Terms & Conditions
In these conditions, unless the context requires otherwise,the following expressions shall have the following meanings:
"Digital", means Digital Ink Technologies Pty Ltd A.C.N. 084 271 170 of Factory 1&2, 74 Mason Street,Campbellfield Victoria;
"These Conditions", means these standard terms and conditions of sale;
"The Customer", the party named as customer in any invoice or other document issued by Digital which contains these conditions or otherwise any party to whom Digital supplies goods;
"The Order Acknowledgment", Digital's order acknowledgment;
"The Agreement", the agreement constituted by these standard terms and conditions;
"Goods", the goods and or services which are provided by Digital to the Customer;
"Sale", includes manufacture and supply.
2. Application and Variation of these Conditions
These Conditions shall be deemed to be incorporated in all agreements for the sale of any goods by Digital by the Customer. They shall apply to and in place of and prevail over any terms or conditions contained or referred to elsewhere or implied by trade custom, practice or course of dealing.
3. Formation of Contract and Cancellation
(a) Digital's catalogues, price lists and quotations do not constitute offers made by Digital. The Customer's order will be deemed to be an offer to Digital under these conditions, notwithstanding that such order contains terms and conditions which may purport to conflict or purport to add to or vary these conditions. If the Customer requires any additional provisions or variations to be made to these conditions Digital will only be bound if it agrees expressly in writing. Once agreement has been reached upon the goods and/or services to be provided the price and the estimated delivery date and any other key provisions required by Digital, Digital shall be entitled to forward to the Customer an Order Acknowledgment, whereupon the contract between the parties shall be complete. In the absence of an Order Acknowledgment, acceptance by a Customer of possession and/or delivery shall constitute acceptance or confirmation of previous acceptance of these conditions to the exclusion of all other terms or provisions.
(b) The Customer is not entitled to cancel any order after issue of the Order Acknowledgment without Digital's previous consent in writing. Such consent may be made conditional upon payment by the Customer of a cancellation charge, being an assessment of damage including lost profit suffered by Digital.
4. Improvement of Product
(a) Digital has a policy of continuous improvement to its products and reserves the right to alter the specification of standard items accordingly and to make changes to the materials and/or specifications provided at the end, performance or fitness for a particular purpose is not prejudiced.
5. Price and Variation of Price
(a) Any prices quoted or contained in any catalogue are firm for 30 days from the date of the quotation or the catalogue as the case may be and thereafter shall be subject to variation by Digital in its absolute discretion and without prior notice.
(b) If between the date of quotation or initial agreement on price and the date of delivery the price payable by Digital for materials used to produce the goods shall have increased for whatever reason Digital may increase the price of such goods and shall in writing so notify the Customer prior to the delivery date who shall accept the goods at the new price. Digital shall only increase the price of the goods by such amount as is necessary to compensate for the increased cost to Digital.
6. Invoicing and Payment
(a) Payment shall be made cash with order unless the Customer completes a commercial credit application provided by Digital and Digital approves the Customer's current credit rating where upon, full payment for all invoiced items shall be made within 30 days of the invoice date unless otherwise specified by Digital in writing. Cheques and payments shall be made payable to Digital. Payments by cheque shall not be deemed made until the cheques have cleared.
(b) Digital reserves the right at its discretion at any time to withdraw any credit terms and substitute cash with order or cash on delivery or any other terms.
(c) Unless otherwise expressly appropriated by Digital, payments shall be taken to discharge the Customer's oldest debt and shall first reduce any costs or interest outstanding before reducing the principal debt. The date of Digital's invoice will be the sole indication of the date of any sale for the purpose of applying moneys paid in reduction of outstanding amounts.
(d) The Customer shall pay the purchase price to Digital in Australian dollars. If the Customer fails to make payments on the due date, Digital may, in addition to taking any other action provided by these conditions:
(i) Charge interest on all overdue payments at two per centum (2%) per month from the due date until the date of payment; and
(ii) Suspend all further delivery of goods to be made under the agreement or further performance of any other contract with the Customer, in which event the Customer shall not be released in any respect from its obligations to Digital under the Agreement or any such other contract.
(a) All costs of freight, delivery and unloading the goods on their arrival at the agreed place of destination shall be borne by the Customer and Customer shall reimburse Digital for all such costs which it incurs on the Customer's behalf.
(b) If the Customer directs that delivery of the goods be by different instalments or to different addresses from those specified in the Agreement, then the Customer will be liable for any additional charges incurred by Digital in complying with the Customer's direction.
(c) Goods may at the discretion of Digital be imported or delivered using any mode of transport.
(d) The Customer is deemed to accept delivery of the goods when the goods are placed at the Customer's disposal at the agreed destination and all subsequent transportation of the goods shall be carried out at the expense and risk of the Customer whether carried out under its direction or not.
(e) If the Customer is unable or fails to accept delivery of the goods, Digital may deliver the goods to a place of storage nominated by the Customer and failing such nomination to a place determined by Digital. Such delivery shall be deemed to be delivery to the Customer at the agreed destination. The Customer shall be liable for all costs incurred by Digital due to storage, detention, double cartage or similar causes if these costs are caused by the Customer's inability or failure to accept delivery of the goods when delivered or ready for delivery by Digital.
(f) The Customer shall inspect the goods on receipt. Digital shall be under no liability in respect of damage of goods or incomplete delivery unless the Customer's written claim is received by Digital within 7 days of receipt of the goods (or in the case of missing or undelivered goods, within 14 days of the due date of receipt), followed by within 21 days of Digital's request such evidence of defect or shortage as Digital may reasonably request.
(g) Any period or date for delivery stated in the agreement is intended as an estimate only and is not a contractual commitment. The estimate is based on the Customer's total co-operation, the complete accuracy of the Customer's order and the absence of force majeure and will be deemed extended at Digital's option in the event of a variation in any of the foregoing. Digital will use its reasonable endeavours to meet any delivery dates to which it expressly agrees to in writing but in no circumstances whatsoever (including when Digital agrees time to be of the essence) shall Digital be liable for any loss or damage suffered by the Customer or any other person, and the Customer shall not be entitled to cancel the Agreement when time is agreed to be of the essence until the expiration of 7 days from receipt by Digital of a written notice that a delivery date has not been met and the Customer intends to terminate unless delivery occurs within 7 days.
(h) Digital may deliver the goods in one or more instalments. Each instalment shall be treated as a separate contract. Any claim by the Customer in respect of an instalment shall not entitle the Customer to reject the balance of the goods ordered by the Customer.
(i) The Customer shall take any action necessary on its part for timely delivery and/or shipment of the goods.
8. Claims and Returns
(a) Returns of goods will not be accepted unless:
(i) Prior authorisation has been given to the Customer by Digital to return goods and an authorisation number is obtained;
(ii) The goods are faulty by reason only that the quality of materials used for manufacturing the goods or the manufacturing process was defective;
(iii) The goods are returned by a carrier authorised by Digital;
(iv) The goods are accompanied by appropriate documentation which stipulates the invoice number, the Customer name and address, the authorisation number and the reasons for return.
(b) The foregoing provisions of this clause 8 shall apply equally to any replacement goods supplied by Digital.
(c) Digital accepts no liability:
(i) If the goods have not been used, stored, or maintained as recommended by Digital;
(ii) Where the Customer has failed to observe the terms of payment for the goods or any other obligation imposed by these terms and conditions.
9. Limitation and Exclusion
(a) Although it will use its best endeavours to satisfy any customer complaint in relation to the goods Digital shall be under no liability to the Customer for any damages or losses, direct or indirect, resulting from defects in design, materials or workmanship.
(b) Digital shall have no liability for any indirect or consequential losses or expenses suffered by the Customer, however caused.
(c) EXCEPT AS SPECIFICALLY SET OUT IN THE AGREEMENT, ANY TERM, REPRESENTATION, CONDITION OR WARRANTY IN RESPECT OF THE QUALITY, CONDITION OR DESCRIPTION OF THE GOODS, WHETHER IMPLIED BY STATUTE, COMMON LAW, TRADE USAGE, CUSTOM OR OTHERWISE IS HEREBY EXPRESSLY EXCLUDED.
(d) Nothing in these conditions shall be interpreted as excluding or restricting any legal liability of Digital for death or personal injury resulting from the negligence of Digital, its employees, agents, or subcontractors and shall be read subject to the provisions of the Trade Practices Act 1974 (as amended) ("the Act") and any other similar state or territorial legislation which cannot be lawfully excluded. These conditions shall have the maximum effect permitted by law.
(e) In all cases other than where the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption the liability of Digital for a breach of a term or condition implied by the Act or similar state or territorial law (other than by Section 69 of the Act or corresponding section of any similar state or territorial act or ordinances) shall be limited at Digital's option to:
(i) The replacement of the goods or the supply of equivalent goods;
(ii) The payment of the cost of replacing the goods or acquiring equivalent goods;
(f) In the event of Section 74(H) of the Act or corresponding section of any similar state or territorial act or ordinances applying to these conditions then, notwithstanding such section, in the case where the goods are goods other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption the liability of Digital under the aforesaid section shall be limited to the liability to pay to the Customer an amount equal to the lowest of:
(i) The cost of replacing the goods;
(ii) The cost of obtaining equivalent goods;
The Customer agrees that it is best able to assess and provide its own insurance needs. The Customer acknowledges that it is reasonable for Digital to sell the Goods and fix their price on the basis of the exclusions and limitations of liability set out in these Conditions, and the Customer agrees that it will be responsible for effecting such insurance cover as is suitable for its business in the light of any loss or damage that might arise from Digital's negligence or breach.
11. Health and Safety
(a) The Goods are designed to be used without danger to health and safety where correctly used in accordance with any relevant standards, design ratings, and accepted good industrial practice. The Customer shall first obtain Digital's written approval before using the Goods under unusual conditions.
(b) the Customer shall comply with all legislation and statutory rules currently in force as amended from time to time and any new legislation or statutory rules pertaining to the storage, transport and handling of dangerous goods and occupational health and safety generally as are applicable in the transport, storage and handling of the goods.
12. Intellectual Property
If it is alleged that the use or possession of the Goods by Customer infringes any third party intellectual property rights then Customer shall promptly notify Digital in writing of any alleged infringement.
13. Passing of Property
(a) The Goods shall remain the property of Digital as legal and equitable owner and no property in or title to the Goods shall pass to the Customer until all monies outstanding for all Goods supplied by Digital to the Customer have been duly paid to Digital. Pending legal and beneficial ownership of the Goods passing to the Customer, the Customer: (i) shall keep the Goods in good condition; (ii) shall keep the Goods fully insured in their full replacement value against all risks prudently insured against; (iii) shall not encumber the Goods in any way; and (iv) shall hold and keep the Goods separately from other property in the possession of the Customer and in a manner which enables the Goods to be easily identifiable as Goods supplied by Digital.
(b) Failure to pay the price for the Goods when due shall, without prejudice to any other remedies Digital may have, entitle Digital to repossess the Goods or so much thereof as Digital may determine from any premises where they may be. For the purpose of repossessing the Goods or any part thereof the Customer hereby grants an irrevocable licence to Digital, its employees or agents, to enter upon such premises as Digital reasonably suspects the Goods may be located, using such reasonable force as is necessary and without being liable for any damage thereby caused and the Customer shall pay to Digital the cost of removal and transport of the Goods or any part thereof.
(c) The Customer may in the ordinary course of its business sell and deliver the Goods in which the property remains with Digital to any third party as Digital's agent in a fiduciary capacity and for the account of Digital. The Customer shall upon request assign to Digital the legal title of any right against any third party arising out of such sale. The Customer shall be entitled to receive from Digital by way of commission the excess of the proceeds of sale over the amounts due to Digital from the Customer.
(d) Notwithstanding the provisions of this Condition, Digital shall be entitled to bring an action against the Customer for the price of the Goods in the event of non-payment by the Customer by the due date as if the property in the Goods had already passed to the Customer and/or shall have the right by notice in writing to the Customer at any time after the agreed delivery date to pass the property in the Goods to the Customer as from the date of such notice.
14. Insolvency and Default
(a) Digital may by notice in writing to the Customer suspend performance of Digital's obligations pursuant to this Agreement (with any delivery dates being deemed extended by the duration of the suspension) and/or terminate this or in its absolute discretion any other contracts with the Customer so far as unperformed by Digital forthwith if:-
(i) The Customer shall commit any breach of any of the terms (including, without limitation, terms concerning the time for payment of the purchase price) of this or any other contract with Digital;
(ii) The Customer compounds with or negotiates for any composition with its creditors generally;
(iii) being an individual, the Customer shall die, become permanently incapacitated, or have a trustee appointed or a receiving order made against him or commit any act of insolvency;
(iv) being a body corporate or legal persona, the Customer shall call any meeting of its creditors or have a liquidator, provisional liquidator, official manager, mortgagee, mortgagee's agent, receiver or administrator of all or any of its assets appointed or enter into any liquidation (other than solely for reconstruction or amalgamation while solvent) or commit any other act of insolvency;
(v) the financial position of the Customer, or some other fact or circumstance, leads Digital to believe on reasonable grounds that the Customer is likely to materially fail to complete its obligations under this Agreement;
(vi) a period of suspension continues for fourteen (14) days or longer.
(b) In the event of such termination:-
(i) The Customer shall forthwith on demand deliver to Digital any Goods which are in the possession or control of the Customer but in which the property remains with Digital and, in default thereof, Digital shall be entitled to repossess the same in accordance with clause 13(b) and the Customer shall indemnify Digital from and against any liability to any third party in respect of any such damage and from and against all actions, proceedings, claims, demands, costs, damages and expenses howsoever arising; and
(ii) Digital shall be entitled by notice in writing to the Customer to declare immediately due and payable any amounts outstanding from the Customer to Digital under this or any other contract (such sums thereby becoming forthwith due and payable); and
(iii) Digital may claim damages from the Customer for breach of the Agreement.
(c) The remedies of suspension and termination are not mutually exclusive and the same act or breach may constitute grounds for suspension followed by termination. In addition the provisions of paragraphs (a), (b) and (d) of this condition and the exercise by Digital of its rights thereunder are without prejudice to any other rights of Digital.
(d) In the event of suspension by Digital, Digital shall give written reasons to the Customer immediately and the Customer shall respond in writing promptly, provided that no reasons need be given if Digital decides to terminate the agreement.
(e) Any exercise by Digital of its rights of suspension and termination will be without liability for any and all direct or indirect loss or damage thereby caused to the Customer.
15. Force Majeure
(a) Neither party shall be liable for breach of the Agreement other than payment if and to the extent that fulfilment of a term or condition hereof has been prevented hindered or delayed by force majeure as defined in condition 15(b) below, and in such event that time for fulfilment of such a term shall be extended for such period as is reasonable in all the circumstances.
(b) The expression "force majeure" shall mean any event or circumstance beyond the immediate control of either party, including without prejudice to the generality of the foregoing, strikes, lock-outs, trade disputes, accident to plant or machinery, shortage of any material, riots, civil commotion, war national or international, emergency, destruction or damage due to natural forces, fire, flood, explosion, and compliance with orders or requests of any national or local authority.
Each party shall keep confidential any trade secrets or other confidential information of the other party including any information, document or item which may not otherwise at law be classified as confidential but which is commercially sensitive and has the word "CONFIDENTIAL" written upon it clearly.
17. Interpretation and Law
(a) Headings are included in these Conditions for convenience and identification only, and are not to be taken to limit the meaning of any part of these Conditions.
(b) If any provision or part of a provision of the Agreement should be held unenforceable or in conflict with the law of any relevant jurisdiction, any part so held unenforceable or invalid shall be read down to the minimum extent necessary to render it enforceable and valid, and if incapable of being read down it shall be severed from the remainder of the Agreement which shall not be affected by such severance.
(c) The Agreement represents the complete agreement between Digital and the Customer with regard to the Goods and contains all agreements, warranties, conditions, representations and other terms agreed, made or relied upon by either party in connection with the Goods.
(d) The rights of Digital shall not be prejudiced or restricted by any indulgence or forbearance extended to the Customer and no waiver of any breach shall operate as a waiver of any subsequent breach.
(e) These Conditions and every contract connected therewith shall for all purposes by governed by the laws of the State of Victoria and the parties hereby submit to the exclusive jurisdiction of the Victorian Courts in connection with the determination of any matters concerning or arising from the Agreement.
(f) Except to the extent that the context otherwise requires:
(i) words importing the singular include the plural and vice versa;
(ii) words importing a gender include other genders and corporations and vice versa:
(iii) word importing individuals include corporations and vice versa;
(iv) where the customer comprises two or more persons those persons are jointly and severally bound by these Conditions and a reference to the customer includes a reference to any one or more of those persons;
(v) a reference to a party to these conditions includes its successors and permitted assigns.