These Terms and conditions are incorporated into any contract between Motion Shopper Marketing Services Pty. Ltd. ("Motion Services") and customer for the supply of goods and/or services by Motion Services to the customer.
In these Terms and Conditions:
“Additional Work” includes all work undertaken by Motion Services as a consequence
of the customer’s variation, alteration or modification of its instructions in relation to the Order;
“Business Day” means a day on which banks are open for general banking business in the State or Territory in which Motion Services' premises are located;
“Estimate” means the estimate referred to in sub-clause 2.1(b) (as amended in accordance with clause 2.4);
“Freight Costs and Charge” includes all costs and expenses incurred by Motion Services in removing the Goods from its premises, whether by way of actual or attempted delivery to the customer or otherwise;
“Goods” means all present and after acquired goods produced by Motion Services under an Order;
“GST” means Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Interest Rate” means a rate 2% higher than the Cash Target Rate as fixed by the Reserve Bank of Australia;
“Order” means the work required to be done in order to fulfil the customer’s instructions;
“Preliminary work” means any and all work performed by Motion Services at the customer’s express or implied request, the performance of which work was necessary to enable the Order to be commenced and which work was not within the reasonable contemplation of Motion Services at the time when Motions Services supplied the Estimate;
“Motion’s Charge” refers in each case to the standard or usual fee charged by Motion Services from time to time in respect of the Order;
“Quote” means the quote described in clause 2.1
In these Terms and Conditions, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) a reference to a clause is a reference to a clause of these Terms and Conditions;
(c) a reference to a party to these Terms and Conditions or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
(d) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(e) a reference to a period of time (including, without limitation, a year, a quarter, a month, a week and a day) is to a calendar period.
In these Terms and Conditions, headings are for convenient reference only and do not affect interpretation.
If the day on which any act, matter or thing is to be done under this agreement is not a Business Day, that act, matter or thing:
(a) if it involves a payment other than a payment that is due on demand, must be done on
the preceding Business Day; and
(b) in all other cases, may be done on the next Business Day.
Motion Services may, if requested by the customer, give the customer a Quote specifying:
(a) the work required to be done in order to fulfil the customer’s instructions; and
(b) an estimate of Motion Services' charge for the performance of such work.
Where Motion Services has given the customer a Quote:
(a) Motion Services 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) Motion Services to commence work;
(c) acceptance by the customer of the Quote will constitute acceptance by the customer of these Terms and Conditions.
If the Quote is accepted by the customer, the subject of the Quote (the work) shall be carried out and the customer shall pay for the work in accordance with the Quote and these Terms and Conditions.
Motion Services may amend any Estimate before the Order has been completed to take into account any rise or fall in the cost of performing the Order and Motion Services shall notify the customer of such amendment as soon as practicable thereafter. Upon Motion Services giving the customer notification of such amendment such amended Estimate shall be and be deemed to be the Estimate for the purposes of these Terms and Conditions.
Subject to clause 5.3, when the Order has been completed, Motion Services will issue an invoice to the customer for the amount of the Estimate or, if no Estimate was made, for an amount representing Motion Services' Charge for the work done in filling the Order, and for any of the other charges specified in clause 3.2.
In addition to the amount of the Estimate, or where no Estimate was given, in addition to the amount representing Motion Services' Charge for the work done, Motion Services may charge to the customer:
(a) fees for any preliminary work performed at the customer’s request;
(b) fees for additional work required to be done as a result of the customer changing his, her or its instructions;
(c) fees for having to work from poor copy;
(d) fees for work which involves tables or foreign language and which was not notified to Motion Services before the Quote was prepared;
(e) fees for additional work required to be done as a result of author’s corrections, including repagination or reformatting;
(f) fees and other charges for work required to be done urgently, including any overtime costs;
(g) fees for handling or storing material or equipment supplied by the customer for the purposes of the Order;
(h) fees for charging or correcting, in order to ensure that the Goods are properly produced, any plates, film, bromides, artwork or any document including computer files supplied for the purposes of the Order by the customer;
(i) freight costs and charges;
(j) other charges, fees or disbursements referred to in these Terms and Conditions and not specified in this clause.
(a) the customer acknowledges that whilst Motion Services will make every endeavour to produce the exact number of items in the Order, owing to human and/or machine/computer error the number of items actually produced may be 10% over or under the number specified in the Order (“a discrepancy”).
(b) where a discrepancy occurs Motion Services will adjust the amount charged to the customer for the Order a pro rata amount to reflect the actual number of items produced.
Motion Services shall notify the customer when goods are ready for collection or delivery.
The customer must collect the goods from Motion Services' premises upon being notified by Motion Services that the Goods are ready for collection. If Motion Services agrees to deliver the Goods, the customer shall bear all freight costs and charges of such delivery.
Subject to clause 7.1 the customer may only reject the Goods if they do not comply with the customer’s instructions. If the customer wishes to reject the Goods, the customer must notify Motion Services of the rejection;
(a) if Motion Services agrees to deliver the Goods to the customer’s premises within five
(5) days of delivery (or such other time as is mutually agreed);
(b) otherwise – within six (6) days of notification that the Goods are ready for collection (or such other time as is mutually agreed).
The risk in the Goods passes to the customer:
(a) if Motion Services delivers the Goods to the customer’s premises – at the time of delivery;
(b) otherwise – at the time Motion Services notifies the customer that the Goods are ready for collection.
If the customer is entitled to reject the Goods and rejects the goods in accordance with these Terms and Conditions, risk reverts to Motion Services at the time the customer notifies Motion Services that the Goods are rejected.
The customer must, within thirty (30) days of the date the goods were invoiced in, pay to Motion Services as is indicated on the invoice the total amount set out in the invoice unless otherwise negotiated in writing.
Payment for the Order is to be made by the customer by cash, direct credit, cheque or any other form of payment as agreed by Motion Services and the customer.
Motion Services may charge interest at the Interest Rate on amounts not paid within the time specified in clause 5.1.
(a) Motion Services may issue an invoice for the amount of the Estimate before commencing the Order where Motion Services has not previously carried out work for the customer or where Motion Services considers it otherwise prudent to do so;
(b) Motion Services may, in the event that Motion Services is of the view that completing the Order will take more than a month, at any time before the Order is completed, issue one or more invoices for a proportion of the amount of the Estimate (the proportion to be at Motion Services' discretion) and require that proportion of the Estimate to be paid in advance of any further work being done;
(c) if the Order is suspended for more than thirty (30) days at the request of the customer or as a result of something for which the customer is responsible, Motion Services may issue an invoice for a particular sum (to be specified by Motion Services for the work already done and for other costs incurred by Motion Services (such as storage costs).
The customer must pay to Motion Services any costs, expenses or losses incurred by Motion Services as a result of the customer’s failure to pay Motion Services all sums outstanding from the customer to Motion Services (including, without limiting the generality of the obligation set out in this clause, any debt collection and legal costs).
(a) until the customer has paid all sums outstanding in relation to the Goods and other goods supplied by Motion Services to the customer, title and property in the Goods shall not pass from Motion Services to the customer;
(b) if the Goods are in the customer’s possession, the customer shall hold the Goods as trustee for Motion Services and must store the Goods so that they are clearly identifiable as the property of Motion Services;
(c) Motion Services may call for and recover possession of the Goods (for which purposes Motion Services' employees or agents may enter the customer’s premises and take possession of the Goods without liability to the customer) and the customer must deliver the Goods to Motion Services if so directed by Motion Services;
(d) the customer may, in the ordinary course of the customer’s business, sell the Goods to a third party but:
(i) the proceeds of sale to the third party shall be held by the customer as trustee for Motion Services and the customer shall account to Motion Services for those sums; and
(ii) if Motion Services requires, the customer shall assign to Motion Services the customer’s claim against the third party and shall execute all documents necessary to effect that assignment.
Motion Services shall, in respect of all sums owed by the customer to Motion Services hereunder, have a general lien on all property of the customer in Motion Services' possession and may, after fourteen (14) days’ notice to the customer, sell that property and apply the proceeds (net of any sale costs) in satisfaction of all or any part of the sums owed. In the event that any of the customer’s property held by Motion Services as aforesaid enjoys copyright protection in favour of the customer, the customer hereby grants to Motion Services a licence to exercise the rights conferred on Motion Services under this clause.
If Motion Services submits to the customer a proof of the Goods Motion Services will not be responsible for any errors in the Goods which appeared in the proof and which were not corrected by the customer before the Order was completed.
The parties acknowledge that, under applicable State and Commonwealth Law, certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the customer in relation to the provision of the Goods or of services which cannot be excluded, restricted or modified by agreement (“Non-excludable Rights”).
Motion Services disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the customer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. To the extent permitted by law, the liability of Motion Services for a breach of a Non-excludable Right is limited, at Motion Services' option to the supplying of the Goods and/or any services again or payment of the cost of having the Goods and/or any services supplied again.
Notwithstanding any other provision of these Terms and Conditions, Motion Services as in no circumstance (whatever the cause) liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the customer for:
(a) any increased costs or expenses;
(b) any loss of profit, revenue, business, contracts or anticipated savings;
(c) any loss or expense resulting from a claim by a third party; or
(d) any special, indirect or consequential loss or damage of any nature whatsoever caused by Motion Services failure to complete or delay in completing the Order or to deliver the Goods.
Without limiting the generality of the foregoing clauses, Motion Services will not be liable to the customer for loss, however caused, of any data stored on disks, tapes, compact disks, or other media supplied by the customer to Motion Services.
Subject to clause 7.5, Motion Services will not be liable for the damage, loss or destruction of any property of the customer in Motion Services' possession unless the loss or damage is due to the failure of Motion Services to exercise due care and skill in handling or storing the property.
Motion Services will have no liability to the customer in relation to any loss, damage or expense caused by Motion Services' failure to complete the Order or to deliver the Goods as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of Motion Services' normal suppliers to supply necessary materials or any other matter beyond Motion Services' control.
If Motion Services has to obtain Goods (including typefaces, bromides, film, plates, ornaments or artwork) and/or services not normally stocked or supplied by Motion Services from a third party in order to carry out the customer’s instructions:
(a) Motion Services will not be liable for any breach of these Terms and Conditions if that breach is a result of or is connected with the supply by the third party of such goods and/or services;
(b) Motion Services acquires such goods and/or services as agent for the customer and not as principal and will have no liability to the customer in relation to the supply of those goods and/or services. Any claim by the customer in relation to the supply of those goods and/or services must be made directly against the third party;
(c) the customer must pay for such goods and/or services;
(d) property in any such goods obtained from a third party and incorporated into the Goods passes to Motion Services at the time of incorporation.
If Motion Services and the customer agree that the customer is responsible for supplying materials or equipment for the purposes of the Order:
(a) the customer must supply sufficient quantities of materials to allow for spoilage, such quantity to be specified by Motion Services;
(b) Motion Services will not normally count or check the materials and if requested by the customer to do so, may charge for counting or checking;
(c) Motion Services will not be responsible for any defects in the Goods which are caused by defects in or the unsuitability of materials or equipment supplied by the customer;
(d) property in any materials supplied by the customer and incorporated into the Goods passes to Motion Services at the time of incorporation.
If the customer leaves property in Motion Services' possession without specific instructions as to what is to be done with it, Motion Services may, twelve (12) months after gaining possession of the property, dispose of or sell the property and retain any proceeds of sale as compensation for holding and handling the property.
Motion Services has no obligation to insure any property of the customer in Motion Services' possession. The customer must pay the cost of any insurance arranged by Motion Services at the request of the customer.
Unless Motion Services and customer agree otherwise, drawings, sketches, paintings, photographs, designs, typesetting, dummies, models, negatives, positives, blocks, engravings, stencils, dies, plates or cylinders, electros, stereos, disks, tapes, compact disks, or other media or data and other material produced by Motion Services in the course of or in preparation for performing the Order (whether or not in fact used for the purposes of performing the Order) are the property of Motion Services.
(a) copyright in all artistic and literary works authored by Motion Services shall be the property of Motion Services.
(b) the customer:
(i) warrants that the customer has copyright in or a licence to authorise Motion Services to reproduce, all artistic and literary works supplied by the customer to Motion Services for the purposes of the Order and the customer hereby expressly authorises Motion Services to reproduce all and any such of works or the purposes aforesaid;
(ii) hereby indemnifies and agrees to keep indemnified Motion Services against all liability, losses or expenses incurred by Motion Services in relation to or in any way directly or indirectly connected with any breach of copyright or of any rights in relation to copyright in works supplied as aforesaid; and
(c) the customer is hereby granted a non-exclusive license to use the copyright in any literary and/or artistic works authored by Motion Services for the purposes of the Order. However the exercise of such license shall be conditional upon Motion Services having received all monies due to Motion Services under these Terms and Conditions.
The customer must keep confidential and not use any ideas communicated by Motion Services to the customer without Motion Services' written consent.
All disks, tapes, compact disks or other media (other than media supplied by the customer) used by Motion Services to store data for the purposes of completing the Order are the property of Motion Services. The customer cannot require Motion Services to supply to the customer any data so stored. In the event that Motion Services does supply any data so stored or created, Motion Services may charge for supplying such data to the customer.
Motion Services will not be responsible for storing any data on disks, tapes, compact disks or other media when the Order has been completed. If Motion Services agrees to store such data, Motion Services may charge for doing so.
A power or right is not waived solely because the party entitled to exercise that power or right does not do so. A single exercise of a power or right will not preclude any other or further exercise of that power or right or of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
These Terms and Conditions are governed by the law in force in the State or Territory in which Motion Services' premises are located and the parties submit to the non-exclusive jurisdiction of the courts of that State or Territory and any courts which may hear appeals from those courts in respect of any proceedings in connection with these Terms and Conditions.
Unless otherwise stated, all amounts expressed or described in these Terms and Conditions are GST inclusive amounts.
All out of pocket expenses referred to in these Terms and Conditions are GST inclusive out of pocket expenses.
Motion Services will do all things reasonably available to it to assist the customer to claim on a timely basis any input tax credits (if any) the customer may be entitled to claim for any acquisition of goods and services from Motion Services. This includes Motion Services maintaining its registered status for GST purposes, and issuing tax invoices for supplies made under these Terms and Conditions on a timely basis as reasonably requested by the customer.
The customer acknowledges and agrees that:
(a) these Terms and Conditions give rise to a security interest and constitute a security agreement for the purposes of the Personal Property Securities Act 2010; and
(b) the security interest is taken in all Goods previously supplied by Motion Services to the customer (if any) and all Goods that will be supplied in the future by Motion Services to the customer during the continuance of the parties' relationship.
The customer undertakes to:
(a) sign any further documents and/or provide any further information, such information to be complete, accurate and up-to-date in all respects, which Motion Services may reasonably require to register a financing statement on the Personal Property Securities Register;
(b) reimburse the printer for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register;
(c) give Motion Services not less than 14 days’ prior written notice of any proposed change in the customer’s name and/or other change in the customer’s details.
The customer waives any rights to receive notice of any verification statement issued under the Personal Properties Securities Act.
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