This agreement is between the client and:
ADL Marketing Pty Limited ACN 611 554 959 trading as Neon Dynamic Print Solutions of F26/16 Mars Road Lane Cove West NSW 2066 (Neon).
The Client wishes to utilise print and/or related services for its business.
Neon provides print and production services.
The Client wishes to engage an independent contractor to provide the Services to the Client.
Neon is willing to provide the Services and the Client is willing to appoint Neon to provide the Services, all in accordance with the provisions of this agreement.
1. Definitions and interpretation
In this agreement unless the context indicates otherwise, the following words have the following meanings.
Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).
Commencement Date means the date of this agreement.
Completion Date means the date by which the Deliverables are to be provided by Neon, being the date or dates identified in the Specification.
Confidential Information includes any information marked as confidential and any information received or developed by either party during the term of this agreement, which is not publicly available and relates to processes, equipment and techniques used by the a party in the course of the its business. This includes all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans.
Deliverables means all of the specifications of the Services required by the Client, which are fully set out in the Specification.
Dispute means any dispute, disagreement, or issue which arises out of or in connection with this agreement.
Dispute Notice has the meaning given in clause 14.
Facilities means working space, computer equipment, access to the internet and the Client’s computer network, telecommunications system and similar. It includes access to such resources but also use of them to the extent required by Neon in order to perform the Services.
Fees means the amount identified in the Specification.
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property includes trademarks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former.
Key Personnel means any person or persons that Neon designates to perform the Services or deliver the Deliverables identified in the Specification.
Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.
Order means any order, purchase order or quotation, including where enclosed with this agreement.
Parties means Neon and the Client, and Party means either one of them.
Related Body Corporate has the meaning given in section 50 of the Corporations Act 2001 (Cth).
Services means the services to be provided by Neon under this agreement, being limited to those services and the Deliverables identified in the Specification.
Specification means the details of the Services as set out in the specification in the schedule.
Termination Date means the earlier of:
the date of termination of this agreement by the Client or Neon; and
the date of expiry of this agreement.
In this agreement unless the context otherwise requires:
words importing any gender include every gender;
words importing the singular number include the plural number and vice versa;
words importing persons include firms, companies and corporations and vice versa;
references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this agreement;
reference in any schedule to this agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
the headings to the clauses and schedules of this agreement are not to affect the interpretation;
any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
the word “including” (and related forms including “includes”) means “including without limitation”.
2. Binding agreement
Neon and the Client agree that these terms form a binding agreement between the parties.
The Client acknowledges that by signing this agreement, or an Order, it will be subject to these terms and conditions as though they form part of any agreement with the Neon.
Neon will provide the Services to the Client in consideration for the Client paying the Fee to Neon, subject to the provisions of this agreement.
The Services will be provided by Neon providing the Deliverables only as specified in the Specification. Upon the supply of the Deliverables, Neon’s obligations to provide the Services shall be discharged.
Neon will use reasonable endeavours to provide the Deliverables to the Client by the Completion Date. Time shall not be of the essence and Neon shall discharge its obligations under this clause by using reasonable endeavours to provide the Deliverables by the Completion Date.
The Services will be performed by any person Neon may choose as most appropriate to carry out the Services. Where Key Personnel are specified in this agreement, Neon will use its best endeavours to engage the Key Personnel to deliver the Deliverables.
All Services and Deliverables will be supplied subject to availability. If certain products are unavailable, Neon will substitute with product of similar appearance, value and size where reasonably practicable so long as the Deliverables are not otherwise substantively different. If not reasonably available, Neon will inform you as soon as reasonably practicable and will not be obliged to perform the Services to the extent that there is no such availability.
4. Artwork, Design and Production
4.1 Artwork and design specifications and instructions
In the event that as part of the Services the Client is to provide Neon with design specifications for the Client’s product (Artwork), the Artwork is required to meet Neon’s file specifications and comply with the requirements of this clause.
Neon will not be liable for any errors in the Artwork.
The Client is responsible for proofing and approving all products created by using the Artwork.
All Artwork must be provided in CMYK unless you have been quoted for spot colouring. All artwork must be in a CMYK colour space (no RGB). Any colour variation caused by RGB artwork being converted to CMYK must be accepted by the Client (and Neon will have no responsibility for any Losses occasioned as a result).
All Artwork must be supplied with 3mm of bleed where images and colours run to the edge. Neon will not accept responsibility for any variations or details being cut off if the Client chooses to proceed without such bleed.
All Artwork must be in accordance with Neon’s specifications relevant to a particular order where Neon makes it known to the Client.
Neon will hold all Artwork on file but will not be responsible if files are lost or damaged.
All Artwork must be provided to Neon with a high resolution, and in any event of at least 300 DPI. Any pixelation or low resolution image production as a result of a lesser quality Artwork being provided will be the Client’s responsibility, who shall release Neon from all claims in connection with it.
An example draft product (Proof) may be sent to the Client in electronic form to review and approve or request amendments. Neon’s Proofs are imaged using calibrated press profiles. These profiles will reproduce the Client’s chosen colour when printed on Neon’s presses, however, some colour shift may occur due to the Client’s chosen stock and the addition of laminating or other special coatings.
The Client is required to respond to Neon’s request for approval within 5 business days. If the Client requires amendments to Proofs, Neon will amend these as instructed and send to the Client for final approval once amended. Neon will not commence any print work until a Proof is approved.
Upon approval from the Client, any subsequent errors in your products are not Neon’s responsibility.
Trimming may vary by up to 2 mm from the Proof, specification, or print job to print job
The Client acknowledges and agrees that a variation of up to 10% in quantity is inherent in the print process. Neon does not accept liability regarding these variations, however, Neon may, in its sole discretion, reprint the shortage or provide the Client with a refund for the missing quantity (to the fullest extent permitted by law).
Once an order is placed and Artwork approved by the Client, the order is not revocable and is final. No further changes can be made, except where Neon decides otherwise in its sole and absolute discretion and where the Client pays the reasonable expenses incurred by Neon resulting from any changes.
If the Client processes a reorder (for the same work as a prior job) Neon will not be obliged to provide a Proof and will be entitled to process the new order, on the condition that the quality is substantially the same as that of the prior order.
Design requests, briefs, quotes, Proofs and Artwork approvals must all be submitted to Neon by the Client in electronic form (by email or however otherwise required by Neon). Neon will not act on any verbal requests unless they are confirmed in writing (and in that event, only to the extent that the instruction is given in writing).
In the event that the Client does not proceed with any print work that forms part of an order, it shall still be required to pay Neon for all work done (including graphic design work) prior to that point
In the event that the Client does not approve a Proof in writing within 30 days (for all Services) it shall be deemed to be accepted.
4.2 Colour match
Neon uses the latest machines, technology and colour calibration spectrometers to produce high quality work, however all printers and monitors create different colour results from time to time.
Although Neon will endeavour to ensure that requested colours are matched, Neon does not guarantee an exact match in colour or texture between the Artwork (or product of prior orders) or any other materials supplied by the Client and the Deliverables. While Neon has quality control processes in place, the Client acknowledges and agrees that there are acceptable levels of colour variation from print run to print run, from stock to stock, from back to front and between different printing processes. Neon accepts no responsibility for such differences.
4.3 Graphic Design
All graphic design work performed by Neon will be charged at a rate agreed by the parties in advance, which shall also apply to any changes or revisions to Artwork or other design work.
5. Location and Delivery
Neon will provide the Services in places and locations as Neon deems fit (in its sole discretion), except where the Deliverables specify a specific location for any part of the Deliverables, in which case the Services will be provided in that location for the relevant aspect of the Deliverables.
Neon will notify the Client when the Deliverables are available for pick up. In the event that the Client requires delivery, unless agreed otherwise the Client must pay all delivery costs in advance. Unless specified otherwise, all Fees and quotations are exclusive of delivery costs.
Once Deliverables have left the Neon premises, they shall be entirely at the Client’s risk. Neon cannot be held responsible after that time for any loss or damage to or in connection with the Deliverables, or any delays in delivery.
6.1 Payment of Fees
In consideration of the provision of the Services in accordance with this agreement, the Client will pay Neon the Fees.
The Client must pay Neon the Fees in full upon placing an order with Neon.
The Client must pay Neon the Fees within 30 days of the date of a tax invoice issued by Neon for any portion (or all) of the Fees.
The Client must pay Neon the Fees as follows:
50% of the Fees are payable upon the signing of this Agreement by the Client, which shall not be refundable under any circumstances (once Neon has commenced work on the Services); and
The remaining balance of the Fees are payable upon the Deliverables being supplied to the Client by Neon which shall not be refundable once the Deliverables are supplied.
In the event that this agreement is terminated after Neon has commenced work on the Services but prior to the final delivery of the Deliverables, the Client must pay to Neon an amount comprising a proportion of the Fee that is reasonably referable to the proportion of the Deliverables completed by Neon at the date of termination.
The Client acknowledges that the Fees are exclusive of any GST that may be charged by Neon to the Client, and therefore, Neon will be entitled to add on GST.
Neon shall be under no obligation to release the Deliverables to the Client until all Fees have been paid in full.
If the Client has a valid Neon-issued discount code, it must be submitted at the time of payment being made.
Neon will provide the Client with a tax invoice in accordance with the GST Law in relation to fees payable under this clause 6.
Payment will be made by the Client to Neon within 30 days after receiving Neon’s invoice (subject to clause 6.1).
When making a payment, the Client must quote relevant reference numbers and the invoice number.
6.3 Variation of Fees
In the event that the Client requests any variation to the Services or the Deliverables, Neon shall only be bound after any amendment to the Fees, the Completion Date and the scope of the Services are agreed by both parties in writing.
The Client specifically acknowledges that any emergency or priority work will attract an extra charge, which the parties must agree in writing prior to the commencement of any such work.
6.4 Costs and disbursements
Neon is permitted to charge for all external costs and expenses incurred in performing the Services where approved by the Client in advance, except that Neon shall be entitled to reimbursement of and not be required to seek Client approval in advance for any expense under 5% of the Fees (for each expense).
6.5 Additional charges
The Client must pay to Neon in addition to the Fees the following (which shall be payable under this agreement as though it forms part of the Fees):
fees for any preliminary work performed at the Client’s request;
fees for additional work required to be done as a result of the Client changing his, her or its instructions;
fees for having to work from a poor copy;
fees for work which involves tables or foreign language and which was not notified to the printer before the Order was prepared;
fees for additional work required to be done as a result of author’s corrections, including repagination or reformatting;
fees and other charges for work required to be done urgently, including any overtime costs (subject to the balance of this agreement);
fees for handling or storing material or equipment supplied by the Client for the purposes of the Order;
fees for changing or correcting, in order to ensure that the Deliverables are properly produced, any plates, film, bromides, artwork or any document including computer files supplied for the purposes of the Order by the Client;
freight costs and charges; and
other charges, fees or disbursements referred to in this agreement and not specified in this clause.
6.6 Failure to pay
If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in the agreement, Neon is entitled to do any or all of the following:
charge interest on the outstanding amount at the rate of 12% per annum compounding accruing daily;
require the Client to pay, in advance, for any Services (or any part of the Services) which have not yet been performed; and
not perform any further Services (or any part of the Services).
7. Client’s obligations
During performance of the Services the Client will:
co-operate with Neon as Neon reasonably requires;
provide the information and documentation that Neon reasonably requires;
make available to Neon such Facilities as Neon reasonably requires; and
ensure that the Client’s staff and agents cooperate with and assist Neon.
The Client will not charge for Neon’s use of the Facilities made available by the Client.
If the Client does not provide the Facilities that Neon reasonably requires (and within the time period) to perform the Services, then any additional costs and expenses which are reasonably incurred by Neon will be paid by the Client.
8. No partnership or employment relationship
Nothing in this agreement constitutes the relationship of employer and employee between the Client and Neon or between the Client and the Key Personnel.
It is the express intention of the Parties that any such relationships are denied.
9. Use of subcontractors
Neon is permitted to use other persons to provide some or all of the Services.
Neon is responsible for the work of any of Neon’s subcontractors.
Subject to clause 9(d), any work undertaken by any of Neon’s subcontractors will be undertaken to the same standard as stated in this agreement and the Specification.
To the extent that the terms of any subcontract stipulate a higher standard for any of the Services than the standards set out in this agreement (including as to timing or quality), any Services provided by the relevant subcontractor will be governed by the terms and conditions of that subcontractor’s subcontract.
10. Disclosure and ownership of intellectual property
The Client expressly agrees that Neon will own all intellectual property in all Deliverables or other works created in connection with the Services that now exists or later comes into existence, unless otherwise agreed in writing between the Client and Neon.
Neon agrees, subject to receiving all Fees payable under this agreement, to grant to the Client a non-exclusive royalty-free licence for the Client have the right to use and publish all Deliverables and other works created in connection with the Services.
The Client agrees to indemnify Neon fully against all Losses, liabilities, costs and expenses which Neon may incur as a result its use of the Deliverables pursuant to the licence granted under this clause.
The rights and obligations under this clause 10 survive termination or expiry of this agreement.
Nothing in this agreement will otherwise cause the transfer of intellectual property rights owned by either party prior to entry into this agreement.
The Client and Neon acknowledge that information resulting from the activities of Neon pursuant to this agreement will also be regarded as Confidential Information.
The parties’ obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by the parties.
The Confidential Information does not include information which:
is generally available in the public domain otherwise than as a result of a breach of this clause by a party; or
was known by the other party prior to the party disclosing the information.
The obligations accepted under this clause 11 survive termination or expiry of this agreement.
12. Warranties, liability and indemnities
Neon warrants that it will use reasonable care and skill in performing the Services and providing the Deliverables.
If Neon performs the Services (or any part of the Services) negligently or materially in breach of this agreement then, if requested by the Client, Neon will re-perform the relevant part of the Services, subject to paragraphs 12.5(a) and 12.5(b) below.
The Client’s request referred to in paragraph 12.1(b) must be made within 3 days of the Completion Date. After that time, Neon shall not be obliged to re-perform the relevant part of the Services.
12.2 Employees and subcontractors
Neon covenants that Neon is solely responsible for the payment to Neon’s employees and agents of all amounts due by way of salary, superannuation, annual leave, long service leave and any other benefits to which they are entitled as Neon’s employees or agents.
Neon must otherwise comply with legislation applicable to Neon’s employees and agents.
12.3 Compliance with all laws
Throughout this agreement the parties must comply at their own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, State and Local Government departments, bodies, and public authorities or other authority.
12.4 No warranties in relation to completion
Neon provides no warranty that any result or objective can or will be achieved or attained at all or by the Completion Date or any other date, whether stated in this agreement, the Specification or elsewhere.
12.5 Limitation on liability
Except in the case of death or personal injury caused by Neon’s negligence, the liability of Neon under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must and will not exceed the Fees paid by the Client to Neon under this agreement.
Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this clause do not apply to clauses 12.3 or 12.6.
The Client releases and must indemnify and hold Neon harmless from and against all Claims and Losses arising from loss, damage, liability, injury to Neon, its employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the Neon by the Client, its employees or suppliers, within or without the scope of this agreement.
12.7 No reliance
Each of the Parties acknowledges that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.
Neon must supply the Client with evidence of Neon’s ABN and must include this number on any statement provided to the Client.
Neon acknowledges that if Neon fails to provide an ABN, then the Client is entitled to withhold any proportion of the payments to Neon as may be required under the relevant law for tax purposes.
12.9 Limitation on authority
Each party warrants that he or she has no authority to engage the services of any person as an employee or agent of the other party.
Each warrants that it will not incur any liability on behalf of the other party or in any way pledge or purport to pledge the other party’s credit or accept any other or make any contract binding upon the other party without prior approval being given by the other party.
12.10 Survival of obligations
The obligations accepted by Neon and the Client under this clause 12 survive termination or expiry of this agreement.
Either Party may terminate this agreement by notice in writing to the other if the Party notified:
fails to observe any term of this agreement; and
fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 14 days’ notice of the breach being given in writing by the notifying Party to the other Party.
Either Party may terminate this agreement upon the happening of any of the following events:
the giving of at least 3 month’s written notice by one Party to the other Party of the intention to terminate this agreement;
if the Client enters into a deed of arrangement or an order is made for it to be wound up;
if an administrator, receiver or receiver/manager or a liquidator is appointed to the Client pursuant to the Corporations Act 2001 (Cth); or
if the Client would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).
The Client may, at its discretion, pay to Neon the equivalent amount of the fees payable by the Client to Neon during the notice period in lieu of any notice period relating to termination of this agreement under paragraph 13(a)(i).
Upon termination of this agreement any fees, expenses or reimbursements payable by the Client to Neon in respect of any period prior to the Termination Date must be paid by the Client within 7 days after the Termination Date.
14. Dispute resolution
14.1 Except for seeking urgent interlocutory relief, any Dispute which arises between the parties must, unless otherwise expressly stated to the contrary in this Deed, be determined pursuant to this clause prior to commencing legal proceedings.
14.2 Dispute notice
Any party may issue a Dispute Notice in relation to a Dispute.
The Dispute Notice must:
describe what the Dispute is about;
state the party’s position;
set out the facts and circumstances on which the party relies; and
attach copies of correspondence and other documents mentioned in the Dispute Notice.
14.3 Initial Period
For a 10 Business Day period after a Dispute Notice is given (Initial Period) the parties must use all reasonable endeavours to resolve the Dispute.
If the Dispute remains unresolved at the end of the Initial Period, the Dispute may be referred to mediation.
14.4 If the Dispute is not resolved by the disputing parties during the Initial Period, then any of the disputing parties may refer the Dispute to mediation no later than 5 Business Days after the end of the Initial Period.
14.5 Any Dispute referred to mediation must be conducted in accordance with the Resolution Institute Mediation Rules and:
(a) be conducted in Sydney by a mediator agreed on by the disputing parties; or
(b) if the disputing parties are unable to agree on a mediator within five Business Days of the date of the referral to mediation under, be conducted in Sydney by a mediator appointed by the then current chair or acting chair of the Resolution Institute following a request from any of the disputing parties.
14.6 The role of any mediator is to assist in negotiating a resolution of the Dispute within 20 Business Days of his or her appointment (Mediation Period).
(a) The cost of any mediator will be shared equally between each of the disputing parties participating in the dispute resolution process under this clause.
(b) The disputing parties will each bear their own costs of any mediation.
14.8 If no party refers the Dispute to mediation or if the Dispute is not resolved by the disputing parties during the Mediation Period, the parties may commence legal proceedings in respect of the Dispute.
14.9 The existence of a Dispute does not excuse any party from performing its respective obligations under this Deed.
14.10 Failure by a party to a Dispute to comply with this clause may be pleaded in bar to the continuance of any proceeding initiated by that party until this clause has been complied with.
15.1 Force majeure
Neither Party has any liability under or may be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from circumstances beyond the reasonable control of that Party.
The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this agreement by written notice to the other Party.
This agreement may only be amended in writing signed by duly authorised representatives of the Parties.
Subject to paragraph 15.3(b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this agreement without the prior written agreement of the other Party which must not be unreasonably withheld.
A Party may assign and transfer all its rights and obligations under this agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this agreement.
15.4 Entire agreement
This agreement contains the whole agreement between the Parties in respect of the subject matter of the agreement.
The Parties confirm that they have not entered into this agreement on the basis of any representation that is not expressly incorporated into this agreement.
No failure or delay by Neon in exercising any right, power or privilege under this agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
The rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.
15.6 Agency, partnership etc
This agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this agreement.
Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
15.7 Further assurance
Each Party to this agreement must at the request and expense of the other do all things reasonably necessary to carry out the provisions of this agreement or to make it easier to enforce.
If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this agreement.
A notice or other communication connected with this agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this agreement, or sent by email or fax to the email or fax number of the addressee.
15.10 Work, health and safety
Neon must comply with all relevant work, health, safety and welfare standards and regulations determined by the Client or as prescribed by legislation.
15.11 Law and jurisdiction
This agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in New South Wales, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of New South Wales.