TERMS & CONDITIONS OF TRADING (2002)
1)
ESTIMATES
a)
Estimates are based on the current costs of production
and, unless otherwise agreed, are subject to amendment
by Tangibility before or after acceptance of the
quotation to meet any rise and fall in such costs
between the date of estimate and the date of execution
of the order.
b)
When quotations are based on specifications, roughs,
diagrams, samples or dummies printed, typewritten or
other good copy, any extra work or cost caused by any
variation by the customer of the original instruction
or by the manuscript copy being poorly prepared, or by
the customer's requirements being different from those
originally submitted or described, may be charged to
the customer.
c)
Once accepted by the customer, Tangibility's written
estimate shall be deemed to interpret correctly the
customer's instructions whether written or verbal.
Where verbal instructions only are received from the
customer, Tangibility shall not be responsible for
errors or omissions which are due to the failure of
the customer to make known expressly or by implication
the particular purpose for which the services are
required.
d)
Acceptance of Tangibility's estimate shall be
acceptance of these terms and conditions,
notwithstanding any inconsistencies which may be
introduced by terms and conditions contained in the
customer's purchase order, unless otherwise expressly
agreed by Tangibility in writing.
2)
GST
Tangibility
shall be entitled to charge the amount of any GST
payable, as specified in the relevant legislation.
3)
OUTSIDE WORK
Where
the performance of any contract with the customer
requires Tangibility to obtain goods or services from
a third party, the contract between Tangibility and
the customer shall incorporate and shall be subject to
the conditions of supply of such goods and services to
Tangibility. The customer shall be liable for the cost
in full of such goods or services, providing there is
no breach of a statutory warranty implied by the Trade
Practises Act 1974.
4)
DELIVERY AND CLAIMS
a)
The customer shall be deemed to have accepted the
goods if, within seven (7) days (or such other period
is stipulated) of delivery, the customer fails to take
possession of the goods or notify Tangibility in
writing that the goods have been rejected.
b)
Should expedited delivery be agreed, reasonable
efforts should be made by Tangibility to secure
freedom from defects, but Tangibility shall not accept
responsibility for defects (except those caused by
lack of due care and skill in such circumstances). An
extra charge may be made to cover any overtime or
additional cost incurred as a result of the
requirement or such early delivery.
c)
Every endeavour will be made to deliver the correct
quantity ordered, but estimates and/or orders are
conditioned upon a margin of 7% being allowed for
overs or shortages.
5)
PRELIMINARY WORK AND AUTHORS CORRECTIONS
a)
All work carried out, whether experimentally or
otherwise at the customer's request, will be charged
to the customer. This includes additions and
alterations to copy or rearrangement of type, layout,
blocks, dies etc.
b)
All extra work caused by authors corrections,
including resetting and/or the over-running of
composition shall be charged as an extra.
c)
Tangibility is entitled to charge fees for changing
and 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 purpose of the order by the customer.
6)
ANCILLARY MATERIALS
Unless
Tangibility and the customer agree otherwise,
drawings, sketches, paintings, photographs, designs,
typesetting, dummies, models, negatives, positives,
blocks, engraving, stencils, dyes and other material
produced by Tangibility 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 Tangibility.
7)
PREPRESS SERVICES
a)
Prepress services for customer are to be provided at
ruling hourly rates and separate from any other
services or products that may be ordered by a
customer.
b)
Customers are to provide document or disk with output
instructions. Extracts of the customers resource
materials (text, photographs or the like) retained by
Tangibility on hard disk will be added to digital
masters obtained from artwork to produced a digital
image to the customers instructions.
c)
Where requested, customers may receive and approve a
proof of the final artwork. Upon formal acceptance of
the proof by the customer (a signed, approved copy
forwarded by fax to Tangibility), the customer is
liable for any charges carried out by Tangibility that
utilised this approved artwork. Tangibility will be
reimbursed for any cancelled printing work due to
subsequent alterations or errors in accepted proofs.
d)
When Tangibility is orally authorised to proceed with
the separate printing instructions without formal
acceptance of the proof, the printing costs are
separately chargeable to and payable by the customer.
8)
COPYRIGHT
a)
Unless Tangibility and the customer agree otherwise,
the copyright of all works of art created by
Tangibility are the property of Tangibility.
b)
The customer:
i) warrants that the customer has copyright in all
works of art supplied by the customer to Tangibility
for the purposes of the order; and
ii) must indemnify Tangibility against all liability,
losses or expenses incurred by Tangibility in relation
to or in any other way directly or indirectly
connected with any breach of copyright or of any
rights in relation to copyright.
9) CUSTOMER
PROPERTY
All
materials received by Tangibility from the customer
for any purpose whatsoever are accepted only at
customers risk while on the company's premises or in
its possession, and the company will not be
responsibility for any loss or damage thereof. Every
care will be taken to secure the best results where
materials are supplied by the customer but
responsibility will not be accepted for imperfect work
caused by defects or unsuitability of materials
supplied. If the customer leaves property in
Tangibility's possession without specific instructions
as to what is to be done with it, Tangibility may, 12
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.
10)
ELECTRONIC MEDIA
a) All disks, compact disks or other media (other than
media supplied by the customer) used by Tangibility to
store data for the purpose of completing the order are
the property of Tangibility. The customer cannot
require the printer to supply to the customer any data
so stored and Tangibility may charge for supplying
such data to the customer.
b)
Unless otherwise agreed between Tangibility and the
customer, Tangibility will not be responsible for
storing any data on disks or other media when the
order has been completed. If Tangibility agrees to
store such data, a charge may be applied for doing so.
11)
DEPOSITS
A
security deposit will be required by Tangibility when
an order is placed. If the order is cancelled or
suspended, the deposit will be applied against costs
per clause 12c. When the order has been completed, the
deposit will be applied against the invoice then
raised.
12)
PAYMENT
a)
Payment shall be COD unless otherwise stated in
writing.
b)
When the order has been completed, Tangibility may
issue an invoice to the customer for the amounts of
the estimate or for an amount representing
Tangibility's charge for the work done.
c)
The suspension (or cancellation) by the customer of
any work, for any reason, for a period exceeding
thirty (30) days shall entitle Tangibility to payment
for work already carried out, materials specially
ordered for that work and other additional costs,
including storage.
d)
In the event that Tangibility is required to engage
the service of any mercantile agency to effect
collection of any amounts due to Tangibility or in the
event that a customers payment cheque is dishonoured,
then all collection expenses and associated charges
shall be borne by the purchaser.
e) Where Tangibility agrees to accept
payment by credit card, such payments shall be subject
to a credit card surcharge fee. This surcharge
shall be expressed as a percentage of the total amount
due (including applicable GST) and shall be as
determined by Tangibility from time to time. The
surcharge is payable when the credit card payment is
effected.
13)
TRANSFER OF OWNERSHIP
a)
Ownership of any goods delivered by Tangibility to the
customer is only transferred when payment in full for
the goods has been received by Tangibility.
b)
Notwithstanding the provisions of the preceding
sub-clause the customer may sell the goods to a third
party in the ordinary course of business and deliver
them to that party subject to the following
conditions:
i) where the customer is paid by that party the
customer holds the whole of the proceeds of sale on
trust for Tangibility;
ii) where the customer is paid by that party, the
customer agrees at the option of Tangibility to assign
their claim against the party to Tangibility upon
Tangibility giving the customer notice in writing to
that effect.
14)
SUITABILITY OF GOODS OR WORK/LIABILITY
a)
If Tangibility submits to the customer a proof of the
goods, Tangibility will not be responsible for any
errors in the goods which appeared in the proof and
which were not corrected before the order was
completed.
b)
The parties acknowledge that, under 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").
c)
Tangibility 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 non-excludable
rights. Where (and to the extent) permitted by law,
the liability of Tangibility for a breach of a
non-excludable right is limited, at Tangibility's
option, to the supplying of the goods and/or services
again or payment of the cost of having the goods
and/or any services supplied again.
d)
Not withstanding any other provision of this
agreement, Tangibility is in no circumstance whatever
the cause, liable to compensate the customer for:
i) any increased cost of expenses
ii) any loss of profit, revenue, business, contracts
or anticipated savings
iii) any loss of expense incurred from a claim by a
third party; or
iv) any special, indirect or consequential loss or
damage of any nature whatsoever.
e)
Without limiting the generality of the foregoing
clauses, Tangibility will not be liable to the
customer for loss, however caused, of any data stored
on disks or other media supplied by the customer to
Tangibility. Tangibility will not be liable for the
damage, loss or destruction of any property of the
customer in Tangibility's possession.
f)
Tangibility will have no liability to the customer in
relation to any loss, damage or expense caused by
Tangibility's failure to complete the order or to
deliver the goods as a result of fire, flood, tempest,
earthquake, riot, civic disturbance, theft, crime,
strike, lockout, breakdown, war, the inability of
Tangibility's normal suppliers to supply necessary
materials or any other matter beyond Tangibility's
control.
g)
Subject to the application of statutory warranties
which cannot be excluded, no warranty shall be given
that goods sold or work done will be done reasonably
fit for a purpose where that purpose is not made known
either expressly or by implication.
h)
No warranty other than statutory warranties is given
by Tangibility or responsibility accepted by
Tangibility to ensure that goods produced comply with
the requirements of any legislation relating to the
marking and/or labelling and/or packaging of goods.
Compliance of the requirements of such legislation
shall be the sole responsibility of the buyer.
Syftkog
Pty Ltd ACN 098 183 156 trading as Tangibility ABN 42
819 454 339
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