GENERAL TERMS AND CONDITIONS OF TRADE (10/19)
To the fullest extent legally permissible all dealings between each client (including all related and/or associated companies and/or other entities, all successors and/or assigns and in the client’s own capacity and as trustee of each and every trust of which the client is trustee) [jointly “the Client”] and Content Hype Marketing Services Pty Ltd ACN 636 517 818 (and/or any successors and/or assigns) whether trading as “Content Hype” and/or otherwise [“Content Hype”] relating to any and all services [the “services”] are subject to the following terms and conditions [“these Terms”] unless otherwise expressly agreed in writing:
1. Payment: Payment shall be made by cheque or electronic bank transfer, without deduction and within the credit period stipulated in each invoice or statement. If no credit period is stipulated, payment shall be made within 7 days from the date of invoice.
2. Interest: Interest shall be charged on overdue accounts at the current Penalty Interest Rates Act 1983 (Vic.) interest rate plus 2%.
3. Consumer Guarantees & ACL: The Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) [“ACL”] provides consumers with certain consumer guarantees and rights in relation to certain transactions concerning goods and/or services (see www.consumerlaw.gov.au). Any rights the Client may have under the ACL shall apply notwithstanding any inconsistent provisions in these Terms which shall be read down to the extent necessary to comply with the ACL and which shall otherwise apply to the fullest extent legally permissible.
4. Limitation of Liability: To the extent permitted by the ACL: a) the Client agrees to limit any claim to the re-supply of services (or cost thereof); b) Content Hype shall not be liable for any consequential loss and/or any special and/or punitive damages through any fault and/or negligence of Content Hype; and c) Content Hype shall not be liable for any delay or failure to provide any services or perform any obligation due to factors beyond Content Hype’s control.
5. Supply: a) Content Hype may withhold or cancel services where: (i) Content Hype is unable to provide the services for reasons beyond it’s control; (ii) the Client is in breach of these Terms; and/or (iii) Content Hype has any occupational health and/or safety concerns. b) The Client agrees that: (i) Content Hype shall not be liable for delay, failure or inability to provide any services; and (ii) that no delay or failure to fulfil any part of any order shall entitle the Client to cancel or vary any order or delay or reduce any payment.
6. Price: a) In the absence of a binding agreement, proposal or quotation all services are provided at the price nominated by Content Hype at the time of delivery. b) All government imposts, levies and duties (including any GST or equivalent) shall be to the Client’s account. c) Prices exclude all government imposts, levies and duties (including any GST or equivalent).
7. Variations: To be binding any variation or cancellation of these Terms or any order must be approved by Content Hype in writing.
8. Exclusions: To the extent permitted by the ACL: a) the Client shall rely on its own knowledge and expertise in selecting any services for any purpose and any advice and/or assistance given by or for Content Hype shall be at the Client’s risk and shall not be or be deemed to be given as expert or adviser nor to have been relied on by the Client or anyone claiming through the Client; b) Content Hype shall not be responsible nor liable for paying and/or obtaining any necessary statutory, government and/or utility fees, expenses, orders, approvals, permits and/or licences; c) the Client agrees to: (i) check all services for compliance with all applicable laws, standards and/or guidelines before use and/or application; (ii) comply with all applicable laws, standards and/or guidelines and with all recommendations and/or directions made and/or given by Content Hype; and (iii) act in good faith and in accordance with good practice at all times.
9. Default: a) On default or breach of any part of these Terms by the Client the full balance of all unpaid monies shall be deemed by this clause to be immediately due and payable (save to the extent that Content Hype expressly directs otherwise in writing) and Content Hype may inter alia terminate any contract, retain all monies paid, cease further provision of services, recover all lost profits without prejudice to any other rights and without being liable in any way to any party. b) The Client agrees to indemnify Content Hype for all fees and expenses payable to lawyers, mercantile agents and/or other parties acting on behalf of Content Hype in respect of anything instituted or being considered against the Client whether for debt, possession of any goods or otherwise (including all legal costs on an indemnity basis). c) Content Hype apply any payment in reduction of fees, interest and/or any principal debt in such order of priority Content Hype in its discretion deems appropriate.
10. Indemnity: The Client fully indemnifies Content Hype against any claim and/or loss arising from or related in any way to any dealing between Content Hype and the Client and/or arising under these Terms.
11. Intellectual Property: The Customer agrees that all intellectual property in the creation of any goods and/or services shall be and remain the exclusive property of Content Hype.
12. Other Terms and Conditions: No terms and conditions sought to be imposed by the Client upon Content Hype shall apply.
13. Jurisdiction: The Client agrees that these Terms and any claim or dispute between Content Hype and the Client shall be governed by the law applicable in the State nominated by Content Hype and the Client agrees to submit to the jurisdiction of the appropriate Court nominated by Content Hype in the capital city of that State. If no State is nominated then Victoria shall be deemed to be the nominated State.
14. Waiver: An election by Content Hype not to exercise any rights on any breach of these Terms shall not constitute a waiver of any rights relating to any other breach.
15. Variations: The Client: a) acknowledges that Content Hype may vary or replace these Terms affecting all future dealings between the Client and Content Hype; b) shall be deemed to have notice of any variation to or replacement of these Terms immediately upon Content Hype notifying the Client at the Client’s last known address; and c) shall be deemed to have accepted these Terms as varied or replaced immediately upon placing any further order with Content Hype.
16. Force Majeure: Content Hype shall not be in default or in breach of any contract with the Client as a result of Force Majeure including any strike or lock-out.
17. Insolvency: The Client shall be in default of these Terms if the Client commits an act of insolvency, appoints an insolvency practitioner or has one appointed and/or calls a formal meeting of creditors.
18. Severability: Any part of these Terms shall be capable of severance without affecting any other part of these Terms.