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TERMS & CONDITIONS OF SALE

The following Terms and Conditions constitute the entire agreement between the parties and supersede any previous agreements, warranties, representations, undertakings or understandings between the parties and may not be varied except in writing.

1.             Definitions
(a) “CCS” means CCS Media Packaging the party providing the goods or services under these terms and conditions.
(b) “customer” means the party contracting with CCS to acquire the goods and services supplied under these terms and conditions and includes any parties nominated by the customer to place orders on their behalf.
(c) “Work” means all goods (by way of intermediate or finished product) and services supplied by CCS to the customer.
(d) “Intermediates” means all products produced during the manufacturing process including non-exhaustively discs, film, plate, intellectual property.
(e) “Preliminary Work” means all work done in the concept and preparatory stages (including non-exhaustively design, artwork, colour matching).
(f) “Electronic File” means any text, illustration or other matter supplied or produced by either Party in digitized form on disc, through a modem, or by ISDN or any other communication link.
(g) “Periodical Publications” means publication produced at (normally regular) intervals.
(h) “Insolvency” means the customer is in a position where it is unable to pay its debts or has a winding up petition issued against it or has a receiver, administrator or administrative receiver appointed to it or being a person commits an act of bankruptcy or has a bankruptcy petition issued against him.
(i) “GST” means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(j) “Interest Rate” means the aggregate of four per centum (4%) and the rate of interest expressed as a percentage per annum charged by the Commonwealth Bank of Australia from time to time on Overdraft Accounts exceeding One Hundred Thousand Dollars

2.             Quotes
(a) CCS to supply quote
CCS may if, requested, give a quote specifying: (a) the work required to be done in order to fulfill the instructions; and (b) an estimate of CCS’s charge for the performance of such work exclusive of GST.
(b) Acceptance by Customer
Where CCS has given a Quote: (a) CCS need not commence work until the Quote has been accepted by the customer. (b) The customer may accept the Quote by instructing (orally or in writing) CCS to commence work in accordance with the Quote. (c) Acceptance by the customer of the Quote will constitute acceptance by the customer of these Terms and Conditions.
(c) Quote evidence of instructions
If a written Quote is accepted by the customer, the work the subject of the quote shall be carried out and the customer shall pay for the work in accordance with these Terms and Conditions
(d) CCS may revise Quote
CCS may amend any Quote before the Order has been completed to take into account any rise or fall in the cost of performing the Order and CCS shall notify the customer of such amendment as soon as practicable thereafter.  Upon CCS giving the customer notification of such amendment such amended Quote shall be and be deemed to be the Quote for the purposes of these Terms and Conditions.

3.             Payment
(a) All work carried out shall be charged. This includes all Preliminary Work whether or not the customer agrees to that work being taken forward to production.
(b) Any additional work required of CCS by reason of the customer supplying inadequate copy, incomplete or incorrect instructions or insufficient materials; or late delivery of the same shall be charged.
(c) Payment shall become due before delivery of the Work. CCS, at its absolute discretion, may ask for part or full payment in advance of starting the Work.
(d) If Credit Facilities have been granted, payment is due by the end of the month following the month of Invoices. If any item(s) remain unpaid by that due date charges will apply. In addition, all invoices will become due and payable immediately and will be treated as overdue items, with appropriate charges applied and all costs reasonably incurred in collecting the debt payable by the customer.
(e) Unless otherwise agreed in writing, the price of the Work will be “ex-works” and delivery shall be charged extra.
(f) Should the Work be suspended or delayed by the customer for any reason the CCS shall be entitled to charge for storage and for loss of or wastage of resources that cannot otherwise be used.
(g) Should the suspension or delay in 3f) above extend beyond 30 days CCS shall be entitled to immediate payment for work already carried out, materials specially ordered and any other additional costs.

4.             Credit Facilities
Credit facilities may be granted to applicants who complete CCS’s Credit Application Form and who satisfy CCS’s criteria as set out from time to time.  Where facilities are granted CCS reserves the right to withdraw them at any time, without having to give their reasons, and, in such a case, all outstanding invoices become due and payable immediately.  Payment terms are 30 days from the date of the invoice unless otherwise agreed in writing and specified on the invoice.

5.             Delivery
(a) Delivery of the Work shall be accepted when tendered.
(b) Unless otherwise agreed in writing completion and delivery times are a guide only and, whilst CCS will make every effort to adhere to proposed timescales, time is not of the essence in any contract with the customer.
(c) Unless otherwise agreed in writing, (in which case an extra charge may be made) delivery will be to kerbside at the customer’s address and the customer will make arrangements for off-loading and for any additional transportation to its storage facility.
(d) Subject to any agreement as per 5(c) above, delivery involving difficult access and/or unreasonable distance from vehicular access shall entitle CCS to make an extra charge to reflect its extra costs.
(e) Should expedited delivery be agreed CCS shall be entitled to make an extra charge to cover any overtime or any other additional costs.

6.             Materials supplied or specified by the customer
6.1          Electronic Files
(a) It is the customer’ responsibility to ensure that the proposed use of any Electronic File provided by the customer complies with any legal obligations attached to the Electronic File. The customer agrees to indemnify CCS for any loss or damage as a result of breach of this clause by the customer including but not limited to any legal costs.
(b) Maintain a copy of any original Electronic File provided by the customer.
(c) CCS shall not be responsible for checking the accuracy of supplied input from an electronic file unless otherwise agreed in writing.
(d) Without prejudice to clause 6.2(b), if an electronic file is not suitable for outputting on equipment normally adequate for such purposes without adjustment or other corrective action CCS may make a charge for any resulting additional cost incurred or may reject the file without prejudice to his rights to payment for work done/material purchased.
6.2 Other Materials
(a) Metal, film and other materials owned by the customer and supplied to CCS for the production of type, plates, film-setting, negatives, positives, electronic files and the like shall remain the customer’s exclusive property. However where the content is generated by CCS, CCS may, in order to protect it’s intellectual property rights and at it’s absolute discretion, replace such material with unused material of a similar or better quality.
(b) CCS may reject any film, discs, paper, plates, electronic files or other materials supplied or specified by the customer which appear to it to be unsuitable for the purpose intended. Additional cost incurred if materials are found to be unsuitable during production may be charged except that if the whole or any part of such additional cost could have been avoided but for unreasonable delay by CCS in ascertaining the unsuitability of the materials then that amount shall not be charged to the customer.
(c) Without prejudice to clause 6.2.b, where materials are so supplied or specified, and CCS so advises the customer and the customer instructs CCS in writing to proceed anyway, CCS will use reasonable endeavors to secure the best results, but shall have no liability for the quality of the end-product(s).
(d) Quantities of materials supplied shall be adequate to cover normal spoilage. Any costs incurred as a result of shortages, including restarting jobs, duplicating masters etc will be charged in addition to the estimated price.
6.3 Risk and storage
(a) Customer’s property and all property supplied to CCS by or on behalf of the customer shall while it is in the possession of CCS or in transit to or from the customer are deemed to be at customer’s risk unless otherwise agreed in writing and the customer should insure accordingly.
(b) CCS shall be entitled to make a reasonable charge for the storage of any customer’s property left with CCS before receipt of the order or after notification to the customer of completion of the work.
6.4     Finished Goods
(a) The risk in the Work and all goods delivered in connection with the work shall pass to the customer on delivery and the customer should insure accordingly.
(b) On completion of the work, CCS will store the customer’s materials and Work for a maximum of one month, after which time they will be destroyed without further notice.
6.5    Materials and equipment supplied by CCS
(a) Metal, film and other materials owned by CCS and used in the production of intermediates, type, plates, film-setting, negatives, positives, electronic files and other production processes, together with items thereby produced, shall remain CCS’s exclusive property.
(b) Type shall be distributed and film and plates, tapes, discs, electronic files or other work destroyed immediately after the order is executed unless written arrangements are made to the contrary. In the latter event, storage shall be charged.
(c) CCS shall not be obliged to download any digital data from its equipment or supply the same to the customer on disc, tape or by any communication link. 

7. Personal Property Securities Act 2009 (Cth) (PPSA)
(a) The customer acknowledges that:
a./ each order accepted by CCS constitutes a security interest and to the extent applicable a purchase money security interest for the purposes of the PPSA enabling CCS to register a financing statement under the PPSA with respect to the security interest; and
b./ a security interest and where applicable a purchase only security interest securing the performance of the customers obligations is taken in all the Work and goods previously supplied by CCS to the customer (if any), and all Work and goods that may be supplied to the customer in the future by CCS to the customer and the proceeds of sale of the Work and goods.
(b) The customer must ensure that no security interest (within the meaning of the PPSA) is created, exists or subsists over the Work or goods (including any replacement part or other item that is incorporated into any work or goods), in the customer’s possession or control prior to title to the Work and goods passing to the customer other than a security interest arising under these Terms and Conditions.
(c) The customer must assist CCS to complete the registration of any financing statement in respect of the Work and goods, and will do all things and provide all information necessary to enable CCS to perfect it’s security interest in the Work and goods and complete any financing change statement.
(d) To the extent permitted by law the customer irrevocably waives any rights it may have to receive notices under ss 121(4), 130, 132(3)(d), 132(4) and 135 of the PPSA, redeem the Work or goods following seizure by CCS under s 142 or reinstate a security agreement following termination under s143.
(e) The customer agrees that they irrevocably waive any rights they may have to receive a verification statement (as defined in the PPSA).

8. Proofs and variations
(a) CCS shall incur no liability to any errors not corrected by the customer where the customer has been provided with proofs. The customer’s alterations and additional proofs necessitated thereby shall be charged extra.  When style, type or layout is left to CCS’s judgement, changes therefrom made by the customer shall be charged extra.
(b) Where the customer specifically waives any requirement to examine proofs CCS is indemnified by the customer against any and all errors in the finished work.
(c) Colour proofs due to differences in equipment, paper inks and other conditions between colour proofing and production runs, a reasonable variation in colour between colour proofs and the completed job will be deemed acceptable unless otherwise agreed in writing.
(d) Variations in quantity
Every endeavor will be made to deliver the correct quantity ordered, but estimates are conditional upon margins of five percent (5%) for work being allowed for overs or unders the same to be charged or deducted, unless otherwise agreed in writing.

9. Claims and Liability
9.1 Claims
(a) Advice of damage, delay or loss of goods in transit or of non-delivery must be given in writing to CCS and the carrier within three clear days of delivery (or, in the case of non-delivery, within 3 days of notification of dispatch of the goods) and any claim in respect thereof must be made in writing to CCS and the carrier within seven clear days of delivery (or, in the case of non-delivery, within 7 days of notification of dispatch). All other claims must be made in writing to CCS within 14 days of delivery.  CCS shall not be liable in respect of any claim unless the aforementioned requirements have been complied with except in any particular case where the customer proves that (i) it was not possible to comply with the requirements and (ii) the claim was made as soon as reasonably possible.
(b) If the Work is defective so that the customer may in law reject it, said rejection must take place within 7 days of delivery of the goods, failing which the customer will be deemed to have accepted the Work.
(c) In the event of all or any claims or rejections CCS reserves the right to inspect the Work within seven days of the claim or rejection being notified.
9.2 Liability
(a) Insofar as is permitted by law where Work is defective, or does not comply with any statutory requirements, for any reason, including negligence, CCS’s liability (if any) shall be limited to rectifying such defect, or crediting its value against any invoice raised in respect of the Work.
(b) Where CCS performs its obligations to rectify defective Work under this condition CCS shall not be liable for indirect loss, consequential loss or third party claims occasioned by defective work and the customer shall not be entitled to any further claim in respect of the Work nor shall the customer be entitled to repudiate the contract, refuse to pay for the work or cancel further deliveries.
(c) Defective Work must be returned to CCS before replacement or credits can be issued. If the subject Work is not available to CCS CCS will hold that the customer has accepted the Work and no credits or replacement Work will be provided.
(d) CCS shall not be liable for indirect loss, consequential loss or third party claims occasioned by delay in completing the work or for any loss to the customer arising from delay in transit, whether as a result of CCS’s negligence or otherwise.
(e) Where CCS offers to replace defective Work the customer must accept such an offer unless he can show clear cause for refusing so to do. If the customer opts to have the work re-done by any third party without reference to CCS the customer automatically revokes his right to any remedy from CCS, including but not exclusively the right to a credit in respect of Work done by CCS.
(f) Where the Work will be forwarded by or on behalf of the customer to a third party for further processing the customer will be deemed to have inspected and approved the Work prior to forwarding and CCS accepts no liability for claims arising subsequent to the third party’s processing.
(g) CCS reserves the right to reject any work forwarded to it after initial processing by a third party as soon as it reasonably practicable without processing the work any further. Should the customer require CCS notwithstanding to continue, then CCS is only obliged to do so after confirmation from the customer in writing.
(h) Nothing in these conditions shall exclude CCS’s liability for death or personal injury as a result of its negligence.

10.              Insolvency
Without prejudice to other remedies, if the customer becomes insolvent, CCS shall have the right not to proceed further with the contract or any other work for the customer and be entitled to charge for work already carried out (whether completed or not) and materials purchased for the customer, such charge to be an immediate debt due to it.  Any unpaid invoices shall become immediately due for payment.

11.              General Lien
Without prejudice to other remedies, in respect of all unpaid debts due from the customer CCS shall have a general lien on all goods and property of or provided by the customer in it’s possession (whether worked on or not) and shall be entitled on the expiration of 14 days’ notice to dispose of such goods or property as agent for the customer in such manner and at such price as he thinks fit and to apply the proceeds towards such debts, and shall when accounting to the customer for any balance remaining be discharged from all liability in respect of such goods or property.

12.             Illegal matter
(a) CCS shall not be required to print any matter which in its opinion is or may be of an illegal or libelous nature or an infringement of the proprietary or other rights of any third party.
(b) CCS shall be indemnified by the customer in respect of any claims, costs and expenses arising out of the printing by CCS for the customer of any illegal or unlawful matter including matter which is libelous or infringes copyright, patent, design or any other proprietary or personal rights. The indemnity shall include (without limitation) any amounts paid on a lawyer’s advice in settlement of any claim that any matter is libelous or such an infringement. 

13.             Periodical publications
A contract for the printing of a periodical publication may not be terminated by either party unless 13 weeks notice in writing is given in the case of periodicals produced monthly or more frequently or 26 weeks notice in writing is given in the case of other periodicals.  Notice must be given after completion of work on any one issue.  Nevertheless CCS may terminate any such contract forthwith should any sum due thereunder remain unpaid.

14.             Force majeure
CCS shall be under no liability if it shall be unable to carry out any provision of the contract for any reason beyond its reasonable control including (without limiting the foregoing): Act of God; legislation; war; fire; flood; drought; inadequacy or unsuitability of any instructions, electronic file or other data or materials supplied by the customer; failure of power supply; lock-out, strike or other action taken by employees in contemplation or furtherance of a dispute; or owing to any inability to procure materials required for the performance of the contract.  During the continuance of such a contingency the customer may by written  notice to CCS elect to terminate the contract and pay for work done and material used, but subject thereto shall otherwise accept delivery when available.

15.             Data Protection
The customer is hereby notified that the seller may transfer personal information about the customer to a Credit Agency pursuant to clause 2d) above.

16.            Assignment
CCS Media Packaging Pty Ltd ABN 27 137 328 539 may, without the customer’s consent, assign its rights and obligations under this agreement and will notify the customer within 30 days of any such assignment.

17.             Law
These conditions and all other express and implied terms of the contract shall be governed and construed in accordance with the laws of New South Wales and the parties agree to submit to the jurisdiction of the courts of New South Wales.

18.             Notices
All specification and notices relied on by either party and all variations to this agreement must be in writing and include a duly authorised signature.

19.             Consumers
Nothing in these Terms shall affect the rights of consumers.

20.             Severability
All clauses and sub-clauses of this Agreement are severable and if any clause of identifiable part thereof is held to be unenforceable by any court of competent jurisdiction then such enforceability shall not affect the enforceability of the remaining provisions or identifiable parts thereof in these Terms and Conditions.