1. Definitions
    • “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
    • “DDH” means Dental Directory Holdings Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Dental Directory Holdings Pty Ltd.
    • “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting DDH to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
      • if there is more than one Client, is a reference to each Client jointly and severally; and
      • if the Client is a partnership, it shall bind each partner jointly and severally; and
      • if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
      • includes the Client’s executors, administrators, successors and permitted assigns.
    • “Incidental Items” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by DDH in the course of it conducting, or supplying to the Client, any Services.
    • “Services” mean all Services supplied by DDH to the Client at the Client’s request from time to time.
    • “SNT” means any Social Network Tool being a social media platform and/or application which is accessible on the internet through the World Wide Web and which provides multimedia content via a graphical user interface (including, but not limited to Facebook, Twitter, LinkedIn, Pinterest, etc.).
    • “Website” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
    • “Prohibited Content” means any content on any media (including advertising, posts, comments, etc.) that:
      • is, or could reasonably be considered to be, in breach of the Broadcasting Services Act 1992; the Competition and Consumer Act 2010; or any other applicable law or applicable industry code; or
      • contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
      • is, or could reasonably be considered to be, in breach of any person’s intellectual property rights.
    • “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
    • “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using DDH’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
    • “Price” means the price payable (plus any GST where applicable) for the Services as agreed between DDH and the Client in accordance with clause 7 of this Contract.
    • “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

 

  1. Acceptance
    • The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by DDH.
    • In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
    • Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
    • The Client acknowledges that the supply of Services on credit shall not take effect until the Client has completed a credit application with DDH and it has been approved with a credit limit established for the account.
    • In the event that the supply of Services requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, DDH reserves the right to refuse delivery.
    • None of DDH’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of DDH in writing nor is DDH bound by any such unauthorised statements.
    • Where DDH gives any advice, recommendation, information, assistance or service provided by DDH in relation to the Services supplied is given in good faith to the Client, or the Client’s agent and is based on DDH’s own knowledge and experience and shall be accepted without liability on the part of DDH.  Where such advice or recommendations are not acted upon then DDH shall require the Client or their agent to authorise commencement of the Services in writing. DDH shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
    • The Client acknowledges and agrees that:
      • Services are provided on the basis of specifications, information and instructions provided by the Client to DDH (whether written or verbal). The Client acknowledges that it is their responsibility to ensure that such are detailed sufficiently to satisfy DDH’s requirements of interpretation and understanding, as once accepted by the Client, DDH’s quotation shall be deemed to interpret correctly those specifications, information and instructions; and
      • DDH does not guarantee the SNT’s performance; and
      • the ability to post communications on a SNT may be unavailable from time to time due to regularly scheduled maintenance and/or upgrades by the SNT provider; and
      • there are inherent hazards in electronic distribution, and as such DDH cannot warrant against delays or errors in posts appearing on any SNT.
    • With changes in technology, changes in internet use and SNT visiting patterns, particular SNT availability/life cycle, DDH may suggest changes to the original proposal and recommend an alternative service. Any such suggestions and/or recommendations shall be communicated to the Client prior to implementation of any changes.
    • The Client further acknowledges and accepts that:
      • all SNT used in the provision of the Services are subject to the terms and condition of service of the third party provider and as such it is the Client’s responsibility to be familiar with those terms and conditions; and
      • in DDH’s use of the Client’s SNT, DDH is acting as the Client’s agent and any liability arising from the use of the SNT account/s shall be the Client’s responsibility.
    • Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

  1. Errors and Omissions
    • The Client acknowledges and accepts that DDH shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      • resulting from an inadvertent mistake made by DDH in the formation and/or administration of this Contract; and/or
      • contained in/omitted from any literature (hard copy and/or electronic) supplied by DDH in respect of the Services.
    • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of DDH; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

 

  1. Change in Control
    • The Client shall give DDH not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by DDH as a result of the Client’s failure to comply with this clause.

 

  1. Publication Renewals
    • The commencement date shall be the date of the first delivery of the Services under an advertising plan, or from the date of signing, whichever, is the earlier. The advertising plan shall be for the period (‘Initial Term”) as agreed between both parties and shall revert to an annual roll over month to month basis automatically, thereafter, unless agreed otherwise until terminated by either party by giving at least thirty (30) days’ required notice as defined in the advertising plan prior to the expiration date of the Initial Term or any additional term.
    • The Client acknowledges and accepts that all fixed contracts are subject to periodic price reviews to allow for increases to DDH in the cost of labour and materials, which are beyond the control of DDH.

 

  1. Contract Advertising
    • The Client acknowledges and accepts that:
      • advertisements apply to a specific number of issues which is contracted between the Client and DDH for a specific period, which may be weekly, fortnightly, monthly, three (3) monthly, six (6) monthly or yearly; and
      • in cases where the actual number taken for the period falls below the contracted number of issues, at DDH’s discretion, DDH reserves the right to charge a surcharge for all space taken to the rate appropriate to the number of spaces used.

 

  1. Price and Payment
    • At DDH’s sole discretion the Price shall be either:
      • as indicated on any invoice provided by DDH to the Client; or
      • the Price as at the date of delivery of the Services according to DDH’s current price list; or
      • DDH’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
    • DDH reserves the right to change the Price:
      • if a variation to the Services originally scheduled (including any applicable plans or specifications, changes to deadline dates, toll calls, freight and courier costs associated in securing the material for publication etc.) is requested; or
      • where style, type or layout is left to DDH’s judgement and then the Client makes further alterations to the copy; or
      • in the event of increases to DDH in the cost of labour or materials which are beyond DDH’s control.
    • Variations will be charged for on the basis of DDH’s quotation, and will be detailed in writing, and shown as variations on DDH’s invoice. The Client shall be required to respond to any variation submitted by DDH within ten (10) working days. Failure to do so will entitle DDH to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
    • At DDH’s sole discretion a ten percent (10%) deposit may be required.
    • Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by DDH, which may be:
      • on or before delivery of the Services;
      • by way of instalments/progress payments in accordance with DDH’s payment schedule;
      • thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
      • the date specified on any invoice or other form as being the date for payment; or
      • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by DDH.
    • Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and DDH.
    • DDH may in its discretion allocate any payment received from the Client towards any invoice that DDH determines and may do so at the time of receipt or at any time afterwards. On any default by the Client DDH may re-allocate any payments previously received and allocated.
    • 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 DDH nor to withhold payment of any invoice because part of that invoice is in dispute.
    • Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to DDH an amount equal to any GST DDH must pay for any supply by DDH under this or any other agreement for providing DDH’s Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

 

  1. Provision of the Services
    • Each project is unique to the Client and the costings of a project are estimated and based on the requirements as defined by the Client at the initial meeting and shall include the hours and timeframe that DDH envisages it will take to complete, (subject to variations as per clause 3). The estimate covers the following:
      • all technical, mandatory requirements and assumptions clearly itemised and disclosed by the Client prior to the initiation of the project to ensure all expected features and functionality have been correctly estimated; and
      • any additional work requested or required outside of the original estimate/scope needs to be agreed and that DDH is entitled to re-estimate the charges and time-frame without prejudice; and
      • amendments which is to be expected should be kept to a minimum by receiving the styling, text or content updates in batches in-line with the stage of the project, however, if in the opinion of DDH, there is the need for more than one round of amendments, then the agreed number of changes must be established, prior to the commencement of the project.
    • DDH may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
    • Any time specified by DDH for delivery of the Services is an estimate only and DDH will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be supplied at the time as was arranged between both parties. In the event that DDH is unable to supply the Services as agreed solely due to any action or inaction of the Client then DDH shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.

 

  1. Fault Escalation Responsibilities
    • The Client is responsible for notifying DDH of a service fault as quickly as possible.
    • DDH is responsible for trouble-shooting the source of the service fault, and either rectifying the fault in a timely fashion (i.e. if the fault is within DDH’s network) or escalating the fault to the upstream provider/wholesaler of the service that has the fault.

 

  1. Risk
    • The Client acknowledges and accepts that where new copy or instructions to repeat advertisements and/or publication have not been received from the Client by the copy deadline date, DDH, at their discretion, reserves the right to repeat any previously run copy, or to compose and/or enter a substitute copy for publication. Full rates and the costs associated with the production will be charged to the Client and shown as extras on the invoice.
    • When quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other good copy, any extra work or cost caused by any variation by the Client of the original instructions or by the manuscript copy being, in DDH’s opinion, poorly prepared or by the Client’s requirements being different from those originally submitted or described, then the cost of such variations may be charged to the Client and shown as extras on the invoice.
    • Any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Client and shown as extras on the invoice.
    • Unless otherwise agreed, the Client shall bear the cost of fonts, colour proofs or artwork, specially bought at the Client’s request for the work.
    • Whilst every care is taken by DDH to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading and/or revision of the proposed Services of any media communications prior to posting of the same to any SNT and/or revision of the proposed Services. DDH shall be under no liability whatever for any errors not corrected by the Client in the final proof reading/revision.
    • Any change or correction to any video, photographs and/or artwork supplied by the Client which is deemed necessary by DDH to ensure correctly finished work shall be invoiced as an extra.
    • The Client shall provide DDH with data in the following formats:
      • for text, files shall be in an electronic format as standard text (.txt), JPG, animated GIF or Word (.doc) on a USB or via email;
      • for imaged, in an electronic format as prescribed by DDH on a USB or via email with the images of a suitable quality applicable for the use intended and without any subsequent image processing being required. DDH shall not be responsible for the quality of images scanned from printed materials;
      • additional expenses may be charged to the Client for any necessary action, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing or data entry services.
    • The Client acknowledges and agrees that:
      • DDH reserves the right to decline the insertion of any advertisement; and
      • unless a preferred position loading has been paid that the placement of an advertisement is at DDH’s discretion; and
      • casual displacement, rejection or an omission of an advertisement does not invalidate the space order; and
      • while every care is exercised, DDH will not accept liability for any loss whatsoever incurred through error either by content of an advertisement, or the incorrect appearance of an advertisement; and
      • DDH shall not be held responsible or liable for:
        • anything related to the SNT or any other services provided; and/or
        • any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of DDH.
      • DDH, its directors, agents or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of the Services by DDH to the Client.
      • All media releases and public announcements by either party relating to these terms and conditions, or the Services (including subject matter and related documents), shall be co-ordinated with the other party and approved jointly by the party prior to release.
      • DDH shall not be held responsible for the use of Services as referred to in by media, once information approved by the Client has been submitted to the media.

 

  1. Public Access
    • The Client understands that by placing information on the Website, such information may be accessible to all internet users. DDH does not (unless expressly requested by the Client) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity. The Client assumes full responsibility for their use of the Services, and it is the Client’s sole responsibility to evaluate the accuracy, completeness and usefulness or all opinions, advice, services, and other information, and the quality and merchantability of all Services provided by DDH, or on the internet generally.

 

  1. Client’s Responsibilities
    • The Client will, in addition to any other obligations expressed in this Contract, have the following responsibilities:
      • ensure that all advertising materials are delivered at DDH without any expenses being incurred by DDH; and
      • provision of all content (including data, logos, designs and/or graphic and related materials) to be incorporated into the publication and/or SNT communications and/or Website within five (5) business days of being requested by DDH or prior to the deadline; and
      • provision of any other information, ideas or suggestions which are to be expressly considered by DDH in developing the publication and/or SNT communications; and
      • to ensure that content supplied to DDH does not contain Prohibited Content, a link to any Website that contains Prohibited Content, or any viruses, trojan horses, worms, time bombs, cancel bots or any other software program or routine designed for or capable of interfering with the operation of the SNT.
    • DDH will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the SNT communications which is attributable to:
      • incorrect information provided by the Client, either pursuant to this clause or otherwise; or
      • failure by the Client to provide relevant information, either pursuant to this clause or otherwise; or
      • any third-party products and/or services used by DDH in placing the SNT communication.

 

  1. Search Engine Optimisation (SEO)
    • Although DDH shall use their knowledge and experience to gain the best results possible, DDH gives no guarantee of the quality of visitor or the position / page rank or volume of visits to the Website.

 

  1. Compliance of Laws
    • The Client and DDH shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities in the country where the Services are being provided or as per guidelines on any SNT. Furthermore, DDH warrants that any Services and/or content produced are fully compliant with said statutes, regulations and bylaws and SNT requirements.
    • The Client shall obtain (at the expense of the Client) all licenses and/or approvals pertaining to materials to be used in the communication copy and where required, any release documentation for the use of any digital imagery which may include people.

 

  1. Title
    • DDH and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until:
      • the Client has paid DDH all amounts owing for the Services; and
      • the Client has met all other obligations due by the Client to DDH in respect of all contracts between DDH and the Client.
    • Receipt by DDH 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 DDH’s ownership or rights in respect of the Incidental Items shall continue.
    • It is further agreed that, until ownership of the Incidental Items passes to the Client in accordance with clause 1:
      • the Client is only a bailee of the Incidental Items and must return the Incidental Items to DDH immediately upon request by DDH;
      • the Client holds the benefit of the Client’s insurance of the Incidental Items on trust for DDH and must pay to DDH the proceeds of any insurance in the event of the Incidental Items being lost, damaged or destroyed;
      • the Client must not sell, dispose, or otherwise part with possession of the Incidental Items. If the Client sells, disposes or parts with possession of the Incidental Items then the Client must hold the proceeds of sale of the Incidental Items on trust for DDH and must pay or deliver the proceeds to DDH on demand;
      • the Client should not convert or process the Incidental Items or intermix them with other goods, but if the Client does so then the Client holds the resulting product on trust for the benefit of DDH and must dispose of or return the resulting product to DDH as DDH so directs;
      • the Client shall not charge or grant an encumbrance over the Incidental Items nor grant nor otherwise give away any interest in the Incidental Items while they remain the property of DDH;
      • the Client irrevocably authorises DDH to enter any premises where DDH believes the Incidental Items are kept and recover possession of the Incidental Items.

 

  1. Personal Property Securities Act 2009 (“PPSA”)
    • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
    • Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in:
      • all Incidental Items previously supplied by DDH to the Client;
      • all Incidental Items will be supplied in the future by DDH to the Client; and
      • all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to DDH for Services – that have previously been provided and that will be provided in the future by DDH to the Client.
    • The Client undertakes to:
      • promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which DDH may reasonably require to;
        • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        • register any other document required to be registered by the PPSA; or
        • correct a defect in a statement referred to in clause 3(a)(i) or 16.3(a)(ii);
      • indemnify, and upon demand reimburse, DDH for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Incidental Items charged thereby;
      • not register a financing change statement in respect of a security interest without the prior written consent of DDH;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items in favour of a third party without the prior written consent of DDH.
    • DDH and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
    • The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    • The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • Unless otherwise agreed to in writing by DDH, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    • The Client must unconditionally ratify any actions taken by DDH under clauses 3 to 16.5.
    • Subject to any express provisions to the contrary (including those contained in this clause 16), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

  1. Security and Charge
    • In consideration of DDH agreeing to supply Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    • The Client indemnifies DDH from and against all DDH’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising DDH’s rights under this clause.
    • The Client irrevocably appoints DDH and each director of DDH as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Client’s behalf.

 

  1. Defects, Warranties and the Competition and Consumer Act 2010 (“CCA”)
    • The Client must inspect DDH’s Services on completion of the Services and must within seven (7) days notify DDH in writing of any evident defect in the Services or Incidental Items provided (including DDH’s workmanship) or of any other failure by DDH to comply with the description of, or quote for, the Services which DDH was to supply. The Client must notify any other alleged defect in DDH’s Services or Incidental Items as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow DDH to review the Services or Incidental Items that were provided.
    • Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
    • DDH acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    • Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, DDH makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. DDH’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    • If the Client is a consumer within the meaning of the CCA, DDH’s liability is limited to the extent permitted by section 64A of Schedule 2.
    • If DDH is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then DDH may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Incidental Items which have been provided to the Client which were not defective.
    • If the Client is not a consumer within the meaning of the CCA, DDH’s liability for any defective Services or Incidental Items is:
      • limited to the value of any express warranty or warranty card provided to the Client by DDH at DDH’s sole discretion;
      • otherwise negated absolutely.
    • Notwithstanding clauses 1 to 18.7 but subject to the CCA, DDH shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      • the Client failing to properly maintain or store any Incidental Items;
      • the Client using the Incidental Items for any purpose other than that for which they were designed;
      • the Client continuing to use any Incidental Items after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • interference with the Services by the Client or any third party without DDH’s prior approval;
      • the Client failing to follow any instructions or guidelines provided by DDH;
      • fair wear and tear, any accident, or act of God.

 

  1. Intellectual Property
    • Where DDH has designed, drawn or developed Incidental Items or Services for the Client, then the copyright in any Incidental Items or Services shall remain the property of DDH, and the Client undertakes to acknowledge DDH’s design or drawings in the event that images of the Incidental Items are utilised in advertising or marketing material by the Client. Under no circumstances may such designs, drawings and documents be used without the express written approval of DDH.
    • All design work where there is a risk that another party makes a claim, should be registered by the Client with the appropriate authorities prior to publishing or first use or searches and legal advice sought as to its use. DDH shall not be held responsible for any or all damages resulting from such claims.
    • The Client shall indemnify DDH against any claims by third parties for patent, trademark, design or copyright infringement, directly or indirectly arising out of the design, workmanship, material, construction, or use of the Services or any other deficiency therein. Where the Client has supplied drawings, sketches, files or logo’s to DDH, the Client warrants that the drawings, sketches, files or logo’s do not breach any patent, trademark, design or copyright, and the Client agrees to indemnify DDH against any action taken by a third party against DDH.
    • Notwithstanding anything herein, the intellectual property rights in DDH’s Services do not vest in the Client and there is no assignment of these intellectual property rights to the Client. DDH hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use and reproduce the Services for the purposes of this Contract only, and solely for the operation of the Client’s business however, the Client shall not use nor make copies of such intellectual property in connection with any work or business other than the work or business specified in writing to DDH unless express approval is given in advance by DDH. Such license shall terminate on default of payment or any other terms of this Contract by the Client.
    • All Flash, PHP, Java Script, HTML and Dynamic HTML coding and other supplied code (if any) remains the intellectual property of DDH. Copying or disseminating the code for any purpose whatsoever is strictly forbidden and will be a breach of copyright.

 

  1. Limitation of Liability
    • Whilst DDH, in providing the Services, shall make all effort to ensure their reliability, DDH disclaims any liability whatsoever for any loss or damage caused by the Client’s use of, or reliance on, the Services (including, any decision made, or action taken by the Client in reliance upon any such information contained on, or omitted from the Website, and whatsoever content and/or material is contained therein), including, but not limited to, any representations made by DDH, or servants of DDH, concerning the Incidental Items, Website and/or Services.
    • Specifications and information provided on the Website are given in good faith based on DDH’s knowledge, experience, or information provided to DDH by manufacturers and/or suppliers, or derived from sources believed to be accurate at the time the information is received by DDH, therefore it is recommended if you have any concerns as to the suitability of Services provided through the Website in respect of the use of the Services or their suitability for a particular use that the Client should contact DDH or seek an external professional opinion.
    • Any liability whatsoever, howsoever incurred, in any form of action on the part of DDH, shall be limited, subject to the maximum extent possible on a reasonably arguable view of the law, to the value of the consideration provided by DDH
    • The Client indemnifies, and will keep indemnified, DDH against all claims, actions, suits, liabilities, actual or contingent costs, damages and expenses incurred by DDH in connection with:
      • any breach of these terms and conditions by the Client;
      • any negligent act or omission by the Client;
      • an actual or alleged breach of any law, legislation, regulation, by-law, ordinance or code of conduct by DDH which occurs as a consequence of the content contained on the Website.

 

  1. Default and Consequences of Default
    • 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 DDH’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Client owes DDH any money the Client shall indemnify DDH from and against all costs and disbursements incurred by DDH in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, DDH’s contract default fee, and bank dishonour fees).
    • Further to any other rights or remedies DDH may have under this Contract, if a Client has made payment to DDH, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by DDH under this clause 21 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
    • Without prejudice to DDH’s other remedies at law DDH shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to DDH shall, whether or not due for payment, become immediately payable if:
      • any money payable to DDH becomes overdue, or in DDH’s opinion the Client will be unable to make a payment when it falls due;
      • the Client has exceeded any applicable credit limit provided by DDH;
      • 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
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

 

  1. Cancellation
    • Without prejudice to any other remedies DDH may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions DDH may suspend or terminate the supply of Services to the Client. DDH will not be liable to the Client for any loss or damage the Client suffers because DDH has exercised its rights under this clause.
    • DDH may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice DDH shall repay to the Client any money paid by the Client for the Services. DDH shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by DDH as a direct result of the cancellation (including, but not limited to, any loss of profits).
    • The deadline for cancellation or postponement of the advertising bookings is seven (7) days prior to print deadline.
    • In the event that the Clients cancels the advertising outside of the timeframe as stated in clause 4, the Client acknowledges and accepts that:
      • penalties may apply that can affect any volume discounts applied to the Contract Price; and
      • DDH may at their discretion charge a late cancellation fee.
    • In the event of the premature termination of this Contract (including by notification from the Client, (at least thirty (30) days prior to the expiration date of the Contract term), or as a result of Default, but excluding any breach or termination of this Contract by DDH):
      • the Client shall be responsible for the immediate payment of the following sums:
        • all monies due and payable up to the date of termination, noting applicable rates may change if the subscription plan is shorter than that noted in the quotation; and
        • all other sums owing by the Client under this Contract (or any other contract with the Client) as a result of the Default and termination of this Contract, including consequential damages and any and all loss of profits, costs, charges and expenses incurred by DDH in connection with (and resulting from) the premature termination of this Contract, which shall be calculated at a minimum of thirty percent (30%) of the remainder of the Price under this Contract where a fixed term

 

  1. Privacy Policy
    • All emails, documents, images or other recorded information held or used by DDH is Personal Information, as defined and referred to in clause 3, and therefore considered Confidential Information. DDH acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). DDH acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by DDH that may result in serious harm to the Client, DDH will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
    • Notwithstanding clause 1, privacy limitations will extend to DDH in respect of Cookies where the Client utilises DDH’s website to make enquiries. DDH agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
      • IP address, browser, email client type and other similar details;
      • tracking website usage and traffic; and
      • reports are available to DDH when DDH sends an email to the Client, so DDH may collect and review that information (“collectively Personal Information”)

If the Client consents to DDH’s use of Cookies on DDH’s website and later wishes to withdraw that consent, the Client may manage and control DDH’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

  • The Client agrees for DDH to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by DDH.
  • The Client agrees that DDH may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
    • to assess an application by the Client; and/or
    • to notify other credit providers of a default by the Client; and/or
    • 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
    • to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
  • The Client consents to DDH being given a consumer credit report to collect overdue payment on commercial credit.
  • The Client agrees that personal credit information provided may be used and retained by DDH for the following purposes (and for other agreed purposes or required by):
    • the provision of Services; and/or
    • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
    • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
    • enabling the collection of amounts outstanding in relation to the Services.
  • DDH may give information about the Client to a CRB for the following purposes:
    • to obtain a consumer credit report;
    • allow the CRB to create or maintain a credit information file about the Client including credit history.
  • The information given to the CRB may include:
    • Personal Information as outlined in 3 above;
    • name of the credit provider and that DDH is a current credit provider to the Client;
    • whether the credit provider is a licensee;
    • type of consumer credit;
    • details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
    • advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and DDH has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
    • information that, in the opinion of DDH, the Client has committed a serious credit infringement;
    • advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
  • The Client shall have the right to request (by e-mail) from DDH:
    • a copy of the Personal Information about the Client retained by DDH and the right to request that DDH correct any incorrect Personal Information; and
    • that DDH does not disclose any Personal Information about the Client for the purpose of direct marketing.
  • DDH will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
  • The Client can make a privacy complaint by contacting DDH via e-mail. DDH will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at oaic.gov.au.

 

  1. Service of Notices
    • Any written notice given under this Contract shall be deemed to have been given and received:
      • by handing the notice to the other party, in person;
      • by leaving it at the address of the other party as stated in this Contract;
      • by sending it by registered post to the address of the other party as stated in this Contract;
      • if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
      • if sent by email to the other party’s last known email address.
    • Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

 

  1. Trusts
    • If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not DDH may have notice of the Trust, the Client covenants with DDH as follows:
      • the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
      • the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
      • the Client will not without consent in writing of DDH (DDH will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
        • the removal, replacement or retirement of the Client as trustee of the Trust;
        • any alteration to or variation of the terms of the Trust;
        • any advancement or distribution of capital of the Trust; or
        • any resettlement of the trust property.

 

  1. General
    • The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. 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.
    • These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which DDH has its principal place of business, and are subject to the jurisdiction of the courts in that state.
    • Subject to clause 18, DDH 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 DDH of these terms and conditions (alternatively DDH’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
    • DDH may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
    • The Client cannot licence or assign without the written approval of DDH.
    • DDH may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of DDH’s sub-contractors without the authority of DDH.
    • The Client agrees that DDH may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for DDH to provide Services to the Client.
    • 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.
    • Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.