1.1 Application of these Terms and Conditions
These Terms and Conditions are incorporated into any contract between a company and customer of the supply of goods and/or services by the company to the customer.
In these Terms and Conditions:
"The Company" shall mean WHAT’S ON IN PTY LTD (trading as WHAT’S ON IN PTY LTD & Design);
"The Customer" shall mean the party to whom the quotation is submitted or with whom the company enters into a contract.
"Business Day" means a day on which banks are open for general banking business in the State of Territory in which the company's premises are located;
"Estimate" means the estimate referred to in sub-clause 2.2(b) (as amended in accordance with clause 2.5);
"Goods" means the final goods produced by the company by completing the order;
"GST" means A New Tax System (Goods and Services Tax) Act, 1999;
"Interest Rate" means the aggregate of two percentum (2%) and the rate of interest expressed as a percentage per annum charged by the Westpac Bank from time to time on Overdraft Accounts exceeding One Hundred Thousand Dollars ($100,000.00);
"Order" means the work required to be done in order to fulfil the customer's instructions;
"Quote" means the quote described in clause 2.2;
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 in 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 the expression has a corresponding meaning;
(e) a reference to a period of time (including, without limitation, a year, a quarter, a month, a week and a day) is to a calendar period.
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.
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2.1 Terms and Conditions
All contracts made with the company, whether pursuant to quotation or otherwise, shall be subject to these Terms and Conditions as herein contained and shall exclude and contrary provisions in the customer's general terms of purchase (if any).
2.2 Company to supply quote
The company 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) an estimate of the company's charge of the performance for such work.
2.3 Acceptance by the customer
Where the company has given the customer a Quote:
(a) The company need 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) the company to commence work.
(c) Acceptance by the customer of the Quote will constitute acceptance by the customer of these Terms and Conditions.
2.4 Quote evidence of instructions
If a writing Quote is accepted by the customer, the work the subject of the quote shall be carried out and the customer shall pay for the work in accordance of with the within Terms and Conditions.
2.5 Company may revise estimate
The company may amend any Estimate before the Order has been completed to take into account any rise or fall in the cost of performing the Order and the company shall notify the customer of such amendment as soon as practicable thereafter. Upon the company giving the customer notification of such amendment such amended estimate shall be and be determined to be the Estimate for the purposes of these Terms and Conditions.
Firm Orders once placed cannot be cancelled, in whole or in part, without the company's prior approval. If an order is purported to be cancelled or varied after acceptance by the company, the customer must indemnify the company in full against all costs (labour and material used) and expenses incurred in performing the contract to the time of cancellation or variation.
2.7 Quotation inclusions
A quote provided to the customer by the company includes only those goods, services and work specified therein. The contents of all quotes are subject to change or withdrawal at any time by the company without notice.
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Subject to clause 5.3, when the Order has been completed, the company will issue an invoice to the customer for the amount of the Estimate, or, if no Estimate was made, for an amount representing the company's charge of the work done in filling the Order, and for any of the additional charges specified in clause 3.2.
3.2 Additional Charges
In addition to the amount of the Estimate, or where no estimate was given, in addition to the amount representing the company's charge for the work done, the company 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 with poor copy and/or poor image quality;
(d) fees for work which involves a language other than English and which was not notified to the company before the Quote was prepared;
(e) fees for additional work required to be done as a result of customer's corrections;
(f) fees and charges for work which is 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 artwork and documents, including computer files supplied for the purpose of the Order by the customer;
(i) freight costs and charges;
(j) any payments made to the company by the customer via and American Express or Diners Club credit card will incur a 3% surcharge;
(k) a 1% surcharge will be applied to the invoice for every day after the specified 30 day payment period that the customer fails to pay the company the total of the invoice;
(l) other charges, fees or dismemberments referred to in these Terms and Conditions and not specified in this clause;
3.3 For the purposes of these Terms and Conditions
(a) The term "company's charge" refers in each case to the standard or usual charged by the company from time to time in respect of the Order;
(b) "Preliminary work" means all and any work performed by the company 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 the company at the time when the company supplied the Estimate;
(c) "Additional Work" includes all work undertaken by the company as a consequence of the customer's variation, alteration or modification of its instructions in relation to the Order; and
(d) "Freight costs and charge" includes all costs and expenses incurred by the company in removing the Goods from its premises, whether by way of actual or attempted delivery or otherwise.
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The company shall notify the customer when the goods are ready for collection.
The customer must collect the goods from the company's premises upon being notified by the company that the goods are ready for collection. If the company agrees to deliver the Goods the customer shall bear all freight costs and charges of such delivery.
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 the company of the rejection:
(i) if the company agrees to deliver the Goods to the customer's premises - within 7 days of delivery (or such other time as is mutually agreed).
(ii) otherwise - within 7 days of notification that the Goods are ready for collection (or such other time as is mutually agreed).
The risk in the Goods passes to the customer:
(a) if the company delivers the Goods to the customer's premises - at the time of delivery;
(b) otherwise - at the time the company 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 the company at the time the customer notifies the company that the Goods are rejected.
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5.1 Time for payment
The customer must within the company's terms of 30 days of the customer receiving the company's invoice, pay to the company the total amount set in the invoice.
The company may charge interest at the Interest Rate on amounts not paid within the time specified in clause 5.1.
5.3 Advance and progress payments
(a) The company may issue an invoice for the amount of the Estimate before commencing the Order where the company has not previously carried out work for the customer or where the company considers it otherwise prudent to do so;
(b) The company may, in the event that the company is of the view that completing the Order will take more than one month, at any time before the Order is completed, issue one or more invoices for a portion of the amount of the Estimate (the proportion to be at the company's discretion) and require that the portion of the Estimate 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, the company may issue an invoice for a particular sum (to be specified by the company) for the work already done and for other costs incurred by the company (such as, but limited to, storage and/or hosting costs).
The customer must pay the company any costs, expenses or losses incurred by the company as a result of the customer's failure to pay the company all sums outstanding from the customer to the company (including, without limiting the generality of the obligation set out in this clause, any debt collection and legal costs).
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6.1 Retention of ownership
Until the customer has paid all sums outstanding in relation to the Goods:
(a) Title of the Goods shall not pass from the company to the customer.
(b) If the Goods are in the customer's possession, the customer shall hold the Goods as trustee for the company and must store the Goods so that they are clearly identifiable as the property of the company.
(c) The company may call for and recover possession of the Goods (for which purposes the company's 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 the company if so directed by the company.
(d) The customer may, in the ordinary course of the customer's business, sell the Goods to a third party but:
(i) the proceeds of sale to the third party shall be held by the customer as trustee for the company and the customer shall account to the company those sums; and
(ii) if the company requires, the customer shall assign to the company the custom's claim against the third party and shall execute all documents necessary to effect that assignment.
6.2 General lien
The company shall, in respect of all sums owed by the customer to the company hereunder, have a general lien on all property of the customer in the company's possession and may, after 14 days' notice to the customer, sell that property and apply the proceeds (net of any sales costs) in satisfaction of all or any part of the sums owed. In the event that any of the customer's property held by the company as aforesaid enjoys copyright protection in favour of the customer, the customer hereby grants to the company a licence to exercise the rights conferred on the company under this clause.
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If the company submits to the customer a proof of the goods (including, but not limiting, artwork and software) the company 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.
7.2 Non-excludable Rights
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").
7.3 Disclaimer of Liability
The company 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 Non-excludable Rights. To the extent permitted by law, the liability of the company for a breach of Non-excludable right is limited, at the company's 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.
7.4 Indirect Loss
Notwithstanding any other provision of these Terms and Conditions, the company is in no circumstances (whatever the cause) liable in contract, tort (including with limitation, negligence or breach of statutory duty) or otherwise to compensate the customer for:
(a) any increased costs of 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 the company's failure to complete or delay in completing the Order or to deliver the Goods.
7.5 Electronic Data
Without limiting the generality of the foregoing clauses, the company will not be liable to the customer for loss, however caused, of any
data stored on discs, tapes, compact discs or other media supplied by the customer to the company.
7.6 Customer's property
Subject to clause 7.5, the company will not be liable for the damage, loss, destruction of any property of the customer in the company's possession unless the loss or damage is due to the failure of the company to exercise due care and skill in handling or storing the property.
7.7 Force Majeure
The company will have no liability to the customer in relation to any loss, damage or expense caused by the company's failure to complete the Order or deliver the Goods as a result of fire, flood, tempest, earthquake, tsunami, storm, lightning, weather, natural disaster, riot, civil disturbance, war, threat of war, terrorism, vandalism, sabotage, theft, crime, strike, lockout, breakdown, the inability of the company's normal suppliers to supply necessary materials or any other matter whatsoever beyond the control of the company.
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8. GENERAL MATTERS
8.1 Alterations to style etc
If, before the quote is prepares, the customer does not give the company specific instructions in relation to style type or layout:
(a) the company may use any style, type and layout which, in the company's opinion is appropriate; and
(b) the company 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, layout used by the company.
8.2 Outside work
If the company has to obtain goods and/or services not normally stocked, supplied or offered by the company from a third party in
order to carry out the customer's instructions:
(a) The company 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) The company 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.
(d) Property in any such goods obtained from a third party and incorporated into the Goods passes to the company at the time of incorporation.
8.3 Material supplied by the customer
If the company 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 the company.
(b) The company will not normally count or check the materials and if requested by the customer to do so, may charge for counting or checking.
(c) The company 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.
(d) Property in any materials supplied by the customer and incorporated into the Goods passes to the company at the time of incorporation.
8.4 Property left with the company
If the customer leaves property in the company's possession without specific instruction as to what is to be done with it, the company 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.
8.5 Responsibility to insure
The company has no obligation to insure any property of the customer in the company's possession. The customer must pay the cost of any insurance arranged by the company at the request of the customer.
8.6 Ancillary materials
Unless the company and customer agree otherwise, drawings, sketches, photographs, negatives, images, artwork, design, templates, models, discs, tapes, compact discs or other media or data and other material produced by the company 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 the company.
(a) Copyright in all artistic and literary works authorised authored by the company shall be the property of the company.
(b) The customer:
(i) warrants that the customer has copyright in or a license to authorise the company to reproduce all artistic and literary works supplied by the customer to the company for the purpose of the
Order and the customer hereby expressly authorises the company to reproduce all and any such works for the purposes aforesaid;
(ii) hereby indemnifies and agrees to keep indemnified the company against all liability, losses or expenses incurred by the company in relation to or in any way directly or indirectly connected with any breach of copyright or 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 license to use the copyrighted in any literary and/or artistic works authored by the company of the purposes of the Order however the exercise of such license shall be conditional upon the company having received all monies due to the company under these Terms and Conditions.
The customer must keep confidential and not use any ideas communicated by the company to the customer without the
company's express written consent.
8.9 Electronic/Magnetic media
All discs, tapes, compact discs or other media (other than media supplied by the customer) used by the company to store data for the purposes of completing the Order are the property of the company. The customer cannot require the company to supply the customer any data so stored. In the event that the company does supply any data so stored or created the company may charge for supplying such data to the customer.
8.10 Storage of electronic data
The company will not be responsible for storing any data on discs, tapes, compact discs or other media when the Order has been completed. If the company agrees to store such data, the company may charge for doing so.
8.11 No waiver
A power or right in not waived solely because the party entitled to exercise that power or right does not to 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.
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.
8.13 Governing law and jurisdiction
These Terms and Conditions are governed by the laws in force in the State or Territory in which the company's premises are located and the parties submit to the non-exclusive jurisdiction of the courts of that State or Territory and any courts which may hear appeals for those courts in respect of any proceedings in connection with these Terms and Conditions.
8.14 Computer viruses and corrupt data files
While the company will endeavour to scan for unknown viruses, detect and attempt to notify the customer of any suspect data, the company cannot guarantee either detection or removal.
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9.1 All amounts are exclusive of tax
Unless otherwise stated, all amounts expressed or described in these Terms and Conditions are exclusive of any applicable tax (including sales, import, export or goods and services tax) for which the customer is additionally liable to pay the company.