This Agreement shall apply to and govern all quotations, purchase orders, acknowledgements and other such related documents regarding services from Create Engage ABN 38 162 526 436 upon CUSTOMER’S written acceptance of the Confirmation and Acceptance of Proposal.
Application
1. The following terms and conditions between Create Engage (we/us/our) and the customer (you/your) apply to the supply of digital event services, webcasting, video production, streaming and/or consulting services – including, but not limited to, the hiring of technical equipment (Services) by us to you.
Proposal for Service
2. We will provide you with written advice of our proposed charges in regards to the Services requested by you in the form of a quote, proposal or service contract (Proposal). In order for us to provide the Services you must first notify us in writing that you accept by way of signed Confirmation and Acceptance of Proposal. (Notice).
3. If we do not receive a Notice from you within 14 working days after the date of the Proposal, then the charges associated with the Proposal (Charges) may be subject to change.
4. Anything we provide which is not a Proposal is only a guide to our charges for service.
5. Services are subject to availability. If when receiving a Notice from you, we are not in a position to provide the Services requested, we will notify you accordingly and are under no obligation to provide those Services. We may elect to provide you with only some of the Services requested and if you inform us that you still wish to acquire those Services, we will provide you with a new Proposal for those specific Services.
Confirmation, Invoicing & Payment
6. As soon as we receive a Notice from you and we confirm that we are able to provide the Services requested, the Proposal together with these Terms and Conditions will comprise our agreement with you (Agreement).
7. Where the Agreement specifies the duration for the provision of the Services then that duration will be the agreed minimum duration for the provision of the Services to you. (Minimum Term).
8. We reserve the right to levy an outside ordinary hours labour surcharge for our provision of services by our staff commencing before 6am or concluding after midnight, levied at our rate applicable for the state or territory in which the service is performed.
9. If you require and we therefore provide additional Services to you that are not detailed in the Proposal (such as but not limited to late changes to the scope of your project) (Additional Services), then we may impose additional charges (Additional Charges). Additional Charges will be in accordance with our prevailing standard rates applying, will be included in our invoice and payable by you, and may include at our discretion, a late change fee for changes made less than 48 hours before the event. If we provide Additional Services then “Services” includes Additional Services and “Charges” includes Additional Charges.
10. A Service Charge (Service Charge) may be payable by you where specified in the Proposal to recoup some of the cost to us of sundry items and expenses incurred by us to provide the Services and not separately charged for.
11. Payment must be made for the total amount of our invoice for the Services within 14 days of the date of our invoice.
(Commencement Date). If:
a. You do not pay the Charges in accordance with this clause we may, in our discretion, elect not to provide the Services to you. If we elect to provide the Services to you, we will invoice you for the Services and that invoice must be paid immediately;
b. We provide Additional Services then we will invoice you for the Additional Charges and that invoice must be paid immediately;
14. We may in our absolute discretion require you to pay some of the Charges prior to provision of the Services, including but not limited to charges for manufactured items, hire from third party suppliers, production, venue
and entertainment charges (Preproduction Charges). If you do not pay the Preproduction Charges in accordance with this clause we may, in our absolute discretion, elect not to provide the Services to you.
15. Any outstanding amounts will accrue interest at 2% above the unsecured Business Overdraft Indicator Lending Rate, (or any replacement of it) published by National Australia Bank from time to time calculated daily from
the due date until paid in full and, together with any legal expenses we incur (on a full indemnity basis) in relation to recovering outstanding amounts, will be payable by you on demand.
Insurance
16. Our policies of insurance apply only in relation to our provision of the Services and do not provide any insurance cover for you or for your event. You are responsible to effect and maintain your own insurances for your event including but not limited to public liability and property damage insurance.
Cancellation
17. If you have given us a Notice then you must advise us in writing if you decide to cancel the Services, or change either the scope of or date for provision of the Services. In any of these circumstances (other than a change of scope we agree in our discretion in writing is a non material change), a cancellation charge equal to a percentage of the Charges for the Minimum Term must be paid by you, as a genuine pre-estimate of our loss, calculated according to the date you advise us of the cancellation or change (as the case may be) in writing (Cancellation Date) as follows:
a. if the Cancellation Date is less than 21 days but not less than 14 days before the Commencement Date, 25% of the Charges;
b. if the Cancellation Date is less than 14 days but not less than 7 days before the Commencement Date, 50% of the Charges;
c. if the Cancellation Date is less than 7 days before the Commencement Date, 100% of the Charges,
(Cancellation Charge), and in addition to the Cancellation Charge, you must reimburse us for any expenses we have incurred in preparation to provide the Services including but not limited to Preproduction Charges not already paid to us. In calculating the Cancellation Charge, the Charges will not include such expenses paid to us in full.
Service Delivery
18. We reserve the right to withdraw our Services if yours or a third party’s plans are altered or the operating environment changes to such an extent as to breach our policies regarding safe work practices for our employees or any applicable Occupational Health & Safety standards (OHS). You are solely responsible for compliance with all OHS and other statutory requirements at your event.
19. Delivery of equipment, and other technical items provided by us as part of the Services (Equipment) will take place:
a. at the location specified in the Proposal
20. In relation to the transporting of our Equipment:
a. As we are responsible for transporting, you must:
i. ensure that the Equipment is available and able to be collected by us during the pack down time specified in the Proposal (Pack Down Time); and
ii. if, for any reason other than a matter under our control, we are unable to collect the Equipment during the Pack Down Time then an amount equal to 120% of the daily rate for the provision of the Equipment component of the Services for each day (or part thereof) until the Equipment is accessible and available to be collected by us, plus any charges for our staff’s additional time, will be charged to you as Additional Charges.
21. You must permit or obtain permission for us to enter any premises where the Equipment is located or in order for us to provide the Services and you must provide all reasonable assistance to enable us to provide the Services.
22. You acknowledge that in requesting the Services from us, you are not relying upon any representation, promise or undertaking made by us or on our behalf except as expressly made in writing in the Agreement.
Intellectual Property
23. You are solely responsible for all intellectual property including without limitation, all copyright, designs, patents, registered and unregistered trade marks, whether contained in any computer program or system, music, film, graphic, printed or other material or media of any kind, (Intellectual Property) in any way used at or forming part of your event and you must obtain all necessary licences and approvals for use of the same.
24. You agree that all Intellectual Property provided or produced by us or on our behalf including without limitation, in all systems, music, creative concepts, scripts will remain our exclusive property and you will not acquire any rights to it whatsoever.
Equipment Generally
25. In relation to any Equipment provided as part of the Services you acknowledge that the Equipment remains our property at all times and that:
a. you are fully responsible for any theft, loss or damage to the Equipment that you or your employees, contractors or agents, guests, invitees or users cause. Within 7 days after the date of any written demand from us, you must pay us at our election:
i. the cost of repairing such damaged Equipment; or
ii. the full new for old replacement cost, including all taxes or duties and all additional expenses incurred by us on replacement, of any such Equipment that is lost, stolen or determined by us to be irreparably damaged; and
b. if you breach any term of the Agreement then, without prejudice to any other rights which we may have, you must permit us to retrieve the Equipment and indemnify us for any costs incurred by us in retrieving the Equipment.
Equipment Not Under Our Sole Care and Control
26. If any Equipment is not under our sole care and control because you have hired or rented Equipment from a third party supplier, in addition to your obligations under clause 26:
a. you must provide adequate security for the Equipment;
Intellectual Property
21. You must permit or obtain permission for us to enter any premises where the Equipment is located or in order for us to provide the Services and you must provide all reasonable assistance to enable us to provide the Services.
22. You acknowledge that in requesting the Services from us, you are not relying upon any representation, promise or undertaking made by us or on our behalf except as expressly made in writing in the Agreement.
23. You are solely responsible for all intellectual property including without limitation, all copyright, designs, patents, registered and unregistered trade marks, whether contained in any computer program or system, music, film, graphic, printed or other material or media of any kind, (Intellectual Property) in any way used at or forming part of your event and you must obtain all necessary licences and approvals for use of the same.
24. You agree that all Intellectual Property provided or produced by us or on our behalf including without limitation, in all systems, music, creative concepts, scripts will remain our exclusive property and you will not acquire any rights to it whatsoever.
Equipment Generally
25. In relation to any Equipment provided as part of the Services you acknowledge that the Equipment remains our property at all times and that:
a. you are fully responsible for any theft, loss or damage to the Equipment that you or your employees, contractors or agents, guests, invitees or users cause. Within 7 days after the date of any written demand from us, you must pay us at our election:
i. the cost of repairing such damaged Equipment; or
ii. the full new for old replacement cost, including all taxes or duties and all additional expenses incurred by us on replacement, of any such Equipment that is lost, stolen or determined by us to be irreparably damaged; and
b. if you breach any term of the Agreement then, without prejudice to any other rights which we may have, you must permit us to retrieve the Equipment and indemnify us for any costs incurred by us in retrieving the Equipment.
Equipment Not Under Our Sole Care and Control
26. If any Equipment is not under our sole care and control because you have hired or rented Equipment from a third party supplier, in addition to your obligations under clause 26:
a. you must provide adequate security for the Equipment;
Risk and Responsibility
27. Yours and any third parties’ equipment or other property used or located at your event is your responsibility and at your risk at all times. You must retrieve any such property immediately on conclusion of your event and indemnify us from any loss, damage, cost, expense, liability, judgment, claim, demand, suit or action we suffer or incur or which is brought against us (all called Harm) arising in any way in relation to such property except to the extent we cause it by our wrongful act.
28. We have no liability or responsibility for any failure, default or delay arising from strike, lock out, industrial dispute, raw material shortage, delays in deliveries from suppliers, any natural or other cause beyond our reasonable control, or from your delay or failure in providing anything specified in the Agreement as required to be provided by you.
29. To the fullest extent permitted at law, all terms, conditions and warranties implied into the Agreement by statute, at common law or otherwise are excluded, and all and any liability by us for any indirect or consequential loss or damage (including without limitation, any loss of income, revenue, opportunity, data, profit and/or saving) and/or for any exemplary, special and/or punitive damages, arising in any way in connection with the Agreement, its subject matter and/or our provision of or failure to provide the Services and whether arising under contract, in equity, negligence, other tort, statute or otherwise , is excluded.
30. To the extent that we have any liability which is not or cannot lawfully be excluded under clause 30 and to the fullest extent permitted at law, our liability to you is limited at our option to:
a. in the case of goods supplied by us, replacing or repairing the goods, or paying the cost of having the goods replaced or repaired; or
b. in the case of services supplied by us, re-supplying the services, or paying the cost of having the services re-supplied.
31. You agree to indemnify us from all Harm arising in connection with your event or provision of any of the Services except to the extent we cause it by reason of our negligent or wrongful act or omission, and you further agree to indemnify us from all Harm arising from your breach of the Agreement.
General
32. You warrant that you and the person(s) signing the Agreement for you are entitled and authorised to enter into and perform your obligations under the Agreement. Both you and any person signing the Agreement for you as your agent agree that all your obligations under the Agreement bind you and the agent jointly and severally and reference to “you” in the Agreement includes your agent.
33. You must not assign or otherwise deal with any of your rights or obligations under the Agreement.
34. If you breach any term of the Agreement or become subject to the appointment of a liquidator, receiver, receiver and manager, trustee in bankruptcy or other form of administration or if we determine that you are otherwise unable to pay your debts as and when they fall due, then, without prejudice to any other rights we may have, all unpaid Charges are immediately due and payable by you and we may at our option terminate the Agreement and/or immediately cease to provide the Services to you and retrieve the Equipment.
35. Unless otherwise indicated, all references to amounts are exclusive of GST. If we are liable to pay GST in respect of any supply we make to you, you must pay us an additional amount equal to the amount of the GST payable on that supply and we will issue you with a tax invoice in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
36. You must pay all government duties that apply and any related fines and penalties in respect of the Agreement and each transaction effected by or made under the Agreement and indemnify us against any liability arising from your failure to do so.
37. Our Charges are subject to change before the Agreement is made, or as specified in the Proposal and are quoted in Australian dollars unless otherwise indicated in the Proposal.
38. If any of these terms and conditions is, or becomes wholly or partially invalid for any reason, then that term or condition will to the extent of the invalidity be severed without affecting the enforceability and validity of any other, and in the interpretation of these terms and conditions, no rules of construction will apply to our disadvantage on the basis that we put forward these terms and conditions or any part.
39. The Agreement is governed by, and must be construed in accordance with, the laws of the Commonwealth of Australia and of the State or Territory of the Commonwealth of Australia where the Services are provided. The parties submit to the exclusive jurisdiction of the courts of that respective State or Territory of Australia and if more than one State or Territory, or if the Services are performed outside of Australia, to the exclusive jurisdiction of the Courts of New South Wales, Australia.
40. We may vary these terms and conditions from time to time however we will not vary them after an Agreement has been made in relation to that Agreement except as expressly permitted under these terms and conditions.
ADDITIONAL TERMS AND CONDITIONS APPLICABLE FOR WEBCASTING SERVICES
Application
41. The following additional terms and conditions apply only if the services to be provided to you under the Proposal include or comprise any webcasting services including, but not limited to services known as live webcasting, on-demand webcasting, streaming, podcasting, vodcasting and other virtual post and related services (all Webcasting Services).
42. In these additional terms:
a. Event includes a webcast, podcast, vodcast and any other event, broadcast or display facilitated or provided by the Services; and
b. Services include the Webcasting Services we supply to you.
43. If there is no applicable despatch or shipping date specified in the Proposal the Commencement Date means the date specified for the first delivery of any Services to be provided under the Proposal.
Reservations
44. We reserve the right to update or make modifications to any Webcasting Services or the way in which they are provided from time to time as we determine are reasonably necessary to provide the Services including but not limited to changes required by reason of a change made by or to any of our suppliers.
45. You acknowledge that we and/or our suppliers own or hold the rights to and all Intellectual Property in, all software, operating and/or other systems which we provide or utilise to provide Webcasting Services (Systems) and the Agreement does not give you or any other person any licence or right to access any Systems. You must not modify, tamper with, vary, add to, reverse engineer or interfere with any Systems nor permit or allow any other person to do so.
Charges and Additional Charges
46. If you exceed the limit specified in the Proposal for bandwidth use in any month, or if you exceed any limit which may be specified in the Proposal for storage of yours or any third party’s video and/or audio content and related material or data distributed via Webcasting Services including but not limited to any video, audio, flash, html, image, or text file (all Content), we may impose Additional Charges at our prevailing standard rates which are payable by you within 30 days of invoice by us or such shorter time specified in the Proposal .
47. Our Charges entitle you to access Content on the terms of the Agreement for twelve months from the date that the Content is first loaded and available for access by you or your users (irrespective of any subsequent variation made) (Initial Year). If you wish to extend that availability beyond the Initial Year you must notify us no less than three (3) months before expiry of the Initial Year however we do not promise that we can provide an extension. If we confirm to you in writing that we will provide the extension you must pay our Additional Charges for the extension at our then prevailing standard rates within 30 days of invoice by us. These terms and conditions will continue to apply to any formal or informal extension of access to Content beyond the Initial Year unless we have agreed varied terms and conditions in writing with you.
48. You may request us to disconnect access to Content by notice in writing at any time and we will take reasonable steps to do so within thirty (30) days of such request. However you are not entitled to refund of any part of our Charges paid or payable.
49. If you wish to obtain a copy of the Content we may impose an Additional Charge as specified in the Proposal or if none specified, at our prevailing standard rates.
50. If you cancel the Services after we have received a Notice from you and after a webcast URL has been created for any Webcasting Services you must pay us as a minimum Cancellation Charge irrespective of the Cancellation Date, the amount specified in the Proposal as the minimum charge, and if none is specified, $2,000.00 (Minimum Cancellation Charge), as a genuine pre- estimate of our loss arising from your cancellation. However if a Cancellation Charge would also apply under clause 18, you need only pay to us the higher of the Cancellation Charge under clause 18 and the Minimum Cancellation Charge. However you must also pay to us any expenses incurred by us and payable under clause 18.
Content
51. Unless we have advised you in writing of the extension of the Initial Year before its expiry, you acknowledge that Content held on our and/or supplier’s servers may be destroyed by us or our suppliers on expiry of the Initial Year. We will use reasonable endeavours to provide a backup copy of Content to you if the Content is to be destroyed but do not promise we can do so and exclude any liability arising from such destruction. You should retain your own copy of Content at all times.
52. You are solely responsible for any Content distributed via Webcasting Services and must ensure that the Content does not infringe any other person’s Intellectual Property rights, be of an obscene or pornographic nature, be defamatory, threatening or abusive, advocate illegal activity or infringe the laws or regulations of any jurisdiction where the Content may be accessed or displayed.
53. We remind you that it is your sole responsibility to obtain all necessary consents and licences for Content broadcast and/or reproduction. Our Services do not include provision of any licences unless otherwise expressly specified in the Proposal .
54. You authorise us to reproduce any material owned or supplied by you containing Intellectual Property for the purposes of our provision of the Services to you including but not limited to production and display of Content. We acknowledge that effective from payment of our Charges in full we have no right or interest in any Content except for any Intellectual Property contained in or relating to any of the Services or Systems, or anything supplied by us or our suppliers, the rights to which we and/or our suppliers will retain at all times.
55. Usernames and/or Passwords which you may employ to limit user access to any Webcasting Services are your sole responsibility to employ and safeguard. We have no responsibility for the same or for any unauthorised access.
56. You acknowledge and agree that Content may be stored by us on our supplier’s servers. We will use reasonable endeavours to prevent unauthorised access to Content stored on our servers, and we will use reasonable endeavours to require our suppliers to prevent unauthorised access to Content stored on our supplier’s servers. However we do not promise that unauthorised access to Content can be prevented and we exclude all liability for any authorised access.
57. You must indemnify us from all Harm directly or indirectly arising in relation to Content and/ or its reproduction, distribution, display, and/or access.
Webcasting /Live Streaming
58. We take all reasonable care in our delivery of Webcasting and live streaming services and require our suppliers to take all reasonable care. However use of the technology and Systems required for Webcasting involves risks of interruption, delay and/or failure of transmission and access and we do not promise that Webcasting Services or any Equipment relating to them:
a. will operate continuously;
b. will be fault free; or
c. will operate at their theoretical maximum quality or capacity.
59. To the fullest extent permitted by law we exclude all liability for any failure, interruption, fault or delay to any Webcasting Services whether occurring during live Webcasting in real time, on demand or otherwise and however arising (Failure):
a. if you do not notify us in writing of the claimed Failure within three (3) days of the same occurring;
b. to any extent that the Failure is beyond our reasonable control or the reasonable control of our Systems supplier;
c. and to the extent that we have any liability for any Failure to the fullest extent permitted at law our liability is limited to:
d. 80% of the amount of any refund or credit we are entitled to receive and do receive from our System suppliers solely as a result of the Failure; or
e. if we have any liability to you under the preceding paragraph (c) this clause, or otherwise, at our sole election and option, to the resupply to you of the Webcasting Services which are the subject of the Failure.
60. We do not provide telecommunications carriage services and you must independently arrange and maintain all such services from your own telecommunications provider to enable us to provide Webcasting Services to you. Even if we test such services prior to provision of Webcasting Services we have no responsibility for the speed, reliability or failure of any telecommunications services used