Terms & Conditions – As from 15 December 2012
SERVICES TERMS AND CONDITIONS GOVERNING ALL SALES
KFM MEDIA PTY LTD ABN 91 137 863 800
1. The following terms and conditions (these terms) apply to the supply of audiovisual, event staging, video production and/or event production services including but not limited to hiring of technical equipment and/or decorative items (Services) by KFM Media Pty Limited (us, we, our) either in Our own production studio, or at an alternative location (Venue). If we are acting as service provider on behalf of the Venue which you the Customer (you/your) has an agreement with. These terms apply in addition to the standard terms and conditions of the Venue’s agreement with you (Venue Agreement).
2. A written advice of the proposed charges in respect of the Services requested by you in the form of a quote or proposal (Estimate) will be provided to you. The Services will be provided only if you notify us in writing that you accept the Estimate (Notice).
3. If we do not receive a Notice from you within 5 working days after the date of the Estimate, then the charges set out in the Estimate (Charges) are subject to change.
4. Services are subject to availability. If when receiving a Notice from you, we are not in a position to provide the Services requested, we are under no obligation to provide those Services and may elect to offer to provide you with a revised Estimate for some only of the Services requested if you require it.
5. As soon as a Notice is received from you and we confirm that the Services requested can be provided, the Estimate together with these terms (the Agreement) will comprise a legal agreement which can be relied on by us. If there is any conflict between any term of the Agreement and the Venue Agreement, the Agreement will prevail in relation to our provision of the Services.
6. The Charges may change if you change the date or times for your event, function or hire (your event), if you require additional or different Services to those set out in the Estimate, if your event is for longer than the time estimated in the Estimate, if we both agree to a change for any reason, or as set out in these terms.
7. If you require and we provide additional Services to you which are not detailed in the Estimate including for late changes by you to your event or the duration of the Services (Additional Services), then additional charges (Additional Charges) will apply at our applicable standard rates and at our discretion a late change fee for changes made less than 48 hours before the commencement of your event may also apply. In these terms further references to "Services" includes Additional Services and further reference to "Charges" includes Additional Charges.
8. Where the Agreement specifies a duration for the provision of the Services, then that duration will be the minimum duration for the provision of the Services to you.
9. An outside ordinary hours labour surcharge applies for provision of Services by our staff commencing before 6am or concluding after midnight, levied at our prevailing applicable rate.
10. A Service Charge will also apply where specified in the Estimate for sundry items we use to provide the Services but which are not readily able to be separately itemised.
11. Standard Terms regarding payment of charges are 50% deposit 7 days prior to the provision of services, with the balance due on completion within 14 days. You may at our discretion be required to pay some of the Charges for costs we may incur, prior to provision of Services including charges for manufactured items, hire from third party suppliers, production and entertainment charges (Preproduction Costs). If you do not pay the Preproduction Costs in accordance with this clause we may, in our absolute discretion, elect not to provide the Services.
12. If you cancel the Agreement for provision of Services, cancellation fees are payable by you if Provision of Service is cancelled within 72 hours of commencing (Cancellation Charge). If you cancel services earlier than 72hrs you will be entitled to a refund of any deposits paid less any costs already incurred, including management and other fees.
13. In addition to the Cancellation Charge, you must also reimburse any expenses incurred by us in preparation for the provision of the Services including but not limited to Preproduction Costs not already paid to us.
14. Our policies of insurance apply only in relation to our provision of 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.
15. 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.
16. Delivery of any equipment, technical and decorative items provided by us as part of the Services (all Equipment) will take place to the scheduled location, date and time as indicated in the Estimate.
17. 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.
18. To the extent permitted by law, 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. However this clause will not apply so as to exclude any statutory guarantee which applies to our supply of Services which is not permitted to be excluded at law.
19. Unless expressly specified in the Estimate, our Services do not include recording or making any other permanent record of any part of your event for you to retain.
Intellectual Property and Materials
20. The Services do not automatically include us obtaining any license or consent from any third party for use of any intellectual property including any copyright, design, trade mark, rights in or to play music or film, or in any graphic, printed or other material or media of any kind (IP) or use of any confidential information in any way used at or forming part of your event and you must obtain and warrant that you hold all necessary licenses (including music licenses) and approvals.
21. All IP created or produced by us or our suppliers or on our behalf for or in connection with your event including in all systems, music, creative concepts, graphics, motion picture recordings, sound recordings, scripts and styling will remain our exclusive property and you will not acquire any rights to it.
22. Where Our Provision of Services involves Video Recording (Footage) and/or editing of the footage (Video Editing), our standard included license of the footage to you covers use of the final edited piece (The Program) only. You will have the rights to The Program for distribution worldwide via the internet or public display only, for perpetuity. You are still responsible for ensuring that all third party material used in the Video Editing Process is properly licensed for this use. Rights for use of our Footage in Television Broadcast programs and commercial release or access to our raw Footage should be negotiated at the time we provide an Estimate. At no time does the provisioning of any recording or editing service to you include the right to use the original raw recordings.
23. Without limiting our rights, you agree we can use photographs and images we take of your event and other material we create or provide (all Materials) for our promotional purposes related to establishing our experience in events, including as examples any brochure, newsletter, manual, report, website or other media created by us, and such use may include your corporate name and/or branding as it appears in the Materials, without liability or compensation to you and we may also alter the Materials as we determine including to remove your name or other IP, without your prior approval.
24. In relation to any Equipment provided as part of the Services you acknowledge that Equipment remains our property at all times and that:
a. you are fully responsible for any theft, loss or damage to any of the Equipment which you or your servants, agents, contractors, invitees or users cause;
b. you must reimburse us within 7 days of written demand at our election:
i) the cost incurred by us of repairing 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 Equipment that is lost, stolen or determined by us to be irreparably damaged; for any damage, loss or theft you are responsible for under these terms;
c. you must not interfere with or take the Equipment or allow the Equipment to be outside the Venue without our prior written consent; and
d. you must ensure without demand by us that the Equipment is available for collection during the pack down or strike time specified in the Estimate. If it is not so available then you may incur Additional Charges.
Additional Obligations for Equipment Not Under Our Care and Control
25. If you or any of your employees, contractors or agents have possession, care or control of any Equipment because you have hired Equipment to operate yourself or for any other reason, then in addition to your general obligations regarding Equipment:
a. you are fully responsible for any theft, loss or damage to any of the Equipment which occurs before it is returned to our care and control, except that you are not responsible for theft, loss or damage which we or our personnel or contractors cause;
b. you must provide adequate security for the Equipment;
c. you must report any shortage, theft, loss, damage or malfunction in the Equipment to us immediately you become aware of the same;
d. you must not repair or attempt to repair or allow anyone else to repair any Equipment without our prior written consent;
e. you must maintain and return the Equipment in the same condition as when you took delivery of it subject to any fair wear and tear as determined by us acting reasonably;
f. you must only use the Equipment for the purposes for which the Equipment was supplied and only permit use by properly skilled and if applicable, licensed persons;
g. you must not cause or permit any type of lien to be created over the Equipment, or sell, sub-let, part with possession of, mortgage, pledge or assign any of the Equipment or affix the Equipment or any part to any building or other property; and
h. you must return without demand by us all of the Equipment on the return date specified in the Estimate.
Risk and Responsibility
25. Yours and any third parties’ equipment or other property used or located at your event is your responsibility and at your risk. You must retrieve any such property immediately on conclusion of your event and if you do not do so within fourteen (14) days of our written request, you irrevocably authorise us to destroy or dispose of all such property which we may hold in such manner as we determine in our absolute discretion.
26. Notwithstanding any other provision of these terms, and to the extent permitted at law, we will not have liability for any failure, default or delay caused by you or anyone providing anything for you, or by reason of any matter outside our reasonable control including any strike, lock out, industrial dispute, act of terrorism, sabotage or any natural or other cause or act of God.
27. To the extent permitted at law, all conditions, warranties and guarantees implied into the Agreement or imposed by statute are excluded, and all and any liability by us for any indirect or consequential loss or damage (including 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, whether under contract, in equity, negligence or other tort, statute or otherwise, is excluded.
28. To the extent we have any liability under any implied or statutory condition, warranty or guarantee which cannot be excluded, to the extent permitted by law we limit such liability at our option to:
a. in the case of goods supplied by us to: (i) replacement of the goods or the supply of equivalent goods; (ii) repair of the goods; (iii) payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) payment of the cost of having the goods repaired;
b. in the case of services supplied by us to: (i) supplying of the services again; or (ii) payment of the cost of having the services supplied again.
29. If you materially breach any term of the Agreement or the Venue Agreement then without prejudice to any other rights we may have, we may at our option immediately suspend provision of the Services and retrieve the Equipment, and all unpaid Charges will be immediately due and payable.
30. You agree to indemnify us from all loss, cost, expense, damage and/or liability (Harm) we suffer or incur arising in connection with your event or our provision of any of the Services to the extent it is caused by the negligent, wilful or wrongful act or omission by you, or any of your servants, agents, contractors or invitees or by your breach of the Agreement.
31. You warrant that you and the person(s) signing the Agreement for you are entitled and authorised to enter into the Agreement.
32. You must not assign or otherwise deal with any of your rights or obligations under the Agreement.
33. If we are liable to pay Goods and Services Tax (GST) in respect of any supply we make in order to provide requested Service to you, you must pay 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).
34. The Charges are subject to change before the Agreement is made, or as specified in the Agreement and are quoted in Australian dollars unless otherwise indicated in the Estimate.
35. The information provided by you to us may contain your personal information. The purpose for which the information is collected is to enable us to consider your information, provide the Services and protect our interests in the Equipment and you consent to us collecting the information for these purposes and agree that we may give personal information about you to third parties, including without limitation to our contractors and agents, for those purposes. You are generally entitled to gain access to the information.
36. These terms are subject to the provisions of any applicable statute which cannot lawfully be excluded including the Competition and Consumer Act 2010 and if any of these terms is, or becomes wholly or partially void, invalid or contrary to applicable law, then that term will to the extent that it is invalid, void or contrary to law, be severed without affecting the enforceability and validity of any other part.
37. In the interpretation of these terms, no rules of construction will apply to our disadvantage on the basis that we put forward these terms or any part, the words “including” and “includes” will not be construed as words of limitation, headings do not affect interpretation, reference to a clause is to a clause of these terms, and a word importing the singular includes the plural and vice versa.
38. The laws of NSW govern this Agreement. Each party submits to the exclusive jurisdiction of the court of the State of NSW in connection with the matters concerning this Agreement.
39. Our websites, including websites operated by us under various trading and brand names, aim to be as accurate as possible concerning service pricing and availability, however it is only a guide and we will not be liable or held accountable for incorrect information that exists on our website
40. We may vary these terms 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.