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1. Definitions
1.1 “Cinevation” shall mean Cinevation Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Cinevation Pty Ltd.
1.2 “Advertiser” shall mean the Advertiser (or any person acting on behalf of and with the authority of the Advertiser) as described on any quotation, work authorisation or other form as provided by Cinevation to the Advertiser.
1.3 “Services” shall mean all Services (including, but not limited to, Display Schedules and advertising material) supplied by Cinevation to the Advertiser and includes any advice or recommendations.
1.4 “Price” shall mean the price payable for the Services as agreed between Cinevation and the Advertiser in accordance with clause 5 of this contract.
2. Acceptance
2.1 Any instructions received by Cinevation from the Advertiser for the supply of Services and/or the Advertiser’s acceptance of Services supplied by Cinevation shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Advertiser has entered into this agreement, the Advertisers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Advertiser the terms and conditions are binding and can only be amended with the written consent of Cinevation.
2.4 The Advertiser shall give Cinevation not less than fourteen (14) days prior written notice of any proposed change of ownership of the Advertiser or any change in the Advertiser’s name and/or any other change in the Advertiser’s details (including but not limited to, changes in the Advertiser’s address, facsimile number, or business practice). The Advertiser shall be liable for any loss incurred by Cinevation as a result of the Advertiser’s failure to comply with this clause.
2.5 The Advertiser acknowledges that this agreement does not entitle the Advertiser to any admission passes to any cinema free of charge or at a discounted rate.
3. Advertiser Responsibilities
3.1 The Advertiser shall supply Cinevation, within five (5) business days, with all guidelines, documents, and other reference material needed for the provision of the Services.
3.2 The Advertiser warrants that all material supplied to Cinevation will:
(a) be true and correct in every particular; and
(b) comply with Clause 4.2; and
(c) not be, nor contain, anything that is defamatory of any person or is indecent or obscene; and
(d) not breach any advertising industry standards or guidelines; and
(e) not contain nor constitute a statement that is misleading or deceptive or likely to deceive or to mislead or which is otherwise in breach of a provision of the Trade Practices Act of 1974 or of any other Commonwealth legislation of the State or States in which the Services are provided.
3.3 Cinevation reserves the right to refuse to accept, or withdraw from display at any time, any material submitted by the Advertiser that does not comply with Clause 3.2.
3.4 Subject to Cinevation’s consent, the Advertiser may be required to resubmit any material rejected by Cinevation under clause 3.3 and the Advertiser shall pay all additional costs incurred by Cinevation when
processing the resubmitted material.
4. Intellectual Property
4.1 Where Cinevation has designed, drawn, or written material for the Advertiser, then the copyright in those designs, illustrations, and written material shall remain vested in Cinevation, and shall only be used by the
Advertiser at Cinevation’s discretion and with Cinevation’s written consent.
4.2 The Advertiser warrants that all designs, written or illustrated material, or instructions to Cinevation will not cause Cinevation to infringe any patent, registered design or trademark in the execution of the Advertiser’s order and the Advertiser agrees to indemnify Cinevation against any action taken by a third party against Cinevation in respect of any such infringement.
5. Price and Payment
5.1 Once Cinevation has commenced processing the material provided by the Advertiser all costs incurred by Cinevation when processing any replacement or additional material provided by the Advertiser, or in following the Advertiser’s amended instructions, must be paid by the Advertiser.
5.2 A non-refundable deposit of twenty percent (20%) of the Price must be paid prior to the Services being commenced.
5.3 Subject to Cinevation’s consent, an approved Advertiser may be permitted to pay the balance of the Price (less the deposit payable under clause 5.2) in equal monthly installments.
5.4 Time for payment for the Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
5.5 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Advertiser and Cinevation.
5.6 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
6. Delivery of Services
6.1 Delivery of the Services shall take place in accordance with the Display Schedule.
6.2 Cinevation will confirm the delivery date for the Display Schedule to the Advertiser once the Advertiser has given written approval to Cinevation of the visual artwork/commercial and voiceover script supplied by Cinevation.
6.3 The Advertiser acknowledges that for the purposes of the Display Schedule, one (1) month’s screening of the advertising material shall mean screening the advertising material on those days in any given month on which the cinema specified in the Display Schedule is open to the public (excluding film festivals, private events, preview events, and any other special events).
6.4 Should a dispute arise between the Advertiser and Cinevation as to whether the Display Schedule was actually provided, a certificate of confirmation in writing from the projectionist or manager of the cinema at which the Display Schedule was provided will be supplied to the Advertiser. The Advertiser acknowledges that the certificate of confirmation will be conclusive evidence that the Display Schedule was provided at that cinema on the dates shown on the certificate.
6.5 The failure of Cinevation to deliver shall not entitle either party to treat this contract as repudiated.
6.6 Cinevation shall not be liable for any loss or damage whatever due to failure by Cinevation to deliver the Services (or any of them) promptly or at all were due to circumstances beyond the control of Cinevation.
7. Risk
7.1 If Cinevation retains ownership of the Services nonetheless, all risk for the Services passes to the Advertiser on delivery.
8. Title
8.1 Cinevation and the Advertiser agree that ownership of the Services shall not pass until:
(a) the Advertiser has paid Cinevation all amounts owing for the particular Services; and
(b) the Advertiser has met all other obligations due by the Advertiser to Cinevation in respect of all contracts between Cinevation and the Advertiser.
8.2 Receipt by Cinevation of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Cinevation’s ownership or rights in respect of the Services shall continue. |
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9. Errors and Omissions
9.1 The Advertiser shall inspect the Services on delivery and shall notify Cinevation of any alleged defect, errors, omissions, or failure to comply with the service description, otherwise the Services will be deemed to have been correctly provided in full.
10. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
11. Default & Consequences of Default
11.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
11.2 If the Advertiser defaults in payment of any invoice when due, the Advertiser shall indemnify Cinevation from and against all costs and disbursements incurred by Cinevation in pursuing the debt including legal costs on a solicitor and own client basis and Cinevation’s collection agency costs.
11.3 Without prejudice to any other remedies Cinevation may have, if at any time the Advertiser is in breach of any obligation (including those relating to payment); Cinevation may suspend or terminate the supply of Services to the Advertiser and any of its other obligations under the terms and conditions. Cinevation will not be liable to the Advertiser for any loss or damage the Advertiser suffers because Cinevation has exercised its rights under this clause.
11.4 If any account remains overdue after seven (7) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
11.5 Without prejudice to Cinevation’s other remedies at law Cinevation shall be entitled to cancel all or any part of any order of the Advertiser which remains unfulfilled and all amounts owing to Cinevation shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Cinevation becomes overdue, or in Cinevation’s opinion the Advertiser will be unable to meet its payments as they fall due; or
(b) the Advertiser becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Advertiser or any asset of the Advertiser.
12. Cancellation
12.1 The Advertiser may only terminate the contract:
(a) if the Advertiser disposes of or closes the business to which this contract relates; and
(b) the Advertiser’s solicitor or accountant gives Cinevation not less than eight (8) weeks written notice of the termination including reasonable proof of the sale or closure of the business.
12.2 Upon Cinevation’s written acceptance of the termination of the contract (providing the Advertiser has complied with the provisions of Clause 12.1), the Advertiser shall pay Cinevation:
(a) all money payable to Cinevation up to the time of cancellation; and
(b) an additional eight (8) weeks of the remaining display schedule installment payments (plus all production costs).
13. Privacy Act 1988
13.1 The Advertiser agree for Cinevation to obtain from a credit reporting agency a credit report containing personal credit information about the Advertiser in relation to credit provided by Cinevation.
13.2 The Advertiser agree that Cinevation may exchange information about the Advertiser and the with those credit providers either named as trade referees by the Advertiser or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Advertiser; and/or
(b) to notify other credit providers of a default by the Advertiser; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Advertiser is in default with other credit providers; and/or
(d) to assess the credit worthiness of Advertiser.
13.3 The Advertiser consents to Cinevation being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
13.4 The Advertiser agrees that personal credit information provided may be used and retained by Cinevation for the following purposes and for other purposes as shall be agreed between the Advertiser and Cinevation or required by law from time to time:
(a) provision of Services; and/or
(b) marketing of Services by Cinevation, its agents or distributors in relation to the Services; and/or
(c) analysing, verifying and/or checking the Advertiser’s credit, payment and/or status in relation to provision of Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Advertiser; and/or
(e) enabling the daily operation of Advertiser’s account and/or the collection of amounts outstanding in the Advertiser’s account in relation to the Services.
13.5 Cinevation may give information about the Advertiser to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Advertiser; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Advertiser.
14. General
14.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
14.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
14.3 Cinevation shall be under no liability whatever to the Advertiser for any indirect loss and/or expense (including loss of profit) suffered by the Advertiser arising out of a breach by Cinevation of these terms and conditions.
14.4 In the event of any breach of this contract by Cinevation the remedies of the Advertiser shall be limited to damages which under no circumstances shall exceed the Price of the Services.
14.5 The Advertiser shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Advertiser by Cinevation.
14.6 Cinevation may license or sub-contract all or any part of its rights and obligations without the Advertiser’s consent.
14.7 Cinevation reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Cinevation notifies the Advertiser of such change.
14.8 Neither party shall be liable for any default due to any act of God, war, threat of terrorism, strike, lock-out, industrial action, fire, flood, drought, epidemic, storm or other event beyond the reasonable control of either party.
14.9 The failure by Cinevation to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Cinevation’s right to subsequently enforce that provision. |
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