Terms and conditions
1.1 ‘Seller’ shall mean Lloyd Grey Design Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Lloyd Grey Design Pty Ltd.
1.2 ‘Client’ shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by the Seller to the Client.
1.3 ‘Guarantor’ means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 ‘Goods’ shall mean Goods supplied by the Seller to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Seller to the Client.
1.5 ‘Services’ shall mean all Services supplied by the Seller to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 ‘Price’ shall mean the price payable for the Goods as agreed between the Seller and the Client in accordance with clause 3 of this contract.
2.1 Any instructions received by the Seller from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of the Seller.
2.4 The Client shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by the Seller as a result of the Client’s failure to comply with this clause.
3 Price and payment
3.1 At the Seller’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Seller to the Client in respect of Goods supplied; or
(b) the Seller’s quoted Price (subject to clause 3.2) which shall be binding upon the Seller provided that the Client shall accept the Seller’s quotation in writing within thirty (30) days.
3.2 The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation.
3.3 Where the Client seeks to amend or vary the brief or in the event of any special requirements arising within the original brief, the Seller reserves the right to charge additional fees to the Client at the Seller’s standard rates together with any additional expenses incurred.
3.4 Unless otherwise stated in writing, expenses such as couriers, authorised travel, print and typesetting, specialist artwork and material, photographic material and processing, facsimile and long distance telecommunications will be invoiced separately to the Client.
3.5 Where the Seller is required to retain the services of other professionals such as illustrators, photographers, lawyers, quantity surveyors, structural engineers, etc, on the Client’s behalf, then the cost of their fees and expenses will be in addition to the Seller’s and will be the Client’s responsibility.
3.6 At the Seller’s sole discretion:
(a) a deposit may be required; or
(b) a commissioning fee may be required.
3.7 At the Seller’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Clients shall be made by instalments in accordance with the Seller’s payment schedule for stages completed.
3.8 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice. Any queries regarding an invoice must be made within seven (7) days of receipt that invoice.
3.9 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Seller.
3.10 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4 Delivery of goods
4.1 At the Seller’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at the Seller’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by the Seller or the Seller’s nominated carrier); or
(c) the Client’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client’s agent.
4.2 At the Seller’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
(c) for the Client’s account.
4.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery.
4.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
4.5 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
4.6 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that:
(a) such discrepancy in quantity shall not exceed 5%; and
(b) the Price shall be adjusted pro rata to the discrepancy.
4.7 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
4.8 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
5.1 If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
5.3 The Seller will endeavour to meet agreed dates for undertaking and completing the Goods. The Client accepts that the Seller shall not be liable for any loss incurred by the Client where there is a delay in information being supplied to the Seller for the purpose of supplying the Goods.
5.4 Should the Client require the Goods to be re-supplied in any format after the initial supply of the Goods, then the Seller reserves the right to charge the Client for any additional computer file preparation and administration fees.
6 Proof reading
6.1 The Seller shall not be responsible for failure to rectify errors in artwork or proofs submitted to the Client for final approval unless these have been clearly identified and the Seller notified of such errors.
7.1 The Seller and Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid the Seller all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to the Seller in respect of all contracts between the Seller and the Client.
7.2 Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Seller shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from the Seller to the Client the Seller may give notice in writing to the Client to return the Goods or any of them to the Seller. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) the Seller shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller; and
(f) the Client shall not deal with the money of the Seller in any way which may be adverse to the Seller; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller; and(h) the Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that the Seller will be the owner of the end products.
8 Client’s disclaimer
8.1 The Client hereby disclaims any right to rescind, or cancel any contract with the Seller or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by the Seller and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgement.
9.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Lloyd Grey Design Pty Ltd – Terms and Conditions of Trade © Copyright – EC Credit Control Pty Ltd – 2007 the Seller has agreed in writing that the Client is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods, except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9.2 Goods will not be accepted for return other than in accordance with 9.1 above.
10 The Commonwealth Trade Practices Act 1974 (‘TPA’) and Fair Trading Acts (‘FTA’)
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
11.1 To the extent permitted by statute, no warranty is given by the Seller as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
12 Intellectual property
12.1 Copyright and all industrial rights in the designs provided by the Seller are at all times retained by the Seller.
12.2 The Client shall not at any time utilise any concept prepared by the Seller in the course of a project and presented to the Client, or anything reasonably similar to any such concept, other than that design selected by the Client as the final design. All concepts designs not developed as the final design remain the property of the seller and are not included as part of the license for use of the final design.
12.3 The total sum of the design, development and artwork fees for an individual project produced by the Seller constitutes a licensing fee for the use of the final design. The licence relates directly to the scope of work commissioned at the outset of the project, and is for that specific use only. Further usage of the final design outside the parameters of the original commission will be the subject of further negotiations and may incur further licensing fees.
12.4 Where the Seller is commissioned to produce a corporate mark, logotype or brand for a product or entity, at the Seller’s sole discretion may assign copyright in writing for the same to the Client.
12.5 Due to the subjective elements of trade mark registration, the Seller cannot guarantee that a corporate mark, logotype or brand produced by the Seller will be accepted by IP Australia for trademark registration. The Seller shall endeavour to undertake appropriate database searches to avoid obvious infringement. The Seller recommends the Client employ the services of a trademark attorney to assist in further trademark issues. The Seller, at the Client’s request, shall undertake such services in consultation with a trademark attorney on the Client’s behalf.
12.6 The Client shall at the request and expense of the Seller, provide copies of printed material produced by the Seller to allow the Seller to photograph such materials for the Seller’s own publicity and promotional purposes or any other matter of which the copyright is assigned to the Client in accordance with these terms and conditions of trade.
13 Default and consequences of default
13.1 Interest on overdue invoices may accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
13.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.
13.3 Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Client and all fees, production costs and expenses then levied shall immediately become payable, together with fees, production costs and expenses for any other outstanding work. The Seller will not be liable to the Client for any loss or damage the Client suffers because the Seller has exercised its rights under this clause.
13.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
13.5 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14. Security and charge
14.1 Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and Lloyd Grey Design Pty Ltd – Terms and Conditions of Trade © Copyright – EC Credit Control Pty Ltd – 2007 other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
15.1 The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Seller shall repay to the Client any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
15.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.
16 Privacy Act 1988
16.1 The Client and/or the Guarantor/s agree for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Seller.
16.2 The Client and/or the Guarantor/s agree that the Seller may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of Client and/or Guarantor/s.
16.3 The Client consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Client agrees that personal credit information provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Client and Seller or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by the Seller, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
16.5 The Seller may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
17.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
17.3 The Seller shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Seller of these terms and conditions.
17.4 In the event of any breach of this contract by the Seller the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.5 The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by the Seller.
17.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Seller reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
17.9 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.