“Fiske Advertising” means Fiske Enterprises Pty Ltd T/A Fiske Advertising, its successors and assigns or any person acting on behalf of and with the authority of Fiske Enterprises Pty Ltd T/A Fiske Advertising.
“Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Fiske Advertising 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 part of a Trust, shall be bound in their capacity as a trustee; and
includes the Client’s executors, administrators, successors and permitted assigns.
“Goods” means all Goods or Services supplied by Fiske Advertising to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
“Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Fiske Advertising and the Client in accordance with clause 5 below.
“GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
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 delivery of the Goods.
These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and Fiske Advertising.
In the event that Fiske Advertising is required to provide the Services outside Fiske Advertising’s normal business hours of trade (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then Fiske Advertising reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between Fiske Advertising and the Client.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
Errors and Omissions
The Client acknowledges and accepts that Fiske Advertising 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 Fiske Advertising in the formation and/or administration of this contract; and/or
contained in/omitted from any literature (hard copy and/or electronic) supplied by Fiske Advertising in respect of the Services.
In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Fiske Advertising; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
Change in Control
The Client shall give Fiske Advertising 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, or business practice). The Client shall be liable for any loss incurred by Fiske Advertising as a result of the Client’s failure to comply with this clause.
Price and Payment
At Fiske Advertising’s sole discretion, the Price shall be either:
as indicated on any invoice provided by Fiske Advertising to the Client; or
the Price as at the date of delivery of the Goods according to Fiske Advertising’s current price list; or
Fiske Advertising’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
Fiske Advertising reserves the right to change the Price:
if a variation to the Goods which are to be supplied is requested; or
if a variation to the Services originally scheduled (including any applicable plans, specifications, changes or correction to any film, bromides, artwork and/or any printing surface supplied by the Client which is deemed necessary by Fiske Advertising to ensure correctly finished work) is requested; or
where style, type or layout is left to Fiske Advertising’s judgement and then the Client makes further alterations to the copy; or
in the event of increases to Fiske Advertising in the cost of labour or materials which are beyond Fiske Advertising’s control.
Variations will be charged for on the basis of Fiske Advertising’s quotation, and will be detailed in writing, and shown as variations on Fiske Advertising’s invoice. The Client shall be required to respond to any variation submitted by Fiske Advertising within ten (10) working days. Failure to do so will entitle Fiske Advertising 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 Fiske Advertising’s sole discretion, a non-refundable deposit may be required.
Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Fiske Advertising, which may be:
on delivery of the Goods;
before delivery of the Goods;
by way of instalments/progress payments in accordance with Fiske Advertising’s payment schedule;
thirty (30) days following the date of invoice;
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Fiske Advertising.
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 Fiske Advertising.
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 Fiske Advertising 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 Fiske Advertising an amount equal to any GST Fiske Advertising must pay for any supply by Fiske Advertising under this or any other contract for the sale of the Goods. 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.
Delivery of Goods
Delivery (“Delivery”) of the Goods is taken to occur at the time that:
the Client or the Client’s nominated carrier takes possession of the Goods at Fiske Advertising’s address; or
Fiske Advertising (or Fiske Advertising’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
At Fiske Advertising’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
Any time specified by Fiske Advertising for delivery of the Goods is an estimate only. The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. Fiske Advertising will not be liable for any loss or damage incurred by the Client as a result of delivery being late. In the event that the Client is unable to take delivery of the Goods as arranged then Fiske Advertising shall be entitled to charge a reasonable fee for redelivery and/or storage.
Fiske Advertising may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
Risk
Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Fiske Advertising is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Fiske Advertising is sufficient evidence of Fiske Advertising’s rights to receive the insurance proceeds without the need for any person dealing with Fiske Advertising to make further enquiries.
If the Client requests Fiske Advertising to leave Goods outside Fiske Advertising’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
Fiske Advertising shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, Fiske Advertising accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
Fiske Advertising shall be under no liability whatsoever to the Client for any variation (beyond the reasonable control of Fiske Advertising) in colours between the approved prototype and the finished Goods.
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 his original instructions or by the manuscript copy being, in Fiske Advertising’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.
All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client.
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 in accordance with clause 5.2.
Unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at its request for the works.
Where the performance of any contract with the Client requires Fiske Advertising to obtain Goods or Services from a third party, the contract between Fiske Advertising and the Client shall incorporate and shall be subject to the conditions of supply of such Goods and Services to Fiske Advertising, and the Client shall be liable for the cost in full including Fiske Advertising’s margin of such Goods or Services.
Whilst every care is taken by Fiske Advertising to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proof reading of the Goods. Fiske Advertising shall be under no liability whatsoever for any errors not corrected by the Client in the final proof reading. Should the Clients alterations require additional proofs this shall be invoiced as an extra.
Fiske Advertising is under no obligation to provide samples of Goods ordered other than by virtual (computerised) sample. Whilst every effort will be taken by Fiske Advertising to match virtual colours with physical colours, Fiske Advertising will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Client’s computer and/or the final product. Should a physical sample be required this will be provided on request by the Client and will be charged for as an extra including return freight, the charge will be contra against final invoice.
While every effort will be taken by Fiske Advertising to match PMS colours, Fiske Advertising will take no responsibility for any variation due to substrates, half tones and/or detailed graphics between sale samples (including but not limited to virtual or physical samples) and the final product.
Fiske Advertising shall not be held liable for inks wearing off through general wear and tear.
Where the Client supplies materials, adequate quantities shall be supplied to cover spoilage. Sheets and other materials shall not be counted or checked when received unless requested by the Client in writing. An additional charge may be made by Fiske Advertising in respect of any such counting or checking requested by the Client.
In the case of property and materials left with Fiske Advertising without specific instructions, Fiske Advertising shall be free to dispose of them at the end of twelve months after Fiske Advertising receives them and to accept and retain any proceeds gained from such disposal to cover Fiske Advertising’s costs in holding and handling such items.
Where materials or equipment are supplied by the Client for the provision of Services Fiske Advertising shall accept no liability for imperfect work caused by defects in, or the unsuitability of, such materials or equipment for the Services.
Goods printed or made to special order, Client specification or non-catalogue items are under no circumstances acceptable for credit or return. Cancellation of orders for printed or special or non-catalogue items will definitely not be accepted, once these orders are in production.
Confidentiality
Fiske Advertising and the Client agree to keep confidential any information in relation to the other party which is not in the public domain (including, but not limited to, trade secrets, processes, formulae, accounts, marketing, designs, databases and all other information held in any form). Fiske Advertising agree to abide by the Privacy Act 1988 with regard to the personal information provided within the database supplied by the Client, and agrees to comply with the Victorian Protective Data Security Standards
Title
Fiske Advertising and the Client agree that ownership of the Goods shall not pass until:
the Client has paid Fiske Advertising all amounts owing to Fiske Advertising; and
the Client has met all of its other obligations to Fiske Advertising.
Receipt by Fiske Advertising 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.
It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 9.1:
the Client is only a bailee of the Goods and must return the Goods to Fiske Advertising on request.
the Client holds the benefit of the Client’s insurance of the Goods on trust for Fiske Advertising and must pay to Fiske Advertising the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Fiske Advertising and must pay or deliver the proceeds to Fiske Advertising on demand.
the Client should not convert or process the Goods 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 Fiske Advertising and must sell, dispose of or return the resulting product to Fiske Advertising as it so directs.
the Client irrevocably authorises Fiske Advertising to enter any premises where Fiske Advertising believes the Goods are kept and recover possession of the Goods.
Fiske Advertising may recover possession of any Goods in transit whether or not delivery has occurred.
the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Fiske Advertising.
Fiske Advertising may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
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 PPSA.
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 Goods and/or collateral (account) – being a monetary obligation of the Client to Fiske Advertising for Services – that have previously been supplied and that will be supplied in the future by Fiske Advertising 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 Fiske Advertising 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
indemnify, and upon demand reimburse, Fiske Advertising 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 Goods charged thereby;
not register a financing change statement in respect of a security interest without the prior written consent of Fiske Advertising;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of Fiske Advertising;
immediately advise Fiske Advertising of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
Fiske Advertising 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 Fiske Advertising, 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 Fiske Advertising under clauses 10.3 to 10.5.
Subject to any express provisions to the contrary (including those contained in this clause 10) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge
In consideration of Fiske Advertising agreeing to supply the Goods, 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 Fiske Advertising from and against all Fiske Advertising’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Fiske Advertising’s rights under this clause.
The Client irrevocably appoints Fiske Advertising and each director of Fiske Advertising as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
The Client must inspect the Goods on delivery and must within twenty four (24) days of delivery notify Fiske Advertising in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Fiske Advertising to inspect the Goods.
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).
Fiske Advertising 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, Fiske Advertising makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Fiske Advertising’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, Fiske Advertising’s liability is limited to the extent permitted by section 64A of Schedule 2.
If Fiske Advertising is required to replace the Goods under this clause or the CCA, but is unable to do so, Fiske Advertising may refund any money the Client has paid for the Goods.
If the Client is not a consumer within the meaning of the CCA, Fiske Advertising’s liability for any defect or damage in the Goods is:
limited to the value of any express warranty or warranty card provided to the Client by Fiske Advertising at Fiske Advertising’s sole discretion;
limited to any warranty to which Fiske Advertising is entitled, if Fiske Advertising did not manufacture the Goods;
otherwise negated absolutely.
Subject to this clause 12, returns will only be accepted provided that:
the Client has complied with the provisions of clause 12.1; and
Fiske Advertising has agreed that the Goods are defective; and
the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
the Goods are returned in as close a condition to that in which they were delivered as is possible.
Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, Fiske Advertising 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 Goods;
the Client using the Goods for any purpose other than that for which they were designed;
the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
the Client failing to follow any instructions or guidelines provided by Fiske Advertising;
fair wear and tear, any accident, or act of God.
In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by Fiske Advertising as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that Fiske Advertising has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 12.10.
Notwithstanding anything contained in this clause if Fiske Advertising is required by a law to accept a return then Fiske Advertising will only accept a return on the conditions imposed by that law.
Intellectual Property
Where Fiske Advertising has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Fiske Advertising. Under no circumstances may such designs, drawings and documents be used without the express written approval of Fiske Advertising.
The Client warrants that all designs, specifications or instructions given to Fiske Advertising will not cause Fiske Advertising to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Fiske Advertising against any action taken by a third party against Fiske Advertising in respect of any such infringement.
The Client agrees that Fiske Advertising may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Fiske Advertising has created for the Client. Fiske Advertising agree not to use any data provided by the client for any such purpose as outlined in this clause.
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 Fiske Advertising’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes Fiske Advertising any money the Client shall indemnify Fiske Advertising from and against all costs and disbursements incurred by Fiske Advertising in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Fiske Advertising’s contract default fee, and bank dishonour fees).
Further to any other rights or remedies Fiske Advertising may have under this contract, if a Client has made payment to Fiske Advertising, 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 Fiske Advertising under this clause 14 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 Fiske Advertising’s other remedies at law Fiske Advertising shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Fiske Advertising shall, whether or not due for payment, become immediately payable if:
any money payable to Fiske Advertising becomes overdue, or in Fiske Advertising’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 Fiske Advertising;
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.
Cancellation
Without prejudice to any other remedies Fiske Advertising may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Fiske Advertising may suspend or terminate the supply of Goods to the Client. Fiske Advertising will not be liable to the Client for any loss or damage the Client suffers because Fiske Advertising has exercised its rights under this clause.
Fiske Advertising 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 Fiske Advertising shall repay to the Client any money paid by the Client for the Goods. Fiske Advertising shall not be liable for any loss or damage whatsoever arising from such cancellation. Fiske Advertising shall return to the client the data base, as provided by the client, and shall immediately destroy any copies that have been produced by Fiske Advertising and/or its sub-contractors
In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Fiske Advertising as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
Privacy Act 1988
The Client agrees for Fiske Advertising to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by Fiske Advertising.
The Client agrees that Fiske Advertising 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 Fiske Advertising 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 Fiske Advertising for the following purposes (and for other agreed purposes or required by):
the provision of Goods; and/or
analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; 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 Goods.
Fiske Advertising 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.
name of the credit provider and that Fiske Advertising 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 Fiske Advertising has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
information that, in the opinion of Fiske Advertising, 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 Fiske Advertising:
a copy of the information about the Client retained by Fiske Advertising and the right to request that Fiske Advertising correct any incorrect information; and
that Fiske Advertising does not disclose any personal information about the Client for the purpose of direct marketing. This includes any data held within the database provided by the client for the purpose of this contract.
Fiske Advertising will destroy personal information including the data base provided, once it is no longer required 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 Fiske Advertising via e-mail. Fiske Advertising 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 www.oaic.gov.au.
Fiske Advertising acknowledged that it will be bound by the Protective Data Security Standards and will not do any act or engage in any practice that contravenes a Protective Data Security Standard in respect of any data collected, held, used, managed, disclosed or transferred by Fiske Advertising, on behalf of the client, under or in connection with this contract.
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.
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 Fiske Advertising may have notice of the Trust, the Client covenants with Fiske Advertising 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 Fiske Advertising (Fiske Advertising 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.
Dispute Resolution
If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
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 Victoria, the state in which Fiske Advertising has its principal place of business, and are subject to the jurisdiction of the courts in Victoria.
Subject to clause 12 Fiske Advertising 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 Fiske Advertising of these terms and conditions (alternatively Fiske Advertising’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
Fiske Advertising 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 Fiske Advertising.
Fiske Advertising 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 Fiske Advertising’s sub-contractors without the authority of Fiske Advertising.
The Client agrees that Fiske Advertising may amend these terms and conditions by notifying 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 Fiske Advertising to provide Goods 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.
