Terms and Conditions
1.1 ‘Agency’ shall mean MiContent.com.au and its successors and assigns.
1.2 ‘Client’ shall mean the Client or any person acting on behalf of and with the authority of the Client.
1.3 ‘Guarantor’ means that person (or persons), or entity that agrees herein to be liable for the debts of the Client on a principal debtor basis.
1.4 ‘Goods’ shall mean Goods supplied by the Agency to the Client (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 ‘Services’ shall mean all services supplied by the Agency to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6 ‘Price’ shall mean the cost of the Goods or Services as agreed between the Agency and the Client subject to clause 4 of this contract.
2.1 Any instructions received by the Agency from the Client for the supply of Goods and Services and/or the Client’s acceptance of Goods and Services supplied by the Agency shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of a Director of the Agency.
2.4 None of the Agency’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by a Director of the Agency in writing, nor do any such unauthorised statements bind the Agency.
2.5 The Client undertakes to give the Agency not less than fourteen (14) days prior written notice of any proposed change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice).
3.1 The Goods/Services are as described on the invoices and quotation as provided by the Agency to the Client.
4. Price And Payment:
4.1 At the Agency’s sole discretion:
(a) The Price shall be as indicated on invoices provided by the Agency to the Client in respect of Goods supplied; or
(b) The Price shall be the Agency’s current Price, at the date of delivery of the Goods/Services, according to the Agency’s current Price list; or
(c) The Price of the Goods shall (subject to clause 4.2) be the Agency’s quoted Price, which shall be binding upon the Agency provided that the Client shall accept in writing the Agency’s quotation within fourteen (14) days.
4.2 The Agency may by giving notice to the Client (verbally or otherwise) at any time before delivery increases the Price of the Goods/Services to reflect any variation beyond the reasonable control of the Agency, which increases the cost of the Goods/Services by more than 10% of the quoted Price.
4.3 At the Agency’s sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods/Services and shall become immediately due and payable.
4.4 Time for payment for the Goods/Services shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods/Services.
4.5 The Agency may withhold delivery of the Goods/Services until the Client has paid for them, in which event payment shall be made before the delivery date.
4.6 At the Agency’s sole discretion, for certain approved Clients payment will be due seven (7) days following the date of the invoice.
4.7 At the Agency’s sole discretion, payment for approved Clients shall be made by installments in accordance with the Agency’s delivery/payment schedule.
4.8 At the Agency’s sole discretion, an additional charge may be made for any related expenses including but not limited to illustration, photography, travel, models, props, couriers and telephone and will be shown as extras on the invoice and shall become immediately due and payable.
4.9 At the Agency’s sole discretion all extra work caused by Client’s corrections may be charged to the Client and shown as extras on the invoice.
4.10 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Agency.
4.11 The Price shall be increased by the amount of any GST and other taxes and duties, which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Agency.
5. Delivery Of Goods/Services:
5.1 The Agency agrees to deliver the Goods and Services within the due date as agreed between the two parties. If no due date is agreed upon, the Agency will deliver Goods and Services in a prompt and timely fashion.
5.2 Delivery of the Goods/Services shall be made to the Client’s address. The Client shall make all arrangements necessary to take delivery of the Goods/Services whenever they are tendered for delivery, or delivery of the Goods/Services shall be made to the Client at the Agency’s address.
5.3 Delivery of the Goods/Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.4 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
(a) such discrepancy in quantity shall not exceed 5%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
5.5 The failure of the Agency to deliver shall not entitle either party to treat this contract as repudiated.
5.6 The Agency shall not be liable for any loss or damage whatsoever due to failure by the Agency to deliver the Goods/Services (or any of them) promptly or at all.
6.1 If the Agency retains property in the Goods/Services nonetheless, all risk for the Goods/Services passes to the Client upon delivery.
6.2 If any of the Goods/Services are damaged or destroyed prior to property in them passing to the Client, the Agency is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods/Services), to receive all insurance proceeds payable for the Goods/Services. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by the Agency is sufficient evidence of the Agency’s rights to receive the insurance proceeds without the need for any person dealing with the Agency to make further enquiries.
7. Client’s Disclaimer:
7.1 The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Agency and the Client acknowledges that he buys the Goods/Services relying solely upon his own skill and judgement, and that the Agency shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer, which warranty shall be personal to the Client and shall not be transferable to any subsequent Client.
8.1 The Client shall inspect the Goods/Services on delivery and shall within seven (7) days of delivery notify the Agency of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Agency an opportunity to inspect the Goods/Services within a reasonable time following delivery if the Client believes the Goods/Services are defective in any way. If the Client shall fail to comply with these provisions, the Goods/Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
8.2 For defective Goods/Services, which the Agency has agreed in writing that the Client is entitled to reject, the Agency’s liability is limited to either (at the Agency’s discretion) replacing the Goods/Services, or repairing the Goods/Services provided that:
(a) the Client has complied with the provisions of clause 8.1;
(b) the Goods/Services are returned at the Client’s cost within seven (7) days of the delivery date;
(c) the Agency will not be liable for Goods/Services, which have not been stored or used in a proper manner;
(d) the Goods/Services are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonable possible in the circumstances.
8.3 Whilst every care is taken by the Agency to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proofreading of the Goods/Services. The Agency shall be under no liability whatever for any errors not corrected by the Client in the final proofreading. Should the Clients alterations require additional proofs this shall be invoiced as an extra.
9. Unpaid Agency’s Rights To Dispose Of Goods/Services:
9.1 In the event that:
(a) the Agency retains possession or control of the Goods/Services; and
(b) payment of the Price is due to the Agency; and
(c) the Agency has made demand in writing of the Client for payment of the Price in terms of this contract; and
(d) the Agency has not received the Price of the Goods/Services, and then, whether the property in the Goods/Services has passed to the Client or has remained with the Agency, the Agency may dispose of the Goods/Services and may claim from the Client the loss to the Agency on such disposal.
10. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
10.1 Nothing in this agreement is intended to have the affect 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.
11. Intellectual Property:
11.1 Where the Agency has written or created Goods/Services for the Client, then the copyright in those articles and media shall remain vested in the Agency, and shall only be used by the Client at the Agency’s discretion.
11.2 Conversely, in such a situation, where the Client has supplied text or media, the Agency in its sale conditions may look for an indemnity (the specifications and design of the Goods/Services (including the copyright, design right, or other intellectual property in them) shall as between the parties be the property of the Agency).
11.3 Where any text, media, or specifications have been supplied by the Client for manufacture, by or to the order of the Agency then the Client warrants that the use of those text, images or specifications for the manufacture, processing, assembly or supply of the Goods/Services shall not infringe the rights of any third party.
11.4 The Client warrants that all text, media or instructions provided to the Agency will not cause the Agency to infringe any patent, registered design, or trademark in the execution of the Client’s order.
11.5 Outlines, drafts and notes submitted by the Agency on a speculative basis shall remain the property of the Agency. They shall not be used for any purpose other than that nominated by the Agency and no ideas obtained there from may be used without the consent of the Agency. The Agency shall be entitled to compensation from the Client for any unauthorised use of such outlines, drafts and notes.
11.6 Where the Writer has written or created Goods/Services for the Client then the Client undertakes to acknowledge the Writer’s text or media creations in the event that text from the Goods/Services are utilised in advertising or marketing material by the Client.
11.7 The Client hereby authorises the Writer to utilise text of the Goods written or created by the Writer in advertising, marketing, or competition material by the Writer.
MiContent.com.au – TERMS & CONDITIONS OF TRADE:
12. Default & Consequences Of Default:
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.
12.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Agency from and against all the Agency’s costs and disbursements including on a solicitor and own client basis and in addition all of the Agency’s nominees costs of collection.
12.3 Without prejudice to any other remedies the Agency may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Agency may suspend or terminate the supply of Goods/Services to the Client and any of its other obligations under the terms and conditions. The Agency will not be liable to the Client for any loss or damage the Client suffers because the Agency exercised its rights under this clause.
12.4 If any account remains unpaid at the end of the second month after supply of the goods or services the following shall apply: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees, which sum shall become immediately due and payable.
12.5 In the event that:
(a) any money payable to the Agency becomes overdue, or in the Agency’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; then without prejudice to the Agency’s other remedies at law
(i) the Agency shall be entitled to cancel all or any part of any order of the Client that remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Agency shall, whether or not due for payment, immediately become payable.
13.1 It is the intention of the Agency and agreed by the Client that property in the Goods/Services shall not pass until:
(a) The Client has paid all amounts owing for the particular Goods/Services, and
(b) The Client has met all other obligations due by the Client to the Agency in respect of all contracts between the Agency and the Client, and that the Goods/Services shall be kept separate until the Agency shall have received payment and all other obligations of the Client are met.
13.2 It is further agreed that:
(a) Until such time as ownership of the Goods/Services shall pass from the Agency to the Client the Agency may give notice in writing to the Client to return the Goods/Services or any of them to the Agency. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods/Services shall cease.
(b) If the Client fails to return the Goods/Services to the Agency then the Agency or the Agency’s agent may enter upon and into land, premises, websites owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods/Services are situated and take possession of the Goods/Services, without being responsible for any damage thereby caused.
(c) The Client is only a bailee of the Goods/Services and until such time as the Agency has received payment in full for the Goods/Services then the Client shall hold any proceeds from the sale or disposal of the Goods/Services on trust for the Agency.
(d) The Client shall not deal with the money of the Agency in any way that may be adverse to the Agency.
(e) Receipt by the Agency 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 the Agency’s ownership of rights in respect of the Goods/Services shall continue.
(f) The Client shall not charge the Goods/Services in any way, nor grant, nor otherwise give any interest in the Goods while they remain the property of the Agency.
(g) The Agency may require payment of the Price or the balance of the Price due together with any other amounts due from the Client to the Agency arising out of these terms and conditions, and the Agency may take any lawful steps to require payment of the amounts due and the Price.
(h) The Agency can issue proceedings to recover the Price of the Goods/Services sold notwithstanding that ownership of the Goods/Services may not have passed to the Client.
(i) Until such time the Client has the Agency’s authority to convert the Goods/Services into other products and if the Goods/Services are so converted, the parties agree that the Agency will be the owner of the end products.
14. Security And Charge:
14.1 Notwithstanding anything to the contrary contained herein or any other rights which the Agency 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 the Agency or the Agency’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that the
Agency (or the Agency’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Agency elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Agency from and against all the Agency’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the Client and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Agency or the Agency’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Agency and/or the Agency’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Client and/or the Guarantor in any land, realty, or asset in favour of the Agency and in the Client’s and/or Guarantor’s name as may be necessary to secure the said Client’s and/or Guarantor’s obligations and indebtedness to the Agency and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Agency’s absolute discretion which may be necessary, or advantageous to give effect to the provisions of this clause.
15.1 The Agency may cancel these terms and conditions or cancel delivery of Goods/Services at any time before the Goods/Services are delivered by giving written notice. The Agency shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event of cancellation by the Client, the Client shall pay the following cancellation payment:
(a) Cancellation prior to the written text being turned in – 75% of one month’s contract/quoted project fee plus expenses.
(b) Cancellation due to the written text being unsatisfactory – 50% of the monthly contract/quoted project fee plus expenses and
(c) Cancellation for any other reason after the written text is turned in – 100% of the monthly contract/quoted project fee plus expenses.
15.3 The billing upon cancellation shall be payable within seven (7) days of the Client’s notification to stop work or the delivery of the work, whichever occurs sooner.
16. Privacy Act 1988:
16.1 The Client and/or the Guarantor/s agree for the Agency 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 the Agency.
16.2 The Client and/or the Guarantor/s agree that the Agency may exchange information about Client and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by the Client;
(b) To notify other credit providers of a default by the Client;
(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
(d) To assess the credit worthiness of Client and/or Guarantor/s.
16.3 The Client consents to the Agency being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Client agrees that Personal Data provided may be used and retained by the Agency for the following purposes and for other purposes as shall be agreed between the Client and Agency or required by law from time to time:
(a) provision of Services and Goods;
(b) marketing of Services and or Goods by the Agency, its agents, or distributors in relation to the Services and Goods;
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services/Goods;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and
(e) enabling the daily operation of the Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services and Goods.
16.5 The Agency may give information about the Client to a credit report agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and or
(b) allow the credit report agency to create or maintain a credit information file containing information about the Client.
17.1 Where the Agency has not received or been tendered the whole of the price, or the payment has been dishonoured, the Agency shall have:
(a) a lien on the Goods/Services;
(b) the right to retain them for the price while the Agency is in possession of them;
(c) a right of stopping the Goods/Services in transit whether or not delivery has been made or ownership has passed; and
(d) a right of resale,
(e) the foregoing right of disposal, provided that the lien of the Agency shall continue despite the commencement of proceedings or judgement for the price having been obtained
18.1 If any provision of these terms and conditions shall be invalid, void, or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired.
18.2 All Goods/Services supplied by the Agency are subject to the laws of Victoria and the Agency takes no responsibility for changes in the law that affect the Goods/Services supplied.
18.3 The Agency shall be under no liability whatsoever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Agency of these terms and conditions.
18.4 In the event of any breach of this contract by the Agency the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Agency exceed the Price of the Services.
18.5 The Client shall not set off against the Price amounts due from the Agency.
18.6 The Agency may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.7 The Agency reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Agency 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, drought, storm or other event beyond the reasonable control of either party.