Terms and Conditions

I/WE HEREBY AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS IN RELATION TO THE ACCOMODATION OF CREDIT BY DIGITALPOP PTY LTD (ABN 87 136 922 551) ( “DIGITALPOP” )

Upon signing the Quote, making the first payment to commence the project with DigitalPOP pty. ltd. the Applicant agrees:-

1.    Subject to the right of DIGITALPOP to alter its rates upon giving notice to the Applicant, to pay for:

(a)    all quoted services (the “Services”) undertaken whether or not delivered by DIGITALPOP within 14 days of DIGITALPOP issuing a tax invoice for all or part of the services;

(b)    all work performed by DIGITALPOP at the request of the Applicant in addition to the Services. Such additional work shall be charged at current rates within 14 days of DIGITALPOP issuing a tax invoice for all or part of those services (no additional payment shall be made for changes required to conform to the original assignment description);

(c)    all preparatory work performed by DIGITALPOP at the Applicant’s request, such as sketches, drawings, composition, disks, plates, presswork, and materials will be charged at current rates within 14 days of DIGITALPOP issuing a tax invoice for all or part of those services (associated artwork, type, negatives, positives, plates, disks, and other items shall remain DIGITALPOP 's property unless otherwise agreed in writing).

2.    That upon receipt of original copy or manuscript, should it be evident that the condition of the copy differs from that which had been originally described and consequently quoted, the original quotation shall be rendered void and a new quotation issued.

3.    If the conditions in Clause 1 are not complied with or the Applicant otherwise fails to comply with its obligations to DIGITALPOP in any respect, DIGITALPOP may:-

* revoke the credit accommodation and payment of the quoted amount in advance before proceeding with any further services;
* require that all amounts owing to DIGITALPOP for any reason whatsoever shall become immediately due and payable without deduction or demand;
* rescind all discounted quotations or rates and recalculate outstanding charges;

4.    If the applicant is a company, DIGITALPOP may require that the directors or other nominated third parties must give a guarantee and indemnity in the form attached;

5.    That the Applicant, and where the Applicant is unincorporated each proprietor of the Applicant, hereby charges with payment of the moneys and compliance with all obligations owed by the Applicant to DIGITALPOP all beneficial interests (freehold and leasehold) in land and personal property held now or in the future by the Applicant or proprietor. The Applicant, and where applicable, each proprietor agrees that if demand is made upon it, him or her by DIGITALPOP, the Applicant or, if applicable, that proprietor will immediately execute a consent caveat. If he or she fails to do so within a reasonable time of being so requested, the Applicant or, if applicable that proprietor irrevocably and by way of security appoints any credit manager or solicitor engaged by DIGITALPOP to be its, his or her true and lawful attorney to execute and register such instruments.

6.    That the Services are undertaken by DIGITALPOP pursuant to these terms and conditions. Until altered terms and conditions of trade are notified to the Applicant in writing the Applicant agrees that the current terms and conditions of trade shall continue to apply;

7.    That DIGITALPOP may from time to time alter its terms and conditions and such altered conditions shall apply in respect of all transactions taking place after notification to the Applicant of such altered conditions of trade or credit;

8.    That the Applicant agrees to pay any costs, commissions, and legal expenses whatsoever arising from the collections of any overdue monies. Such, costs and commissions and legal expenses may be recovered as a liquidated debt;

9.    That the Applicant will be liable to for all expenses arising from the provision of the Services by DIGITALPOP. 

10.    That DIGITALPOP at its absolute discretion may impose UP TO 25% mark up on the quoted price for the Services for work undertaken on an express basis and UP TO 30% mark up for resulting weekend work upon giving written notice. 

11.    That DIGITALPOP may at any time from time to time without assigning any reason therefore refuse to extend any further credit for the Applicant and that its approval of the Application does not require DIGITALPOP to extend to the Applicant any particular amount of credit;

12.    That where there is more than one Applicant each applicant shall be jointly and severally liable under the terms of this Application;

13.    The client has the right to use the artwork produced in undertaking the Services for the purposes for which it was commissioned.  Ownership in the artwork and associated materials shall remain with DIGITALPOP. The applicant, shall upon payment in accordance with Clause 1, use the product of the Services under exclusive non-lapsing license. The Applicant shall trademark the product of the Services on such terms as are stipulated by DIGITALPOP in its absolute discretion.

14.    DIGITALPOP retains the right to use the artwork and associated materials for the purpose of design competitions, future publications on design, educational purposes, marketing materials, and portfolio.

15.    That the Applicant agrees to notify DIGITALPOP of any change in ownership or address. Notwithstanding any change in the Applicant’s ownership/trading structure or any advice by it to DIGITALPOP of such change, the Applicant will remain liable for all goods and services requested by it or on its behalf until it has received written confirmation from DIGITALPOP that its account has been closed and full payment received and a new account has been opened in the name of the new entity;

16.    That failure by DIGITALPOP to insist upon compliance with any provisions of the terms does not constitute a waiver of that provision and DIGITALPOP shall be entitled to insist upon compliance with all provisions of these terms at any time;

17.    That if a person or part of a provision of these Terms and Conditions is found to be invalid or unenforceable then that provision or part of a provision shall be severed and the remaining provisions shall continue to be binding and have full force and effect on the parties.

18.    That DIGITALPOP may at any time set-off amounts owed by DIGITALPOP to the Applicant from the amounts owed by the Applicant to DIGITALPOP.

19.    That no claims levied against DIGITALPOP in relation to loss or damage will be considered unless all amounts owing by the Applicant to DIGITALPOP have been paid in full.

20.    That the laws of the State of Queensland shall apply and any legal proceedings commenced by any party to this agreement shall be issued out of and heard in the relevant court at Brisbane.

21.    That pursuant to s. 18E(8) of the Privacy Act 1988, information disclosed in the course of this credit application may be disclosed to a credit reporting agency. Under Section 18E(8)(c) of the Privacy Act 1988, DIGITALPOP is allowed to give a credit reporting agency personal information about this Application, information which may be given to an agency is covered by Section 18E(1) of the Act and includes: identity particulars (as permitted by the Privacy Commissioner’s determination issued under Section 18E(3); the fact that the Applicant has applied for credit and the amount, the fact that DIGITALPOP is a credit provider to the Applicant, payments which become overdue outside of agreed trading terms and for which collection action has been commenced; advice that payments are no longer overdue; that credit provided by DIGITALPOP to the Applicant has been paid for or otherwise discharged.

Pursuant to ss. 18K(1) and 18N (1) of the Privacy Act 1988 and para. 2.12 of the Credit Reporting Code of Conduct issued under s. 18A of that Act, the Applicant hereby agrees to DIGITALPOP obtaining personal information from a credit reporting agency or a credit provider for the purpose of assessing this application for commercial credit (including information as to creditworthiness); and agree to that agency or provider providing that information to DIGITALPOP for that purpose. The Applicant further agrees to the obtaining from, and provision by, such agency or provider further credit reports which may assist DIGITALPOP in recovering any sums outstanding under the terms of the commercial credit agreement to which this application may lead.

22.    DIGITALPOP is not liable for any costs incurred in the completing of this Application form and is not in any way obliged to give reason if credit is denied.

23.    That production schedules will be established and adhered to by the Applicant and DIGITALPOP. Neither party shall incur any liability or penalty for delays due to actions or negligence of Applicant, state of war, riot, civil disorder, fire, labour trouble, strikes, accidents, energy failure, equipment breakdown, delays of suppliers or carriers, action of government or civil authority and acts of God or other causes beyond their control. DIGITALPOP shall be entitled to unilaterally extend production schedules for up to 60 days upon giving the Applicant written notice.

24.    That except by force of law the parties acknowledge that DIGITALPOP gives no warranty whether express or implied for the Services and associate materials. In no event shall DIGITALPOP be liable for any person and/or entities consequential and/or incidental damages.

25.    The client further agrees to indemnify and hold harmless DIGITALPOP for claims of any nature whatsoever pertaining to the Services and their associated material. This includes the loss of proofs and materials, missing projected deadlines set for the completion of the Services, loss of any information claims relating to any intellectual property furnished by or to the Applicant.

GUARANTEE AND INDEMNITY

A.    The Guarantors acknowledge that the Applicant has, at the request of the Guarantors, submitted an application to be supplied by DIGITALPOP.

B.    The Guarantors acknowledge and agree that the benefit of the Guarantee and Indemnity may be accepted by DIGITALPOP by the supply services on credit to the Applicant by DIGITALPOP, and the date of any invoice in respect of supply of services shall be deemed the date of acceptance.

OPERATIVE PART

1.    The Guarantors:-

(a)    guarantee punctual payment to DIGITALPOP of all amounts which the Applicant owe or may owe at any time in the future to DIGITALPOP ;
(b)    guarantee punctual and correct compliance with all obligations (including payment obligations) which the Applicant owes now or may in the future to DIGITALPOP ;
(c)    indemnify DIGITALPOP against any loss it may suffer if the Applicant does not meet any of its obligations.

2.    This Guarantee and Indemnity creates a principal obligation from the Guarantor to DIGITALPOP and it is in addition to any security, which DIGITALPOP holds from the Applicant. This Guarantee and Indemnity may be enforced without DIGITALPOP having to take any steps against the Applicant or its security.

3.    This Guarantee and Indemnity is not affected and is still enforceable:

(a)    if any amount owing to DIGITALPOP by the Applicant is not recoverable from the Applicant for any reason at all;
(b)    if DIGITALPOP does not comply with any law or agreement with the Applicant;
(c)    if DIGITALPOP grants any time, release or other concession to the Applicant or the Guarantors or any one or more of the Guarantors;
(d)    in the event of death, incapacity, administration, bankruptcy or insolvency of the Applicant or of any of the Guarantors;
(e)    if payment by the Applicant or by any Guarantor to DIGITALPOP is set aside in bankruptcy, litigation or official management of the Applicant or of any Guarantor;
(f)    if a Guarantor ceases to be director of or be involved with the Applicant  or the status or structure of the Applicant  changes at all;
(g)    if any other thing occurs which could otherwise limit the effect of the Guarantee and Indemnity.

4.    This Guarantee and Indemnity is a continuing guarantee and indemnity and is not wholly or partially discharged until 6 months after all credit arrangements between DIGITALPOP and the Applicant are ended, all amounts owing to DIGITALPOP by the Applicant are paid, and all obligations of the Applicant to DIGITALPOP are complied with in full.

5.    Where there are two or more Guarantors their obligations are joint and several.

6.    The Guarantors agree to waive all rights inconsistent with the terms of this Guarantee and Indemnity.

7.    Each Guarantor charges with payment of the moneys and the compliance with all obligations secured by the Guarantee and Indemnity all beneficial interests (freehold and leasehold) in land and personal property held now or in the future by a Guarantor. Each Guarantor agrees that if demand is made upon him or her by DIGITALPOP, that Guarantor will immediately execute a mortgage or other instrument or security, or consent to a caveat, as required by DIGITALPOP and against the event that he or she fails to do so within a reasonable time from being so requested, that Guarantor hereby irrevocably and by way of security appoints any credit manager or solicitor engaged by DIGITALPOP to be his or her true and lawfully attorney to execute and register such instrument.

8.    If the Applicant is a trustee of a trust, the Guarantors warrant that the Applicant has full authority as trustee to enter into agreements for the supply to it of goods or services, or both, on credit.

9.    If a notice or a demand is given to one of the Guarantors it will mean it has been given to all of them.

10.   

(a)    “Applicant” includes its successors and assignees.
(b)    “Guarantors” means the persons signing below and includes the heirs, executors, administrators and assignees of each of the Guarantors.
(c)    “DIGITALPOP ” includes its successors and assignees.
(d)    A reference to a person includes a reference to a corporation and vice versa if appropriate, and use of a gender or the plural includes all other genders and the singular and vice versa as appropriate.