(ABN 18 111 529 545)

 

Terms and Conditions of Trading

 

Orders 

All orders for goods or services from Customers which may be accepted by Alba Print Management Pty Ltd (Alba Print) are accepted on the following conditions (“Conditions”). Any conditions of purchase offered by Customers which purport to add to or are otherwise inconsistent with the Conditions shall be deemed to be waived by the Customer upon placement of an order by the Customer with Alba Print unless such conditions of purchase are expressly agreed to by Alba Print in writing. 

 

No order accepted by Alba Print (in writing, orally or by conduct) may be cancelled or deferred by the Customer 

without the prior written consent of Alba Print. 

 

Alba Print Management Pty Ltd reserves the right to require orders to be for a minimum value determined by Alba 

Print from time to time and to otherwise accept in whole or in part any orders for goods or services by Customers or to 

decline such orders.

 

1. INTRODUCTION

 

1.1 Application of these Terms and Conditions

 

These Terms and Conditions are incorporated into any contract between Alba Print Management Pty Ltd and customer for the supply of goods  and/or services by Alba Print to the customer.

 

1.2 Interpretation

 

In these Terms and Conditions:

“Alba” or “Alba Print” means Alba Print Management Pty Ltd;

“Additional Work” includes all work undertaken by Alba as a consequence of the customer’s variation, alteration or modification of its instructions in relation to the Order;

“Business Day” means a day on which banks are open for general banking business in the State or Territory in which Alba or Alba’s suppliers

premises are located; “Estimate” means the estimate referred to in sub-clause 2.1(b) (as amended in accordance with clause 2.4);

“Freight Costs and Charge” includes all costs and expenses incurred by Alba in removing the Goods from its (or Alba’s supplier’s) premises, 

whether by way of actual or attempted delivery to the customer or otherwise; “Goods” means all present and after acquired goods produced by  Alba Print under an Order;

“GST” means Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth);

“Interest Rate” means a rate2% higher than the Cash Target Rate as fixed by the Reserve Bank of Australia;

“Order” means the work required to be done in order to fulfill the customer’s instructions;

“Preliminary Work” means any and all work performed by Alba 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 Alba Print at the time when Alba supplied the Estimate;

“Printer’s Charge” refers in each case to the standard or usual fee charged by Alba from time to time in respect of the Order;

“Quote” means the quote described in clause 2.1.

“ACL” means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

 

1.3 General

 

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 of 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 that expression has a corresponding meaning;

(e) a reference to a period of time (including, without limitation, a year, a quarter, a month and a day) is to a calendar period.

 

1.4 Headings

 

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.

 

2. QUOTES

 

2.1 Printer to supply quote Alba 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 Alba’s charge for the performance of such work.

 

2.2 Acceptance by customer

 

Where Alba has given the customer a Quote:

(a) Alba 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) Alba to commence work.

(c) Acceptance by the customer of the Quote, whether express or implied, will constitute acceptance by the customer of these Terms and 

Conditions.

 

2.3 Quote evidence of instructions

 

If the Quote is accepted by the customer, the subject of the quote (the work) shall be carried out and the customer shall pay for the work in 

accordance with the Quote and these Terms and Conditions.

 

2.4 Alba Print may revise Estimate

 

Alba may amend the Estimate:

(a) on sighting the final artwork

(b) before the Order has been completed to take into account any rise or fall in the cost of performing the Order and Alba shall notify the customer of such amendment as soon as practicable thereafter. Upon Alba giving the customer notification of such amendment such amended estimate shall be and be deemed to be the Estimate for the purposes of these Terms and Conditions.

 

3. CHARGES

 

3.1 Invoice

 

Subject to clause 5.3, when the Order has been completed, Alba will issue an invoice to the customer for the amount of the Estimate or, if no 

Estimate was made, for an amount representing Alba’s Charge for the work done in filling the Order, and for any of the other 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 Alba’s Charge for the work done, 

Alba 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 from poor copy;

(d) fees for work which involves tables or foreign language and which was not notified to Alba before the Quote was prepared;

(e) fees for additional work required to be done as a result of author’s corrections, including repagination or reformatting;

(f) fees and other charges for work 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 plates, film, bromides, artwork or any document including computer files supplied for the purposes of the Order by the customer;

(i) freight costs and charges;

(j) other charges, fees or disbursements referred to in these Terms and Conditions and not specified in this clause.

 

3.3 Under/Over supplies

 

The customer acknowledges that whilst Alba Print makes every effort to deliver work in the precise quantity ordered, the customer agrees to make no claim for damages in the event that the quantity delivered is within 10% over or under the number specified in the Order (“a discrepancy”); Where a discrepancy occurs Alba will adjust the amount charged to the customer for the Order a pro rata amount to reflect the actual number of items produced.”

 

4. DELIVERY

 

Whilst Alba Print endeavours to effect deliveries or execute orders by the requested or estimated date, Alba Print shall not be liable for any loss or damage whatsoever (including, without limitation, special or consequential loss or damage) caused directly or indirectly by any early delivery or delay or failure to deliver. Alba Print reserves the right to make delivery in instalments and to invoice each instalment as a separate order.

 

4.1 Notification

 

Alba shall notify the customer when the Goods are ready for collection. 

 

4.2 Collection

 

The customer must collect the Goods from Alba’s premises upon being notified by Alba that the Goods are ready for collection. If (where applicable) the customer has not made or notified Alba Print of arrangements for delivery, the customer hereby authorises and requests Alba Print to nominate a carrier to take delivery of the goods from Alba on behalf and at the risk of the customer for carriage to the customer or as the customer directs. Arrangements for insurance of the goods are the responsibility of the customer. Where Alba Print nominates a carrier on behalf of the customer, all freight and other carriage charges will be billed to the Customer. Alba Print shall not be responsible for any loss or damage to goods in transit or otherwise once they have been delivered to the Customer as aforesaid.

 

4.3 Rejection

 

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 Alba of the rejection: 

(a) if Alba agrees to deliver the Goods to the customer’s premises –within 7 days of delivery (or such other time as is mutually agreed);

(b) otherwise - within 7 days of notification that the Goods are ready for collection (or such other time as is mutually agreed).

 

4.4 Risk

 

The risk in the Goods passes to the customer:

(a) if Alba delivers the Goods to the customer’s premises - at the time of delivery;

(b) otherwise - at the time Alba 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 Alba at the time the customer notifies Alba that the Goods are rejected.

 

4.5 Proof of Delivery 

 

Signature of any delivery note by any agent, employee or representative of the Customer (or where delivery is to the Customer’s carrier, by such carrier or its agent) shall be conclusive proof of delivery. Alba Print will render to the Customer such reasonable assistance as may be necessary to press claims on carriers provided the Customer must have notified Alba Print and the carrier in writing immediately if any loss or damage is discovered on receipt of goods and must lodge a claim on the carrier within 3 days of the date of receipt of the goods. 

 

5. PAYMENT

 

5.1 Time for payment

 

The customer must, within 30 days of the customer receiving Alba’s invoice, pay to Alba the total amount set out in the invoice, unless alternative payment arrangements have been agreed between Alba and the customer.

 

5.2 Method of payment

 

Payment for the Order is to be made by the customer by cash, cheque, credit or any other form of payment as agreed by Alba and the customer. Unless otherwise stated, all payment shall be in Australian Dollars.

 

5.3 Interest

 

Alba may charge interest at the Interest Rate on amounts not paid within the time specified in clause 5.1.

 

5.4 Advance and progress payments

 

(a) Alba may issue an invoice for the amount of the Estimate before commencing the Order where Alba has not previously carried out work for the customer or where Alba considers it otherwise prudent to do so;

(b) Alba may, in the event that Alba is of the view that completing the Order will take more than a month, at any time before the Order is completed, issue one or more invoices for a proportion of the amount of the Estimate (the proportion to be at Alba’s discretion) and require that proportion 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, Alba may issue an invoice for a particular sum (to be specified by Alba) for the work already done and for other costs incurred by Alba (such as storage costs).

 

6. NON-PAYMENT

 

6.1 Damages

 

The customer must pay to Alba any costs, expenses or losses incurred by Alba as a result of the customer’s failure to pay to Alba all sums 

outstanding from the customer to Alba (including, without limiting the generality of the obligation set out in this clause, any debt collection and legal costs).

6.2 Retention of title

 

(a) Until the customer has paid all amounts outstanding in relation to the Goods and any other goods supplied by Alba to the customer, title and property in the Goods shall not pass from Alba to the customer.

(b) If the Goods are in the customer’s possession, the customer shall hold the Goods as trustee for Alba and must store the Goods so that they are clearly identifiable as the property of Alba.

(c) Alba may call for and recover possession of the Goods (for which purposes Alba’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 Alba if so directed by Alba.

(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 Alba and the customer shall account to Alba for those 

sums; and

(ii) if Alba requires, the customer shall assign to Alba the customer’s claim against the third party and shall execute all documents necessary to effect that assignment.

 

6.3 General lien

 

Alba shall, in respect of all sums owed by the customer to Alba hereunder, have a general lien on all property of the customer in Alba’s possession and may, after 14 days’ notice to the customer, sell that property and apply the proceeds (net of any sale costs) in satisfaction of all or any part of the sums owed. In the event that any of the customer’s property held by Alba as aforesaid enjoys copyright protection in favour of the customer, the customer hereby grants to Alba a licence to exercise the rights conferred on Alba under this clause.

 

7. LIABILITY

 

7.1 Proofs

 

a) If Alba submits to the customer a proof of the Goods Alba 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.

b) If Alba submit’s a PDF proof colours on this proof may not be an accurate representation of the final printed product. 

c) Once approval has been indicated by the customer any errors subsequently found irrespective of where the error occurred will be on the 

customer account. 

d) Authors Corrections will incur additional costs to the customer and are not included in the original quotation

 

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

 

Alba 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 Alba for a breach of a Non-excludable Right is limited, at Alba’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 losses

Notwithstanding any other provision of these Terms and Conditions, Alba is in no circumstance (whatever the cause) liable in contract, tort 

(including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the customer for:

(a) any increased costs or 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 Alba’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, Alba will not be liable to the customer for loss, however caused, of any data stored on disks, tapes, compact disks or other media supplied by the customer to Alba.

 

 

7.6 Customer’s property

Subject to clause 7.5, Alba will not be liable for the damage, loss or destruction of any property of the customer in Alba’s possession unless the loss or damage is due to the failure of Alba to exercise due care and skill in handling or storing the property.

 

7.7 Force Majeure

 

Alba Print shall not be liable for any direct, indirect special or consequential loss or damage of any kind arising from non-delivery or delay in delivery of any goods or services caused by act of God, riot or civil commotion, strike, lock out, labour disputes, fire, flood, drought, power restrictions, act of government, acts of terrorism, delays in transport, breakdowns in machinery, failure to obtain or shortages of raw materials or other supplies obtained from 3rd parties or any cause whatsoever beyond its control. 

 

7.8 Limitation of Liability 

 

To the maximum extent permitted by law and subject to the following paragraph of this Clause 7.8, Alba Print shall not be under any liability, 

whether in contract, tort or otherwise, for any injury, damage or loss whatsoever arising in any way in connection with the supply or use of the goods or from any services provided, including (without limitation) direct, indirect, special or consequential loss or damage of any kind arising from claims by the Customer, third parties or otherwise. If rights are conferred upon the Customer or obligations are imposed upon Alba Print by the ACL or other law which cannot be excluded, the provisions of this Clause 7.8 shall be read subject to those rights or obligations, and to the extent permitted by such legislation Alba Print hereby expressly limits its liability under any such legislation to the maximum extent permitted by law. Subject to the preceding paragraph of this Clause 7.8, the Customer agrees that the liability of Alba Print (which cannot be limited beyond the following provisions) is limited to: 

(a) in the case of the supply of goods, any 1 or more of the following (at Alba’s option): 

(i) the replacement of the goods or the supply of equivalent goods; 

(ii) the repair of the goods; 

(iii) the payment of the costs of replacing the goods or of acquiring equivalent goods; or 

(iv) the payment of the costs of having the goods repaired; or 

(b) in the case of the supply of services, any 1 or more of the following (at Alba’s option): 

(i) the supply of the services again; or 

(ii) the payment of the costs of having the services supplied again. 

Without reducing the effect of, and subject always to, the preceding provisions of this Clause 7.8, Alba Print’s total aggregate liability (if any) to a Customer for any particular order for the supply of goods or services by Alba Print to the Customer will not, in any event, exceed the amount invoiced by Alba Print to the Customer for the said order.

 

8. GENERAL MATTERS

 

8.1 Periodicals

 

If the contract between Alba and customer relates to more than one issue of a periodical:

(a) Each issue will, for the purposes of these Terms and Conditions, be considered to be one Order.(b) Subject to sub-clause (c), a party may not terminate a contract to which these Terms and Conditions apply unless:

(i) in the case of periodicals published weekly or more frequently, that party has given 4 weeks’ notice of that party’s intention to terminate the contract;

(ii) in the case of periodicals published fortnightly or more frequently (but less frequently than weekly), that party has given 8 weeks’ notice of 

that party’s intention to terminate the contract;

(iii) in the case of periodicals published less frequently than fortnightly, that party has given 13 weeks’ notice of that party’s intention to terminate 

the contract.

(c) Notwithstanding sub-clause (b), Alba may terminate the contract at any time if the customer is in breach of any provision of these Terms and Conditions relating to payment.

 

8.2 Alterations to style etc

 

If, before the Quote is prepared, the customer does not give Alba specific instructions in relation to style, type or layout:

(a) Alba may use any style, type and layout which, in Alba’s opinion, is appropriate; and

(b) Alba 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 or layout used by Alba.

 

8.3 Overset

 

The customer must pay for overset matter (being matter produced on the customer’s instructions but not used in a publication for which it was intended). The customer may instruct Alba to retain overset matter for future issues of the publication or to discard the overset matter.

 

8.4 Outside work

 

If Alba has to obtain goods (including typefaces, bromides, film, plates, ornaments or artwork) and/or services not normally stocked or supplied by Alba from a third party in order to carry out the customer’s instructions:

(a) Alba 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) Alba 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 Alba at the time of incorporation.

 

8.5 Material supplied by customer

 

If Alba 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 Alba.

(b) Alba will not normally count or check the materials and if requested by the customer to do so, may charge for counting or checking.

(c) Alba 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 Alba at the time of incorporation.

 

8.6 Property left with printer

 

If the customer leaves property in Alba’s possession without specific instructions as to what is to be done with it, Alba 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.

 

8.7 Responsibility to insure

 

Alba has no obligation to insure any property of the customer in Alba’s possession. The customer must pay the cost of any insurance arranged by Alba at the request of the customer.

 

8.8 Ancillary materials

 

Unless Alba and customer agree otherwise, drawings, sketches, paintings, photographs, designs, typesetting, dummies, models, negatives, 

positives, blocks, engravings, stencils, dies, plates or cylinders, electros, stereos, discs, tapes, compact discs, or other media or data and other material produced by Alba 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 Alba.

 

8.9 Standing material

 

At Alba Print’s discretion, all plates, type, cutting forms and other printing materials used in the production may be broken up and/or destroyed immediately on completion of work unless we are specifically requested in writing to keep it standing. All such matter kept standing shall remain the property of Alba print. If matter is kept standing, pursuant to such a request an additional charge may be made for storage, maintenance and any other necessary attention.

 

8.10 Copyright

 

(a) Copyright in all artistic and literary works authored by Alba shall be the property of Alba.

(b) The customer:

(i) warrants that the customer has copyright in or a licence to authorise Alba to reproduce, all artistic and literary works supplied by the customer to Alba for the purposes of the Order and the customer hereby expressly authorises Alba to reproduce all and any of such works for the purposes aforesaid;

(ii) hereby indemnifies and agrees to keep indemnified Alba against all liability, losses or expenses incurred by Alba in relation to or in any way directly or indirectly connected with any breach of copyright or of 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 licence to use the copyright in any literary and/or artistic works authored by Alba for the 

purposes of the Order. However the exercise of such licence shall be conditional upon Alba having received all monies due to Alba under theseTerms and Conditions.

 

8.11 Ideas

 

The customer must keep confidential and not use any ideas communicated by Alba to the customer without Alba’s written consent.

 

8.12 Electronic/magnetic media

 

All disks, tapes, compact disks or other media (other than media supplied by the customer) used by Alba to store data for the purposes of 

completing the Order are the property of Alba. The customer cannot require Alba to supply to the customer any data so stored. In the event that Alba does supply any data so stored or created Alba may charge for supplying such data to the customer.

 

8.13 Storage of electronic data

 

Alba will not be responsible for storing any data on disks, tapes, compact disks or other media when the Order has been completed. If Alba agrees to store such data, Alba may charge for doing so.

 

8.14 No Waiver

 

A power or right is not waived solely because the party entitled to exercise that power or right does not 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.

 

8.15 Severability

 

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.

 

8.16 Governing law and jurisdiction

 

These Terms and Conditions are governed by the law in force in the State or Territory in which Alba’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 from those courts in respect of any proceedings in connection with these Terms and Conditions.

 

9 GOODS AND SERVICES TAX

 

9.1 All amounts are GST inclusive amounts

 

Unless otherwise stated, all amounts expressed or described in these Terms and Conditions are GST inclusive amounts.

 

9.2 Out of pocket expenses are GST inclusive

 

All out of pocket expenses referred to in these Terms and Conditions are GST inclusive out of pocket expenses.

 

9.3 Printer to assist Customer

Alba will do all things reasonably available to it to assist the customer to claim on a timely basis any input tax credits (if any) the customer may be entitled to claim for any acquisition of goods and services from Alba. This includes Alba maintaining its registered status for GST purposes, and issuing tax invoices for supplies made under these Terms and Conditions on a timely basis as reasonably requested by the customer.

 

10. Personal Property Securities Act

 

10.1 Security Interest

 

The customer acknowledges and agrees that: 

(a) these Terms and Conditions give rise to a security interest and constitute a security agreement for the purposes of the Personal Property 

Securities Act 2009; and 

(b) the security interest is taken in all Goods previously supplied by Alba to the customer (if any) and all Goods that will be supplied in the future by Alba to the customer during the continuance of the parties' relationship. 

 

10.2 Undertaking

 

The customer undertakes to: 

(a) sign any further documents and/or provide any further information, such information to be complete, accurate and up-to-date in all respects, which Alba may reasonably require to register a financing statement on the Personal Property Securities Register; 

(b) reimburse Alba for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register;

(c) give Alba not less than 14 days' prior written notice of any proposed change in the customer’s name and/or any other change in the customer’s details.

 

10.3 Verification Statement

 

The customer waives any rights to receive notice of any verification statement issued under the Personal Properties Securities Act.