1. BACKGROUND
1.1 Application of these Terms and Conditions
These terms and conditions are incorporated into any contract between Artype Media and their clients (“Contract”) for the supply of goods and/or services by Artype Media to their clients.
2. DEFINITIONS
In these Terms and Conditions
“Business Day” A day other than a Saturday or a Sunday, or a day that is a public holiday. A public holiday is a day that is a public holiday for the whole of any state or territory in Australia.
“Estimate” The estimate referred to in Sub-Clause 2.3(b) and also further details in Clause 2.6
“Goods” The final products finished by the Graphic Designer in completing the Order
“Graphic Designer” The graphic designers working for Artype Media
“GST” This refers to the Goods and Services Tax 1999
“Order” The work to be done in order to complete the client’s instructions
“Quote” The quote described in Clause 2.3
2.1 General
Unless the context otherwise specified:
(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
2.2 Headings
Headings are for convenient reference only and do not affect the interpretation of these terms and conditions.
2.3 Quotes
Graphic Designer to supply quote
The Graphic Designer may, at their client’s request, give their client an estimated quote specifying:
(a) the work required to be done to complete the client’s instructions; and
(b) an estimate of the Graphic Designer’s charge to complete the work
2.4 Quote is taken to be accepted by client
Where the Graphic Designer has given their client a Quote:
(a) the Graphic Designer does not commence work until the Quote has been accepted by the client
(b) the client accepts the Quote and instruct (orally or in writing) the Graphic Designer to commence work. In case of oral acceptance, a written confirmation from Artype Media will follow by facsimile or email
(c) acceptance by the client of the Quote will constitute acceptance by the clients of these Terms and Conditions
2.5 Quote as evidence of client giving instructions
If a written Quote is accepted by the client, the work which is subject of the Quote shall be carried out and the client shall cause the client to pay for the work in accordance with these Terms and Conditions.
2.6 Graphic Designer may revise Estimate
From time to time, the Graphic Designer may need to amend the Estimate before the Order is completed. In particular, for longer term projects, such as those more than but not limited to a 4 weeks period, to take into account any rise or fall in the cost of completing the Order. The Graphic Designer shall notify the client prior to making such amendment.
3. CHARGES
3.1 Invoice
Subject to Clause 5.3, upon the completion of the Order, the Graphic Designer shall issue an invoice to the client for the amount of the Estimate. Alternately, if no Estimate was made, for an amount representing the Graphic Designer’s Charge for the work done in completing the Order, and for any of the other charges specified in Clause 3.2
3.2 Additional Charges
In addition to the amount of the Estimate, or where no Estimate was given, in addition to the amount representing the Graphic Designer’s charge for the work done, the Graphic Designer may charge to the client fees for:
(a) any Preliminary Work performed at the client’s request
(b) Additional Work required to be done as a result of the client changing their instructions;
(c) Additional time taken to work from poor quality templates or files;
(d) Work which involves foreign language that needs special arrangement of text or the
Graphic Designer needs to convert tables, measurements, of which the client did not disclose to the Graphic Designer before the Quote was prepared;
(e) Additional Work required to be done as result of author’s corrections, including but not limited to reformatting or repagination;
(f) Work required to be done urgently, including any overtime costs;
(g) Handling or storing material or equipment supplied by the client for the purposes of the Order;
(h) Changing or correcting, in order to ensure that the Goods are properly produced, any templates, films, artwork, or any documents including computer files supplied for the purposes of the Order by the client;
(i) Delivery costs and charges; and
(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 Clause 3, the following meaning applies:
“Graphic Designer’s Charge” the standard or usual fee charged by the Graphic Designer from time to time in respect of the particular Order between the client and the Graphic Designer.
“Preliminary Work” all and or any work that the Graphic Designer undertakes to do at the client’s express or implied request. The Order specific performance that was necessary to enable the Order to be commenced. Such specific performance was not within the reasonable contemplation of the Graphic Designer at the time when the Graphic Designer supplied the Estimate.
“Additional Work” all work undertaken by the Graphic Designer as per the client’s variation, alteration or modification of its instructions in relation to the Order.
“Delivery Costs and Charges” all costs and expenses associated in removing the Goods from the Graphic Designer’s premises, whether by way of actual or attempted delivery to the client or otherwise. This includes but not limited to the use of courier or express post.
4. DELIVERY
4.1 Notification
The Graphic Designer shall notify the client when the Goods are ready for collection.
4.2 Collection
The client shall collect the Goods from the Graphic Designer’s premises upon being notified by the Graphic Designer that the Goods are ready for collection, if the Graphic Designer agrees to deliver the Goods the client shall bear all Costs and Charges of such delivery.
4.3 Rejection
Subject to Clause 7.1 the client shall only reject the Goods if they do not comply with the client’s instructions. If the client wishes to reject the Goods, the client must notify the Graphic Designer of the rejection at time of delivery:
(a) if the Graphic Designer agrees to deliver the Goods to the client’s premises – within 7 days of delivery (or such time as is mutually agreed);
(b) otherwise – within 7 days of notification that the Goods are ready for collection (or such other time as is mutually agreed)
4.4 Risks
The risk in the Goods passes to the client:
(a) if the Graphic Designer delivers the Goods to the client’s premises or a mutually agreed point of delivery – at time of delivery;
(b) if the client is entitled to reject the Goods and rejects the Goods in accordance with these Terms and Conditions, risk reverts back to the Graphic Designer at the time the client notifies the Graphic Designer that the Goods are rejected – at time the Graphic
Designer notifies the client that the Goods are ready for collection.
5. PAYMENT
5.1 Time for payment
The client shall, within 14 days of the client receiving the Graphic Designer’s invoice, pay to the Graphic Designer the total amount set out in the invoice.
5.2 Payment Schedule
(a) The Graphic Designer shall issue an invoice for the amount of the Estimate before commencing the Order where the Graphic Designer has not previously carried out work for the client or the Graphic Designer has the sole discretion to do so;
(b) Artype Media requests all clients make their payments:
(i) Option 1 – 50% deposit, calculated from the total amount on the Estimate; OR
(ii) Option 2 – 50% deposit plus the printing costs, calculated from the total
amount on the Estimate.
The remaining amount will be due and payable in 14 days on completion, of the order and its delivery.
6. NON-PAYMENT
6.1 Retention of Ownership
Artype Media will retain the Goods until the client has paid all sums outstanding in relation to the Goods:
(a) Title in the Goods shall not pass from the Graphic Designer to the client;
(b) If the Goods are in the client’s possession, the client shall hold the Goods as trustee for the Graphic Designer and must store the Goods so that they are clearly identifiable as the property of the Graphic Designer;
(c) The Graphic Designer shall call for and recover possession of the Goods. The Graphic Designer’s employee or agents may enter the client’s premises and take possession of Goods without liability to the client. If the Graphic Designer makes
demand for the client to deliver the Goods, the clients shall do so as directed by the Graphic Designer;
(d) The client may, in the ordinary course of the client’s business, sell the Goods to a third party but:
(i) the proceeds of sale to the third party shall be held by the client as trustee for the Graphic Designer and the client shall be held
accountable to the Graphic Designer for those sums; and
(ii) if the Graphic Designer requires, the client shall assign to the Graphic Designer the client’s claim against the third party and shall execute all documents necessary to effect that assignment.
6.2 General lien
The Graphic Designer shall have a general lien on all their client’s properties in the Graphic
Designer’s possession and may, after 14 days notice to the client, sell that property and apply the
proceed (net of any sale cost) to satisfy all or any part of the sums owed by the client. If any of the
client’s property held by the Graphic Designer is protected by the client’s copyright claim, then the
client hereby grants to the Graphic Designer a license to exercise the rights conferred on the
Graphic Designer under this clause.
7. LIABILITY
7.1 Proofs
The Graphic Designer submits to the client a proof of the Goods and the client confirms the proof is correct. The Graphic Designer will not be responsible for any errors which were not corrected by the client before the Order was completed.
7.2 Non-excludable Rights
The parties acknowledge that, under applicable State and Commonwealth laws, certain conditions and warranties may be implied in these Terms and Conditions. There are rights and remedies conferred on the client in relation to the provision of the Goods or of services which cannot be excluded, restricted or modifies by agreement (“Non-excludable Rights”).
7.3 Disclaimer of Liability
The Graphic Designer disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on client, by statute, the common law, equity or trade and all those conditions to the extent permitted by law, the liability of the Graphic Designer for a breach of a Nonexcludable Rights is limited, at the Graphic Designer’s discretion, to the supplying of the Goods and/or ant 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 Graphic Designer is not liable in contract or any other laws to compensate the client for:
(a) any increased costs or expenses;
(b) any loss if profit, contracts or business;
(c) any loss of damage claim by a third party; or
(d) any loss or damage caused by the Graphic Designer’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 above mentioned clauses, the Graphic Designer will not liable to the client for loss due to whatever the reason, of any data stored on CDs, DVDs or any other media supplied by the client to the Graphic Designer.
7.6 Client’s property
Subject to Clause 7.5, the Graphic Designer will not be liable for the damage, loss or destruction of any of the client’s property that is in the Graphic Designer’s possession unless the loss or damage is proved to be the failure of the Graphic Designer to exercise due care and skill in handling or storing the property.
7.7 Unforeseeable Events
The Graphic Designer will have no liability to the client in relation to any loss, damage or expense caused by the Graphic Designer’s failure to complete the Order or to deliver the Goods under such circumstances that is beyond the Graphic Designer’s control. Such matters but not limited to fire, flood, earthquake, theft, strike, and the inability of the Graphic Designer’s normal suppliers to
supply necessary materials.
8. GENERAL MATTERS
8.1 Periodicals
For the purposes of these terms and Conditions, if the contract between the Graphic Designer and client relates to more than one issue of a periodical:
(a) Each issue will be considered to be one Order;
(b) Subject to Sub-Clause (c), a party may not terminate a contract in case of periodicals published:
i. weekly or more frequently, unless that party has given 4 weeks notice of that party’s intention to terminate the contract;
ii. fortnightly or more frequently (but less frequently than weekly), unless that party has given 8 weeks notice of that party’s intention to terminate the contract; and
iii. less frequently than fortnightly, unless that party has given 13 weeks’ notice of that party’s intention to terminate the contract.
(c) Notwithstanding Sub-Clause (b), the Graphic Designer may terminate the contract at any time if the client is in breach of any of the provisions of these Terms and Conditions relating to payment.
8.2 Changes to presentation
If, before the Quote is prepared, the client does not give the Graphic Designer specific instructions in relation to the presentation such as style, layout or type:
(a) the Graphic Designer may use any style, layout or type which, in the Graphic Designer’s opinion is appropriate; and
(b) the Graphic Designer may change an additional amount for any additional work required to be done (including the production of additional proofs) as a result of the client subsequently changing the style, layout or type used by the Graphic Designer.
8.3 Overset
The client must pay for overset matter. Overset matter means the Product completed on the client’s instructions but not used on a publication for which it was intended. The client may instruct the Graphic Designer to retain overset matter for future issues of the publication or to discard the overset matter.
8.4 Outside work
If the Graphic Designer has to obtain goods including but not limited to goods such as artwork, typefaces, film, plates, ornaments or bromides which are not normally stocked or services engaged by the Graphic Designer from a third party in order to carry out the client’s instructions:
(a) The Graphic Designer will not be liable for any breach of these Terms and Conditions if that breach is a result of or is connected with the delay by the third party who supplies such goods and/or services;
(b) The Graphic Designer acquires such goods and/or services as agent for the client and not as principal and will have no liability to the client in relation to the supply of those goods and services. Any Claims by the client in relation to the supply of those goods and/or services must be made directly against the third party;
(c) The client must pay for such goods and/or services; and
(d) Property in any such goods obtained from a third party and incorporated into the Goods passes to the Graphic Designer at the time of incorporation.
8.5 Material supplied by client
If the Graphic Designer and the client agree that the client is responsible for supplying the materials or equipment for the purposes of the Order:
(a) The client must supply sufficient quantities of materials to allow for spoilage, such quantity to be specified by the Graphic Designer;
(b) The Graphic Designer will not normally count or check the materials and if requested by the client to do so, may charge for counting or checking;
(c) The Graphic Designer will not be responsible for any defects in the Goods which are caused by defects in or the unsuitability of materials or equipment supplied by the client.
(d) Property in the materials supplied by the client and incorporated into the Goods passes to the Graphic Designer at the time of incorporation.
8.6 Temporary storage of client’s property
If the client leaves property in the Graphic Designer’s possession without specific instructions as to what is to be done with it, the Graphic Designer 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.
8.7 Electronic/magnetic media
Apart from media supplied by the client, all discs, CDs or other media used by the Graphic Designer to store the data for the purposes of completing the Order are the property of the Graphic Designer. However, the Graphic Designer will charge the clients for supplying any data so stored or created by the Graphic Designer upon their requests.
8.8 Storage of electronic data
The Graphic Designer will not be responsible storing any data on discs, tapes, CDs or other media when the Order has been completed, if the Graphic Designer agrees to store such data the Graphic Designer may charge for doing so.
8.9 Insurance of the client’s property
The Graphic Designer is not obliged to insure any properties that belong to the client in the Graphic Designer’s possession. The client may pay the cost of any insurance arranged by the Graphic Designer at the request of the client.
8.10 Ancillary materials
Unless the Graphic Designer and client made an agreement in advance, all materials or data used during the course of or in the preparation to complete the Order belongs to the Graphic Designer. Such materials like designs, discs, die-cut block, drawings, dummies, models, paintings, photographs, sketches, typesetting or any other media or data and other materials produced by the
Graphic Designer in the course of or in preparation for carrying out the Order.
8.11 Copyright
In regard to copyright of materials thus produced:
(a) The Graphic Designer retains their property rights to all literary and artistic works written or designed by the Graphic Designer.
(b) The client:
(i) warrants that the client has obtained the copyright in or a license from the appropriate author/s to authorise the Graphic Designer to reproduce, all artistic and literary works supplied by the client to the Graphic Designer to reproduce all and any of such works for the purposes of the Order; and
(ii) indemnifies and agrees to continue to indemnify the Graphic Designer against all liabilities, losses, claims or expenses incurred by the Graphic Designer in relation to or in any way directly connected with any breach of copyright or of any rights in relation to copyright in such literary and artistic works supplied by the client
(c) The client is hereby granted a non-exclusive license to sue the copyright in any literary and/or artistic works authored by the Graphic Designer for the purposes of the Order. However, the exercise of such license shall be conditioned upon the client paid
all monies payable to the graphic Designer under these Terms and Conditions.
8.12 Ideas
The client must keep confidential and not use any ideas communicated by the Graphic Designer to the client to a third party without the Graphic Designer’s written consent.
8.13 Waiver of right
It is the express intention of this clause that a right or power is not waived solely because the party entitled to exercise the right or power does not elect to do so. A single exercise of a right or power will not preclude any other or further exercise of that right or power or the exercise of any other right or power available to the party.
A write or power shall only be waived in writing, signed by the party to be bound by the waiver.
8.14 Severability
Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction so as to allow these Terms and Conditions to remain valid and enforceable.
8.15 Governing law and jurisdiction
These Terms and Conditions are governed by the laws of Western Australia. The parties submit to the non-exclusive jurisdiction of the courts of Western Australia and any courts which may hear appeals from those courts in respect of any proceedings in connection with these Terms and Conditions.
9. GOODS AND SERVICES TAX
9.1 Amount payable includes GST
All amounts due and payable and all disbursements in these Terms and Conditions are GST inclusive unless otherwise stated.
9.2 Artype Media is committed to assist clients in claiming GST
The Graphic Designer will do all things reasonably available to it to assist the client to claim GST on a timely manner for any input tax credits (as applicable). Artype Media maintains its registered status for GST purposes and issues tax invoices for supplies made under these Terms and Conditions on a timely manner or as requested by the client.