at+m marketing

March 1st 2021

1. INTRODUCTION

1.1 Application of these Terms and Conditions

These Terms and Conditions are incorporated into any contract between the Company and a customer of the supply of goods and/or services by the Company to the customer (“the customer”).

1.2 Interpretation

In these Terms and Conditions:

“The Company” shall mean Sprinta Print Pty Ltd, trading as at+m marketing;

”additional work” includes all work undertaken by the Company as a consequence of the customer’s variation, alternation or modification of its instructions in relation to the Order;

“Business Day” means a day on which banks are open for general banking business in the State or Territory in which the Company’s premises are located;

Company’s charge” refers in each case to the standard or usual fee charged by the Company from time to time in respect of the Order;

“Estimate” means the estimate referred to in sub-clause 2.1(b) (as amended in accordance with clause 2.4);

“freight costs and charge” includes all costs and expenses incurred by the Company in removing the Goods from its premises, whether by way of actual or attempted delivery to the customer or otherwise.

“Goods” means the final goods produced by the Company by completing the Order;

“GST” means A New Tax System (Goods and Services Tax) Act, 1999 (Cth):

“Interest Rate” means the rate of fifteen (15) per centum per annum;

“Order” means the work required to be done in order to fulfil the customer’s instructions;

“preliminary work” means all and any work performed by the Company at the customer’s express or implied request, the performance of which work was necessary to enable the Order to be commenced and which work was not within the reasonable contemplation of the Company at the time when the Company supplied the Estimate

PPSA” means the Personal Property Securities Act 2009 (Cth).

“Quote” means the quote described in clause 2.1.

1.3 General

In these Terms and Conditions, unless the context otherwise requires:

  • the singular includes the plural and vice versa;
  • a reference to a clause is a reference to a clause of these Terms and Conditions;
  • a reference to a party to these Terms and Conditions or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
  • where an expression is defined, another part of speech or grammatical form of the expression has a corresponding meaning;
  • a reference to a period of time (including, without limitation, a year, a quarter, a month and a day) is to a calendar period.

1.4 Headings

In these Terms and Conditions, headings are for convenient reference only and do not affect interpretation.

1.5 Business Day

If the day on which any act, matter or thing is to be done under this agreement is not a Business Day, that act, matter or thing:

  • if it involves a payment other than a payment which is due on demand, must be done on the preceding Business Day; and
  • in all other cases, may be done on the next Business Day.

2. QUOTES

2.1 Company to supply quote

The Company may, if requested by the Customer, give the customer a quote specifying:

  • the work required to be done in order to fulfil the Order; and
  • an estimate of the Company’s charge of the performance of such work.

2.2 Acceptance by customer

Where the Company has given the customer a Quote:

  • The Company need not commence work until the Quote has been accepted by the customer.
  • The customer may accept the Quote by instructing (orally or in writing) for the Company to commence work.
  • Acceptance by the customer of the Quote will constitute acceptance by the customer of these Terms and Conditions.

2.3 Quote evidence of instructions

If a written Quote is accepted by the customer, the work the subject of the quote shall be carried out and the customer shall pay for the work in accordance with these Terms and Conditions

2.4 The Company may revise Estimate

The Company may amend any Estimate before the Order has been completed to take into account any rise or fall in the cost of performing the Order and the Company shall notify the customer of such amendment as soon as practicable thereafter. Upon the Company giving the customer notification of such amendment such amended estimate shall be and be deemed to be the Estimate for the purposes of these Terms and Conditions.

3. APPROVALS

Where the Order includes website design development, the customer will be provided with opportunities to review the work in progress at appropriate stages.  Where the Company has provided the customer with an opportunity to review (“the review point”), the customer must notify the Company in writing of any unsatisfactory items within 21 days of the review point opportunity commencing.  If the customer does not give written notice within the time allowed of any unsatisfactory items, the work to the review point will be deemed to be approved.  Once approved, work cannot subsequently be requested and the charge in respect to that work is properly due and payable.

4. CHARGES

4.1 Invoice

When the Order has been completed, or otherwise at agreed milestones, the Company will issue an invoice to the customer for:

  • the amount of the Estimate or the part of the Estimate due at that milestone; or,
  • if no Estimate was made, for an amount representing the Company’s charge for the work done in filling the Order;

together with an invoice for any of the other charges specified in clause 4.2.

4.2 Additional Charges

In addition to the amount of the Estimate, or where no Estimate was given, in addition to the amount representing the Company’s charge for the work done, the Company may charge to the customer:

  • fees for any preliminary work performed at the customer’s request;
  • fees for additional work required to be done as a result of the customer changing his, her or its instructions, including number of design proposals;
  • fees for having to work from poor copy;
  • fees for work which involves tables or foreign language and which was not notified to the Company before the Quote was prepared;
  • fees for additional work required to be done as a result of author’s corrections, including repagination or reformatting;
  • fees and other charges for work required to be done urgently, including any overtime costs;
  • fees for handling or storing material or equipment supplied by the customer for the purpose of the Order;
  • fees for changing or correcting, in order to ensure that the Goods are properly produced, any plates, film, bromide, artwork or any documents including computer files supplied for the purpose of the Order by the customer;
  • freight costs and charges;
  • other charges, fees or disbursements referred to in these Terms and Conditions and not specified in this clause;

4.3 Under/Over supplies

  • The customer acknowledges that whilst the Company will make every endeavour to produce the exact number of items in the Order, owing to human and/or machine/computer error the number of items actually produced may be 10% over or under the number specified in the order (“a discrepancy”).
  • Where a discrepancy occurs the Company will adjust the amount charged to the customer for the Order by a pro rata amount to reflect the actual number of items produced.

5. DELIVERY

5.1 Notification

The Company shall notify the customer when the Goods are ready for collection.

5.2 Collection

The customer must collect the goods from the Company’s premises upon being notified by the Company that the goods are ready for collection. If the Company agrees to deliver the Goods the customer shall bear all freight costs and charges of such delivery.  The Company may deliver the Goods by electronic methods, including via email or upload to an online cloud based system.  Where the Company notifies the customer that delivery can be or has been performed electronically, that notification will constitute notification that the Goods are ready for collection under delivery.

5.3 Rejection

Subject to clause 8.1 the customer may only reject the Goods if they do not comply with the customer’s instructions. If the customer wishes to reject the Goods, the customer must notify the Company of the rejection:

  • (i) if the Company agrees to deliver the Goods to the customer’s premises – within 7 days of delivery (or such other time as is mutually agreed).
  • (ii) otherwise – within 7 days of notification that the Goods are ready for collection or electronic delivery (or such other time as is mutually agreed).

5.4 Risk

The risk in the Goods passes to the customer:

  • if the Company delivers the Goods to the customer’s premises – at the time of delivery;
  • otherwise – at the time the Company notifies the customer that the Goods are ready for collection or electronic delivery.

If the customer is entitled to reject the Goods and rejects the Goods in accordance with these Terms and Conditions, risk reverts to the Company at the time the customer notifies the Company that the Goods are rejected.

6. PAYMENT

6.1 Time for payment

The customer must pay to the Company the total amount set out in the invoice:

  • within 30 days of receipt of the invoice for the Company’s charge;
  • within 14 days of receipt of the invoice for expenses incurred by the Company on behalf of the customer with third parties.

6.2 Interest

The Company may charge interest at the Interest Rate on amounts not paid within the time specified in clause 6.1.

6.3 Advance and progress payments

  • The Company may issue an invoice for the all or part of the Estimate before commencing the Order where the Company has not previously carried out work for the customer or where the Company considers it otherwise prudent to do so. No advance payment is refundable where the customer terminates this agreement, other than due to the default of the Company.  Where this agreement is terminated for any other reason, any advance payment is only refundable to the extent the Company has not fulfilled its obligations pursuant to these Terms and Conditions
  • The Company may, in the event that the Company is of the view that completing the Order will take more than a month, at any time before the Order is completed, issue one or more invoices for a proportion of the amount of the Estimate (the proportion to be at the Company’s discretion) and require that the proportion of the Estimate to be paid in advance of any further work being done.
  • If the Order is suspended for more than 30 days at the request of the customer or as a result of something for which the customer is responsible, the Company may issue an invoice for the Company’s charge for the work already done, out of pocket expenses and for other additional charges referred to in clause 4.2 hereof.
  • Where the customer fails to supply materials, information or any other necessary consents, which delays or otherwise impedes the progress of the Order, the Company may issue an invoice for the Company’s charge for work already done, out of pocket expenses and other for other costs additional charges referred to in clause 4.2 hereof.

7. NON-PAYMENT

7.1 Damages

The customer must pay to the Company any costs, expenses or losses incurred by the Company as a result of the customer’s failure to pay to the Company all sums outstanding from the customer to the Company (including, without limiting the generality of the obligation set out in this clause, any debt collection and legal costs).

7.2 Retention of title

Until the customer has paid all sums outstanding in relation to the Goods:

  • Title in the Goods shall not pass from the Company to the customer.
  • The Company will have a Security Interest in the Goods pursuant to clause 11.
  • If the Goods are in the customer’s possession, the customer shall hold the Goods as trustee for the Company and must store the Goods so that they are clearly identifiable as the property of the Company.
  • The Company may call for and recover possession of the Goods (for which purposes the Company’s employees or agents may enter the customer’s premises and take possession of the Goods without liability to the customer) and the customer must deliver the goods to the Company if so directed by the Company.
  • The customer may, in the ordinary course of the customer’s business, sell the Goods to a third party but:
  • (i) the proceeds of sale to the third party shall be held by the customer as trustee for the Company and the customer shall account to the Company for those sums; and
  • (ii) if the Company requires, the customer shall assign to the Company the custom’s claim against the third party and shall execute all documents necessary to effect that assignment.

7.3 General lien

The Company shall, in respect of all sums owed by the customer to the Company hereunder, have a general lien on all property of the customer in the Company’s possession and may, after 14 days’ notice to the customer, sell that property and apply the proceeds (net of any sale costs) in satisfaction of all or any part of the sums owed. In the event that any of the customer’s property held by the Company as aforesaid enjoys copyright protection in favour of the customer, the customer hereby grants to the Company a licence to exercise the rights conferred on the Company under this clause.

8. LIABILITY

8.1 Proofs

If the Company submits to the customer a proof of the goods the Company will not be responsible for any errors in the Goods which appeared in the proof and which were not corrected by the customer before the Order was completed.

8.2 Non-excludable Rights

The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the customer in relation to the provision of the goods or of services which cannot be excluded, restricted or modified by agreement (“Non-excludable Rights”).

8.3 Disclaimer of Liability

The Company disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the customer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other that any Non-excludable Rights. To the extent permitted by law, the liability of the Company for a breach of Non-excludable Right is limited, at the Company’s option to the supplying of the goods and/or any services again or payment of the cost of having the Goods and/or any services supplied again.

8.4 Indirect losses

Notwithstanding any other provision of these Terms and Conditions, the Company is in no circumstances (whatever the cause) liable in contract, tort (including without limitation, negligence or breach of statutory duty) or otherwise to compensate the customer for:

  • any increased costs or expenses;
  • any loss of profit, revenue, business, contracts or anticipated savings
  • any loss or expense resulting from a claim by a third party: or
  • any special, indirect or consequential loss or damage of any nature whatsoever caused by the Company’s failure to complete or delay in completing the Order or to deliver the Goods.

8.5 Electronic data

Without limiting the generality of the foregoing clauses, the Company will not be liable to the customer for loss, however caused, of any data stored on disks, tapes, drives, cloud based storage or other media supplied by the customer to the Company.

8.6 Customer’s property

Subject to clause 8.5, the Company will not be liable for the damage, loss, destruction of any property of the customer in the Company’s possession unless the loss or damage is due to the failure of the Company to exercise due care and skill in handling or storing the property.  The Company will not be responsible to recover items such as typesetting, colour separations, broadcast dubs from media and suppliers once dispatched.

8.7 Force Majeure

The Company will have no liability to the customer in relation to any loss, damage or expense caused by the Company’s failure to complete the Order or to deliver the Goods as a result of fire, flood, tempest, earthquake, riot, civil disturbance theft, crime, strike, lockout, breakdown, war, the inability of the Company’s normal suppliers to supply necessary materials, pandemic, epidemic or any other matter beyond the Company’s control.

9. GENERAL MATTERS

9.1 Alterations to style, etc

If, before the quote is prepared, the customer does not give the Company specific instructions in relation to style type or layout:

  • the Company may use any style, type and layout which, in the Company’s opinion is appropriate; and
  • the Company may charge an additional amount for any additional work required to be done (including the production of additional proofs) as a result of the customer subsequently altering the style, type, layout used by the Company.

9.2 Overset

The customer must pay for overset matter (being matter produced on the customer’s instructions but not used in a publication for which it was intended). The customer may instruct the Company to retain overset matter for future issues of the publications or to discard the overset matter.

9.3 Outside work 

If the Company has to obtain goods (including typefaces, bromides, film, plates, ornaments or artwork) and/or services not normally stocked or supplied by the Company from a third party in order to carry out the Order:

  • To the maximum extent permitted by law, the Company will not be liable for any breach of these Terms and Conditions were that breach is caused or connected to the supply by the third party of those goods and/or services.  Where liability cannot be excluded, the liability of the Company is limited, at the Company’s option to the supplying of the goods and/or services again or payment of the costs of having the goods and/or services supplied again.
  • The customer must pay for such goods and/or services.
  • Property in any such goods obtained from a third party and incorporated into the Goods passes to the Company at the time of incorporation.

9.4 Material supplied by the customer

If the Company and the customer agree that the customer is responsible for supplying materials or equipment for the purposes of the Order:

  • The customer must supply sufficient quantities of materials to allow for spoilage, such quantity to be specified by the Company.
  • The Company will not normally count or check the materials and if requested by the customer to do so, may charge for counting or checking.
  • The Company will not be responsible for any defects in the Goods which are caused by defects in or the unsuitability of materials or equipment supplied by the customer.
  • Property in any materials supplied by the customer and incorporated into the Goods passes to the Company at the time of incorporation.

9.5 Property left with Company

If the customer leaves property in the Company’s possession and does not collect the property within 28 days of notice from the Company to the Customer to do so, the Company may dispose of or sell the property and retain any proceeds of sale as compensation for holding and handling the property.

9.6 Responsibility to insure

The Company has no obligation to insure any property of the customer in the Company’s possession. The customer must pay the cost of any insurance arranged by the Company at the request of the customer.

9.7 Ancillary materials

Unless the Company and customer agree otherwise, drawings, sketches, paintings, photographs, design, typesetting, dummies, models, negatives, positives, blocks, engravings, stencils, dies, plates or cylinders, electros, stereos, discs, tapes, compact discs, or other media or data and other material produced by the Company in the course of or in preparation for performing the Order (whether or not in fact used for the purposes of performing the Order) are the property of the Company.

9.8 Rights to Intellectual Property in the Goods

  • The Company, in order to, and in the course of providing services will be the original author of electronic works, concepts and designs devised and produced for our clients.  As per the advertising, creative agency standards, the Company remains the owner of all working files.
  • Unless specifically agreed in writing to the alternative by the parties, the client remains the owner of the end product, final PDF files and any material supplied by the customer.
  • Logo, branding elements and electronic files, including TV, radio and web based, will be supplied, after sign off, in formats suitable for client use. All other approved artwork will be supplied as high resolution PDF files which will be suitable for production output.  These files hold our intellectual property, technical skills and point of difference in the marketplaces.

9.9 Copyright and other intellectual property rights

  • Copyright in all artistic and literary works authored by the Company shall be the property of the Company.
  • The customer is hereby granted a non-exclusive license to use the copyright in any literary and/or artistic works authored by the Company of the purposes of the Order however the exercise of such license shall be conditional upon the Company having received all monies due to the Company under these Terms and Conditions.  
  • The customer:
  • (i) warrants that the customer has copyright in or a licence to authorise the Company to reproduce, all copy, graphic images, registered company logos, names, trademarks, artistic and literary work, or any other materials (collectively “the materials”)  supplied by the customer to the Company for the purpose of the Order and the customer hereby expressly authorises the Company to reproduce the materials for the purposes aforesaid;
  • (ii) hereby indemnifies and agrees to keep indemnified the Company against all liability, losses or expenses incurred by the Company in relation to or in any way directly or indirectly connected with any breach of copyright or other intellectual property rights associated with the materials; and

9.10 Ideas

The customer must keep confidential and not use any ideas communicated by the Company to the customer without the Company’s written consent.

9.11 Electronic/magnetic media

All disks, tapes, compact disks or other media (other than media supplied by the customer) used by the Company to store data for the purposes of completing the Order are the property of the Company. The customer cannot require the Company to supply to the customer any data so stored. In the event that the Company does supply any data so stored or created the Company may charge for supplying such data to the customer.

9.12 Search Engines

The Company does not guarantee any specific position in search engine results for the customer’s website. The Company performs, basic search engine optimisation according to current best practice.

9.13 Subcontracting

The Company reserves the right to subcontract any part of the Order that we have agreed to perform for you as and if the Company sees fit.

9.14 Non-Disclosure

The Company (and any subcontractors the company engages) agree that the Company will not at any time disclose any of the customer’s confidential information to any third party without the customer’s authorisation. 

9.15 Web Hosting, SSLs and Domain Hosting

  • Within 30 Days of the expiry of the customers’ hosting, domain name or SSL certificate (“the Service”), the Company will automatically generate a renewal of the agreement for the Service for a further identical period to continue meet the customer’s website requirements, unless notified in writing by the customer a minimum of 30 days prior to the expiry date.
  • The customer will be invoiced for the renewed Service. Failure to pay the invoice within its terms may cause interruptions to the Service, 
  • The customer acknowledges that most associated costs of the Service are billed to the Company annually and will not be refunded on any cancellation.  Other costs in providing the Service are incurred on renewal and not spread throughout the term.  Where the customer cancels the Service midterm, the customer will not be entitled to any credits or reimbursements for the balance of the term still left to be completed. 

9.16 Cross Browser Compatibility

By using current versions of well supported content management systems such as “Joomla”, we endeavour to ensure that the web sites we create are compatible with all current modern web browsers such as the most recent versions of Internet Explorer, Firefox, Google Chrome and Safari. Third party extensions, where used, may not have the same level of support for all browsers. Where appropriate we will substitute alternative extensions or implement other solutions, on a best effort basis, where any incompatibilities are found.

9.17 E-commerce Websites

The customer is responsible for complying with all relevant laws relating to e-commerce, and to the full extent permitted by law will hold harmless, protect, and defend and indemnify the Company and its subcontractors from any claim, penalty, tax, tariff loss or damage arising from the customer or the customer’s use of internet electronic commerce.  

9.18 Storage of electronic data

The Company will not be responsible for storing any data on disks, tapes, compact disks or other media when the Order had been completed. If the Company agrees to store such data, the Company may charge for doing so.

9.19 No Waiver

A power or right is not waived solely because the party entitled to exercise that power or right does not do so. A single exercise of a power or right will not preclude any other or further exercise of that power or right or of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.

9.20 Severability

Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.

9.21 Governing law and jurisdiction

These Terms and Conditions are governed by the law in force in the State of Tasmania and the parties submit to the non-exclusive jurisdiction of the courts of that State and any courts which may hear appeals for those courts in respect of any proceedings in connection with these Terms and Conditions.

9.22 Order of priority

In the case of any inconsistency or conflict between these Terms and Conditions and any other contractual document entered into between the parties the following order of priority shall be as follows:

  • Agreement for Provision of Services;
  • Letter of Appointment & Confidentiality Agreement
  • These Terms and Conditions;
  • Credit Application Form;
  • Invoice or other purchase order or quotation documentation;

9.23 Privacy

The terms of the Company’s Privacy Policy (available at www.atmmarketing.com.au) are incorporated as terms of this agreement, including the right for the Company to modify the terms thereof from time to time.  Where the Company does so, the Company will not be required to give you notice of the changes provided that the amended terms of the policy are made publicly available on the Company’s website.  The terms as amended, will then form part of this agreement.

10. GOODS AND SERVICES TAX

10.1 All amounts are GST inclusive amounts

Unless otherwise stated, all amounts expressed or described in these Terms and Conditions are GST inclusive amounts.

10.2 Out of pocket expenses are GST Inclusive

All out of pocket expenses referred to in these Terms and Conditions are GST inclusive out of pocket expenses.

10.3 Company to assist Customer

The Company will do all things reasonably available to it to assist the customer to claim on a timely basis any input tax credits (if any) the customer may be entitled to claim for any acquisition of goods and services from the Company. This includes the Company maintaining its registered status for GST purposes and issuing tax invoices for supplies made under these Terms and Conditions on a timely basis as reasonably requested by the customer.

11. SECURITY AND PPSA

11.1 Definitions  

Where a particular section or term existing or defined in the PPSA is used in this agreement, it is deemed to be that section or term as used or defined in the PPSA as amended, renumbered or replaced from time to time.

11.2 Existence of Security Agreement

The Customer acknowledges and agrees that this agreement constitutes a security agreement in relation to the Company’s Security Interest in all present and after acquired goods in accordance with the PPSA.  The Customer agrees to grant a Purchase Money Security Interest to the Company.

11.3 Grant of Security Interest   

For the avoidance of any doubt, the Customer acknowledges and agrees that it grants to the Company a Security Interest in all goods supplied by the Company to the Customer  (whether now or in the future) and in any proceeds from the sale of those goods.

11.4 Exclusion of provisions       

To the extent permitted by law, the following provisions of the PPSA do not apply, and for the purposes of section 115 of the PPSA are contracted out of this agreement;

  • Section 95 (notice of removal of accession), to the extent that it requires the Company to give notice to the Customer,
  • Section 96 (retention of accession), and
  • Section 125 (obligation to dispose of or retain collateral);
  • Section 130 (notice of disposal), to the extent that it requires the Company to give a notice to the Customer;
  • Section 132(3)(d) (contents of statement of account after disposal);
  • Section 132(4) (statement of account if no disposal);
  • Section 135 (notice of retention);
  • Section 142 (redemption of collateral);
  • Section 143 (reinstatement of security agreement).

11.5 Application of proceeds

For the purposes of section 14(6) of the PPSA, the Customer (and the Company) agree that any payments received from the Customer by the Company pursuant to or in any way connected with this agreement, will be applied in such order as the Company deems fit in its absolute discretion.

11.6 Customer’s obligation          

The Customer consents to:

  • and agrees to execute any other document or instrument required to give effect to the Security Interests created by this agreement; and
  • the registration with the relevant authority or public register of any Security Interest created by this agreement or any other document required to give effect to the Security Interest created by this agreement, including without limitation the registration of a financing statement or financing change statement on the Personal Property Securities Register.

11.7 Costs

The Customer must pay all costs of and incidental to the preparation, execution and registration of any instrument which is executed for the purpose of giving effect to this clause and must also pay all costs incidental to the withdrawal, discharge or release of such instrument.