TERMS, CONDITIONS AND WARRANTIES

BETWEEN

WEB VIDEOS AUSTRALIA PTY LTD ACN 154 710 424 as trustee for the Web Videos Trust
(herein “Web Videos”)
of Randwick NSW, 2031

AND

THE CLIENT as described in the form at the bottom of this page and as signatory to this Agreement, whether in person or by agency (if the Client is a company).

RECITALS
A. Web Videos carries on the business of the production and editing of audio-video material.
B. The Client wishes to retain the services of the Web Videos for the production of audio-visual material under certain specifications.
C. The Client must pay Web Videos as outlined in this Agreement.
D. The Client agrees and acknowledges that it will comply with all reasonable requests from Web Videos to assist in Web Videos’ discharge of its responsibilities and obligations.
E. The Client agrees and acknowledges that it will comply with all terms and conditions and warranties in this Agreement.

OPERATIVE PART

1. DEFINITIONS AND INTERPRETATION

1.1. The following definitions apply to this Agreement:

Agreement means the document entitled ‘Client Agreement’ and the document entitled ‘Terms, Conditions and Warranties’ and its Schedules, and any annexed documents to those Schedules. See further, clause 11.
Claim includes any prosecution, claim, writ, action, proceedings, suit, demand, cause of action, arbitration, debt, verdict, judgement, litigation, third party proceedings, or verdict whatsoever, including any legal costs or other associated expenses, whether present, prospective or contingent, whether arising at law, in equity or under statute, whether in negligence or otherwise, and whether or not the facts, matters and circumstances giving rise to those claims are known to Web Videos or the Client at the date of this Agreement.
Client means the party to this Agreement as outlined on the first page of this Agreement, and as signatory to this Agreement.
Material means audio and video material, and any other material that may be required by Web Videos for Web Videos to conduct Works under the Scope of Works to this Agreement.
Product means audio and video material, and any other material that may have been produced by Web Videos under the Scope of Works to this Agreement.
Referral Agreement means any agreement disclosed in clause 10.
Scope of Works means the job specifications and instructions, as given by the Client to Web Videos.
Web Videos means Web Videos Australia Pty Ltd ACN 154 710 424 as trustee for the Web Videos Trust.
Use includes, without limitation, screening, broadcasting, display or publication through any electronic or non-electronic medium and/or means either in entirety or in part.
Works means any activity carried out by Web Videos in pursuance of its obligations under this Agreement.

1.2 An expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate or governmental agency.
1.3 A word which denotes the singular denotes the plural, a word which denotes the plural denotes the singular, and a reference to any gender denotes the other genders.
1.4 Headings are inserted for convenience only and do not affect the interpretation of this Agreement.
1.5 A reference in this Agreement to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision.
1.6 A reference to a clause, part, schedule or attachment is a reference to a clause, part, schedule or attachment of or to this Agreement.

2. OBLIGATIONS AND RIGHTS OF WEB VIDEOS
2.1. Subject to clause 4, Web Videos is to deliver to the Client, the Product in accordance with the Scope of Works to this Agreement. Web Videos will, in its absolute discretion, determine when the Scope of Works has been completed. The raw footage taken during the production will not available to the client, unless under specific circumstances for an agreed fee.
2.2. Web Videos may, from time to time, engage the services of a subcontractor to assist with Web Videos’ obligations under the terms of this Agreement.
2.3. Web Videos may, at its sole discretion, arrange for Web Videos’ logo or corporate device to appear at the end of the Product.
2.4. Web Videos will keep an archive record of project files for up to 6 months only.
2.5. Quotes provided by Web Videos are valid for up to 3 months only.

3. OBLIGATIONS OF THE CLIENT
3.1. The Client must:
(a) Provide the Materials necessary for Web Videos to carry out its Works under this Agreement;
(b) Ensure that all Materials and all communications that are provided to Web Videos via any mode of internet or electronic technology, are free from viruses and devoid of other characteristics that may cause or do cause loss, damage or otherwise harm Web Videos’ computer operations (including both hardware and software);
(c) Conduct themselves in a manner that is not dishonest, fraudulent, malicious, reckless, or which is in breach of statutorily imposed duties;
(d) Provide payments in a timely fashion, and in accordance with this Agreement;
(e) Comply with all terms, conditions and warranties of this Agreement;
(f) Not act in a manner that will adversely impact of Web Videos, its business and employees.
3.2. In the event that a subcontractor is engaged by Web Videos under clause 2.2, the Client must not object, rescind or terminate this Agreement; the Agreement will remain on foot until the Scope of Works are completed as determined by Web Videos.
3.3. In the event that any aspect of electronically transferring, streaming, uploading and maintaining any of the Material or the Product manufactured for the Client by Web Videos under this Agreement is no longer possible (for whatever reason), it will be the sole responsibility of the Client to electronically transfer, stream, upload, maintain and otherwise deal with this Material and Product.
3.4. The Client gives Web Videos permission to display the Product and any testimonial, on the Web Videos’ website.

4. PAYMENT
4.1. The Client must pay Web Videos (in accordance with checked box):
• In full, up-front; or
• 50% of the total cost of the contract seven (7) days prior to the Production Date, and 50% of the total cost on Delivery.
4.2 From time to time, Web Videos may provide a tax invoice to the Client in accordance with clause 4.1.
4.3 Cancellation fee/s will be incurred by the Client in the following manner (in addition to any other amounts payable to the Web Videos under this Agreement):
(a) If cancellation occurs more than 72 hours before the Production Date: NIL,
(b) If cancellation occurs within 72 hours prior to the Production Date, the cancellation fee will be an amount equivalent to 100% of the total cost of the contract.
4.5. Web Videos may provide a tax invoice to the Client in respect of the cancellation fee.
4.6. If the Client, at the time of or after cancellation in accordance with clause 4.4(b), decides to proceed with this Agreement and reschedules the Production Date, Web Videos may, in its absolute discretion, discount the cost of the Scope of Works by an amount not exceeding 50% of the total cost of the contract.
4.7. Any additional video edits requested by the client, being any video edits after the 2 minor edits have been provided to the Client (as determined by Web Videos in the absolute discretion of Web Videos) will be charged to the Client at the rate of $150.00 per hour and invoiced to the Client. For the avoidance of any doubt, this amount is payable in addition to any other amounts payable to Web Videos under this Agreement).
4.8. Depending upon availability and scheduling, Web Videos may be able to provide an express delivery of the product within 7 business days, for an additional fee of $1000 + GST.
4.9 Where a tax invoice has been issued pursuant to clauses 4.2, 4.5 and/or 4.7, amounts are due and payable to Web Videos within seven (7) days upon the provision of the tax invoice to the client. A tax invoice will be deemed provided to the Client on the same day if hand delivered with authorised receipt; if posted, then 3 (three) business days after date of posting; if faxed, upon successful transmission record; and if by email, upon the date the invoice left the email-client of Web Videos.
4.10 Interest will be calculated at 10% per annum for all unpaid tax invoices from the day they fall due.

5. No Warranty
Other than as expressly set out in these terms or additional terms, neither Web Videos nor its suppliers or distributors make any specific promises about the services. For example, we don’t make any commitments about the content within the services, the specific functions of the services, or their reliability, availability, or ability to meet your needs. We provide the services “as is”.
Some jurisdictions provide for certain warranties, like the implied warranty of merchantability, fitness for a particular purpose and non-infringement. To the extent permitted by law, we exclude all warranties.
When permitted by law, web videos, and Web Video’s suppliers and distributors, will not be responsible for lost profits, revenues, or data, financial losses or indirect, special, consequential, exemplary, or punitive damages.
To the extent permitted by law, the total liability of web videos, and its suppliers and distributors, for any claims under these terms, including for any implied warranties, is limited to the amount you paid us to use the services (or, if we choose, to supplying you the services again).
In all cases, web videos, and its suppliers and distributors, will not be liable for any loss or damage that is not reasonably foreseeable.
If the Client chooses to upload, submit, store, send or receive content. When the Client uploads, submits, stores, sends or receives content to or through Web Video Services, the Client gives Web Videos (and those Web Video work with) a worldwide license to use, host, store, communicate and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones.
The Client represents and warrants that their content:
i. will not infringe upon or misappropriate any copyright, patent, trademark, trade secret, or other intellectual property right or proprietary right or right of publicity or privacy of any person;
ii. will not violate any law or regulation;
iii. will not be defamatory or trade libellous;
iv. will not be obscene or contain child pornography;
v. will not contain the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons
vi. will not contain material linked to terrorist activities
vii. will not include incomplete, false or inaccurate information about User or any other individual; and
viii. will not contain any viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
Notwithstanding the above provisions, nothing in this document is intended to limit or exclude any liability on the part of us and our affiliates and related entities where and to the extent that applicable law prohibits such exclusion or limitation including those within the Competition and Consumer Act 2010 (Cth) and relevant state fair trading legislation.

6. RELEASE
6.1. Simultaneously with the delivery of the Product to the Client, the Client releases and forever discharges Web Videos from any Claim they have, past or present, or in the future may have, against Web Videos in respect of or arising out of or in connection with the Material and/or the Product or the subject matter of the Material and/or the Product.
6.2 This Agreement may be pleaded as a full and complete defence by Web Videos to any Claim, proceeding or cross-claim commenced, continued or taken on behalf of the Client which may be made now or in the future in respect of or arising out of or in connection with the Material and/or the Product or the subject matter of the Material and/or the Product.

7. CLIENT’S WARRANTIES
7.1. The Client hereby warrants that:
(a) Any person executing this Agreement on behalf of the Client has authority to enter into this Agreement on behalf of the Client.
(b) It has full power to complete the transactions contemplated by this Agreement;
(c) It has taken all necessary action to authorise the execution, delivery and performance of this Agreement;
(d) The execution, delivery and performance of this Agreement by it does not contravene any contractual, legal or other obligations that apply or may apply to it;
(e) It holds all rights, licences, permits, consents and authorisations required and will comply with all laws in exercising its rights and performing its obligations under this Agreement;
(f) It has not and will not enter into any agreements which are inconsistent with the obligations contained under this Agreement;
(g) Its entry into this Agreement will not breach any existing agreement or arrangement to which it is a party or infringe the rights of any third party;
(h) Any Use of the Product would not infringe the rights of any third party;
(i) All content forming any part of the Material and/or the Product complies with all relevant laws, regulations, rules, by-laws, ordinances, and any other regulatory instruments which impose liabilities or affect the rights and interests of any persons which may be affected in any way through any Use of the Material and/or the Product; and
(j) Any representations that may be made in the Material and/or the Product are the sole responsibility of the Client.

8. PROHIBITION
The Client must not alter, amend, change, or otherwise tamper with the Product without the express written permission and consent of Web Videos.

9. INTELLECTUAL PROPERTY
9.1. Subject to the provisions in clause 11, the intellectual property rights in the Product will pass onto the Client upon full payment having been made to Web Videos in accordance with clause 4;
9.2. Any and all risk in the intellectual property of the Product will pass immediately and irrevocably to the Client simultaneously with the intellectual property rights under clause 9.1.

10. DISCLOSURE OF REFERRAL AGREEMENT
10.1. Web Videos makes the following disclosure with respect to any Referral Agreement that have been entered into with any third party:
(a) Web Videos acknowledges that it may, from time to time, engage a third party in a Referral Agreement;
(b) The details of these Referral Agreements are available on request from Web Videos

11. ENTIRE AGREEMENT
This Agreement forms the entire agreement between Web Videos and the Client. The Client cannot rely on an earlier document or anything said or done by Web Videos or by a director, officer, agent or employee of Web Videos before this Agreement was executed, except as permitted by law.

12. WAIVER
12.1. If any party does not exercise (or delays in exercising) any rights or remedies provided by this Agreement or at law, that failure or delay does not operate as a waiver of those rights.
12.2. A waiver by any party of any rights does not prevent the further exercise of any right or remedy.
12.3. Waiver of any provision of, or right under, this Agreement:
(a) Must be in writing signed by the party entitled to the benefit of that provision or right; and
(b) Is effective only to the extent set out in the written waiver.
In this Clause, “rights” means rights or remedies provided by this Agreement or at law.

13. GOVERNING LAW AND JURISDICTION
This Agreement is governed by and must be construed according to the laws of New South Wales and the Commonwealth of Australia. The Client irrevocably and unconditionally submits to the exclusive jurisdiction of the Courts of New South Wales and the Commonwealth of Australia and all Courts that have jurisdiction to hear appeals from those Courts.

14. SEVERABILITY
If a clause or part of a clause of this Agreement can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this document, but the rest of this document is not affected.

15. GST
15.1. For the purposes of this Agreement, all amounts payable or other considerations to be provided for a supply under this Agreement are exclusive of GST, unless the contrary position is expressed.
15.2. Terms are used in this clause they have the meanings given to them in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).