Part A – General
1. DEFINITIONS & INTERPRETATION
1.1 In these terms and conditions, the following words and phrases shall have the meanings ascribed to them below:
“Charges” means the Charges payable for the Services including miscellaneous elements, as specified in the Quotation.
“Contract” means the contract between DMC and the Client relating to the supply of the Services which shall comprise the attached Quotation and these Terms and Conditions;
“Client” means the company, person or party detailed in the Quotation;
“DMC” means Direct Mail Corporation Pty Ltd ACN 065 135 702 of 158 Murphy Street
“Mailing Item” means an item or items which the Client has requested DMC to mail;
“Quotation” means the written Quotation, overleaf;
“Services” means the services detailed in the Quotation;
“Stock” means the all items supplied to DMC by the Client for mailing;
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re‐enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these terms and conditions.
2. ENTIRE AGREEMENT AND SCOPE
2.1 Subject to any variation under condition 2.4 the Contract shall be on these terms and conditions (including the quotation) to the exclusion of all other terms and conditions.
2.2 No terms or conditions endorsed on, delivered with or contained in the Client’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 Any variation to these terms and conditions and any representations about the Contract shall have no effect unless expressly agreed in writing and signed by a director of DMC.
2.4 The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of DMC which is not set out in the Contract.
2.6 If (with reference to the Quotation) the Contract encompasses the supply of:
2.6.1 “Assembly and Compilation Services”, the additional terms and conditions set out in Part B shall also apply;
2.6.2 “Mail Delivery Services”, the additional terms and conditions set out in Part C shall also apply.
2.7 If there is any conflict between the provisions of this Part A and those of Parts B and C, the provisions of this Part A shall prevail.
3.1 In consideration of the Client paying the Charges, DMC shall perform the Services in accordance with the Contract, using reasonable skill and care.
4. TIME FOR PERFORMANCE
4.1 Any dates or times specified by DMC for performance of the Contract are an estimate only. Time for performance shall not be of the essence and shall not be made so by the service of any notice.
4.2 Performance of the Contract shall be within a reasonable time.
5. CLIENT CO‐OPERATION
5.1 The Client shall provide all information, documentation and materials reasonably requested by DMC to enable DMC to perform the Contract.
6. CLIENT DELIVERY
6.1 The Client shall follow DMC’s reasonable delivery instructions as specified from time to time.
7.1 The charges payable by the Client shall be as specified in the Quotation.
7.2 Subject always to compliance by the Client with clause 8 at no time shall the invoiced amount outstanding exceed $100,000 (or such lesser amount as may be stipulated by DMC).
8. PAYMENT TERMS
8.1 Unless otherwise specified in the Quotation, on completion of the Services, DMC shall raise an invoice for payment of the Charges. Such invoice shall be paid by the Client in full within fourteen (14) days of receipt.
8.2 The Client shall make all payments due under the Contract in full without any deduction whether by way of set‐off, counterclaim, discount, abatement or otherwise.
8.3 Time for payment shall always be of the essence. If the Client fails to pay DMC any sum due pursuant to the Contract, the Client shall be liable to pay interest to DMC at a rate of 2% higher than the rate for the time being fixed under the Penalty Interest Rates Act 1983.
9. LIMITATION OF LIABILITY
9.1 The following provisions set out the entire financial liability of DMC (including any liability for the acts or omissions of its employees, agents and sub‐contractors) to the Client in respect of:
9.1.1 any breach of these terms and conditions;
9.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
9.2 Nothing in these conditions excludes or limits the liability of DMC:
9.2.1 for any matter which it would be illegal for DMC to exclude or attempt to exclude its liability;
9.2.2 for fraud or fraudulent misrepresentation.
9.3 Subject to conditions 9.1 and 9.2:
9.3.1 DMC’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to an amount equal to the Charges.
9.3.2 DMC shall not be liable for any indirect or consequential loss (which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses.
9.4 Except as otherwise provided for in the Contract, all other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.1 The Client shall indemnify and keep DMC indemnified against any and all costs (including legal costs and costs of enforcement), expenses, liabilities, damages, claims, demands, and proceedings incurred or suffered by DMC as a result of any breach of Contract by the Client.
11.1 The Contract may be terminated by DMC or the Client with immediate effect if:
11.1.1 the other is in material breach of the terms and conditions of the Contract and the breach is not capable of remedy; or
11.1.2 the other is in material breach of the terms and conditions of the Contract and the breach is capable of remedy and that other party shall have failed to remedy that breach within thirty (30) days of notice, specifying the breach and requiring its remedy; or
11.2 The Contract may be terminated by DMC if the Client:
11.2.1 (being a person) has a bankruptcy order made against him or makes an arrangement or composition with his creditors.
11.2.2 (being a body corporate) has a liquidator, receiver, or administrator appointed over it or over any part of its undertaking or assets or shall pass a resolution for winding‐up or shall enter into any voluntary scheme of arrangement with its creditors; or
11.2.3 ceases to trade.
11.3 Termination of the Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party hereunder or at law, nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or to continue in force on or after such termination.
11.4 All payments payable to DMC under the Contract shall become due immediately upon its termination.
12. UNFORSEEABLE DELAYS
12.1 DMC reserves the right to defer the performance of the Contract (without liability to the Client) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of DMC including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock‐outs, strikes or other labour
disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
13. REGULATORY COMPLIANCE
13.1 If a licence, consent or permission of any authority is required for the use of the Stock by DMC as contemplated by the agreement with the Client then the Client shall obtain the licence or consent at its own expense and if requested/necessary produce evidence of it to DMC on demand. Failure to obtain any licence or consent does not entitle the Client to withhold or delay payment of the Charges. Any additional expenses or charges
incurred by DMC resulting from such failure shall be paid by the Client.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 All intellectual property rights in any materials submitted by the Client to DMC will remain vested in the Client or its licensors.
14.2 All intellectual property rights in any materials created or used by DMC will remain vested in DMC (or its relevant licensors) and to the extent that any rights in such materials vest in the Client by operation of law, the Client hereby assigns such rights to DMC.
14.3 Both DMC and the Client acknowledge and agree that they shall not acquire or claim any title to any of the other’s intellectual property and will not, at any time, do, or omit to do, anything which is likely to prejudice the other’s ownership of such intellectual property rights.
15.1 The Client shall comply with the Privacy Act 1998 (Cth) in every material respect and shall ensure that any personal data supplied to DMC can be utilised by DMC lawfully.
15.3 If in performing the Services, DMC is involved in the processing of any personal information, DMC shall act merely as a data processor on behalf of the Client and in doing so shall ensure that all personal data is processed securely in accordance with the Privacy Act 1998 (Cth).
16. DISPUTE RESOLUTION
16.1 In the event of any bona fide dispute or difference arising between the parties in connection with the Contract (excluding any dispute relating to non payment of the Charges by the Client), the parties shall in accordance with this condition 16, attempt to resolve such dispute or difference in good faith and without recourse to legal proceedings.
16.2 If the parties are unable to resolve such dispute or difference within fifteen (15) days of initial discussions between the parties taking place, either party may request the other in writing that the matter be referred to senior representatives of the parties with authority to settle the dispute, who shall attempt to resolve the dispute within thirty (30) days of the written request to do so.
16.3 If the dispute or difference is not resolved as a result of a meeting of the senior representatives of the parties pursuant to condition 16.2 above, or if no meeting of the senior representatives occurs within the prescribed time periods set out in that condition, either party may request the President of the Law Institute of Victoria in writing to appoint an independent expert.
17.1 DMC may assign the Contract or any part of it to any third party. The Client shall not be entitled to assign the Contract or any part of it without the prior written consent of DMC.
17.2 Each right or remedy of DMC under the Contract is without prejudice to any other right or remedy of DMC whether under the Contract or not.
17.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall
continue in full force and effect.
17.4 Failure or delay by DMC in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
17.5 Any waiver by DMC of any breach of, or any default under, any provision of the Contract by the Client shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
17.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by Victorian law and the parties submit to the exclusive
jurisdiction of the Victorian courts.
PART B – MAILING SERVICES
1. DMC shall assemble or compile the Stock in manner agreed with the Client. In the absence of agreement, DMC shall assemble or compile the Stock by any method which it sees reasonably fit.
2. LIEN AND RIGHT OF SALE
2.1 Without prejudice to any other remedies which DMC may have against the Client, DMC shall in respect of all unpaid Charges have a general lien on all Stock and computer records supplied to DMC by the Client in DMC’s possession.
2.2 If any of the Charges remain unpaid in breach of condition 8, DMC shall have the right to sell any Stock in DMCs possession, which has been supplied by the Client. Any proceeds of such sale shall be used for the purpose of settling the Charges.
3.1 DMC warrants that the Stock will be assembled using reasonable skill and care.
3.2 If the Stock is assembled in breach of the warranty in condition 3.1 subject to conditions
3.3 and 3.4, DMC shall (at its option) repair, replace or re‐assemble the Stock.
3.3 DMC shall not be liable for any breach of condition 3.1 unless:
3.3.1 the Client gives DMC written notice of the breach within seven (7) days of the date of the breach coming to its attention; and
3.3.2 DMC is given a reasonable opportunity after receiving such notice to examine the Stock at its own expense.
3.4 DMC shall have no liability to repair, replace, re‐assemble or re‐compile any Stock, unless any defect in the performance of the Services was wholly obvious at the time of their performance.
3.5 If DMC complies with condition 3.2, it shall have no further liability to the Client.
4. LIMITATION OF LIABILITY
4.1 Subject to condition 9 of Part A above, if Stock is lost or damaged whilst in the possession of DMC, the total liability of DMC shall be limited to five thousand dollars.
PART C ‐ MAIL DELIVERY SERVICE
1. EXCLUSION OF LIABILITY
1.1 Subject to condition 9 of Part A above, the Client acknowledges and agrees that:
1.1.1 the treatment of all Mailing Items under the Contract will be the same as in the case of ordinary Mailing Items posted with Australia Post and, in particular, DMC does not keep detailed records of conveyance or delivery of any Mailing Items;
1.1.2 in the event of loss of or damage to any Mailing Item dealt with by DMC under the Contract, DMC shall, subject to satisfactory proof of hand over to DMC being provided by the Client and of the loss or damage, and subject to the remainder of this condition 1, pay compensation to the Client subject to the following limits:
(i) where DMC has already handed over the relevant Mailing Item to Australia Post, the compensation shall be limited to whatever payment DMC recovers from Australia Post;
(ii) otherwise, the compensation in respect of the relevant Mailing Item shall be limited to the Charges paid in respect of such Mailing Item and the cost of producing such lost or damaged Mailing Item.
2. INSPECTION RIGHTS
2.1 DMC reserves the right for it and for Australia Post to open and inspect Mailing Items to verify compliance with the requirements of relevant law and regulations and this Agreement.