1.1 All Goods and/or Services of Pretty Pollution Pty Ltd, whether gratuitous or not, are supplied subject to these Conditions and:
(a) The provisions of Part I shall apply to the provision of all and any Goods and/or Services.(b)
The provisions of Part II shall only apply to the provision of Printing Services.(c)
The provisions of Part III shall only apply to the provision of Web Development Services.
2.1 "PP" shall mean Pretty Pollution Pty Ltd and its successors and assigns.
2.2 "Client" shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any proposal, quote or other form as provided by PP to the Client.
2.3 "Guarantor" means that person (or persons), or entity who agrees to be liable for the debts of the Client on a principal debtor basis.
2.4 "Materials" shall mean all data, graphics, pictures, trade marks, Software and other materials to be incorporated in the Client’s Web Site or print material (including, but not limited to), user data created by the operation of the Client’s Web Site.
2.5 "Goods" shall mean Goods supplied by PP to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, estimates, work authorisation or any other forms as provided by PP to the Client.
2.6 "Services" shall mean all services supplied by PP to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
2.7 "Software" shall mean the programs and other operating information (including documentation) used by a computer.
2.8 "Price" shall mean the cost of the Goods and/or Services as agreed between PP and the Client subject to clause 4 of this contract.
3.1 Any instructions received by PP from the Client for the supply of Goods and/or Services and/or the Client’s acceptance of Goods and/or Services supplied by PP shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and apply to the provision of any subsequent Goods and/or Services provided by the Seller to the Buyer. This agreement can only be amended or terminated in writing and with the written consent of PP.
3.4 The Client undertakes to give PP at least fourteen (14) days notice of any change in the Client’s name, address and/or any other change in the Client’s details.
4.1 At PP’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by PP to the Client in respect of Goods and/or Services supplied; or
(b) PP’s estimated Price (subject to clause 4.2) which shall be agreed in writing between PP and the Client prior to the commencement of the works.
4.2 PP reserves the right to change the Price in the event of a variation to PP’s estimated Price. The final Price can only be ascertained upon completion of the works. Variances in the estimated Price of more than ten percent (10%) will be subject to client approval before proceeding with the works.
4.3 At PP’s sole discretion a non refundable deposit may be required.
4.4 Time for payment for the Goods and/or Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.
4.5 Payment will be made by cheque, or by bank cheque, or by credit card (plus a surcharge of up to five percent (5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and PP.
4.6 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5.1 At PP’s sole discretion delivery of the Goods and/or Services shall take place when the Client takes possession of the Goods and/or Services at the Client’s address (in the event that the Goods and/or Services are delivered by PP).
5.2 At PP’s sole discretion the costs of delivery are included in the Price.
5.3 The Client shall make all arrangements necessary to take delivery of the Goods and/or Services whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods and/or Services as arranged then PP shall be entitled to charge a reasonable fee for redelivery.
5.4 PP may deliver the Goods and/or Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
5.5 Delivery of the Goods and/or Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.6 The failure of PP to deliver shall not entitle either party to treat this contract as repudiated.
5.7 PP shall not be liable for any loss or damage whatever due to failure by PP to deliver the Goods and/or Services (or any of them) promptly or at all.
6.1 If PP retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, PP is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by PP is sufficient evidence of PP’s rights to receive the insurance proceeds without the need for any person dealing with PP to make further enquiries.
6.3 Where the Client expressly requests PP to leave Goods outside PP’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.
7.1 Whilst every care is taken by PP to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proof reading of the Goods. PP shall be under no liability whatsoever for any errors not corrected by the Client in the final proof reading. Should the Clients alterations require additional proofs this shall be invoiced as an extra.
7.2 When style, type or layout is left to PPs judgement, then the Client makes further alterations to the copy this will be invoiced as an extra.
7.3 While every effort will be taken by PP to match PMS colours, PP 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.
8.1 PP and Client agree that ownership of the Goods and or Services shall not pass until:
(a) the Client has paid PP all amounts owing for the particular Goods and or Services; and
(b) the Client has met all other obligations due by the Client to PP in respect of all contracts between PP and the Client.
8.2 Receipt by PP 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 PP’s ownership or rights in respect of the Goods and/or Services shall continue.
8.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until PP shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from PP to the Client PP may give notice in writing to the Client to return the Goods or any of them to PP. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) PP shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to PP then PP or PP’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as PP has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for PP; and
(f) the Client shall not deal with the money of PP in any way which may be adverse to PP; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of PP; and
(h) PP can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that PP will be the owner of the end products.
9.1 The Client hereby disclaims any right to rescind, or cancel any contract with PP or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by PP and the Client acknowledges that the Goods and/or Services are bought relying solely upon the Client’s skill and judgement.
10.1 The Client shall inspect the Goods and/or Services on delivery and shall within seven (7) days of delivery (time being of the essence) notify PP of any alleged defect, shortage in quantity, damage or failure to comply with the description or estimate. The Client shall afford PP an opportunity to inspect the Goods and/or Services within a reasonable time following delivery if the Client believes the Goods and/or Services are defective in any way. If the Client shall fail to comply with these provisions the Goods and/or Services shall be presumed to be free from any defect or damage. For defective Goods and/or Services, which PP has agreed in writing that the Client is entitled to reject, PP’s liability is limited to either (at PP’s discretion) replacing the Goods and/or Services or repairing the Goods and/or Services.
10.2 Goods will not be accepted for return other than in accordance with 10.1 above.
11.1 To the extent permitted by statute, no warranty is given by PP as to the quality or suitability of the Goods and/or Services for any purpose and any implied warranty, is expressly excluded. PP shall not be responsible for any loss or damage to the Goods and/or Services, or caused by the Goods and/or Services, or any part thereof however arising.
11.2 Once accepted by the Client, PP’s written estimate shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, PP shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
11.3 PP shall be under no liability whatsoever to the Client for any variation (beyond the reasonable control of PP) in colours between the approved prototype and the finished Goods.
12.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable
13.1 Drawings, sketches, painting, photographs, concepts, designs or typesetting furnished by PP, dummies, models or the like devices made or procured and manipulated by PP and negatives, positives, blocks, engravings, stencils, dies, plates or cylinders made from PP’s original design, or from a design furnished by the Client, remain the exclusive property of PP unless otherwise agreed upon in writing.
13.2 Sketches and dummies submitted by PP on a speculative basis shall remain the property of PP. They shall not be used for any purpose other than that nominated by PP and no ideas obtained there from may be used without the consent of PP. PP shall be entitled to compensation from the Client for any unauthorised use of such sketches and dummies.
13.3 PP maintains intellectual property rights on all designs and concepts that were proposed to the Client but not chosen as part of their final product and may utilise any such designs and concepts as PP sees fit.
13.4 Where PP has designed or drawn Goods for the Client then the Client undertakes to acknowledge PPs design or drawings in the event that images of the Goods are utilised in advertising or marketing material by the Client.
13.5 The Client hereby authorises PP to utilise images of the Goods designed or drawn by PP in advertising, marketing, or competition material by PP but shall not be used by existing or past employees of PP.
14.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
14.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify PP from and against all costs and disbursements incurred by PP in pursuing the debt including legal costs on a solicitor and own Client basis and PP’s collection agency costs.
14.3 Without prejudice to any other remedies PP may have, if at any time the Client is in breach of any obligation (including those relating to payment), PP may suspend or terminate the supply of Goods and/or Services to the Client and any of its other obligations under the terms and conditions. PP will not be liable to the Client for any loss or damage the Client suffers because PP has exercised its rights under this clause.
14.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
14.5 Without prejudice to PP’s other remedies at law PP shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to PP shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to PP becomes overdue, or in PP’s opinion the Client will be unable to meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
15.1 Despite anything to the contrary contained herein or any other rights which PP may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to PP or PP’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that PP (or PP’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should PP elect to proceed in any manner in accordance with this clause and/or its subclauses, the Client and/or Guarantor shall indemnify PP from and against all PP’s costs and disbursements including legal costs on a solicitor and own Client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint PP or PP’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 15.1.
16.1 PP may cancel any contract to which these terms and conditions apply or cancel delivery of Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Client. On giving such notice PP shall repay to the Client any sums paid in respect of the Price. PP shall not be liable for any loss or damage whatever arising from such cancellation.
16.2 In the event that the Client cancels delivery of Goods and/or Services the Client shall be liable for any loss incurred by PP (including, but not limited to, any loss of profits) up to the time of cancellation.
16.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
17.1 The Client and/or the Guarantor/s agree for PP to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by PP.
17.2 The Client and/or the Guarantor/s agree that PP may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by 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 credit worthiness of Client and/or Guarantor/s.
17.3 The Client consents to PP being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 The Client agrees that personal credit information provided may be used and retained by PP for the following purposes and for other purposes as shall be agreed between the Client and
PP or required by law from time to time:
(a) provision of Goods and/or Services; and/or
(b) marketing of Goods and/or Services by PP, its agents or distributors in relation to the Goods and/or Services; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods and/or Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods and/or Services.
17.5 PP may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
18.1 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.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
18.3 PP shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by PP of these terms and conditions.
18.4 In the event of any breach of this contract by PP the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods and/or Services.
18.5 The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by PP.
18.6 PP may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.7 PP reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which PP notifies the Client of such change.
18.8 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.
18.9 The failure by PP to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect PP’s right to subsequently enforce that provision.
19.1 When estimates are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other good copy, any extra work or cost caused by any variation by the Client of his original instructions or by the manuscript copy being, in PPs opinion, poorly prepared or by the Client’s requirements being different from those originally submitted or described may be charged to the Client and shown as extras on the invoice.
19.2 All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client.
19.3 Any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Client and shown as extras on the invoice.
19.4 Unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at the Clients request for the job.
19.5 Where the performance of any contract with the Client requires PP to obtain Goods or Services from a third party, the contract between PP and the Client shall incorporate and shall be subject to the conditions of supply of such Goods and Services to PP, and the Client shall be liable for the cost in full including PP’s margin of such Goods or Services.
19.6 The Customer accepts that they are able to request a printed proof of the designs and is responsible for ensuring the final material is without defect or error prior to printing. PP shall make available finalised print-ready designs to enable the Client to proof the final product.
19.7 PP shall not be held liable for inks wearing off through general wear and tear.
20.1 Where the Client supplies materials, adequate quantities shall be supplied to cover spoilage. Sheets and other materials shall not be counted or checked when received unless requested by the Client in writing. An additional charge may be made by PP in respect of any such counting or checking requested by the Client.
20.2 In the case of property and materials left with PP without specific instructions, PP shall be free to dispose of them at the end of twelve months after his receiving them and to accept and retain the proceeds, if any, to cover his own costs in holding and handling them.
20.3 Where materials or equipment are supplied by the Client PP accepts no responsibility for imperfect work caused by defects in or unsuitability of such materials or equipment.
20.4 Any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Client deemed necessary by PP to ensure correctly finished work shall be invoiced as an extra.
21.1 "Prohibited Content" means any content on a Web Site that:
(a) is, or could reasonably be considered to be, in breach of the Broadcast Services Amendment (Online Service) Act 1999 (Cth); the Trade Practices Act 1974 (Cth); or any other applicable law or applicable industry code; or
(b) contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
(c) is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights.
21.2 "Web Site" means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
22.1 Notwithstanding anything herein, the Intellectual Property Rights in PP’s Materials and PP’s Routines do not vest in the Client and there is no assignment of the Intellectual Property Rights in PP’s Materials or PP’s Routines to the Client. PP hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use and reproduce PP’s Materials and PP’s Routines for the purposes of this agreement only.
22.2 Where PP has provided Software, PP retains ownership of the Software, but grants a licence to the Client for use of the Software. The Client will use any Software supplied by PP strictly in terms of the licence under which it is supplied and shall not modify, change or copy any such Software. The Client will use any third-party Software supplied by PP, and identified as such, strictly in terms of the licence under which it is supplied.
22.3 Where PP has provided photographic (digital or otherwise) images for the Client, at PPs sole discretion any such images may be subject to ongoing licence payments for use of such images. The period of any such licence is determined by PP from time to time.
23 Business Catalyst exit fees exist for moving websites out of the PP Partner Portal. Fees at the discretion of Pretty Pollution
23.1 Upon approval of the Specifications and estimate in accordance with this agreement, PP will:
(a) use its best endeavours to develop the Web Site in accordance with the Development Stages; and
(b) to the extent specified in the Specifications, negotiate and procure Third Party Agreements on behalf of the Clients.
23.2 If development of the Client’s website has been completed and uploaded, but not paid for within thirty (30) days of completion, PP will remove the website until full payment is received.
24.1 The Clients will, in addition to any other obligations expressed in this agreement, have the following responsibilities:
(a) provision of all data to be incorporated into the Web Site;
(b) provision of logos, designs, graphic and related materials to be incorporated into the Web Site; and
(c) provision of any other information, ideas or suggestions which are to be expressly considered by PP in developing the Web Site.
24.2 The Clients will ensure that PP is given such information and assistance as PP reasonably requires to enable it to construct and maintain the Web Site.
24.3 PP will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Web Site which is attributable to:
(a) incorrect information provided by the Client, either pursuant to this clause or otherwise; or
(b) failure by the Client to provide relevant information, either pursuant to this clause or otherwise; or
(c) any 3rd party Materials used by PP in creation of the Web Site.