ALBUM ART TERMS AND CONDITIONS OF TRADING
1.1 Application of these Terms and Conditions
These Terms and Conditions are incorporated into any contract between GMZM Pty Ltd trading as Album Art (“seller”) and customer for the supply of goods and/or services by seller to the customer.
In these Terms and Conditions:
“Business Day” means a day on which banks are open for general banking business in the State or Territory in which the seller’s premises are located;
“Estimate” means the estimate referred to in sub-clause 2.1 (b) (as amended in accordance with clause 2.4);
“Goods” means the final goods supplied by the seller by completing the Order;
“GST” means A New Tax System (Goods and Services Tax) Act, 1999;
“Interest Rate” means the aggregate of two percent (2%) and the rate of interest expressed as a percentage per annum charged by the Commonwealth Bank of Australia.
“Order” means the work required to be done in order to fulfill the customer’s instructions;
“Quote” means the quote described in clause 2.1.
In these Terms and Conditions, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) a reference to a clause is a reference to a clause of these Terms and Conditions;
(c) a reference to a party to these Terms and Conditions or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
(d) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(e) a reference to a period of time (including, without limitation, a year, a quarter, a month and a day) is to a calendar period.
In these Terms and Conditions, headings are for convenient reference only and do not affect interpretation.
1.5 Business Day
If the day on which any act, matter or thing is to be done under this agreement is not a Business Day, that act, matter or thing:
(a) if it involves a payment other than a payment which is due on demand, must be done on the preceding Business Day; and
(b) in all other cases, may be done on the next Business Day.
2.1 Seller to supply the estimate
All prices of the available products and options are online and accessible to the registered users.
2.2 Acceptance by customer
Where the customer accepts/places the order online:
(a) The seller does not commence work until the receiving the full payment.
(b) Acceptance by the customer of the Order will constitute acceptance by the customer of these Terms and Conditions.
2.3 Quote evidence of instructions
If the Order is accepted/placed by the customer, the customer shall pay for the Order in accordance with the within Terms and Conditions.
2.4 Seller may revise Price
The seller may revise the price before the Order has been completed to take into account any rise or fall in the cost of performing the Order and the seller shall notify the customer of such amendment as soon as practicable thereafter. Upon the seller giving the customer notification of such amendment such amended estimate shall be and be deemed to be the Estimate for the purposes of these Terms and Conditions.
Subject to clause 5.3, when the Order has been completed, the seller will issue an invoice to the customer for the amount of the Order or, and for any of the other charges specified in clause 3.2.
3.2 Additional Charges
In addition to the amount of the Order, in addition to the amount representing the seller’s charge for the work done, the seller may charge to the customer:
(a) fees for any preliminary work performed at the customer’s request;
(b) fees for additional work required to be done as a result of the customer changing his, her or its instructions;
(c) fees for having to work from the poor copy;
(d) fees for additional work required to be done as a result of author’s corrections, including repagination or reformatting;
(e) fees and other charges for work required to be done urgently, including any overtime costs;
(f) fees for handling or storing material or equipment supplied by the customer for the purposes of the Order;
(g) fees for changing or correcting, in order to ensure that the Goods are properly produced, artwork or any document including computer files supplied for the purposes of the Order by the customer;
(i) freight costs and charges;
(j) other charges, fees or disbursements referred to in these Terms and Conditions and not specified in this clause;
3.3 For the purposes of these Terms and Conditions:
(a) the term “sellers’ charge” refers in each case to the standard or usual fee charged by the seller from time to time in respect of the Order;
(b) “preliminary work” means all and any work performed by the seller at the customer’s express or implied request, the performance of which work was necessary to enable the Order to be commenced and which work was not within the reasonable contemplation of the seller at the time when the seller supplied the Estimate;
(c) “additional work” includes all work undertaken by the seller as a consequence of the customer’s variation, alteration or modification of its instructions in relation to the Order; and
(d) “freight costs and charge” includes all costs and expenses incurred by the seller in removing the Goods from its premises, whether by way of actual or attempted delivery to the customer or otherwise.
The seller shall notify the customer when the Goods are ready for collection only if the seller is not arranging the delivery.
The customer must collect the goods from the seller’s premises upon being notified by the seller that the Goods are ready for collection. If the seller agrees to deliver the Goods the customer shall bear all freight costs and charges of such delivery.
(i) if the seller agrees to deliver the Goods to the customer’s premises – within 30-45 working days of delivery (or such other time as is mutually agreed);
(ii) otherwise – within 2-7 days of notification that the Goods are ready for collection (or such other time as is mutually agreed).
(b) In the event of a dispute arising as to whether or not the Goods comply with the customer’s instructions, the matter will be dealt with in accordance with the provisions of clause 8.9 of these Terms and Conditions.
The risk in the Goods passes to the customer:
a) if the seller delivers the Goods to the customer’s premises at the time of delivery;
(b) otherwise – at the time the seller notifies the customer that the Goods are ready for collection. If the customer is entitled to reject the Goods and rejects the Goods in accordance with these Terms and Conditions, risk reverts to the seller at the time the customer notifies the seller that the Goods are rejected.
5.1 Time for payment
The customer must, within 3 days of the customer receiving the seller’s invoice, pay to the seller the total amount set out in the invoice.
The seller may charge interest at the Interest Rate on amounts not paid within the time specified in clause 5.1.
5.3 Progress payments
If the Order is not collected for more than 30 days at the request of the customer or as a result of something for which the customer is responsible, the seller may issue an invoice for a particular sum (to be specified by the seller) for other costs incurred by the seller (such as storage costs).
The customer must pay to the seller any costs, expenses or losses incurred by the seller as a result of the customer’s failure to pay to the seller all sums outstanding from the customer to the seller including, without limiting the generality of the obligation set out in this clause, any debt collection and legal costs.
6.1 Retention of ownership Until the customer has paid all sums outstanding in relation to the Goods:
(a) Title in the Goods shall not pass from the seller to the customer.
(b) If the Goods are in the customer’s possession, the customer shall hold the Goods as trustee for the seller and must store the Goods so that they are clearly identifiable as the property of the seller.
(c) The seller may call for and recover possession of the Goods (for which purposes the seller’s employees or agents may enter the customer’s premises and take possession of the Goods without liability to the customer), and the customer must deliver the Goods to the seller if so directed by the seller.
6.2 General lien
(a) Subject to clause 7.1 the customer may only reject the Goods if they do not comply with the customer’s instructions and/or have manufacturing defects. I the customer wishes to reject the Goods, the customer must notify the seller of the rejection not later than 7 days after receiving the Goods; The seller shall, in respect of all sums owed by the customer to the seller hereunder, have a general lien on all property of the customer in the seller’s possession and may, after 14 days’ notice to the customer, sell that property and apply the proceeds (net of any sale costs) in satisfaction of all or any part of the sums owed. In the event that any of the customer’s property held by the seller as aforesaid enjoys copyright protection in favor of the customer, the customer hereby grants to the seller a license to exercise the rights conferred on the seller under this clause.
If the seller submits to the customer a proof of the Goods the seller will not be responsible for any errors in the Goods which appeared in the proof and which were not corrected by the customer before the Order was completed.
7.2 Non-excludable Rights
The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the customer in relation to the provision of the Goods or of services which cannot be excluded, restricted or modified by agreement (“Non-excludable Rights”).
7.3 Disclaimer of Liability
The seller disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the customer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. To the extent permitted by law, the liability of the seller for a breach of a Non-excludable Right is limited, at the seller’s option, to the supplying of the Goods and/or any services again or payment of the cost of having the Goods and/or any services supplied again.
7.4 Indirect losses
Notwithstanding any other provision of these Terms and Conditions, the seller is in no circumstance (whatever the cause) liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the customer for:
(a) any increased costs or expenses;
(b) any loss of profit, revenue, business, contracts or anticipated savings;
(c) any loss or expenses resulting from a claim by a third party; or
(d) any special, indirect or consequential loss or damage of any nature whatsoever caused by the seller’s failure to complete or delay in completing the Order or to deliver the Goods.
7.5 Electronic data
Without limiting the generality of the foregoing clauses, the seller will not be liable to the customer for loss, however, caused, of any data stored on disks, compact disks or other media supplied by the customer to the seller.
7.6 Customer’s property
Subject to clause 7.5, The seller will not be liable for the damage, loss or destruction of any property of the customer in the seller’s possession unless the loss or damage is due to the failure of the seller to exercise due care and skill in handling or storing the property.
7.7 Force Majeure
The seller will have no liability to the customer in relation to any loss, damage or expense caused by the seller’s failure to complete the Order or to deliver the Goods as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of the seller’s normal suppliers to supply necessary materials or any other matter beyond the seller’s control.
8. GENERAL MATTERS
8.1 Alterations to style etc
The seller may charge an additional amount for any additional work required to be done (including the production of additional proofs) as a result of the customer subsequently altering the style, type or layout used by the seller.
8.4 Outside work
If the seller has to obtain goods and/or services not normally stocked or supplied by the seller from a third party in order to carry out the customer’s instructions:
(a) The seller will not be liable for any breach of these Terms and Conditions if that breach is a result of or is connected with the supply by the third party of such goods and/or services.
(b) The seller acquires such goods and/or services as agent for the customer and not as principal and will have no liability to the customer in relation to the supply of those goods and/or services. Any claim by the customer in relation to the supply of those goods and/or services must be made directly against the third party.
(c) The customer must pay for such goods and/or services.
(d) Property in any such goods obtained from a third party and incorporated into the Goods passes to the seller at the time of incorporation.
8.5 Property left with seller
If the customer leaves property in the seller’s possession without specific instructions as to what is to be done with it, the seller 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
The seller has no obligation to insure any property of the customer in the seller’s possession. The customer must pay the cost of any insurance arranged by the seller at the request of the customer.
8.7 Ancillary materials
Unless the seller and customer agree otherwise, drawings, sketches, paintings, photographs, designs, typesetting, dummies, models, negatives, positives, blocks, engravings, stencils, dies, plates or cylinders, discs, compact discs, or other media or data and other material produced by the seller 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 the seller.
(a) Copyright in all artistic and literary works authored by the seller shall be the property of the seller.
(b) The customer:
(i) warrants that the customer has copyright in or a license to authorize the seller to reproduce, all artistic and literary works supplied by the customer to the seller for the purposes of the Order and the customer hereby expressly authorizes the seller to reproduce all and any of such works for the purposes aforesaid;
(ii) hereby indemnifies and agrees to keep indemnified the seller against all liability, losses or expenses incurred by the seller in relation to or in any way directly or indirectly connected with any breach of copyright or of any rights in relation to copyright in such literary and artistic works supplied as aforesaid; and
c) The customer is hereby granted a non-exclusive license to use the copyright in any literary and/or artistic works authored by the seller for the purposes of the Order however the exercise of such license shall be conditional upon the seller having received all monies due to the seller under these Terms and Conditions.
The customer must keep confidential and not use any ideas communicated by the seller to the customer without the seller’s written consent.
8.10 Electronic media
All disks, compact disks or other media (other than media supplied by the customer) used by the seller to store data for the purposes of completing the Order are the property of the seller. The customer cannot require the seller to supply to the customer any data so stored. In the event that the seller does supply any data so stored or created the seller may charge for supplying such data to the customer.
8.11 Storage of electronic data
The seller will not be responsible for storing any data on disks, tapes, compact disks or other media when the Order has been completed. If the seller agrees to store such data, the seller may charge for doing so.
8.12 No Waiver
A power or right is not waived solely because the party entitled to exercise that power or right does not do so. A single exercise of a power or right will not preclude any other or further exercise of that power or right or of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
Any provision of these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
8.14 Governing law and jurisdiction
These Terms and Conditions are governed by the law in force in the State or Territory in which the seller’s premises are located and the parties submit to the non-executive jurisdiction of the courts of that State or Territory and any courts which may hear appeals from those courts in respect of any proceedings in connection with these Terms and Conditions. Issued 2017.
9.1 All amounts are GST inclusive amounts
All amounts expressed or described in these Terms and Conditions are GST inclusive amounts.
9.2 Out of pocket expenses are GST inclusive
All out of pocket expenses referred to in these Terms and Conditions are GST inclusive out of pocket expenses.
9.3 Seller to assist Customer
The seller will do all things reasonably available to it to assist the customer to claim on a timely basis any input tax credits (if any) the customer may be entitled to claim for any acquisition of goods and services from the seller. This includes the seller maintaining its registered status for GST purposes, and issuing tax invoices for supplies made under these Terms and Conditions on a timely basis as reasonably requested by the customer.