Terms of Trade

1. Definitions

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. Acceptance

2. Acceptance

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. Risk

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
product.

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

8.1 The Client must supply DI Designs with adequate photography to use in the design or DI Designs will recommend a stock photography bundle to suit the project which shall be in addition to the Fee unless expressly stated otherwise in DI Designs’ estimate. 8.2 The Client shall review DI Designs’ proofs and shall notify DI Designs if the proof does not reasonably conform to the creative brief. In the event that the Client wishes to make amendments to DI Designs’ proof such amendments or modifications shall be submitted promptly to DI Designs in a clear and concise manner. 8.3 The Client agrees to provide timely responses to DI Designs after receiving status notifications from DI Designs. The Client shall have thirty (30) days to respond to each set of responses submitted to the Client for review. If after thirty (30) days the Client has failed to response, DI Designs will deem the project complete. At such time, DI Designs shall have no further obligation to the Client and the Client shall pay DI Designs all Fees and expenses associated with work performed by DI Designs.

9. Title to Incidental Items

9.1 DI Designs 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: (a) the Client has paid DI Designs all amounts owing for the Services; and (b) the Client has met all other obligations due by the Client to DI Designs in respect of all contracts between DI Designs and the Client. 9.2 Receipt by DI Designs 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 DI Designs’ ownership or rights in respect of the Incidental Items shall continue. 9.3 It is further agreed that, until ownership of the Incidental Items passes to the Client in accordance with clause 9.1: (a) the Client is only a bailee of the Incidental Items and must return the Incidental Items to DI Designs immediately upon request by DI Designs; (b) the Client holds the benefit of the Client’s insurance of the Incidental Items on trust for DI Designs and must pay to DI Designs the proceeds of any insurance in the event of the Incidental Items being lost, damaged or destroyed; (c) 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 DI Designs and must pay or deliver the proceeds to DI Designs on demand; (d) 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 DI Designs and must dispose of or return the resulting product to DI Designs as DI Designs so directs; (e) 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 DI Designs; (f) the Client irrevocably authorises DI Designs to enter any premises where DI Designs believes the Incidental Items are kept and recover possession of the Incidental Items.

10. Personal Property Securities Act 2009 (“PPSA”)

10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA. 10.2 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: (a)all Incidental Items previously supplied by DI Designs to the Client; (b) all Incidental Items will be supplied in the future by DI Designs to the Client; and (c) 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 DI Designs for Services – that have previously been provided and that will be provided in the future by DI Designs to the Client. 10.3 The Client undertakes to: (a) 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 DI Designs may reasonably require to; (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; (ii) register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii); (b) indemnify, and upon demand reimburse, DI Designs 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; (c) not register a financing change statement in respect of a security interest without the prior written consent of DI Designs; (d) 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 DI Designs. 10.4 DI Designs 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. 10.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA. 10.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA. 10.7 Unless otherwise agreed to in writing by DI Designs, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA. 10.8 The Client must unconditionally ratify any actions taken by DI Designs under clauses 10.3 to 10.5. 10.9 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.

11. Security and Charge

11.1 In consideration of DI Designs 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). 11.2 The Client indemnifies DI Designs from and against all DI Designs’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising DI Designs’ rights under this clause. 11.3 The Client irrevocably appoints DI Designs and each director of DI Designs 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.

12. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)

12.1 The Client must inspect DI Designs’ Services on completion of the Services and must within seven (7) days notify DI Designs in writing of any evident defect in the Services or Incidental Items provided (including DI Designs’ workmanship) or of any other failure by DI Designs to comply with the description of, or quote for, the Services which DI Designs was to supply. The Client must notify any other alleged defect in DI Designs’ Services or Incidental Items as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow DI Designs to review the Services or Incidental Items that were provided. 12.2 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). 12.3 DI Designs acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees. 12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, DI Designs makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. DI Designs’ liability in respect of these warranties is limited to the fullest extent permitted by law. 12.5 If the Client is a consumer within the meaning of the CCA, DI Designs’ liability is limited to the extent permitted by section 64A of Schedule 2. 12.6 If DI Designs 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 DI Designs 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. 12.7 If the Client is not a consumer within the meaning of the CCA, DI Designs’ liability for any defective Services or Incidental Items is: (a) limited to the value of any express warranty or warranty card provided to the Client by DI Designs at DI Designs’ sole discretion; (b) otherwise negated absolutely. 12.8 Notwithstanding clauses 12.1 to 12.7 but subject to the CCA, DI Designs shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of: (a) the Client failing to properly maintain or store any Incidental Items; (b) the Client using the Incidental Items for any purpose other than that for which they were designed; (c) 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; (d) interference with the Services by the Client or any third party without DI Designs’ prior approval; (e) the Client failing to follow any instructions or guidelines provided by DI Designs; (f) fair wear and tear, any accident, or act of God.

13. Intellectual Property

13.1 Where DI Designs has designed, drawn or developed Incidental Items for the Client, then the copyright in any Incidental Items shall remain the property of DI Designs. Under no circumstances may such designs, drawings and documents be used without the express written approval of DI Designs. 13.2 Where the Client provides DI Designs any materials including sketches, photographs, drawings, plans, specifications, instructions or concepts upon which DI Designs is to base the Services, the Client shall indemnify and keep indemnified DI Designs 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 DI Designs or incurred or become payable by DI Designs resulting or arising from any claim or infringement of any patent, registered design, trademark, copyright or any other property interest of a third party which may result out of the use by DI Designs of the materials. 13.3 The Client agrees that DI Designs may (at no cost) use for the purposes of marketing or entry into any competition, any Incidental Items which DI Designs has created for the Client.

14. Default and 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 a half percent (2.5%) per calendar month (and at DI Designs’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. 14.2 If the Client owes DI Designs any money the Client shall indemnify DI Designs from and against all costs and disbursements incurred by DI Designs in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, DI Designs’ contract default fee, and bank dishonour fees). 14.3 Further to any other rights or remedies DI Designs may have under this Contract, if a Client has made payment to DI Designs, 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 DI Designs 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. 14.4 Without prejudice to DI Designs’ other remedies at law DI Designs shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to DI Designs shall, whether or not due for payment, become immediately payable if: (a) any money payable to DI Designs becomes overdue, or in DI Designs’ opinion the Client will be unable to make a payment when it falls due; (b) the Client has exceeded any applicable credit limit provided by DI Designs; (c) 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 (d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

15. Cancellation

15.1 Without prejudice to any other remedies DI Designs may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions DI Designs may suspend or terminate the supply of Services to the Client. 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. 15.2 DI Designs 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 DI Designs shall repay to the Client any money paid by the Client for the Services. DI Designs shall not be liable for any loss or damage whatsoever arising from such cancellation. 15.3 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 DI Designs as a direct result of the cancellation (including, but not limited to, any loss of profits).

16. Dispute Resolution

16.1 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: (a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and (b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

17. Privacy Policy

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.

18. Service of Notices

18.1 Any written notice given under this Contract shall be deemed to have been given and received: (a) by handing the notice to the other party, in person; (b) by leaving it at the address of the other party as stated in this Contract; (c) by sending it by registered post to the address of the other party as stated in this Contract; (d) 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; (e) if sent by email to the other party’s last known email address. 18.2 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.

19. Trusts

19.1 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 DI Designs may have notice of the Trust, the Client covenants with DI Designs as follows: (a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund; (b) 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; (c) the Client will not without consent in writing of DI Designs (DI Designs will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events: (i) the removal, replacement or retirement of the Client as trustee of the Trust; (ii) any alteration to or variation of the terms of the Trust; (iii) any advancement or distribution of capital of the Trust; or (iv) any resettlement of the trust property.

20. General

20.1 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. 20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia, the state in which DI Designs has its principal place of business, and are subject to the jurisdiction of the Perth Courts in that state. 20.3 Subject to clause 12, DI Designs 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 DI Designs of these terms and conditions (alternatively DI Designs’ liability shall be limited to damages which under no circumstances shall exceed the Fee of the Services). 20.4 DI Designs may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent. 20.5 The Client cannot licence or assign without the written approval of DI Designs. 20.6 DI Designs 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 DI Designs’ sub-contractors without the authority of DI Designs. 20.7 The Client agrees that DI Designs 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 DI Designs to provide Services to the Client. 20.8 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. 20.9 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.