GENERAL TRADING TERMS & CONDITIONS
GENERAL
All work accepted by ADFX are subject to the terms and conditions set out herein and in the various ADFX documents and forms.
ADFX retains the right to freely utilise work they have produced to further promote and publish ADFX’s image i.e. on their website, used in case studies and creative portfolio.
Privacy Act
The Client and, in the case of a corporate client, its directors, representatives or agents, hereby authorises and unconditionally grants its consent to ADFX obtaining from a credit reporting agency or other person or company, information and/or reports concerning it from time to time during the continuance of its credit account so as to assist ADFX in deciding whether to grant credit or to continue to grant credit to it or for collecting overdue payments in respect of commercial credit applied for or provided to it.
The Client further authorises and consents to ADFX obtaining and disclosing information about its credit worthiness to and from credit reporting agencies and credit providers (including identity particulars and details of overdue payments), who have or are or intend to enter into some commercial or business dealings with it and/or grant credit to it.
For the purposes of this paragraph ‘report’ and ‘information’ include any credit report originating from a credit reporting agency or any other record or information that has any bearing on The Client’s creditworthiness, credit standing, credit history, credit capacity and personal information.
ACCOUNTS
Credit Accounts
A 30 day credit account can be established pending approval of the supply of a completed ADFX credit application, and limit approval by our credit insurer.
Failure by The Client to make payments within the agreed period will entitle ADFX to revise or cancel future media bookings and cancel any non-media projects, as it deems appropriate. Payments received after their due date may incur a 15% late payment fee. Credit accounts cannot be transferred to another business entity unless ADFX approval is given prior to booking placement.
ADFX disgressionary account for Media / Production only must be made within 7 days of receipt of invoice unless other terms have been agreed to.
Should The Client fail to make full payment for the cost of the work incurred then The Client agrees upon demand made by ADFX or its agent, to pay all costs, expenses and outgoings. Such costs, expenses and outgoings shall include but not be limited to the fees payable to agents engaged by ADFX as well as the fees for work completed by ADFX.
MEDIA PLACEMENT
Media Bookings
It is a condition of the placement of any media on behalf of an advertiser that ADFX first secures credit insurance on the advertiser’s media billings. Should credit insurance not be granted, a bank guarantee or payment in advance of advertising bookings will be required.
Media bookings will only be placed with the respective media companies by ADFX upon receiving The Client’s signed Booking Agreements and only if The Client does not have any overdue invoices.
The Client acknowledges ADFX imposes both booking and material deadlines. Failure to adhere to any deadline may result in the advertisement being withdrawn. Any additional costs will be incurred by The Client.
Request for any changes to services booked and supplied by ADFX will need to be supplied by The Client in writing.
Media Cancellation Deadlines
Cancellation of an advertising booking agreement made on behalf of The Client, is governed by the cancellation policy of the individual media entity providing inventory. Individual trading terms vary between each media company and in some cases cancellations may be rejected by the media and/or additional cancellation fees will be charged to The Client.
Please refer to the below media genre breakdown, to be used as a guide only.
A Guide to the Media Industry Deadlines:
TV ( Broadcast) Metro markets = 6 weeks prior to on-air date Regional markets = 4 weeks prior to on-air date
TV ( BVOD) – 30 days written notice prior to date of booking.
Cinema – strict non cancellation policy after booking agreements are signed.
Radio – 30 days written notice before the scheduled start date of any advertising.
Spotify – 14 days prior written notice.
Newspapers (print/digital) – vary in accordance to each individual publication booking/cancellation details – refer to publishers website for further details.
Magazines (print/digital)– vary in accordance to each individual publication booking/cancellation details – refer to publishers website for further details.
Out of Home (Billboards, Transit, Shopping Centres etc) – all media suppliers have a strict non cancellation policy after booking agreements are signed.
Digital Media (Google/Social/Programmatic campaigns) – non cancellation for first 3 months of campaign, and 30 days written notice thereafter.
Media suppliers cancellation policies may change without notice and are subject to management discretation.
ADFX enforces a further five business days cancellation deadline in addition to media deadlines for the purposes of administration / handling of the cancellation request to the appropriate personell and management teams.
Media Cancellations After Deadline
Cancellations requested after the cancellation deadline has passed, regardless of the circumstances, are at the sole discretion of the management of the media organisation.
Cancellations that are accepted after deadline are bound by either the ‘Defer & Charge’, ‘Delete & Charge’ or “Makegood” policies of respective media and may result in value loss and / or reduction in the effectiveness of the advertising campaign.
NON MEDIA PROJECTS
Quotations for all Non Media Projects
All quotations provided are based upon work required to fulfil The Client’s instructions and are valid for a period of 30 days from the date of the quote.
All quotations must have sign off supplied by The Client prior to commencement of the job.
Prices quoted will be based on the current cost of production and they are subject to amendment by ADFX before or after acceptance of the quotation to meet a variation in the cost of production between the date of quotation and the date of execution of the order.
Payment & Fees for all Non Media Projects
A 50% Deposit is required to initiate all non-media projects such as, but not limited to: Creative Design, Commercial Production, Web Development, Copywriting/Public Relations, Commercial Printing, Letterbox Drops and Merchandise orders, with balance due and payable upon completion or delivery of the project. This deposit is payable in advance, prior to the commencement of any non-media project.
If ADFX are contracted to provide services for a project and the project is cancelled, ADFX reserves the right to demand payment for all work and expenses incurred by ADFX.
Payments received after their due date may incur a 15% late payment fee.
Cancellations – Non Media Projects
ADFX does not refund for any monies paid for cancelled projects. Failure to pay any account by the due date or failure to comply with any of ADFX’s terms and conditions will be regarded as a default. In the event of default, ADFX at its absolute
discretion may cancel or suspend any of The Clients current working portfolio and demand payment for all outstanding charges which would otherwise not have been due.
The suspension by The Client of any work, for any reason whatsoever, for a period of thirty (30) days, shall entitle ADFX to payment in full for the portion of work completed.
Warranty & Indemnity
Clients and or advertisers upon and by lodging material with ADFX or authorising or approving of any material and in consideration of acceptance and publication of the same by ADFX, jointly and severally INDEMNIFY ADFX, its servants and agents against all liability, claims or proceedings whatsoever arising from the publication and indemnify each of them in relation to defamation, injurious falsehood, passing off, unfair competition, breach of contract, breach of copyright, misrepresentation, breach of warranty of authority or any breach of any federal, state, territory or local statute, regulation or other law giving rise to any civil or criminal liability whatsoever and warrant that the material complies with all relevant federal, state, territory and local laws and industry regulations and that its publication will not give rise to any rights against liabilities in ADFX, its servants or agents and in particular that nothing therein is capable of being misleading or deceptive or otherwise in breach of the Trade Practices Act 1974.
Release and Discharge
The Client hereby forever releases and discharges ADFX from and against all applications, actions, rights, claims, demands, liabilities and obligations of whatsoever nature and whether legal, equitable or statutory which they and any person whomsoever claiming under through or on their behalf, may have against ADFX in the event that ADFX supplies any information of The Client to any statutory bodies or agencies in the event of an investigation of The Client’s business or activities or alleged breach of industry code of practice.
Completed Projects
The Client agrees to allow ADFX the free use of all work including concepts and final artwork in which they have produced to promote ADFX range of services and campaign deliverables i.e. examples of work designed and produced by ADFX promoted on their website, social channels, and printed material.
ADFX will not supply any creative working files to The Client; only approved print ready or final artwork files will be supplied if requested by The Client.
Confidentiality
It is agreed that the directors, employees, and or agents of ADFX shall not at any time during the continuance of the work outlined or thereafter, except in the course of their duties, divulge any of the confidential affairs of The Client to anyone whatsoever without consent in writing by The Client.
Liability regarding work and materials provided
For the purpose for this clause and this entire Agreement, intellectual property is defined as follows:
Intellectual Property includes copyright, all rights conferred under statute, common law or equity in relation to inventions (including patents), registered and unregistered trade marks (including names, labels, get-up, colour schemes, logos, patterns or other identifying marks), registered and unregistered designs, circuit layouts, proprietary and other software, trade secrets, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields, together with all right, interest, or licence in or to any of the foregoing.
Any intellectual property developed, conceived, created, discovered or produced by ADFX is the sole and exclusive property of ADFX and ADFX shall own any right, title and interest to such intellectual property until full payment of creative development is paid to ADFX.
Without limiting this clause, ADFX owns the copyright on all Creative Concepts conceived, created, developed and presented to clients. Clients may not reproduce, publish or otherwise deal with the ideas and concepts created by ADFX, nor permit others to do so for any reason, without the written consent of ADFX. Any use of concepts presented to client without written consent of ADFX prior, will be deemed a breach of Copyright.
All moral rights are waived in association with intellectual property generated.
It is agreed that all work and materials provided for The Client by ADFX will be free and clear of all liens and encumbrances and may be lawfully used by The Client without infringing upon the rights of other including, and without limiting the generality of the foregoing, any copyright trade secret patent or trade mark rights of any third party, upon receipt of full payment only.
The client is solely responsible to ensure all advertising, communication and marketing material meets the advertising standards within their industry code.
Security Interest
1. 1. The Client:
(a) grants a security interest in all its present and after-acquired property and in all of its present and future rights in relation to any personal property (as defined in the Personal Property Securities Act 2009 “PPSA”) (“Personal Property”) to ADFX;
(b) charges all its rights, property and undertaking of whatever kind and wherever situated, whether present or future including, without limitation, its capital and any interest in real property (both legal and beneficial, in freehold and leasehold land) (other than any Personal Property to which the PPSA applies) to ADFX; and
(c) Agrees to mortgage all of its present and future interest in any real property to the ADFX (if required by ADFX) as security for the performance of its obligation under this Agreement including payment of the Amount(s) Payable.
2. The Client must, within 10 days of request from ADFX, execute such documents as ADFX requires to perfect the security interest, charge and mortgage. The Client must pay on demand any stamp duty (including any fines and penalties) assessed in connection with the security interest, charge and mortgage. The costs of registering a financing statement will be paid by the Application and may be debited against The Client’s Trading Account.
3. The Client acknowledges that ADFX, by virtue of the charge and mortgage, has a caveatable interest in any real property of The Client which is or becomes subject to the charge and/or mortgage and may lodge a caveat over that property.
Retention Of Title
1. Title to all Goods (including but not limited to ADFX’s concepts, intellectual property, designs and artwork) ordered or purchased by the Client whilst its trading account with ADFX has a debit balance (“Bailed Goods”) remains with ADFX.
2. The Client must hold all Bailed Goods in the possession of the Client:
(a) As fiduciary, bailee and agent of ADFX; and
(b) In a separate area and in such a manner that the Bailed Goods remain clearly identifiable and are able to be matched to specific invoices.
3. The Client is authorised to use the Bailed Goods in the ordinary course of its ordinary business, but only until:
(a) Notified in writing to the contrary by ADFX; or
(b) The occurrence of an event listed in subclauses 5(a) – 5(i) (inclusive).
4. The Client must hold the proceeds from the use of the Bailed Goods on trust for ADFX in a separate bank account and must not mix the proceeds with any other money, including The Client’s money.
5. if The Client or any person who has guaranteed the debts of The Client to ADFX:
a) becomes an ‘externally-administered body corporate’ within the meaning of the Corporations Act 2001;
b) has any step taken for its winding up or dissolution;
c) holds a meeting of directors which considers a resolution that an administrator should be appointed;
d) is insolvent within the meaning of the Corporations Act 2001, or being taken or presumed to be insolvent;
e) commits an ‘act of bankruptcy’ within the meaning of section 40 of the Bankruptcy Act 1966 or any amendment or replacement thereof;
f) has distress, attachment or other execution levied or enforced over any of its property;
g) fails to pay the entire amount payable to ADFX in accordance with this Agreement;
h) breaches any other provision of this Agreement; or
i) if, without the prior written consent of ADFX, there is a change in control of The Client (as defined in the Corporations Act 2001) or the business of The Client is sold to another person, The Client must immediately notify ADFX and ADFX may, at its election and without prejudice to other rights which ADFX may have:
j)declare the amount payable to ADFX to be immediately due for payment;
k) enter the premises at which the Bailed Goods are kept (“Premises) and remove the Bailed Goods from the Premises.
6. ADFX may sell, re-use or otherwise dispose of any Bailed Goods recovered by ADFX pursuant to this clause in its absolute discretion and on its own account, without limitation to any other rights which ADFX may have.
7. The Client indemnifies ADFX and every person acting on its behalf against any loss, damage, liability or expense incurred or sustained as a result of the reasonable exercise by ADFX of its rights under this clause.
8. This clause is for the benefit of ADFX, and ADFX may waive the benefit of this clause by giving notice in writing to The Client at any time.
9. Notwithstanding the other provision of this clause and without derogating from the rights of ADFX, ADFX may take any action it deems necessary, including legal proceedings, to recover as a liquidated debt an amount payable to ADFX.
10. The Client grants to ADFX a purchase money security interest, as defined in the PPSA in the Bailed Goods and proceeds of sale of the Bailed Goods (‘purchase money security interest [PMSI]’) to secure the purchase price of the Bailed Goods.
11. The costs of registering a financing statement will be paid by The Client and may be debited against The Client’s trading account with ADFX.
12. The Client agrees not to do or permit anything to be done that may result in the PMSI granted to ADFX ranking in priority behind any other security interest (as defined in the PPSA).
13. The Client will take such further steps (including obtaining consents, supplying information, signing forms or executing documents) which may be required by ADFX to take further or better security under the PPSA in respect of the Bailed Goods or to maintain the effectiveness or priority of any security interest under the PPSA.
Intellectual Property
Unless otherwise agreed in the Insertion Order, we or our licensors own the intellectual property in the Custom Materials, our trademarks and any other material developed or provided by us under this Agreement.
You and your licensors own the intellectual property in any Advertising Copy, your trademarks and any other material you provide to us under this Agreement.
Except as authorised by this Agreement, the parties agree not to:
reproduce the other party’s intellectual property; or
sub-license, on-supply or further syndicate the other party’s intellectual property on any website other than our sites.
Licence of Intellectual Property
You grant us a limited, non-exclusive and non-transferable licence to reproduce and communicate to the public the Advertising Copy on our sites in accordance with the Agreement.
You grant us a limited non-exclusive right to copy, adapt, modify and otherwise use any logos or other design materials you supply to use for the purposes of supplying you with Creative Services.
ADFX WEBSITE – TERMS OF USE
This website is presented by ADFX Pty Ltd for the purpose of disseminating information free of charge for the benefit of the public.
ADFX monitors the quality of the information available on this website and updates the information regularly. However, ADFX does not guarantee, and accepts no legal liability whatsoever arising from or connected to, the accuracy, reliability, currency or completeness of any material contained on this website or on any linked site.
ADFX recommends that users exercise their own skill and care with respect to their use of this website and that users carefully evaluate the accuracy, currency, completeness and relevance of the material on the website for their purposes.
The material on this website is a summary only of the subject matter covered and is not intended to be nor should it be relied on as a substitute for legal or other professional advice. Users should obtain any appropriate professional advice relevant to their particular circumstances.
The material on this website may include the views or recommendations of third parties, which do not necessarily reflect the views of ADFX, or indicate its commitment to a particular course of action.
For further information ADFX privacy, please see our Privacy Policy (attach a hyperlink on ‘Privacy Policy’ to take to public policy on website).
Links to external websites
This website contains links to other websites that are external to ADFX. ADFX takes reasonable care in linking to websites but has no direct control over the content of the linked sites, or the changes that may occur to the content on those sites. It is the responsibility of the user to make their own decisions about the accuracy, currency, reliability and correctness of information contained in linked external websites.
Links to external websites do not constitute an endorsement or a recommendation of any material on those sites or of any third party products or services offered by, from or through those sites. Users of links provided by this website are responsible for being aware of which organisation is hosting the website they visit.
Rights of refusal
ADFX retains the right of refusal to publish web resources or links, without notice or explanation.
Linking to this website
You may link to the ADFX website at your full expense and responsibility.
Security of the ADFX website
ADFX applies a range of security controls to protect its website from unauthorised access. However, users should be aware that the World Wide Web is an unsecured public network that gives rise to a potential risk that a user’s transactions are being viewed, intercepted or modified by third parties or that files which the user downloads may contain computer viruses, disabling codes, worms or other devices or defects.
ADFX does not warrant or represent that the material will not cause damage or is free from any computer virus or any other defects or errors. ADFX accepts no liability for any interference with or damage to a user’s computer system, software or data occurring in connection with or relating to this website or its use. Users are encouraged to take appropriate and adequate precautions to ensure that whatever is selected from this site is free of viruses or other contamination that may interfere with or damage the user’s computer system, software or data.
ADFX is not liable to users of the material for any loss or damage however caused resulting from the use of the material.
Copyright
All material presented on this website is provided under a Creative Commons Attribution 3.0 Australia licence.
The details of the relevant licence conditions are available on the Creative Commons website as is the full legal code for the CC BY 3.0 AU licence.
Content from this website should be attributed as ADFX Pty Ltd.
Third Party Copyright
To the extent that copyright subsists in a third party it remains with the original owner and permission may be required to reuse the material.