Version 1 / April 2021
HVG GRAPHICS PTY LTD
ACN 649 379 635 – ABN 75 649
379 635
TERMS & CONDITIONS OF
TRADE
1. Application of Terms &
Conditions of Trade
1.1.
These terms & conditions of trade replace in their entirety any previous
terms & conditions of trade published, issued or used by HVG Graphics Pty
Ltd.
1.2.
These terms & conditions of trade apply to, form a part of and govern all
Agreements.
1.3.
The Purchaser acknowledges that its acceptance of these terms & conditions
of trade was a condition of HVG Graphics Pty Ltd entering into each Agreement
with the Purchaser and agreeing to supply Goods to the Purchaser.
1.4.
Any Agreement may be varied only with HVG Graphics Pty Ltd’s prior written
consent and upon the provision of written notice to the Purchaser.
1.5.
If the Purchaser does not agree to the variations proposed by HVG Graphics Pty
Ltd, they must notify HVG Graphics Pty Ltd within fourteen (14) days from the
date of the notice, that the variations are not agreed to. HVG Graphics Pty Ltd
and/or the Purchaser will then be at liberty to suspend or withdraw credit
facilities if not agreement can be reached between the parties regarding the
proposed variations. Absent notice from the Purchaser, the varied terms and
conditions of trade may be deemed accepted. Clerical errors (such as spelling
mistakes or grammatical errors) may be subject to correct without notification.
1.6.
The Purchaser must check all invoices and advise HVG Graphics Pty Ltd of any
errors or omissions before the due date of the invoice. Failing advice from the
Purchaser that the invoice contains errors or omissions, the invoice may be
deemed accepted by HVG Graphics Pty Ltd.
1.7.
Should the Purchaser not pay for the Goods supplied by HVG Graphics Pty Ltd in
accordance with the credit terms as provided herein, or as agreed in writing by
HVG Graphics Pty Ltd and the Purchaser from time to time, after issuing a
written demand to the Purchaser demanding payment within fourteen (14) days,
HVG Graphics Pty Ltd will be entitled to charge an administration fee of 10
percent of the amount of the invoice payable.
1.8.
Any order or offer made by any Purchaser: 1.8.1. Shall not be binding on HVG
Graphics Pty Ltd until confirmed by HVG Graphics Pty Ltd in writing or in such
other manner as HVG Graphics Pty Ltd in its sole discretion determines; and
1.8.2. Is subject to the
availability of the subject Goods.
1.9. A tender or quotation
submitted by HVG Graphics Pty Ltd may at any time prior to acceptance of an
offer by HVG Graphics Pty Ltd in respect of the supply of Goods and/or services
be varied or withdrawn by HVG Graphics Pty Ltd. Clerical, typing or other
errors made in, or in respect of, any tender or quotation shall be subject to
correction by HVG Graphics Pty Ltd and the corrected tender of quotation shall
apply.
1.10. Subject to clause 1.9 a
quotation or tender submitted by HVG Graphics Pty Ltd shall remain valid for 30
days from the date of such quotation or tender.
1.11. Terms and conditions
submitted by a Purchaser with a purchase order or otherwise do not form part of
an Agreement unless expressly agreed in writing by HVG Graphics Pty Ltd. The
Purchaser acknowledges and agrees that as a result of the benefit of the credit
being supplied by HVG Graphics Pty Ltd these terms & conditions of trade
will prevail over the Purchaser’s terms and conditions (if any).
1.12. The acceptance by a
Purchaser of the supply by HVG Graphics Pty Ltd of Goods and/or services shall
constitute acceptance by the Purchaser of the supply by HVG Graphics Pty Ltd of
such Goods and/or services solely on these terms & conditions of trade.
2. Price
2.1.
The prices quoted by HVG Graphics Pty Ltd for the supply of Goods and/or
services exclude GST and any relevant duties unless expressly stated otherwise
by HVG Graphics Pty Ltd. All GST, other taxes and/or charges imposed and/or
levied by or payable to any government or governmental authority upon or with
respect to any Agreement, the Goods or other material described in any
Agreement or the purchase price payable, shall be for the account of the
Purchaser and shall be payable at the same time as the invoice from HVG
Graphics Pty Ltd to which they relate.
2.2.
Any additions or increases in the cost of the supply of Goods and/or services
as a result of any additions or increases in charges, duties, taxes (including
the rate of GST) or costs associated with manufacture or supply of goods and/or
services by HVG Graphics Pty Ltd, including without limitation increases due to
variations in exchange rates, the cost of transport or shipping, the cost of
materials or labour and/or the cost of conforming with any relevant
legislation, court orders, regulations or bylaws, between the date of HVG
Graphics Pty Ltd’s acceptance of the Purchaser’s order and the date of supply
of the relevant Goods and/or services shall be borne by the Purchaser, even if
the Goods are sold on terms such as delivered or duty paid terms.
2.3.
Unless otherwise stipulated, all references to dollars are references to the
lawful currency of Australia (Australian dollars)
2.4.
If any amount payable to HVG Graphics Pty Ltd by the Purchaser is stated in a
currency other than Australian dollars and due to direction or action of any
government or governmental agency the rate(s) of exchange changes such that
there is a reduction in the Australian dollar equivalent to be received by HVG
Graphics Pty Ltd in the currency other than Australian dollars, then HVG
Graphics Pty Ltd may by notice in writing cancel the relevant Agreement or
require the Purchaser to wholly compensate and indemnify HVG Graphics Pty Ltd
in respect of such reduction.
2.5.
It is acknowledged by the Purchaser that all communications and correspondence
by whatever means, whether orally or in writing, by HVG Graphics Pty Ltd
quoting prices of Goods are indicative only unless such communication or
correspondence expressly states: 2.5.1. That it is a firm offer; and
2.5.2.
That the offer has an expiry date; and
2.5.3. uses the words “This
offer is subject to unilateral communicated acceptance within the validity
period.”
3. Trade Credit Insurance
3.1.
All Agreements or other transactions conducted where physical delivery of Goods
subject thereof is made or proposed to be made prior to HVG Graphics Pty Ltd
being paid in full and in cleared funds in respect of such Goods shall be
subject to this clause 3.
3.2.
HVG Graphics Pty Ltd may require the existence of a current and subsisting
policy of trade credit insurance issued by QBE Insurance (Australia) Ltd in
favour of HVG Graphics Pty Ltd covering the full amount and subject matter of
any Agreement(s) or transaction(s) between HVG Graphics Pty Ltd and the
Purchaser.
3.3.
HVG Graphics Pty Ltd may suspend from time to time some or all its obligations
under these terms & conditions of trade or any Agreement with the
Purchaser, including delivery of ordered Goods or offering further credit, in
circumstances where no policy of trade credit insurance as described in clause
3.2 subsists. The non-performance of obligations suspended by HVG Graphics Pty
Ltd is not a breach of these terms & conditions of trade or any Agreement
and the Purchaser remains bound by its obligations to HVG Graphics Pty Ltd.
3.4.
In order to accommodate increases in the value of trade between HVG Graphics
Pty Ltd and the Purchaser, the parties will use their best endeavours to obtain
an increase in the maximum sum insured under any policy of trade credit
insurance referred to in clause 3.2 (the credit limit) as may be
required from time to time.
3.5. In the event that any
Agreement or transaction is entered into (subsequent order(s)) which
would cause the total amount owing by the Purchaser to HVG Graphics Pty Ltd to
be in excess of the credit limit and an increase of the credit limit cannot be
obtained prior to the credit limit being exceeded, the Purchaser must make
payment to HVG Graphics Pty Ltd of such earlier invoiced amounts as to ensure
that any and all subsequent orders would not cause the total amount owing by
the Purchaser to HVG Graphics Pty Ltd to be in excess of the credit limit.
4. Orders and Payment.
4.1.
Unless otherwise agreed between the parties once an order made by the Purchaser
has been confirmed by HVG Graphics Pty Ltd, it cannot be cancelled or modified
without HVG Graphics Pty Ltd’s prior written consent.
4.2.
In the event of a cancellation in accordance with clause 4.1, the Purchaser
shall reimburse HVG Graphics Pty Ltd for all costs, loss of profits and
expenses incurred by HVG Graphics Pty Ltd as a result of the cancellation
whether such expenses were incurred before or after the date of cancellation.
4.3.
The Purchaser shall be invoiced when the Purchaser is notified that the Goods
are available for despatch or as HVG Graphics Pty Ltd in its discretion
otherwise considers acceptable or as agreed between the parties,
4.4.
All invoices shall be due and payable within 30 days from the end of the month
of invoice, or as agreed between the parties at time in which the invoice was
issued.
4.5.
The Purchaser shall not (nor shall it be entitled to) set off or deduct from
any amount payable to HVG Graphics Pty Ltd under any Agreement any amount(s)
disputed by the Purchaser or any amount(s) owing or alleged to be owing by HVG
Graphics Pty Ltd to the Purchaser on any account whatsoever. Any reasonable
requests to set off, deduct or withhold from accounts outstanding will be
considered by HVG Graphics Pty Ltd, provided that reasonable evidence is
provided to HVG Graphics Pty Ltd as to why the Purchaser is entitled to the set
off, deduction or to without from amounts outstanding.
4.6.
Interest is payable to HVG Graphics Pty Ltd by the Purchaser on any amount
outstanding from time to time after the due date for payment at the rate of 2
percent per annum above the National Australia Bank Limited, Business Lending
Base Rate, as current from time to time.(consider changing this to a flat rate)
Until all monies due to HVG Graphics Pty Ltd by the Purchaser on any account
whatsoever are paid in full and title to the Goods passes to the Purchaser in
accordance with these terms & conditions of trade, the Purchaser agrees
that: 4.6.1. the Goods shall be held by the Purchaser in a fiduciary capacity
as bailee for and on behalf of HVG Graphics Pty Ltd;
4.6.2.
the Purchaser irrevocably gives HVG Graphics Pty Ltd and its agent(s) the
right, without notice, to enter the premises of the Purchaser at any time for
the purpose of inspecting, removing or taking possession of the Goods or any
part of the Goods;
4.6.3.
if HVG Graphics Pty Ltd enters the Purchaser's premises pursuant to clause
4.7.2 HVG Graphics Pty Ltd and its agent(s) shall be entitled to use all
reasonable force to gain access to the premises and shall not be liable for any
damage or loss occasioned to the Purchaser or its premises and the Purchaser
shall indemnify HVG Graphics Pty Ltd and its agent(s) against any loss or
damage suffered by any person, HVG Graphics Pty Ltd or its agent(s) arising
from such repossession;
4.6.4.
the Purchaser shall store the Goods separately from goods owned by the
Purchaser and shall identify them as Goods of HVG Graphics Pty Ltd;
4.6.5. if the Goods or any part
of them have been on-sold by the Purchaser prior to all monies due to HVG
Graphics Pty Ltd having been paid then the proceeds or debtors of the Purchaser
arising from such on-sales shall be the property of HVG Graphics Pty Ltd and
shall be held on a fiduciary basis and retained in a separate account payable
to HVG Graphics Pty Ltd on demand.
4.7. Where any payment is to be
made by letter of credit, the Purchaser shall establish an irrevocable
authority and confirmed letter of credit with a bank satisfactory to HVG
Graphics Pty Ltd. The letter of credit shall be in a form and upon terms satisfactory
to HVG Graphics Pty Ltd, shall be in favour of HVG Graphics Pty Ltd, and shall
provide that all payments be made only to the order of the negotiating bank.
4.8. Any letter of credit shall
refer to the relevant Agreement or HVG Graphics Pty Ltd’s invoice by number and
authorise reimbursement to HVG Graphics Pty Ltd for the amount thereof together
with any amounts (if any) as may be advanced by HVG Graphics Pty Ltd in respect
of consular invoices, inspection fees and other expenditures. A letter of credit
shall also provide for partial availments against partial deliveries and shall
be maintained for a period of not less than thirty days after the latest
delivery under the relevant Agreement.
4.9. If any part of an amount
owing to HVG Graphics Pty Ltd is at any one time overdue, then the whole amount
owing to HVG Graphics Pty Ltd at that time is deemed immediately due and
payable.
5. Default and Termination
5.1.
An event of default will have occurred under these terms & conditions of
trade and under any Agreement if: 5.1.1. Any amount is outstanding and due and
payable by the Purchaser to HVG Graphics Pty Ltd but is unpaid;
5.1.2.
The Purchaser fails to take delivery of any Goods in accordance with an
Agreement;
5.1.3.
The Purchaser fails to provide any letter of credit, Bill of Exchange or any
other security required by HVG Graphics Pty Ltd from time to time;
5.1.4.
HVG Graphics Pty Ltd obtains unfavourable reports on the financial standing of
the Purchaser;
5.1.5.
The Purchaser dies or becomes incapacitated, or ceases, or indicates that it is
about to cease, to carry on business;
5.1.6.
The Purchaser fails to perform any of its obligations under these terms &
conditions of trade or any Agreement including failure to pay any amount by its
due date;
5.1.7.
An application is made, or proceedings are initiated or a meeting (whether of
shareholders, creditors or directors) is called with a view to winding the
Purchaser up or placing the Purchaser in any kind of insolvency or other
external administration;
5.1.8.
The Purchaser becomes bankrupt or insolvent, goes into voluntary or compulsory
liquidation or a step is taken to have a receiver, receiver and manager,
provisional liquidator, liquidator or administrator appointed to the Purchaser
or any of its assets; or
5.1.9. Anything happens that
reasonably indicates that there is a significant risk that the Purchaser is or
will become unable to pay debts as they fall due. This includes execution or
distress being levied against any income or assets of the Purchaser; a meeting
of the Purchaser’s creditors being called or held; a step being taken to make
the Purchaser bankrupt; and the Purchaser entering into any type of arrangement
with, or assignment for the benefit of, all or any class of its creditors, or
being subject to a deed of company arrangement.
5.2.
Upon the happening of an event of default, and without notice to the Purchaser:
5.2.1. HVG Graphics Pty Ltd may terminate any Agreement with the Purchaser.
5.2.2.
HVG Graphics Pty Ltd may take steps to recover all outstanding monies,
including engaging a mercantile agency or instituting legal proceedings. The
Purchaser is liable for any costs of taking steps to recover the amount the
costs of a mercantile agency, court costs and legal costs on a full indemnity
basis.
5.2.3.
Interest will apply to recovery costs owing by the Purchaser to HVG Graphics
Pty Ltd at the rate of 2 percent per annum above the National Australia Bank
Limited, Business Lending Base Rate, as current from time to time, from the date
the costs are incurred.
5.2.4.
HVG Graphics Pty Ltd may elect to suspend from time to time some or all its
obligations under these terms & conditions of trade or any Agreement with
the Purchaser, including offering further credit, until full payment is
received by HVG Graphics Pty Ltd. The non-performance of obligations suspended
by HVG Graphics Pty Ltd is not a breach of these terms & conditions of
trade or any Agreement and the Purchaser remains bound by its obligations to
HVG Graphics Pty Ltd.
5.2.5.
HVG Graphics Pty Ltd shall be entitled as a condition of resuming delivery
under any Agreement suspended in accordance with clause 5.2.4 to require
prepayment of such security as it may in its sole discretion require for any
further Agreements or outstanding Agreements, orders or deliveries.
5.2.6.
HVG Graphics Pty Ltd shall be entitled, without prejudice to any of its rights
and remedies, to terminate in whole or in part any Agreement to which the
Purchaser is a party.
5.2.7.
HVG Graphics Pty Ltd may exercise all rights resulting from the failure to pay
money at any later time despite the supply of Goods by HVG Graphics Pty Ltd
after it becomes aware of a failure by the Purchaser to pay money.
5.2.8. The right to terminate an
Agreement may be exercised concurrently with the suspension of obligations by
HVG Graphics Pty Ltd.
5.3. If an Agreement is ended
because of the Purchaser’s default and the Purchaser owes HVG Graphics Pty Ltd
money, the money becomes immediately payable immediately to HVG Graphics Pty
Ltd.
5.4.
The acceptance by HVG Graphics Pty Ltd of any payment from or on behalf of the
Purchaser after the specified due date thereof shall not constitute a waiver of
the Purchaser’s obligations to make further payments.
5.5.
In the event of such of such termination HVG Graphics Pty Ltd shall, after
taking into account payments made by the Purchaser, be entitled to be paid by
the Purchaser for work done and expenditure made under the Agreement up to and
including the date of termination and any direct and indirect loss suffered by
HVG Graphics Pty Ltd including without limitation HVG Graphics Pty Ltd’s loss
of profit on the Agreement and the reasonable legal costs of HVG Graphics Pty
Ltd (on a full indemnity basis) incurred in relation to the termination and any
prior breach and in exercising any rights and remedies as a consequence of the
termination and any prior breach.
5.6. Termination of the
Agreement pursuant to this clause 5 shall be without prejudice to the rights of
HVG Graphics Pty Ltd accruing up to the date of termination.
6. Delivery
6.1. Unless otherwise agreed,
where the Purchaser has nominated an address for delivery, HVG Graphics Pty Ltd
shall deliver the Goods to that nominated address.
6.2.
HVG Graphics Pty Ltd shall not be responsible for unloading Goods at the point
of delivery.
6.3.
Where the Goods are to be delivered to a nominated address HVG Graphics Pty Ltd
shall be deemed to have delivered the goods in accordance with the Agreement if
it obtains a receipt or signed delivery docket for the Goods from any person at
that address.
6.4.
If a nominated address is unattended or if delivery cannot otherwise be
effected or the Goods cannot be despatched due to any act, matter or thing
beyond the control of HVG Graphics Pty Ltd, HVG Graphics Pty Ltd in its
discretion may store the goods at the Purchaser’s risk and expense or take such
other steps as it considers appropriate.
6.5.
HVG Graphics Pty Ltd reserves the right to refuse to supply Goods and/or
services under an Agreement if a Purchaser is in default of any of its payment
obligations under any one or more Agreements.
6.6.
HVG Graphics Pty Ltd reserves the right to choose or vary the means, route and
procedure of delivery, transport and handling of Goods. If the Purchaser
requires a different means, route or procedure, the cost of delivery shall be
borne by the Purchaser notwithstanding any other provision of these terms &
conditions of trade or an Agreement.
6.7.
HVG Graphics Pty Ltd may supply Goods and/or services in instalments and these
terms & conditions of trade shall apply to each and every supply of Goods
and/or services. Each instalment shall be deemed to be sold under a separate
Agreement and shall be paid for separately by the Purchaser. Any default by HVG
Graphics Pty Ltd in respect of any part delivery or instalment shall not
entitle the Purchaser to treat the Agreement as repudiated in regard to the
balance of the Goods delivered under the Agreement or instalments remaining to
be delivered.
6.8.
Any delivery or completion dates stated are estimates only and are not
essential terms of any Agreement. HVG Graphics Pty Ltd shall make all
reasonable efforts to meet any date for supply of Goods and/or services agreed
between HVG Graphics Pty Ltd and the Purchaser. Where a delay to supply Goods
and/or services occurs, in no event shall HVG Graphics Pty Ltd incur any
liability or penalty for failure to supply Goods and/or services by an agreed
time.
6.9.
If the Purchaser fails to take delivery of the Goods and this continues for 60
days or more, HVG Graphics Pty Ltd may resell those Goods. The Purchaser must
pay to HVG Graphics Pty Ltd any difference between the original sale price of
the Goods and the resale price of the Goods after deduction of a restocking fee
of 15 percent of the original sale price of the Goods.
6.10. The prices include the
cost of packing the Goods in accordance with HVG Graphics Pty Ltd’s standard
practice. If the Purchaser requires the Goods to be provided in any other
manner the cost of the packing shall be the responsibility of the Purchaser.
HVG Graphics Pty Ltd shall not be liable for any damage or loss occurring as a
result of goods being packed in accordance with the Purchaser’s instructions.
7. Title and Risk
7.1.
Unless agreed otherwise in writing by the parties, the risk of loss or damage
to Goods shall pass to the Purchaser at the time of dispatch or when the
Purchaser is notified that the Goods are available for dispatch, as the case
may be.
7.2.
Notwithstanding that the Purchaser has possession of the Goods, title to the
Goods remains with HVG Graphics Pty Ltd, and no legal or equitable interest or
property in the Goods whatsoever will pass to the Purchaser, until the full
amount for the Goods has been paid in cleared funds and there is no money owing
by the Purchaser to HVG Graphics Pty Ltd for any other Goods delivered by HVG
Graphics Pty Ltd or on any amount whatsoever.
7.3.
Where the title and property in any particular Goods has not passed, the
Purchaser may nevertheless dispose of these Goods to a bona fide sub-purchaser
provided that such disposals are in the ordinary course of the Purchaser’s
business.
7.4.
It is agreed that by the disposal of such Goods, the Purchaser assigns to HVG
Graphics Pty Ltd (the assignment being absolute and not by way of security) all
monetary proceeds received by or on behalf of the Purchaser in respect to the
Goods and holds such proceeds on trust for the absolute benefit of HVG Graphics
Pty Ltd.
7.5.
The Purchaser must observe the following fiduciary obligations with respect to
any disposal of Goods to a sub-purchaser authorised by this clause 7: 7.5.1.
the Purchaser must maintain records of all disposals of the Goods and must
permit inspection of these records by HVG Graphics Pty Ltd promptly upon request;
and
7.5.2. the Purchaser must hold
the assigned proceeds on trust for HVG Graphics Pty Ltd. The total debts owing
by the Purchaser to HVG Graphics Pty Ltd will be reduced by the proceeds once
such monies are received by HVG Graphics Pty Ltd in cleared funds.
7.6.
The Purchaser must comply with all of the following conditions: 7.6.1. Keep the
Goods in its possession and control.
7.6.2.
Keep the Goods in good repair and condition, excluding fair wear and tear.
7.6.3.
Keep the Goods stored separately and marked so that the Goods are clearly and
easily identifiable as HVG Graphics Pty Ltd’s property and inform HVG Graphics
Pty Ltd of the location of the Goods, if requested.
7.6.4.
Not sell (except in accordance with clauses 7.3, 7.4 and 7.5), assign or let
the Goods or any interest in them, or permit any charge, pledge, lien or other
encumbrance to be created in relation to them.
7.6.5.
Maintain and allow HVG Graphics Pty Ltd to inspect records which do any of the
following: (a) Identify any unpaid Goods owned by HVG Graphics Pty Ltd.
(b)
Detail third parties to whom the Customer sells or otherwise disposes of the
unpaid Goods.
(c) Detail payments made by such
parties for the unpaid Goods.
7.7. The Purchaser indemnifies
HVG Graphics Pty Ltd against any claim, action, damage, loss, liability, cost,
expense that HVG Graphics Pty Ltd suffers, incurs or is liable for in respect
of HVG Graphics Pty Ltd’s exercise of its rights under this clause 7.
8. Insurance
8.1.
The Purchaser must keep the Goods insured for their full insurable value with a
reputable insurer against loss and damage and all other risks for Goods of that
kind from time the risk in the Goods passes to the Purchaser until the time
title in the Goods passes to the Purchaser. The insurance is to be in the name
of the Purchaser with the interest of HVG Graphics Pty Ltd noted thereon.
8.2.
The Purchaser holds the proceeds of that insurance on trust for HVG Graphics
Pty Ltd up to the amount it owes HVG Graphics Pty Ltd in respect of those
Goods, and must keep such proceeds in a separate account until the liability to
HVG Graphics Pty Ltd is discharged and must immediately pay that amount to HVG
Graphics Pty Ltd.
8.3. The Purchaser shall if
requested provide proof of such insurance to HVG Graphics Pty Ltd upon request.
9. PPSA
9.1.
The Purchaser acknowledges that any Agreement and these terms & conditions
of trade constitute a security agreement in favour of HVG Graphics Pty Ltd for
the purposes of section 20 of the PPSA and that a security interest exists in:
9.1.1. Goods (and their proceeds) previously supplied by HVG Graphics Pty Ltd
to the Purchaser (if any)
9.1.2.
All Goods (and their proceeds) to be supplied by HVG Graphics Pty Ltd to the
Purchaser in the future
9.1.3. All of the Purchaser’s
present and after-acquired property in which Goods or materials supplied or
financed by HVG Graphics Pty Ltd have been attached or incorporated.
9.2. The Purchaser acknowledges
that the security interest granted by the Purchaser to HVG Graphics Pty Ltd
pursuant to clauses 4.7 and 7 of these terms & conditions of trade shall
constitute a purchase money security interest as defined in section 14 of the
PPSA.
9.3. Until ownership of the
Goods passes to the Purchaser in accordance with these terms & conditions
of trade, the Purchaser waives its rights under the following provisions of
Chapter 3 of the PPSA: 9.3.1. to receive a notice of intention of removal of an
accession (section 95).
9.4.
Until ownership of the Goods passes to the Purchaser in accordance with these
terms & conditions of trade, the Purchaser waives its rights under the
following provisions of Chapter 4 of the PPSA: 9.4.1. to receive a notice that
HVG Graphics Pty Ltd decides to enforce its security interest in accordance
with land law (section 118);
9.4.2.
to receive a notice on enforcement action against liquid assets (section
121(4));
9.4.3.
to receive a notice of disposal of Goods by HVG Graphics Pty Ltd purchasing the
Goods (section 129);
9.4.4.
to receive a notice to dispose of Goods (section 130);
9.4.5.
to receive a statement of account following disposal of Goods including details
of payment to other creditors (section 132(3)(d));
9.4.6.
to receive a statement of account if no disposal of Goods for each 6-month
period (section 132(4));
9.4.7.
to receive notice of any proposal of HVG Graphics Pty Ltd to retain Products
(section 135);
9.4.8.
to object to any proposal of HVG Graphics Pty Ltd to either retain or dispose
of Goods (section 137(2));
9.4.9.
to redeem the Goods (section 142);
9.4.10. to reinstate the
security agreement (section 143).
9.5. The Purchaser further
agrees that where HVG Graphics Pty Ltd has rights in addition to those under
Part 4 of the PPSA, those rights will continue to apply.
9.6. Until ownership and title
of the Goods passes to the Purchaser in accordance with these terms &
conditions of trade, the Purchaser must not give to HVG Graphics Pty Ltd a
written demand or allow any other person to give HVG Graphics Pty Ltd a written
demand requiring HVG Graphics Pty Ltd to register a financing change statement
under the PPSA or enter into or allow any other person to enter into the
register of personal property securities a financing change statement under the
PPSA.
9.7. The Purchaser acknowledges
that it has received value as at the date of first delivery of the Goods and
has not agreed to postpone the time for attachment of the security interest (as
defined in the PPSA) granted to HVG Graphics Pty Ltd under these terms &
conditions of trade.
9.8. In addition to any other
rights under these terms & conditions of trade or otherwise arising, the
Purchaser irrevocably grants to HVG Graphics Pty Ltd the right, without notice
to the Purchaser, to exercise any and all remedies afforded to it as a Secured
Party under Chapter 4 of the PPSA including, without limitation, entry into any
building or premises owned, occupied or used by the Purchaser, to search for
and seize, dispose of or retain those goods in respect to which the Purchaser
has granted a Security Interest to HVG Graphics Pty Ltd. The Purchaser shall
indemnify HVG Graphics Pty Ltd from any Claims made by any third party as a
result of such exercise.
9.9.
The Purchaser agrees and undertakes to: 9.9.1. sign any further documents,
provide any further information (which information the Purchaser warrants to be
complete, accurate and up-to-date in all respects) and do such further acts
which HVG Graphics Pty Ltd may reasonably require to enable registration of the
security interest granted to HVG Graphics Pty Ltd under these terms &
conditions of trade and/or any Agreement on the Personal Property Securities
Register (“PPSR”);
9.9.2.
give HVG Graphics Pty Ltd not less than 14 days written notice of any proposed
change in the Purchaser’s name and/or any other changes in the Purchaser’s
details (including but not limited to changes in the Purchaser’s address,
facsimile number, email address, trading name or business practice);
9.9.3.
pay all costs incurred by HVG Graphics Pty Ltd in registering and maintaining a
financing statement (including registering a financing change statement) on the
PPSR and/or enforcing or attempting to enforce the security interest created by
these terms & conditions of trade including executing subordination
agreements.
9.9.4. be responsible for the
full costs incurred by HVG Graphics Pty Ltd (including actual legal fees and
disbursements on a solicitor and client basis) in obtaining an order pursuant
to section 182 of the PPSA; and
9.10. The Purchaser waives any
rights it may have under any section of the PPSA listed in section 115(1) of
the PPSA upon enforcement of any security interest by HVG Graphics Pty Ltd.
9.11. Pursuant to section 157 of
the PPSA, unless otherwise agreed to in writing by HVG Graphics Pty Ltd, the
Purchaser waives the right to receive a verification statement.
9.12. The Purchaser agrees that
immediately on request by HVG Graphics Pty Ltd the Purchaser will procure from
any persons considered by HVG Graphics Pty Ltd to be relevant to its security
position such agreement and waivers as HVG Graphics Pty Ltd may at any time
require.
9.13. Pursuant to section 275(6)
of the PPSA, the Purchaser agrees it will not disclose to an interested person
information pertaining to HVG Graphics Pty Ltd’s purchase money security
interest without prior approval of HVG Graphics Pty Ltd.
9.14. This clause 9 will survive
the termination of any Agreement to the extent permitted by law.
10. Intellectual Property
10.1.
The supply of goods or services to the Purchaser does not constitute a transfer
of any intellectual property rights (including but not limited to any patent,
utility model, trade mark, design or copyright) in the Goods or services or any
part thereof and all such rights are to be expressly reserved to the true and
lawful owners. The Purchaser shall not do anything inconsistent with or in
infringement of such intellectual property rights including but not limited to
the decompilation, disassembly and/or re-engineering thereof.
10.2.
HVG Graphics Pty Ltd does not warrant that the supply by it and the use by the
Purchaser of the goods and services does not and will not infringe the
intellectual property rights of any third party whether such rights take the
form of letters patent, registered designs, copyright, trade mark, or any other
similar right.
10.3.
Where HVG Graphics Pty Ltd or its contract manufacturer of the goods or any
part thereof provides the goods or services to the Purchaser’s design and
specifications the Purchaser agrees to indemnify and keep indemnified HVG Graphics
Pty Ltd and its related corporations against all actions, claims, loss,
damages, costs and fines that HVG Graphics Pty Ltd and/or its related
corporations may incur or suffer as a result of a claim by a third party that
the manufacture and sale by HVG Graphics Pty Ltd of the goods or any part
thereof or the provision of the services infringes any intellectual property
right of such third party.
10.4. The Purchaser shall
indemnify HVG Graphics Pty Ltd in respect of any infringement or alleged
infringement of any intellectual property rights and shall be responsible for
all losses, damages and expenses suffered or incurred by HVG Graphics Pty Ltd
as a result of any infringement relating to the subject of any Agreement
between the Purchaser and HVG Graphics Pty Ltd. In case of any dispute and/or
claim arising in connection with any such infringement, HVG Graphics Pty Ltd
reserves the right at its discretion to terminate, and make null and void any
Agreement and to hold the Purchaser responsible for any loss caused
thereafter to HVG Graphics Pty
Ltd.
11. HVG Graphics Pty Ltd’s
Obligations
11.1. Notwithstanding any other
provision of these terms & conditions of trade if the Purchaser breaches a
term of any Agreement HVG Graphics Pty Ltd shall not be bound to perform its
obligations under that Agreement until the breach is remedied by the Purchaser.
12. Force Majeure
12.1.
Should HVG Graphics Pty Ltd be delayed, hindered, or otherwise prevented from
complying with the terms of these terms & conditions of trade or any
Agreement by reason of events or circumstances beyond the reasonable control of
HVG Graphics Pty Ltd including but not limited to Acts of God, wars, riots,
strikes, lockouts, trade disputes or labour disturbances, breakdown of plant or
machinery, accident, storm, fire, flood, difficulties or shortages in obtaining
material, fuel, transport or labour, the late receipt of the Purchaser’s
specifications, requirements or other necessary information or any other
circumstances affecting the supply of goods or services, then HVG Graphics Pty
Ltd shall not be liable to the Purchaser for any loss or damage which may be
suffered by the Purchaser whether as a direct or indirect result of any such
occurrences.
12.2. In the event of any delay
resulting from the happening of any event, occurrence or circumstance referred
to in clause 12.1 hereof, the Purchaser shall accept a delayed delivery of the
Goods and shall not be entitled to cancel or modify the Agreement.
13. Delay
13.1. Notwithstanding clause 12
hereof, should any delay exceed 3 months from the proposed original, or any
subsequent agreed, delivery date, either party shall have the right to cancel
the subject Agreement by written notice to the other party unless the parties
have otherwise agreed in writing to acknowledge and affirm the delay.
14. Limitation of Liability
14.1.
Any Purchaser of Goods or services from HVG Graphics Pty Ltd agrees to assume
all risks, release, hold harmless and indemnify HVG Graphics Pty Ltd from and
against all liabilities, claims, damages, losses, costs and expenses of
whatsoever nature and howsoever occurring including without limitation loss of
market, loss of profit, loss of use, loss of production or for any financial or
economic loss including indirect or consequential loss or damage which may be
suffered by the Purchaser or by any third party arising out of or in any way
connected with: 14.1.1. the supply of Goods or the performance of services by
HVG Graphics Pty Ltd;
14.1.2.
the sale, possession, maintenance, storage or use of the Goods, whether singly
or in combination with any other thing or process;
14.1.3.
any breach of any warranty or condition of an Agreement be it express, implied
or otherwise;
14.1.4. by reason of breach of
these terms & conditions of trade, or of statutory duty or by reason of
tort (including but not limited by negligence).
14.2. Except as otherwise
expressly provided in these terms & conditions of trade and to the extent
permitted by law, all statements, warranties, representations, provisions,
conditions, promises, undertakings, covenants and other provisions, express or
implied (and whether implied by law or otherwise) relating to any quotations or
tenders submitted by HVG Graphics Pty Ltd, orders accepted by HVG Graphics Pty
Ltd, goods (whether as to their quality or merchantability, fitness for any
purpose, correspondence with any description or sample or otherwise) and/or
services or their supply, being provisions which might otherwise form part of
these terms & conditions of trade or any Agreement to be collateral to form
part of any Agreement that is collateral to these terms & conditions of
trade or any Agreement, are hereby excluded in their entirety and are of no
effect whatsoever.
14.3. The Purchaser warrants to
HVG Graphics Pty Ltd that it has not relied on any representation or statement
made by or on behalf of HVG Graphics Pty Ltd other than as expressly set out in
an Agreement and has notified HVG Graphics Pty Ltd of any specific requirements
that it has in relation to the Goods.
14.4.
To the fullest extent permitted by law: 14.4.1. the Purchaser acknowledges that
it relies on its own skill and judgement in relation to Goods and/or services
supplied to it by HVG Graphics Pty Ltd; and
14.4.2. HVG Graphics Pty Ltd
shall be under no liability as to fitness and suitability for purpose of the
Goods unless that purpose has been specifically notified to HVG Graphics Pty
Ltd in writing prior to the formation of the relevant Agreement and the
Purchaser shall otherwise be responsible for testing and determining the
suitability of the Goods for the purpose for which they are intended to be
used.
14.5. Notwithstanding any other
provision of these terms & conditions of trade or any Agreement or
otherwise, if any liability on the part of HVG Graphics Pty Ltd arises to or in
favour of the Purchaser (whether in contract, tort or otherwise) for any loss,
damage, harm or injury arising out of or in any way connected with the supply
of or failure in the provision of or the purported supply of Goods and/or
services by HVG Graphics Pty Ltd, HVG Graphics Pty Ltd’s liability for all such
loss, damage, harm and injury in all and any circumstances shall be limited in
aggregate to the payment by HVG Graphics Pty Ltd of the sum not exceeding 5
percent of the monies payable to HVG Graphics Pty Ltd pursuant to the relevant
Agreement.
15. Test & Performance
15.1.
HVG Graphics Pty Ltd does not guarantee the performance limits stated in any
quotation, tender or Agreement unless such limits are expressly guaranteed by
HVG Graphics Pty Ltd in writing.
15.2.
HVG Graphics Pty Ltd will use all reasonable efforts to supply Goods having a
material grade consistent with any material grade specified in any relevant
quotation, tender or Agreement.
15.3. Where HVG Graphics Pty Ltd
supplies goods not manufactured by it, the Goods are subject to the chemical,
mechanical and physical properties of the original manufacturer. HVG Graphics
Pty Ltd does not offer any warranty over such goods, except to the extent that
they are subject to the warranty of the original manufacturer and HVG Graphics
Pty Ltd is able to pass on the benefit of such warranty to the Purchaser.
16. Measures, Drawings,
Documentation and Information
16.1.
The parties agree that any descriptive and/or shipping specifications,
statements, illustrations, drawings, data, dimensions or measurement in
relation to the weight, dimensions, size, strength, density, quality, quantity
or other characteristic in relation to any Goods or other subject matter of any
quotation, tender or Agreement either submitted by HVG Graphics Pty Ltd or
otherwise provided by HVG Graphics Pty Ltd to the Purchaser: 16.1.1. Do not
form part of any Agreement entered into between HVG Graphics Pty Ltd and the
Purchaser unless expressly agreed in writing by both parties ; and
16.1.2. Are illustrative and
approximate only are subject to a tolerance of plus or minus 10 percent in
respect of the measurement or other quantification of all characteristics of
all Goods unless expressly agreed in writing by HVG Graphics Pty Ltd.
16.2. If the Purchaser disputes
HVG Graphics Pty Ltd’s assessment of the measurement or other quantification of
any characteristic of the Goods or a part thereof, HVG Graphics Pty Ltd is will
not be liable in respect of such a discrepancy unless the Purchaser complies
with clause 17 hereof.
16.3. Any drawings or other
documents submitted and any information supplied by HVG Graphics Pty Ltd to the
Purchaser remains the property of HVG Graphics Pty Ltd and constitutes
confidential information of HVG Graphics Pty Ltd (to the extent that it is not
in the public domain) and the Purchaser shall keep all such confidential
information confidential and shall not use such drawings, documents and
information for any purpose other than that stipulated by HVG Graphics Pty Ltd
nor provide the same to third parties.
16.4. Where any drawings or
other documents submitted by HVG Graphics Pty Ltd with or as a part of a
quotation or tender are not incorporated into an Agreement between HVG Graphics
Pty Ltd and the party to which such quotation or tender was submitted they
shall be returned to HVG Graphics Pty Ltd within 7 days of expiry of the
quotation or tender or otherwise as reasonably required by HVG Graphics Pty
Ltd.
17. Claims and Returns
17.1.
No claim in relation to damaged Goods, discrepancy in relation to any
measurement or other quantification of any characteristic of the Goods or a
part thereof or shortage or non-delivery whatsoever may be made unless such
claim is made by the Purchaser in writing to HVG Graphics Pty Ltd within 7 days
of delivery, or advised delivery, of the Goods to the Purchaser.
17.2. HVG Graphics Pty Ltd’s
maximum liability for any such claim made in relation to Good and services
supplied only in accordance with this agreement shall be, in its discretion, to
re- deliver, replace or repair such Goods or pay for such Goods to be replaced
or repaired.
17.3.
HVG Graphics Pty Ltd is not obliged to accept the return by the Purchaser of
any Goods for credit and any acceptance of such a return shall only be by
written agreement of HVG Graphics Pty Ltd and always at the sole discretion of
HVG Graphics Pty Ltd. In all cases of return the original invoice must be quoted
and return freight must be prepaid by the Purchaser.
17.4.
HVG Graphics Pty Ltd reserves the right to charge a 15 percent restocking fee
on Goods accepted for credit.
17.5.
The Purchaser must obtain HVG Graphics Pty Ltd’s prior consent before returning
Goods for credit or otherwise.
17.6.
Delivery for return of saleable Goods to HVG Graphics Pty Ltd for credit shall
be at the cost of the Purchaser.
17.7.
All Goods returned for credit must be in their original condition and packaging
and in re-saleable condition.
17.8. Goods specifically
manufactured, cut to size, produced, ordered or modified for the Purchaser and
not defective will not be accepted for credit.
17.9.
HVG Graphics Pty Ltd reserves the right to impose special conditions on any
return of Goods for credit provided the Purchaser has been given seven (7)
days’ notice of these special conditions.
17.10. Where the Agreement is for the supply of goods HVG Graphics Pty Ltd may at its option repair or replace defective goods at its own expense but HVG Graphics Pty Ltd shall have no liability for the cost of delivery to HVG Graphics Pty Ltd and/or removal of the defective Goods nor for the cost of reinstallation of the
