TERMS AND CONDITIONS OF TRADE
These Terms and Conditions of Trade supersede all previous Terms and Conditions of Trade. The placement of further advertising with Trader Classifieds constitutes your acceptance of these Terms and Conditions of Trade
To the fullest extent legally possible, all contracts and dealings between Trader Classifieds,(“Trader”), a Division of ACP Magazines Ltd ABN 18 053 273 546, (and each subsidiary, affiliate, associated company, related entities, successors or assigns) and any Applicant (“the Customer”) relating to any products (“products”) or services (“services”) are subject to the Terms & Conditions of Trade set out herein (clauses 1-26) (“these Terms”) unless otherwise expressly agreed in writing.
“Booking” means allocation of advertising space for publication of Copy in a Trader publication, as identified in a Confirmation Advice.
“Cancellation Date” means the cancellation date applicable to a Trader publication as specified by Trader from time to time.
“Confirmation Advice” means written details of the Booking containing such information as is specified by Trader from time to time.
“Copy” means advertising material and any promotional or other material provided to Trader, including inserts, band-ons, business reply cards, tip-ons, samples and scents.
“Copy Lodgement” Requirements means copy lodgement and production requirements specified from time to time by Trader.
“Customer” means the party to whom Trader has supplied its products, including but not limited to their subsidiaries, affiliates, associated companies, related companies, directors, successors or assigns.
“GST” means any tax or imposition on the supply of goods and services covered by A New Tax System (Goods and Services Tax) Act 1999 Commonwealth (the GST Act) as amended from time to time.
“Delivery or delivered” means the time when the goods are transported from the premises of Trader by whatever means or when Trader advised the Customer the goods were available for collection.
“Monies owed” means any amount due and payable by the Customer to Trader for the supply by Trader to the Customer of any product/s or services.
“Publishing Services” means provision of advertising space in a Trader publication.
2. Payments: All invoices are due and payable 30 days from statement.
- Advertising Suspension. Trader is not obliged to contact you when advertising has been suspended due to non payment.
- Where an invoice(s) is more than 14 days overdue, all advertising will be suspended until all overdue amounts have been paid.
- Trader does not accept responsibility for advertising being withheld and/or not published due to non reeipt of payment.
- Where an invoice is overdue by more than 14 days, a charge of $3.50 per invoice (may vary from time to time) will be charged.
- Unless otherwise specified all payments are without deduction unless otherwise agreed.
3. Payment Portal: Trader may charge for use of the payment portal. These charges may vary from time to time.
4. Property: Even if Trader grants any credit facility and/or time to pay:-
- property in any products whensoever delivered shall not pass to the customer until payment in full of all monies owed and Trader reserves the right to take possession and dispose of products as it sees fit at any time until full payment and the Customer grants permission to Trader to enter any property where any product is in order to do and with such force as is necessary;
- the Customer agrees that a certificate purporting to be signed by an officer of Trader identifying products as unpaid for shall be conclusive evidence that the goods have not been paid for and of Trader’ s title thereto; and
- upon sale or disposition of any products prior to full payment, the Customer shall deposit all proceeds in a separate bank account and the Customer agrees not to mix such proceeds with any other monies and the Customer shall account for same to Trader as fiduciary and bailee.
5. Limitation of liability: The Customer agrees:
- to limit any claim it makes to the cost of replacement of the subject products;
- Trader shall not be liable for any loss or expense arising after 7 days from delivery (or at all once products have been unpacked or otherwise used) after which there shall be deemed to be unqualified acceptance;
- Trader will not be liable for any contingent, consequential, direct, indirect, special or punitive damage, whether due to negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly; and
- no other term, condition, agreement, warranty, representation or understanding whether express or implied, in any way extending to, otherwise relating to or binding upon Trader, other than these Terms, is made or given by or on behalf of Trader.
6. Exclusions: The Customer agrees that:-
- no dealing between Trader and the Customer shall be or be deemed to be a sale by Trader;
- the Customer will rely on its own knowledge and expertise in selecting any products for any purpose and any advice or assistance given for or on behalf of Trader shall be accepted at the Customer’s risk and shall not be deemed given as expert or adviser not to have been relied upon; and
- all products are sold subject to the manufacturers trading terms and conditions and any warranty of the manufacturer.
- The Customer agrees that any custom made, custom processed or custom acquired products will not be
8. Orders: The Customer agrees that:-
each order it places shall be deemed to include a representation that it is solvent and able to pay all of its debts as and when they fall due;
- when any order is placed, the Customer shall inform Trader of any facts which might reasonably affect any decision to accept the order and/or grant credit. Any failure to do so shall be deemed to create an inequality of bargaining position, the taking of an unfair advantage of Trader and to be unconscionable, misleading and deceptive; and
- From the time of placing an order, the Customer is obliged to accept and pay for the products in accordance with these Terms & Conditions of Trade and a cancellation of the order or change in mind on the part of the Customer as to the content of the order shall not discharge this obligation to accept the products and make payment.
9. Purchase Price: All sales are made by Trader at its ruling price at the time of delivery. Prices may be subject to change without notice. Official quotations made by Trader prices are valid for thirty (30) days from quotation date, after which they may be subject to change without notice.
10. Delivery: The Customer agrees that:-
11. Other Terms and Conditions: No terms and conditions sought to be imposed by the Customer upon Trader shall apply.
- Trader accepts no responsibility or duty to deliver but may elect to arrange delivery at its discretion and without liability and at the Customer’s cost and risk in all things;
- Trader reserves the right to deliver by instalments and each instalment shall be deemed to be sold under a separate contract. Failure by Trader to deliver any instalment shall not entitle the Customer to cancel the balance of the order. In the event of the Customer failing to take delivery of any instalment, Trader may elect to cancel the balance of the order;
- Trader will not be liable for delay, failure or inability to deliver;
- Products shall be deemed delivered as soon as they are ready for delivery; and
- A charge will be made for frustrated delivery to cover Traders costs of attempts etc.
12. Recovery Costs: The Customer shall pay all costs and expenses incurred by Trader, its legal advisers, mercantile agents and others in respect of anything instituted or being considered against the Customer, whether for debt, possession of any products or otherwise.
13. Customer Restructure: The Customer shall notify Trader in writing of any change in its structure or management including any change in director, shareholder, or management of change in partnership or trusteeship within 14 days of the date of any such change. Trader, at their discretion, may require a new credit application to be submitted for review.
14. Jurisdiction: The Customer agrees that all contracts made with Trader shall be deemed to be made in the State of Victoria. All contracts will be governed by the laws of the State of Victoria.
15. Credit Limit: The granting of any credit facility and/or the nomination of any credit limit is an indication only of Trader‘s
intention at that time and Trader may vary or withdraw any credit facility at any time at its discretion and without any liability to the customer or any other person or entity. The customer agrees to pay on demand all sums owing in connection with this credit facility in the event the credit facility is withdrawn.
16. Security for Payment: The Customer agrees upon request to charge with payment of all monies owed and/or owing to Trader from time to time in favour of Trader:
- by way of a fixed charge all its books of account, financial records, goodwill, documents of title and current and later acquired real property and intellectual property; and
- by way of a floating charge, the whole of its other undertakings, property and assets.
17. Forward Orders: The Customer agrees:
18. Force Majeur: Trader will not be or deemed in default or breach of any contract as a result of the effects of Force Majeur. Force Majeur will include any cause beyond the reasonable control of Trader.
- to pay for so much of any order as is from time to time invoiced by Trader;
- that no delay or failure to fulfil part of such order will entitle any cancellation or variation of that order of delay or reduce any payment; and
- to pay any demurrage and/or other costs and expenses of Trader in handling and/or holding any products once
ready for delivery.
19. Attornment: For the purpose of giving effect to the Customer’s obligations pursuant to these Terms (and in particular
anything arising in Clause 16), the Customer hereby irrevocably appoints the public officer of Trader its attorney in all things.
20. Disputes: The Customer agrees to pay into a trust account (earning market interest) in the joint names of Trader and the Customer any amount claimed by Trader as a condition precedent to disputing any such claim on the basis that upon resolution of the dispute the trust funds and any interest shall be dispersed according to the resolution. This clause shall operate as a bar to any defence and/or counterclaim by the Customer until complied with.
21. Defaults: Upon any default or breach hereof by the Customer, Trader may (inter alia) retain all monies paid and/or cease further deliveries and/or at Trader’s discretion take immediate possession of any product not paid for, without prejudice to any other of its rights and without being liable in any way to any party.
22. Severability: Any part hereof being a whole part of a clause shall be capable of severance without effecting any other part of these Terms.
23. GST: To the extent that a supply of services provided by Trader, or any other supply, made under or pursuant to this
agreement, is a “taxable supply” as defined in the GST Act, Trader will increase its price in respect of that supply it makes by the amount of GST applicable to the supply.
24. Statement by Trader: A statement by any officer of Trader is conclusive evidence of any fact, matter or thing.
25. Privacy Act: The Customer agrees that:
Section 18E(1) of the Privacy Act 1988 allows the following information about the Customer to be disclosed to Trader:
- Details that identify the Customer – that is name, sex, date of birth, current and previous addresses, current or last known employer & drivers licence number;
- The fact that the Customer has applied for credit and the amount or that Trader is a current credit provider to the Customer;
- Payments overdue for at least 60 days and for which collections actions has started
- A credit default by you;
- Advice that payments previously notified as unpaid are no longer overdue;
- Cheques for more than $100 drawn by the Customer which have been dishonoured more than once;
- In specified circumstances, a serious credit infringement by the Customer in the opinion of Trader (e.g. the Customer has acted fraudulently);
- The fact that credit provided to you by Trader has been paid or otherwise discharged; other specified information about your credit worthiness, credit standing, credit history or credit capacity.
- (b) The information can only be disclosed for the purpose of:
- Assessing the Customers application for commercial/consumer credit or the Customer’s credit worthiness;
- Continuing to supply the Customer with credit;
- Notifying credit providers about the status of credit provided to the Customer by Trader if the customer is in default with payments due to Trader;
- Collecting overdue payments from the Customer;
- Allowing a credit reporting agency to maintain a file about the Customer
- Trader may:
(i) obtain a commercial/consumer credit report containing information about the Customer from a credit reporting agency;
(ii) exchange credit information about the Customer with a credit reporting agency and other providers of credit to the Customer named in the Customers Application for Credit or a credit report from a credit reporting agency;
(iii) Give a guarantor, or a person who is considering becoming a guarantor, credit information about the Customer for the purpose of enabling the guarantor to decide whether to act as guarantor or to keep informed about the guarantee;
(iv) provide a registered trade insurer with a consumer credit report about the Customer from a credit reporting agency to assess whether to provide trade insurance to Trader in relation to the Customer’s application for commercial credit; & use information about the Customer (other than information relating to the Customer’s credit worthiness or commercial credit) for the purpose of marketing Trader’s products/services to the Customer.
26. Publication Terms: The following additional publication terms shall apply:-
- Booking Process
(i) The Customer may place an order with Trader for the provision of Publishing Services by Trader. A Confirmation Advice will be issued to the Customer with respect to each Booking.
(ii) The Customer may amend any Booking by advising Trader’s Advertising Sales Director by telephone before 5pm on the second clear day following sending of a Confirmation Advice to the Customer. Unless amended the Confirmation Advice will then become binding on the Customer.
(iii) The Customer may cancel all or part of a Booking without penalty if written notice is given to Trader’s Advertising Sales Director in writing before the Cancellation Date. Bookings accepted by Trader after the Cancellation Date may not be cancelled by the Customer.
(iv) If the Customer cancels all or part of a Booking after the Cancellation Date, Trader is entitled to payment for the Booking.
(v) If Trader fails to issue a Confirmation Advice relating to any Booking but provides Publishing Services, these terms will bind the Customer as if a Confirmation Advice had been issued.
- Rates & Payment
(i) The applicable rate for any Booking will be the rate specified in the rate card as at the date for publication specified in the Confirmation Advice. The Customer must pay the applicable rate to Trader at the time of presentation of Trader’s invoice or on such later date as may be specified by Trader.
(ii) Production costs will also be payable by the Customer at Trader’s standard rates from time to time where production costs are incurred on behalf of the Customer.
(iii) If Trader provides Publishing Services in relation to a Booking but fails to issue an invoice (for whatever reason) relating to that Booking, the Customer agrees to pay for the Publishing Services as if the invoice had been issued and on such terms as are generally incorporated in relation to such invoices.
- Conditions Relating to Publishing Services
(i) Trader may, at its discretion, refuse to accept any Copy for publication and may at any time cancel or reschedule any Booking.
(ii) Trader may, at its discretion, refuse Publishing Services to the Customer if the Customer is in breach of these terms & conditions of trade or any agreement between the Customer and Trader.
(iii) Bookings may not be resold or sub-licensed by the Customer or used other than for Copy referred to in the Confirmation Advice.
(iv) Trader makes no warranties in relation to proximity of publication of Copy relative to publication of copy relating to competing products or services.
(v) If Trader is unable to perform an obligation under these terms & conditions of trade by reason of an event outside Trader’s reasonable control, performance of that obligation is suspended.
(vi) Disputes – Trader must be notified of any dispute(s) regarding advertising within 30 days of “On Sale” date. Disputes will not be recognised or investigated unless Trader is notified of the dispute within the above timeframe.
- Copy Lodgement
(i) The Customer must lodge Copy in accordance with Trader’s Copy Lodgement Requirements.
(ii) If Copy is not lodged as required by Trader, Trader is entitled to payment for the Booking and may at its election publish copy previously provided by the Customer or cancel the Booking.
(iii) Trader reserves the right to place the word “advertisement” above or below any Copy which in Trader’s opinion resembles editorial matter.
(iv)No responsibility will be taken by Trader for any Copy left uncollected after 3 months from the date of publication & Trader may dispose of such Copy.
the Customer warrants to Trader that all Copy lodged with Trader:
(i) complies with all laws, statutes, regulations, codes of practice and any standards applicable to publication of Copy and determined by any relevant regulatory agency or industry self-regulatory body;
(ii) complies with any standard or requirement specified by Trader and notified to the Customer from time to time;
(iii) does not infringe copyright, trademark or other legal rights of any person;
(iv) is not false or misleading and is true in substance and in fact;
(v) without limiting the above, does not infringe the Trade Practices Act 1974 (Australia) (as amended) or the Fair Trading Act 1986 (NZ) (as amended); and
(vi) does not contain anything which may give rise to any cause of action by a third party against TRADER, including without limitation material which is defamatory or obscene or which otherwise causes injury or damage to any person.
The Customer indemnifies Trader, its employees, agents and affiliates, and their employees and agents against any action, claim, loss or expense arising from publication of Copy or cancellation or failure to publish any Copy and all costs, losses and expenses suffered or incurred by Trader, its employees, agents and affiliates, and their employees and agents as a result of any breach by the Customer of these conditions or any agreement between the Customer and Trader.
(i) Trader will not be liable under these conditions or otherwise and the Customer acknowledges that Trader excludes liability under these terms & conditions of trace and in law for any indirect, special, economic or consequential loss or damage suffered or incurred by the Customer or loss of revenue, profits, goodwill, data or opportunities or loss of anticipated savings whether caused by negligence or otherwise and whether or not Trader was aware or should have been aware of the possibility of such damage.
(ii) To the extent permitted by law, all other representations, conditions or warranties, whether based in statute, common law or otherwise, are excluded. Liability of Trader for any breach of a term or condition whether implied by law or otherwise is limited, at Trader’s option, to the supply of any service again or the payment for the cost of having any service supplied again.
PAYMENT PORTAL – TERMS AND CONDITIONS OF USE
The Trader Classifieds Payment Portal (Payment Portal) is provided by Trader Classifeds (Trader) a Division of ACP Magazines Ltd A.B.N 18 053 273 546 (“Trader”,”us”,”we”, “our”) for use by our customers (“the Customer”), and is accessed via our website at www.traderclassifieds.com.au.
By using the payment portal the Customer agrees that the Customer has received, read and understood our terms and conditions and accept these terms.
These terms are in addition to our current “Terms and Conditions of Trade” ( copy attached). Those terms are incorporated by reference into these terms. If there is any inconsistency between these Terms and the other terms , these terms prevail to the extent of the inconsistency in relation to the use of the Payment Portal.
- CHANGES TO THESE TERMS
We may need to change these terms from time to time to reflect changes in our business. We may also need to change these terms if required by Law, for security reasons or for technical or infrastructure reasons. We may change the terms at any time by posting the changed terms and conditions on the site and by posting a notice to users on our homepage stating that the changes have occurred. The Customers continued use of the Payment Portal constitutes the Customers acceptance of the changes.
- DOCUMENT DELIVERY
Trader Classifieds reserves the right:
- To deliver documents to the Customer via the payment portal or by email containing a link to the portal, or by email as an attachment, or by fax.
- To deliver overdue account reminders to the Customer via the portal or by email containing a link to the portal, by email as an attachment, by fax, or Short Message Service (SMS).
- USE OF THE PAYMENT PORTAL
- By entering your credit/charge card details, the customer authorise us to debit their nominated card for the amount of the invoice(s) the customer has nominated.
- The customer warrants that they are entitled to use the credit/charge card and that we have been authorised by the customer to debit the nominated card and that it is current and valid.
The customer agrees that they are responsible for providing all required information. If incorrect information is entered, it may result in the nominated invoice(s) remaining unpaid.If we have reason to believe that a transaction is incorrect, unauthorised, illegal, fraudulent or otherwise in breach of these terms, we may decline or reverse the transaction and the nominated invoices will remain unpaid.
- OVERDUE INVOICES – ADVERTISING SUSPENSION
The Customer is respobnsible for maintaining accurate document delivery information. We do not accept responsibility for non receipt of documents due to incorrect or missing delivery information and we will not reattempt delivery of these documents. It is the responsibility of the Customer to access the payment portal and regularly check the status of their account. Trader cannot be held responsible if advertising is withheld due to non receipt of documents or non receipt of payment. Trader is unable to contact Customers where advertising has been suspended due to non payment.
- Where an invoice is overdue by more than 14 days, all advertising will be suspended and a charge of $3.50 will be incurred. The charge will be refelected in the final amount to be paid.
- We will provide use of the Payment Portal free of administration charges (excluding Credit/charge card fees) from Monday 28th April 2008 until 30 June 2008.
- As of 1 July 2008, we will charge an administration fee of 0.50c per transaction.This charge will be reflected in the amount to be paid.
- Payment by American Express or Diners Club will incurr a fee of 3%. This charge will be reflected in the amount to be paid.
- Payment by credit card will incurr a fee of 1.5%. This fee will be reflected in the amount to be paid.
- We will charge a fee of $2.50 where documents are required to be sent by surface post instead of by email/fax (charge may vary from time to time)
- We will charge a fee of $5.50 (including GST) for copies of documents that have to be manually processed, where the documents are available within the payment portal (charge may vary from time to time)
- As of 1 July 2008, we will charge a fee of $2.50 (including GST) for the manual processing of payments where the portal is not used for the purpose of paying the customerr account. (charges may vary from time to time)
Any changes to these charges/fees will be published on our website at www.traderclassifeds.com.au. By using the portal the Customer agrees to be bound by the fees/charges structure in place at that time.
- PAYMENT PORTAL SERVICE
- The payment portal may be accessed via www.traderclassifieds.com.au or at any site designated by us.
- We will endeavour to provide access to the payment portal 24 hours a day, 7 days a week.
- We will endeavour to notify the customer of any planned disruption to the service.
We ensure the security of confidential information through the use of SSL technology. Confidential data is encrypted using 128-bit SSL certification.
Facilities and Security
The server infrastructure is hosted within Tier 1 data centres in both Melbourne and Sydney. The data centres offer world class facilities that include temperature and humidity controls, earthquake protection and advanced fire control systems.
The facilities are monitored 24 hours a day, 7 days a week, 365 days a year with multiple security layers including guards, CCTV, photo access cards, man traps and locked server cabinets.
The facilities are serviced by fault tolerant and redundant power systems encompassing dual council power supply, Uninterrupted Power Supply (UPS) filters and back up diesel generators.
The service utilises scaleable and dedicated Internet access with 24 hour network monitoring, automated network alarms and a redundant architecture.
The services are compliant with all relevant bank and payment security standards including the rigorous PCIDSS (Payment Card Industry Data Security Standard)."