These are the entire Terms of Trade of all goods, merchandise and services (“the Order”) supplied by Markis (ABN 83 941 817 044) (“the Seller”) to any person, firm or company placing an order with the Seller for the purchase of any goods (“the Buyer”) except as otherwise expressly agreed upon in writing between a duly authorised officer of the Seller and the Buyer, these Terms of Trade shall apply notwithstanding any provisions to the contrary which may appear on any order form or other document issued by any Customer.
Unless the context requires otherwise;
‘Buyer’ means the buyer of Goods, or services;
‘Contract’ means the contract for the sale of the Goods or Services, including these terms;
‘Default Event’ means any of the following:
(a) The Buyer does not make a payment due to the Seller under this or any other contract
(b) The Buyer is unable to pay its debts as they fall due;
(c) The Buyer ceases or suspends conduct of its business, or threatens to;
(d) A resolution is passed or proposed or a summons is presented to wind up The Buyer;
(e) A receiver and/or manager or other form of insolvency administrator is appointed over all or part of Buyer’s assets;
(f) The Buyer makes or proposes to make any arrangement with its creditors;
(g) The Buyer commits an act of bankruptcy; or
(h) Execution is levied on any of the Buyer’s assets;
‘Order’ means the goods or services the Seller sells or provides to the Buyer
‘Seller’ means Markis (A.B.N. 83 941 817 044)
‘GST’ means Goods and Services Tax
2. PAYMENT, CREDIT AND PRICE
2.1 Once the work is completed the Seller will invoice the Buyer for the quoted price plus any additional charges referred to in the Terms of Trade.
2.2 All Invoices shall be paid within seven days unless prior arrangements are agreed with the Seller.
2.3 The Seller will use its best endeavours to deliver the correct quantity ordered however quantities will at all times be considered estimates only and are conditional upon a margin of five percent (5%) being allowed for over’s or shortages, which shall be charged for or deducted as appropriate.
2.4 The Seller may at its option charge interest (at the rate of the Commonwealth Bank of Australia on overdrafts not exceeding $100,000 plus 3%) on amounts not paid when due, such interest is to be calculated on a daily basis from the date any such amount should have been paid until the date of payment.
2.5 The Buyer must pay to the Seller any costs, expenses or losses incurred by the Seller as a result of the Buyer’s failure to pay the Seller all sums outstanding from the Buyer to the Seller (including without limitation the generality of the obligations set out in this clause, any debt collection and legal costs).
2.6 All sales are subject to such limits as to minimum quantity or cash value of order as the Seller fixes from time to time.
2.7 At its discretion, the Seller may withdraw any credit or limit the amount of credit extended to the Buyer at any time.
2.8 Where applicable, the Buyer must bear any G.S.T on the Order.
2.9 If a Default Event occurs:
(a) At its option, the Seller may withhold further deliveries of Orders and/or withdraw any credit facilities; and
(b) All amounts outstanding to the Seller by the Buyer, even if not otherwise due for payment, will become immediately payable.
3.1 Unless otherwise agreed, the Seller will deliver the Order to the address Buyer specifies at the cost to the Buyer.
3.2 The Order the Seller delivers will be taken to be delivered immediately they are unloaded from the delivery vehicle and will be unloaded at the Buyer’s cost and risk.
3.3 The Buyer’s representative must be present at the delivery address at the time the Orders are delivered. The representative must sign the delivery advice that the driver of the delivery vehicle presents.
3.4 The Seller’s obligation to deliver shall be discharged on arrival of the Order at the Buyer’s nominated delivery destination, nominated transport company, nominated agent or the address appearing on the invoice. The Buyer shall unload the Order upon delivery, provided that if the Buyer is unable or unwilling to accept physical delivery of the goods when the Order is ready for delivery, the Seller shall be entitled to charge a fee for any delay experienced or arrange for the storage of the Order at the risk and cost of the Buyer including all transportation, storage and other consequential costs. The Seller may, at its discretion, make and invoice partial deliveries and each partial delivery shall be a separate sale pursuant to these Terms of Trade.
3.5 If delivery is by instalments, each instalment will be treated as a separate contract. If the Seller fails to deliver an instalment by the estimated date or to deliver it at all, the Buyer is not entitled to terminate the contract as to any further instalments.
3.6 Subject to paragraph 3.5 the Buyer may terminate the contract if the Seller fails to deliver the Order within 7 days after written notice from the Buyer to do so, given on or after the estimated delivery date.
3.7 If the Seller fails to deliver any Order to the Buyer on time or at all, the Seller’s only obligation is to refund to the Buyer any amount received from the Buyer for the Order not delivered. The Seller will not be liable for any costs, damage or other loss the Buyer or any other party suffers arising directly or indirectly from the Seller’s failure to deliver the Order on time or at all, whether or not due to the Seller’s or its agent’s negligence.
4. PROPERTY AND RISK
Notwithstanding delivery of the Order property in any given Order shall remain with the Seller until the Buyer has paid and discharged any and all other indebtedness to the Seller on any account whatsoever, including all applicable GST and other taxes, levies and duties. Any payment made by or on behalf of a Buyer which is later avoided by the application of any Statutory Provision shall be deemed not to discharge the Buyer’s indebtedness and, in such an event the parties are to be restored to rights which each respectively would have had if the payment had not been made.
4.1 The risk in the Order shall pass to the Buyer upon delivery to the Buyer or their agent or to a transport company nominated by the Buyer.
4.2 The Buyer acknowledges that it is in possession of the Order solely as a bailee for the Seller until payment as defined in clause 2 has been made in full to the Seller and until such payment:
(a) The Buyer shall be fully responsible for any loss or damage to the Order whatsoever and howsoever caused following delivery; and
(b) The Buyer shall store the Order separately from its own goods and those of any other party and in a manner which clearly identifies the Order, whether as separate chattels or as components, as the property of the Seller.
4.3 The Buyer hereby irrevocably grants to the Seller, its agents and servants, an unrestricted right and licence, without notice to enter premises occupied by the Buyer to identify and remove any of the Order being the property of the Seller in accordance with these Terms of Trade, without in any way being liable to the Buyer or any person claiming through the Buyer. The Seller shall have the right to dispose of any such Order removed or otherwise in its sole discretion and shall not be liable for any loss occasioned thereby.
4.4 In the event of The Buyer being in default of their obligation to pay and the overdue account is then referred to a debt collection agency and/or law firm for collection, the commission payable and legal costs on an indemnity basis shall be added to the amount outstanding and form part of the debt and in the event where the collection agency charges commission on a contingency basis the commission which would be charged if it achieved 100% recovery shall be added to the debt and the total shall be treated as a liquidated sum.
5. EXPEDITED COMPLETION OF ORDER
5.1 Buyer acknowledges that a requirement for urgent completion of an Order increases the likelihood of defects. The Seller will use reasonable efforts to avoid defects but will not be liable for defects arising because of urgent completion of an Order.
5.2 The price will be increased to cover overtime work or other additional costs incurred as a result of any requirement for urgent completion.
6. WARRANTY AND LIABILITY
6.1 The Seller warrants:
(a) That the Order will be free from defects in material and workmanship except such defects as are normally regarded as being commercially acceptable; and
(b) Subject to paragraph 5, that the Order will conform to the description shown on the Seller’s invoice current at the date of contract
6.2 Except as set out in Paragraph 6.1 and 6.3 the Seller;
(a) Excludes all conditions and warranties in relation to the Order whether imposed or implied by statute or otherwise; and
(b) Will not be liable for any loss, damage or injury including loss of profits and consequential loss, arising from the condition supply or use of the Order, or out of the Seller’s breach or performance of the contract, whether or not caused by the Seller’s negligence.
6.3 The Contract includes terms implied by any statute which cannot be lawfully excluded including those implied by Division 2 of the Trade Practices Act and, if applicable, the Fair Trading Act (WA) and the Sale of Goods Act (NSW). However, in relation to the supply of goods or services which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Seller’s liability for breach of those terms (other than section 69 of the Trade Practices Act) will be limited, at its option, to any one or more of:
(a) In the case of goods, the replacement, repair or payment of the cost of replacement or repair of the goods; and
(b) In the case of services, supplying the services again or payment of the cost of having the services supplied again
6.4 The Buyer acknowledges that it has exercised its independent skill and judgement in acquiring the Order and has not relied on any advice or representation by the Seller or any descriptions, illustrations or specifications contained in any document produced by the Seller, which have not been stated expressly in these Terms.
6.5 The Buyer will be taken to have waived any claim that they may have against the Seller unless:
(a) The buyer gives the Seller written notice of the claim within 7 days after delivery of the Order: and
(b) The Seller is given a reasonable opportunity to investigate the claim.
6.6 Regardless of anything else in the contract, the Seller will not be liable to the Buyer for the Seller’s failure to comply with the contract due to any cause beyond the Seller’s reasonable control the Seller’s obligations affected by this cause are suspended while the cause continues to hinder or prevent the Seller’s performance.
6.7 The Buyer will be liable to the Seller if the Buyer wrongfully terminates this contract or refuses to accept all or part of the Order. If the Order have been made especially for the Buyer, or are in the process of being made, the Buyer must pay to the Seller as liquidated damages the full contract price of the Order and any costs incurred by the Seller of the Order as determined by the Seller.
7.1 If the Buyer does not request delivery of the Order within 60 days of the Order becoming available for delivery, at its option, the Seller may:
(a) Deliver the Order to the Buyer, in which case the delivery will be taken to be a delivery pursuant to the contract: or
(b) Treat the buyer as having cancelled the contract and invoice the Buyer for an amount determined in accordance with paragraph 6.7.
8. OUTSIDE WORK
8.1 If the Seller has to obtain goods (including typefaces, film, plates etc) and/or services not normally stocked or supplied by the Seller from a third party in order to carry out the Buyer’s instructions:
(a) The Seller 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 service.
(b) The Seller acquires these goods and/or services as agent for the Buyer and not as principal. It will have no liability to the Buyer in relation to the supply of those goods and/or services. Any claim by the Buyer in relation to the supply of those goods and/or services must be made directly against the third party supplier.
(c) The Buyer must pay for such goods and/or services.
(d) Any such goods are obtained on the basis that title in those goods passes to the Seller when the goods are incorporated into the work done by the Seller.
9.1 The Seller will not accept alterations to orders which are in production or completed.
9.2 If the Buyer cancels all or part of an order:
(a) Before the Seller has started producing the Order, the Buyer must pay the Seller as liquidated damages an amount equal to 10% of the price of the cancelled Order; or
(b) After the Seller has started producing the Order, the Buyer must pay to the Seller as liquidated damages the full price of the Order cancelled as determined by the Seller.
10. FORCE MAJEURE
The Seller shall not be liable for any failure or delay in supply or delivery the Order where such failure or delay is wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of the Seller including, but not limited to, war, strikes, lockouts, industrial disputes or unrest, government restrictions or intervention, transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, storm or tempest, theft, vandalism, riots, civil commotions or accidents of any kind.
11. GOVERNING LAW
The Buyer agrees that these Terms of Trade shall be construed according to the laws of the State or Territory as the Seller may in its sole discretion determine. Proceedings by either party may be instituted and/or continued in such State or Territory as the Seller may in its sole discretion determine. Failing such determination the Buyer consents to any proceedings being instituted and heard by any appropriate Court sitting in the State of Queensland applying the laws of the State of Queensland.
12. SERVICE OF DOCUMENTS
The Buyer agrees that service of any notices or Court documents may be effected by forwarding same by pre paid post or facsimile to the last known address of the Buyer.
13. STATEMENT OF DEBT
A certificate signed by a Director, Secretary, Financial Controller or Credit Manager of the Seller shall be prima facie evidence of the amount of indebtedness of the Buyer to the Seller at that time.
14.1 The contract is not a sale by sample, even if a sample was inspected by the Buyer or exhibited.
14.2 The Seller’s waiver of any provision, or breach of any provision, of the contract must not be construed as a waiver of any other provision, or a breach of any other provisions, or subsequent breach of the same or any other provision of the contract.
14.3 Where this contract conflicts with anything set out in the Seller’s current published Product Data as the date of contract, the product data terms prevail to the extent of the conflict.
14.4 The Seller shall not be liable to accept any returned of Orders, but may in it’s absolute discretion accept the return of Orders, provided that such Orders shall only be accepted for return with the prior written approval of a duly authorised representative of the Seller. Orders returned for credit pursuant to this clause will be the subject of a re-stocking fee as determined by the Seller. Return freight and other expenses will be paid for by the Buyer, and no return of special order goods will be accepted.
15.1 Copyright in all artistic and literary works authored by the Seller shall remain the property of the Seller unless there is a written agreement to the contrary.
15.2 The Buyer warrants to the Seller, that the Buyer has copyright in or a licence to authorise the Seller to reproduce all artistic and literary works supplied by the Buyer to the Seller for the purpose of the order. The Buyer expressly authorises the Seller to reproduce all and any of such works for the purposes of the order.
15.3 The Buyer indemnifies and agrees to keep the Seller indemnified against all liability, losses or expenses incurred by the Seller in any way directly or indirectly connected with any breach of copyright or of any rights in relation to copyright in materials supplied by the Buyer.
15.4 Conditional upon receipt of payment in full for the work performed by the Seller, the Seller grants to the Buyer a non-exclusive license to use the copyright in works created by the Seller for the purposes of the Order.
The Buyer must keep confidential and must not (without the Sellers written consent) use any ideas, systems or processes communicated or made available by the Seller to the Buyer.
17. ELECTRONIC MEDIA
17.1 All Discs, tapes, compact discs or other media (other than the media supplied by the Buyer) used by the Seller to store data for the purposes of completing the order are the property of the Seller. The Buyer cannot require the Seller to supply to the Buyer any such data. The Seller may charge the Buyer for supplying such data where it chooses to supply such data to the Buyer.
17.2 The Seller will not be liable for storing any data on discs, tapes, compact discs or other media when the Order has been completed. If the Seller agrees to store such data, the Seller may charge the Buyer to do so.