1.1 “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.
1.2 “DI Designs” means Thornley Project Management & Design Pty Ltd ATF The Thornley Family Trust T/A DI Designs, its successors and assigns or any person acting on behalf of and with the authority of Thornley Project Management & Design Pty Ltd ATF The Thornley Family Trust T/A DI Designs.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting DI Designs to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.4 “Incidental Items” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by DI Designs in the course of it conducting, or supplying to the Client, any Services.
1.5 “Services” mean all Services (including consultation, branding and design of advertisements, marketing materials, business stationery, exhibition displays, magazines and reports) supplied by DI Designs to the Client at the Client’s request from time to time.
1.6 “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.
1.7 “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 ordering from the 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 ordering Services via the website.
1.8 “Fee” means the Fee payable (plus any GST where applicable) for the Services as agreed between DI Designs and the Client in accordance with clause 5 of this Contract.
1.9 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 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 DI Designs.
2.2 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.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client acknowledges that the supply of Services on credit shall not take effect until the Client has completed a credit application with DI Designs and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Services request exceeds the Clients credit limit and/or the account exceeds the payment terms, DI Designs reserves the right to refuse delivery.
2.6 The Client is strongly recommended to place an order in writing. Orders should clearly state the Client’s particular requirements. DI Designs will not be responsible for errors or omissions due to oversight or to misinterpretation of the Client’s verbal instructions.
2.7 The Client acknowledges and accepts that once the quotation is accepted by the Client, DI Designs’ written quotation shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, DI Designs shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
2.8 DI Designs reserves the right not to undertake any work which in its opinion is or may be unlawful, offensive, or otherwise inappropriate.
2.9 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 10 of the Electronic Transactions Act 2011 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that DI Designs shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by DI Designs in the formation and/or administration of this Contract; and/or (b) contained in/omitted from any literature (hard copy and/or electronic) supplied by DI Designs in respect of the Services.
3.2 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 DI Designs; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Change in Control
The Client shall give DI Designs 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 DI Designs as a result of the Client’s failure to comply with this clause.
5. Fee and Payment
5.1 At DI Designs’ sole discretion the Fee shall be either:
(a) as indicated on any invoice provided by DI Designs to the Client; or Credit Control 1999 – 2019
(b) DI Designs’ quoted Fee (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.
5.2 DI Designs reserves the right to change the Fee if a variation to DI Designs’ quotation is requested, including:
(a) where 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 copy being, in DI Designs’ opinion, poorly prepared, or by the Client’s requirements being different from those originally submitted or described;
(b) all work carried out whether experimentally or otherwise at the Client’s request;
(c) any tabulated work and/or foreign language included in the job but not contained in the copy originally submitted;
(d) any fonts, or colour proofs, or artwork, specially bought at the Client’s request for the Goods;
(e) when style, type or layout is left to DI Designs’ judgement, and the Client makes further alterations to the copy; and
(f) any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Client, and deemed necessary by DI
Designs to ensure correctly finished work.
5.3 Variations will be charged for on the basis of DI Designs’ quotation, and will be detailed in writing, and shown as variations on DI Designs’
invoice. The Client shall be required to respond to any variation submitted by DI Designs within ten (10) working days. Failure to do so will entitle DI Designs to add the cost of the variation to the Fee. Payment for all variations must be made in full at the time of their completion.
5.4 At DI Designs’ sole discretion a non-refundable deposit may be required.
5.5 Time for payment for the Services being of the essence, the Fee will be payable by the Client on the date/s determined by DI Designs, which may be:
(a) on delivery of the Services;
(b) before delivery of the Services;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Client by DI Designs.
5.6 Payment may be made by 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 DI Designs.
5.7 DI Designs may in its discretion allocate any payment received from the Client towards any invoice that DI Designs determines and may do so at the time of receipt or at any time afterwards. On any default by the Client DI Designs may re-allocate any payments previously received
and allocated. In the absence of any payment allocation by DI Designs, payment will be deemed to be allocated in such manner as preserves the maximum value of DI Designs’ Purchase Money Security Interest (as defined in the PPSA) in the Services.
5.8 The Client shall not be entitled to set off against, or deduct from the Fee, any sums owed or claimed to be owed to the Client by DI Designs
nor to withhold payment of any invoice because part of that invoice is in dispute.
5.9 Unless otherwise stated the Fee does not include GST. In addition to the Fee, the Client must pay to DI Designs an amount equal to any
GST DI Designs must pay for any supply by DI Designs under this or any other agreement for providing DI Designs’ 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 Fee. In
addition, the Client must pay any other taxes and duties that may be applicable in addition to the Fee except where they are expressly included in the Fee.
6. Delivery of Services
6.1 At DI Designs’ sole discretion delivery of the Services shall take place when:
(a) the Services are supplied to the Client at DI Designs’ address; or
(b) the Services are supplied to the Client at the Client’s nominated address.
6.2 Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this Contract.
6.3 DI Designs 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.
6.4 Any time specified by DI Designs for delivery of the Services is an estimate only and DI Designs 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 and place as was arranged between both parties. In the event that DI Designs is unable to supply the Services as agreed solely due to any action or inaction of the Client then DI Designs shall be entitled to charge a reasonable fee for re-
supplying the Services at a later time and date.
7.1 Irrespective of whether DI Designs retains ownership of any Incidental Items all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as DI Designs may repossess the Incidental Items in accordance with clause 9.3(f). The Client must insure all Incidental Items on or before delivery.
7.2 DI Designs reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Client’s failure to insure in accordance with clause 7.1.
7.3 Where DI Designs gives advice or recommendations to the Client, or the Client’s agent, regarding any aspect of the scope of the Services (including but not limited to, a particular course of action, product selection or the condition of the materials supplied by the Client being inferior), and such advice or recommendations are not acted upon, then DI Designs shall require the Client or their agent to authorise commencement of the Services in writing. DI Designs shall not be liable in any way whatsoever for any damages or losses that occur after
any subsequent commencement of the Services nor will such losses or damages be deemed a defect. If the Client instructs DI Designs to rectify any damage or defects, this will become a variation to the original quotation and will be charged at DI Designs normal hourly rate.
7.4 The Client acknowledges and accepts that any plans, specifications (including CAD drawings) and other information provided by the Client to DI Designs are accurate. The Client acknowledges and agrees that in the event that any plans, specifications (including CAD drawings) or information provided by the Client are inaccurate:
(a) DI Designs accepts no responsibility or liability for any loss, damages, or costs however resulting from these inaccurate plans,
specifications or other information;
(b) DI Designs is entitled to suspend or terminate the supply of Services to the Client if there is a material change to the scope of Services
as a result of inaccurate plans, specifications or other information; and
(c) DI Designs will not be liable to the Client for any loss or damage the Client suffers because DI Designs has exercised its rights under this clause.
7.5 While every effort will be taken by DI Designs to match PMS colours, DI Designs 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
7.6 Whilst every care is taken by DI Designs to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading of the designs and sample products. DI Designs shall be under no liability whatever for any errors not corrected by the Client in the
final proof reading, and should the Client’s alterations require additional proofs this shall be invoiced as an extra in accordance with clause 5.2.
7.7 In the case of property and materials left with DI Designs without specific instructions, DI Designs shall be free to dispose of them at the end of three (3) months after the receiving of them and to accept and retain any proceeds gained from such disposal to cover DI Designs’ costs in holding and handling such items.
8. Client’s Responsibilities
9. Title to Incidental Items
10. Personal Property Securities Act 2009 (“PPSA”)
11. Security and Charge
12. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
13. Intellectual Property
14. Default and Consequences of Default
16. Dispute Resolution
17.1 All emails, documents, images or other recorded information held or used by DI Designs is Personal Information, as defined and referred to in clause 17.3, and therefore considered Confidential Information. DI Designs 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”). DI Designs acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by DI Designs that may result in serious harm to the Client, DI Designs 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.
17.2 Notwithstanding clause 17.1, privacy limitations will extend to DI Designs in respect of Cookies where transactions for purchases/orders transpire directly from DI Designs’ website. DI Designs 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:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to DI Designs when DI Designs sends an email to the Client, so DI Designs may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, 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 proceeding with a purchase/order via DI Designs’ website.
17.3 The Client agrees for DI Designs 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 DI Designs.
17.4 The Client agrees that DI Designs may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the 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 creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
17.5 The Client consents to DI Designs being given a consumer credit report to collect overdue payment on commercial credit.
17.6 The Client agrees that personal credit information provided may be used and retained by DI Designs for the following purposes (and for other agreed purposes or required by):
(a) the provision of Services; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Services.
17.7 DI Designs may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
17.8 The information given to the CRB may include:
(a) Personal Information as outlined in 17.3 above;
(b) name of the credit provider and that DI Designs is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) 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);
(f) 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 DI Designs has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of DI Designs, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
17.9 The Client shall have the right to request (by e-mail) from DI Designs:
(a) a copy of the Personal Information about the Client retained by DI Designs and the right to request that DI Designs correct any incorrect Personal Information; and
(b) that DI Designs does not disclose any Personal Information about the Client for the purpose of direct marketing.
17.10 DI Designs 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.
17.11 The Client can make a privacy complaint by contacting DI Designs via e-mail. DI Designs 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.