Terms & Conditions
Terms and Conditions
In this agreement:
Approved Purposes means the fulfilment of Mediable’s obligations to Customer under this agreement, the furtherance and benefit of Customer’s business, and such other purposes as are from time to time notified by Customer to Mediable.
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Commencement Date means the start date of the supply of Services, as defined in Schedule 1.
Confidential Information means
- all information provided by the Discloser, its employees, agents, officers or advisers to the Recipient, including trade secrets, technical information, product and market information, financial information and information concerning, or related to, the personnel, procedures, policies, customers, suppliers, business plans or business strategies of the Discloser; and
- all information designated in writing as confidential or which a Discloser informs the Recipient is confidential (whether orally or visually).
Customer’s Works means all works produced by the Customer prior to or during the term of this agreement capable of attracting Intellectual Property Rights.
Corporations Act means the Corporations Act 2001 (Cth).
Deliverables means the Media, and other products, outcomes or related materials to be achieved by Mediable and delivered to Customer pursuant to this agreement, as more particularly set out in Schedules 2 and 3 and as otherwise agreed between the Parties in writing.
Discloser means any party to this agreement which discloses Confidential Information to any other Party to this agreement.
GST has the same meaning as in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Guidelines has the meaning set out in Schedule 2.
Hourly Rate means the Hourly Rate specified in Schedule 2.
Insolvency Event means, in relation to an entity, a person or a party, any one or more of the following events or circumstances:
(a) being in liquidation or provisional liquidation or under administration;
(b) having a controller or analogous person appointed to it or any of its property;
(c) being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;
(d)being unable to pay its debts or being otherwise insolvent;
(e) becoming an insolvent under administration, as defined in the Corporations Act;
(f) entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors;
(g) any analogous event or circumstance under the laws of any jurisdiction; or
(h)taking any step or being the subject of any action that is reasonably likely to result in any of the above occurring (including the convening of a meeting or presenting a petition or order for winding up), such event or circumstance occurs as part of a solvent reconstruction, amalgamation, compromise, arrangement, merger or consolidation approved by the other party (such approval is not to be unreasonably withheld or delayed).
Intellectual Property Rights means all industrial and intellectual property rights throughout the world protected by statute or common law including all current and future registered and unregistered rights (whether or not registrable) relating to:
(a) trade marks, business names and domain names, copyright works, circuit layouts, designs, patents, know-how, inventions and discoveries, and all other intellectual property as defined in article 2 of the Convention Establishing the World Intellectual Property Organisation 1967; and
(b) any application or right to apply for the registration of any of the rights referred to in paragraph (a) above.
Materials means any materials associated with the Media, which are to be produced by Mediable pursuant to this agreement.
Media means any audio visual or written product or other works capable of attracting Intellectual Property Rights, created in performance of the Services, including any updates, modifications or changes made thereto.
Mediable’s Works means all works produced by Mediable prior to the term of this agreement capable of attracting Intellectual Property Rights.
Milestones means each of the Milestones for performance of Services and delivery of Deliverables specified in Schedule 3.
Party means either Customer or Mediable as the context dictates.
Payment Schedule means the payments to be made for each Milestone in accordance with Schedule 3.
Services means the supply of the Materials and Deliverables and any related services, as described and set out in Schedule 2.
Recordings means the audio visual recordings made by Mediable in producing the Media, including any changes made thereto.
Taxes means any present or future taxes (including GST and any other taxes on goods and/or services), rates, levies, imposts, duties (including stamp duties), deductions, charges, compulsory loans and withholdings (other than any such taxes on the overall net income of a Party) which may be incurred in any jurisdiction and any interest, penalties, fines or expenses relating to any of them.
Term has the meaning set out in clause 3 of this agreement.
Termination Date means the earlier of:
(a) the date this agreement is validly terminated under clause 10; or
(b) the date that all the Milestones have been reached and complete payment has been made in relation to them.
Third Party Works means all works produced by a third party to this agreement (including stock audio or visual material) which are used by either party in relation to the production of the Materials or Deliverables.
In this agreement:
(a) references to a clause or schedule shall be construed as references to a clause or schedule of this agreement;
(b) references to or to any specified provision of this agreement shall be construed as references to or to that provision of this agreement as amended or substituted by the agreement or agreement of the Parties and in force at any relevant time;
(c) the words “include”, “includes” and “including” are not and are not to be construed as words of limitation;
(d) words in the singular include the plural and vice versa;
(e) reference to any statute, ordinance or other law or award shall include all regulations and other instruments thereunder and all consolidations, amendments, re-enactments or replacements thereof;
(f) words importing the singular shall include the plural and vice versa;
(g) headings are inserted for convenience only and shall not affect the ordinary meaning of the terms of this agreement;
(h) a reference to a right includes a benefit, remedy, authority, discretion and power;
(i) where two or more persons are defined as a party to this agreement, a reference to that party or those parties means each of the persons jointly, each of them severally and any two or more of them jointly; and
(j) an agreement, covenant, obligation, representation or warranty on the part of two or more persons binds them jointly and severally, and an agreement, covenant, obligation, representation or warranty in favour of two or more persons is for the benefit of them jointly and severally.
(a) Mediable must perform the Services and deliver the Deliverables in accordance with this agreement or as otherwise agreed between the Parties in writing.
(b) For the purposes of this agreement, Customer will, where applicable and to the extent reasonably practicable, ensure that Mediable:
(i) has full and safe access to premises (other than Mediable’s premises) in which the Services are to be performed, and any necessary equipment and materials owned or held by Customer; and
(ii) is provided with:
(A) all facilities, services and accessories to be provided by Customer; and
(B) timely and complete information held by Customer,
which are reasonably required to enable Mediable to comply with its obligations under this agreement.
(c) Mediable will, when performing Services at premises usually occupied by Customer, abide by Customer’s fair and reasonable rules, regulations and codes of conduct, where Mediable has been advised, whether in writing or verbally, of such rules, regulations and codes of conduct.
This agreement will commence on the Commencement Date and will continue in effect until all Milestones in Schedule 3 are complete or until the agreement is earlier terminated in accordance with clause 10.
4.1 Payment terms
(a) Subject to clause 2(a), Customer will make payment to Mediable in accordance with the Payment Schedule for the Services, Materials and Deliverables provided in accordance with this agreement, including with respect to each payment Milestone, after Customer receives a correctly rendered invoice.
(b) An invoice is correctly rendered if:
(i) the invoice specifies the charge that is due for payment; and
(ii) the invoice is set out in a manner that enables Customer to reasonably ascertain the goods or Services to which the invoice relates and the charge payable in respect of those goods or Services.
(c) Customer will process a correctly rendered invoice upon receipt and make payment to Mediable within fourteen (14) days of receipt of that invoice.
2 Late or no payment
If the Customer fails to make payment within the time specified in clause 4.1(c), it is a material breach under this agreement and Mediable may do any or all of the following at its sole discretion:
(a) revise and amend, in Mediable’s discretion, any dates on which obligations (including Milestones) are to be fulfilled, as set out in this agreement;
(b) immediately suspend the Services (including removing access to all or any Services) until full and complete payment is made;
(c) terminate this agreement in accordance with clause 10.2;
(d) take such other action as Mediable considers reasonable and appropriate in the circumstances.
5 Exclusion of warranties
(a) All conditions and warranties on the part of Mediable implied by law in relation to the Services supplied under this agreement are excluded to the maximum extent permitted by law.
(b) To the extent permitted by law, Mediable’s liability for a breach of a statutory guarantee under the Australian Consumer Law is limited to supplying the services again.
6.1 Capacity and Status
Each party represents to each of the other parties that each of the following statements is true and accurate as at the date of this agreement:
(a) if it is a corporate entity, it is validly existing under the laws of its place of incorporation;
(b) it has the power to enter into and perform its obligations under this agreement and to carry out the transactions contemplated by this agreement;
(c) it has taken all necessary action to authorise its entry into and performance of this agreement and to carry out the transactions contemplated by this agreement; and
(d) its obligations under this agreement are valid and binding and enforceable against it in accordance with their terms.
6.2 Legal advice
Each party warrants it has read and understood this agreement and obtained (or been given the opportunity to obtain) independent legal advice about its terms.
7 Intellectual Property
Mediable owns the Intellectual Property Rights which may arise in respect of or as a result of the completion of the Services or the performance of any work in order to complete the Services.
On full and complete payment for the Services by the Customer, Mediable assigns to the Customer, all Intellectual Property Rights in or arising out of the Media other than:
(i) any Intellectual Property Rights owned by Mediable prior to the commencement of this agreement.
(ii) any intellectual Property Rights that Mediable does not own, such as but not limited to: stock footage, stock music, performers agreements.
Customer indemnifies and keeps indemnified Mediable against any liability, loss, reasonable cost or expense (including legal costs on a full indemnity basis) which Mediable or any of its authorised officers or representatives incur as a result of or in connection with claims against Mediable which relate to the use or inclusion of the Customer’s Works or Third Party Works by any party in relation to the Services.
7.4 Retain Ownership of Intellectual Property
In addition to and without in any way derogating from any other provision of this clause 7:
- Mediable’s Works will remain the sole and complete property of Mediable, subject to any written agreement to the contrary, whether or not such works are tangible;
- the Customer grants to Mediable a non-exclusive licence to deal with the Customer’s Works in any way reasonably necessary to allow Mediable to perform its duties pursuant to this agreement.
7.5 Portfolio rights
Despite clause 8, Customer grants to Mediable a perpetual, irrevocable, non-exclusive licence to deal with and amend the Materials and the Deliverables for the purposes of creating and distributing a portfolio,showreel or other promotional material to third parties.
8.1 Confidentiality obligations
(a) The Recipient must:
(i) keep the Discloser’s Confidential Information confidential;
(ii) take all precautions and steps reasonably necessary (and, in any event, to a standard that is no less than the standard of care that the Recipient would take with its own information of a confidential nature) to prevent unauthorised disclosure and unauthorised use of the Discloser’s Confidential Information;
(iii) use the Discloser’s Confidential Information solely for the Approved Purposes or to the extent, and for a purpose, to which the Discloser has consented in writing;
(iv) not profit from the use of the Discloser’s Confidential Information, except in respect of the Approved Purposes; and
(v) not make any copies, extracts, summaries, notes and records of the whole or any part of the Discloser’s Confidential Information, except to the extent necessary for the Approved Purposes.
(b) The Recipient may only disclose the Discloser’s Confidential Information:
(i) to a person if:
(A) the Discloser has consented in advance of such proposed disclosure in writing; or
(B) the Recipient has informed that person of, and that person understands and accepts, the confidential nature of the Confidential Information; and
(C) that person has undertaken in writing to the Recipient (or to the Discloser) to keep the Confidential Information confidential, on terms at least as onerous as those in this agreement; and
(ii) to the extent required by law.
(c) If the Recipient is required by law to disclose any Confidential Information, the Recipient shall promptly notify the Discloser and shall cooperate with the Discloser in securing a protective order or any similar action taken to maintain the confidentiality of that Confidential Information.
(d) The exceptions set out in the provisions of clause 8.2 shall not apply to:
(i) confidential information of a specific nature which forms part of more general information available, provided, developed or disclosed (as the case may be) in the circumstances specified in those provisions;
(ii) a combination of information merely because individual items of information are available, provided, developed or disclosed (as the case may be) in the circumstances specified in those provisions.
The obligations of confidentiality under this clause 8 do not extend to information (whether before or after this agreement is executed):
(a) disclosed to a party, but at the time of disclosure is rightfully known to or in the possession or control of the party and not subject to an obligation of confidentiality on the party;
(b) which was provided to the Recipient by a third party who was not subject to any obligation or duty of confidentiality at the time it was provided to the Recipient;
(c) which was developed independently by the Recipient, without use of the whole or any part of the Discloser’s Confidential Information;
(d) that is public knowledge (except because of a breach of this agreement or any other obligation of confidence); or
(e) required to be disclosed by law or any order of any court, tribunal, authority or regulatory body or in connection with the enforcement of this agreement or by the rules of a recognised stock exchange.
This clause 8 survives termination of this agreement.
9.1 General indemnity
The Customer indemnifies Mediable (and must keep Mediable indemnified) against any liability, loss, reasonable cost or expense (including legal costs on a full indemnity basis) which Mediable or any of its authorised officers or representatives incur as a result of or in connection with:
(a) a material breach of this agreement by the Customer; or
(b) any sum not being paid when due under this agreement.
This clause 9 survives termination of this agreement.
10.1 Termination on insolvency
Mediable may terminate this agreement upon written notice if the Customer suffers an Insolvency Event.
10.2 Termination for material breach
Mediable may terminate this agreement upon written notice, if:
(a) the Customer is in material breach of any of its obligations under this agreement; and
(b) the breach is incapable of remedy, or the breach is capable of remedy and the Customer fails to remedy the breach within 10 Business Days after receipt of a written notice by Mediable requiring rectification of the breach.
10.3 Effect of termination
On termination of this agreement in accordance with this clause 10, all rights and obligations under this agreement other than:
(a) the Customer’s obligation to comply with the payment terms pursuant to clause 4;
(b) this clause 10 and clauses 1 (Interpretation), 7 (Intellectual Property), 8 (Confidentiality), 9 (Indemnity), 14 (Notices) and 16 (General); and
(c) rights that accrue before the Termination Date,
terminate on the Termination Date.
10.4 Payment of outstanding amounts
On the termination of this agreement the Customer must comply with the payment terms in accordance with clause 4.
10.5 Return of property upon termination
On the termination of this agreement, each party must return to the other party:
(a) any computer hardware and software, passwords, keys, security passes, mobile telephones and accessories and equipment of the other party; and
(b) any other property and documents of the other party, in the possession of the party, obtained in connection with the provision of the Services under this agreement.
This clause 10 is a continuing obligation and survives termination of this agreement.
11 Dispute resolution
11.1 Condition precedent to start of legal proceedings
If any dispute between the parties arises out of, or in connection with this agreement (whether during the term of, or after termination of, this agreement) the parties must resolve it in the manner set out in this clause 11, and a party may not commence court proceedings or arbitration concerning the dispute unless:
(a) the party starting proceedings has complied with clause 11; or
(b) the party starting proceedings seeks urgent interlocutory relief; or
(c) another party has first started proceedings other than under clause 11.
11.2 Notice of dispute
Where a dispute has arisen out of or in connection with this agreement, the party claiming that a dispute has arisen must notify each other party to the dispute, specifying the nature of the claim (Dispute Notice).
11.3 Resolution of dispute by negotiation
(a) During the five (5) Business Days after the date the Dispute Notice is given, each party must:
(i) prepare, and exchange with the other parties, a brief statement setting out its own position on the dispute and its reasons for adopting that position; and
(ii) give to the other parties any information they may reasonably require to consider the issues relevant to the dispute.
(b) Within ten (10) Business Days after the date the statements are due to be exchanged under clause 11.3(a), the chief executive officer of each party (or the party in person, if the party is a natural person) must meet and use their best endeavours to resolve the dispute, each having full authority to do so.
(c) In the absence of agreement between the parties as to the time and venue for the meeting, the meeting must take place at the offices of Queensland Law Society at 8.30am on the last Business Day of the time period referred to in clause 11.3(b).
11.4 Unresolved disputes
If the dispute is not resolved under clause 11.3 within thirty (30) Days after a notice under clause 11.2 has been served, a party to the dispute may take any further steps it chooses (including referring the dispute to arbitration or beginning legal proceedings).
12 Suspension of Rights and Obligations (Force Majeure)
(a) In the event of extraordinary circumstances arising beyond the anticipation or control of the Parties and rendering it impossible for a Party (First Party) to fulfil its obligations under this agreement:
(i) the First Party must notify the other Party as quickly as possible;
(ii) the obligations of the First Party, to the extent that it remains impossible for that Party to perform them, shall be suspended for as long as the extraordinary circumstances continue, and any corresponding obligations of the other Party shall be suspended for the same period;
(iii) the other Party may only terminate this agreement with the consent of the First Party;
(iv) where the circumstances persist or could be expected to persist for more than 90 days, either Party may terminate this agreement at 30 days’ notice; and
(v) both Parties have a mutual obligation to keep the other informed.
(b) Examples of force majeure include war, strike action, import embargo, natural disasters, government enforced lockdown, conflagration and unforeseen technical failures preventing Mediable from rendering services or Customer from rendering payment, such as power failure, interruption in telecommunication lines and break-ins.
Mediable may subcontract or assign its obligations under this agreement or assign any of its rights and benefits under this agreement at any time without notice to Customer.
14.1 Details for notices
A person’s address and email address are those set out in Schedule 1 of this agreement, or as the person notifies the sender from time to time.
14.2 Service of notices
Any demand, notice, consent, approval or other communication (Notice) under this agreement may be given by a party or the solicitor for that party provided that it is:
(a) in writing, in English and signed by an authorised officer of the sender or the sender’s solicitor;
(b) addressed to the person to whom it is to be given; and
(i) given as follows:
(A) delivered by hand to that person’s address;
(B) sent by prepaid mail (and by prepaid airmail if the person is overseas) to that person’s address;
(C) sent by fax to that person’s fax number where the sender receives a transmission confirmation report from the despatching machine indicating that the transmission has been made without error and showing the relevant number of pages and the correct destination fax number or name of recipient; or
(D) sent by email to that persons’ email address.
14.3 Effective on receipt
(a) Subject to clause 14.3(b) a notice, consent or communication delivered under clause
14.1 is given and received:
(i) if it is hand delivered, on delivery;
(ii) if sent by fax when the sender's facsimile system generates a message confirming successful transmission of the entire Notice unless, within eight Business Hours after the transmission, the recipient informs the sender that it has not received the entire Notice;
(iii) if it is sent by prepaid post:
(A) within Australia – three (3) Business Days after posting; or
(B) to or from a place outside Australia – twenty one (21) Business Days after posting; or
(iv) if it is sent by email, at the time shown in the delivery confirmation report generated by the sender’s email system.
(b) If the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
In this clause 15, any expression used that is defined in the GST Law has the defined meaning given in the GST Law.
15.2 GST exclusive
Any consideration to be paid or provided for a supply made under or in connection with this agreement does not include an amount of GST (GST Exclusive Consideration).
15.3 Taxable Supply
If any supply by one party (Supplier) to another party (Recipient) under or in connection with this agreement is a taxable supply, then the amount due to the Supplier for that supply will be the sum of:
(a) the GST Exclusive Consideration; and
(b) the amount of GST payable by the Supplier in respect of that supply including any penalties for interest payable by the Supplier, (the GST Amount).
15.4 Tax Invoice
The Recipient’s obligation to pay the GST Amount is subject to the Supplier first providing to the Recipient a tax invoice conforming with the requirements of GST Law.
15.5 Penalties and Interest
If a party becomes liable for any penalties or interest as a result of a late payment of GST, where that late payment is as a direct result of a failure of another party to comply with the terms of this clause, that other party shall pay to the first party an additional amount on demand equal to the amount of those penalties and interest.
15.6 Reimbursement or indemnity payments
(a) If either party has the right under this agreement to be reimbursed or indemnified by another party for a cost incurred in connection with this agreement, that reimbursement or indemnity excludes any GST component of that cost for which an input tax credit may be claimed by the party being reimbursed or indemnified, or by its representative member, joint venture operator or other similar person entitled to the input tax credit (if any).
(b) A party is assumed to be entitled to a full input tax credit unless it proves, before the date on which the payment must be made, that its entitlement is otherwise.
This agreement may only be amended by written agreement between all parties.
Customer may only assign this agreement or a right under this agreement with the written consent of Mediable.
This agreement may be signed in any number of counterparts. All counterparts together will constitute one instrument.
16.4 No merger
The rights and obligations of the parties under this agreement do not merge on completion of any transaction contemplated by this agreement.
16.5 Entire agreement
(a) This agreement supersedes all previous agreements about its subject matter and embodies the entire agreement between the parties.
(b) To the extent permitted by law, any statement, representation or promise made in any negotiation or discussion, has no effect except to the extent expressly set out or incorporated by reference in this agreement.
16.6 Approvals and consents
Except where this agreement expressly states otherwise, a party may, in its discretion, give conditionally or unconditionally, or withhold, any approval or consent under this agreement.
16.7 Further assurances
Each party must do all things reasonably necessary to give effect to this agreement and the transactions contemplated by it.
16.8 No waiver
(a) The failure of a party to require full or partial performance of a provision of this agreement does not affect the right of that party to require performance subsequently.
(b) A single or partial exercise of, or waiver of, the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
(c) A right under this agreement may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.
16.9 Governing law and jurisdiction
(a) Queensland law governs this agreement.
(b) Each party irrevocably submits to the non-exclusive jurisdiction of the Queensland courts and courts competent to hear appeals from those courts.
A clause or part of a clause of this agreement that is illegal or unenforceable may be severed from this agreement and the remaining clauses or parts of the clause of this agreement continue in force unless this would materially change the intended effect of this agreement.
Each party bears its own costs in relation to the preparation and signing of this agreement.
16.12 Non-revocation of power of attorney
Each person who executes this agreement on behalf of a party under a power of attorney declares that he or she is not aware of any fact or circumstance that might affect his or her authority to do so under that power of attorney.
Except where this agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
16.14 Execution by electronic mail
(a) An exchange of executed counterparts of the agreement by email constitute a valid and binding contract between the parties.
(b) For the purposes of the Electronic Transactions (Queensland) Act 2001 (Qld) the parties irrevocably consent to an exchange of executed counterparts by email.
16.15 Compliance with Listing Rules
Each party agrees that, for so long as another party is under an obligation to comply with operating rules of a licensed market insofar as they relate to this agreement, it will do all things reasonably necessary so that the other party can comply with those operating rules.
16.16 Survival of Indemnities
Each indemnity in this agreement is a continuing, separate and independent obligation and survives the termination of this agreement.