The Collaborative Agency Pty Ltd (ACN 144 584 092) (“Collaborative Agency” or “Collab Agency” or “us” or “our”) will provide products and services to you the Client on the terms and conditions as set out in these Trading Terms and Conditions.
These Trading Terms and Conditions (“Terms and Conditions”) constitute the entire terms of the agreement between Collaborative Agency and the Client and is governed by the laws of the state set out in the summary on the previous page, for the Goods and Services supplied by us to you (the “Goods and Services”) and the services supplied by us to you (the “Services”). The Client may not sub-contract, assign or vary its rights under the Terms and Conditions without the prior written consent of Collaborative Agency. In the event of any ambiguity, conflict or confusion between the purchase or written order issued by the Client for the supply of the Goods and Services and/or the Services, these Terms and Conditions shall prevail.
2. Orders, Costs and Payment
2.1 No price list, range, book, catalogue or quotation given by Collaborative Agency shall constitute an offer to supply Goods and Services to the Client.
2.2 Any order for the supply of Goods and Services must be in writing and shall not be binding upon Collaborative Agency until the Client has signed and returned our quotation which will detail all prices, the part of the order accepted, pricing and the proposed delivery date of the stock ordered (“Quotation Confirmation”).
2.3 All orders placed with Collaborative Agency by the Client shall be deemed to be an offer by the Client to purchase the Goods and Services and Services subject to these Terms and Conditions.
2.4 The Goods and Services and Services supplied shall be as specified in the Quotation Confirmation.
2.5 At our sole discretion a deposit may be required. Any special terms concerning payment by the Client will be detailed on page 1 of the summary page which forms part of these Terms and Conditions.
2.6 In the event that no special terms of payment are listed on page 1 per clause 2.5 payment shall be due thirty days from the date of invoice unless otherwise agreed in writing.
2.7 The Client will be required to pay in full the quoted price for any customised equipment or specific order prior to Collaborative Agency acquiring the equipment or order.
2.8 Any payment made by credit card shall incur a processing fee of 2.5% in addition to the amount paid by credit card.
2.9 Should payment remain outstanding beyond our payment terms set out above, the Client agrees to pay interest at the rate of 4% per year above the 60 day Bank Bill Swap Reference Rate last published on or before that day in The Australian Financial Review (of if no such rate is published, another rate set by Collaborative Agency in good faith).
3. Implied Terms
The Client agrees that all warranties expressed or implied by statute, common law, equity or trade custom or usage or otherwise howsoever are to the extent permitted by law excluded. Except only for those rights and remedies that the Client has in respect of the Goods and Services under the Competition and Consumer Act 2010 (the “CCA”), Fair Trading Act 1984 (Vic) or the Goods and Services Act 1958 (Vic) as amended, or any other similar Federal or State statute and which cannot be lawfully excluded, restricted or modified:
a) the Goods and Services are provided for use to the Client on an as is where is basis and all conditions and warranties, whether statutory or otherwise, are excluded in relation to the Goods and Services;
b) without limiting Clause 5(a) Collaborative Agency warrants that it will provide the Goods and Services with reasonable care and skill. Collaborative Agency makes no express or implied representation that the Goods and Services are fit for purpose or that the Goods and Services will not cause harm or injury whether direct or indirect to any person who uses or otherwise comes in contact with the Goods and Services whether directly or indirectly; and
c) Collaborative Agency is not liable to the Client for any loss whatsoever, including any damage, loss, claim, liability, cost or expense (whether direct or indirect, consequential or incidental) loss of profit, revenue, anticipated savings, contract, opportunity or goodwill (the ‘Loss”) which the Client suffers, incurs or is liable for in connection with the use of the Goods and Services.
4. Limitation of Liability
4.1 Other than as provided for in these Terms and Conditions, Collaborative Agency shall not be liable to the Client whether in contract (including under any indemnity or warranty) in tort, including negligence and under statute, for any loss or damage, whether direct, indirect, secondary or consequential, whether or not reasonably foreseeable, reasonably contemplatable caused as a result of reliance by the Client or any third party on the Goods and Services or its results.
4.2 The provisions of this clause shall not apply insofar as their application is prevented by the CCA, and in particular section 64 of the Australian Consumer Law (“ACL”).
4.3 Where our Goods and Services are of a kind ordinarily acquired forcommercial use or consumption our liability arising from consumer guarantees in the Completion and Consumer Act 2010, is limited, at our election, to either:
a) replacing the Goods and Services or supplying equivalent Goods and Services; or
b) repairing the Goods and Services or agreeing to pay the cost of repair.
4.4 If Collaborative Agency shall be held to be liable to the Client in contract including under any indemnity or warranty, in tort (including negligence), under statute or otherwise for any loss or damage, cost or expense whatsoever and howsoever arising in connection with these Terms and Conditions, such liability shall be limited to and shall not exceed the aggregate total of the amount actually paid by the Client to Collaborative Agency (and received by Collaborative Agency) pursuant to these Terms and Conditions.
4.5 Collaborative Agency shall not be liable for any delay in performing an obligation if such delay is caused by circumstances beyond its reasonable control and Collaborative Agency shall not be liable for and shall have no responsibility in respect of the acts, omissions or defaults of its sub- contractors and third party products and any action against Collaborative Agency in connection with these Terms and Conditions must be commenced within eighteen (18) calendar months of the cause of action arising.
4.6 If the Client has not advised Collaborative Agency of any issue with any order delivered within 7 days, Collaborative Agency will have no liability for any loss or damage by reasons of incomplete numbers or otherwise.
6.1 Collaborative Agency reserves the right to charge interest on any outstanding sum in accordance with Clause 2, without notice to the Client.
6.2 Should any payment made be dishonoured, you shall be liable to Collaborative Agency for any dishonor fees incurred by Collaborative Agency.
6.3 In the event that:
a) Collaborative Agency consider that there is a material risk that you will be unable to pay any amount owing to us and Collaborative Agency give you notice of this opinion; or
b) You fail to make due payment on any invoice supplied by us by the due date; or
c) You are a an individual and you commit an act of bankruptcy; or
d) You are a company and it has an administrator, manager, trustee, official manager or receiver, liquidator or any other person authorised to enter into possession or control of you; or
e) You have a judgment entered against you in any court;
f) A secured creditor seizes or takes possession of any collateral asset in your possession as a security obligation under a financing contract; or
g) You enter an invoice finance or factoring arrangement without Collaborative Agency’ written consent
this shall be a default.
6.4 In the event of a default, Collaborative Agency may without prejudice to any other rights it may have do any or all of the following:
a) Seek the repayment of all monies accrued and owing by you and such amounts will become immediately due and payable without any demand being required;
b) Withdraw credit facilities that may have been extended to you;
c) Withhold any further deliveries of Goods and Services;
d) In respect of Goods and Services delivered, enter onto your premises with full authority from you to recover and resell the Goods and Services for our own benefit as per our right of entry contained in Clauses 7.6 and 7.7;
(e) Suspend and or terminate the performance of any other orders that you may have;
(f) cancel all rebates, discounts and like allowances allowed in respect of any unpaid invoices;
(g) apply as an offset any credits which may be due to you by Collaborative Agency against any amounts owed by you to Collaborative Agency;
(h) commence legal proceedings, including winding up proceedings, and recovery of legal costs on a solicitor and own client basis.
The Client and the Guarantor assume sole responsibility for and indemnify and save harmless Collaborative Agency and its Related Bodies Corporate, shareholders, officers, directors, employees, agents and assignees (collectively “Supplier Affiliates”) from any and all claims, liabilities, losses, expenses, responsibility and damages, including all legal costs and expenses on a solicitor/client basis, Collaborative Agency or Supplier Affiliates may suffer or incur as a result of or relating to the Client’s relations with its suppliers, Clients and other third parties; or any breach of these Terms and Conditions by the Client.
8. Purchasers Warranty
The Client warrants that all information provided to Collaborative Agency is accurate, and the Client shall indemnify Collaborative Agency against any Loss, claims, damages or expenses arising out of or in connection with any breach of this warranty.
Failure by Collaborative Agency to insist upon strict performance of any term or condition shall not constitute a waiver of any rights of Collaborative Agency under that term or condition, or a waiver or any other provision or of any other provision.
10. Privacy Act
10.1 You agree that Collaborative Agency may obtain from a credit reporting agency a credit report containing personal credit information about you and the guarantor in relation to any credit provided by us. You agree that Collaborative Agency may exchange information about you with those credit providers named in the application for a credit account or named in a consumer credit report issued by a reporting agency for the following purposes:-
a) To assess an application by you for credit;
b) To notify other credit providers of an application for credit;
c) To exchange information with other credit providers as to the status of your credit worthiness;
d) To assess your credit worthiness and the credit worthiness of the guarantor’s.
10.2 In relation to the provision of credit you agree that personal data may be used and retained by us for the following purposes as shall be agreed between us or as required by law from time to time:
a) Provision of credit;
b) Analyzing, verifying and/or checking your credit, payment and or status in relation to the provision of credit and Goods and Services from other suppliers;
c) Enabling the daily operation of the your account in relation to the provisions of Goods and Services and Services;
d) To obtain a credit report about the Client;
e) Allow a credit reporting agency and us to create or maintain credit information containing information about you.
11.1 Each person who signs this agreement with us guarantees the performance by the Client of its obligations under these Terms and Conditions and each director of a Client which is a corporation (the “Guarantor”) gives a guarantee and indemnity in favour of Collaborative Agency in consideration of the Client agreeing to enter into these Terms and Conditions.
11.2 The Guarantor acknowledges the receipt of valuable consideration from Collaborative Agency for the Guarantor incurring obligations and giving rights under the guarantee and indemnity. Each Guarantor unconditionally and irrevocably guarantees to Collaborative Agency the due and punctual performance and observance by the Client of its obligations (including the obligations to pay money) pursuant to the Terms and Conditions. As a separate undertaking, the Guarantor unconditionally and irrevocably indemnifies Collaborative Agency against all liability or loss arising from, and any costs, charges or expenses incurred (including any loss as a result of a breach of the obligations to pay money) in connection with the Client’s breach of these Terms and Conditions.
12. Artwork Specifications
12.1 When accepting artwork proofs, the Client is held fully responsible for accepting all content. This includes design, spelling, grammar and quality. It is the Client’s responsibility to request another copy if the proof is difficult to read or if changes are required. The Client’s final accepted proof is what will be printed. There will be no reprints at Collaborative Agency’s expense.
12.2 Clients who send in their own artwork are fully responsible for the end result. Clients are reminded to submit, but take no responsibility for artwork mistakes or product quality. There will be no reprints at Collaborative Agency’s expense.
12.3 Clients are reminded that when their artwork is trimmed, the bleed cut can vary in position up to 2-3 mm hence a 3mm internal margin from the bleed line is required.
12.4 Is it the Client’s responsibility to ensure that any design that is submitted does not violate Australian law. Collaborative Agency will assume the artwork or content the Client submits is legally the Client’s property and the Client indemnifies Collaborative Agency accordingly.
12.5 If errors are noticed and if changes are required to our artwork, Collaborative Agency will contact you to avoid possible printing problems occurring. An artwork fee will be charged for any changes required. There will be no reprints at Collaborative Agency’s expense.
12.6 Laser proofs, digital proofs and screen proofs are not 100% accurate and variation may occur due to printing method, type of proof and the medium that the artwork is printed on. Collaborative Agency attempts to minimize variations as best as possible and cannot be held responsible for any deviation from the Client’s expectations as long as it is fit for the purpose. To ensure accuracy, Clients may request a press check.
12.7 Should there be a change of direction or new concept that differs from the initial brief, additional fees will be payable according to time/materials involved. Collaborative Agency will notify you of this and the additional quote/s will be provided
12.8 Your artwork, photographs, images, websites and data will not be archived or stored unless specifically agreed in writing by Collaborative Agency prior to the work commencing. Collaborative Agency holds no responsibility for archiving artwork, photographs, images, websites and data and has no obligation to replace or provide any of these items after they have been completed and supplied for their single specific purpose as outlined in the approved estimate agreement.
13. Website Design, Maintenance and Support
13.1 Collaborative Agency takes no responsibility for any errors in the content. It is the responsibility of the Client to ensure all content is correct before delivery. All images provided by the Client for their website must be copyright approved before delivery. Collaborative Agency is not responsible for the copyright of any supplied images. However, Collaborative Agency can source a range of (watermarked demo) stock images for the Client. These stock images must be purchased prior to use on the final site and will be in addition to the original quoted price, unless otherwise stated.
13.2 All content should be delivered in one package, containing all images, text, captions etc. together with clear instructions on where the content is to go.
13.3 Once the web design is complete, Collaborative Agency will provide the Client with the opportunity to review the resulting work. Collaborative Agency will make two sets of minor changes at no extra cost within 30 days of the start of the review period. Minor changes include small text changes and small adjustments to placement of items on the page. It does not include changes to images, colour scheme, template structures, module additions or any navigation features. Any minor changes can be notified to Collaborative Agency by e-mail or confirmed in writing. Collaborative Agency will consider that the Client has accepted the original draft, if no notification of changes is received in writing or via email from the Client, within 30 days of the start of the review period.
13.4 Collaborative Agency has the ability to use or display work they do on behalf of any client, accurately represented.
Client shall not be entitled to receive a proof of any advertising (each an Ad) created in connection with any Services ordered. Collaborative Agency makes no representation or warranty that any Ad will not be similar to, or resemble, any other Ad that is produced by Collaborative Agency or any Vendor.