- a) “Client” means the person or company to whom Products and/or Services are supplied and includes that company’s successors and permitted assigns.
- b) “Advertise Me” means Advertise Me Pty Ltd, the supplier of Products and/or Services to the Client, and includes Advertise Me successors or assigns.
- c) “Products” means the products supplied by Advertise Me to the Client specified on the Proposal and/or any invoice dispatched by Advertise Me to the Client.
- d) “Proposal” means the proposal or other specification type document that this agreement is attached to, including without limitation, quotes and invoices.
- e) “Services” means the services scoped and/or specified (including any deliverables) in the Proposal.
- a) Any agreement between the Client and Advertise Me shall be upon these terms and conditions (inclusive of the Proposal) and these terms and conditions shall operate to the exclusion of any terms and conditions to the contrary effect expressed in any of the Client order forms or other documentation and shall supersede all prior arrangements, written or oral.
- b) The continued operation of these terms and conditions shall not be affected by any repudiation of any contract or transaction relating to the Products and/or Services between Advertise Me and the Client.
3) Terms of Payment
- a) Unless otherwise specified in the Proposal, the fees set forth in the Proposal are based upon personnel time allocated to the specific Services, whether performed at Client’s premises, Advertise Me premises or elsewhere. Unless otherwise expressly excluded in the Proposal, Client will be charged for reasonable expenses incurred by Advertise Me in the performance of the Services, including travel and living expenses for Advertise Me personnel. Any milestone payment paid to Advertise Me is non-refundable.
- b) Advertise Me personnel shall only be required to work normal business hours as determined by Advertise Me from time to time. If the personnel perform Services in excess of normal business hours, Advertise Me reserves the right to charge a premium for overtime hours worked and for Services performed on weekends and holidays.
- c) Advertise Me reserves the right to charge for significant travel time outside normal business hours, with prior notice to Client.
- d) Unless the Client is an approved account Client, payment must be made prior to dispatch of Products and/or Services, either in cash or by bank cheque, or on approval, by company cheque, direct deposit or accepted credit card. Subject to special arrangements, payment must be made by approved account Client within agreed terms.
- e) Should the Client elect to purchase the Products through lease, the Client is required to notify Advertise Me prior to the dispatch of Products.
- f) All payment shall be made on or before the due date as a condition precedent to future supplies under the contract pursuant to which the payments are due or under any other agreement.
- g) Advertise Me reserves the right to charge:
(i) a surcharge for payment by credit card; and
(ii) any amount not paid by the due date will be calculated at 2% per annum above the rate at the time being charged by the bankers of Advertise Me on overdrafts exceeding $100,000 on the balance of the payment due by the Client but unpaid from the due date until payment is received in full by Advertise Me.
- h) Advertise Me may at any time and from time to time alter the terms of payment and such altered terms of payment shall apply in respect of all transactions taking place after notification of due date until payment is received in full by Advertise Me.
4) Client Responsibilities
- a) Client shall cooperate with Advertise Me in performing the Services, including providing Advertise Me with safe and timely access to Client’s computer systems, personnel (executive and staff), facilities, utilities and information reasonably necessary to the performance of the Services, whether or not defined in the Proposal, at no charge to Advertise Me. Client is responsible for the accuracy and completeness of the information and data Client supplies to Advertise Me for use under this agreement.
- b) As a condition of Advertise Me’s performance of the Services, Client shall perform certain Client tasks specified in the Proposal or other scoping document attached to these terms and/or agreed by the parties at no charge to Advertise
- c) Client shall provide current and complete back-up for any Client data and programs that may be affected by Advertise Me’s performance of the Services. Except as provided in Clause 14, Advertise Me shall not be responsible for the protection or loss of customer data or information.
5) Goods and Services Tax (GST)
- a) Definitions
In this clause 5 the expressions “adjustment note”, “consideration”, “GST”, “Supply”, “tax invoice”, “recipient” and “taxable supply” have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999. For the avoidance of doubt, “GST” includes any penalties or additional tax imposed in relation to the GST.
- b) Sums include GST
Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this agreement are inclusive of GST.
- c) Responsibility for GST
Despite any other provision in this agreement, if GST is imposed on any supply made under this agreement, the recipient must pay to the supplier an amount equal to the GST payable on the
supply. The recipient must pay the amount referred to in this clause 5c in addition to and at the same time as payment for the supply is required to be made under this agreement.
- d) Tax Invoice
If a supply is made to which GST applies or is varied under this agreement, the supplier must provide the recipient of the supply a valid tax invoice or adjustment note at or before the time
of payment or variation.
- e) Adjustment
If the amount of GST paid or payable by the supplier on any supply made under this agreement differs from the amount of GST paid by the recipient, because the Commissioner of Taxation lawfully adjusts the value of the taxable supply for the purpose of calculating GST, then the amount of GST paid by the recipient will be adjusted accordingly by a further payment by the recipient to the supplier or the supplier to the recipient, as the case requires.
6) Delivery of Product
- a) In consideration of the payment by the Client, in addition to the price, of Advertise Me’s freight, handling and insurance charge calculated according to Advertise Me current prices, Advertise Me will arrange delivery of Products to the Client’s nominated location within major metropolitan areas of Australian capital cities.
- b) Delivery times quoted by Advertise Me are estimates only and Advertise Me may extend delivery times.
- c) Advertise Me may make part delivery of any Products ordered by the Client and any Products so delivered shall constitute a separate contract upon these terms and conditions. As such, an invoice on any Products part delivered is due in accordance with the agreed terms of payment.
- d) Delivery of Products is deemed to take place at the time the Client or a carrier, whether engaged by Advertise Me or the Client, takes possession of the Products; or within 7 days of notification by
Advertise Me to the Client that the Products are available, whichever first occurs.
7) Availability of Services
- a) Advertise Me reserves the right to:
- i) determine which personnel will be scheduled to perform the Services;
- ii) replace or reassign such personnel; or
iii) subcontract qualified third persons to perform part or all of the Services.
- b) No person performing Services on behalf of Advertise Me shall be restricted or prevented from performing Services for others that are similar to the Services provided under this agreement.
- c) Subject to compliance with security requirements and access restrictions imposed by the Client, Advertise Me may provide its Services during such hours and on such days as it considers necessary and appropriate to ensure compliance with its obligations under the Agreement.
- d) Advertise Me reserves the right at any time or from time to time during the term of this agreement to withdraw any of its personnel that perform Services pursuant to this agreement if for reasons beyond the control of Advertise Me any such personnel cease to be available. Advertise Me shall give fourteen days notice of any such withdrawal to the Client and agrees to replace such person with a suitably qualified person equal to the one replaced.
- e) Provision of Services which is for equipment maintenance services and provided by the manufacturer will be in accordance with the manufacturer’s terms and conditions. Equipment maintenance services provided by Advertise Me will be in accordance with Advertise Me terms and conditions (as amended from time to time).
General Terms and Conditions of Supply of Products and Services
- a) Subject to prior written acceptance by the vendor supplying the Product, the Products may be returned provided the Client obtains from Advertise Me a Return Authorisation (RA) Number in advance of returning the Products.
- b) Products must be returned complete with all original packaging unmarked within 14 days of supply. Freight is to be paid by the Client and Advertise Me accepts no responsibility in respect of returned Products lost or damaged in transit. In the event of a return Advertise Me reserves the right to charge the Client for any additional costs or fees incurred by Advertise Me as a result of having supplied the Product to the Client including but not limited to restocking fees.
The parties agree that all warranties in relation to Products from the manufacturer of the Products will apply to the Client’s use of that Product. Advertise Me does not warrant any Products or Services of its own accord and all remedies, repairs or replacement for any Products will be at the ultimate discretion of the manufacturer.
13) Limitation of Liability
- a) The Client acknowledges that in entering into this agreement, it will be relying upon its own experience, skill and judgement to evaluate any conclusion or recommendations made by Advertise Me in any report supplied b) Subject to the warranty terms of a Products manufacturer (where relevant), the Client acknowledges that Advertise Me’s liability under any statutory right or any condition or warranty implied by any state Fair Trading i) in the case of any goods or Products, whatever the manufacturer of those Products or goods provides including one of the following:
- A) the replacement of the goods or the supply of the goods again; or
- B) the repair of the goods;
- ii) in the case of any Services, at Advertise Me’s sole discretion, one of the following
- A) the supply of the Services again; or
- B) the payment of the reasonable cost having the Services supplied again.
- c) Excluding liability as a result of property damage, personal injury or death the parties agree that Advertise Me:
- i) limits its liability to the Client for any direct loss, cost or damage suffered (irrespective of how incurred including in tort or contract) as result of providing the Products and/or Services
to the value of any fees paid to Advertise Me in the last twelve (12) months; and
- ii) is not liable to the Client for any incidental, indirect, special, consequential or economic loss or damage (including loss of profits or opportunities and exemplary and punitive damages) whether arising from negligence or otherwise in relation to provision of the Products and/or Services or the failure or omission by Advertise Me to comply with its obligations under this agreement.
- d) Furthermore Advertise Me shall not be responsible for any incorrect information or misrepresentations made by the Client or any third party used by the Client.
8) Cancellation or Variation
- a) An order for Product may be cancelled or varied by the Client only if such cancellation or variation is accepted by Advertise Me in writing and any such cancellation or variation shall only occur on terms which will provide for Advertise Me to be compensated by the Client against any costs or loss (including but not limited to loss of profit) incurred.
- b) Any modification, variation or addition to this agreement, the fees and charges set forth therein and/or the Services to be performed thereunder shall be effective only with the written consent of each party. Extensions and/or additions to this agreement may be made at Advertise Me’s then prevailing rates, terms and conditions with the written consent of each party.
9) Intellectual Property
- a) “Work Product” means any written materials, reports, computer software or software documentation, inventions, discoveries, improvements, ideas, techniques or know-how created, developed or delivered by Advertise Me hereunder whilst providing the Services. Advertise Me shall own all intellectual property rights (including copyright) in the Work Products (even if such Work Product consists of portions, modifications or additions to existing software or documentation) unless except if third party software and the license conditions of the software expressly exclude third party ownership of modifications or additions.
- b) Advertise Me grants to Client, subject to the terms and conditions of this agreement, a non-exclusive, non-transferable right and license to use such Work Product solely for Client’s internal purposes provided, however, Product. This license does not expand any license Client has for any of Advertise Me’s commercial software products. Client agrees to include the Advertise Me copyright notice in all copies Client makes. Advertise Me or c) The Client acknowledges and agrees that all rights in all copyright, designs, patents and trade marks existing in relation to the Products or Services are reserved to the owner of those rights.
Furthermore the Client acknowledges Advertise Me’s ownership of the intellectual property in methodologies, processes and procedures (“Advertise Me IP”) used and developed by Advertise Me while undertaking the Services and furthermore acknowledges that they have no interest in the Advertise Me IP other than that expressly provided to the Client in writing by Advertise Me.
- d) Client shall indemnify, defend and hold Advertise Me harmless from any action brought against Advertise Me based on a claim that any materials or information provided by Client to Advertise Me constitute an infringement of a third party’s patents, copyrights or trademarks, or a misuse of a third party’s confidential, proprietary or trade secret information.
- e) The Client shall ensure that each part and copy of the computer software licensed for the use of the Client is kept under conditions of strict security and confidentiality.
10) Title, Risk and Insurance
- a) Prior to full payment of the Price and all other sums owing by the Client to Advertise Me in relation to any Products, the Client shall have no rights to sell or dispose of any or all of the Products.
- b) Until payment for the Products has been made by the Client the Products are only entrusted to the Client as a fiduciary, and Advertise Me remains the legal and beneficial owner of the Products with full power to resell and regain possession in the event of the Client’s default of payment.
- c) The Client assumes risk of loss or damage upon delivery of the Products to the Client (or to any person or place as agreed or directed by the Client) or collection of the Products by the Client or by any agent acting on their behalf.
- d) Advertise Me will insure Products against such risks that Advertise Me considers appropriate for the transport of the products from Advertise Me’s place of business to that of the Client.
- a) Advertise Me agrees not to use any Client confidential information other than for the purposes of providing:
(i) the information reasonably required by Advertise Me’s financier; or
(ii) the Services and agrees to use best endeavours to maintain the confidential nature of the confidential information. However, Advertise Me shall bear no responsibility for disclosure where such information or data is publicly available, is already in the possession of Advertise Me, known to Advertise Me, or is obtained by Advertise Me from a third party.
- b) The Client agrees to maintain the confidentiality of Advertise Me confidential information (including this document) and agrees not to disclose such information to anyone else without the prior written consent of Advertise
- a) The Client shall, where relevant, ensure Advertise Me has full and safe access to the Client’s premises and to any necessary equipment, materials and information. The Client shall also ensure that Advertise Me is provided with all facilities, services and accessories reasonably required to enable Advertise Me to comply with its obligations under this agreement.
- b) The Client shall, where relevant, provide on request a suitably qualified or informed representative, agent or employee to accompany Advertise Me and advise Advertise Me on project requirements, access, security procedures and any other matter within the Client’s knowledge or control which will assist Advertise Me in complying with its obligations under this agreement.
- a) The Client shall not solicit for employment, whether as an employee or an independent contractor or whether directly or indirectly through a Related Party, from the Commencement Date until the expiration of 12 months after the termination of this agreement, any employee of Advertise Me who performs any Services pursuant to this agreement.
- b) The Client shall be liable to pay a recruitment fee for any employee provided by Advertise Me pursuant to this agreement that is employed by the Client or a Related Party, whether as an employee or an independent contractor, within 12 months after the termination of this agreement. This fee shall amount to 15% of such employee’s annual salary package as set out in such employee’s contract of employment as at the date such employee’s employment terminated with Advertise Me.
- a) Without limiting the generality of any other clause in this agreement, either party may terminate this agreement immediately by notice in writing if:
- i) any payment due from the Client to Advertise Me pursuant to this agreement remains unpaid for a period of 30 days;
- ii) either party breaches any clause of this agreement and such breach is not remedied within 15 days of written notice by the other party;
iii) the Client disposes of equipment or materials or restructures its business, reallocates or reassigns its own personnel or otherwise creates a situation in which Advertise Me, in its opinion, is no longer able to comply with its obligations under this agreement or no longer able to provide the Services in an efficient and cost effective manner.
- iv) either party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;
- v) the Client, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
- vi) the Client, being a natural person, dies; or
vii) the Client ceases or threatens to cease conducting its business in the normal manner.
- b) If notice is given to the Client pursuant to Clause 17 a), Advertise Me may, in addition to terminating the agreement:
- i) retain any monies paid;
- ii) pursue any additional or alternative remedies provided by law;
iii) be discharged from any further obligations under this agreement; and
- iv) pursue any additional or alternative remedies provided by law.
- c) The Client may terminate this agreement for Services for convenience subject to paying Advertise Me the applicable fee for Services performed to the date of termination together with all reasonable costs, expenses and investments incurred by Advertise Me in the course of delivering such services.
18) General Provisions
- a) The laws of the state where the majority of the Products and/or Services are delivered/performed shall govern this agreement.
- b) This agreement (and the proposal/document it is attached to) is the entire agreement between the Client and Advertise Me and no representation or statement not expressly contained in
this agreement or incorporated herein by reference, shall be binding on either party.
Advertise Me reserves the right to update these terms and conditions at any time.