General Terms and Conditions of Sale

ARTCRAFT PTY LTD (ACN 004 399 642 ABN 77 004 399 642)

GENERAL TERMS AND CONDITIONS OF SALE

This is a legally binding Agreement between Artcraft Pty Limited (Artcraft) and the Customer and will apply to all Goods and/or Services provided by Artcraft to the Customer, notwithstanding any other terms proposed by the Customer.

1. Definitions and Interpretation

1.1 In this Agreement, unless the context otherwise requires:

Agreement is defined in clause 2.

Australian Consumer Law means the Competition and Consumer Act 2010 (Cth).

Confidential Information means all information of Artcraft which would reasonably be regarded as confidential, disclosed to the Customer before or after the date of this Agreement (including the details specified in any invoice or Purchase Order), but does not include information which is in, or comes into, the public domain other than by a breach of this Agreement, or which is independently known to the Customer as evidenced by its written records.

Customer means the customer named in the Purchase Order and will, unless the context otherwise requires, include its employees and agents.

Fees mean the fees for the Goods and/or Services as set out in an invoice from Artcraft.

Force Majeure means earthquakes, cyclones, floods, fires, lightening, storms or other acts of God, riots, civil disturbances, strikes, boycotts, orders, dispositions, decisions, orders or measures of governmental authorities of whatever nature or denomination, or any other event which is unpredictable, insurmountable and outside the control of the parties.

Goods mean all goods supplied by Artcraft to the Customer.

GST Law means A New Tax System (Goods and Services Tax) Act 1999 and related tax imposition Acts of the Commonwealth of Australia.

Purchase Order means the purchase order, purchase order number or request to supply the Goods and/or Services (whether written or verbal) issued by the Customer to Artcraft.

Services mean the services specified in the Purchase Order.

2. AGREEMENT

An agreement is formed when a Purchase Order is received from the Customer and is accepted by Artcraft and consists of, in order of precedence, these terms and conditions and the Purchase Order.

3. GOODS/SERVICES, PRICE

3.1 Artcraft will provide the Customer with any Goods and/or Services in accordance with this Agreement.

3.2 The parties acknowledge that these Terms and Conditions will apply to the provision of all such Goods and/or Services unless the parties agree otherwise.

3.3 In consideration of Artcraft’s provision of the Services and/or supply of the Goods, the Customer agrees to pay, without deduction, the Fees within 30 calendar days of the end of the month of the month of Artcraft’s invoice unless otherwise agreed in writing by Artcraft.

3.4 The prices quoted by Artcraft are at all times net of all insurance premiums, government charges and taxes and other costs (unless expressed otherwise). Artcraft may, however, by notice in writing to the Customer, alter the specified prices in accordance with any such charges, premiums, taxes and costs reasonably incurred prior to delivery of the Goods and/or Services.

3.5 You may cancel an order (whether it is accepted by us or not) by writing or emailing to Customer Service during Contact Hours at any time prior to the manufacture of that order.  If notice of cancellation is received after the commencement of manufacture then 100% of the order value is payable, unless otherwise agreed with Artcraft.

3.4 Due to their specific nature, custom made items cannot be returned and 100% of the order is payable.

4. DELIVERY

4.1 All Goods are to be delivered, and all Services are to be provided by Artcraft ex Artcraft’s works or despatch centre to or at the Customer's premises (unless another place is agreed by the parties) within 30 days of acceptance by Artcraft of the relevant Purchase Order, unless a different time for delivery is agreed by the parties in writing.

4.2 Any freight charges or other costs in respect of delivery are to be paid by the Customer and may be billed to the Customer by Artcraft, should Artcraft incur the relevant costs with the Customer’s prior approval, in addition to the price of the Goods and/or Services themselves.

4.3 Artcraft will not be liable for any delay in delivery to the extent that the delay is caused by a third party and/or is beyond the reasonable control of Artcraft.

4.4 Any containers, pallets or other property of Artcraft delivered with Goods but not forming part of the Goods ordered will remain the property of Artcraft, and must be returned to Artcraft by the Customer as soon as practicable. Artcraft may, at its sole discretion, impose a refundable deposit, such deposit to be refunded to the Customer upon return of all property under this clause.

5. WARRANTIES AND EXTENT OF LIABILITY

5.1 Statutory guarantees imposed under the Australian Consumer Law (Statutory Guarantees) may apply to a transaction between Artcraft and the Customer. If applicable, the Statutory Guarantees include, among other things, guarantees that Artcraft’s goods are of acceptable quality and fit for their purpose and that services will be rendered with due care and skill.

5.2 Nothing in clauses 5.3 – 5.5 below limits the rights and remedies that may be available to the Customer where the Statutory Guarantees apply and are not met.

5.3 With the exception of any express warranty provided (whether by Artcraft or by a third party) with goods or services, all warranties, express or implied, are excluded.

5.4 Subject to clause 5.2, in the event that Artcraft is found to be in breach of a warranty which is not excluded under sub-clause 5.3, the liability of Artcraft in respect of such breach, subject to sub-clause 5.5, will be limited at the option of Artcraft to one or more of the following (as applicable):

(a) the supplying of the relevant goods or services again; or

(b) the payment of the cost of having the relevant goods or services supplied again; or

(c) the repair of the relevant goods; or

(d) the cost of having the relevant goods repaired.

5.5 Subject to clause 5.2, if Artcraft is held or found to be liable to the Customer for any matter relating to or arising in connection with this Agreement, whether based on an action or claim in contract, negligence, tort or otherwise, the amount of damages the Customer will be entitled to recover from Artcraft will be limited to the amount paid by the Customer under clause 7. In no circumstances will Artcraft be liable to the Customer for loss of expected earnings or consequential loss of any kind.

6. PASSING OF PROPERTY

6.1 Subject to clause 6.3, the risk in Goods passes to the Customer upon delivery of the Goods to the Customer.

6.2 Title in Goods (including any materials supplied in connection with the provision of services by Artcraft) passes to the Customer upon full payment being received by Artcraft. Until that time, the Customer will hold any Goods for which Artcraft has not received payment separately as bailee for Artcraft, and will ensure that the Goods are kept in good merchantable order and condition. The Customer acknowledges that Artcraft is entitled to seize any Goods for which payment has not been made in accordance with this Agreement, and will accordingly allow Artcraft to enter any premises on which such Goods are kept. The Customer indemnifies Artcraft against all loss, damage, costs and expenses incurred by Artcraft in seizing Goods under this Agreement.

6.3 If the Customer elects to collect any Goods from the premises of Artcraft, risk in the Goods will pass to the Customer upon collection or upon the expiry of 7 days after Artcraft notifies the Customer that the Goods are ready for collection, whichever is earlier. The Customer indemnifies Artcraft against all loss, damage, costs and expenses incurred by Artcraft in relation to keeping the Goods in its possession for longer than 7 days after such notification (which may be verbal or in writing).

7. PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)

7.1 For the purposes of this clause 7, the terms ‘financing statement’, ‘financing change statement’, ‘security agreement’ and ‘security interest’ have the meanings set out in the PPSA.

7.2 The Customer acknowledges and agrees that:

(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and

(b) a security interest is taken in all Goods previously supplied by Artcraft to the Customer (if any) and all Goods that will be supplied in the future by Artcraft to the Customer during the continuance of the parties relationship.

7.3 The Customer agrees to do anything (including obtaining consents, signing or producing any further documents, and/or providing any further information) which Artcraft asks and considers necessary for the purposes of:

(a) ensuring that the security interest is enforceable, perfected and otherwise effective; and/or

(b) enabling Artcraft to apply for any registration, complete any financing statement, financing change statement or give any notification, in connection with the security interest; and/or

(c) Artcraft exercising its rights in connection with the security interest.

7.4 Everything that Artcraft is required to do under this clause 7 is at the Customer’s expense.

7.5 The Customer waives any rights it may have:

(a) to receive notices under sections 95, 118, 121(4), 129, 130, 132(3)(d), 132(4), 134(1) and 135 of the PSSA; and

(b) under sections 142 and 143 of the PPSA.

7.6 The parties agree that sections 96 and 117 of the PPSA do not apply to these terms and conditions.

8. PAYMENT

8.1 The Customer must pay Artcraft the total Fees in accordance with the payment terms set out in the Purchase Order, or, if no payment terms are set out in that document:

(a) in the case of Goods and/or Services supplied where the Customer has an approved credit account with Artcraft, within 30 calendar days of the end of the month of the month of delivery of the Goods or completion of the Services (as the case may be); or

(b) in the case of Goods supplied where the Customer does not have an approved credit account with Artcraft, in cash upon delivery or completion (as the case may be).

8.2 Interest will be payable at the rate of 2% above the rate prescribed for the time being under the Penalty Interest Rates Act on any payment not made when due under this Agreement. Such interest will be calculated from the time at which the relevant payment becomes overdue.

8.3 The customer is not entitled to make any deduction from amount owing to Artcraft in respect of any set off or counter claim to be held back for retention.

9. TECHNICAL INFORMATION

The Customer acknowledges that any specifications, measurements, weights and similar information provided by Artcraft regarding Goods are, to the extent permitted by law, provided as a guide only and may not be exact.

10. COPYRIGHT, OTHER INTELLECTUAL PROPERTY

10.1 The copyright and other intellectual property in all goods and materials supplied to the Customer or used by Artcraft in connection with the provision of Goods and/or Services under this Agreement is owned by, or licensed to, Artcraft, and nothing in this Agreement constitutes an implied licence to reproduce, assign or sub-license such intellectual property.

10.2 The Customer warrants that the intellectual property in all graphic designs, trademarks and other material which the Customer supplies to Artcraft and Artcraft reproduces at the request of the Customer is owned by, or licensed to, the Customer, and that the Customer is authorised to license it to Artcraft for the purpose of this Agreement. Artcraft acknowledges that it does not take an assignment or licence of such intellectual property unless separately authorised in writing by the Customer.

10.3 The Customer indemnifies Artcraft against all loss, damage, cost and expenses incurred by Artcraft as a result of:

(a) any attempt by the Customer to claim an interest in, deal in, assign, license or exploit any intellectual property described under sub-clause 10.1; and

(b) any breach by the Customer of the warranty under sub-clause 10.2.

11. CONFIDENTIALITY

The Customer will:

(a) keep confidential the Confidential Information;

(b) use the Confidential Information for the sole purpose of performing its obligations under this Agreement; and

(c) not disclose the Confidential Information to any person other than its officers, directors or employees who need to know the Confidential Information.

12. TERM AND TERMINATION

12.1 Subject to sub-clauses 12.2, 12.3 and 12.4, this Agreement commences as prescribed under clause 1 and will apply to the provision of all Goods and/or Services by Artcraft to the Customer after that time unless and until it is terminated by written agreement between the parties.

12.2 If the Customer commits a breach of any provision of this Agreement, and has not remedied that failure within 7 days of being requested in writing by Artcraft to do so, then Artcraft may terminate this Agreement immediately by notice in writing.

12.3 To the extent that the context and law permit, the rights and obligations of the parties under this Agreement survive its termination.

12.4 Upon termination of this Agreement, the Customer must promptly deliver up to Artcraft any items in its possession which are the property of Artcraft or contain confidential information of Artcraft.

13. FORCE MAJEURE

To the extent that, and for as long as, a party to this Agreement is prevented from performing its obligations due to an event of Force Majeure, that party is excused from performing its obligations, provided that it takes all reasonable steps to ensure that it resumes performing its obligations as soon as possible.

14. NOTICES

A written notice served under this contract is deemed served:

(a) in the case of ordinary post, 3 days after posting;

(b) in the case of a facsimile or electronic mail transmission, upon a record of complete transmission being generated by the sender's machine.

15. GENERAL

15.1 This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior communications.

15.2 Nothing in this Agreement will be taken as giving rise to a relationship of employment, agency or partnership.

15.3 This Agreement cannot be varied except in writing and signed by the parties.

15.4 The failure of either party to enforce any provision under this Agreement will not waive the right of such party thereafter to enforce any such provisions.

15.5 These terms and conditions are governed by the laws of Victoria, Australia. The parties unconditionally submit to the jurisdiction of the courts of that State and all courts competent to hear appeals of the decisions of those courts.

15.6 Artcraft may collect personal information in connection with its dealings with the customer. Artcraft may send the Customer information unless the customer notifies Artcraft that it does not want to be on the distribution list. The Customer acknowledges and consents to Artcraft collecting, disclosing and using personal information in the manner and for the purposes of enabling Artcraft to better provide and market its facilities, products and services to the Customer, and to otherwise fulfil its legal obligations.