1. Definitions
1.1 “Strategic Marketing” shall mean Strategic Marketing Solutions AUST Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Strategic Marketing Solutions AUS Pty Ltd.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Strategic Marketing to the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Services” shall mean all Services supplied by Strategic Marketing to the Client and includes any advice or recommendations.
1.5 “Price” shall mean the price payable for the Services as agreed between Strategic Marketing and the Client in accordance with clause 3 of this contract.
2. Acceptance
2.1 Any instructions received by Strategic Marketing from the Client for the supply of Services and/or the Client’s acceptance of Services supplied by Strategic Marketing 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 binding and can only be amended with the written consent of Strategic Marketing.
2.4 The Client shall give Strategic Marketing not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any 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). The Client shall be liable for any loss incurred by Strategic Marketing as a result of the Client’s failure to comply with this clause.
3. Price And Payment
3.1 At Strategic Marketing’ sole discretion the Price shall be either:
(a) as indicated on invoices provided by Strategic Marketing to the Client in respect of Services supplied; or
(b) Strategic Marketing’ quoted Price (subject to clause 3.2 which shall be binding upon Strategic Marketing provided that the Client shall accept Strategic Opportunities’ quotation in writing within thirty (30) days.
3.2 Strategic Marketing reserves the right to change the Price in the event of a variation to Strategic Marketing’ quotation.
3.3 At Strategic Marketing’ sole discretion a deposit may be required.
3.4 At Strategic Marketing’ sole discretion payment shall be due before delivery of the Services.
3.5 Time for payment for the 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 seven (7) days following the date of the invoice.
3.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and one half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Strategic Marketing.
3.7 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.
4. Delivery Of Services
4.1 The failure of Strategic Marketing to deliver shall not entitle either party to treat this contract as repudiated.
4.2 Strategic Marketing shall not be liable for any loss or damage whatever due to failure by Strategic Marketing to deliver the Services (or any of them) promptly or at all.
5. Risk
5.1 Strategic Marketing shall accept no responsibility for poor telemarketing results where the Services have been provided reliant on data supplied by the Client.
6. Title
6.1 Strategic Marketing and the Client agree that ownership of the Services shall not pass until:
(a) the Client has paid Strategic Marketing all amounts owing for the particular Services; and
(b) the Client has met all other obligations due by the Client to Strategic Marketing in respect of all contracts between Strategic Marketing and the Client.
6.2 Receipt by Strategic Marketing 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 Strategic Marketing’ ownership or rights in respect of the Services shall continue.
7. Client’s Disclaimer
7.1 The Client hereby disclaims any right to rescind, or cancel the contract with Strategic Marketing or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Strategic Marketing and the Client acknowledges that the Services are bought relying solely upon the Client’s skill and judgment.
8. Errors and Omissions
8.1 The Client shall inspect the Services on delivery and shall within seven (7) days of delivery (time being of the essence) notify Strategic Marketing of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford Strategic Marketing an opportunity to inspect the Services within a reasonable time following delivery if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage. For defective Services, which Strategic Marketing has agreed in writing that the Client is entitled to reject, Strategic Marketing’ liability is limited to either (at Strategic Marketing’ discretion) replacing the Services or repairing the Services, except where the Client has acquired Services as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Services, or repair of the Services, or replacement of the Services.
9. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
9.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
10. Intellectual Property
10.1 Where Strategic Marketing has designed, drawn or written documents for the Client, then the copyright in those designs and drawings and documents shall remain vested in Strategic Marketing, and shall only be used by the Client at Strategic Marketing’ discretion.
10.2 The Client warrants that all designs or instructions to Strategic Marketing will not cause Strategic Marketing to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Strategic Marketing against any action taken by a third party against Strategic Marketing in respect of any such infringement.
11. Default & Consequences of Default
11.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, 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 judgment.
11.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify Strategic Marketing from and against all costs and disbursements incurred by Strategic Marketing in pursuing the debt including legal costs on a solicitor and own client basis and Strategic Marketing’ collection agency costs.
11.3 Without prejudice to any other remedies Strategic Marketing may have, if at any time the Client is in breach of any obligation (including those relating to payment), Strategic Marketing may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. Strategic Marketing will not be liable to the Client for any loss or damage the Client suffers because Strategic Marketing has exercised its rights under this clause.
11.4 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.
11.5 Without prejudice to Strategic Marketing’ other remedies at law Strategic Marketing shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Strategic Marketing shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Strategic Marketing becomes overdue, or in Strategic Marketing’ 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.
12. Security And Charge
12.1 Despite anything to the contrary contained herein or any other rights which Strategic Marketing 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 Strategic Marketing or Strategic Marketing’ 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 Strategic Marketing (or Strategic Marketing’ 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 Strategic Marketing elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Strategic Marketing from and against all Strategic Marketing’ 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 Strategic Marketing or Strategic Marketing’ 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 12.1.
13. Cancellation
13.1 Strategic Marketing may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Client. On giving such notice Strategic Marketing shall repay to the Client any sums paid in respect of the Price. Strategic Marketing shall not be liable for any loss or damage whatever arising from such cancellation.
13.2 In the event that the Client cancels delivery of Services the Client shall be liable for any loss incurred by Strategic Marketing (including, but not limited to, any loss of profits) up to the time of cancellation.
14. Privacy Act 1988
14.1 The Client and/or the Guarantor/s agree for Strategic Marketing 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 Strategic Marketing.
14.2 The Client and/or the Guarantor/s agree that Strategic Marketing 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 the 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.
14.3 The Client consents to Strategic Marketing being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4 The Client agrees that personal credit information provided may be used and retained by Strategic Marketing for the following purposes and for other purposes as shall be agreed between the Client and Strategic Marketing or required by law from time to time:
(a) provision of Services; and/or
(b) marketing of Services by Strategic Marketing, its agents or distributors in relation to the Services; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the 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 Services.
14.5 Strategic Marketing 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.
15. Unpaid Strategic Marketing’ Rights
15.1 Where the Client has left any item with Strategic Marketing for repair, modification, exchange or for Strategic Marketing to perform any other Service in relation to the item and Strategic Marketing has not received or been tendered the whole of the Price, or the payment has been dishonoured, Strategic Marketing shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while Strategic Marketing is in possession of the item;
(c) a right to sell the item; and
(d) the right to retain all or part of the proceeds of the sale of the item in payment of the Price and any interest due to Strategic Marketing and any costs associated with such sale.
15.2 The lien of Strategic Marketing shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
16. General
16.1 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.
16.2 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.
16.3 Strategic Marketing 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 Strategic Marketing of these terms and conditions.
16.4 In the event of any breach of this contract by Strategic Marketing the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Services.
16.5 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 Strategic Marketing.
16.6 Strategic Marketing may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
16.7 Strategic Marketing 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 Strategic Marketing notifies the Client of such change.
16.8 Strategic Marketing have the right not to offer a refund if canceled by the client without two weeks notice.
16.9 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.
16.10 The failure by Strategic Marketing to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Strategic Marketing ’ right to subsequently enforce that provision.
16.11 Strategic marketing have the right to charge 25 hours if the campaign is canceled at the last minute without any notice.