1. General
In these Terms and Conditions, “DigiAurora” means DigiAurora, ACN 117 238 454, ABN 117 238 454, and its wholly owned subsidiaries. The whole of the agreement between DigiAurora and the applicant referred to in the Advertising Agreement (“Customer, Client”) are those set out in these Terms and Conditions as amended from time to time and those, if any, which are implied and which cannot be excluded by law (“terms”). Any other contractual terms of the Customer (whether upon the Customer’s order or elsewhere) which are contrary to or inconsistent with these Terms shall not apply nor shall they constitute a counter-offer. By receiving delivery and/or supply of all or a portion of the goods, materials and/or parts and/or labour and or services supplied by DigiAurora under these Terms (“Services”), the Customer shall be deemed to have accepted these Terms and to have agreed that they shall apply to the exclusion of all others.
2. Credit Terms
2.1 Payment is due on or prior to seven (7) days from the date of the commencement of the advertising period rendered in respect of the supply of the services unless otherwise stated in writing by DigiAurora. DigiAurora may charge liquidated damages at a rate equivalent to two percent (2%) in excess of the rate of interest for the time being fixed by the Courts in the state or Territory in which the Services are principally provided if payment is not received by the due date.
2.2 DigiAurora’s express or implied approval for extending credit to the Customer may be revoked or withdrawn by DigiAurora at any time.
2.3 DigiAurora is entitled to set-off against any money owing to the Customer amounts owed to DigiAurora by the Customer on any account whatsoever.
2.4 Any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs referred Clause 2.5, and then to principal.
2.5 The customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by DigiAurora for enforcement of obligations and recovery of monies due from the Customer to DigiAurora.
3. Quotations and Pricing
3.1 Prices charged for Services will be according to a current quotation for those services. Otherwise, they will be
determined by DigiAurora by reference to its standard prices in effect at the date of delivery (whether notified to the Customer or not and regardless of any prices contained in the order). DigiAurora will use its best endeavors to notify the Customer of price changes but bears no liability in respect of this.
3.2 Any quotation by DigiAurora shall not constitute an offer. Quotations will remain valid for thirty (30) days from the date of the quotation.
3.3 Any quotation, acceptance of quotation, purchase order or other document which requires signature may be signed in electronic form, and such signature shall be binding upon the person affixing that signature.
3.4 Unless otherwise specified by DigiAurora, the prices include any statutory tax, including GST, duty or impost levied in respect of the Services.
4. Property
4.1 Until full payment has been made for all Services, and any other sums in any way outstanding from the Customer to DigiAurora;
4.1.1 All sums outstanding become immediately due and payable by the Customer to DigiAurora if the Customer makes default in paying any other sums due to DigiAurora, becomes bankrupt, or commits any act of bankruptcy, compounds with its creditors, has judgment entered against it in a court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in these terms.
4.1.2 The property in any goods shall not pass to the Customer and the Customer shall hold such goods as bailee for DigiAurora (returning the same to DigiAurora on request). The goods shall nevertheless be at risk of the Customer from the time of delivery/supply and the Customer must insure the goods from the time of delivery/supply.
4.1.3 DigiAurora is irrevocably authorised to enter any premises where the Services are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the goods without liability for trespass or any resulting damage.
4.1.4 All intellectual Property produced by or provided to DigiAurora becomes and remains the property of DigiAurora, and DigiAurora may retain or destroy or otherwise dispose of such Intellectual Property as it sees fit in its absolute discretion.
4.2 In addition to any lien to which DigiAurora may, by statute or otherwise, be entitled, DigiAurora shall in the event of the Customer’s insolvency, bankruptcy or winding up, be entitled to a general lien over all property or goods belonging to the Customer in DigiAurora’s possession (although all or some of such property or goods may have been paid) for the unpaid price of any Services sold or delivered to the Customer under this or any other contract.
5. Consequences of Non-Payment
If the Customer fails to make any payment in accordance with Clause 2.1, then DigiAurora in its absolute discretion and without responsibility for any consequential loss, may:
5.1 Withhold from dispatch any product or advertising material approved or not- approved by the Customer.
5.2 Refuse to accept any further bookings or production of any advertising material from the Customer; and
5.3 Refuse to provide any further service to the Customer.
5.4 Charge the Customers bank line of credit or credit card for the remainder of the unpaid balance if the balance becomes more the twenty one (21) days past due. Where DigiAurora takes this action there may be a;
5.5 three percent (3%) administration fee.
6. Compliance with Relevant Laws
6.1 The Customer warrants that all material provided to DigiAurora for use in the advertising material is the sole and exclusive property of the Customer or that the Customer is properly authorised to use that material, and that the use of that material
6.2 Does not infringe any law or statute including, without limitation, the provisions of the Trade Practices ACT, the Broadcasting Services ACT and the Commercial Television Industry Code of Practice.
6.3 If requested by DigiAurora the Customer shall provide evidence of compliance to the satisfaction of DigiAurora.
7 . Indemnity
The Customer indemnifies DigiAurora against all actions, suits, claims and demands which may be made against DigiAurora arising out of any advertising material broadcast or the use of any material provided by the customer to DigiAurora for use in any such advertisement.
8. Responsibility for Materials
DigiAurora will exercise all due care in the handling and storage of the Customer’s material while in the possession of DigiAurora, up to the fourteenth day (14) after the materials are last broadcast. , but shall not be responsible for any wear or tear or for loss or damage of the Customer’s materials except where the loss or damage is as a direct consequence of the negligence of DigiAurora, its servants or staff. If the Customer requires return of material, a written authority will be required and return of same will incur a delivery cost which shall be the responsibility of the Customer.
9. Use of Music
The Customer shall provided DigiAurora with full Australian Performing Rights Association details for any music provided by the customer for use in any production or advertising material.
10. Privacy Act 1988 (“Privacy Act”)
To enable DigiAurora to assess the Customers application for credit, the Customer authorises DigiAurora:-
10.1 To obtain from a credit reporting agency a consumer or commercial credit report containing personal information about the customer and its guarantors pursuant to section 18k(1) of the Privacy Act; and
10.2 To obtain a report from a credit reporting agency and other information in relation to the Customer’s commercial credit activities, and
10.3 To give to a credit reporting agency information including identity particulars and application details.
AND in accordance with Section 18N(1) of the Privacy Act the Customer authorises DigiAurora to give to and obtain from any credit provider named in the accompanying credit application and credit providers that may be named in a credit report issued by a credit reporting agency information about the customer’s credit arrangements. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act.
The Customer understands that information can be used for the purposes of assessing its application for credit (section 18L(4) privacy Act), assisting it to avoid defaulting on its credit obligations, assessing its credit worthiness and notifying other credit providers and credit reporting agencies of a default by it under these Terms.
11. Notification
The Customer must notify DigiAurora in writing within seven (7) days of: –
11.1 Any alteration of the name or ownership of the Customer.
11.2 The issue of any legal proceedings against the Customer.
11.3 The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer.
11.4 Any change in the ownership of the business name of the Customer. The Customer agrees that it shall be liable to DigiAurora for all services supplied to the new owner by DigiAurora until notice of any such change is received.
12. Warranties
12.1 No warranties except those implied and that by law cannot be excluded are given by DigiAurora in respect of Services supplied. Where it is lawful to do so, the liability of DigiAurora for a breach of a condition or warranty is limited to the repair or replacement of the services, the supply of equivalent services, the payment of the cost of repairing or replacing the Services or acquiring equivalent Services, is determined by DigiAurora.
12.2 The Customer acknowledges and warrants that it has relied on its own skill and judgment or, alternatively, on the skill and judgment of tradesmen and professional advisers retained by it to provide advice and assistance on the suitability of the Services for specific purposes and procedures and, in this respect, shall indemnify DigiAurora from and against any suit, claim, demand or compensation.
13. Forced Majeure
DigiAurora shall be released from its obligations in the event of national emergency, war, prohibitive government regulation or if any other cause beyond the control of the parties renders provision of the Services impossible, where all money due to DigiAurora shall be paid immediately and, unless prohibited by law, DigiAurora may elect to terminate the Agreement.
14. Failure to Act
DigiAurora’s failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or DigiAurora’s failure to exercise any right or remedy available under these Terms or at law, or DigiAurora’s failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under these Terms shall not constitute a waiver of any subsequent default or a waiver of DigiAurora’s right to demand timely payment of future obligations or strict compliance with the Terms.
15. Legal Construction
15.1 These Terms shall be governed by and interpreted according to the laws of the State or Territory in which the Services are principally provided and DigiAurora and the Customer consent and submit to the jurisdiction of the Courts in that State or Territory.
15.2 Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.