Aztec Media Pty Ltd - Terms & Conditions of Trade


  1. 1. Definitions

    1. 1.1 "Provider" shall mean Aztec Media Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Aztec Media Pty Ltd.
    2. 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 the Provider to the Client.
    3. 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.
    4. 1.4 "Services" shall mean all Services supplied by the Provider to the Client and includes any advice or recommendations.
    5. 1.5 "Price" shall mean the price payable for the Services as agreed between the Provider and the Client in accordance with clause 3 of this contract.

  2. 2. Acceptance

    1. 2.1 Any instructions received by the Provider from the Client for the supply of Services and/or the Client's acceptance of Services supplied by the Provider shall constitute acceptance of the terms and conditions contained herein.
    2. 2.2 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. 2.3 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 the Provider.
    4. 2.4 The Client shall give the Provider 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 the Provider as a result of the Client's failure to comply with this clause.
    5. 2.5 Services are supplied by the Provider 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. 3. Price And Payment

    1. 3.1 At the Provider's sole discretion the Price shall be either:

      1. (a) as indicated on invoices provided by the Provider to the Client in respect of Services supplied; or
      2. (b) The Provider's current pricelist displayed on the website.
    2. 3.2 The Provider reserves the right to change the Price in the event of a variation to the Provider's quotation.
    3. 3.3 At the Provider's sole discretion a deposit may be required.

    4. 3.4 At the Provider's sole discretion:

      1. (a) payment shall be due before delivery of the Services; or
      2. (b) payment for approved Clients shall be made by instalments in accordance with the Provider's payment schedule.
    5. 3.5 Time for payment for the Services 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.
    6. 3.6 Payment will be made by cheque, no fee charged for Mastercard and/or Visa credit cards, or by direct credit, or by any other method as agreed to between the Client and the Provider.
    7. 3.7 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.

  4. 4. Delivery Of Services

    1. 4.1 Delivery of the Services shall commence on the acceptance of terms and conditions set-out in this agreement by the Provider as per clause 2.3.
    2. 4.2 The failure of the Provider to deliver shall not entitle either party to treat this contract as repudiated.
    3. 4.3 The Provider shall not be liable for any loss or damage whatever due to failure by the Provider to deliver the Services (or any of them) promptly or at all where due to circumstances beyond the control of the Provider.

  5. 5. Risk

    1. 5.1 All risk for the Services passes to the Client on delivery.
    2. 5.2 All third-party software is provided at the Client's own risk and is not in any way warranted by the Provider.

  6. 6. Title

    1. 6.1 The Provider and the Client agree that ownership of the Services shall not pass until:

      1. (a) the Client has paid the Provider all amounts owing for the particular Services; and
      2. (b) the Client has met all other obligations due by the Client to the Provider in respect of all contracts between the Provider and the Client.
    2. 6.2 Receipt by the Provider 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 the Provider's ownership or rights in respect of the Services shall continue.

  7. 7. Errors and Omissions

    1. 7.1 The Client shall inspect the Services on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Provider of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford the Provider an opportunity to inspect the Services within a reasonable time following delivery if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage. For defective Services, which the Provider has agreed in writing that the Client is entitled to reject, the Provider's liability is limited to either (at the Provider's discretion) replacing the Services or repairing the Services, except where the Client has acquired Services 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 Services, or repair of the Services, or replacement of the Services.

  8. 8. The Commonwealth Trade Practices Act 1974 ("TPA") and Fair Trading Acts ("FTA")

    1. 8.1 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.

  9. 9. Client's Responsibilities

    1. 9.1 The Client warrants that all material supplied by the Client to be used on the Provider's website will:

      1. (a) be true and correct in every particular; and
      2. (b) comply with Clause 10.2; and
      3. (c) not be, nor contain, anything that is defamatory of any person or is indecent or obscene; and
      4. (d) not breach any advertising industry standards or guidelines; and
      5. (e) not contain nor constitute a statement that is misleading or deceptive or likely to deceive or to mislead or which is otherwise in breach of a provision of the Trade Practices Act of 1974.
    2. 9.2 The Provider reserves the right to refuse to accept, or withdraw from display at any time, any material submitted by the Provider that does comply with Clause 9.1.

  10. 10. Intellectual Property

    1. 10.1 Copyright in any software, designs, drawings, or written documents supplied to the Client by the Provider, shall remain vested in the Provider, and shall only be used by the Client at the Provider's discretion.
    2. 10.2 The Client warrants that all designs or instructions to the Provider will not cause the Provider to infringe any patent, registered design or trademark in the execution of the Client's order and the Client agrees to indemnify the Provider against any action taken by a third party against the Provider in respect of any such infringement.
    3. 10.3 The Client will use any third-party software supplied by the Provider, and identified as such, strictly in terms of the licence under which it is supplied.
    4. 10.4 The Client hereby authorises the Provider to utilise images (including but not limited to photographs and/or text) for advertising, marketing, or competition material whilst the Client is under contract to the Provider.

  11. 11. Default & Consequences of Default

    1. 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 one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
    2. 11.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Provider from and against all costs and disbursements incurred by the Provider in pursuing the debt including legal costs on a solicitor and own client basis and the Provider's collection agency costs.
    3. 11.3 Without prejudice to any other remedies the Provider may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Provider may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. The Provider will not be liable to the Client for any loss or damage the Client suffers because the Provider has exercised its rights under this clause.
    4. 11.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) 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.

    5. 11.5 Without prejudice to the Provider's other remedies at law the Provider shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Provider shall, whether or not due for payment, become immediately payable in the event that:

      1. (a) any money payable to the Provider becomes overdue, or in the Provider's opinion the Client will be unable to meet its payments as they fall due; or
      2. (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
      3. (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. 12. Security And Charge

    1. 12.1 Despite anything to the contrary contained herein or any other rights which the Provider may have howsoever:

      1. (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 the Provider or the Provider'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 the Provider (or the Provider'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.
      2. (b) should the Provider elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Provider from and against all the Provider's costs and disbursements including legal costs on a solicitor and own client basis.
      3. (c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Provider or the Provider'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. 13. Cancellation

    1. 13.1 The Provider may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Client. On giving such notice the Provider shall repay to the Client any sums paid in respect of the Price. The Provider shall not be liable for any loss or damage whatever arising from such cancellation.
    2. 13.2 In the event that the Client cancels delivery of Services the Client shall be liable for any loss incurred by the Provider (including, but not limited to, any loss of profits) up to the time of cancellation.

  14. 14. Privacy Act 1988

    1. 14.1 The Client and/or the Guarantor/s agree for the Provider 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 the Provider.

    2. 14.2 The Client and/or the Guarantor/s agree that the Provider 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:

      1. (a) to assess an application by the Client; and/or
      2. (b) to notify other credit providers of a default by the Client; and/or
      3. (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
      4. (d) to assess the credit worthiness of Client and/or Guarantor/s.
    3. 14.3 The Client consents to the Provider being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

    4. 14.4 The Client agrees that personal credit information provided may be used and retained by the Provider for the following purposes and for other purposes as shall be agreed between the Client and Provider or required by law from time to time:

      1. (a) provision of Services; and/or
      2. (b) marketing of Services by the Provider, its agents or distributors in relation to the Services; and/or
      3. (c) analysing, verifying and/or checking the Client's credit, payment and/or status in relation to provision of Services; and/or
      4. (d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
      5. (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 Services.

    5. 14.5 The Provider may give information about the Client to a credit reporting agency for the following purposes:

      1. (a) to obtain a consumer credit report about the Client; and/or
      2. (b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

  15. 15. General

    1. 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.
    2. 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.
    3. 15.3 The Provider shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Provider of these terms and conditions.
    4. 15.4 In the event of any breach of this contract by the Provider the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Services.
    5. 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 the Provider.
    6. 15.6 The Provider may license or sub-contract all or any part of its rights and obligations without the Client's consent.
    7. 15.7 The Provider reserves the right to 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 the Provider notifies the Client of such change.
    8. 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, drought, storm or other event beyond the reasonable control of either party.
    9. 15.9 The failure by the Provider to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Provider's right to subsequently enforce that provision.

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