TERMS AND CONDITIONS
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Terms and Condition of Supply
These Conditions of Contract set out below apply to all orders accepted by Local Print and Distribution (ABN 78 736 540 110) (“LPD”), to all LPD quotes accepted by a customer or potential customer (“Customer”) and to all contracts for the purchase of services from LPD.
Without limiting the specific provisions set out below, we draw to your attention the following key conditions upon which LPD’s services are provided:
- Your materials will be collated with the materials of other customers and be distributed in the course of LPD’s normal scheduled distributions.
- Your materials will be distributed by independent contractors who are not directly supervised by LPD. LPD does not accept responsibility for any delays or incorrect or failed deliveries. LPD does not guarantee that every household within the agreed distribution areas will receive materials at all, or all materials in a delivery bundle. Matters such as lack of unimpeded access, safety issues, inclement weather, “no advertising material” directions, full letterboxes, and incorrectly labelled quantities are just some of the factors that affect the household delivery rate
- The household delivery rate is also affected by unallocated areas. That is, at any point in time, a particular area may not have a contractor assigned to it, and therefore, your materials may not be delivered in that area. Our charges are ALL INCLUSIVE and the fact that some areas may not be allocated does not entitle you to a refund to all or a part of the service or print charges, even if a particular area has been unallocated for a long period of time.
- You must ensure that your materials are bundled and/or labelled in the manner specified by LPD, including any maximum weight requirements, and delivered to LPD within the time frames specified by LPD. - It is your responsibility to ensure that your materials do not contain illegal or offensive content or content which might infringe the rights of any third party or breach any law. LPD reserves the right to reject any materials for distribution.
- In the case of the provision of print services it is your responsibility to check the proofs provided by LPD to you before printing.
- Unless otherwise agreed in writing, LPD requires payment of its charges before providing any services.
- LPD does not guarantee the outcome of any marketing campaign of which the distribution of your materials forms part.
- LPD will not be liable or responsible for any loss or damage to your materials. As with any delivery or common carrier, risk of loss or damage remains with you and you must insure your materials.
- You are responsible for and must indemnify LPD in respect of, any claim, loss or damage, arising out of or relating to, the content of your materials which you give LPD to distribute. The content of your materials must comply with all applicable laws. For example, product safety laws, election notice laws, laws prohibiting misleading advertising etc
Where used in these Conditions of Contract:
“GST” means a goods and services tax imposed under the GST Law.
“GST Amount” means the amount of GST payable in respect of a Taxable Supply calculated by applying the appropriate rate of GST in accordance with the GST Law.
“GST Law” has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999, or, if the Act does not apply for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia, and any regulation made under the Act. Page 2 of 8
“Laws” means legislation, regulations, ordinances, codes, or standards.
“Materials” refers to any advertising, promotional or printed material, data, data files, or other information, material or goods provided by the Customer to LPD for purposes of the Services.
“Personal Information” means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
“Pre-Print Materials” means any logos, images, copyrighted text and/or other data, files, information and intellectual property supplied by the Customer to LPD for incorporation into any printed materials.
“Privacy Laws” refers to Privacy Act 1988 (Cth) and the National Privacy Principles contained in that Act.
“Services” refers to the services to be provided by LPD as may be referred to and provided for in any accepted order or quotation and may include but not be limited to printing, wrapping, mail processing, distribution of Materials, delivery and ancillary services.
1. ACCEPTANCE OF ORDERS AND QUOTATIONS
1.1 All orders for the provision of services placed with LPD or quotations accepted by the Customer shall be subject to these Conditions of Contract.
1.2 LPD may at any time and from time to time alter these Conditions of Contract and such altered Conditions of Contract shall apply to all orders placed or quotations accepted after notification by LPD to the Customer of the relevant changes.
1.3 LPD is not bound by any variation to these Conditions of Contract unless recorded in writing and signed by a duly authorised Officer of LPD. These Conditions of Contract shall apply notwithstanding any provisions to the contrary which may appear on any order form or other document issued by the Customer.
1.4 All quotations are valid only for a period of thirty (30) days and LPD may, in its discretion, refuse any purported acceptance by the Customer which occurs after that time.
1.5 The Customer acknowledges that it does not rely on any representation made (if any) by or on behalf of LPD in relation to the commercial value of Services provided by LPD and relies entirely on its own enquiries and evaluations in relation to the commercial value of any such Services.
2. PERFORMANCE OF SERVICES
2.1 The Customer acknowledges and accepts that LPD may carry out services for other customers at the same as providing Services to the Customer. No quotation is given on the basis that LPD’s services are provided only in respect of the Customer during the period of time allocated for Services.
2.2 LPD shall not be responsible for any loss or damage caused by, any failure or delay to provide, the Services including where such failure or delay is wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of LPD.
2.3 LPD may sub-contract the performance of part or all of its obligations to provide the Services. Page 3 of 8
3. LETTERBOX DISTRIBUTION SERVICES
This section 3 applies to a letterbox distribution service forming the whole or part of the services provided by LPD.
3.1 The Customer acknowledges and agrees that:
(a) Its Materials for distribution may be distributed together with and may be bundled with, materials of other customers of LPD, and
(b) LPD does not guarantee full distribution of all Materials to all households within the agreed distribution areas, and accepts no liability for any failure to deliver to all households within agreed distribution areas. Factors beyond LPD’s control such as health and safety issues, hazardous conditions, adverse weather conditions, accessibility of letterboxes, signs on letterboxes and the independent nature of LPD’s distribution contractors may adversely affect distribution.
(c) At any given time, a particular agreed distribution area may not be fully covered or covered at all, by LPD’s distribution network. LPD reserves the right to change the scope and size of distribution areas at any time.
(d) LPD’s dwelling counts by suburb or distribution area are estimates only, may not be accurate, and may change from time to time.
3.2 LPD does not guarantee when delivery and distribution shall take place. The specific days and times of the provision of Services during the period allocated for the Services shall be at the absolute discretion of LPD.
3.3 LPD will not be liable for any loss or damage caused by or contributed to by any delay, loss, omission or misplacement of Materials during its performance of the Services.
3.4 All Materials must be delivered to LPD within the timeframes specified by LPD, to the delivery address specified by LPD, and not less than five (5) working days before distribution is to commence. Any additional costs incurred by LPD as a result of a failure to comply with this clause will be charged to and paid by the customer.
3.5 Where any Materials cannot be processed, or removed from LPD’s premises within two (2) weeks of initial delivery to LPD, a minimum cost of storage of $100.00 per week or a charge based on commercial pallet storage rates, whichever is the greater, will be charged to and paid by the Customer.
3.6 Where any Materials cannot be processed, or removed from LPD’s premises within three (3) months of initial delivery to LPD, LPD may at the Customer’s cost arrange for removal, destruction or disposal of such material as LPD sees fit.
3.7 LPD reserves the right to refuse, suspend or terminate any provision of Service or future provision of Service at any time by oral or written notice without being required to give any reason and without being liable for any loss or damage incurred by the Customer or any third party as a result.
4. PRINT SERVICES
This section 4 applies to a design and/or print service forming the whole or part of the Services provided by LPD.
4.1 Nothing herein conveys to either party any right, title, interest in the other party’s pre-existing intellectual property. All intellectual property rights created by or arising out of the performance of the Services by LPD will vest in LPD. Upon payment of fees due and owing in Page 4 of 8
respect of the relevant Services, LPD grants to the Customer a perpetual and royalty free licence to use the same for the purposes of enjoyment of the benefit of the Services.
4.2 In creating printed materials for the Customer LPD will submit to the Customer for approval, prior to publishing, distributing or issuing those printed materials in accordance with the Customer’s order or instructions, a draft of those printed materials (“Proof”).The Customer must promptly review, check and verify the design and content of the Proof. The Customer releases LPD from and against all liabilities, loss, damage, demands, claims, costs and expenses caused by any inaccuracy or other defect in the printed materials which were present in the Proof reviewed by the Customer. The Customer indemnifies LPD and its employees, agents and contractors against all liabilities, loss, damages, demands, claims, costs and expenses incurred by them as a result of the publication, distribution or issuing of the printed materials including any reliance placed by any person on their contents.
5. CANCELLATION OF SERVICES
5.1 An order for the provision of Services may not be cancelled, except where the prior written consent of LPD is obtained, which may be withheld in LPD’s discretion.
5.2 Where this consent is granted, and an order is cancelled more than seven (7) days prior to the commencement of the provision of Services (or where relevant, part thereof) a cancellation fee of 10% of the agreed or quoted price in respect of the cancelled Services shall be payable by the Customer. This cancellation fee is not a penalty but is a genuine pre-estimate of damages incurred by LPD, in addition to fees due and owing for Services provided prior to the relevant cancellation
5.3 Where this consent is granted and an order is cancelled less than seven (7) days prior to the commencement of the provision of Services (or where relevant, part thereof) a cancellation fee of 25% of the agreed or quoted price in respect of the cancelled Services shall be payable by the Customer. This cancellation fee is not a penalty but is a genuine pre-estimate of damages incurred by LPD, in addition to fees due and owing for Services provided prior to the relevant cancellation.
5.4 Printing services provided via LPD are generally commenced 11 business days prior to the commencement of distribution services
6. RISK IN CUSTOMER MATERIALS
6.1 Notwithstanding delivery of Materials by the Customer to LPD all risk in the Materials shall remain with the Customer and the Customer shall indemnify LPD against any loss or damage to the Materials. Without limiting the generality of the foregoing, LPD is not responsible for any loss of or damage to Materials which are delivered outside of the timeframes specified by LPD, and/ or, to a LPD delivery address which is not the address specified by LPD.
7. RECEIPT OF MATERIALS
7.1 LPD reserves the right to reject defective or otherwise unsuitable Materials, including without limitation Materials which in LPD’s opinion breach any Laws or have unacceptable risks or hazards associated with distribution, without liability to the Customer. Where Materials are rejected by LPD, and without limiting any other remedies available to LPD, any additional costs incurred by LPD as a result will be charged to and paid by the Customer, including delivery, storage and disposal costs.
7.2 The Customer shall ensure that:- Page 5 of 8
(a) All Materials are counted and bundled in such a manner to ensure safe and efficient handling for distribution by LPD and otherwise in accordance with LPD’s specifications. LPD will not verify material counting and relies on the Customer’s representations as to counting. Where there is an error some targeted households may not receive the relevant material
(b) The contents and quantity of each container or package of Materials are accurately and legibly described on the outside of each such container, and clearly identify any differences between contents, including without limitation, identifying where there are different versions of similar Materials. LPD will not inspect and verify package contents.
(c) All Materials delivered to LPD for distribution or for the provision of the Services are accompanied by a delivery docket showing the Customer’s name, weight, description (including an adequate description if there are differing versions of similar Materials delivered) and quantity of material and contract number.
7.3 Where the Customer does not comply with Clause 6.2, and without limiting any other remedies available to LPD, any additional costs incurred by LPD as a result will be charged to and paid by the Customer.
8. PAYMENT TERMS, TAXES & GST
8.1 Save for defined terms in this Agreement, capitalised expressions set out in this clause have the same meanings as those expressions in the GST Law.
8.2 Unless otherwise expressly indicated, all amounts relating to a Taxable Supply quoted by LPD or stated in this Agreement represent the Value of the Taxable Supply and do not include the GST Amount.
8.3 Where a Taxable Supply is made by LPD to the Customer, the Customer will pay to LPD the GST Amount applicable to that Taxable Supply in addition to any other amount payable under this Agreement in respect of that Taxable Supply (including but not limited to the Service Fee). Unless otherwise specified in writing by LPD, the Customer will pay the GST Amount concurrently with the payment of the earliest of any other amount payable in respect of the Taxable Supply.
8.4 LPD will provide the Customer with a Tax Invoice in a form which complies with the GST Law before any GST Amount is payable.
8.5 Any reference in this Agreement to a cost or expense which is to be reimbursed by the Customer to LPD excludes any amount in respect of GST forming part of the cost or expense when incurred by LPD for which LPD can claim an Input Tax Credit provided that nothing in this clause will prevent LPD from charging the GST Amount to the Customer in respect of a Taxable Supply for which the cost or expense is Consideration.
8.6 In calculating the Value of the Taxable Supply, LPD’s obligations are limited to those contained in this Agreement and the GST Law.
8.7 In the event of an increase in the costs of providing the services caused by circumstances outside of the reasonable the control of LPD, including the imposition of a new direct or indirect tax or impost or levy, and other legislative changes LPD reserves the right to review and vary its pricing.
8.8 All prices, fees and charges set out in this Agreement are exclusive of all indirect taxes (including but not limited to sales tax, goods and services tax and similar consumption and value-added taxes) and other governmental charges. LPD will separately itemise all such taxes and governmental charges in its invoices and the Customer will pay to LPD all such taxes and governmental charges at the same time as the prices, fees or charges to which they relate are payable. Page 6 of 8
8.9 Payment of the quoted price is required in the time specified in the Quotation or as otherwise specified in writing by LPD or if the time for payment is not so specified then the Customer will make payment within seven (7) days from the date of LPD’s invoice.
8.10 Without limiting any other right available to it under these terms and conditions, LPD may increase its freight charges from 1 January each calendar year, in line with the increase in the consumer price index (CPI All Groups, weighted average of eight capital cities) over the preceding 12 month period.
9. WARRANTIES AND INDEMNITIES
9.1 These Conditions of Contract do not exclude, restrict or modify the application of any provisions of any Commonwealth, State or Territorial Law which by law cannot be excluded, restricted or modified and should any of these conditions be held to so exclude, restrict or modify then those conditions shall be deemed to be severed from these Conditions of Contract.
9.2 To the extent permitted by law, LPD’s liability for any loss or damage arising from or relating to the provision of the Services, including negligence, shall be limited at LPD’s discretion to one of the following:
(a) Payment of the cost of supplying the relevant Services in respect of which the loss or damage arose; or
(b) Supplying the Services again.
In no event will LPD have any liability to the Customer for any additional loss or liability, including any indirect or consequential loss or damage, resulting from LPDs provision of the Services or otherwise,, including without limitation liability for the costs of replacing any Materials, or in the event of non-delivery of Materials, liability for the production and printing costs of the Materials.
9.3 The Customer warrants that any and all Materials and Pre-Print Materials:
(a) Do not contain any matter which is obscene, defamatory, or illegal or which infringes any copyright, trade mark or other intellectual property right;
(b) Are accurate and up-to-date;
(c) Can be used in providing of the Services without contravening any Law or the rights of any third party; and
(d) To the extent that they incorporate Personal Information concerning individuals:
(i) Information has been collected in compliance with the Privacy Laws and, in particular, has been collected by lawful and fair means and not in an unreasonably intrusive way; and
(ii) At or before the time of collection, reasonable steps were taken to ensure the individuals whose Personal Information was collected were made aware of the purpose for which it was being collected and that the individuals have a right of access to their Personal Information; and
(iii) use of the information in providing the Services will not breach the Privacy Laws.
9.4 Without limiting any other right or remedy available to it, LPD may reject any Materials, Pre-Print Materials or an order for Services which fails to comply with the Customer’s warranty in clause 8.3. Page 7 of 8
9.5 The Customer will and does hereby indemnify LPD its servants and agents against all liability, claims, actions, proceedings, losses, damage, costs and expenses incurred by LPD arising out of or relating to any breach by the Customer of its obligations in these Conditions of Contract, any breach of warranty by the Customer, the content of the Materials and Pre-Print Materials, and any negligent or wrongful or unlawful act or omission on the part of the Customer, its employees or agents.
10.1 In this clause, “Privacy Act” means the Privacy Act 1988 (Cth), as amended from time to time, and includes any determinations, guidelines and interpretative explanations issued from time to time by the Office of the Privacy Commissioner under that Act. “Personal Information” has the meaning given under the Privacy Act from time to time.
10.2 Subject to clause 10.3 below, if LPD is provided with, or has access to Personal Information) in connection with the Services, it must comply with the Privacy Act in respect of that personal Information.
10.3 The Customer:
(a) Will do all things necessary, including but not limited to: (i) obtaining all appropriate consents from individuals;(ii) providing notifications to individuals; and (iii) maintaining accurate, up to date and complete records; to ensure that the personal information (and any changes made to any of them) provided by or on behalf of the Customer to Salmat at any time, and their use by LPD in the provision of the Services as contemplated by these Conditions of Contract, will not give rise to any contravention of the Privacy Act.
(b) Acknowledges and agrees that except as may be required by these Conditions of Contract, LPD is not required to take steps to ensure that any personal information provided by or on behalf of the Customer to Salmat has been collected in accordance with the Privacy Act;
(c) Will do all things reasonably requested by LPD to assist LPD to comply with the Privacy Act in the course of its provision of the Services under these Conditions of Contract including:
(i) Assisting LPD in the updating of an individual’s records in circumstances where an individual elects to “opt out” and not receive direct marketing materials and services;
(ii) Providing LPD with access to information held by the Customer in respect of an individual when the individual makes a request for such access; and
(iii) Providing LPD with the policies and procedures the Customer has put into effect pursuant to the Privacy Act if requested to do so.
(d) Where LPD collects personal information in the name of or on behalf of the Customer, will provide to LPD such collection statements, scripts for use, privacy policies and other materials necessary to ensure compliance with the Privacy Act in the collection of such personal information.
(e) Acknowledges and agrees that where LPD is authorised or required by the Customer to collect or otherwise deal with personal information in the name of or on behalf of the Customer in connection with providing the Services, that Salmat does so as agent for the Customer;
(f) Will indemnify LPD in respect of any costs, damages, losses or expenses (including legal expenses on an indemnity basis) or liability (Loss) that may be suffered or incurred by Salmat as a result of a breach of the obligations of the Customer under this clause 2 except to the extent that the Loss is directly caused by a negligent or unlawful act or omission of Salmat.. Page 8 of 8
11.2 Governing Law
The Customer agrees that these Conditions of Contract shall be construed according to the laws of New South Wales, and the parties submit to the jurisdiction of the courts of that state.
LPD may in its discretion sub-contract any or all of the provision of the Services.