Terms of Use - PopArt

TERMS AND CONDITIONS OF SALE

Any term or condition of this contract which infringes any legislation whether State or Federal shall be severable from this contract without affecting the remaining terms and conditions.

1. INTERPRETATION

Unless otherwise inconsistent with the context the word ‘person’ shall include corporation: ‘Company’ shall, where the context admits or requires, means and include POPART Australia Pty Ltd. and/or any of its related corporations as defined in Section 7 of the Companies (Victoria) Code or any other person which is named as the party making or accepting the order; ‘goods’ shall include services; ‘Purchases’ shall mean and include the person to whom any quotation is made and shall include any person offering to contract with the Company on these terms and conditions. Words importing the singular number shall be deemed to include the plural and vice versa.

2. QUOTATIONS

All quotations are subject to withdrawal or variation at any time prior to acceptance of order. The Company also reserves the right to amend prices at may time for the undelivered portion of any order. Provided however, that the Purchaser shall have the right to cancel such outstanding balance of an order within seven (7) days from the date of notification of an amendment to the process thereof.

3. OFFER AND ACCEPTANCE

Any quotation made by the Company is not an offer to sell and no order given in pursuance of any quotation shall bind the company until accepted by it in writing. Unless otherwise agreed in writing all orders are subject to acceptance by the Company within 30 days of receipt by the Company of the Purchaser’s order and these terms and conditions shall be deemed to be incorporated in any agreement between the Company and Purchaser. Any terms and conditions contained in any order, offer, acceptance, or invoice of the Purchaser and all representations, statements, terms, conditions and warranties (whether implied by statute or otherwise) not embodied herein are expressly excluded to the fullest extent permitted by law.

4. DELIVERY

(a) Any date quoted for delivery is an estimate only and unless a guarantee shall have been given by the Company in writing providing for liquidated damages for failure to deliver by the quoted date the Company shall not be liable to the Purchaser for any loss damage howsoever arising for failure to deliver on before the quoted date. The Purchaser shall accept and pay for goods if and when tendered notwithstanding any failure by the Company to deliver by the quoted date.
(b) The Company reserves the right to deliver by installments. If delivery is made by installments the Purchaser shall not be entitled (i) to terminate or cancel the contract; or (ii) to any loss damage howsoever arising for failure by the Company to deliver any installment on or before the quoted date.

5. QUANTITY DELIVERED

Every endeavour will be made to deliver the correct quantity ordered but owing to the difficulties of producing exact quantities in some processes (including but not limited to vacuum forming, printed material and injection moulding), the Company may deliver and charge for a quantity variation +/– 10 per cent.

6. CANCELLATION

Any order may only be cancelled by mutual agreement and in the event of such cancellation the Purchaser undertakes to reimburse and indemnify the Company for any costs, expenses and charges incurred by the Company in preparation for and in the execution of and order which without limiting the generality thereof may include an amount equal to a percentage of the gross profit of the order had the order not been cancelled.

7. DESCRIPTION AND SPECIFICATIONS

(a) Whilst every effort is made to ensure their accuracy the descriptions, illustrations and material contained in any catalogue, price list, brochure, leaflet of other descriptive matter provided by or on behalf of the Company represent the general nature of the items described therein and shall not form a part of any order or agreement or amount to any representation or warranty. The Company reserves the right to modify the design of goods without notice.
(b) The Purchaser warrants that any goods manufactured, constructed or supplied by the Company which are based in whole or in part upon designed drawings or specifications supplied to the Company by or on behalf of the Purchaser shall not infringe any letters patent or registered designs. The Purchaser shall indemnify and keep indemnified the Company its servants and agents against any action, loss, cost, claim or damage that may be brought against or suffered by the Company its servants or agents for any breach of this warranty.
(c) The Company does not warrant or guarantee and it shall be a term of any agreement between the Company and the Purchaser that any goods manufactured, constructed or supplied by the Company which are based in whole or in part upon any designs, drawings or specifications supplied to the Company by or on behalf of the Purchaser will achieve any standard or performance or any capacity whatsoever.

8. ACCESS

In respect of any work done on the Purchaser’s premises or elsewhere other than at the Company’s premises it shall, subject to any written agreement to the contrary, be the duty of the Purchaser to ensure that the conditions under which the work has to be performed, the layout, means of access, accessibility of the different parts of the subject matter being worked on or handled and other material circumstances shall be suitable to the Company failing which the Company shall be entitled to charge a reasonable increase in the price having regard to the prevailing circumstances.

9. WAIVER

Failure by the Company to insist upon strict performance any term or condition hereof shall not be deemed a waiver thereof or of any rights the Company may have and shall not, and nor shall any express waiver, be deemed to be a waiver of any subsequent breach of any term or condition.

10. GUARANTEE AND WARRANTY

(a) Except when the Purchaser is an consumer for the purposes of the Trade Practices Act, 1974, and the conditions, warranties and rights implied by the Statute cannot be excluded, representations, promises, statements, warranties and conditions (whether statutory express or implied) regarding any goods or services supplied by or on behalf of the company which without limiting the generality of the foregoing shall include conditions or warranties as to quality or fitness for any particular purposes are expressly excluded. The Company shall not be liable for any loss or damage whatsoever and however arising whether direct, indirect or consequential or in respect of any claim whenever and however made for any loss, damage, deterioration, deficiency or other fault or harm in the goods manufactured, work executed or services provided by or on behalf of or in any arrangement with the Company or occasioned to the Purchaser or any third or other party or to his or their property or interest and whether or not due to the negligence of the Company its servants or agents except in the following circumstances and subject to the following limitations. (i) The purchaser shall inspect the goods immediately on their arrival and shall, within seven (7) days from such arrival, give written notice to the Company of any matter or thing by reason where of the Purchaser may allege that the goods are not in accordance with the contract. (ii) The Company’s liability shall be limited in all circumstances to the repair or replacement (at the option of the Company) of any goods manufactured by it which are with the prior written authority of the Company, returned adequately packed and freight paid to the Company within the company’s guarantee period covering the goods as indicated in Clause 10(i) above and which the Company accepts as having been defective in materials or workmanship.
(b) the company shall not be liable in any circumstances for any (i) Defects of damage caused in whole or in part by misuse, abuse, neglect, electrical or other overload, unsuitable lubricant, improper installation, repair, alteration or accident: (ii) Transport, installation, removal, labour or other cost. (iii) goods not manufactured by it but the Company will endeavour to pass on to the Purchaser the benefit any claim made by the company and accepted by the manufacturer of such goods under a warranty given by that manufacturer. (iv) Technical advice or assistance given or tendered by it to the Purchaser whether or not in connection with the manufacture construction or supply of goods for or to the Purchaser.

11. CONTAINERS

Containers (which expression shall include but shall not be limited to stillages, formers and pallets) in or on which goods are delivered and for which a deposit charge is made remain the property of the Company. On the container’s return in good order and condition the deposit will be returned to the Purchaser. The deposit for containers which the Purchaser returns otherwise than in good condition shall only be refunded in part having regard to their actual condition. Containers will be deemed to be still in the Purchaser’s hands until received into the Companies’ stores.

12. INSOLVENCY & DEFAULT

if- (a) The Purchaser makes default in any payment due hereunder. (b) A resolution is passed or proposed or a petition is presented or an application is filed for the winding up of the Purchaser. (c) A receiver or receiver and manager is appointed of the property or any part of the property of the Purchaser. (d) The Purchaser makes or proposes to make any arrangement with its creditors. (e) The Purchaser is placed under official management. (f) Execution is levied upon the assets of the Purchaser for an amount in excess of $1,000.00 and is not within seven (7) days satisfied. (g) the Purchaser is the subject of a debtor’s or creditor’s petition in bankruptcy or is the subject of a Bankruptcy Notice. (h) The Purchaser enters into an arrangement pursuant to Part X of the Bankruptcy Act. then, and in any such event, the Company may at its option withhold further deliveries or cancel the contract without prejudice to its rights hereunder.

13. TITLE

Title to the goods shall not pass to the Purchaser until the earlier of: (a) Payment in full of the purchase price. (b) bona fide sale of the goods by the Purchaser in the ordinary course of the Purchaser’s business. At all times before title in the goods passes to the Purchaser, the Purchaser shall store the goods so that they are clearly identified as the property of the Company. Upon default by the Purchaser, the company shall be entitled to retake possession of the goods and resell them and for that purpose may enter the Purchaser’s premises and remove the goods, provided however that the Company agrees not to retake possession of the goods without first giving the Purchaser reasonable opportunity to pay the balance of the purchase price outstanding.

14. RISK

Unless otherwise agreed in writing all goods shall be at the Purchaser’s risk upon delivery to the Purchaser, his carrier or agent.

15. PAYMENT

Unless stated to the contrary on the face of this document, the whole of the purchase price is due immediately upon delivery of the goods to the Purchaser’s agent and is payable on demand of, if no demand is made, within thirty (30) days after the end of the month in which the goods are delivered. The company reserves the right to charge interest at the rate issued by the RBA + 4% per annum calculated daily on any overdue amounts.

16. PRICE

Unless otherwise expressly agreed in writing the price of the goods shall be that price charged by the company at the date of delivery including the amount which the Company is required to pay on account of any excise or sales taxes or any other taxes or charges which may be established or levied by any governmental authority (domestic or foreign) upon the goods of any part thereof, or the manufacture, use, sale or delivery thereof.

17. FORCE MAJEURE

Every effort will be made to carry out any contract based on a quotation, but the due performance of it is subject to variation or cancellation owing to an Act of God, War, Strikes, Lock-outs, Fire, Flood, Drought or any other cause beyond control or owing to inability to procure materials or articles except at increased prices due to any of the foregoing causes.

18. COST VARIATION

Quotations are based on the current cost of production, (materials, working hours and wages) and are subject to amendment on or after acceptance to meet any recognised rise or fall in such cost.

19. DIES, DESIGNS, ETC.

All Dies, designs, sketches, prototypes, samples, negatives, photographs, plates, standing matter, blocks and engravings are submitted to the Purchaser in confidence and shall remain the property of the Company notwithstanding that a charge is made for their use.

20. SALES TAX

Sales Tax will be charged at the appropriate rate pursuant to law unless a written order is provided by the Purchaser quoting its Sales Tax registration number of claiming a lawful exemption.

21. ARTWORK APPROVAL/PROOFS ETC

No responsibility will be accepted for errors in proofs or artwork approved by customer.

22. CHARGES FOR DESIGNS/ARTWORK ETC

Where preliminary work is carried out and an order does not eventuate, the company reserves the right to charge for prototypes, artwork and design work done up to the time the project is cancelled.

23. MODIFICATIONS

No attempted addition to, deletion from, or modification of any of the provisions of these Terms & Conditions of Sale shall be binding on either party unless it is in writing and signed by a Director of POPART. POPART’s failure to object to any term or condition contained in any communication from Customer shall not be deemed a waiver of any provision herein. Any waiver by either party of any provision of these Terms & Conditions of Sale shall not but deemed to be a waiver of any other provision, or a continuing waiver, but shall apply solely to the instance to which the waiver is directed.

24. ENTIRE AGREEMENT

These Terms & Conditions of Sale contain all the agreements, warranties, understandings, conditions, covenants, and representations made between Customer and POPART. Neither Customer or POPART shall be liable for any agreements, warranties, understandings, conditions, covenants, or representations that are not expressly set forth in these Terms & Conditions of Sale.