1.         Definitions
1.1       “ASM” shall mean All Size Miracles Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of All Size Miracles Pty Ltd.
1.2       “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client)as described on any quotation, work authorisation or other form as provided by ASM to the Client.
1.3       “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4       “Goods” shall mean Goods supplied by ASM to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by ASM to the Client.
1.5       “Services” shall mean all Services supplied by ASM to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6       “Price” shall mean the Price payable for the Goods as agreed between ASM and the Client in accordance with clause 4 of this contract.
 
2.         The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1       Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
 
3.         Acceptance
3.1       Any instructions received by ASM from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by ASM shall constitute acceptance of the terms and conditions contained herein.
3.2       Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3       Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of ASM.
3.4       The Client shall give ASM not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by ASM as a result of the Client’s failure to comply with this clause.
3.5       Goods are supplied by ASM only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3.6       Where the Client is requesting or organising ASM to provide the Goods on behalf of any third party and that third party is intended to be responsible for the payment (or any part thereof) of the Price, then in the event that the third party does not pay for the Goods by the due date, the Client shall be responsible for paying the full Price to ASM immediately. 
 
4.         Price and Payment
4.1       At ASM’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by ASM to the Client in respect of Goods supplied; or
(b)ASM’s quoted Price (subject to clause 4.2) which shall be binding upon ASM provided that the Client shall accept ASM’s quotation in writing within seven (7) days.
4.2       ASM reserves the right to change the Price in the event of a variation to ASM’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of fluctuations in foreign currency rates of exchange and/or international freight and insurance charges for foreign sourced components or as a result of increases to ASM in the cost of materials and labour) will be charged for on the basis of ASM’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3       Further to clause 4.2, any additional exchange rate or freight expenses incurred by ASM which are the result of a delay in delivery caused by indecision on artwork or approvals by the Client shall be met in full by the Client and shown as a variation on the invoice.
4.4       At ASM’s sole discretion a non refundable deposit may be required.
4.5       At ASM’s sole discretion:
(a) payment shall be due before delivery of the Goods; or
(b)payment shall be due upon approval of the Goods; or
(c) payment for approved Clients shall be due on thirty (30) days following the date of the invoice.
4.6       Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.7       Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and one half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and ASM.
4.8       GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
 
5.         Delivery of Goods
5.1       At ASM’s sole discretion delivery of the Goods shall take place when;
(a) ASM’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client’s agent and risk for the Goods shall pass to the Client upon dispatch from ASM’s or ASM’s agent’s premises; or
(b)the Client’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client’s agent.
5.2       At ASM’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b)in addition to the Price; or
(c) for the Client’s account.
5.3       The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then ASM shall be entitled to charge a reasonable fee for redelivery.
5.4       Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.5       ASM may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.6       The failure of ASM to deliver shall not entitle either party to treat this contract as repudiated.
5.7       ASM shall not be liable for any loss or damage whatsoever due to failure by ASM to deliver the Goods (or any of them) at the scheduled time or at all, where due to circumstances beyond the control of ASM.
 
6.         Risk
6.1       If ASM retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client immediately once the finished Goods leave ASM’s or ASM’s agent’s premises irrespective of whose transport is used for delivery. Insurance of the Goods during transit shall be the responsibility of the Client.
6.2       If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, ASM is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by ASM is sufficient evidence of ASM’s rights to receive the insurance proceeds without the need for any person dealing with ASM to make further enquiries.
6.3       Where the Client expressly requests ASM to leave Goods outside ASM’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.
6.4       Where the Client has supplied artwork for ASM to complete the Goods and/or Services, the Client agrees that such artwork shall meet ASM’s specifications for such artwork. In the event that such artwork does not meet ASM’s specifications, the Client acknowledges and accepts that additional charges may be incurred.
 
7.         Title
7.1       ASM and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid ASM all amounts owing for the particular Goods; and
(b)the Client has met all other obligations due by the Client to ASM in respect of all contracts between ASM and the Client.
7.2       Receipt by ASM of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then ASM’s ownership or rights in respect of the Goods shall continue.
7.3       It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until ASM shall have received payment and all other obligations of the Client are met; and
(b)until such time as ownership of the Goods shall pass from ASM to the Client ASM may give notice in writing to the Client to return the Goods or any of them to ASM. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) ASM shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d)if the Client fails to return the Goods to ASM then ASM or ASM’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as ASM has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to ASM for the Goods, on trust for ASM; and
(f) the Client shall not deal with the money of ASM in any way which may be adverse to ASM; and
(g)the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of ASM; and
(h) ASM can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i)   until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that ASM will be the owner of the end products.
 
 
 
8.         Defects
8.1       The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the essence) notify ASM of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford ASM an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which ASM has agreed in writing that the Client is entitled to reject, ASM’s liability is limited to either (at ASM’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
8.2       Goods will not be accepted for return other than in accordance with 8.1 above.
 
9.         Warranty
9.1       For Goods not manufactured by ASM, the warranty shall be the current warranty provided by the manufacturer of the Goods. ASM shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
 
10.       Intellectual Property
10.1     Where ASM has designed, drawn or written Goods for the Client, then the copyright in those designs, descriptions and drawings and documents shall remain vested in ASM, and shall only be used by the Client at ASM’s discretion.
10.2     The Client warrants that all designs or instructions to ASM will not cause ASM to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify ASM against any action taken by a third party against ASM in respect of any such infringement.
10.3    Unless otherwise requested in writing or by email by the Client, the Client hereby authorises ASM to utilise images of the Goods designed or drawn by ASM in advertising, marketing, or competition material by ASM.
 
11.       Default and Consequences of Default
11.1     Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at ASM’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
11.2     In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by ASM.
11.3     If the Client defaults in payment of any invoice when due, the Client shall indemnify ASM from and against all costs and disbursements incurred by ASM in pursuing the debt including legal costs on a solicitor and own client basis and ASM’s collection agency costs.
11.4     Without prejudice to any other remedies ASM may have, if at any time the Client is in breach of any obligation (including those relating to payment) ASM may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. ASM will not be liable to the Client for any loss or damage the Client suffers because ASM has exercised its rights under this clause.
11.5     If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
11.6     Without prejudice to ASM’s other remedies at law ASM shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to ASM shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to ASM becomes overdue, or in ASM’s opinion the Client will be unable to meet its payments as they fall due; or
(b)the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
 
12.       Security and Charge
12.1     Despite anything to the contrary contained herein or any other rights which ASM may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to ASM or ASM’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that ASM (or ASM’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b)should ASM elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify ASM from and against all ASM’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint ASM or ASM’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 12.1.
 
13.       Cancellation
13.1     ASM may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice ASM shall repay to the Client any sums paid in respect of the Price. ASM shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.2     In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by ASM (including, but not limited to, any loss of profits) up to the time of cancellation.
13.3    Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
 
 
14.       Privacy Act 1988
14.1     The Client and/or the Guarantor/s agree for ASM to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by ASM.
14.2     The Client and/or the Guarantor/s agree that ASM may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client; and/or
(b)to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d)to assess the credit worthiness of Client and/or Guarantor/s.
14.3     The Client consents to ASM being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4     The Client agrees that personal credit information provided may be used and retained by ASM for the following purposes and for other purposes as shall be agreed between the Client and ASM or required by law from time to time:
(a) provision of Goods; and/or
(b)marketing of Goods by ASM, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
(d)processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
14.5     ASM may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b)allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
 
15.       General
15.1     If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
15.2     These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
15.3     ASM shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by ASM of these terms and conditions.
15.4     In the event of any breach of this contract by ASM the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
15.5     The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by ASM nor to withhold payment of any invoice because part of that invoice is in dispute.
15.6     ASM may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
15.7     The Client agrees that ASM may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which ASM notifies the Client of such change.
15.8     Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
15.9     The failure by ASM to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect ASM’s right to subsequently enforce that provision.