Terms and Conditions
Octomedia Pty Ltd – Terms & Conditions of Trade
1.1 All Services of Octomedia Pty Ltd, whether gratuitous or not, are supplied subject to these Terms and Conditions and:
(a) The provisions of Part I shall apply to the provision of all and any Services.
(b) The provisions of Part II shall only apply to the provision of Advertising, Marketing and Publishing Services
Part 1 – GENERAL TERMS
2.1 “Advertising Plan” means the supply of Services, subject to clause 7, for a specified period, as agreed between the two parties.
2.2 “Booking” shall mean the allocation of advertising (including but not limited to, printing, content creation, event sponsorship, etc) for the purpose of advertising in an Octo publication or on an Octo website.
2.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Octo to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
2.4 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter or any social media details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
2.5 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
2.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable through their website, prior to ordering Services via the website.
2.7 “Copy” shall mean any advertising materials (including but not limited to, manuscript, general copy, graphics and other digital display material or content) which are provided to Octo for insertion into an Octo publication, display on any Octo website or materials or printing for supply at a scheduled Event.
2.8 “Event” means any Event (including but not limited to, Inside Retail Live, exhibitions, campus sessions, conferences, workshops, Gala Dinner (Retailers Awards), women in leadership breakfast, pitch fest, and/or associated or bespoke events that the Client engages Octo to organise.
2.9 “Event Content” means all information, images, and other content posted on Octo’s Website related to Events.
2.10 “Event Page” means a webpage that Octo creates that includes the Event Content, terms and conditions for purchase, registration and Ticket booking functionality that can be accessed via a web browser or mobile device web browser.
2.11 “Event Organiser” means Octomedia Pty Ltd, who is engaged by the Client to act on the Client’s behalf in arranging a scheduled event and venue and which shall include all necessary advertising and ticketing.
2.12 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth). 2.13 “Incidental Items” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by Octo in the course of it conducting, or supplying to the Client, any Services.
2.14 “Octo” means Octomedia Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Octomedia Pty Ltd.
2.15 “Price” means the price payable (plus any GST where applicable) for the Services as agreed between Octo and the Client in accordance with clause 6 of this Contract and shall be Australian dollars ($AUD), unless otherwise specified.
2.16 “Services” means all Incidental Items (including copy, any printed or virtual material, samples, brands, designs, drawings, images, graphics, advertising, publications, data, files, information, and/or other associated documentation and/or goods) and/or Services (which includes any advice or recommendations, graphic design, consultancy, marketing assessment and planning, brand development, integration or strategies, analysis, project management or service/media sourcing, etc.) provided by Octo to the Client at the Client’s request from time to time (where the context so permits the terms ‘Incidental Items’ or ‘Services’ shall be interchangeable for the other).
3.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by Octo. An order can be constituted as an official purchase order, signed proposal or quotation, written email or a verbal approval to proceed with the Services.
3.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
3.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
3.4 None of Octo’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by Octomedia Pty Ltd or Octo’s official spokesperson in writing, nor is Octo bound by any such unauthorised statements.
3.5 Once accepted by the Client, Octo’s quotation shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, Octo shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
3.6 Both parties represent and warrant that no conflict of interest exists, or is likely to arise in Octo’s provision of the Services at the date of this contract.
3.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Errors and Omissions
4.1 The Client acknowledges and accepts that Octo shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by Octo in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Octo in respect of the Services.
4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of Octo; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
5. Change in Control
5.1 The Client shall give Octo not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by Octo as a result of the Client’s failure to comply with this clause.
6. Price and Payment
6.1 At Octo’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Octo to the Client; or
(b) (where the Client is on a “Advertising Plan”), the Client is required to pay an agreed amount for the on-going provision of the Services to the Client by Octo as stipulated in this Contract; or
(c) Octo’s quoted Price (subject to clause 6.2) which shall be indicated on Octo’s quotation and: (i) will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days; (ii) subject to any conditions stated therein.
6.2 Octo reserves the right to change the Price if a variation to Octo’s quotation is requested. Variations will be charged for on the basis of Octo’s quotation, and will be detailed in writing, and shown as variations on Octo’s invoice. The Client shall be required to respond to any variation submitted by Octo within ten (10) working days. Failure to do so will entitle Octo to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
6.3 When quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other good Copy, any extra work or cost caused by any variation by the Client of his original instructions or by the manuscript copy being, in Octo’s opinion, poorly prepared or by the Client’s requirements being different from those originally submitted or described may be charged to the Client and shown as extras on the invoice.
6.4 When style, type or layout is left to Octo’s judgement and then the Client makes further alterations to the Copy this will be invoiced as an extra.
6.5 Octo may at the request of the Client agree to produce Copy or other materials for the Client for a negotiated fee, which fee shall be charged in addition to the Price payable for any advertising or Services requested via a Booking form.
6.6 If the Client is an advertising agency then the agency may claim an agency rebate of ten percent (10%) of the Price payable less GST. Such rebate shall only be applicable where payment is made by the invoice due date.
6.7 At Octo’s sole discretion a non-refundable deposit of forty percent (40%) may be required.
6.8 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by Octo, which may
(a) before delivery of the Services;
(b) by way of instalments/progress payments in accordance with Octo’s payment schedule;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Client by Octo.
6.9 Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Octo.
6.10 Octo may in its discretion allocate any payment received from the Client towards any invoice that Octo determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Octo may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Octo, payment will be deemed to be allocated in such manner as preserves the maximum value of Octo’s Purchase Money Security Interest (as defined in the PPSA) in the Services.
6.11 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 Octo nor to withhold payment of any invoice because part of that invoice is in dispute.
6.12 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Octo an amount equal to any GST Octo must pay for any supply by Octo under this or any other agreement for providing Octo’s Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Advertising Plan
7.1 Where this Contract is for ongoing Services, the initial fixed Term (“Term”) shall be specified as stated in Octo’s Advertising Plan
documentation and shall terminate in accordance with the initial timeframe stated. Any additional Term agreed to, will be subject to
acceptance and signing under a separate contract.
7.2 Failure by the Client to maintain their Advertising Plan fees, as agreed shall allow Octo to reserve their right to suspend the Services in
accordance with clause 17.1.
8. Provision of the Services
8.1 Delivery shall be deemed to have taken place immediately that Octo has provided its Services and/or advertising has been published either in any publication or website by Octo in accordance with the agreed booking.
8.2 Any time specified by Octo for delivery of the Services is an estimate only and Octo will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that Octo is unable to supply the Services as agreed solely due to any action or inaction of the Client then Octo shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
9.1 Irrespective of whether Octo retains ownership of any Incidental Items all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as Octo may repossess the Incidental Items in accordance with clause 10.1(b). The Client must insure all Incidental Items on or before delivery.
9.2 Octo reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Client’s failure to insure in accordance with clause 9.1.
10. Title to Incidental Items
10.1 Octo and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until:
(a) the Client has paid Octo all amounts owing for the Services; and
(b) the Client has met all other obligations due by the Client to Octo in respect of all contracts between Octo and the Client notwithstanding
that if the Incidental Items are in the physical possession of the Client then those Incidental Items shall be at the Clients sole risk and it
shall be the Clients responsibility to ensure the Incidental Items are insured adequately or at all.
10.2 Receipt by Octo 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 Octo’s ownership or rights in respect of the Incidental Items shall continue.
10.3 It is further agreed that, until ownership of the Incidental Items passes to the Client in accordance with clause 10.1:
(a) until such time as the ownership of the Incidental Items provided as part of the Services shall pass from Octo to the Client Octo may give notice in writing to the Client to return the Incidental Items or any of them to Octo. Upon such notice the rights of the Client to obtain ownership or any other interest in the Services shall cease.
(b) if the Client fails to return such Incidental Items to Octo then Octo or Octo’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Incidental Items are situated and take possession of the Incidental Items.
11. Personal Property Securities Act 2009 (“PPSA”)
11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
11.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in:
(a) all Incidental Items previously supplied by Octo to the Client;
(b) all Incidental Items will be supplied in the future by Octo to the Client; and
(c) all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to Octo for Services – that have previously been provided and that will be provided in the future by Octo to the Client.
11.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in
all respects) which Octo may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities
(iii) correct a defect in a statement referred to in clause 11.3(a)(i) or 11.3(a)(ii);
(b) indemnify, and upon demand reimburse, Octo for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Incidental Items charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Octo;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items in favour
of a third party without the prior written consent of Octo.
11.4 Octo and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and
11.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7 Unless otherwise agreed to in writing by Octo, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.8 The Client must unconditionally ratify any actions taken by Octo under clauses 11.3 to 11.5.
11.9 Subject to any express provisions to the contrary (including those contained in this clause 11), nothing in these terms and conditions is
intended to have the effect of contracting out of any of the provisions of the PPSA.
12. Security and Charge
12.1 In consideration of Octo agreeing to supply Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
12.2 The Client indemnifies Octo from and against all Octo’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Octo’s rights under this clause.
12.3 The Client irrevocably appoints Octo and each director of Octo as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.
13. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
13.1 The Client must inspect Octo’s Services on completion and must within seven (7) days notify Octo in writing of any evident defect in the Services or Incidental Items provided (including Octo’s workmanship) or of any other failure by Octo to comply with the description of, or quote for, the Services which Octo was to supply. The Client must notify any other alleged defect in Octo’s Services or Incidental Items as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Octo to review the Services or Incidental Items that were provided.
13.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non- Excluded Guarantees).
13.3 Octo acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Octo makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. Octo’s liability in
respect of these warranties is limited to the fullest extent permitted by law.
13.5 If the Client is a consumer within the meaning of the CCA, Octo’s liability is limited to the extent permitted by section 64A of Schedule 2.
13.6 If Octo is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then
Octo may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Incidental Items which have been provided to the Client which were not defective.
14. Intellectual Property
14.1 The Client acknowledges and agrees that all campaigns, trademarks, service marks, slogans, artwork, written materials, drawings, photographs, graphic materials, film, music, transcriptions or other materials that are subject to copyright, trademark, patent or similar protection produced by Octo as part of providing the Service to the Client shall become the property of the Client, unless otherwise stated, provided:
(a) the Services are accepted in writing by the Client within twelve (12) months of being provided Octo; and
(b) the Client has paid Octo all amount owing in relation to the Price (and any costs associated with creating and, where applicable,
producing such Services).
14.2 Notwithstanding clause 14.1, it is understood that Octo may, on occasion, license materials from third parties for inclusion in the Services. In
such circumstances, ownership of such licensed materials remains with the licensor at the conclusion of the term of the licence. In such instances, the Client agrees that they remain bound by the terms and conditions of such licences. Octo will keep the Client informed of any such limitations.
14.3 The Client warrants that all designs, specifications or instructions given to Octo will not cause Octo to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Octo against any action taken by a third party against Octo in respect of any such infringement.
14.4 The Client undertakes to acknowledge Octo’s design or drawings in the event that images of the Incidental Items are utilised in advertising or marketing material by the Client.
14.5 The Client agrees that Octo may (at no cost) use for the purposes of marketing or entry into any competition, any Incidental Items which Octo has created for the Client.
15. Confidential Information/Conflict of Interest
15.1 Both parties undertake to treat all information which is not in the public domain as confidential, and not to disclose, duplicate, use or permit the use of any information, documents or materials that are reasonably considered confidential regarding the other party’s products, business, customers, clients, suppliers or methods of operation, at any time in any way, other than for the purpose of providing and using the Services according to this Contract, and shall use best endeavours to protect the confidentiality of the other party’s confidential information which they may become aware.
15.2 Furthermore, the Client agrees to treat all information and ideas communicated to them (including Incidental Items), by Octo, (“Confidential Information”) confidentially and agree not to divulge it to any third party, without written consent from Octo. The Client will not copy any such Confidential Information supplied, and will either return it or destroy it (together with any copies thereof) on request of Octo.
15.3 The Client agrees that they will ensure that they, and their employees and agents, will not disclose Confidential Information to any other person without the written consent of Octo.
15.4 Octo is obliged to remain vigilant to, and to advise the Client of, any conflict of interest that may potentially impact or harm the Client. To avoid conflict of interest and commercial sensitivities, it is agreed by Octo that any and all information regards the Client (and their business, commercial agenda and employees) shall remain confidential at all times and shall only be disclosed in the event of legal order or obligation.
15.5 The obligations of confidentiality shall survive the finalisation or discontinuance of any contract between the Client and Octo.
16. Default and Consequences of Default
16.1 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 a half percent (2.5%) per calendar month (and at Octo’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Client owes Octo any money the Client shall indemnify Octo from and against all costs and disbursements incurred by Octo in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Octo’s contract default fee, and bank dishonour fees).
16.3 Further to any other rights or remedies Octo may have under this Contract, if a Client has made payment to Octo, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Octo under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
16.4 Without prejudice to Octo’s other remedies at law Octo shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Octo shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Octo becomes overdue, or in Octo’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by Octo;
(c) 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
17.1 Without prejudice to any other remedies Octo may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Octo may suspend or terminate the supply of Services to the Client. Octo will not be liable to the Client for any loss or damage the Client suffers because Octo has exercised its rights under this clause.
17.2 Either party may terminate this Contract, or otherwise the provision of the Services by providing the other party with no less than thirty (30) days’ notice in writing, subject to:
(a) where Octo cancels any Contract to which these terms and conditions apply or cancel the Services at any time before the Services are
delivered, then upon giving such notice Octo shall repay to the Client any money paid by the Client for the Services. Octo shall not be
liable for any loss or damage whatsoever arising from such cancellation;
(b) where the Client cancels the Services, then the Client shall be liable to Octo for any losses or costs incurred (whether direct or indirect)
by Octo (including, but not limited to, any loss of profits) up to the time of, or as a result of the cancellation, notwithstanding that at Octo’s sole discretion:
(i) if the Client cancels giving:
(A) more than 60 days’ notice from the schedule publication date of any Octo printed/digital publication or any schedule date of a planned “Event”, a fifty percent (50%) cancellation fee will apply; or
(B) less than 60 days’ notice from the schedule publication date of any Octo printed/digital publication or any schedule date of a planned “Event”, then the full Contract Price will apply and the Client may request to have the Copy run and/or Services provided within twelve (12) months of the original Booking Date;
(c) In the event of the premature termination of an Advertising Plan (including by notification from the Client, (at least thirty (30) days prior to the expiration date of the Contract term), or as a result of Default, but excluding any breach or termination of this Contract by Octo):
(i) the Client shall be responsible for the immediate payment of the following sums:
(A) the balance of the full Contract Price, where there is one (1) month remaining under the Contract term and less than thirty (30) days written notice is given; or
(B) all monies due and payable up to the date of termination, noting applicable rates may change, if the Advertising Plan is shorter than that noted in the quotation; and
(C) all other sums owing by the Client under this Contract (or any other Contract with the Client) as a result of the Default and termination of this Contract, including consequential damages and any and all loss of profits, costs, charges and expenses incurred by Octo in connection with (and resulting from) the premature termination of this Contract, which shall be calculated at a minimum of fifty percent (50%) of the remainder of the Price under this Contract where a fixed term applies.
18.1 All emails, documents, images or other recorded information held or used by Octo is Personal Information, as defined and referred to in clause 18.3, and therefore considered Confidential Information. Octo acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Octo acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by Octo that may result in serious harm to the Client, Octo will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
18.2 Notwithstanding clause 18.1, privacy limitations will extend to Octo in respect of Cookies where transactions for purchases/orders transpire directly from Octo’s website. Octo agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Octo when Octo sends an email to the Client, so Octo may collect and review that information (“collectively
In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via Octo’s website.
18.3 The Client agrees for Octo to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by Octo.
18.4 The Client agrees that Octo may exchange information about the Client with those credit providers and with related body corporates 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
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
18.5 The Client consents to Octo being given a consumer credit report to collect overdue payment on commercial credit.
18.6 The Client agrees that personal credit information provided may be used and retained by Octo for the following purposes (and for other
agreed purposes or required by):
(a) the provision of Services; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Services.
18.7 Octo may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
18.8 The information given to the CRB may include:
(a) Personal Information as outlined in 18.3 above;
(b) name of the credit provider and that Octo is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account
and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty
(60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Octo has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Octo, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
18.9 The Client shall have the right to request (by e-mail) from Octo:
(a) a copy of the Personal Information about the Client retained by Octo and the right to request that Octo correct any incorrect Personal Information; and
(b) that Octo does not disclose any Personal Information about the Client for the purpose of direct marketing.
18.10 Octo will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil
the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
18.11 The Client can make a privacy complaint by contacting Octo via e-mail. Octo will respond to that complaint within seven (7) days of receipt
and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
19. Service of Notices
19.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the
(e) if sent by email to the other party’s last known email address.
19.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
20.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Octo may have notice of the Trust, the Client covenants with Octo as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not
purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right
of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not without consent in writing of Octo (Octo will not unreasonably withhold consent), cause, permit, or suffer to happen any
of the following events:
(i) the removal, replacement or retirement of the Client as trustee of the Trust; (ii) anyalterationtoorvariationofthetermsoftheTrust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
21.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. 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.
21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales the state in which Octo has its principal place of business, and are subject to the jurisdiction of the Sydney Courts in that state.
21.3 Subject to clause 13, Octo shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Octo of these terms and conditions (alternatively Octo’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
21.4 Octo may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
21.5 The Client cannot licence or assign without the written approval of Octo.
21.6 Octo may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so
doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Octo’s sub-contractors
without the authority of Octo.
21.7 The Client agrees that Octo may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such
to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise
at such time as the Client makes a further request for Octo to provide Services to the Client.
21.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other
event beyond the reasonable control of either party.
21.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do
so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
Part II – Advertising, Marketing and Publishing Services
22.1 Octo reserves the right to withdraw any publication at any time and for any reason without any liability to the Client whatsoever, except that in such event Octo shall refund the Client any payments already received by Octo for Services that relate directly to that publication.
22.2 Octo reserves the right to change the scheduled date of a publication any time and for any reason without any liability to the Client whatsoever.
22.3 Whilst Octo shall make every endeavour to position or place advertising where agreed between the parties, the Client acknowledges that the final positioning or placement of advertising remains at Octo’s sole discretion.
22.4 If Octo offers any bonus space in any publication or on a website then this may be provided in conjunction with a scheduled booking or in a future publication at the discretion of Octo.
22.5 The Client acknowledges that for online publications Octo offers no representation or warranty in relation to the number of visitors to Octo’s websites, around statistics, the level of clicks or impressions. All statistics supplied by Octo shall be considered final.
23.1 The Client acknowledges that when they request the publication of Copy in any Octo publication that they shall do so by contacting Octo directly or through a media agency and the Client will subsequently be supplied with a Booking request form or an official agency insertion request. The Client acknowledges that they shall be required to sign the appropriate form and return it in order for a Booking to be made and/or confirmed.
24. Copy Lodgement
24.1 The Client must lodge all Copy in accordance with Octo’s Copy Lodgement Requirements (Copy Lodgement Requirements shall mean copy lodgement and production requirements as is specified from time to time by Octo).
24.2 If Copy is not lodged as required by Octo then Octo shall still be entitled to payment for the Booking and may (at its sole discretion) elect to publish Copy previously provided by the Client or to cancel the Booking.
24.3 Octo reserves the right to place the word “advertisement” above or below any Copy which in Octo’s opinion resembles editorial matter.
24.4 Copy must be supplied in a timely fashion in accordance with agreed deadlines specified at the time of Booking and is subject to editorial review. Octo (at its sole discretion) may refuse to accept, or request modification of any Copy supplied for publication, and may at any time cancel or reschedule any Booking, where Octo’s specified deadlines or Copy Lodgement Requirements are not met, even after a Booking
request or agency insertion order has been accepted.
24.5 If Copy has been received late for any reason and Octo is unable to publish the same then the Client shall remain liable for payment of the
scheduled Booking or insertion request.
24.6 For online publications all Copy must be supplied no less than five (5) working days prior to the scheduled advertising start date and all click through URL’s must allow the back button to return to Octo’s website.
25. Client Warranties
25.1 The Client acknowledges that all Copy is subject to the approval of Octo and may, regardless of prior approval, be rejected and removed by Octo.
25.2 The Client shall provide Octo with data in the following formats:
(a) for text, files shall be in an electronic format as standard text (.txt) or Word (.doc) on a USB, CD-ROcto or via email;
(b) for images, in an electronic format as prescribed by Octo on a USB, CD-ROcto or via email with the images of a suitable quality
applicable for the use intended and without any subsequent image processing being required. Octo shall not be responsible for the
quality of images scanned from printed materials;
(c) additional expenses may be charged to the Client for any necessary action, including, but not limited to, photography and art direction,
photography searches, media conversion, digital image processing or data entry services.
25.3 The Client warrants that that all Copy lodged with Octo;
(a) be true and correct in every particular; and
(b) does not contain Prohibited Content; and
(c) be non-political and non-religious by nature, and suitable for viewer of all ages; and
(d) not be, nor contain, anything that is defamatory of any person or is indecent or obscene; and
(e) complies with all laws, regulations, codes of practice, guidelines and any standards applicable to the advertising industry and as
determined by any relevant regulatory agency or industry self-regulatory body (including, but not limited to, the Fair Trading Act 1986
and the Advertising Codes of Practice of the Advertising Standards Authority Inc.); and
(f) does not infringe copyright, trademark or any other legal rights of another person and/or entity; and
(g) does not contain anything which may give rise to any cause of action by a third party against Octo (including, but not limited to,
material that may cause damage or injury to any person and/or entity); and
(h) is not false or misleading and is true in substance and in fact; and
(i) not contain nor constitute a statement that is misleading or deceptive or likely to deceive or to mislead or which is otherwise in breach
of a provision of the Competition and Consumer Act 2010 or any other Commonwealth legislation of the applicable State.
25.4 Under pressure of deadline Octo reserves the right to amend copy, if Octo believes that the Copy (or any part of it) contravenes any of the
above provisions, such amendments shall be made without any liability to the Client or Price reduction whatsoever.
25.5 Octo reserves the right to refuse to accept any Copy that does not comply with clause 25.3.
26.1 The Client agrees to indemnify Octo, it’s employees, agents and affiliates, and their employees and agents against any action, claim, loss or expense arising from the publication of Copy, cancellation of, or failure to publish any Copy, and all costs, losses and expenses suffered or incurred by Octo, its employees, agents and affiliates, and their employees and agents as a result of any breach by the Client of clause 25.2 or any other agreement between the Client and Octo.
27. Design Concepts and Projects
27.1 Octo shall provide initial concepts as stated in the proposal/quotation for the Client’s consideration. Additional concepts, if requested by the Client could be charged accordingly by Octo.
27.2 All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client.
27.3 When style, type or layout is left to Octo’s judgement and then the Client makes further alterations to the copy this will be invoiced as an
27.4 The Client acknowledges that any artwork provided by Octo may not be to scale. In addition, whilst Octo will endeavour to provide an
accurate representation of any artwork, the Client accepts that some discrepancy may occur between on-screen and/or photographic views
and the physical artwork when viewed in an electronic form.
27.5 Client’s Property and Materials:
(a) Graphic files should be supplied in an editable, vector digital format and photographs in a high resolution digital format. If the Client chooses to purchase stock photographs, Octo can suggest stock libraries.
(b) In the case of property and materials left with Octo without specific instructions, Octo shall be free to dispose of them at the end of six (6) months after their receiving them and to accept and retain the proceeds, if any, to cover their own costs in holding and handling them.
(c) The Client accepts that Octo shall only retain the Client’s files and materials for the purposes of providing the Services.
(d) Any change or correction to any digital files, film, artwork and/or printing surface supplied by the Client which is deemed necessary by
Octo to ensure correctly finished work shall be invoiced as an extra.