TERMS AND CONDITIONS
- These terms and conditions (“the Agreement”) comprise the entire agreement between the Advertiser as named on page (1) and Expressway Group Pty Ltd T/A eXdigital (“the Company”). The Advertiser includes any advertiser on whose behalf Advertising is placed and any media company or agency that arranges Advertising on behalf of its clients.
- For the purpose of this Agreement, the “Services” shall mean the packages selected overleaf on page (1).
- The Advertiser agrees to pay for the advertisements accepted by the Company monthly in advance for the agreed period of time (“the Term”) and in return the Company agrees to advertise the advertisements (“the Services”) in accordance with this Agreement.
- A minimum of three (3) months advertising applies to this Agreement unless otherwise agreed by both parties and written into the service agreement. The Agreement shall commence on the Commencement Date and end on the End date (“the Term”) as detailed overleaf on page (1) or in accordance with the Terms of this Agreement.
- At the cessation of the Term, if the Advertiser has not provided a written notice to the Company (not less than 30 days’ notice prior to the cessation of the Term) then the Advertiser and the Company (“the Parties”) agree the Agreement shall continue on a rolling monthly basis until either Party provide the other with a written notice of termination in accordance with clause [INSERT] and all the terms and conditions of this Agreement shall continue to apply.
- Payment Terms
- Payment shall be by way of Visa/Mastercard Automatic debit or by way of Bank Deposit as selected on page (1) overleaf.
- The customer must immediately sign the Direct Debit Form; or
- Make payment by way of Credit Card (a credit card fee may apply); or
- Make payment by way of Direct Debit;
- The Advertiser must not withdraw or revoke the Direct Debit Form unless it has terminated this Agreement pursuant to the terms of this Agreement.
- It is an Essential Term of this Agreement that no advertising shall commence until payment has been received in full in advance, by the Company.
- It is an Essential Term of this Agreement that if payment of an amount required by this Agreement is not made, the Company may in addition to such other rights the Company holds, suspend the advertising until payment is received or terminate this Agreement immediately and without notice.
- Advertisements and Obligations of the Advertiser
- The Company will use reasonable endeavours to run the Advertising in a format it considers compliant and as agreed with the Advertiser and the Company may in its discretion without notice to the Advertiser alter or abbreviate any advertisement provided the right is not unreasonably exercised and the Company will notify the Customer of the change as soon as practicable.
- No Advertisers shall enjoy preferential position on the advertising programme.
- The Company reserves the right to refuse any Advertising it considers illegal, defamatory, offensive, obscene and/or contrary to the business interest, goodwill and/or reputation of the Company or any of its customers or is likely to infringe on the rights of third parties and the Company reservices the right to withhold, withdraw and alter or reduce any advertisement in any way it deems necessary, to run the advertisement.
- The Company will use its best endeavours to commence the advertising pursuant to the Services within one (1) week of the date of this Agreement and will not be held accountable for delays due to reasons beyond its control (including but not limited to any act of God, cyclones, severe weather and storms, war, breakdown of plant, industrial dispute, electricity failure, governmental or legal restraint). The Advertiser will not unreasonably take issue or recourse against the Company in the event that such delays occur.
- The Advertiser warrants to the Company that the advertisement does not breach or infringe:
- The Competition and Consumer Act (Cth) or equivalent State legislation;
- Any copyright, trade mark, obligation of confidentiality or other personal or proprietary right;
- Any law of defamation, obscenity or contempt of any court, tribunal or royal commission;
- State or Commonwealth privacy legislation or anti-discrimination legislation;
- Any financial services law as defined in the Corporations Act 2001 (Cth); or
- Any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or a State or Territory).
- To the maximum extent permitted by law, the Advertiser agrees to indemnify and hold the Company harmless from and against all claims, demands, regulatory proceedings and-or causes of action and all damages, liabilities, costs or expenses arising directly or indirectly from any breach by the Advertiser of the Advertisers warranties, covenants, obligations and conditions including but not limited to:-
- Any alleged:-
- Libel, slander, defamation, product disparagement or indecent, false, misleading or deceptive conduct;
- Infringement of trade mark, copyright, title, slogan trade indicia or other proprietary rights;
- Privacy, counterfeiting, plagiarism, unfair competition; or
- Invasion of the right of privacy, which is in any way connected with any advertising or other Services covered by the Agreement in connection with the advertising or other Services covered by this agreement;
- The preparation or presentation of any advertising or other Services covered by this Agreement.
- Any alleged:-
- The Advertiser warrants that if Advertising contains the name or photographic or pictorial representation of any living person and/or any copy by which any living person can be identified, the Advertiser has obtained the authority of that person to make use of his/her name or representation or the copy.
- The Company will not be liable for any loss suffered by either the Advertiser or any third party occasioned by delay in delivery of the Services supplied by the Company.
- Exclusion and limitation of liability
- Except as otherwise expressly provided in this Agreement, the Company excludes, to the fullest extent permitted by law, all warranties, representations and conditions whether implied by law, trade, custom or otherwise. In no circumstances will the Company (its employees or agents) be liable, whether in tort, contract or otherwise for any indirect loss, loss of profits, consequential loss or special damage suffered by the Advertiser or any other person. The Company’s (including the officers, employees and agents) liability to the Advertiser, or any other person, for any and all loss or damage arising in relation to this Agreement and/or advertisements (including from any errors, omissions, non-publication or inaccuracies however caused, including without limitation by negligence, system or design failure, mistake, misclassifications, early, late or non-insertion of advertisements, will be limited to an amount equal to the cost of the advertisement and the Company will have no liability whatsoever.
- In the event the Advertiser does not wish for the Services to continue after the expiration of the Term, the Advertiser must provide the Company notice in writing no later than thirty (30) days before the end of the Term (the End Date) failing which this Agreement will become a one month rolling contract, at the same monthly value, which may be terminated by either party upon the provision of 30 days written notice.
- Goods and Services Tax
- The cost of the Services if they are not described explicitly as being inclusive of GST are provided pursuant to this Agreement exclusive of GST and any payments made under this Agreement will be increased by the GST Rate.
- This Agreement is governed by the laws of Queensland, Australia and the parties submit to the exclusive jurisdiction of the Courts of Queensland.
- This Agreement may be executed in a number of counterparts and will bind each party from the date upon which this Agreement is executed and delivered by that party. Signed facsimile or emailed copies of this Agreement shall be sufficient evidence of the execution of this Agreement and binding upon the parties.
- Confidential Information
- The Advertiser acknowledges that during the Term of this Agreement, the Advertiser may become acquainted with or have access to Confidential Information and agrees to maintain the confidence of the Confidential Information and to prevent the unauthorised disclosure to or use b any other person, firm or company.
- The Advertiser agrees not to use the Confidential Information for any purpose other than for the benefit of the company during or after the Term of the Advertisers engagement with the Company.
- The Advertiser must not for any reason either for the Customer or any third party appropriate, copy, memorise or in any manner (reproduce or reverse engineer any of the Confidential Information.
- Intellectual Property Rights
- The parties acknowledge and agree that the Company owns the Intellectual Property. The Advertiser covenants and agrees that it will at all times during the Term keep secret and confidential all Intellectual Property except that which is in the public domain and which may otherwise be disclosed in the performance of duties and obligations under this Agreement.
- At the end of this Agreement, the Advertiser must, without demand, return to the Company all originals and copies of all documentation in whatever form comprising Intellectual Property including all extracts or summaries or confidential information that the Advertiser or Company may make or have and any software or hardware that is created, based upon, including or comprising intellectual property.
- Force Majeure
- If either party is rendered unable, wholly or in party, by Force Majeure to carry out or observe any of its obligations under this Agreement, it shall give to the other party prompt written notice providing full details of the force Majeure. The obligations of the parties under this Agreement to the extent affected by Force Majeure, shall be suspended and no claim by either of the parties hereto against the other party shall avail by reason of such Force Majeure provided that the party giving such notice shall, to the extent practicable, take all reasonable steps to remove the Force Majeure as soon as possible. Such reasonable steps shall not require the notifying party to settle any reasons for Force Majeure on unfavourable terms.
- Mechanical and Electrical Failure
- In the event of mechanical or electrical failure preventing the Company from running advertisements, the Company will act in good faith to rectify the failure as quickly as reasonably possible. If the mechanical or electrical failure extends longer than forty-eight (48) hours any payments charged to the Advertiser will be credited to the Advertiser on a pro-rata basis.
“Advertiser” means the party identified under the heading “Registered Business Name” on page (1) overleaf.
“Agreement” means the Terms and Conditions including the Page (1) for the Services;
“Company” means Expressway Group Pty Ltd ATF Connolly Family Trust 1 T/A eXdigital ACN 138671860.
“Commencement Date” means the date upon which the Term of this Agreement commences.
“Confidential Information” means information relating directly or indirectly to the Company, its assets and the operation and affairs of the Company including but not limited to performance of the Services and trade secrets, marketing information, software custom lists, financial information and business plans whether or not in some tangible form (and where recorded in some tangible form, whether the recorded is an original or a copy of or extract from the original or another copy or extract).
“Consumer Laws” means all legislation, Regulations and Codes of Practice which at any time provide for or regulate the rights of consumers when dealing with the Company in the conduct of the Services or which impose obligations on the Company in respect of the conduct of the Services. Without limitation these include where applicable:
- Competition and Consumer Act 2010
- Fair Trading Act 1989
- Any other Act or Law that applies to transactions with Consumers.
“Corporations Act” means the Corporations Act 2010 (Cth).
“Day” Means any day in which the banks are open for business and does not include weekends or public holidays.
“Essential Term” means a term of this Agreement which the parties agree is a fundamental condition, the breach of which by a party will entitle the other party to terminate the Agreement.
“Direct Debit Form” means the form signed by the Advertiser which allows direct debit of the Advertisers bank account.
“End Date” means the date on which the Agreement ends.
“Force Majeure” means delay or inability to perform caused by war, whether declared or not, insurrections, strikes, lockouts or other industrial disturbance, inability to obtain materials, unavailability of equipment, fire, storm or other severe action of the elements, accidents, government or statutory restrictions or from other causes whether like or unlike the foregoing which are unavoidable or beyond the reasonable control of the company but shall not include for the avoidance of doubt, lack of funds or the unserviceability of plant and equipment (for any reason).
“GST Law” has the meaning given to that term in the Act or should the Act be preleased, means any Act of Parliament imposing or relation to the imposition or administration of a goods and services tax in Australia and any subordinate legislation made under that act of Parliament.
“GST Rate” means the rate of GST applicable to the Supply under the GST Law at the time of Supply;
“Intellectual Property” includes but is not limited to any Confidential Information or documentation owned, received or developed by the Company or the Advertiser during the term of this Agreement, which is not publicly available and relates to information used, acquired or developed by the Company in the course of the Companies business including but not limited to technical date, software, marketing information such as membership lists, financial information business plans prepared by or on behalf of the Company.
“The Order From” means the document labelled “Service Agreement Order Form & Tax Invoice” the terms of which form part of this Agreement.