1.1 ”PowerfulPoints”means Powerfulpoints Pty Ltd T/A PowerfulPoints, its successors and assigns, or any person acting on behalf of, and with the authority of, Powerfulpoints Pty Ltd T/A PowerfulPoints.
1.2 ”Clients”means the person/s requesting PowerfulPoints to provide the Services as specified in any quotation, order, invoice or other document, and if there more than one person requesting the Services is a reference to each person jointly and severally.
1.3 ”Services”means all multimedia presentations and/or design and training services provided by PowerfulPoints to the Client at the Client’s request from time to time, and includes any information, advice, recommendations, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques and concepts
1.4 ”Content”shall mean any presentation, template, copy, graphics and other digital display material and/or content supplied by the Client for the provision of the Services.
1.5 ”Fee/s”means the price payable for the Services as agreed between the parties in accordance with clause 5 of the contract.
1.6 ”Prohibited Content”means any Content that:
(a) is, or could reasonably be considered to be, in breach of any 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 the Broadcast Services Amendment (Online Service) Act 1999 (Cth), the Competition and Consumer Act 2010 (Cth), the Fair Trading Act 1986 and the Advertising Codes of Practice of the Advertising Standards Authority Inc.); or
(b) contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, false, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
(c) is, or could reasonably be considered to be, in breach of, or infringing on, any intellectual property rights, copyright, trademark or any other legal rights of another person and/or entity. The Client agrees to indemnify PowerfulPoints against any action taken by a third party against PowerfulPoints in respect of any such infringement.
1.7 ”Confidential Information”means (and includes) any information marked as confidential and any information received or developed by PowerfulPoints during the term of the contract which is not publicly available and relates to processes, equipment and techniques used by the Client in the course of its business, including all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form or any other intellectual property, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information (such as values) and business plans.
2.1 In these terms and conditions, unless the context otherwise requires:
(a) words importing the singular number include the plural number, and vice versa; and
(b) words importing persons include firms, companies and corporations, and vice versa; and
(c) references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to these terms and conditions; and
(d) reference in any schedule to these terms and conditions to numbered paragraphs relate to the numbered paragraphs of that schedule; and
(e) any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done; and
(f) the headings to the clauses and schedules of these terms and conditions are not to affect the interpretation; and
(g) any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
(h) the word “including” (and related forms including “includes”) shall be understood as meaning “including without limitation”.
3.1 The Client is taken to have exclusively accepted, and is immediately bound, jointly and severally, by these terms and conditions where the Client places an order for, or accepts, Services provided by PowerfulPoints. 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 These terms and conditions contain the whole agreement between the parties in respect of the subject matter of the contract, and:
(a) supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter; and
(b) may only be amended in writing signed by duly authorised representatives of the parties, and shall prevail to the extent of any inconsistency with any other document or agreement between the parties; and
(c) do not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in these terms and conditions.
3.3 The parties confirm that they have not entered into the contract on the basis of any representation that is not expressly incorporated into these terms and conditions.
3.4 Neither party shall have, nor represent that it has, any authority to make any commitments on the other party's behalf.
3.5 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. Change in Control
4.1 The Client shall give PowerfulPoints not less than 30 days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including changes in the Client’s name, address/es, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by PowerfulPoints as a result of the Client’s failure to comply with this clause.
5. Fee/s and Payment
5.1 At PowerfulPoints’ sole discretion the Fee/s shall be either:
(a) as indicated on any invoice provided by PowerfulPoints to the Client; or
(b) the Fee/s as at the date of provision of the Services according to PowerfulPoints’ current daily or hourly rate/s. Any time spent which is less than 1 hour is charged on a pro-rated basis in 6 minute increments. PowerfulPoints shall be entitled to vary the rate/s during the term of the contract; before implementing any such new rate/s, PowerfulPoints shall provide them to the Client; or
(c) PowerfulPoints’ quoted Fee/s (subject to clause 6) which will be valid for the period stated in the quotation, or otherwise for a period of 30 days, and variations may apply on sighting artwork any unseen elements.
5.2 Unless otherwise specified (or quoted) in writing, PowerfulPoints’ quotation:
(i) authors corrections (alterations to structure or design after approval has been given after any stage); and
(ii) finished presentation ready for delivery, including animations and transitions; and
(iii) supply of files throughout the production and a presentation on USB, if requested; and
(iv) a revision of the Services 14 days after the presentation has been made, or it has been presented a minimum of 5 times; this revision is limited to minor updates only.
(b) does not include:
(i) authors corrections (alterations to structure or design after approval has been given after any stage); and
(ii) logo or identity designs; and
(iii) copyright; and
(iv) archived file retrievals; and
(v) couriers; and
(vi) in the case of travel, if required, a per diem per day is charged for each night away from Sydney. This covers all accommodation, meals and ground transport costs. Conversely, the Client can arrange accommodation and all taxis, meals, car hire, and other expenses related to the cost of the travel will be rebilled at cost plus 10%; and
(vii) installation of software, if necessary; and
(viii) cost of images.
5.3 At PowerfulPoints’ sole discretion, a non-refundable deposit of:
(a) 50% shall be required where the Fee/s for the Services are more than $2,000; the balance to be payable in accordance with clause 5.4(b); or
(b) 25% shall be required for training on booking thereof; the balance to be payable in accordance with clause 5.4(d).
5.4 Time for payment for the Services being of the essence, the Fee/s will be payable by the Client on the date/s determined by PowerfulPoints, which may be:
(a) on commencement of the Services where the Fee/s for the Services are less than $2,000; or
(b) by way of monthly progress payments in the event the Services are of a duration of more than 30 days, which will be invoiced by PowerfulPoints at the end of each month for time used if the Services up to that date exceeds the amount that is covered by the deposit; or
(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 30 days following the date of any invoice furnished to the Client by PowerfulPoints.
5.5 Unless otherwise stated the Fee/s do not include GST. In addition to the Fee/s the Client must pay to PowerfulPoints an amount equal to any GST PowerfulPoints must pay for any provision of Services by PowerfulPoints under the contract or any other agreement. 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 Fee/s. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Fee/s, except where they are expressly included in the Fee/s.
5.6 When the Client makes payment of any invoice/s, they must quote the relevant reference and/or invoice number/s. Such payment may be made by:
(a) direct debit (or electronic/on-line banking); or
(b) MasterCard and Visa – which will incur a surcharge of 2%; or
(c) cheque (and any other form of payment as agreed to between the parties) – which will incur a handling fee of $20.00.
5.7 PowerfulPoints may, at its sole discretion, offer a discount of 5% of the invoiced amount where the Client makes payment within 14 days of the date of the invoice/s or 2.5% where the client makes payment within 30 days of the date of the invoice/s.
5.8 The Client may claim this discount at the time of payment (provided it is within the specified time) or by requesting a credit note up to 30 days after payment. The discount is not available after 30 days from payment.
5.9 Both parties agree that the Client’s obligations to PowerfulPoints under the contract for the provision of the Services shall not cease until:
(a) the Client has paid PowerfulPoints all amounts owing for the Services; and
(b) the Client has met all other obligations due by the Client to PowerfulPoints in respect of all contracts between the parties.
5.10 Receipt by PowerfulPoints 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.
5.11 The Client shall not be entitled to set off against, or deduct from the Fee/s, any sums owed (or claimed to be owed) to the Client by PowerfulPoints, nor to withhold payment of any invoice because part of that invoice is in dispute.
6. Variations and Reimbursable Expenses
6.1 PowerfulPoints’ quotation is based upon discussions with, and materials supplied, by the Client. In many cases the Services cannot be fully scoped until more work is undertaken, such as the presentation theme. All endeavours have been made to make PowerfulPoints’ quotation as accurate as possible; however, PowerfulPoints reserves the right to vary its quotation, including:
(a) when the presentation theme is agreed to between the parties. Should agreement on any variation to the Services not be reached at presentation stage, either party has the right to cancel the contract; and
(b) where quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other Content, any extra work or cost caused by any variation by the Client of its original instructions or by the Content being, in PowerfulPoints’ opinion, poorly prepared, or by the Client’s requirements being different from those originally submitted or described; or
(c) all work carried out whether experimentally, speculatively, or otherwise at the Client’s request; or
(d) any tabulated work and/or foreign language included in the job but not contained in the Content originally submitted; or
(e) any fonts, or colour proofs, or artwork, specially bought at the Client’s request for the Services; or
(f) when style, type or layout is left to PowerfulPoints’ judgement, and the Client requires further alterations.
6.2 PowerfulPoints is permitted to charge the Client for all costs and expenses incurred in providing the Services which are not included in its quotation, including travel, photocopying, courier services, postage, etc. at cost plus 10%.
7. Client’s Obligations
7.1 During the terms of the contract the Client will:
(a) co-operate with PowerfulPoints, as it reasonably requires; and
(b) provide the information and documentation that PowerfulPoints reasonably requires; and
(c) make available to PowerfulPoints such facilities, as it reasonably requires, and will not charge for such use of the facilities. In the event the Client does not provide the facilities (and within the time period required by PowerfulPoints), then any additional costs and expenses which are reasonably incurred by PowerfulPoints will be payable by the Client; and
(d) ensure that the Client’s staff and agents co-operate with, and assist, PowerfulPoints.
8. Proof Reading
8.1 Whilst every care is taken by PowerfulPoints to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading, which will be sent to the Client and will be deemed accepted if no response is received by the Client within 24 hours of PowerfulPoints’ submission thereof. PowerfulPoints shall be under no liability whatever for any errors not corrected by the Client in the final proof reading, and should the Client’s alterations require additional proofs this shall be invoiced as an extra in accordance with clause 6.
9. Provision of the Services
9.1 Any time specified by PowerfulPoints for provision of the Services is an estimate only and PowerfulPoints will not be liable for any loss or damage incurred by the Client as a result of provision being late. However, both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that PowerfulPoints is unable to provide the Services as agreed solely due to any action or inaction of the Client, then PowerfulPoints shall be entitled to charge the Client additionally for re-providing the Services at a later time and date.
9.2 PowerfulPoints may provide the Services in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
9.3 Throughout the continuance of the contract, PowerfulPoints shall comply (at its own cost and expense) with all Acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, State and local government departments, bodies, and public authorities or other authorities, so far as the same may affect, or apply, to PowerfulPoints or the Services, and PowerfulPoints shall indemnify the Client from and against all actions, costs, charges, claims and demands in respect thereof.
9.4 PowerfulPoints provides no warranty that any result or objective can, or will, be achieved, or attained, at all, or by a given completion date or any other date, whether stated in these terms and conditions or elsewhere.
9.5 PowerfulPoints reserves the right to discard all material used 1 year after the completion date of the Services.
10.1 The Client acknowledges and agrees that PowerfulPoints shall not be held responsible or liable for any Content breaching any Acts, legislation or regulations, unless due to the negligence of PowerfulPoints.
10.2 The Client acknowledges that any advice or recommendations by PowerfulPoints are provided in good faith and on the basis of PowerfulPoints’ industry knowledge, experience and professional judgement only, and shall not be deemed as specialist advice.
11.1 The Client acknowledges that all Content is subject to the approval of PowerfulPoints and may, regardless of prior approval, be rejected and removed by PowerfulPoints.
11.2 The Client warrants that all Content to be used for the provision of the Services shall:
(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) does not contain anything which may give rise to any cause of action by a third against PowerfulPoints (including material that may cause damage or injury to any person and/or entity)
11.3 The Client shall indemnify, and keep indemnified, PowerfulPoints at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against PowerfulPoints, or incurred or become payable by PowerfulPoints, resulting or arising from the Client being in breach of clause 11.1
11.4 PowerfulPoints reserves the right to refuse to accept any Content that does not comply with clause 11.1.
12. Warranties, Liabilities and Indemnities
12.1 PowerfulPoints warrants that it will use reasonable care and skill in providing the Services. In the event the Services are found to be defective (including where due to any negligence, error or omission on the part of PowerfulPoints, or any failure by PowerfulPoints to comply with the description of, or quotation for the Services which PowerfulPoints was to provide, or where PowerfulPoints is in material breach of these terms and conditions), then PowerfulPoints will, subject to clauses 12.2 and 12.3, rectify, re-provide, or pay the cost of re-providing the Services (or where PowerfulPoints is unable to do so, it 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 which have been provided to the Client which were not defective). Such request must be made in writing within thirty (30) days from the completion date of the Services.
12.2 Except in the case of death or personal injury caused by PowerfulPoints’ negligence, the liability of PowerfulPoints under, or in connection with, these terms and conditions, whether arising in contract, tort, negligence, breach of statutory duty, or otherwise, shall not exceed the Fee/s payable by the Client to PowerfulPoints under these terms and conditions. The provisions of this clause 12.2 shall not apply to clauses 9.3 and 12.4.
12.3 Neither party shall be liable to the other, in contract, tort, negligence, breach of statutory duty or otherwise, for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that party of an indirect or consequential nature, including any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this clause 12.3 shall not apply to clauses 9.3 and 12.4.
12.4 The Client shall indemnify, and hold harmless, PowerfulPoints from, and against, all claims and losses arising from:
(a) loss, damage, liability, injury to PowerfulPoints, its employees and third parties; and
(b) infringement of third party intellectual property, or third party losses by reason of, or arising out of, any information supplied to the Client by PowerfulPoints, its employees or consultants, or any information or instructions supplied to PowerfulPoints by the Client within, or without, the scope of these terms and conditions; and
(c) the Services, or cancellation, or failure to provide the Services, and all costs, losses and expenses suffered or incurred by PowerfulPoints, its employees, agents and affiliates (and their employees and agents) as a result of any breach by the Client of these terms and conditions or any other agreement between the parties; and
12.5 Each of the parties acknowledges that, in entering into the contract, it does not do so in reliance on any representation, warranty or other provision, except as expressly provided in these terms and conditions, and any conditions, warranties or other terms implied by statute or common law (including, but not limited to the Competition and Consumer Act 2010 or the Fair Trading Act of the applicable State or Territory) are excluded from these terms and conditions to the fullest extent permitted by law.
12.6 The Client acknowledges that, due to the nature of digital display, technical difficulties may arise which could prevent the provision of the Services; and the Client, therefore, agrees to indemnify PowerfulPoints against any costs or losses incurred by the Client as a result of this.
12.7 The obligations and indemnities accepted by both parties under this clause 12 shall survive the termination or expiry of the contract.
13. Intellectual Property
13.1 The Client acknowledges and agrees that, subject to clause 13.2, all presentations (and any images, drawings, photographs, copy, virtual or graphic materials, trademarks or other materials) created by PowerfulPoints as part of providing the Services to the Client shall become the property of the Client subject to the following:
(a) the procurement by Powerfulpoints of any copyrighted materials for inclusion into the Services. In which case Powerfulpoints does not have the right to transfer such intellectual property to the Client, only the right to use such materials solely for the purpose for which the Services were intended; and
(b) the Services are accepted in writing by the Client within 12 months of being provided PowerfulPoints; and
(c) the Client has paid PowerfulPoints all amounts owing in relation to the Fee/s (and any costs associated with creating and, where applicable, providing such Services).
13.2 PowerfulPoints asserts copyright in the content of all design and artwork unless otherwise negotiated, quoted and agreed with. The Client acknowledges and agrees that no part of any design and artwork produced by PowerfulPoints may be reproduced by any means whatsoever without its written permission. Unauthorised use of any of the intellectual property of PowerfulPoints is an infringement and will be prosecuted.
13.3 The Client undertakes to acknowledge PowerfulPoints’ Services in the event that any presentation created thereby is utilised in advertising or marketing material by the Client.
13.4 Subject to 14, the Client agrees that PowerfulPoints may (at no cost) use for the purposes of marketing or entry into any competition, any presentation which PowerfulPoints has created for the Client and/or any Services provided to the Client, and Powerfulpoints shall remove any references to the Client’s Confidential Information.
14.1 The information contained in this document is confidential and commercially sensitive. Unauthorised use of the information is prohibited.
14.2 PowerfulPoints shall keep the Client’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
14.3 Both parties acknowledge that information resulting from the activities of PowerfulPoints pursuant to these terms and conditions shall also be regarded as Confidential Information, and PowerfulPoints agrees that its obligations in clause 14.2 extend to this category of informatio
14.4 PowerfulPoints’ obligations with regard to the Confidential Information will continue for so long as the Confidential Information is maintained on a confidential basis by:
(a) the Client, in the case of Confidential Information pertaining to the Client’s business; and
(b) the Client’s customers, in the case of Confidential Information pertaining to the business of any of the Client’s customers.
14.5 Upon completion of the Services or cancellation of the contract, or when earlier directed by the Client:
(a) all Confidential Information shall be returned to the Client, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that PowerfulPoints makes, and any software that PowerfulPoints creates based on the Confidential Information; and
(b) PowerfulPoints shall erase and destroy any copies of any software containing or comprising the Confidential Information in PowerfulPoints’ possession or under PowerfulPoints’ control, or that may have been loaded onto a computer possessed or controlled by PowerfulPoints.
14.6 The Confidential Information does not include information which:
(a) is generally available in the public domain otherwise than as a result of a breach of clause 14.2 by PowerfulPoints; or
(b) was known by PowerfulPoints prior to the Client disclosing the information to PowerfulPoints.
14.7 PowerfulPoints agrees that the Client may require any of PowerfulPoints’ personnel to sign a confidentiality agreement in a form that the Client approves, as a condition of its acceptance of any of PowerfulPoints’ personnel.
14.8 Both parties agree to indemnify the other fully against all liabilities, costs and expenses which may be incurred as a result of any breach of this clause 14 by either party. The parties further acknowledge that damages may be an inadequate remedy for breach of this clause 14 and that either party may obtain injunctive relief against the other for any breach of this clause 14.
14.9 The obligations accepted by both parties under this clause 14 survive the termination or expiry of the contract.
15. Default and Consequences of Default
15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of 2.5% per calendar month (and at PowerfulPoints’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 If the Client owes PowerfulPoints any money, the Client shall indemnify PowerfulPoints from and against all costs and disbursements incurred by PowerfulPoints in recovering the debt (including internal administration fees, legal costs on a solicitor and own client basis, PowerfulPoints’ contract default fee, and bank dishonour fees).
15.3 Without prejudice to any other remedies PowerfulPoints may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions PowerfulPoints shall be entitled to:
(a) (suspend or terminate the provision of Services to the Client; and/or
(b) require the Client to pay, in advance, for any Services (or any part of the Services) which have not yet been provided.
15.4 Without prejudice to PowerfulPoints’ other remedies at law, PowerfulPoints shall be entitled to cancel all, or any part, of any order of the Client which remains unfulfilled, and all amounts owing to PowerfulPoints shall, whether or not due for payment, become immediately payable if:
(a) (a) any money payable to PowerfulPoints becomes overdue, or in PowerfulPoints’ opinion the Client will be unable to make a payment when it falls due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
15.5 PowerfulPoints will not be liable to the Client for any loss or damage the Client suffers because PowerfulPoints has exercised its rights under this clause 16.
16.1 PowerfulPoints may cancel these terms and conditions, or provision of the Services (at any time before the Services are provided), by giving written notice. On giving such notice PowerfulPoints shall repay to the Client any money paid by the Client for the Services, less any amounts owing to PowerfulPoints for Services already provided (including the procurement of third party goods and/or services). PowerfulPoints shall not be liable for any loss or damage whatever arising from such cancellation.
16.2 In the event that the Client cancels the contract, or provision of the Services, the Client shall be liable for the following (being the costs of any loss (direct and indirect) incurred by PowerfulPoints for such cancellation):
(a) for presentation design: the deposit, or an amount equivalent to the percentage of Services provided (whichever is the greater); or
(b) for training and development:
(i) 30 - 15 days from the date for provision of the Services: 50% of Fee/s; or
(ii) 14 – 0 days from the date for provision of the Services: the full Fee/s.
17.1 Either party may terminate the contract by notice in writing to the other if the party notified fails to observe any term of these terms and conditions and fails to rectify this breach, to the satisfaction of the notifying party, following the expiration of 7 days’ notice of the breach being given in writing by the notifying party to the other party.
17.2 Either party may terminate the contract upon the happening of any of the following events:
(a) the giving of at least 1 month's written notice by either party to the other of the intention to terminate the contract; or
(b) if the Client enters into a deed of arrangement or an order is made for it to be wound up; or
(c) if an administrator, receiver or receiver/manager or a liquidator is appointed to the Client pursuant to the Corporations Act 2001 (Cth); or
(d) if the Client would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).
17.3 The Client will pay to PowerfulPoints the equivalent amount of the Fee/s payable by the Client to PowerfulPoints during the notice period in lieu of any notice period relating to termination of the contract under clause 18.2(a).
17.4 Upon termination of the contract, any Fee/s, expenses or reimbursements payable by the Client to PowerfulPoints in respect of any period prior to the date of termination must be paid by the Client within 7 days of the date of termination.
18. PowerfulPoints’ Personnel
18.1 The Client may, at any time, if it has reasonable grounds which have been disclosed and discussed with PowerfulPoints, by notice in writing to PowerfulPoints, require PowerfulPoints to cease to permit any particular person/s employed thereby, or acting as agents of PowerfulPoints, to carry out the Services.
18.2 If the Client makes the requirement referred to in clause 19.1, PowerfulPoints must, as soon as it is practicable, cease to provide the Services of the particular person/s in respect of the Client’s business, and provide the Services of alternative person/s as may be reasonably acceptable to the Client.
18.3 The Client agrees not to offer to employ, or to retain, or to offer inducement to employ, or to retain any of PowerfulPoints’ employees or contractors for a period of 12 months after the completion of the Services.
19. Privacy Act 1988
19.1 The Client agrees for PowerfulPoints to obtain from a credit reporting body (CRB) a credit report containing company and personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by PowerfulPoints.
19.2 The Client agrees that PowerfulPoints 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 providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding 2 years.
19.3 The Client consents to PowerfulPoints being given a consumer credit report to collect overdue payment on commercial credit.
19.4 The Client agrees that company or personal credit information provided may be used and retained by PowerfulPoints for the following purposes (and for other agreed purposes or required by):
(a) the provision of Services; and/o
(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.
19.5 PowerfulPoints may give information about the Client to a CRB for the following purposes:
(a) to obtain a company or personal credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
19.6 The information given to the CRB may include:
(a) company and personal information as outlined in 20.1 above;
(b) name of the credit provider and that PowerfulPoints is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of 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 credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than 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 PowerfulPoints has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of PowerfulPoints, 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 $150.
19.7 The Client shall have the right to request (by email) from PowerfulPoints:
(a) a copy of the information about the Client retained by PowerfulPoints and the right to request that PowerfulPoints correct any incorrect information; and
(b) that PowerfulPoints does not disclose any company or personal information about the Client for the purpose of direct marketing.
19.8 PowerfulPoints will destroy company or personal information upon the Client’s request (by email) or if it is no longer required unless it is required in order to fulfil the obligations of the contract or is required to be maintained and/or stored in accordance with the law.
19.9 The Client can make a privacy complaint by contacting PowerfulPoints via email. PowerfulPoints will respond to that complaint within 7 days of receipt and will take all reasonable steps to make a decision as to the complaint within 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.
20. Personal Property Securities Act 2009 (“PPSA”)
20.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
20.2 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 any monetary obligation of the Client to PowerfulPoints for Services, that have previously been provided (if any), and that will be provided in the future, by PowerfulPoints to the Client.
20.3 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 PowerfulPoints may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; or
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 21.3(a)(i) or 21.3(a)(ii);
(b) indemnify, and upon demand reimburse, PowerfulPoints 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 registration made thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of PowerfulPoints;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Services in favour of a third party without the prior written consent of PowerfulPoints.
20.4 Both parties agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
20.5 The Client waives it rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
20.6 The Client waives it rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
20.7 Unless otherwise agreed to in writing by PowerfulPoints, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
20.8 The Client must unconditionally ratify any actions taken by PowerfulPoints under clauses 21.3 to 21.5.
20.8 Subject to any express provisions to the contrary (including those contained in this clause 21), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
21. Security and Charge
21.1 In consideration of PowerfulPoints agreeing to provide the 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 the payment of any money).
21.3 The Client indemnifies PowerfulPoints from and against all PowerfulPoints’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising PowerfulPoints’ rights under this clause.
21.3 The Client irrevocably appoints PowerfulPoints (and each director of PowerfulPoints) as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 22 including signing any document on the Client’s behalf.
22.1 A notice or other communication connected with the contract has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in the contract, emailed or sent by facsimile to the facsimile number of the addressee.
22.2 The failure or delay by either party to enforce any provision of, or exercise any right, power or privilege under, these terms and conditions shall not impair the same, or operate as a waiver or the same, nor shall any single or partial enforcement of any provision or exercise of any right, power or privilege, preclude any subsequent enforcement or exercise of the same, or the enforcement or exercise of any other provision, right, power or privilege. If any provision of these terms and conditions is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from these terms and conditions and rendered ineffective as far as possible without modifying the remaining provisions of these terms and conditions, and shall not in any way affect any other circumstances of or the validity or enforcement of these terms and conditions.
22.3 These terms and conditions, and any contract to which they apply, shall be governed by, and construed in accordance with, the laws from time to time in force in New South Wales, the State in which PowerfulPoints has its principal place of business, and are subject to the non-exclusive jurisdiction of the courts in that State.
22.4 Each party to these terms and conditions shall, at the request (and expense, if not made provision for in these terms and conditions) of the other, execute and do any deeds and other things reasonably necessary to carry out the provisions of these terms and conditions, or to make it easier to enforce.
22.5 Neither party shall have any liability under, or be deemed to be in breach of, these terms and conditions for any delays or failures in performance of the Services which result from circumstances beyond the reasonable control of that party (including due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, etc.). The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either party may terminate the contract by written notice to the other party.
22.6 The rights and remedies provided in these terms and conditions are cumulative and not exclusive of any rights and remedies provided by law.
22.7 The Client warrants that it has the power to enter into the contract and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that the contract creates binding and valid legal obligations on it.
23.1 Subject to clause 24.2, neither party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under these terms and conditions without the prior written agreement of the other party.
23.2 Either party may assign and transfer all its rights and obligations under these terms and conditions to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other party to be bound by the obligations of the assignor under these terms and conditions.
24.1 Subject to clause 25.2, neither party shall issue or make any public announcement or disclose any information regarding these terms and conditions unless, prior to such public announcement or disclosure, it furnishes the other party with a copy of such announcement or information and obtains the approval of the other party as to the content thereof.
24.2 Neither party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.