Terms & Conditions

Business Key Pty Ltd

TERMS & CONDITIONS OF TRADE

   

1.

Definitions

1.1

“Publisher” shall mean Business Key Pty Ltd and its successors and assigns.

1.2

“Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.

1.3

“Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Client on a principal debtor basis.

1.4

“Services” shall mean all services supplied (including, but not limited to, the production and/or publishing of advertisements and other publishing services) by the Publisher to the Client and includes any advice or recommendations.

1.5

“Price” shall mean the cost of the Services as agreed between the Publisher and the Client subject to clause 4 of this contract.

1.6

“Production” shall mean blocks, artwork, photography, bromides, special typesetting and the like.

 

 

2.

Acceptance

2.1

Any instructions received by the Publisher from the Client for the supply of Services and/or the Client’s acceptance of Services supplied by the Publisher shall constitute acceptance of the terms and conditions contained herein.

2.2

Where more than one Client has entered into this agreement, the Client’s shall be jointly and severally liable for all payments of the Price.

2.3

Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Publisher.

2.4

None of the Publisher’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Publisher in writing nor is the Publisher bound by any such unauthorised statements.

2.5

The Client undertakes to give the Publisher not less than fourteen (14) days prior written notice of any proposed 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).

 

 

3.

Services

3.1

The Services are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Publisher to the Client.

 

 

4.

Price And Payment

4.1

At the Publisher’s sole discretion the Price shall be either;

 

(a) as indicated on invoices provided by the Publisher to the Client in respect of Services supplied; or

(b) the Publisher’s current Price, at the date of delivery of the Services, according to the Publisher’s current Price list.

4.2

Time for payment for the Services shall be of the essence and will be stated on the invoice, quotation or any other order forms.  If no time is stated then payment shall be on the earlier of either delivery of the Services or on approval of the artwork.

4.3

Production charges shown are additional to the charges for advertising terms.

4.4

The Publisher may withhold delivery of the Services until the Client has paid for them, in which event payment shall be made before the delivery date.

4.5

At the Publisher’s sole discretion, payment for approved Clients shall be made by instalments in accordance with the Publisher’s delivery/payment schedule.

4.6

At the Publisher’s sole discretion, payment for approved Client’s shall be due thirty (30) days after the invoice date.

4.7

Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by direct credit, or by credit card (including any bank service fees that may apply), or by any other method as agreed to between the Client and the Publisher.

4.8

The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Publisher.

 

 

5.

Delivery Of Services / Services

5.1

Delivery of the Services shall be made to the Client’s address. The Client shall make all arrangements necessary to take delivery of the Services whenever they are tendered for delivery.

5.2

The costs of carriage and any insurance which the Client reasonably directs the Publisher to incur shall be reimbursed by the Client (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Client’s agent.

5.3

Where there is no agreement that the Publisher shall send the Services to the Client, delivery to a carrier at limited carrier’s risk at the expense of the Client is deemed to be delivery to the Client.

5.4

Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.

5.5

The failure of the Publisher to deliver shall not entitle either party to treat this contract as repudiated.

5.6

The Publisher shall not be liable for any loss or damage whatever due to failure by the Publisher to deliver the Services (or any of them) promptly or at all.

 

 

6.

Risk

6.1

If the Publisher retains property in the Services nonetheless, all risk for the Services passes to the Client on delivery.

 

 

7.

Publishing

7.1

The Publisher may place any advertisements under such classified headings as the Publisher considers appropriate and may from time to time make alterations to the classified headings.

7.2

No specific position for display advertising is guaranteed in any issue and the Publisher reserves the right to place such advertising in any position either on any page on which appears the heading with which such advertising is to be associated, or on any page opposite any such page.

7.3

The Publisher will provide a proof to the Client of the advertisement for approval and any alteration, additions or corrections are to be marked therein by the Client and the proof copy signed by the Client.  Any proof returned to the Publisher not signed and/or dated will be deemed to be correct.

7.4

The Publisher may change or decline any part of any advertisement (without notice to the applicant) so as to comply with the requirements or standards and practices governing this type of publication whether laid down by the Publisher or otherwise.

7.5

The Client warrants to the Publisher that the matter within the advertisement in no way contravenes any state or federal legislation, copyright or trademark laws or any statute regulation or law whatsoever and contains nothing obscene, indecent, or libellous and is not false or misleading and is not liable to deceive or mislead in anyway.

 

 

8.

Errors & Omissions

8.1

The Publisher will not be liable in any way for errors in entries or for the omission of entries arising from any causes whatsoever except to the extent as set out in clauses 8.2 and 8.3 nor shall the Publisher be required to correct any error or omission therein or to notify any error or omission to subscribers or users of the publication.

8.2

No charge shall be made in respect of any advertisement which is omitted from the publication and upon refund of the amount paid the Client shall have no further claim or remedy against the Publisher in respect of such omission.

8.3

The Publisher reserves the right to refund to the Client such portion of the amount paid for any published advertisement which contains any error or omission as the Publisher judges to be fair and equitable and upon such refund being made the Client shall have no further claim or remedy against the Publisher in respect of any such error or omission.

8.4

It is a fundamental term of the contract between the parties that;

 

(a) the Publisher shall not be liable for any loss or damage including consequential damages arising from the publication or acceptance for publication of the advertising or for any error or omission whether or not negligent in the publication of the advertisement or the omission altogether of the advertisement from the publication however caused; and

(b) any claim against the Publisher by the Client shall be in writing and received by the Publisher at the address shown herein within ten (10) days of the relevant publication beyond which time no claim will be considered.

 

 

9.

The Commonwealth Trade Practices Act 1974 and Fair Trading Acts

9.1

Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

 

 

10.

Intellectual Property

10.1

The Client warrants to the Publisher that the matter within the advertisement in no way contravenes any state or federal legislation, copyright or trademark laws or any statute regulation or law whatsoever and contains nothing obscene indecent libellous and is not false or misleading and is not liable to deceive or mislead in anyway.

10.2

Drawings, sketches, painting, photographs, designs or typesetting furnished by the Publisher, dummies, models or the like devices made or procured and manipulated by the Publisher and negatives, positives, blocks, engravings, stencils, dies, plates or cylinders made from the Publisher’s original design, or from a design furnished by the Client, remain the exclusive property of the Publisher unless otherwise agreed upon in writing.

10.3

Sketches and dummies submitted by the Publisher on a speculative basis shall remain the property of the Publisher. They shall not be used for any purpose other than that nominated by the Publisher and no ideas obtained there from may be used without the consent of the Publisher.  The Publisher shall be entitled to compensation from the Client for any unauthorised use of such sketches and dummies.

10.4

The Client shall have no right or title to data stored by the Publisher on disks or any other electronic form of storage but after a Publisher agrees to duplicate or transfer stored electronic or like media for use by a Client or other parties authorised to obtain that data, he shall have the right to charge for those services.

10.5

Disks, artwork and film supplied by the Client and/or other authorised persons remain the property of the Client.  Unless otherwise indicated in writing the Publisher shall assume these disks, artwork and film to be duplicate copies of the original.

10.6

Where the Publisher has designed or drawn Services for the Client then the Client undertakes to acknowledge the Publisher’s design or drawings in the event that images of the Services are utilised in advertising or marketing material by the Client.

10.7

The Client hereby authorises the Publisher to utilise images of the Goods designed or drawn by the Designer in advertising, marketing, or competition material by the Publisher.

10.8

Where the Publisher has designed or drawn Services for the Client, then the copyright in those designs and drawings shall remain vested in the Publisher, and shall only be used by the Client at the Publisher’s discretion.

 

 

11.

Default & Consequences Of Default

11.1

Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.

11.2

If the Client defaults in payment of any invoice when due, the Client shall indemnify the Publisher from and against all the Publisher’s costs and disbursements including on a solicitor and own Client basis and in addition all of the Publisher’s nominees costs of collection.

11.3

Without prejudice to any other remedies the Publisher may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Publisher may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. The Publisher will not be liable to the Client for any loss or damage the Client suffers because the Publisher exercised its rights under this clause.

11.4

If any account remains unpaid at the end of the second month after supply of the Services an immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable in addition to the interest payable under clause 11.1 hereof.

11.5

In the event that:

 

(a) any money payable to the Publisher becomes overdue, or in the Publisher’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;

 

then without prejudice to the Publisher’s other remedies at law

 

(i) the Publisher shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies; and

(ii) all amounts owing to the Publisher shall, whether or not due for payment, immediately become payable.

 

 

12.

Security And Charge

12.1

Despite anything to the contrary contained herein or any other rights which the Publisher 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 the Publisher or the Publisher’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions.  The Client and/or the Guarantor acknowledge and agree that the Publisher (or the Publisher’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.

(b) Should the Publisher elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Publisher from and against all the Publisher’s costs and disbursements including legal costs on a solicitor and own Client basis.

(c) To give effect to the provisions of clause [12.1 (a) and (b)] inclusive hereof the Client and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Publisher or the Publisher’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Publisher and/or the Publisher’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Client and/or the Guarantor in any land, realty or asset in favour of the Publisher and in the Client’s and/or Guarantor’s name as may be necessary to secure the said Client’s and/or Guarantor’s obligations and indebtedness to the Publisher and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Publisher’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.

 

 

13.

Cancellation

13.1

The Publisher may cancel these terms and conditions or cancel delivery of Services at any time before the Services are delivered by giving written notice.  The Publisher shall not be liable for any loss or damage whatever arising from such cancellation.

13.2

At the Publishers sole discretion the Client may cancel delivery of Services. In the event that the Client cancels delivery of Services the Client shall be liable for any costs incurred by the Publisher up to the time of cancellation.

 

 

14.

Privacy Act 1988

14.1

The Client and/or the Guarantor/s agree for the Publisher 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 Publisher.

14.2

The Client and/or the Guarantor/s agree that the Publisher may exchange information about Client and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:

 

(a) To assess an application by Client;

(b) To notify other credit providers of a default by the Client;

(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

(d) To assess the credit worthiness of Client and/or Guarantor/s.

14.3

The Client consents to the Publisher 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 Data provided may be used and retained by the Publisher for the following purposes and for other purposes as shall be agreed between the Client and Publisher or required by law from time to time:

 

(a) provision of Services;

(b) marketing of Services by the Publisher, its agents or distributors in relation to the Services;

(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services;

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client;  and

(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.

14.5

The Publisher 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.

Publisher’s Lien

15.1

Where the Client has left any item with Publisher for repair, modification, exchange or for the Publisher to perform any other Service in relation to the item and Publisher has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Publisher shall have:

 

(a) a lien on the item;

(b) the right to retain the item for the Price while the Publisher is in possession of them;

(c) a right of resale,

(d) the foregoing right of disposal,

 

provided that the lien of the Publisher shall continue despite the commencement of proceedings or judgement for the Price having been obtained.

 

 

16.

Client’s Disclaimer

16.1

The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Publisher and the Client acknowledges that he buys the Services relying solely upon his own skill and judgement.

 

 

17.

General

17.1

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.

17.2

All Services supplied by the Publisher are subject to the laws of Western Australia and the Publisher takes no responsibility for changes in the law which affect the Services supplied.

17.3

The Publisher 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 Publisher of these terms and conditions.

17.4

In the event of any breach of this contract by the Publisher the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Publisher exceed the Price of the Services.

17.5

The Client shall not set off against the Price amounts due from the Publisher.

17.6

The Publisher may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

17.7

The Publisher reserves the right to review these terms and conditions at any time and from time to time.  If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Publisher notifies the Client of such change.

 

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