1. Definitions

In these Terms:

 

“Labelnames” means Pemberley House Pty Ltd (ACN 164 041 641) trading as Labelnames (ABN 71 164 041 641).

“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended.

“Agreement” means any agreement for the provision of goods or services by Labelnames to the Customer.

“Artwork” means drawings, sketches, paintings, photographs, designs, type settings, models, negatives, positives, blocks, engraving, stencils, discs, tapes, literary works, dyes and all other materials or media.

“consumer” is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Agreement.

“Customer” means the person, jointly and severally if more than one, acquiring goods or services from Labelnames.

“Goods” means goods supplied by Labelnames to the Customer.

“GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended.

“PPSA” means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended.

“Services” means services supplied by Labelnames to the Customer, including but not limited to print, image, labelling and design and

“Terms” means these Terms and Conditions of Trade.

 

  1. Basis of Agreement

 

2.1 Unless otherwise agreed by Labelnames in writing, the Terms apply exclusively to every Agreement and cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of purchase (if any).

2.2 Any quotation provided by Labelnames to the Customer for the proposed supply of goods or services is:

(a) valid for 30 days,

(b) an invitation to treat only, and

(c) only valid if in writing.

2.3 The Terms may include additional terms in Labelnames’ quotation, which are not inconsistent with the Terms.

2.4 An Agreement is accepted by Labelnames when Labelnames accepts, in writing or electronic means, an offer from the Customer or provides the Customer with the goods or services.

2.5 Labelnames has absolute discretion to refuse to accept any offer.

2.6 The Customer must provide Labelnames with its specific requirements, if any, in relation to the goods and services.

2.7 The Customer must comply with Labelname’s requirements for all Artwork which the Customer provides to Labelnames in order for Labelnames to supply the goods and perform the services.

2.8 Labelnames may vary or amend these Terms by written notice to the Customer at any time. Any variations or amendments will apply to orders placed after the notice date.

 

  1. Pricing

 

3.1 Prices quoted for the supply of goods and services include GST and any other taxes or duties imposed on

or in relation to the goods and services.

3.2 If the Customer requests any variation to the Agreement, Labelnames may increase the price to account for the variation.

3.3 If the Customer requests changes to Artwork as it previously specified pursuant to clause 2.6, then Labelnames may vary its price to take into account the changes, including but not limited to costs associated with:

(a) additional work performed at the Customer’s request,

(b) additional work required to be done as a result of the Customer’s corrections, including Reformatting, and

(c) changing or correcting any plates, film, Artwork or document including computer files supplied by the Customer.

3.4 Where there is any change in the costs incurred by Labelnames in relation to goods or services, Labelnames may vary its price to take account of any such change, by notifying the Customer.

 

  1. Payment

 

4.1 Unless otherwise agreed in writing:

(a) Subject to 4.1(b), full payment for the goods or services must be made within 30 days of the date of Labelnames’ invoice.

(b) Labelnames reserves the right to require payment in full on delivery of the goods or completion of the services.

4.2 Payment by cheque is not deemed made until the proceeds of the cheque have cleared.

4.3 Payment terms may be revoked or amended at Labelnames’ sole discretion immediately upon giving the Customer written notice.

4.4 The time for payment is of the essence.

 

  1. Payment Default

 

5.1 If the Customer defaults in payment by the due date of any amount payable to Labelnames, then all money which would become payable by the Customer to Labelnames at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Labelnames may, without prejudice to any of its other accrued or contingent rights:

(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4% for the period from the due date until the date of payment in full, (b) charge the Customer for, and the Customer must indemnify Labelnames from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any goods,

(c) cease or suspend supply of any further goods or services to the Customer,

(d) by written notice to the Customer, terminate any uncompleted contract with the Customer.

5.2 Clauses 5.1(c) and 5.1(d) may also be relied upon, at Labelnames’ option:

(a) where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally, or

(b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.

 

  1. Passing of Property

 

6.1 Until Labelnames receives full payment in cleared funds for all goods and services supplied by it to the Customer, as well as all other amounts owing to Labelnames by the Customer:

(a) title and property in all goods remain vested in Labelnames and do not pass to the Customer,

(b) the Customer must hold the goods as fiduciary bailee and agent for Labelnames,

(c) the Customer must keep the goods separate from its goods and maintain Labelnames’ labelling and packaging,

(d) the Customer must hold the proceeds of sale of the goods on trust for Labelnames in a separate account with a bank to whom the Customer has not given security however failure to do so will not affect the Customer’s obligation as trustee,

(e) in addition to its rights under the PPSA, Labelnames may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods not the property of Labelnames, and for this purpose the Customer irrevocably licences Labelnames to enter such premises and also indemnifies Labelnames from and against all costs, claims, demands or actions by any party arising from such action.

 

  1. Personal Property Securities Act

 

7.1 Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.

7.2 For the purposes of the PPSA:

(a) terms used in clause 7 that are defined in the PPSA have the same meaning as in the PPSA,

(b) these Terms are a security agreement and Labelnames has a Purchase Money Security Interest in all present and future goods supplied by Labelnames to the Customer and the proceeds of the goods,

(c) the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time, and

(d) the Customer must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by Labelnames on the Personal Property Securities Register.

7.3 The security interest arising under this clause 7 attaches to the goods when the goods are collected or dispatched from Labelnames’ premises and not at any later time.

7.4 Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.

7.5 Labelnames and the Customer agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Terms.

7.6 To the extent permitted by the PPSA, the Customer agrees that:

(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on Labelnames will apply only to the extent that they are mandatory or Labelnames agrees to their application in writing, and

(b) where Labelnames has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.

7.7 The Customer must immediately upon Labelnames’ request:

(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement, and

(b) procure from any person considered by Labelnames to be relevant to its security position such agreements and waivers (including as equivalent to those above) as Labelnames may at any time require.

7.8 Labelnames may allocate amounts received from the Customer in any manner Labelnames determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by Labelnames.

7.9 For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these Terms and any information pertaining to the sale of goods and details of the goods shall be kept confidential at all times. Neither party may disclose any information pertaining to these Terms or the sale of the goods, except as otherwise required by law or that is already in the public domain.

 

  1. Risk and Insurance

 

8.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the goods being delivered to the Customer or taken from Labelnames’ premises.

8.2 Labelnames is under no obligation to insure any property of the Customer in Labelnames’ possession.

8.3 The goods are sold to the Customer on the basis that the Customer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the goods.

8.4 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use or possession of any of the goods sold by Labelnames, unless recoverable from Labelnames on the failure of any statutory guarantee under the ACL.

 

  1. Performance of Agreement

 

9.1 Any period or date for delivery of goods or provision of services stated by Labelnames is an estimate only and not a contractual commitment.

9.2 Labelnames will use its reasonable endeavours to meet any estimated dates for delivery of the goods but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.

9.3 If Labelnames cannot complete the services by any estimated date, it will complete the services within a

reasonable time.

 

  1. Delivery

 

10.1 Subject to clause 10.6, Labelnames will arrange for the delivery of the goods to the Customer.

10.2 The Customer is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the goods to the Customer to the point of delivery.

10.3 Labelnames may make part delivery of goods or provision of services and Labelnames may invoice the Customer for the goods or services provided.

10.4 The Customer indemnifies Labelnames against any loss or damage suffered by Labelnames, its subcontractors or employees as a result of delivery, except where the Customer is a consumer and Labelnames has not used due care and skill.

10.5 If delivery is attempted and is unable to be completed the Customer is deemed to have taken delivery of the goods. The Customer is liable for storage charges payable monthly on demand.

10.6 If agreed that the Customer will collect the goods:

(a) the Customer must collect the goods with 7 days of being advised they are ready,

(b) if the Customer does not collect the goods within this time, the Customer is deemed to have taken delivery of the goods and is liable for storage charges payable monthly on demand.

 

  1. Liability

 

11.1 Except as the Terms specifically state, or as contained in any express warranty provided in relation to the goods or services, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services or any contractual remedy for their failure. Customer must confirm to the Customer’s own satisfaction that goods are suitable before use.

11.2 If the Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer’s rights or remedies against Labelnames for failure of a statutory guarantee under the ACL.

11.3 If the Customer on-supplies the goods to a consumer and:

(a) the goods or services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of Labelnames’ liability to the Customer,

(b) the goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption, payment of any amount required under section 274 of the ACL is the absolute limit of Labelnames’ liability to the Customer, howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Customer or any third party.

11.4 If clause 11.2 or 11.3 do not apply, then other than as stated in the Terms or any written warranty statement Labelnames is not liable to the Customer in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Customer or any third party.

11.5 The Customer is responsible to check and signoff on all proofs and Artwork prior to production of the goods.

11.6 Labelnames will not be liable to the Customer for any damage, loss or destruction however caused to any data stored on discs or Artwork supplied by the Customer to Labelnames, except to the extent of any liability imposed by the ACL.

11.7 Labelnames is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.

11.8 The Customer acknowledges that:

(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Labelnames in relation to the goods or services or their use or application.

(b) it has not made known, either expressly or by implication, to Labelnames any purpose for which it requires the goods or services and it has the sole responsibility of satisfying itself that the goods or services are suitable for the use of the Customer.

11.9 Nothing in the Terms is to be interpreted as excluding, restricting the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or

modified.

 

  1. Sale By Sample

 

12.1 Unless the Customer is a consumer, Labelnames does not guarantee that the goods will correspond with any sample provided. To the extent permitted by law, samples are provided to indicate the general nature of the goods only.

 

  1. Intellectual Property

 

13.1 Subject to clause 13.2:

(a) Labelnames own the intellectual property, including but not limited to any copyright, subsisting in the goods or services, and any Artwork prepared by Labelnames,

(b) Labelnames grants the Customer an irrevocable, royalty free licence to use and exploit any intellectual property in the goods in order to make ordinary and reasonable use of the goods, and

(c) the Customer acknowledges that it has no proprietary interest in any intellectual property subsisting in the goods or services.

13.2 The Customer warrants that it owns, or is licensed to exploit, the intellectual property in any Artwork provided to Labelnames in order for Labelnames to produce the goods or provide the services.

13.3 The Customer hereby indemnifies Labelnames from any loss or damage it suffers, including but not limited to legal fees on an indemnity basis, resulting from any claim for infringement of any intellectual property rights in the material or Artwork provided to Labelnames by the Customer.

13.4 Labelnames will not be responsible for storing any data or Artwork when the goods and services have been completed.

13.5 If the Customer leaves property in Labelnames’ possession once the goods and services have been completed, Labelnames may dispose of or sell the property and retain any proceeds of sale.

 

  1. Cancellation

 

14.1 If Labelnames is unable to deliver or provide the goods or services, then it may cancel the Customer’s order (even if it has been accepted) by written notice to the Customer.

14.2 No purported cancellation or suspension of an order or any part of it by the Customer is binding on Labelnames once the order has been accepted.

14.3 The Customer must pay for overset matter (being matter not used in the production of the goods or performance of the services for which it was intended). The Customer must instruct Labelnames in writing to retain overset matter for future use or to discard the matter immediately. The Customer must notify Labelnames in writing within 2 weeks of delivering the goods or performing the services, in the absence of which Labelnames may dispose of the overset matter.

 

  1. Shortages and Exchanges

 

15.1 Subject to clauses 15.2 and 15.4, Labelnames will not be liable for any shortages, damage or noncompliance with the specifications in the Agreement unless the Customer notifies Labelnames with full details and description within 10 days of delivery otherwise the Customer is deemed to have accepted the goods.

15.2 When any shortages, claim for damaged goods or non-compliance with the Agreement specifications is accepted by Labelnames, Labelnames may, at its option, replace the goods, resupply the goods or services, or refund the price of the goods or services.

15.3 Subject to clause 15.4, Labelnames will not under any circumstances accept goods for return that have been specifically produced, imported or acquired to fulfil the Agreement,

15.4 If the Customer is a consumer, nothing in this clause 15 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.

 

  1. Force Majeure

 

16.1 Labelnames is not liable in any way howsoever arising under the Agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, Labelnames may suspend or terminate the Agreement by written notice to the Customer.

 

  1. Miscellaneous

 

17.1 The law of Victoria from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals

from those Courts.

17.2 Labelnames’ failure to enforce any of these Terms shall not be construed as a waiver of any of Labelnames’ rights.

17.3 If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term

must be severed from the Terms, without affecting the enforceability of the remaining terms.

17.4 A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by prepaid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful.

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