to Section 64 of the PPSA the Buyer warrants that under no circumstances shall the Buyer permit a bank or other financial institution to register a “super priority security interest” or any other priority security interest on the PPSR on LPS’s unpaid-for goods and/or any other property that may be in premises or on sites that are not under LPS’s direct control.
18. The Commonwealth Competition and Consumer Act 2010 (“CCCA”)
These Terms are not intended to have the effect of contracting out of any provisions of the CCCA and amendments thereto except where permitted by law. If the Buyer acquires goods/services as a consumer these Terms shall be subject to protection of consumers’ rights legislation and shall not affect the consumer’s statutory rights. If any clauses in these Terms contravene any provisions in the CCCA such clause or clauses shall be deleted without affecting the validity of the remaining clauses of these Terms.
19. Passing of Title/Reservation of Title in Goods
19.1 Notwithstanding the delivery of goods title remains with LPS until all money has been paid in full and the Buyer has fulfilled all its obligations to LPS.
19.2 Until full payment in cleared funds is received by LPS for all goods supplied to the Buyer, as well as all other amounts owing to LPS by the Buyer under any other contracts legal title and property in all goods supplied under any contract remain vested in LPS and do not pass to the Buyer.
19.3 The Buyer holds the goods as fiduciary agent and bailee for LPS and the Buyer will not charge the goods in any way or grant or otherwise give any interest in the goods until clean title passes to the Buyer.
19.4 The Buyer must keep the goods separate from other goods and maintain the labelling and packaging of LPS so that they are readily identifiable as the property of LPS; however failure to comply with these requirements will not affect LPS’s title to the goods.
19.5 For Goods on which title has not passed to the Buyer LPS can instruct the Buyer to return them (or any part of them) to LPS if the Buyer’s obligations under these Terms have not been fulfilled.
19.6 The Buyer must not sell the goods except in the ordinary course of the Buyer’s business.
19.7 The Buyer holds and agrees to hold the proceeds of any sale of the goods on trust for LPS in a separate account into which no other money shall be paid; however failure to deposit the proceeds of a sale into a separate account or to keep those money separate will not affect the Buyer’s obligation to deal with the proceeds as trustee of the proceeds for LPS.
19.8 If LPS becomes aware of a breach of these Terms or of an insolvency event (or likelihood of such an event) LPS and/or any representative of LPS may as the invitee of the Buyer enter without notice any premises where it suspects the goods may be located and remove them without committing a trespass, detinue or conversion notwithstanding that the goods may have been attached to other goods or land not the property of LPS, and for this purpose the Buyer irrevocably licences LPS to enter such premises and also indemnifies LPS from and against all costs, claims, demands or actions by any party arising from such action.
19.9 LPS can issue proceedings to recover the price of the Goods/Services even if ownership has not passed to the Buyer.
20. Intellectual Property and Ownership
20.1 Unless otherwise agreed by LPS in writing, copyright and ownership in all artistic, literary and other property owned by LPS remains with LPS.
20.2 Unless otherwise agreed by LPS in writing the Buyer shall fully compensate LPS for any use of LPS’s artwork, designs dummies and other intellectual and physical property by the Buyer or other parties for any purposes whatsoever apart from that of completing the Buyer’s order with LPS.
20.3 For artistic and/or literary property including, but not limited to, drawings, sketches, models, paintings, photographs, text, designs or typesettings supplied to LPS by the Buyer and/or by the Buyer’s agents the Buyer warrants that the Buyer has copyright in or a licence to authorise LPS to reproduce such property for the purposes of fulfilling the Buyer’s order.
21. Set Off and Application
21.1 LPS is entitled to set off against any money owed to the Buyer an amount equal to the total of all money at such time then owed by the Buyer or on the Buyer’s behalf to LPS.
21.2 LPS can apply any money received from or on behalf of the Buyer to any and all amounts owed by the Buyer as it sees fit and the Buyer waives any rights of notification of such allocation.
22. Buyer Restructure
22.1 The Buyer shall notify LPS in writing of any change in its name, address, all other contact details, structure, ownership or the sale of any part of its business within 7 days of any such change. The Buyer will be liable to LPS for any purchases from LPS and for orders/contracts placed with external suppliers on the Buyer’s behalf until such notice is given.
22.2 LPS reserves the right to review or withdraw any credit facilities granted to the Buyer and to review or cancel all contracts upon any change in the Buyer’s structure, change in ownership or sale of any part of its business.
23. No Waiver
No waiver by LPS of any rights or provisions of these Terms shall at any time be deemed or implied to limit or exclude any of LPS’s rights against the Buyer under these Terms.
24. Privacy Act and Credit Information
The Buyer and/or the guarantor(s) irrevocably authorises LPS and its servants and agents to make such enquiries from time to time as LPS may deem necessary to obtain information and/or to investigate the creditworthiness of the Buyer including enquiries with persons nominated as trade references, bankers of the Buyer, any other credit provider, any credit reporting agency, any land titles office, the ASIC, ITSA and/or any similar body and/or related information service [“the Sources”] and including personal credit and consumer credit information and any property, business and/or solvency information. The Buyer by this clause irrevocably authorises the Sources to disclose anything about the Buyer which is in the Sources’ possession and the Buyer agrees that LPS may disclose any information it has about the Buyer to any interested person (subject only to any obligations LPS may have under the Privacy Act 1988 (Cth) and amendments thereto.
Notices from LPS to the Buyer are served when delivered by hand, sent by mail, document exchange, facsimile or email and shall be treated as given when: if delivered by hand when delivered; if sent by mail or document exchange, 48 hours after posting; if sent by fax, and/or email when the fax machine confirms transmission or when the email system confirms transmission. A notice given after 5pm and/or on a day which is not a Business Day is treated as given on the next following Business Day.
If a dispute arises between LPS and the Buyer and a solution thereto is contained in these Terms then such solution shall be a binding full and final settlement of the dispute. If no solution to the dispute exists in these Terms and the dispute cannot otherwise be resolved within 30 days from the date of the dispute then either party can refer the matter to a mediator. If neither party can agree on the mediator the dispute shall be referred to a mediator in accordance with the “Governing Law and Changes to Terms of Trade” clause in these Terms. The Buyer shall be liable for the full costs of the mediation and if this contravenes the Governing Law the parties will equally contribute to the cost of the mediation.
Should any clause or clauses of these Terms be invalid for any reason then such clause or clauses or parts thereof shall be severed without affecting the validity of the remaining clauses of these Terms.
28. Governing Law and Changes to Terms of Trade
28.1 The laws of Australia apply to these Terms and to all contracts or other agreements between LPS and the Buyer. The Buyer agrees that all contracts made with LPS shall be deemed to be made in the State nominated by LPS and the Buyer agrees to submit to the jurisdiction of the Court nominated by LPS.
28.2 All modifications and amendments to these provisions or any approvals hereunder must be in writing signed by a duly authorised signatory of LPS, if otherwise, they shall not be binding on LPS.
28.3 LPS may at any time alter, add to or delete any of these Terms and such changes will be effective from the date the changes are notified to the Buyer. The Buyer will be deemed to have accepted the changes upon placing further orders with LPS. 28.4 LPS may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.