The term “the Company” refers to Olympia Publishing Pty Ltd (ABN 70 074 707 190) Trading as Cody Group and the term “the Buyer” refers to the party described there as on the reverse hereof. This contract shall consist of the terms and conditions set out hereunder and on the reverse hereof (“the Order”). All other conditions, warranties, descriptions and representations, whether express or implied by law, trade, custom or otherwise are expressly excluded. No agent or representative of the Company is authorised to make any representations, statements, conditions or agreements not expressly confirmed by the Company in writing and the Company is in no way bound by any such unauthorised statements nor shall any such statements be capable of being taken to form part of a contract with the Company collateral to this Contract.
The Order is subject to acceptance by the Company and shall not at any time be withdrawn or varied without the consent in writing of the Company. On acceptance, the Company agrees to sell and the Buyer agrees to purchase the number of goods answering the description stated on the Order for the price stated thereon in accordance with the terms and conditions of this Contract.
Delivery shall be deemed complete upon delivery to the address specified in the Order and the goods shall be at the risk of the Buyer as from deemed delivery. Notwithstanding anything else contained herein the deemed delivery of the goods shall be accepted on the deemed delivery date even if the Company is unable to make delivery on or about the delivery date specified in the Order. The Company shall not be liable for failure to deliver the goods on or about the delivery date or for late delivery whether occasioned by strike, difficulty in acquiring suitable materials, shortage of labour, delays in transportation or transit, legislative, Governmental or other prohibitions or restrictions, fire, flood, hostilities or other causes whatsoever (whether similar in nature or not to the foregoing) beyond the reasonable control of the Company of otherwise including, but not limited to the buyer failing to promptly provide to the company any artwork, film, blocks, materials or proofs or other information required by the Company to complete the order.
The Company will endeavour to deliver the exact quantity of goods ordered but reserves the right to deliver the amount of the order plus or minus 5% and the Buyer shall accept such quantity as delivered and pay for the same at the same contract rate. Such delivery shall be deemed full settlement of the Buyer’s order and the Buyer shall be given credit for any short orders.
The liability of the Company whether in contract or in tort for any loss or damage or injury arising directly or indirectly from any defect or non-compliance of the goods supplied is limited to replacement or repair of such goods or damages not exceeding the invoice value of such defective or non-complying goods at the option of the Company. The right to reject non-conforming goods shall be limited so as to be effective only if rejection and the reasons therefore are notified in writing to the Company within 7 days of delivery of the goods. Should the Company, notwithstanding the said notice, have the benefit of an exclusion clause in this Contract then the said notice shall be and shall be deemed to be of no effect whatsoever.
Any artwork film blocks proofs transparency or other material or information provided to the Company by the buyer shall be at the risk and responsibility of the buyer at all times and the buyer shall fully insure against any loss or damage.
When goods to be supplied by the Company to the Buyer are specifically ordered to be manufactured to the Buyer’s specifications any such specifications are to be stipulated on the Order in such a way as to clearly and unambiguously describe how the goods are to be manufactured and the parties agree that the responsibility of ensuring that such description is clear and unambiguous shall rest with the Buyer.
Ownership and property in and title to the goods shall remain with the Company and shall not pass to the Buyer until the Company has received all sums owing from the Buyer whether under this Contract or any other agreement. Until the Company has received all sums as set out in the preceding sentence:
(a) The Buyer shall keep the goods as a fiduciary for the Company;
(b) The Buyer shall keep the goods in a manner as they can be clearly identified as the property of the Company; and (c) If the goods are purportedly sold by the Buyer the Company shall have a right to trace the proceeds thereof both under this Contract and at law or equity.
Notwithstanding the provisions of the previous clause, the Buyer may sell the goods to a third party in the ordinary course of business and deliver or arrange for the Company to deliver them to that party subject to:
(a) Where the Buyer is paid in full by the party the Buyer shall hold those proceeds of sale in trust for the Company, and
(b) Where the Buyer is not paid in full by the party the Buyer shall at the option of the Company assign its claim against that party to the Company upon the Company giving the Buyer written notice to that effect. For the purposes of giving effect to and perfecting the agreement specified in this clause, the Buyer irrevocably appoints the Company and each and every director, manager and officer of the Company jointly and each of them severally as its attorneys. The parties agree that the provisions of this clause apply notwithstanding any agreement whether subsequent to this Contract or not.
The Buyer will upon the expiration of 14 days after deemed delivery of the goods by the Company accept and be deemed to accept, for all purposes, the goods as delivered and the Buyer shall forthwith pay the total price due to the Company at Perth in the State of Western Australia without reduction and free of exchange. Any expenses costs of disbursements incurred by the Company in recovering any outstanding monies from the Buyer including debt collection agency fees and solicitor’s costs shall be paid forthwith on demand by the Buyer.
Where the goods are manufactured wholly or partly in accordance with the Buyers artwork, design, specification or drawing the Buyer shall indemnify and keep indemnified the Company, its servants, agents and/or sub-contractors against any damages relating to any infringement of any patent, registered design or breach of copyright resulting from the manufacture, sale or use of the goods and against all costs, damages, and expenses as a result of such infringement or alleged infringement and any proceedings (whether in a court of law or otherwise) relating thereto.
The Buyer and the Company agree that unless the Order specifically states to the contrary should the Buyer fail to pay the price due to the Company within the time stipulated in clause 10 hereof interest will accrue from day to day on the unpaid purchase price at the rate of 17.5 per centum per annum which interest shall be and be deemed to be part of the purchase price and may be recovered in any suit concerning the same and further it is agreed by the Buyer and the Company that the Company may charge interest upon interest at the said rate.
The Company, its servants, agents and/or sub-contractors shall not be liable for any error which may occur in rendering the artwork into the finished product when the finished product either forms the goods or part of the goods if the error is contained within the camera-ready artwork supplied by the Buyer to the Company or the Buyer does not supply to the Company camera-ready artwork.
Nothing in this Contract shall be construed as avoiding or attempting to avoid the implied warranties and/or conditions of the Trade Practices Act, 1974 (as amended) which that Act stipulates cannot be avoided.
This Contract is the complete and exclusive statement of the Contract between the parties hereto and supersedes all proposals, representations or prior agreements, oral or written, and all other communications between the parties with respect to the subject matter of this Contract. This Contract may not be varied in any way except in writing signed by authorised representatives of both parties.
All notices or other communications under this Contract shall be deemed to have been duly served if sent by pre-paid post or delivered to the party concerned at that party’s address shown in this Contract or such other address as either party may advise in writing to the other.
If either party hereto shall fail to perform any of its obligations hereunder and the other party shall not enforce on that obligation, the failure to enforce on that occasion shall not prevent enforcement of that obligation or any other obligation on any other occasion.
All obligations accrued but unfulfilled prior to termination or expiration of this Contract shall survive such expiration or termination.
This Contract shall be governed by the laws of the State of Western Australia which State shall also be the designated forum for the resolution of disputes.
Should any one or more provisions of this Contract be determined to be illegal or unenforceable all other provisions of this Contract shall be given effect separately from the provision or provisions determined to be illegal or unenforceable and shall not be affected thereby.
Catalogues, price lists, advertisements or other published matter are only indications of the type of goods available and shall not form a part of any contract with the Buyer nor be considered a collateral warranty or a representation inducing same.
The Company reserves the right to vary designs specifications materials packaging or to modify any goods supplied without prior notice provided that such alterations shall not to a material extent seriously adversely affect the performance of any goods or the quality of the workmanship or materials used.
In the event of the Buyer failing for any reason to make any payment which may be due under any contract with the Company or being in breach or anticipated breach of any of the provisions, undertakings or terms of conditions hereof or any contract with the Company or becoming insolvent or entering into a composition with or for the benefit of its creditors or being a body corporate having a receiver appointed of its undertakings or assets or any part thereof or (save for the purposes of reconstruction or amalgamation) going into liquidation the Company shall thereupon be entitled without prejudice to its other rights forthwith to determine the whole of or any unfulfilled part of any contract between the Company and the Buyer and in the event of such determination, the Company shall not be under any obligation to supply any further goods under any such contract and the Buyer shall indemnify the Company against all loss (including loss of profit) costs (including costs of labour and materials) and all expenses suffered by the Company by reason of such determination.
These conditions are entered into on behalf of and are intended to bind and enure for the benefit of the Company and its successors and assigns. The provision of the conditions, including this one, shall be given a large and liberal interpretation in favour of the Company so that the Contra Proferentem Rule shall not apply in any case against or to the disadvantage of the Company.