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1. Definitions

1.1. “Company” shall mean Design Partners Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Design Partners 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 the Company to the Client.

1.3. “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.

1.4. “Goods” shall mean Goods supplied by the Company to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Company to the Client.

1.5. “Services” shall mean all Services supplied by the Company to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

1.6. “Price” shall mean the price payable for the Goods as agreed between the Company 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, except to the extent permitted by those Acts where applicable.


3. Acceptance

3.1. Any instructions received by the Company from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by the Company 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 the Company.

3.4. The Client shall give the Company 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 the Company as a result of the Client’s failure to comply with this clause.

3.5. Goods are supplied by the Company 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. The Client acknowledges that the provision of Services will not begin until the Company receives written confirmation from the Client.


4. Price And Payment

4.1. At the Company’s sole discretion the Price shall be either:

(a) as indicated on invoices provided by the Company to the Client in respect of Goods supplied; or

(b) the Company’s current price at the date of delivery of the Goods according to the Company’s current Price list; or

(c) the Company’s quoted Price (subject to clause 4.2) which shall be binding upon the Company provided that the Client shall accept the Company’s quotation in writing within thirty (30) days.

4.2. The Company reserves the right to change the Price in the event of a variation to the Company’s quotation.

4.3. At the Company’s sole discretion a deposit may be required.

4.4. At the Company’s sole discretion:

(a) payment shall be due on delivery of the Goods; or

(b) payment shall be due before delivery of the Goods; or

(c) payment for approved Client’s shall be made by instalments in accordance with the Company’s payment schedule.

4.5. Time for payment for the Goods 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.

4.6. Payment will be made by cash, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Company. Payment may only be made by credit card (plus a surcharge of up to two and one half percent (2.5%) of the Price) when that payment method is offered by the Company.

4.7. 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.


5. Delivery Of Goods

5.1. At the Company’s sole discretion delivery of the Goods shall take place when:

(a) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by the Company or the Company’s nominated carrier); or

(b) the Client’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client’s agent.

5.2. At the Company’s sole discretion the costs of delivery are:

(a) in addition to the Price; or

(b) for the Client’s account.

5.3. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then the Company shall be entitled to charge a reasonable fee for redelivery.

5.4. Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.

5.5. The failure of the Company to deliver shall not entitle either party to treat this contract as repudiated.

5.6. The Company shall not be liable for any loss or damage (including, without limitation, missed media space, publication dates, or launch dates) whatsoever due to failure by the Company to deliver the Goods (or any part of them) promptly or at all, where due to circumstances (including, without limitation, delays caused by the Client, the Client’s agents, any supplier, or the printing or manufacturing process) beyond the control of the Company.


6. Client Content

6.1. The Client warrants that all materials and content supplied to the Company to be used for the provision of the Services shall:

(a) be true and correct in every particular; and

(b) shall comply with clause 13.4; and

(c) not be, nor contain, anything that is defamatory of any person or is indecent or obscene; and

(d) not breach any advertising industry standards or guidelines; and

(e) not contain nor constitute a statement that is misleading or deceptive or likely to deceive or to mislead or which is otherwise in breach of a provision of the Trade Practices Act of 1974 or any other Australian Act.

6.2. The Client shall indemnify and keep indemnified the Company at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against the Company or incurred or become payable by the Company resulting or arising from the Client being in breach of clause 6.1

6.3. The Company reserves the right to refuse to accept any material or content submitted by the Client that does comply with clause 6.1.

6.4. Any information supplied by the Client to the Company shall remain confidential and will not be disclosed without the written consent of the Client.


7. Draft Versions

7.1. The Client acknowledges that:

(a) additional fees will be incurred if files supplied by the Client are required to be corrected or converted to another format;

(b) additional changes and amendments beyond the second draft revision may, at the Company’s sole discretion, incur additional fees.

7.2. The Client acknowledges that once they have approved the drafts (including all artwork and associated material), and given the Company approval to print, the Company shall not be liable for any errors and/or omissions in the Goods.

7.3. Additional charges may apply for any additional alterations to the Goods, or for the resupply of the Goods, after the Client has given draft approval/approval to print.


8. Defects

8.1. Clause 8.2 shall only apply where clause 7.2 is not applicable.

8.2. The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Company an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Company has agreed in writing that the Client is entitled to reject, the Company’s liability is limited to either (at the Company’s discretion) replacing the Goods or repairing the Goods.

8.3. Goods will not be accepted for return other than in accordance with 8.2 above.


9. Warranty

9.1. For Goods not manufactured by the Company, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Company shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.


10. Risk

10.1. If the Company retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.

10.2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Company is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.

10.3. The Company will store a copy of the Client’s artwork for up to twelve (12) months but shall not be liable whatsoever in the event that those copies are lost or damaged, and does not guarantee the supply of the Client’s artwork within that twelve (12) month period. Any request by the Client for copies of their artwork within that twelve (12) month period may, at the Company’s sole discretion, incur a fee.


11. Title

11.1. The Company and Client agree that ownership of the Goods shall not pass until:

(a) the Client has paid the Company all amounts owing for the particular Goods; and

(b) the Client has met all other obligations due by the Client to the Company in respect of all contracts between the Company and the Client.

11.2. Receipt by the Company 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 the Company’s ownership or rights in respect of the Goods shall continue.

11.3. It is further agreed that:

(a) where practicable the Goods shall be kept separate and identifiable until the Company shall have received payment and all other obligations of the Client are met; and

(b) until such time as ownership of the Goods shall pass from the Company to the Client the Company may give notice in writing to the Client to return the Goods or any of them to the Company. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and

(c) the Company shall have the right of stopping the Goods in transit whether or not delivery has been made; and

(d) if the Client fails to return the Goods to the Company then the Company or the Company’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; and

(e) the Client is only a bailee of the Goods and until such time as the Company has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to the Company for the Goods, on trust for the Company; and

(f) the Client shall not deal with the money of the Company in any way which may be adverse to the Company; and

(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Company; and

(h) the Company can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and

(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that the Company will be the owner of the end products.


12. Website Design and Development

12.1. The Company reserves the right to outsource any part of the website development process.

12.2. The Client acknowledges that website hosting is not included in the Services and once the Services have been provided by the Company, the project signed-off, and the website activated, it is the responsibility of the Client to maintain the website. The Company shall not be liable for any loss or damage caused by the Client making any changes to the website, and the Client acknowledges that they do so at their own risk.

12.3. The Client agrees that if they require any additional work (including maintenance) to the website, or ongoing training in relation the website, after the project has been completed and signed off by the Company, then this work or training may be undertaken by a third-party development company specified by the Company. Any terms and conditions for this additional work or training shall be between the Client and the third-party development company and shall not constitute any agreement between the Client and the Company, and the Company shall not be liable whatsoever for any costs, loss, or damage resulting from these works or agreements.

12.4. The Client shall use any third-party software supplied by the Company, and identified as such, strictly in terms of the licence under which it is supplied.

12.5. The Company shall not be liable for any loss or damage (including, without limitation, missed launch dates) whatsoever due to failure by the Company to deliver any website design or development Services (or any part of them) promptly or at all, where due to circumstances (including, without limitation, delays caused by the Client, the Client’s agents, any supplier, any equipment failure including ISP’s and telephone networks, or computer hackers) beyond the control of the Company.

12.6. At the Company’s sole discretion a deposit or full payment may be required for website design and development Services.

12.7. Payment for website design Services shall be due on completion of the design phase. Payment of website development Services shall be due on the launch of the website.

12.8. The Price for any website design and development Services does not include any undue configuration or implementation of the Client’s host server.


13. Intellectual Property

13.1. Copyright in all designs, images, software, specifications, documents, and other materials provided to the Client by the Company shall remain vested in the Company and shall only be used by the Client at the Company’s discretion. The Company reserves the right to feature this material in the Company’s portfolio and promotional material.

13.2. Where the Company has provided the Client with computer software (including coding and routines) the Company retains ownership of the computer software. The Company hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use the Company’s software under the terms of the licence it was supplied.

13.3. Where the Company has provided the Client with concept designs, the copyright in those concept designs shall remain vested with the Company. The Client warrants that any concept designs provided by the Company shall not be disclosed by the Client to any other party without the express written consent of the Company.

13.4. Where the Client provides the Company with any materials including sketches, photographs, images, drawings, plans, or concepts upon which the Company is to base the Services, the Client shall indemnify and keep indemnified the Company at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against the Company or incurred or become payable by the Company resulting or arising from any claim or infringement of any law, patent, registered design, trademark, copyright or any other property interest of a third party which may result out of the use by the Company of the materials.

13.5. Whilst the Client is in default of payment or any other terms of this Agreement, the Client shall have no right to use the materials referred to in this agreement.


14. Default & Consequences of Default

14.1. 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 one half percent (2.5%) per calendar month (and at the Company’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

14.2. In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by the Company.

14.3. If the Client defaults in payment of any invoice when due, the Client shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a solicitor and own client basis and the Company’s collection agency costs.

14.4. Without prejudice to any other remedies the Company may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. The Company will not be liable to the Client for any loss or damage the Client suffers because the Company has exercised its rights under this clause.

14.5. If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) 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.

14.6. Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable in the event that:

(a) any money payable to the Company becomes overdue, or in the Company’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.


15. Security And Charge

15.1. Despite anything to the contrary contained herein or any other rights which the Company 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 the Company or the Company’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 the Company (or the Company’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 the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Company from and against all the Company’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 the Company or the Company’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 15.1.


16. Cancellation

16.1. The Company may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Company shall repay to the Client any sums paid in respect of the Price. The Company shall not be liable for any loss or damage whatever arising from such cancellation.

16.2. In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by the Company (including, but not limited to, any loss of profits) up to the time of cancellation.


17. Privacy Act 1988

17.1. The Client and/or the Guarantor/s agree for the Company to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Company.

17.2. The Client and/or the Guarantor/s agree that the Company may exchange information about the Client and the Guarantor/s 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 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 credit worthiness of Client and/or Guarantor/s.

17.3. The Client consents to the Company 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 the Company for the following purposes and for other purposes as shall be agreed between the Client and Company or required by law from time to time:

(a) provision of Goods; and/or

(b) marketing of Goods by the Company, its agents or distributors in relation to the Goods; and/or

(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by 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 Goods.

17.5. The Company 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; and/or

(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.


18. General

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 Victoria and are subject to the jurisdiction of the courts of Victoria.

18.3. The Company shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Company of these terms and conditions.

18.4. In the event of any breach of this contract by the Company the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.

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 the Company.

18.6. The Company may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

18.7. The Client agrees that the Company may 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 the Company notifies the Client of such change.

18.8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.

18.9. The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision.

© Copyright – EC Credit Control Pty Ltd – 2008