1. Credit and Customer Accounts
1.1 bmag may grant, deny or withdraw credit to a Customer at any time in its discretion. Customer acknowledges it will be liable for all Advertising placed under Customer’s account.
2.1 The Customer must pre-pay for Advertising if required by bmag. If Advertising is on account, payment must be within 7 days of date of the invoice or if a commercial account has been established with bmag, payment must be within 30 days of invoice date.
2.2 If Customer fails to provide the copy for a booking by publication deadline, Customer will be charged unless a cancellation is approved by bmag. If bmag accepts Advertising after the deadline, it will be deemed out of specification. Customer has no claim against bmag for credit, republication or other remedy for out of specification Advertising.
2.3 Customer must pay the full price for Advertising even if bmag varied the format or placement of the Advertising or if there is an error in the Advertising, unless the error was bmag’s fault. Customer must pay its electronic transmission costs.
3. Failure to Pay and Other Breach
3.1 If Customer breaches these terms, fails to pay for Advertising or suffers an Insolvency Event (defined in clause 11.2), bmag may (in its discretion and without limitation):
(a) cancel any provision of credit to Customer;
(b) require cash pre-payment for further Advertising;
(c) charge interest on all overdue amounts at the rate 2% above the NAB Overdraft Base Rate;
(d) take proceedings against the Customer for any outstanding amounts;
(e) recover bmag’s costs including mercantile agency and legal costs on a full indemnity basis;
(f) cease publication of further Advertising or terminate an agreement for Advertising not published;
(g) exercise any other rights at law.
3.2. A Customer suffers an ‘Insolvency Event’ if:
(a) Customer is a natural person and commits an act of bankruptcy; or
(b) Customer is a body corporate and cannot pay its debts as and when they fall due or enters an arrangement with its creditors other than in the ordinary course of business or passes a resolution for administration, winding up or liquidation (other than for the purposes of reorganisation or reconstruction); or has a receiver, manager, liquidator or administrator appointed to any of its property or assets or has a petition presented for its winding up.
3.3 bmag may withhold any discounts or rebates if Customer fails to comply with its payment obligations.
3.4 A written statement of debt signed by an authorised employee of bmag is evidence of the amount owed by the Customer to bmag.
4.1 The Customer acknowledges that it has not relied on any advice given or representation made by or on behalf of bmag in connection with the Advertising.
4.2 bmag excludes all implied conditions and warranties from these terms, except any condition or warranty (such as conditions and warranties implied by the Competition and Consumer Act and equivalent State acts) which cannot by law be excluded (‘Non-excludable Condition’).
4.3 bmag limits its liability for breach of any Non-Excludable Condition (to the extent such liability can be limited) and for any other error in published Advertising caused by bmag to the re-supply of the Advertising or payment of the cost of re-supply (at bmag’s option).
4.4 Subject to clauses 4.2 and 4.3, bmag excludes all other liability to the Customer for any costs, expenses, losses and damages incurred in relation to Advertising published by bmag, whether that liability arises in contract, tort (including by bmag’s negligence) or under statute. Without limitation, bmag will in no circumstances be liable for any indirect or consequential losses, loss of profits, loss of revenue or loss of business opportunity.
4.5 The Customer indemnifies bmag and its officers, employees, contractors and agents (the ‘Indemnified’) against any costs, expenses, losses, damages and liability suffered or incurred by the Indemnified arising from the Customer’s breach of these Terms and any negligent or unlawful act or omission of the Customer in connection with the Advertising.
5.1 bmag collects a Customer’s personal information to provide the Advertising to the Customer and for invoicing purposes. bmag may disclose this personal information to its related bodies corporate.
5.2 bmag provides some published Advertising to third party service providers. Where such Advertising contains personal information, Customer consents to the disclosure of their personal information in the advertising to third parties and to the personal information being republished by a third party.
6.1 Each party will treat as confidential, and will procure that its advertising agents, other agents, and contractors (‘Agents’) treat as confidential and will not disclose, unless disclosure is required by law:
(a) the terms of this Agreement (including terms relating to volumes and pricing);
(b) information generated for the performance of this Agreement, including all data relating to advertising schedules, budgets, forecasts, booked advertising, prices or volumes;
(c) any other information that ought in good faith to be treated as confidential given the circumstances of disclosure or the nature of the information;
(d) any information derived wholly or partly for any information referred to in (a) to (c) above;
Each party agrees to take all reasonable precautions to prevent any unauthorised use, disclosure, publication or dissemination of the confidential information by or on behalf of itself or any third party.
7.1 These Terms, with any other written agreement, represent the entire agreement of the Customer and bmag for Advertising. They can only be varied in writing by an authorised officer of bmag. No purchase order or other document issued by the Customer will vary these Terms.
7.2 bmag will not be liable for any delay or failure to publish Advertising caused by a factor outside bmag’s reasonable control (including but not limited to any act of God, war, breakdown of plant, industrial dispute, electricity failure, governmental or legal restraint).
7.3 bmag may serve notice on Customer by post or fax to the last known address of the Customer.
7.4 These Terms are governed by the laws of the State in which the billing company for the Advertising is located and each party submits to the non-exclusive jurisdiction of that State.