Terms of Service
Octomedia Pty Ltd – Terms & Conditions of Trade
1.1 “OM” shall mean Octomedia Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Octomedia 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 OM to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Services” shall mean all Services supplied by OM to the Client (and shall include the incidental supply of any goods provided by OM to the Client as part of those Services and/or any advice or recommendations).
1.5 “Booking” shall mean the allocation of advertising space for the publication of advertising in an OM publication or on an OM website.
1.6 “Copy” shall mean any advertising materials which are provided to OM for insertion into an OM publication or display on any OM website.
1.7 “Price” shall mean the price payable for the Services as agreed between OM 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 (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
2.2 Where the Client buys Services as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
3.1 Any instructions received by OM from the Client for the supply of Services and/or the Client’s acceptance of Services supplied by OM 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 OM.
3.4 The Client shall give OM 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 OM as a result of the Client’s failure to comply with this clause.
3.5 Services are supplied by OM 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 OM reserves the right to withdraw any publication at any time and for any reason without any liability to the Client whatsoever, except that in such event OM shall refund the Client any payments already received by OM for Services that relate directly to that publication.
3.7 OM reserves the right to change the scheduled date of a publication any time and for any reason without any liability to the Client whatsoever.
3.8 Whilst OM shall make every endeavour to position or place advertising where agreed between the parties, the Client acknowledges that the final positioning or placement of advertising remains at OM’s sole discretion.
3.9 If OM offers any bonus space in any publication or on a website then this may be provided in conjunction with a scheduled booking or in a future publication at the discretion of OM.
3.10 The Client acknowledges that for online publications OM offers no representation or warranty in relation to the number of visitors to OM’s websites, around statistics, the level of clicks or impressions. All statistics supplied by OM shall be considered final.
4.1 The Client acknowledges that when they request the publication of Copy in any OM publication that they shall do so by contacting OM directly or through a media agency and the Client will subsequently be supplied with a Booking request form or an official agency insertion request. The Client acknowledges that they shall be required to sign the appropriate form and return it in order for a Booking to be made and/or confirmed.
4.2 The Client acknowledges and agrees that in the event that OM fails (for any reason) to issue a booking or insertion request but does provide the requested Services that the Client shall be liable to pay for the Services as if a booking or insertion request had actually been provided.
5 Copy Lodgement
5.1 The Client must lodge all Copy in accordance with OM’s Copy Lodgement Requirements (Copy Lodgement Requirements shall mean copy lodgement and production requirements as is specified from time to time by OM).
5.2 If Copy is not lodged as required by OM then OM shall still be entitled to payment for the Booking and may (at its sole discretion) elect to publish Copy previously provided by the Client or to cancel the Booking.
5.3 OM reserves the right to place the word “advertisement” above or below any Copy which in OM’s opinion resembles editorial matter.
5.4 Copy must be supplied in a timely fashion in accordance with agreed deadlines specified at the time of Booking and is subject to editorial review. OM (at its sole discretion) may refuse to accept, or request modification of any Copy supplied for publication, and may at any time cancel or reschedule any Booking, where OM’s specified deadlines or Copy Lodgement Requirements are not met, even after a Booking request or agency insertion order has been accepted.
5.5 If Copy has been received late for any reason and OM is unable to publish the same then the Client shall remain liable for payment of the scheduled Booking or insertion request.
5.6 For online publications all Copy must be supplied no less than five (5) working days prior to the scheduled advertising start date and all click through URL’s must allow the back button to return to OM’s website.
6 Client Warranties
6.1 The Client warrants that that all Copy lodged with OM;
(a) complies with all laws, statutes, regulations, codes of practice and any standards applicable to the publication of Copy as determined by any relevant regulatory agency or industry self regulatory body; and
(b) complies with any standard or requirement specified by OM and notified to the Client from time to time; and
(c) does not infringe copyright, trademark or any other legal rights of another person; and
(d) is not false or misleading and is true in substance and in fact; and
(e) does not use the name and/or image of any person without their consent; and
(f) without limiting the above, does not infringe the Trade Practices Act 1974 (Cth) or the Fair Trading Act of any State of Australia (including any substitute to those Acts or re-enactment thereof); and
(g) does not contain anything which may give rise to any cause of action by a third party against OM, including, but not limited to, material that is defamatory, obscene, or which may otherwise cause damage or injury to any person.
6.2 Under pressure of deadline OM reserves the right to amend copy if OM believes that the Copy (or any part of it) contravenes any of the above provisions, such amendments shall be made without any liability to the Client or Price reduction whatsoever.
7.1 The Client agrees to indemnify OM, it’s employees, agents and affiliates, and their employees and agents against any action, claim, loss or expense arising from the publication of Copy, cancellation of, or failure to publish any Copy, and all costs, losses and expenses suffered or incurred by OM, its employees, agents and affiliates, and their employees and agents as a result of any breach by the Client of these conditions or any other agreement between the Client and OM.
8 Price and Payment
8.1 At OM’s sole discretion the Price (subject to clause 8.2) shall be either:
(a) as indicated on invoices provided by OM to the Client in respect of Services supplied; or
(b) OM’s Price as specified in OM’s Booking form.
8.2 OM reserves the right to amend the Price where the Client requests any change to the Services to be provided and upon which the Price of the original Booking was based.
8.3 OM may at the request of the Client agree to produce Copy or other materials for the Client for a negotiated fee, which fee shall be charged in addition to the Price payable for any advertising or Services requested via a Booking form.
8.4 If the Client is an advertising agency then the agency may claim an agency rebate of ten percent (10%) of the Price payable less GST. Such rebate shall only be applicable where payment is made by the invoice due date.
8.5 At OM’s sole discretion a non refundable deposit of forty percent (40%) may be required.
8.6 At OM’s sole discretion payment shall be due before the provision of any Services.
8.7 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 fourteen (14) days following the date of the invoice.
8.8 Payment may be made by cheque, or by bank cheque, or by credit card (plus a surcharge of up to five percent (5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and OM.
8.9 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.
8.10 ALL TRANSACTIONS ARE PROCESSED IN AUSTRALIAN DOLLARS
9 Delivery of Services
9.1 Delivery shall be deemed to have taken place immediately that OM has provided its Services and/or advertising has been published either in any Publication or website by OM in accordance with the agreed booking.
9.2 The failure of OM to deliver shall not entitle either party to treat this contract as repudiated.
9.3 OM shall not be liable for any loss or damage whatsoever due to failure by OM to deliver the Services (or any of them) promptly or at all where due to circumstances beyond the control of OM.
10.1 OM and the Client agree that ownership of any goods provided as part of the Services shall not pass until:
(a) the Client has paid OM all amounts owing for the particular Services; and
(b) the Client has met all other obligations due by the Client to OM in respect of all contracts between OM and the Client, notwithstanding that if the goods are in the physical possession of the Client then those goods shall be at the Clients sole risk and it shall be the Clients responsibility to ensure the goods are insured adequately or at all.
10.2 Receipt by OM 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 OM’s ownership or rights in respect of the Services shall continue.
10.3 It is further agreed that:
(a) until such time as the ownership of goods provided as part of the Services shall pass from OM to the Client OM may give notice in writing to the Client to return the goods or any of them to OM. Upon such notice the rights of the Client to obtain ownership or any other interest in the Services shall cease.
(b) if the Client fails to return such goods to OM then OM or OM’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.
11 Errors and Omissions
11.1 The Client shall inspect the Services on delivery and shall within seven (7) days of delivery (time being of the essence) notify OM of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford OM 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 OM has agreed in writing that the Client is entitled to reject, OM’s liability is limited to either (at OM’s discretion) replacing the Services or rectifying 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 there fore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Services, or rectification of the Services, or replacement of the Services.
12 Intellectual Property
12.1 Where OM has designed, drawn or written documents for the Client, then the copyright in those designs and drawings and documents shall remain vested in OM, and shall only be used by the Client at OM’s discretion.
12.2 The Client agrees that OM may use any documents, designs, drawings or goods created by OM for the purposes of marketing, or entry into any competition.
13 Default and Consequences of Default
13.1 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 OM’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by OM.
13.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify OM from and against all costs and disbursements incurred by OM in pursuing the debt including legal costs on a solicitor and own client basis and OM’s collection agency costs.
13.4 Without prejudice to any other remedies OM may have, if at any time the Client is in breach of any obligation (including those relating to payment), OM may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. OM will not be liable to the Client for any loss or damage the Client suffers because OM has exercised its rights under this clause.
13.5 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.
13.6 Without prejudice to OM’s other remedies at law OM shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to OM shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to OM becomes overdue, or in OM’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.
14 Security and Charge
14.1 Despite anything to the contrary contained herein or any other rights which OM 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 OM or OM’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 OM (or OM’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 OM elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify OM from and against all OM’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 OM or OM’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 14.1.
15.1 OM 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 OM shall repay to the Client any sums paid in respect of the Price. OM shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 The Client may cancel the Services without penalty provided that the Client’s written request for cancellation is received more than six (6) weeks prior to the scheduled publication date of any OM printed publication. Cancellation with less than six (6) weeks notice shall not be accepted and the Client shall still be liable to pay the Price as per the original Booking and invoice however clause 15.4 below shall apply.
15.3 Once booked cancellation of Services for online publication will not be accepted and the Client shall still be liable to pay the Price as per the original Booking and invoice however clause 15.4 below shall apply.
15.4 Where cancellation of the Services is not allowed the Client may request to have the Copy run and/or Services provided within twelve (12) months of the original Booking date.
16.1 Each party agrees to treat all information and ideas communicated to it by the other confidentially and further agrees not to divulge it to any third party without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
17 Privacy Act 1988
17.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for OM to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by OM.
17.2 The Client agrees that OM may exchange information about the Client 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 the 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 creditworthiness of the Client.
(e) The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
17.3 The Client consents to OM being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 The Client agrees that personal credit information provided may be used and retained by OM for the following purposes (and for other purposes as shall be agreed between the Client and OM or required by law from time to time):
(a) the provision of Services; and/or
(b) the marketing of Services by OM, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the 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 Services.
17.5 OM 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;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
17.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that OM is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of OM, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by OM has been paid or otherwise discharged.
18.1 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.
18.2 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 the North Sydney Local Court.
18.3 OM 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 OM of these terms and conditions.
18.4 In the event of any breach of this contract by OM the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Services.
18.5 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 OM nor to withhold payment of any invoice because part of that invoice is in dispute.
18.6 OM 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 OM notifies the Client of such change. Except where OM supplies further Services to the Client and the Client accepts such Services, the Client shall be under no obligation to accept such changes.
18.7 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.
18.8 The failure by OM to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect OM’s right to subsequently enforce that provisions
19 Third party copyright notice and disclaimer:
AAP disclaimer and copyright notice
(a) © 2009 Australian Associated Press Pty Limited (AAP) or its Licensors. This is an “Octomedia ” service including content provided by AAP. AAP reserves all rights, including copyright, in services provided by it. The information, text and images in the service are for personal use only and may not be re-written, copied, re-sold or re-distributed, framed, linked or otherwise used whether for compensation of any kind or not, without the prior written permission of AAP.
(b) This service is published for information only without assuming a duty of care. AAP is not in the business of providing professional advice, and gives no warranty, guarantee or other representation about the accuracy of the information or images contained in this service. AAP is not liable for errors, omissions in, delays or interruptions to or cessation of the services through negligence or otherwise.
(c) The globe symbol and “AAP” are registered trade marks.
19.2 Associated Press (AP) DISCLAIMER AND COPYRIGHT NOTICE:
(a) Associated Press (AP) text is only for the personal, non-commercial use of persons accessing this service and must not directly or indirectly be published, rewritten for broadcast, communication or publication or redistributed in any medium. AP materials and works must not be stored in any electronic or other system except for the personal, non-commercial use of persons accessing this service. Users nor any other person may hold AP liable for any delays, inaccuracies, errors or omissions in respect of such materials or works, the transmission or delivery of such materials and works or any loss or damage arising from any of the foregoing.