TERMS AND CONDITIONS OF SALE
PRISMATIC INKS PTY LTD
ABN 68 144 712 613
1. INTRODUCTION
1.1 Application of these Terms and Conditions
These Conditions of Sale constitute a complete and exclusive statement of the agreement and understanding between Prismatic Inks Pty Ltd (herein referred to as Prismatic Inks) and the Buyer with respect to the subject matter hereof and override any conditions to the contrary which may be expressed in any of the Buyer’s Purchase or Order Forms or other documents and supersede all prior arrangements between the parties either written, oral or established through a course of dealings. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any terms used herein.
These Conditions of Sale cannot be varied except in writing signed by a duly authorised officer of Prismatic Inks.
1.2 General and Definitions
In these Terms and Conditions, unless the context otherwise requires: (a) the singular includes the plural and vice versa; (b) 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. PPSA refers to the personal Property and Securities Act 2009.
1.3 Headings
In these Terms and Conditions, headings are for convenient reference only and do not affect interpretation.
2. QUOTES AND PRICING
2.1 Prismatic Inks to supply quote
Prismatic Inks may if, requested by the Buyer supply a quote specifying: (a) the work required to be done in order to fulfil the Buyer’s instructions and/or (b) an estimate of Prismatic Inks’s charge for the performance of such work and/or (c) a price to supply a specified product.
2.2 Acceptance by the Buyer
Where Prismatic Inks has given the Buyer a Quote: (a) Prismatic Inks need not commence work until the Quote has been accepted by the Buyer (b) The buyer may accept the Quote by issuing a work order with a reference number (orally or in writing) to Prismatic Inks to commence work (c) Acceptance of the quote will constitute acceptance of these Terms and Conditions.
2.3 Quote evidence of instructions
If a written Quote is accepted by the Buyer, the work the subject of the quote shall be carried out and/or the product supplied, the Buyer shall pay for the work in accordance with the within Terms and Conditions.
2.4 Price variation
Unless “fixed and firm” prices are supplied in the written quotation, Prismatic Inks may amend any quotation before the Order has been completed to take into account any rise or fall in the cost of performing the Order and Prismatic Inks shall notify the Buyer of such amendment as soon as practicable thereafter. Upon Prismatic Inks giving the Buyer notification of such amendment the new quotation shall be deemed to be the Estimate for the purposes of these Terms and Conditions.
2.5 Repeat Orders
Unless “fixed and firm” prices are supplied in the written quotation the price of goods offered for sale by Prismatic Inks is subject to alteration without notice. Orders will be supplied at the price ruling at the date of delivery. Stamp duty, government charges of any kind and Goods and Services Tax is all for the Buyer’s account in addition to the quoted price.
3. CHARGES
3.1 Invoice
When the Order has been completed, Prismatic Inks will issue an invoice to the Buyer for the amount of the quote or, if no quote was made, for an amount representing Prismatic Inks’s “List Price” for the product supplied and for any of the other charges specified in clause 3.2.
3.2 Additional Charges
In addition to the amount of the quote or where no quote was given, in addition to the amount representing Prismatic Inks’s charge for the work done, Prismatic Inks may charge to the Buyer: (a) fees for additional work required to be done as a result of the Buyer changing his, her or its instructions; (b) fees and other charges for work required to be done urgently, including any overtime costs or express freight charges; (c) fees for handling or storing material or equipment supplied by the Buyer for the purposes of the Order; (d) freight costs and charges unless otherwise specified in the quotation; (e) other charges, fees or disbursements referred to in these Terms and Conditions and not specified in this clause;
4. DELIVERY
4.1 Quality
The goods delivered under this Agreement shall be of normal Industrial quality unless herein specifically stated to the contrary. Any description of such goods has been given by way of identification only and the giving or use of such description shall not constitute any sale hereunder.
4.2 Rejection
Subject to clause 7.1, the Buyer shall Inspect the goods immediately upon the arrival thereof and shall within seven (7) days therefrom give notice to Prismatic Inks of any matter or thing by reason thereof that the Buyer alleges is not in accordance with the contract. If the Buyer shall fail to give such notice, the goods shall be deemed to be in all respects in accordance with the contract and the Buyer shall be bound to pay for the same accordingly, No claim shall be recognised unless made in writing and received by Prismatic Inks within seven (7) days after receipt of goods by the Buyer. The total amount of any claim shall not exceed the actual invoice value of the goods claimed to be faulty.
4.3 Risk
Notwithstanding subclause 6.1, risk passes to the Buyer upon delivery to the Buyer’s warehouse or to an agreed delivery point. The Buyer shall at it’s own expense insure the goods against storm and tempest, loss or damage by fire, accident or malicious or negligent damage or otherwise howsoever and shall keep such insurance on foot until payment for the goods has been made to Prismatic Inks.
5. PAYMENT AND DEFAULT
a) The terms of payment are net cash 30 days from month end following invoice date unless otherwise agreed to by Prismatic Inks.
b) Prismatic Inks reserves the right to charge interest on any overdue amount at a rate equal to the Commonwealth bankof Australia 90 days bank bill rate plus 2% per annum from the due date until payment is made.
c) If: (i) the Buyer defaults on any payment or is unable or states that it is unable to pay its debts as and when they fall due; (ii) the Buyer being an individual commits an act of bankruptcy or has a controller or trustee appointed in respect of the Buyer’s estate or any part of the Buyer’s property or assets (iii) the Buyer being a company passes a resolution for its winding up or enters into liquidation or has an application for winding up filed against it; (iv) a receiver, receiver and manager, controller or voluntary administrator is appointed over any part of the property or assets of the Buyer; or (v) the Buyer experiences any analogous event having substantially similar effect to any of the events specified above, then Prismatic Inks may, at its option, withhold further deliveries or cancel any order without notice to the Buyer and without prejudice to any other action or remedy which Prismatic Inks has or might otherwise have under this contract. In such circumstances, all monies owing and outstanding tyo Prismatic Inks or any invoice and irrespective or whether the due date on any invoice has occurred or passed shall become immediately due and payable and additionally, Prismatic Inks reserves the right to recover the outstanding monies owed to Prismatic Inks pursuant to this clause 5(c).
d) Notwithstanding clause 5(a) Prismatic Inks may at all times in its sole and unfettered discretion alter or terminate the Buyer’s credit limit or payment terms without notice. Without limiting the generality of the foregoing, the decision of Prismatic Inks shall be final and Prismatic Inks accepts no liability or responsibility for any loss (including consequential loss), howsoever arising, incurred by the Buyer due to the operation of this condition.
6. RISK AND RETENTION OF TITLE
a) Unless otherwise agreed in writing all risk in and to the goods purchased shall pass to the Buyer
(i) When the goods are collected from Prismatic Inks’s warehouse if the Buyer books the freight company
(ii) When the goods are delivered to the buyer’s warehouse if Prismatic Inks books the freight.
Legal and equitable title in and to the goods shall not pass to the buyer until payment in full for all the goods is made
b) Until such time as the PPSA comes into full force and effect (PPSA enforcement date) retention of title in the goods by Prismatic Inks shall be governed by clause 6.1(c) and clauses 6.1(d), (e), (f), 9,10,11,12 and 13 shall have no effect.
c) Until full payment in cleared funds is received by Prismatic Inks for all goods supplied by it to the Buyer as well as all other amounts owing to Prismatic Inks under any other contract
(i) legal title and property in the goods supplied under this contract remains vested in Prismatic Inks and does not pass to the buyer;
(ii) The Buyer holds the goods as bailee for Prismatic Inks;
(iii) The Buyer nust maintain the labelling and packaging of the goods so that they are readily identifiable as the property of Prismatic Inks, however failure to comply with these requirements will not affect Prismatic Inks’s title to the goods
(iv) The buyer must not sell the goods except in the ordinary course of the Buyer’s business
(v) The buyer holds and agrees to hold the proceeds of any sale of the goods on trust for Prismatic Inks in a separate account into which no other monies must be paid, however failure to deposit the proceeds of sale into a separate account or to keep those monies separate will not affect the Buyer’s obligation to deal with the proceeds as “trustee of the proceeds” for Prismatic Inks. The proceeds of the sale of goods supplied will be held on trust for Prismatic Inks until actual payment of the proceeds is made to Prismatic Inks
(vi) Prismatic Inks may, without notice, enter into any premises where it suspects the goods may be located and remove them without commiting a trespass, even though they may have been attached to other goods or land not the property of Prismatic Inks and for this purpose the Buyer irrevocably licenses Prismatic Inks to enter such premises and also indemnifies Prismatic Inks from and against all loss suffered or incurred by Prismatic Inks.
d) Prismatic Inks’s rights under this clause 6 secure: (i) Prismatic Inks’s right to receive the price of the goods and (ii) all other amounts owing to Prismatic Inks under any other
contract
e) All payments received from the Buyer must be applied by Prismatic Inks in accordance with section 14(6)(c) of the PPSA
f) Until full payment in cleared funds is received by Prismatic Inks for all goods supplied to it by the Buyer as well as other amounts owing to Prismatic Inks under any other contract, (i) legal title and property in all goods supplied undder this contract remains vested in Prismatic Inks and does not pass to the Buyer;
(ii) subject to (iii), the Buyer shall store the goods separately and in such a manner that they are clearly identified as the property of Prismatic Inks and ensure that the goods are properly stored, protected, readily identifiable and insured;
(iii) the Buyer must not sell the goods except in the ordinary course of business
(iv) the Buyer holds and agrees to hold the proceeds of any sale, lease or other dealing of the goods for Prismatic Inks in a separate bank account with a bank to which the buyer has not given any security;
(v) In addition to any rights Prismatic Inks may have under chapter 4 of the PPSA,
Prismatic Inks shall be entitled at any time until title in and to the goods passes to the Buyer to demand the return of the goods and shall be entitled without notice to the Buyer and without liability to the Buyer to enter any premises occupied by the Buyer (or any other premises where the Buyer is holding the Goods) in order to search for and remove the Goods and for this purpose the Buyer irrevocably license Prismatic Inks to enter such premises and also indemnifies Prismatic Inks from and against all loss suffered or incurred by Prismatic Inks as a result of exercising its rights under this clause. If there is inconsistency between Prismatic Inks’s rights under this clause 6(d)(v) and its rights under Chapter 4 of the PPSA, this clause 6(d)(v) prevails; (vi) the Buyer acknowledges and warrants that Prismatic Inks has a security interest (for the purpose of the PPSA) in the Goods and any proceeds described in sub-clause 6(d)(iv) until title passes to the Buyer in accordance with this clause 6. The Buyer must do anything reasonably required by Prismatic Inks to enable Prismatic Inks to register its security interest, with the priority that Prismatic Inks requires and to maintain that registration; and (vii) the security interest arising under this clause 6 attaches to the goods when the Buyer obtains possession of the goods and the parties confirm that they have not agreed that any security interest arising under this clause 6 attaches at any later time. If title in and to the Goods has not passed to the Buyer in accordance with this clause 6, the Buyer’s implied right to sell the Goods shall immediately terminate upon the happening of any of the events stipulated in clause 5(C) (i)-(v).
6.2 General Lien
Prismatic Inks shall, in respect of all sums owed by the Buyer to Prismatic Inks hereunder, have a general lien on all property of the Buyer in Prismatic Inks’s possession and may, after 14 days’ notice to the Buyer, 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 Buyer’s property held by Prismatic Inks as aforesaid enjoys copyright protection in favour of the Buyer the Buyer hereby grants to Prismatic Inks a licence to exercise the rights conferred on Prismatic Inks under this clause.
7. LIABILITY
7.1 Samples
If Prismatic Inks submits to the Buyer a sample of the Goods, Prismatic Inks will not be responsible for any errors in the Goods which appeared in the sample and which were not corrected or not observed by the Buyer during it’s use of the Goods.
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 Buyer in relation to the provision of the Goods or of services which cannot be excluded, restricted or modified by agreement (“Non-excludable Rights”). To the extent permitted by law, the liability of Prismatic Inks for a breach of a Non-excludable Right is limited, at Prismatic Inks’s option, to the supply of the Goods and/or any services again or payment of the cost of having the Goods and/or any services supplied again.
7.3 Disclaimer of Liability
Prismatic Inks disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Buyer, by statute, the common law, equity, trade, custom or usage or otherwise other than any Non-excludable Rights: (a) Prismatic Inks shall be under no liability to the Buyer for any loss (Including but not limited to loss of profits and consequential loss) or for damage to persons or property or for death or injury caused by any act or omission (Including negligent acts or omissions) of Prismatic Inks or Prismatic Inks’s agents (b) The Buyer shall indemnify Prismatic Inks against any claims made against Prismatic Inks by any third party in respect of any such loss, damage, death or injury as in sub paragraph (a) hereof, the Buyer further agrees to Indemnify Prismatic Inks against all losses and expenses which Prismatic Inks may suffer or incur due to the failure of the Buyer fully to observe it’s obligations under this contract; and (c) No warranty is given and no responsibility is accepted by Prismatic Inks to ensure that goods supplied comply with any statutory requirements relating to the marketing of goods. Compliance with such legislation shall be the sole responsibility of the Buyer.
7.4 Indirect losses
Notwithstanding any other provision of these Terms and Conditions, Prismatic Inks is in no circumstance (whatever the cause) liable in contract for, (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Buyer 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 Prismatic Inks’s failure to complete or delay in completing the Order or to deliver the Goods.
7.5 Buyer’s property
Prismatic Inks will not be liable for the damage, loss or destruction of any property of the Buyer in Prismatic Inks’s possession unless the loss or damage is due to the failure of Prismatic Inks to exercise due care and skill in handling or storing the property.
7.6 Consequential Loss
The Buyer assumes all risks and liabilities for consequences arising from the use of the goods whether singly or in combination with other goods and Indemnifies Prismatic Inks in respect of any such use. Prismatic Inks is not liable for any infringement of patent rights arising out of the use of such goods by the Buyer or the Buyer’s instructions, express or implied. It is the responsibility of the Buyer to ensure that the goods when used by him are not damaged and no liability will be accepted by Prismatic Inks for the consequences of the use of damaged goods by the Buyer.
7.7 Force Majeure
Prismatic Inks shall not be responsible for non-delivery or delay in delivery of any goods caused directly or indirectly by force majeure, including but not limited to war, threats of war or warlike conditions, hostilities, civil commotion, riots, fire, flood, strikes, lockouts, accidental breakdown or mechanical failure of plant, machinery or equipment, delays in transportation, the Buyer’s Instructions or lack thereof, default on the part of Prismatic Inks’s manufacturer or supplier, acts of government or any other cause whatsoever beyond Prismatic Inks’s reasonable control, notwithstanding that any such cause may be operative at the time of entering into the contract. Goods not so delivered and goods so delayed may at the option of Prismatic Inks be delivered at any subsequent time or times and shall be accepted or paid for by the Buyer.
8. GENERAL MATTERS
8.1 Acceptance of conditions of sale
Acceptance of a Credit Account with Prismatic Inks or acceptance of this Contract by the Buyer constitutes the Buyer’s acceptance of these Conditions of Sale and in the absence of acknowledgment, the delivery of the goods and acceptance of such delivery by the Buyer shall constitute a binding contract comprised of these terms and conditions.
8.2 Governing Law
This contract shall be governed by and construed in accordance with the law in effect in New South Wales and the parties hereto accept the jurisdiction of the courts of New South
Wales in relation to any dispute between them
8.4 Material supplied by Buyer
If Prismatic Inks and the Buyer agree that the Buyer is responsible for supplying materials or equipment for the purposes of the Order: (a) The Buyer must supply sufficient quantities of materials to allow for spoilage, such quantity to be specified by Prismatic Inks. (b) Prismatic Inks will not normally count or check the materials and if requested by the Buyer to do so, may charge for counting or checking. (c) Prismatic Inks 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 Buyer. (d) Property in any materials supplied by the Buyer and incorporated into the Goods passes to Prismatic Inks at the time of incorporation.
8.5 Property left with Prismatic Inks
If the Buyer leaves property in Prismatic Inks’s possession without specific instructions as to what is to be done with it, Prismatic Inks 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.
8.6 Responsibility to insure
Prismatic Inks has no obligation to insure any property of the Buyer in Prismatic Inks’s possession. The Buyer must pay the cost of any insurance arranged by Prismatic Inks at the request of the Buyer.
8.7 Ancillary materials
Unless Prismatic Inks and Buyer agree otherwise, all formulas or data and other material produced by Prismatic Inks 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 Prismatic Inks.
8.8 Packaging
Used Containers will not be accepted for return unless specifically agreed in writing by Prismatic Inks.
8.9 Pallets
Any pallets used for delivery of goods are to be exchanged at such time for like pallets. If exchange pallets are not available then the Buyer shall unload the goods from the delivery pallets without delay in order that these pallets may return to Prismatic Inks’s store with the carrier.
9. CONFIDENTIALITY
Subject to section 275(7) of the PPS Act, neither party will disclose information of the kind mentioned in section 275(1) of the PPSA
10. ENFORCEMENT OF SECURITY INTEREST
If chapter 4 of thr PPSA would otherwise apply to the enforcement of the security interest created under this contract, the Buyer agrees thyat the following provisions of the PPSA will not apply:
i)Section 95 (notice of removal of accession), to the extent that it requires Prismatic Inks to give a notice to the Buyer
ii)section 121(4) (enforcement of liquid assests – notice to Grantor);
iii)section 130 (notice of disposal), to the extent that it requires Prismatic Inks to give a notice to the Buyer
iv)paragraph 132(3)(d) (contents of statement of account after disposal);
v)subsection 132(4) (statement of account if no disposal)
vi)section135 (notice of retention)
vii)section 142 (redemption of collateral); and
viii)section143 (reinstatement of security agreement)
11. NOTICES UNDER THE PPS ACT
Prismatic Inks does not need to give the Buyer any notice under the PPSA (including a notice of verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.
12. CONSIGNMENT STOCK
Title to and risk in consignment stock at the Buyer’s premises will pass in the same manner as title toand riskinthe Goods as provided in clause 6 above. Payment for consignment stock is due thirty (30) days after the end of the month in which the consignment stock is used by the Buyer. The Buyer must take all possible precautions to ensure that no deterioration occurs in consignment stock and will inform Prismatic Inks in writing immediately should it so occur.
13. FURTHER ASSURANCES
If at any time:
i)Prismatic Inks determines that the PPSA applies, or will at a future date apply, to this contract or any of the transactions contemplated inthis contract; and
ii)In the reasonable opinion of Prismatic Inks, the PPS Law adversely affects or would adversely affect the securtity position, or the rights of Prismatic Inks under or in connection with this contract or the goods or compliance with such PPS law is necessary or advisable for Prismatic Inks to maintain a first priority perfected security interest in the Goods or any other personal property of the Buyer under applicable law, then the buyer must, upon Prismatic’s request, cause this contract and/or the security interest or ownership interests created under this contract, to be registered with the applicable registry in accordance with and to the extent possible under such PPS Law and must cause all other filings and recordings necessary or advisable under such PPS Law and all such other action (including amending this contract) required under such PPS Law to be effected and taken, in order to maintain, protect and perfect the respective right, title and interests of Prismatic Inks thereunder. All costs and expenses arising as a result of actions taken pursuant to this clause 13 will be for the account of the Buyer.