Terms And Conditions of Sale. Bay Media Australia

Standard Conditions of Sale

BAY MEDIA AUSTRALIA PTY LIMITED ABN 51 122 061 670 ( “Bay”)

Definitions – In this document unless the context otherwise requires:
1. “Customer” means the party to whom Bay is supplying the Goods and/or Services, as described in the contract details overleaf;
2. “Fees” means the fees and charges payable to Bay by the Customer;
3. “Banner” means printed vinyl decorative banner
4. “Banner Arms” means spring loaded wind releasing banner bracket, fibreglass banner arm and associated fixing material.
5. “Goods” means the products to be sold to the Customer by Bay pursuant to a contract;
6. “Order” means a written order (purchase order) issued in response to a quotation, or otherwise issued by the Customer;
7. “Premises” means the place where the Goods are to be located, as specified in the contract details overleaf;
8. “Services” means all services provided by Bay pursuant to a contract, including site visits, and the production, erection, installation and display of banners and banner arms the Goods.
9. “Works” means the Goods and Services.
Tax – Unless otherwise specifically stated to the contrary, quotation prices exclude any applicable GST and stamp duty, which will also be payable by the Customer.
Preliminary work– All work carried out whether experimentally or otherwise at the Customer’s request (including installation of a trial scheme), shall be charged at Bay’s standard charge-out rates, or such rates as the parties agree.
Fees – Fees referred to in any Quotations are based on Bay’s current rates at the date of Quotation. Quotations are valid for 30 days, after which time, the quoted amounts may change. The quoted amounts are based on the information provided at the time of quotation. If that information is untrue or changes, the quoted amounts may also change. The Fees are subject annual review, by reference to the change in the Consumer Price Index (all Groups, for Eight Capital Cities) or as specified in the Quotation. All Fees are based on up to 4 colour printing. In the event that additional colours are required for printing, Bay reserves the right to charge an additional Fee accordingly. Bay reserves the right to increase the Fees and any of these terms and conditions by giving the Customer at least on 60 days written notice.
Order & Contracts – Bay reserves the right to accept or reject any Order. If Bay accepts an Order, then that acceptance will constitute a contract with the Customer, which will incorporate any quotation and terms and conditions contained in this document (as varied in writing by Bay in accordance with this document). The terms of this document and quotation apply to the exclusion of any other terms and conditions issued by the Customer (including in any Order), unless Bay otherwise specifically agrees in writing.
Copy – a charge may be made to cover any additional work involved where copy supplied by the Customer is not clear, legible and/or incorrectly formatted or corrupted. Bay will take reasonable care to secure the best results but responsibility will not be accepted for imperfect work caused by defects in or unsuitability of copy materials so supplied.
Proofs –Bay will submit proofs of banner artwork for the Customer’s approval, at the Customer’s expense. The Customer must approve or correct those proofs within 7 days. If the Customer does not correct those proofs within that time, it is deemed to have accepted them. Bay shall incur no liability for any errors not corrected by the Customer in proofs so submitted or in artwork provided by the Customer for production. When style, typo or layout is left to Bay’s judgment, changes to them that the Customer makes or requests shall incur an additional charge.
Delivery and installation – (a) the Customer shall ensure that Bay shall be given full, free and safe access to poles and Premises for implementation and/or servicing of the Goods and that specific visit and/or installation plans are communicated to relevant Premises management and personnel with contact details provided to Bay in advance; (b) delivery and installation dates mentioned in any quotation, Order or other document are approximate only, and time shall not be of the essence. Bay shall not be liable for any delay with regards the Works howsoever caused; (c) the Customer shall be responsible for obtaining any and all approvals, permissions and consents (including landlord, planning and regulatory approvals, permissions and consents) in relation to erection, installation and display of the Goods and servicing of the Goods. Bay shall not be held liable in respect of failure or delay to obtain the same, and the Customer indemnifies Bay against all costs, charges, claims, demands and actions of any nature in relation such failure or delay, and any such failure or delay shall not relieve the Customer of its full payment obligations; (d) should the Works be suspended at the request of the Customer or otherwise delayed as a consequence of any act or omission by the Customer or any other party, Bay shall be entitled to charge the Customer an additional Fee for all consequential or additional work performed and expenses incurred by Bay as a result thereof, including removal, storage and third party cancellation fees. If the Works are suspended or delayed for longer than 3 months then the Customer shall be deemed to have been terminated the contract, in which event the Customer shall not be relieved from its full payment obligations pursuant to the Order(s); (e) Bay shall have the right to change banner materials at its discretion, but this shall not relieve the Customer of its full payment obligations pursuant to the Order(s); (f) Bay’s confirmation to an agreed representative of the Customer that any Works have been completed shall be conclusive evidence of the same, unless challenged by the Customer within 3 (three) days of such confirmation; (g) If a booking is cancelled more than 2 months before campaign date, the Customer shall be liable to pay 30% of the applicable Fees (as set out in the quotation) to cover administration costs. If less than 2 months’ cancellation is given, 50% of the Fees will be due. If less than 2 weeks cancellation notice is given 100% of the Fees will be payable
Invoicing & Payment – (a) Bay may invoice the Customer monthly; (b) the Customer must pay all invoices within 30 days of invoice date; (c) Bay has the right to charge the Customer interest at2% above the base overdraft rate as defined by the Commonwealth Bank of Australia from time to time on all overdue accounts. Interest shall accrue on a day to day basis from and including the date of payment; (d) unless otherwise specified, the price quoted is for purchase and installation of the infrastructure with the specified number of banner changes; (e) In the event of any part of an account rendered by Bay being disputed by the Customer, the Customer shall nevertheless pay the disputed amount in accordance with this Clause, and the parties shall promptly refer the matter to dispute resolution.
Warranty and additional works – (a) Bay shall arrange for the Goods to be installed in a good and workmanlike manner and shall repair those Goods deemed by Bay to be damaged or defective due to defective workmanship and/or manufacture for a 12 (twelve) month period following the Works ; (b) the Customer hereby warrants and undertakes that for a 5 (five) year exclusive period from commencement of the Works any additional banner production, removal, installation and replacement of the Goods required by the Customer shall be carried out exclusively by Bay. This includes works required to be performed other than as a result of defective workmanship and/or manufacture (including changes of banners, removal/adjustment of positioning of Goods and replacement of the same due to the Customer’s and/or statutory or landlord requirements, third party acts or omissions including graffiti/vandalism, column damage, accident or damage arising as a consequence of weather or other adverse conditions); (c) for any such requirements set out in (b) above, save for the specified amounts for further printing campaigns as set out in the quotation, Bay may charge the Customer an additional Fee.
Maintenance and Servicing agreement – Upon the payment of an annual fee as set out in the quotation, Bay shall arrange for the inspection and maintenance of the Goods twice per annum. Any Banner Arms deemed by Bay to be damaged or defective due to defective workmanship and/or manufacture will be rectified. Any works required to be performed other than as a result of defective workmanship and/or manufacture (including worn or damaged banners, removal/adjustment of Goods, third party acts or omissions including graffiti/vandalism, column damage, accident or damage arising as a consequence of weather or other adverse conditions), will be notified to the Customer.
Claims – Advice of damage or loss of or damage to Goods during installation must be given in writing to Bay within 3 days of receipt of confirmation of completion of installation. Bay shall not be held liable in respect of any claim unless such requirements have been complied with.
Liability – (a) the Customer shall indemnify Bay against any loss or liability suffered or incurred by Bay where loss or liability arises by virtue of the act or omission of the Customer in relation to the Goods or Premises during or after delivery/installation; (b) except for express undertakings to indemnify and any warranties set out in this document, to the extent permitted by the law, Bay expressly excludes all conditions and warranties whether express or implied; (c) despite any other provision in this document or any Quotation, in no event will Bay be liable to any party including the Customer for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this document (including for loss of profits, use, data, or other economic advantage), however it arises, whether for breach of a term of this document or in tort (save for any liability resulting in respect of death or personal injury resulting only from Bay ’s direct negligence or wilful default); (d) in no event will Bay’s total aggregate liability in respect of all claims arising under or pursuant to this document exceed the amount paid to Bay under this document during the previous 12 months, regardless of whether those claims arise out of a single event or a number of different events; (e) certain provisions of the Trade Practices Act, 1974 (as amended) and other statutes, rules and regulations in Australia may imply certain non-excludable warranties or conditions. To the extent that they are not permitted to be excluded, Bay’s liability for breach of such conditions or warranties and the Customer’s sole and exclusive remedy in relation to such breaches shall be limited, at Bay’s option: (i) replacing or repairing Goods, or supplying of equivalent goods; (ii) providing the Services again; or (ii) paying the cost of replacing or repairing the Goods or of acquiring equivalent goods, or of having the Services (or equivalent services) provided again.
Exclusions from Liability -Bay shall not be liable to the Customer for any loss, damage or liability to any third parties arising at law or to the Customer’s property occasioned through any of the following: (i) the supply of defective Goods, (ii) existing agreements between the Customer and third parties; (iii) any variances (including but not limited to size, dimensions, proportions, look and feel) from inaccurate measurements taken during site visits and between installed banners and those depicted in computer mock-ups/visualizations or other sales materials; (iv) delay in completion/installation of orders, (v) delay in transit, (vi) number, positioning and/or locations of posts, structures or mounting positions, (vii) the increased load on posts, structures or mounting positions; (viii) the structure and/or length of specific posts, structures or mounting positions ; (ix) the height of the banners from ground level; (x) any statutory requirements including failure to obtain necessary consents (xi) damage to banners and/or lamp columns as a result of weather; (xii) the acts or omissions of third parties; (xiii) the Goods being installed on the posts, structures or mounting positions; (xiv) removal by Bay or any third party of any existing signage on posts, structures or mounting positions to accommodate the Goods and/or (xv) force majeure events (including wind) and the Customer shall fully indemnify Bay in respect of the same, unless directly caused by Bay’s negligence or willful default;
Insurances – The Customer hereby warrants undertakes and represents to fully indemnify Bay in respect of any all claims demands actions proceedings damages expenses and/or costs (including legal costs reasonably incurred) that would ordinarily be covered under public liability insurance cover (including damage to posts, structures or mounting positions) and for that purpose the Customer must to effect and maintain adequate public liability insurance cover with a reputable insurance company in respect of the Premises and Goods, and any claims made in relation thereto.
Loadings –The Customer warrants that it has independently determined the suitability of the Goods and Services for its purposes. It is the Customer’s responsibility to determine that all posts, structures and other mounting positions are able to withstand the increased load by the installation of any Goods or other infrastructure by Bay.
Termination– Bay may terminate any contract at any time by written notice to the Customer if the Customer (a) breaches any provision of this document and does not remedy that to Bay’s satisfaction within 7 days of Bay’s notice of the breach; or (b) commits an act of insolvency or is unable or is deemed to be unable to pay its debts as and when they fall due; (c) enters into, or resolves to enter into, a scheme of arrangement or composition with, or assignment for the benefit of its creditors, or proposes a reorganisation, moratorium or other administration involving it; (d) enters into a debt arrangement or composition with its creditors pursuant to the Corporations Act; (e) goes into liquidation; or (f) has a receiver or manager appointed over any of its asset. In that event Bay has the right not to proceed further with the contract or any other work for the Customer, and to charge for work already carried out (whether completed or not) and materials purchased for the Customer, together with all Fees that would have been payable for ongoing rental of the Goods for the remainder of the Term. Those amounts shall be a debt immediately due to Bay, and in respect of all unpaid debts due from the Customer Bay shall have a general lien on all goods and property of the Customer in Bay’s possession and shall be entitled on 14 days notice to dispose of such goods or property in such manner and at such price as it thinks fit, and to apply the proceeds towards the payment of such debts (after deducting the cost incurred storing and disposing of such goods or property, which shall also be a debt payable to Bay).
Copyright– The Customer shall indemnify Bay in respect of any claims, costs (including legal costs) demands and expenses arising out of any libellous matter or any infringement of copyright, patent, design or of any other proprietary or personal rights contained in any material printed for the Customer.
Force majeure –Bay shall be under no liability for any delay or non performance of its obligations herein for any cause or causes reason beyond its reasonable control including without limitation, Act of God, legislation, war, fire, flood, drought, failure of power supply, lock-out, strike or other action taken by employees in contemplation or furtherance of a dispute or owing to any liability to procure materials required for the performance of the contract.
Change of control – In such event that either party has a change of control through a business sale or sale of shares, this agreement shall continue in full effect and be binding on any successor accordingly
Exclusion of rights of third parties – The Customer may not assign any of its rights under this Agreement without Bay’s prior written consent
Law– These conditions and all other express terms of the contract shall be governed and construed in accordance with the laws of the State of Victoria and the courts of that state shall have exclusive jurisdiction to determine any disputes arising hereunder.