Unless the context otherwise requires, the following words have these meanings: Contract means the Terms of Trade and the relevant Order (together they comprise the ‘Contract’); Credit Application means a written credit application with Industrie Media for the provision of credit by Industrie Media to the Customer; Customer means: if the Customer has signed or provided Industrie Media with a Credit Application, the customer specified in the Credit Application; or if the Customer has not signed or provided Industrie Media with a Credit Application, the customer specified in the Order; GST means the goods and services tax payable pursuant to the GST Act; GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cwlth); Industrie Media means Liquid Media Group Pty Ltd (ABN 76 614 721 630) its successors and assigns (and which may trade as “Industrie Media”); Intellectual Property Rights means all intellectual property rights of any kind including patents, designs, trademarks, circuits, copyright, service marks, trade names, business names, brand names, inventions, discoveries, trade secrets, know-how and all moral rights (whether allowable now or at some point in the future), an application for, or right to apply for registration or renewal of, an intellectual property right, and in each case whether registered or unregistered (and whether capable of registration or not) and any similar or equivalent rights and interests in Australia or anywhere in the world; Invoice means a Tax Invoice if GST applies to the items in the invoice, otherwise a non-Tax Invoice; Order means any agreement (verbal and/or written) between Industrie Media and the Customer for the supply of the Services. Unless otherwise specified by Industrie Media, an Order has no set form and could be comprised of an email/emails, order by phone or fax or a combination of same; Photographic Images means images (including laser pointer measures) taken using Photographic Equipment; Photographic Equipment means the photographic, video camera or other visual recording device or non-visual recording device (such as a laser pointer) used to take the Photographic Images; Price means the price payable for the Services; Property means the property the subject of the Services; Services means the goods and/or services supplied by Industrie Media to the Customer as indicated in the Order. Without limiting the foregoing, reference to the ‘goods’ includes the work, Photographic Images and material supplied to the Customer as part of the Services; Tax Invoice means an invoice that complies with the GST Act; Terms of Trade means these terms of trade (as may be varied from time to time).
Unless the context otherwise requires: (i) headings, boldings and underlines are for convenience only and do not affect the interpretation of this Contract; (ii) words importing the singular include the plural and vice versa; (iii) reference to a ‘person’ includes a company, partnership, joint venture, association, trust, corporation and vice-versa; (iv) a reference to any statute or regulation includes all statutes and regulations varying, consolidating or replacing them; (v) a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued after that statute; (vi) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of the Contract or any part of it; (vii) the words “includes”, “including”, “for example” or “such as” or similar expressions are not words of limitation; (viii) all references to “$” or “dollars” are to the lawful currency of Australia; (ix) a covenant, an agreement or acknowledgment on the part of, or in favor of, two or more persons, binds them or ensures to their benefit jointly and severally (including if there are two or more persons forming the “Customer”).
Quotation, Orders and Acceptance
A quotation by Industrie Media shall be an invitation to the Customer to trade with Industrie Media. It shall not constitute an offer by Industrie Media to the Customer. The Customer may use the quotation to submit an Order to Industrie Media. Prices given in any quotation by Industrie Media are applicable to that quotation only and will not apply in any other instance, unless confirmed in writing by Industrie Media. Quotations are valid for the period specified in the quotation or, if no period is specified, 7 days from the date of issue by Industrie Media. If the Customer is given a quote, doesn’t sign and return it to Industrie Media but otherwise instructs Industrie Media to proceed, the Customer is taken to have submitted an Order to Industrie Media on the terms of the quote. Industrie Media is not obliged to accept any Order. The Contract shall only be or be deemed to have been entered into between Industrie Media and the Customer for the supply of Services when the Order has been accepted by Industrie Media (which may be done in writing, verbally or by Industrie Media commencing to fulfil the Order such as by making an appointment for the Services to be performed). The Customer agrees Industrie Media may sub-contract part or all of the provision of the Services.
The Customer must ensure full and free access to the Property is available and promptly provide all instruction, information and documentation reasonably requested by Industrie Media in order to perform the Services. Industrie Media is not liable to the Customer for any loss or damage of any kind suffered by the Customer as a result of any failure or delay by the Customer in respect of the foregoing and Industrie Media shall be entitled to a reasonable extension of any timeframe applicable to its obligations as a result of such failure or delay.
The Customer must ensure the Property is in a safe and presentable state for taking Photographic Images. Industrie Media may, but are not obliged to, move or remove items on or add items to the Property or suggest any moves, removals or additions. Industrie Media may refuse to take Photographic Images of any Property (or part thereof) which Industrie Media considers in its sole discretion to be unsafe or un presentable, in which case Industrie Media may vary the Price or Services (including charging a cancellation, postponement or reappointment fee) as determined by Industrie Media to take account of these Property conditions. If despite the condition of the Property Industrie Media elects to proceed with the taking of the Photographic Images, the Property will be shot ‘as is’ and the Customer cannot raise any objection to the Photographic Images of the Property being taken ‘as is’.
It is the Customer’s responsibility when booking an appointment to determine the time of day that best suits the Property. The Customer should consider such things as shadows (strong shadow casts across the Property should at all times be avoided), availability of natural lighting, predicted poor weather, and the season of the year.
Some properties may require two appointments at varying times of the day for best results (unless the second appointment is expressly included as part of the Services, the second appointment is an additional fee to the Price and charged at the rate determined by Industrie Media).
Electronic Files, Release of Files, Back-Up/Recovery and Online Tracking
Usually, the goods part of the Services will be provided electronically only. Industrie Media does not represent or warrant that goods provided electronically will be free from computer viruses, corruption or other damaging or disabling programs. It is the Customer’s responsibility to ensure it has appropriate hardware and software to be able to receive and open any electronic files provided by Industrie Media. Industrie Media reserves the right to refuse to release electronic files to third parties unless the Customer has provided their written consent to Industrie Media. Although Industrie Media may keep back-ups of or archive the goods (including storing them off-site with third parties), it is not required to do so, thus it is the Customer’s responsibility to ensure it backs-up and makes copies of all goods provided by Industrie Media. If the Customer requests copies of the goods, Industrie Media is entitled to charge a retrieval fee as determined by Industrie Media. Industrie Media accepts no liability or responsibility for any part of the goods not being able to be retrieved. If Industrie Media allows the Customer to track Orders on-line, it is the Customer’s responsibility to ensure any passwords and usernames are kept secure. Industrie Media does not represent or warrant that its on-line system will be hacker proof.
Quality of Services, Weather Conditions and Re-Shoot Fees
If the Customer is on the Property when the Photographic Images are taken and the Photographic Image is able to be viewed on the spot, the Customer must review the Photographic Images on the Photographic Equipment at the time the Photographic Images are taken and either approve or object to the Photographic Images taken at that time. The Customer must act promptly and reasonably in approving or objecting to the Photographic Images. If a Photographic Image is objected to by the Customer, Industrie Media will re-take the particular Photographic Image objected to at that time and the Customer must again either approve it or object to it at that time. If the Customer is not on the Property (and the Photographic Image is one that would have been able to be viewed on the spot) or fails to approve or object to the Photographic Images taken at the time of the Photographic Images are taken in accordance with the foregoing, the Customer is taken to have approved all such Photographic Images.
If the Photographic Image is not able to be viewed on the spot, then the Customer must review those Photographic Images when they are provided by Industrie Media and either approve or object to those Photographic Images within 7 days of the date on which Industrie Media forwarded same to the Customer. The Customer must act promptly and reasonably in approving or objecting to those Photographic Images. If a Photographic Image is objected to by the Customer it must be objected to in writing and be received by Industrie Media within the said 7 day period, after which Industrie Media will re-take the particular Photographic Image objected to and the Customer must again either approve it or object to it in accordance with the foregoing procedure. If the Customer does not object to the Photographic Images in accordance with the foregoing, the Customer is taken to have approved all such Photographic Images.
Except as agreed by Industrie Media, post-shoot requests for a re-shoot of any or all of the Photographic Images based on coverage, composition, photographic or visual recording style, artistic style of the Photographic Images, time of day, objects/artifacts/vehicular obstructions, state of the Property or access or other limitations that were present during the time the Photographic Images are taken will not be approved and the Customer is not entitled to withhold or delay payment because of such factors or because of its opinions regarding the quality or lack of perceived artistic merit in the Services. Industrie Media will, however, undertake a re-shoot at no additional cost if in its sole opinion the Photographic Images were significantly and adversely affected by the poor location of the sun or technical errors were made by Industrie Media, provided the Customer has made a written request for a re-shoot within 14 days after receiving the Photographic Images.
For best results, Industrie Media recommends Photographic Images be taken in dry weather conditions only, however, Industrie Media operates under a “shoot in all weather conditions” protocol. If Industrie Media issues a “poor weather notification” (PWN) to the Customer (including by SMS or email) and the Customer does not instruct Industrie Media to post-pone the taking of the Photographic Images before Industrie Media commences to take the Photographic Images, the appointment will continue. If the instructions are to postpone, usual postponement fees will apply. Unless the Customer has requested Industrie Media to continue with an appointment, if in poor weather (as determined by Industrie Media) Industrie Media proceeds with an appointment without issuing a PWN, any re-appointments required for incomplete work will not incur additional charges. Any re-appointments required for incomplete work or quality related issues due to poor weather, will incur charges at the rates determined by Industrie Media.
If the Services include re-touching, air-brushing or otherwise modifying the Photographic Images, then subject to any agreed instructions contained in the Order, Industrie Media will undertake same to the extent considered reasonable and adequate in the sole opinion of Industrie Media.
Real Estate Agents/Property Agents
If the Customer is a real estate agent or property agent, the Customer agrees Industrie Media will generally take instructions in the following order: vendor/landlord of the Property; the listing/leasing agent; listing/leasing agent’s office; the tenant of the Property. The Customer acknowledges that instructions from any of the foregoing people bind the Customer. The Customer agrees Industrie Media can contract with other real estate agents and property agents including in respect of the same Property.
Industrie Media is entitled to withhold delivery of the goods if the Customer has not completed and returned a signed Credit Application (if Industrie Media has requested the Customer to sign it) or if the Customer has failed to pay any amount required to be paid before delivery occurs.
Although Industrie Media will use reasonable endeavors to provide the Services by the due date, this time is not of the essence. Industrie Media shall not be liable to the Customer for any loss or damage of any kind suffered by the Customer arising out of any failure by Industrie Media to provide the Services on or by the agreed or specified date or within a reasonable time. Without limiting the foregoing, should completion of the Services be prevented, delayed or hindered directly or indirectly by circumstances beyond Industrie Media’s reasonable control then, at Industrie Media’s option, either the delivery time shall be extended until the effect of the delaying cause has ceased or Industrie Media may cancel the Contract. The Customer shall not be entitled to cancel the Contract for the resultant delay. Industrie Media shall not be liable for any loss or damage of any kind suffered by the Customer for the resultant delay or cancellation of the Contract. Unless otherwise agreed by Industrie Media and the Customer, Industrie Media shall be entitled to provide the Services in one or more lots. Where there is a part provision, Industrie Media shall be entitled to Invoice the Customer for pro-rata progress payments in respect thereof. The pro-rata amount is as determined by Industrie Media.
Without limiting the foregoing, the Customer acknowledges that: peak periods for Industrie Media are usually January, February, March, September, October, and November; timeframes are subject to factors such as the weather, access to the Property, condition of the Property, type of shoot for Photographic Images requested, instructions received from or on behalf of the Customer; twilight packages are more susceptible to over-run due to the nature of the Photographic Images taken at that time of day; extra time is needed to deliver open-home DVD’s.
Price Changes and GST
Even after a Contract has been entered into, Industrie Media reserves the right to vary its Price to take account of the complexity, type and/or sizes of floor space within the Property or its surrounds. It is the Customer’s responsibility to check the fees payable for each Service prior to Order as prices are subject to change without notice at the discretion of Industrie Media. All amounts are GST inclusive unless otherwise noted. If an amount is stated to be exclusive of GST, the Customer must pay any applicable GST to Industrie Media in addition to the amount payable at the same time as the amount to which it relates is payable.
Cancellation/Postponement by Customer and Fees
Industrie Media may cancel a Contract at any time before the Services are performed by notice to the Customer in which case Industrie Media shall repay any sums paid by the Customer in advance to Industrie Media in respect of the Services. Industrie Media may postpone a Contract at anytime. Industrie Media shall not be liable for any loss or damage of any kind suffered by the Customer arising from such cancellation or postponement.
Once an Order has been accepted by Industrie Media, the Contract arising from it may only be cancelled by the Customer with the written consent of Industrie Media. Without limiting any other rights or remedies of Industrie Media, if the Customer cancels a Contract (either with or without consent) or postpones an appointment, the following additional charges will apply: notice of 1 hour or more but not more than 2 hours before the scheduled appointment = $55; notice of 20 minutes or more but less than 1 hour before the scheduled appointment = $95; notice of less than 20 minutes before the scheduled appointment = $125. The postponement fees shall apply each time the Customer postpones the Services. The Customer must give Industrie Media (and its contractors) full and free access to the Property within 20 minutes of the scheduled appointment start time and if this does not occur, Industrie Media may treat this as a postponement by the Customer and in addition to any other rights or remedies is entitled to charge an additional postponement fee of $125.
All postponements will be allocated to the next available date and time slot as determined by Industrie Media and the Customer cannot object to the date and time allocated. The Customer may not postpone the Contract more than once without the consent of Industrie Media. Industrie Media reserves the right to alter its cancellation and postponement fees at anytime by notice to the Customer (which may be given by publishing such details on Industrie Media’s website and it is the obligation of the Customer to check such website to ascertain whether these charges have been varied before cancelling or postponing the Services).
Application of Terms of Trade and Authority to Contract
The Terms of Trade shall apply to every Order between Industrie Media and the Customer for the Services (even if not attached or referred to in an Order). Each Contract is a combination of these Terms of Trade and the relevant Order and each such Contract constitutes a separate and independent agreement. Any action taken in respect of one Contract does not automatically affect any or all other Contracts. The Customer agrees Industrie Media is entitled to assume that anyone on behalf of the Customer (including its employees) who places an Order with Industrie Media has full power and authority to bind the Customer irrespective of whether or not such person followed the Customers internal procedures before placing the Order and the Customer agrees to be bound by the acts or omissions of such persons.
The Customer agrees in favor of Industrie Media that: Industrie Media may make such enquiries as it sees fit in order to satisfy itself as to the creditworthiness of the Customer and to assess any application for commercial credit; the inquires may include applying to and obtaining from any credit reporting agency a credit report of the Customer which may contain personal information, in accordance with s18K(1)(b) of the Privacy Act 1988 (Cwlth) (“Act”), and to obtain a report containing information from a person or business which provides information about the commercial credit worthiness of a person in relation to credit provided by Industrie Media, in accordance with s18L(4) of the Act; Industrie Media is authorized in terms of s18N(1)(b) of the Act to disclose information of a report received by it and to exchange information with other credit providers for the purpose of notifying other credit providers of a default by the Customer, assessing an application for credit by the Customer, and assessing the creditworthiness of the Customer; Industrie Media may give information about the Customer or the Customer’s business to a credit reporting agency for the purpose of obtaining a consumer credit code report, and/or to allow the consumer credit reporting agency to create or maintain a credit information file about the Customer or the Customer’s business; the Customer consents to Industrie Media disclosing the Customer’s information to a credit reporting agency as outlined above.
The Customer must make payment of any amount payable to Industrie Media in accordance with the time period specified in the Contract or, if no such times are specified, within 21 days from the date of the Invoice. All times for payment are of the essence. Payments must only be made by such methods as permitted by Industrie Media from time to time. The persons Industrie Media uses to take Photographic Images and Industrie Media’s contractors and suppliers do not accept payment on location. If any payment is made by credit card, the Customer agrees Industrie Media may also charge and deduct from the credit card any merchant fees that apply. In addition to and without prejudice to any other rights or remedies of Industrie Media, interest shall apply to any payment not made on time at the same rate per annum, calculated daily, that is 2% higher than that specified in Schedule 5 of the Uniform Civil Procedure Rules 2005 (NSW) for the relevant period. In addition to any other rights or remedies of Industrie Media, if the Services (or any part of them) are postponed (other than due to the default of Industrie Media) or Industrie Media suspends the performance of the Services, Industrie Media is entitled to render an Invoice for the value of the Services performed (as determined by Industrie Media) up to that time together with any other fees the Customer is liable to pay (such as postponement fees).
The Customer indemnifies Industrie Media against any loss, cost, damage or expense (including legal costs and disbursements on a full indemnity basis and any debt collection agency fees on a full indemnity basis), and any claims, demands, suits, actions and proceedings suffered, paid, incurred, instituted or defended by Industrie Media, resulting from or arising out of any breach of the Contract by the Customer or the cancellation or postponement of any Contract by the Customer (including if cancelled or postponed with the consent of Industrie Media).
Passing of Risk and Retention of Title
Risk in respect of loss, damage or destruction of the goods passes to the Customer upon delivery. Despite the passing of risk, Industrie Media retains full title to the goods until such time as all payments due by the Customer under the relevant Contract are received by Industrie Media. Industrie Media reserves the right in the event of non-payment of any amounts due by the Customer under the relevant Contract to retrieve the goods from the Customer including by entering any premises where the goods are stored and the Customer agrees Industrie Media shall not be liable for trespass as a result or for any damage caused in removing the goods from the premises. If it is or becomes necessary to register this clause or the Contract in order to give effect to the retention of title created by this clause, the Customer agrees to promptly sign such reasonable documentation and promptly perform all reasonable acts necessary in order to enable Industrie Media to register this clause or the Contract.
Variations and Inconsistency
If the Customer wishes to vary the Contract, Industrie Media reserves the right to vary the Price and/or any other aspect of the Contract to take account of such changes and in that case Industrie Media is entitled to suspend the provision of the Services until the Customer approves of the variations in writing. Industrie Media is not obliged to accept any variations put forward by the Customer to the Contract. Industrie Media may vary the Terms of Trade from time to time, in which case those new terms of trade shall apply to every new Order after the Customer is notified in writing of the new terms of trade. Subject to the foregoing and any other provision of the Terms of Trade, any variation, amendment or consent to departure by any party from the Contract shall have no force or effect unless agreed to in writing by Industrie Media. If there is any inconsistency between the Terms of Trade and the Order, the terms of the Order prevail to the extent of the inconsistency. Any terms or conditions put forward by the Customer in respect of the Services are null and void and of no effect unless accepted by Industrie Media in writing.
Limitation of Liability
To the fullest extent permitted by law: (i) Industrie Media shall not be liable to the Customer for any consequential, special, incidental or other indirect loss or damage including loss of profit, loss of opportunity, business, revenue, goodwill or anticipated savings arising out of the performance, non-performance or defective performance of the obligations of Industrie Media irrespective of whether or not Industrie Media was made aware of the possibility of such loss and this includes Industrie Media being unable to supply the Services in time to make the Customer’s print and other media deadlines; (ii) all express and implied warranties, terms and conditions in relation to the obligations of Industrie Media including those implied by use, trade, custom or otherwise are hereby excluded; (iii) the Customer agrees Industrie Media is not liable or responsible for any loss or damage the Customer suffers or incurs due to circumstances beyond the reasonable control of Industrie Media; (iv) Industrie Media shall not be liable to the Customer for the negligence, acts or omissions of its contractors; (v) subject to the foregoing, Industrie Media’s total liability to the Customer for breach of its obligations to the Customer are at the option of Industrie Media limited, in the case of the ‘goods’ component of the Services, to replacing or resupplying the goods or paying for the cost of replacing or resupplying the goods, and in the case of the ‘services’ component of the Services, to supplying the services again or paying for the cost of having the services supplied again.
Apart from a limited non-exclusive and non-transferable licence to use the goods supplied to the Customer as part of the Services for the purpose of the Customer advertising, selling or leasing the Property, the Customer agrees it must not use the goods for any other purpose and the Customer agrees: it receives no other Intellectual Property Rights in respect of such goods or any other part of the Services; all Intellectual Property Rights in respect of the Services remain at all times with Industrie Media. Without limiting the foregoing, the goods are not to be used for other projects, sold or given to parties not involved with the project for which they were ordered without the prior written consent of Industrie Media. Specifically, if the Customer is the owner of the Property, it may use the goods for its personal use only but is otherwise not permitted to supply images to any real estate agent or property agent. Industrie Media reserves the right to use any goods or any other part of the Services for any purpose it sees fit. The Customer warrants that any artwork, designs, drawings, plans, specifications or anything else supplied by or on behalf of the Customer which relates to the creation, performance or development of the Services does not infringe the Intellectual Property Rights of any third party.
Suspension and Termination
If the Customer defaults or fails or delays in performing its obligations then in addition to and without prejudice to any other rights or remedies of Industrie Media (including exercising a right of termination after suspension), Industrie Media may suspend the performance of its obligations until such default, failure or delay is rectified without being liable to the Customer for any loss or damage of any kind suffered by the Customer as a result of such suspension. Industrie Media shall be entitled to a reasonable extension of any timeframe applicable to its obligations as a result of such suspension. If a party: (i) has a receiver, receiver and manager, administrator, liquidator, provisional liquidator or external controller appointed to it; (ii) becomes bankrupt, insolvent or is wound-up; has a resolution passed for its winding-up, commits an act of insolvency or bankruptcy; (iii) enters into any scheme or arrangement with its creditors; (iv) breaches an essential term of the Contract; (v) breaches a term of the Contract that is not capable of remedy; or (vi) subject to the foregoing, breaches a term of the Contract that is capable of remedy but is not so remedied within 14 days of written demand; then the other party by written notice may terminate the Contract immediately. Termination shall not affect any provision of the Contract expressed or capable of operating or having effect subsequent to termination and shall be without prejudice to any accrued right or remedy of a party in relation to any breach of or default by the other party occurring prior to termination.
In the Contract: (i) the Contract shall be governed by and construed in accordance with the laws of the State of New South Wales, Australia; (ii) any legal action or proceedings with respect to the Contract against any party or any of its property and assets may be brought in the Courts of the State of New South Wales, Australia and each party accepts, for itself and in respect of its property and assets, generally and unconditionally the jurisdiction of the Courts of that State; (iii) subject to the express written terms of the Contract, the Contract shall confer rights and benefits only upon a person expressed to be a party and not upon any other person; (iv) the Customer shall not transfer, sub-contract or assign its rights or obligations under the Contract without the prior consent in writing of Industrie Media; (v) Industrie Media may assign its rights or obligations under the Contract and if this occurs it shall give written notice to the Customer; (vi) the failure to exercise or delay in exercising by any party of any right conferred by the Contract shall not operate as a waiver and the single or partial exercise of any right by that party shall not preclude any other or further exercise of that or any other right by that party; (vii) subject to the terms of the Contract, the rights of a party conferred by the Contract are cumulative and are not exclusive of any rights provided by law; (viii) each party shall execute all documents and perform all acts necessary to give full effect to the Contract; (ix) apart from the Credit Application, the Contract expresses and incorporates the entire agreement between the parties in relation to its subject matter, and all the terms of that agreement, and supersedes and excludes any prior or collateral negotiation, understanding, communication, agreement, representation or warranty by or between the parties in relation to that subject matter or any term of that agreement. Neither party shall, after the Contract has been entered into, be entitled, as against the other party or other officers of any party, to bring suit on the basis of any verbal or written communications, representations, inducements, undertakings, agreements or arrangements except expressly as provided by the Contract or the Credit Application; (x) any provision of the Contract which is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of that prohibition or unenforceability, without invalidating the remaining provisions of the Contract or affecting the validity or enforceability of that provision in any other jurisdiction; (xi) no provision of the Contract shall merge on completion of the Contract.
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