Terms and Conditions
Agreement: the terms and conditions contained herein this agreement, the New Customer Form, and the Quote.
New Customer Form: the New Customer Form provided by the Supplier.
Authorised Representative: the person nominated on the New Customer Form and any other person as nominated by the Customer from time to time.
Customer: the applicant named on the New Customer Form.
Purchase Price: the costs of the Services as at the date of this Agreement and stated on the Quote as varied from time to time by the Supplier.
Supplier: Winning Media.
Quote: the Supplier’s quote provided to the Customer for the Services.
Services: any services supplied by the Supplier to the Customer from time to time that relate to any work or service contemplated by this Agreement and the Quote.
Substantial Change: any variation to Quote that may in any way affect the scope of Services to be provided as determined by the Supplier.
Tax Invoice: the tax invoice supplied by the Supplier to the Customer.
Intellectual Property: means any patents, trademarks, copyrights, trade secrets, and other intellectual property rights;
Intellectual Property Rights and Copyright: means any intellectual property that is created, developed, or produced as a result of or in connection with the provision of Services by the Supplier.
2. ACCEPTANCE OF TERMS AND CONDITIONS
2.1 These terms and conditions and the Quote are deemed to be accepted by the Customer upon the following events occurring:
(a) The New Customer Form is signed by the Customer or their Authorised Representative.
(b) The Customer agrees and consents to the use of electronic signatures, as well as to the sending and receiving of documentation electronically.
3.1 The Customer acknowledges that the Supplier has not made any representation or agreement whereby the Customer has relied upon.
3.2 If any representation or agreements have been made by the Supplier or any representative thereof, the Customer agrees that they have not relied upon them and this Agreement forms the entire agreement between the parties.
4.1 The price payable for the Services is the Purchase Price.
4.2 Prices are subject to change from time to time by the Supplier with no notice being required to be given to the Customer.
4.3 Prices are current as at the date that the New Customer Form is signed by the Customer.
4.4 The Purchase Price contained in the Quote remains valid for a period of 30 days from the date that it is provided to the Customer.
5. TERMS OF PAYMENT
5.1 All payments to the Supplier:
(a) Must be made by direct deposit into the Supplier’s nominated bank account.
(b) Must be made within 14 days of the date as noted on the Tax Invoice or as otherwise directed by the Supplier.
(c) Must be made in the manner as stated on the Tax Invoice.
5.2 The Supplier reserves the right at any time to withhold or cancel the supply of the Services any time, without notice, if the Customer fails to comply with the terms of this Agreement.
5.3 The Supplier may withhold performance of any Services until clear payment is received.
6. DELIVERY OF SERVICES AND VARIATION
6.1 The Supplier will contact the Customer to arrange for a date for the Services to be performed, which shall be no more than 5 business days from clause 2 being satisfied, unless otherwise agreed.
6.2 The Supplier may refuse to supply Services to the Customer in the event that monies owed to the Supplier by the Customer are outstanding.
6.3 Despite any negligence on the part of the Supplier, or its agents, the Supplier will not be liable for any loss, damage, delay, cost, or expense occasioned to the Customer or any third parties arising from late performance of the Services.
6.4 The Services that the Supplier will provide to the Customer are limited to those Services as contained in the Quote and any additional Services or variations thereof that may be required may incur an additional fee which shall be determined by the Supplier upon assessment.
6.5 The Customer must notify the Supplier of any Substantial Change and acknowledges that any Substantial Change may affect the scope of Services to be provided and may incur an additional fee.
6.6 The Supplier will, on becoming aware of any actual or potential delay in providing any Services, provide the Customer with notice as to the nature and cause of the delay and provide an amended time-frame for the Services to be performed.
6.7 The Supplier is not liable to the Customer for any failure to perform or supply the Services, or delay for performing or supplying the Services.
6.8 The Customer further agrees to indemnify the Supplier for any additional cost incurred by the Supplier in the event that the Services to be provided fall outside the scope of work to be performed or supplied pursuant to the Quote.
7. NOTIFICATION OF CHANGES
7.1 The Customer will, within 7 days of performance of Services, notify the Supplier, in writing, of any changes.
7.2 Upon notifying the Supplier of such changes, the Customer, within a reasonable time, will afford the Supplier an opportunity to make the changes.
7.3 In the event that the Customer fails to comply with this clause, the Services shall be deemed free from any change or errors.
8. WARRANTIES AND INDEMNITIES
8.1 The Customer warrants:
(a) That all information provided to the Supplier is accurate and acknowledges that the Supplier has placed reliance on the information provided and is not required to make any inquiries to determine the validity of the information provided.
(b) The Authorised Person has the authority to perform and authorise any action that the Customer may undertake.
(c) That at all times throughout the term of this Agreement, the Customer will notify the Supplier if there is a change to the Customer’s Authorised Person.
8.2 The Customer authorises the Supplier to:
(a) To the extent permitted by law, collect, retain and use any information about the Customer.
(b) Disclose any information obtained by any person for the purposes of performing the Services.
8.3 The Customer indemnifies the Supplier against:
(a) Any penalty or liability incurred by the Supplier for any breach by the Customer of this Agreement.
(b) All actions, claims, demands, losses, damages, costs and expenses which the Supplier may sustain or incur or for which the Supplier may become liable whether during or after the term of this Agreement, by reason of any act or omission or negligence by the Supplier and its respective employees or any other authorised person.
8.4 The Supplier is not liable for any defect or damage caused by the Supplier in providing the Services.
8.5 The Supplier is not liable to compensate the Customer for any losses incurred for failure or delay if such is due to fire, cyclone, earthquake, flood, tsunami, inclement weather, strike, labour dispute, war, government order, riot, revolution, pandemic, civil commotion or any other cause beyond its reasonable control.
9.1 The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the Customer in relation to the provision of the Services which cannot be excluded, restricted or modified by the Agreement (“Non-excludable Rights”).
9.2 The Supplier disclaims all conditions and warranties expressed or implied and all rights and remedies conferred on the Customer by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. To the extent permitted by law, the liability of the Supplier for a breach of a Non-Excludable Right is limited, at the Supplier’s option, to the performance of the Services again or payment of the cost of having the Services performed again.
9.3 The Supplier’s liability for any claim in relation to this Agreement or the supply or performance of the Services (whether under statute, contract, tort, negligence, or otherwise) will be limited to the amount of the fee paid by the Customer to the Supplier.
9.4 The Supplier is not liable to the Customer for any claim of any kind arising directly or indirectly (whether under statute, contract, tort, negligence, or otherwise) in relation to any direct or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) of any remote abnormal of unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the parties, as a result of or in connection with the provision or performance of the Services.
9.5 The Customer agrees that they waive any claim, future or present, that they may have or may arise against the Supplier that is in any way connected directly or indirectly with the performance of the Services.
9.6 Notwithstanding any other provision of this Agreement, the Supplier is in no circumstances (whatever the cause) liable in contract, tort including without limitation negligence or breach of statutory duty or otherwise to compensate the Customer for:
(a) Any increased costs or expenses.
(b) Any loss of profit, revenue, business, contracts or anticipated savings.
(c) Any loss or expense resulting from a claim by a third party.
(d) Any special, indirect or consequential loss or damage of any nature whatsoever caused by the Supplier’s failure to complete or delay in supply of the Services.
9.7 The Customer further indemnifies the Supplier from any costs or charges that in any way either directly or indirectly relate to the supply of the Services and further for any services that the Supplier performs.
10.1 If the Customer:
(a) Makes default in any payment.
(b) Breaches any terms contained herein this Agreement.
(c) Commits any act of bankruptcy or goes into bankruptcy.
(d) Is insolvent, or is likely to become insolvent, within the meaning of the Corporations Act 2001 (Cth).
(e) Has an administrator, liquidator or provisional liquidator, receiver and manager, or controller appointed over the Customer.
(f) Is subject to a winding up application under the Corporations Act 2001 (Cth).
(g) Has a judgment awarded against it by any court or tribunal; then Supplier may terminate this Agreement and all Tax Invoices and other monies owing to the Supplier become immediately due and payable.
10.2 In the event of default under this clause, the Supplier may, at its discretion:
(a) Elect to apply an interest charge against the Customer’s account at the rate of 15% of the outstanding monies per month or part thereof.
(b) Charge an administration fee each month, or portion thereof, that an amount owing by the Customer is overdue.
(c) Commence proceedings against the Customer.
(d) Call and act upon any security interest that the Supplier is entitled to enforce.
(e) Recover against the Customer all moneys that are owed to the Supplier including incidental costs (solicitor and collection) that are incurred in relation to the Customer’s default.
(f) List the default in payment with the appropriate credit reporting agency.
(g) Perform any other action that the Supplier deems appropriate to enforce this Agreement and recover monies owed.
11.1 If the Customer wishes to cancel the supply of Services, then they must give 14 days’ notice in writing to the Supplier notifying them of termination.
11.2 In the event that the Customer wishes to terminate the agreement between the parties whereby the Supplier is providing Services for a fixed period of time, then the Customer must pay to the Supplier an amount equal to 75% of the remaining monetary obligation owed under the agreement to the Supplier in addition to payment for the Services already performed and/or supplied or part thereof.
11.3 The Supplier may terminate this Agreement at any time if the Customer breaches the terms and conditions contained herein or for any reason without notice to the Customer.
12.1 The Customer hereby authorises the Supplier to collect, retain, record, use and disclose personal information about the Customer, in accordance with the Privacy Act 1988, to persons and/or legal entities who are a Solicitor or any other professional consultant engaged by the Supplier, a debt collector, credit reference organisation and/or any other individual or organisation which maintains credit references and/or default listings.
12.2 The Customer also authorises the Supplier to make inquiries with respect to the Customer’s creditworthiness; to exchange information with other credit providers in respect of previous defaults of the Customer and to notify other credit providers of a default by the Customer.
13.1 All prices contemplated by this Agreement, Quote, and any other document provided by the Supplier are exclusive of and subject to GST.
13.2 A reference in this clause to a term defined or used in A New Tax System (Goods and Services Tax) Act 1999 (Cth) is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.
14. INTELLECTUAL PROPERTY AND TRADEMARKS
14.1 All intellectual property rights and copyright in:
(a) The Services (including but not limited to all calculations and documents associated with the Services).
(b) All designs, drawings, technical information, and documents created, owned or held by the Supplier, remain the property of the Supplier.
14.2 The Customer acknowledges and agrees that it is their sole responsibility to undertake any research and registration necessary to secure or register any trademarks or intellectual property (IP) associated with the Services provided by the Supplier.
14.3 The Customer agrees not to reproduce, distribute, or use any intellectual property belonging to the Supplier without obtaining prior written consent from the Supplier.
14.4 The Supplier makes no warranties or representations that the Services provided will not infringe upon any third-party intellectual property rights. The Customer acknowledges that it is their responsibility to ensure that the use of the Services does not violate any intellectual property rights of third parties.
14.5 In the event that any dispute arises regarding intellectual property rights related to the Services, the Customer agrees to indemnify and hold the Supplier harmless from any claims, damages, or expenses incurred as a result of such dispute.
14.6 Any use or reproduction of the intellectual property belonging to the Supplier by the Customer without obtaining prior written consent may result in legal action and the Customer may be liable for damages and other legal remedies as determined by law.
14.7 The Customer agrees to allow the Supplier to place examples, along with any links to the Customers’s website for use in demonstration / publicity purposes.
15.1 Nothing in this Agreement shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricted or modifying any condition, warranty, guarantee, right, or remedy implied by the law (including the Competition and Consumer Act 2010) and which by law cannot be excluded, restricted or modified.
15.2 These terms and conditions supersede all terms and conditions previously issued by the Supplier.
15.3 The parties acknowledge that this Agreement is intended as a contract for the supply of Services and not any other relationship and, in particular, not the relationship of employer and employee, principal and agent or the relationship of partnership.
15.4 A communication required by this Agreement, by a party to another, must be in writing and may be given to them by being:
(a) Posted to their address specified in this agreement or as later notified by them, in which case it will be treated as having been received on the second business day after posting.
(b) Sent by email to their email address when it will be treated as received on that day.
15.5 If any provision, or the application of any provision, of this Agreement is prohibited, invalid, void, illegal or unenforceable in any jurisdiction:
(a) This will not affect the validity and enforceability of the provision or part in other jurisdictions.
(b) The provision or part will only be ineffective to the extent of the prohibition, invalidity, voidness or illegality.
(c) The provision or part will be severed and will not affect the validity or enforceability of the remaining provisions or parts of this Agreement.
15.6 Each party must do all things and execute all further documents necessary to give full effect to this Agreement.
15.7 This Agreement will be governed by the laws of Queensland, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of Queensland.
15.8 Each party acknowledges that the party has received legal advice or has had the opportunity of obtaining legal advice in relation to this Agreement.
15.9 This Agreement may be executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument and the date of the Agreement will be the date on which it is executed by the last party.