1.1 Definitions Agreement means this Agreement as amended from time to time; Bottles means the bottles and any contents of the bottles supplied by the Customer in relation to which the Services are to be provided; Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Services are principally being carried out or the Goods provided. Collateral means the Goods and the Bottles; Commencement Date means the date of execution of the Agreement. Company means Glass Print Solutions Pty Ltd (ACN 137 915 824) and includes the Company’s agents and permitted assigns. Contract Price means the amount payable by the Customer to the Company pursuant to this Agreement as set out in the Schedule and any Order. Credit Application means the credit application(s) entered into by the Customer (and any Guarantor) with the Company for the supply of the Company’s Services. Customer means the person/company identified on an Order as the customer and includes the Customer’s agents and permitted assigns. Goods means any goods supplied by the Company in the course of or ancillary to providing the Services including without limitation, all artwork, ink, labels and printing on the Bottles. Guarantor means any guarantor named under the Credit Application. Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trade marks, patents and registered designs. Loss includes, but is not limited to, costs (including party to party legal costs and the Company’s legal costs on a solicitor and own client basis), expenses, lost profits, award of damages, personal injury and property damage. Non Excludable Provisions means any guarantee, warranty, term or condition implied or imposed in relation to these Terms and Conditions under the Australian Consumer Law or any other applicable legislation and which cannot be excluded; Order means a purchase order for Services placed by a Customer and as varied in writing from time to time by the parties. Quote means a written description of the Services to be provided and an estimate of the Company’s charges for the performance of the required work. PPSA means the Personal Property Securities Act 2009; Services means the printing on to and re-packing of the Bottles as set out in any Orders.
1.2 Interpretation In this Agreement, unless the context otherwise requires: (a) a reference to writing includes email and other communication established through the Company’s website (if any);
(b) the singular includes the plural and vice versa;
(c) a reference to a clause or paragraph is a reference to a clause or paragraph of these Terms & Conditions;
(d) a reference to a party to these Terms & Conditions or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
(e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(f) headings are for ease of reference only and do not affect the meaning or interpretation of these Terms & Conditions; and
(g) if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
(i) if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
(ii) in all other cases, must be done on the next Business Day.
2.1 This Agreement applies to all transactions between the Company and the Customer relating to the provision of Goods and Services. This Agreement takes precedence over any terms and conditions contained in any document of the Customer or elsewhere.
2.2 The Company agrees to provide Goods and Services to the Customer in accordance with this Agreement.
2.3 A variation or waiver of a provision of these terms is not effective unless in writing signed by both parties.
2.4 This Agreement commences on the Commencement Date and continues until the termination of this Agreement.
2.5 Where any Order specifies a due date for the delivery of the Services, the Company will use its best endeavours to complete the Services by the due date but will not be liable to the Customer or any third party for a failure to do so.
3.1 The Customer may request the Company provide it with a Quote for Services. Any Quote is valid for a period of 30 days.
3.2 If the introduction of any government charges or costs beyond the control of the Company increases the costs of the Company to perform the Services, the Quote shall be increased to take account of those charges or costs.
3.3 The Customer may request the Company provide Services by giving the Company an Order signed by an authorised representative of the Customer in response to a Quote or otherwise.
3.4 An Order is not a separate contract but forms part of this Agreement between the Company and the Customer together with any Credit Application, guarantee and indemnity and any other contractual document.
3.5 The Company may in its absolute discretion refuse to provide Services where:
(a) credit limits cannot be agreed upon or have been exceeded; or
(b) payment Services previously provided to the Customer or any related party has not been received by the Company.
4.1 The Customer may request that its Order be varied by providing a request in writing to the Company.
4.2 The amount payable for a variation will be added to the Contract Price.
4.3 The amount payable for a variation will be:
(a) calculated at the rates or prices set out in the Schedule (if any);
(b) as agreed between the Company and the Customer; or
(c) such amount as the Company determines is reasonable.
4.4 The Company has an automatic extension of time for the provision of the Goods or Services equal to the delay caused by the variation.
5.1 The Customer cancel an Order at any time by sending notice in writing to the Company (Cancellation Notice).
5.2 Upon receipt of a Cancellation Notice, the Company will:
(a) cease performance of the Services; and
(b) take all necessary steps to mitigate any costs incurred by it as a result of the cancellation.
5.3 In the event of the cancellation of an Order by the Customer:
(a) the Company shall be entitled to payment for Services performed up to receipt of the Cancellation Notice; and
(b) any costs incurred as a result of the Cancellation that cannot be avoided by the Company.
The Customer must:
(a) deliver the Bottles to the Company in a clean condition including free of any dirt, dust, oil or wine spills. If Bottles are not delivered in a clean condition the Company may, at its option:
(i) request the Customer collect the Bottles at the cost of the Customer; or 7 7.1 7.2 8
(ii) clean the Bottles, at the cost of the Customer.
(b) supply to the Company all packaging including dividers into which the Bottles are to be re-packed by the Company. At the request and cost of the Customer, the Company will wrap individual bottles in tissue paper prior to re-packing.
(c) approve all artwork;
(d) arrange the collection of the Bottles upon completion of the Services. Where any bottles are pre-filled, the Bottles will not be available for collection until they have cured for not less than 72 hours from printing. Any Bottles collected prior to this time are collected at the Customers own risk and the Company will not be liable for any damage to the printing on the Bottles.
The Company must perform the Services and supply the Goods using:
(a) the skill and care of a competent and skilled contractor performing similar services;
(b) in accordance with all applicable laws, regulations, industrial awards and agreements including all applicable occupational health and safety laws. The Company warrants all labour, plant, equipment, tools, appliances or other property supplied or used by the Company shall be of good quality and suitable for the provision of the Services.
In consideration of the performance of the Services and the supply of Goods:
(a) The Customer must pay the Contract Price determined in accordance with the Schedule.
(b) The Contract Price will be adjusted to take account of all Variations.
(c) The Contract Price is exclusive of GST.
9.1 The Company will render a tax invoice to the Customer upon completion of the Services.
9.2 Unless otherwise agreed all invoices must be paid without set off or deduction before the Bottles are collected by the Customer.
9.3 If any invoice is due but unpaid, the Company may withhold the provision of any further Goods or Services until any overdue amounts are paid in full.
9.4 At any time the Customer makes a payment to the Company, irrespective of whether the payment is made under or in connection with these terms and conditions, the Company may apply that that payment:
(a) First to satisfy any obligation that is not secured;
(b) Second to satisfy an obligation that is secured but not by a PMSI;
(c) Third to satisfy an obligation that is secured by a PMSI for that obligation and using proceeds from the sale of the collateral subject to that PMSI; and
(d) Last, to satisfy an obligation that is secured by a PMSI using funds or proceeds from any source or despite the above, in any manner the Company sees fit.
9.5 The Company may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to the Company.
9.6 The Customer must pay the Company on demand interest at the rate of 10% per annum on all overdue amounts owed by the Customer, calculated daily.
9.7 If the Customer disputes any part of an invoice, it must pay the undisputed portion of the invoice and notify the Company of the amount in dispute and the reasons for the dispute within the time mentioned in 7(a) above. The parties must use all reasonable endeavours to resolve the dispute as soon as possible.
9.8 All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees (on a full indemnity basis) and internal costs and expenses of the Company, are to be paid by the Customer as a debt due and payable under this Agreement.
The Customer must notify the Company of any defects in the Goods or Services within thirty (30) days of the delivery of the Goods or the completion of the Services. If the Customer fails to notify the Company of any defect as above, the Customer is deemed to accepted the Goods and or Services.
11.1 The Company does not insure the Customer’s Bottles whilst they are in the possession of the Company and does not affect insurance on behalf of the Customer. The Customer must take out insurance for the Bottles whilst they are in the possession of the Company.
11.2 Risk in the Bottles remains with the Customer notwithstanding delivery of the Bottles to or possession of the Bottles by the Company.
11.3 Property and title in Goods supplied to the Customer does not pass to the Customer until all money (including money owing in respect of other transactions between the Company and the Customer) due and payable to the Company by the Customer has been fully paid.
12.1 Subject to clauses 12.2, 12.3 and 12.4, the Company:
(a) To the fullest extent excludes all obligations of a bailor;
(b) excludes all liability for any loss of or damage to or delay in delivery of the Bottles. This applies:
(i) whether or not such loss of or damage to or delay in delivery of the Bottles is caused by the negligence of the Company;
(ii) to any loss or damages suffered by the Customer, including loss of profit, indirect or consequential loss, howsoever caused or arising and whether caused by the negligence, recklessness or misconduct of the Company or its servants or agents;
(c) excludes all liability for and the Customer releases and indemnifies the Company against all liability, cost or Loss whatsoever and howsoever caused whether arising directly or indirectly from acts or omissions of the Company in respect of the Bottles or incurred as a result of any breach of this agreement by the Customer.
12.2 Subject to clause 12.3, if any of the Goods or Services are defective in quality, performance, workmanship or otherwise are not in accordance with the Agreement:
(a) If the defect is in respect of Goods, the Company’s liability is limited to, at its option:
(i) Replacement of the Goods or the supply of equivalent Goods;
(ii) Payment of the cost of replacing the Goods or acquiring equivalent Goods;
(iii) Repair of the Goods; or
(iv) Payment of the cost of having the Goods repaired,
(b) If the defect is in respect of Services, the Company’s liability is limited to, at its option:
(i) supply of the Services again; or
(ii) payment of the cost of having the Services supplied again.
12.3 Notwithstanding clause 12.2, the Company will have no liability:
(a) for any defect in the Bottles;
(b) in relation to any artwork approved by the Customer;
(c) for any defect in or failure in respect of the Goods and/or Services or damage to the Bottles or artwork that is caused by or contributed to by:
(i) the packing of the Bottles in packing supplied by the Customer, except where the Company’s sole negligence when packing the Bottles has caused the defect or failure;
(ii) the storing of the Bottles in metal racks;
(iii) Bottles coming into contact with any other bottles;
(iv) the transportation of the Bottles following collection by the Customer its agent, except where the Company’s sole negligence when packing the Bottles has caused the defect or failure
12.4 Subject to the Company’s obligations under the Non Excludable Provisions and to the fullest extent permitted by law:
(a) the liability of the Company under or in connection with this Agreement, whether whether arising directly or indirectly, in contract, tort, negligence, breach of statutory duty, bailment or otherwise shall not exceed the 100% of the invoices(s) paid by the Customer to the Company under this Agreement; and
(b) the Company is not liable for and no measure of damages will, under any circumstances include:
(i) special, indirect, consequential, incidental or punitive damages; or
(ii) damages for loss of anticipated savings, whether in contract, tort (including negligence) in equity, under statute, or on any other basis, whether or not such loss or damage was foreseeable.
13.1 Each of the following occurrences constitutes an event of default:
(a) the Customer breaches or is alleged to have breached this Agreement for any reason (including, but not limited to, defaulting on any payment due) and fails to remedy that breach within 7 days of being given notice by the Company to do so;
(b) the Customer, being a natural person, commits an act of bankruptcy;
(c) the Customer, being a corporation, is subject to:
(i) a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
(ii) a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Customer’s property and undertaking;
(iii) the entering of a scheme of arrangement (other than for the purpose of restructuring); and
(iv) any assignment for the benefit of creditors;
(d) the Customer purports to assign its rights or obligations under this Agreement without the Company’s prior written consent; or
(e) the Customer ceases or threatens to cease the conduct of its business in the normal manner.
13.2 Where an event of default occurs, the Company may:
(a) terminate this Agreement;
(b) terminate any or all Orders and credit arrangements (if any) with the Customer;
(c) refuse to deliver Goods or provide further Services;
(d) repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or
(e) retain (where applicable) all money paid by the Customer on account of Goods or Services or otherwise.
13.3 In addition to any action permitted to be taken by the Company under paragraph 13.2, on the occurrence of an event of default all invoices will become immediately due and payable.13.4 The Customer indemnifies the Company against any loss, liability, cost or expense suffered or incurred by the Company (including legal costs and expenses on a full indemnity basis) arising from or in connection an event of default.
In addition to the express rights of termination, the Company may terminate this Agreement by giving 7 days written
notice to the Customer.
15.1 The Customer indemnifies and keeps indemnified the Company, its servants and agents against any Loss arising directly or indirectly from:
(a) any breach by the Customer or any of its personnel of this Agreement;
(b) personal injury to or death of any person (including the Company’s personnel) caused by or contributed to by any act or omission of the Customer;
(c) damage to property (including the property of the Company) caused by or contributed to by any act or omission of the Customer; or
(d) any claim by any third party against the Company arising out of any act or omission of the Customer in connection with this Agreement.
16.1 If the Company is prevented in whole or in part from carrying out its obligations pursuant to this Agreement as a result of Force Majeure, it must promptly give notice to the Customer.
16.2 The obligations of the Company that cannot be performed because of the Force Majeure will be suspended.
16.3 The Company must take all reasonable action to overcome and mitigate the effect of the Force Majeure and resume the carrying out its obligations as soon as reasonably practicable.
16.4 For the purposes of this clause Force Majeure means circumstances beyond the Company’s control including, but limited to, weather, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
17.1 If a dispute arises between the Customer and the Company, a party must provide written notice to the other party setting out the nature of the dispute, following which the senior managers of the parties must meet within fourteen (14) days to attempt to resolve the dispute in good faith.
17.2 If the dispute is not resolved within 14 days of the meeting referred to in clause 17(a) the parties expressly agree to endeavour to settle the dispute by mediation conducted by the Institute of Arbitrators & Mediators Australia (IAMA). The mediation must be conducted in accordance with the IAMA Guidelines for Commercial Mediation which operate at the time the matter is referred to IAMA.
17.3 Notwithstanding the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under this Agreement.
(a) Neither party may commence litigation or arbitration, other than for urgent interlocutory relief until the procedures in this clause 17 have been complied with.
18.1 Despite anything to the contrary contained in this Agreement or any other rights which the Company may have howsoever:
(a) the Customer grants a security interest in the Collateral in favour of the Company to secure the punctual payment of all amounts and other monetary obligations payable under the Terms and Conditions;
(b) in the event that any other material is contained, stored, placed or comes to rest within or on the Collateral; (Contents) then the parties expressly agree that the Security Interest (and the collateral in respect thereof) created in favour of the Company will extend to cover all such contents; and
(c) the Customer irrevocably nominates, constitutes and appoints the Company or the Company’s nominee as the Customer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause.
19.1 These Terms & Conditions constitute a security agreement.
19.2 The Customer and the Guarantor acknowledge that these Terms & Conditions create a security interest in the Collateral;
19.3 The interest of the Company in the Collateral and all proceeds from the sale of the Collateral by the Customer to a third party is also a security interest;
19.4 The Customer consents to the Company registering its security interest on the Personal Property Securities Register and agree to provide all assistance reasonably required by the Company to facilitate registration;
19.5 The Customer agrees not to in any way:
(a) assign, charge, lease or otherwise deal with the Collateral in such a manner as to create, a security interest over, the Collateral in favour of the Customer or any third party;
(b) change its name, ACN or ABN or other details required on the PPSR, without first notifying the Company;
19.6 The Customer waives its rights to receive any notice under the PPSA (including notice of verification statement) unless the notice is required by the PPSA and cannot be excluded;
19.7 The Company and the Customer agree that this agreement and all related information and document(s) are confidential (Confidential Information) and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by this agreement or required by law. The Company and the Customer agree that the Company will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA;
19.8 Unless the Collateral is used predominantly for personal, domestic or household purposes, the Company and the Customer agree each of the following requirements or rights under the PPSA do not apply to the enforcement of the Company’s security interest in the Secured Property or of this agreement:
(a) any requirement for the Company to give the Customer a notice of removal of accession;
(b) any requirement for the Company to give the Customer a notice of the Company’s proposed disposal of the Secured Property;
(c) any requirement for the Company to include in a statement of account, after disposal of the Collateral, the details of any amounts paid to other secured parties;
(d) any requirement for the Company to give the Customer a statement of account if the Company does not dispose of the Collateral;
(e) any right the Customer has to redeem the Collateral before the Company exercises a right of disposal; and
(f) any right the Customer has to reinstate this agreement before the Company exercises a right of disposal of the Collateral.
19.9 To the maximum extent permitted by law, the Customer agrees that the following sections of the PPSA will not apply:
(a) Section 130
(b) Section 142; and
(c) Section 143.
19.10 To the maximum extent permitted by law, the Customer waives any rights it may have pursuant to and hereby contract out the following sections of the PPSA:
(a) Section 95;
(b) Section 123;
(c) Section 129 (2);
(d) Section 132;
(e) Section 134 (2); and
(f) Section 135
19.11 Expressions defined in the PPSA have the same meaning when used in this Agreement.
20.1 This Agreement is governed by the laws of South Australia and each party irrevocably submits to the non-exclusive jurisdiction of the courts of South Australia.
20.2 This Agreement and any the Credit Application (if any) represents the whole agreement between the parties relating to the subject matter of these terms.
20.3 This Agreement supersedes all oral and written negotiations and communications by and on behalf of either of the parties.
20.4 In entering into this Agreement, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by the Company or any of its employees or agents relating to or in connection with the subject matter of this Agreement.
20.5 If any provision of This Agreement at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
20.6 The Company provides the Services as an Independent Contractor.
20.7 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
20.8 A notice or other communication required or permitted to be given by one party to another must be in writing and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Quote; sent by fax to the fax number of the addressee specified in this Agreement, with acknowledgment of receipt from the facsimile machine of the addressee or sent by email to the email address of the addressee specified in the relevant Quote with acknowledgement of delivery.
20.9 A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by fax or email before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
20.10 A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.