TERMS AND CONDITIONS

Virtue Creative Studios PTY LTD

Unit 4/ 28-30 Lilian Fowler Place Marrickville NSW 2204 and Unit 3.12 / 106-110 Euston Road, Alexandria

BETWEEN Virtue Creative Studios Pty Ltd  of Unit 4/30 Lilian Fowler Place, Marrickville, New South Wales (Supplier)

AND You (Customer)

RECITALS

1. The Customer wishes to receive photography, videography and motion studio services (Services).
2. The Supplier has the skills, background and experience in providing the Services.
3. The Customer wishes to engage an independent contractor to provide the Services to the Customer.
4. The Supplier is willing to provide the Services and the Customer is willing to appoint the Supplier to provide the Services, all in accordance with the provisions of these terms and conditions.

OPERATIVE PART

• Interpretation

These terms and conditions of sale are governed by the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of that State.

In the interpretation of these terms:

1. References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
2. Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, words denoting one gender include all genders and references to documents or agreements also mean those documents or agreements as changed, novated, or replaced;
3. Grammatical forms of defined words or phrases have corresponding meanings;
4. Parties must perform their obligations on the dates and times fixed by reference to the capital city of New South Wales;
5. Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
6. If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
7. References to a party are intended to bind their heirs, executors, administrators, successors, and assigns; and
8. Obligations under this agreement affecting more than one party bind them jointly and each of them severally.

• Agreement

1. The Supplier will provide the Services to the Customer in consideration for the Customer paying the Price (as agreed between them) to the Supplier, subject to the provisions of these terms and conditions.
2. The Supplier and the Customer will agree on the time and place for the performance of the Services subject to the availability of the Supplier’s staff and agents.
3. The Supplier will use reasonable endeavours to complete the Services.
4. The Services will be performed by the employees or agents that the Supplier may choose as most appropriate to carry out the Services.
5. The Services to be performed as agreed by the Parties the time estimates for the provision of the particular Services, and the Prices have been agreed.

• Location

The Supplier will provide the Services in places and locations as the Supplier considers appropriate to the type and nature of the requirements of the Customer as agreed by the Parties from time to time.

The Supplier may provide the Services in its studio, on location at the Customer’s premises or another location as needed. 

If any costs are incurred by the Supplier for the location of the Services, they are to be paid by the Customer. 

• Relationship

The supplier is an independent contractor and not an employee, partner, joint venture partner or agent of the customer.

• Fees

Payment of fees

1. In consideration of the provision of the Services in accordance with these terms and conditions, the Customer will pay the Supplier the Price.
2. Where the Supplier’s charges are based on an hourly rate, any time spent which is less than an hour is charged on a pro-rated basis
3. The Customer acknowledges that the Fees are exclusive of any GST that may be charged by the Supplier to the Customer, and therefore, the Supplier will be entitled to add on GST

Invoicing

1. The Supplier will provide the Customer with a tax invoice in accordance with the GST Law in relation to fees payable under these terms and conditions.
2. Payment will be made by the Customer to the Supplier within fourteen days after receiving the Supplier’s invoice.
3. When making a payment, the Customer must quote relevant reference numbers and the invoice number.

Variation of fees

1. The Supplier is entitled to vary the rates during the term of these terms and conditions with written notice to the Customer 7 days prior to the change being implemented.

Costs and disbursements

1. The Supplier is permitted to charge for all costs and expenses incurred in performing the Services, including models, modelling agencies, stylists, hair and makeup artists, travelling, photocopying, courier services, postage and location fees

Failure to pay

1. If the Customer does not make a payment by the date stated in an invoice or as otherwise provided for in these terms and conditions, the Supplier is entitled to do any or all of the following:

1. Refuse to provide any goods, including metadata of work performed by the Supplier for the Customer, to the Customer; 
2. charge interest on the outstanding amount at the rate of 25% per annum, compounded daily;
3. require the Customer to pay, in advance, for any Services (or any part of the Services) which have not yet been performed; and
4. not perform any further Services (or any part of the Services).

1. Should the Customer fail to pay, and the Supplier is forced to commence recovery action, the Customer hereby agrees to indemnify the Supplier for all costs incurred as a result of any non-payment of invoices by the Customer.
2. The Customer understands that any metadata created by the Supplier remains the Supplier’s property until payment in full is received from the Customer.

Disputed invoices

1. If the Customer disputes the whole or any portion of the amount claimed in an invoice submitted by the Supplier, the Customer must:
   1. pay the portion of the amount stated in the invoice which is not in dispute in accordance with the terms of payment set out in these terms and conditions; and 
   2. notify the Supplier in writing (within 7 days of receipt of the invoice) of the reasons for disputing the remainder of the invoice.

• Customer’s obligations

1. 1. During performance of the Services the Customer will:
      1. cooperate with the Supplier as the Supplier reasonably requires;
      2. provide the information and documentation that the Supplier reasonably requires;
      3. make available to the Supplier such facilities as the Supplier reasonably requires; and
      4. ensure that the Customer’s staff and agents cooperate with and assist the Supplier.
   2. The Customer will not charge for the Supplier’s use of the facilities made available by the Customer.
   3. If the Customer does not provide the facilities that the Supplier reasonably requires (and within the time period) to perform the Services, then any additional costs and expenses which are reasonably incurred by the Supplier will be paid by the Customer.
   4. In the event the Customer fails to comply with this clause, and an existing appointment cannot proceed because of that failure and new appointment is made for the supply of Services, the Customer will bear the costs of the new appointment.

• Disclosure and ownership of intellectual property

1. 1. The Parties agree that, other than as expressly provided in this clause, nothing in these terms and conditions transfers or grants to any party any right, title or interest in or to any Intellectual Property of the Supplier which was in existence prior to the commencement of this agreement or which is subsequently developed by the Supplier independently of and for purposes unconnected with these terms and conditions. 
   2. The Customer acknowledges that ownership of any intellectual property created by the Supplier in the course of performing its obligations under these terms and conditions remains vested in the Supplier. 
   3. The obligations accepted by the Parties under this clause survive termination or expiry of these terms and conditions.

• Exclusivity and restraint

Neither the customer nor the supplier is required to deal with each other on an exclusive basis in relation to the goods and services the subject of these terms and conditions. 

• Title and risk

The title to goods will pass to the customer on payment following delivery.

• Insurance

The supplier will effect and maintain the following insurances, in an amount reasonably acceptable to the customer, to fully indemnify the customer against any and all sums that may become payable due to the actions of the supplier its employees and subcontractors during the currency of this agreement:

1. A public liability insurance policy;
2. A professional indemnity insurance policy;
3. A workers compensation insurance for its employees;
4. Comprehensive motor vehicle insurance in relation to any vehicle used by it in performing this agreement; and
5. Any other insurance policies as reasonably required by the customer from time to time.

The supplier will provide to the customer a copy of a certificate of currency in relation to each insurance policy immediately on request by the customer.

If the supplier does not comply with the supplier’s obligations under this clause, the customer may effect the relevant insurance and recover the cost of doing so from the supplier.

• Performance

The supplier will carry out its obligations hereunder in a proper and workmanlike manner.

• Digital Storage

1. 1. The Supplier will store the Customers original/RAW digital material for 1 month and any files uploaded to the Supplier’s cloud storage will be removed without notice after 3 months. The Supplier strongly recommends that the Customer download and store all of their digitals.
   2. The Customer is required to check their finalized assets within 7 days. Any adjustments after 7 days will incur additional charges of $80 per hour for post-production.

GOODS

• Delivery

The supplier will supply the goods to the customer at the place and at the time set out in the schedule.

The supplier will obtain signed confirmation of each delivery by the customer’s personnel.

• Inspection

The customer has a reasonable time to inspect the goods and may reject defective goods and return them for a credit or require the supplier to replace them.

• Other obligations

The customer will ensure all goods are new, of merchantable quality, free from any defects and fit for their purpose.

SERVICES

• Compliance and safety

In providing the services set out in the schedule, the supplier must ensure that their personnel are trained, hold the appropriate licences, comply with all laws regulations and the customer’s policies, and observe health and safety standards and follow site rules for entry and conduct on site and follow the directions of the customer’s personnel while on site.

The supplier must ensure that its personnel obtains prior approval from the customer’s site manager before working with hazardous materials and such personnel must be trained to work with hazardous materials and must comply with all rules, regulations and good operating practices relating to hazardous work or hazardous materials.

The supplier must ensure that their personnel comply with all rules, regulations and good operating practices relating to loading, unloading, and securing goods and the safe operation of vehicles, plant and equipment. 

• Personnel

The supplier will ensure that their personnel have the appropriate qualifications training and experience to perform their tasks competently and in a businesslike manner and that they will conduct themselves diligently with due skill and care.

The customer may on reasonable grounds notify the supplier that a member of its team is unacceptable whereupon the supplier will replace that person.

The supplier is solely responsible for all pay, entitlements, and other benefits for their employees.

The supplier indemnifies the customer from and against any liability or claim arising out of a failure by the supplier to observe the supplier’s obligations to its employees.

• Use of equipment

The supplier will ensure that equipment used by it in the performance of its obligations hereunder is safe, fit for the work it is to undertake and is properly maintained during its operation under this agreement. The customer may on reasonable grounds reject the use equipment that does not meet these requirements. 

• Incident reporting

As soon as becoming aware of an accident or serious incident each party shall inform the other and take such action as is necessary to deal with the situation. The party responsible will provide a detailed written report setting out the cause of the event and all other relevant information as soon as practicable after remedial action has been taken.

• Confidentiality

1. 1. 1. A Party which receives Confidential Information (Recipient) from the other Party (Discloser) must keep the Discloser’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
      2. The Recipient’s obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by the Discloser.
      3. At the Termination Date, or when earlier directed by the Discloser:
         1. all Confidential Information must be returned to the Discloser, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Recipient makes and any software that the Recipient creates based on the Confidential Information; and
         2. the Recipient must erase and destroy any copies of any software containing or comprising the Confidential Information in the Recipient’s possession or under the Recipient’s control or that may have been loaded onto a computer possessed or controlled by the Recipient.
      4. The Confidential Information does not include information which:
         1. is generally available in the public domain otherwise than as a result of a breach of clause 24(a) by the Supplier; or
         2. was known by the Recipient prior to the Discloser disclosing the information to the Supplier.
      5. The Recipient agrees that the Discloser may require any of the Recipient’s personnel to sign a confidentiality agreement in a form that the Discloser approves, as a condition of the Discloser’s acceptance of any of the Recipient’s personnel.
      6. The Recipient agrees to indemnify the Discloser fully against all liabilities, costs and expenses which the Discloser may incur as a result of any breach of this clause 24 by the Recipient.
      7. The Recipient acknowledges that damages may be an inadequate remedy for breach of this clause 24 and that the Discloser may obtain injunctive relief against the Recipient for any breach of this clause 24.
      8. The obligations accepted by the Recipient under this clause 24 survive termination or expiry of this agreement.

• Privacy

1. 1. 1. The Customer is responsible for obtaining all relevant consents from, and providing all relevant notices to, individuals whose Personal Information is provided by the Customer to the Supplier in connection with this agreement so as to ensure that the Supplier’s dealings with that information pursuant to this agreement comply with the Supplier’s obligations under any Privacy Laws. 
      2. The Customer must indemnify the Supplier against, and must pay the Supplier on demand the amount of, all Losses, liabilities, costs and expenses arising out of its failure to comply with clause 26(a).
      3. The Customer must: 
         1. immediately notify the Supplier if it becomes aware of any unauthorised access to, or unauthorised disclosure of, Personal Information under its control by virtue of this agreement, and provide advice as to whether it considers that such security breach may result in serious harm to any individual to whom the information relates;
         2. comply with any directive from the Supplier as to which Party will discharge any statutory reporting obligation arising from the incident;
         3. conduct or assist the Supplier in conducting a reasonable and expeditious assessment of the breach or suspected breach; and
         4. ensure compliance with all mandatory data breach reporting obligations arising out if the breach or suspected breach.

• Warranties, liability and indemnities

Warranties

1. The Supplier warrants that it will use reasonable care and skill in performing the Services to the standard generally accepted within the industry, sector or profession in which the Supplier operates for the type of Services provided by the Supplier.

Insurances

The Supplier must take out the following insurance:

1. worker’s compensation insurance as prescribed by law for the Supplier’s personnel; and
2. public liability insurance for a minimum of an amount to be agreed for each occurrence.

Employees and subcontractors

1. The Supplier covenants that the Supplier is solely responsible for the payment to the Supplier’s employees and agents of all amounts due by way of salary, superannuation, annual leave, long service leave and any other benefits to which they are entitled as the Supplier’s employees or agents.
2. The Supplier must otherwise comply with legislation applicable to the Supplier’s employees and agents.

Compliance with all laws

Throughout this agreement the Supplier must comply at the Supplier’s own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, state and local government departments, bodies, and public authorities or other authority. This requirement applies to the Supplier or to the Services. The Supplier must indemnify the Customer from and against all actions, costs, charges, claims and demands in respect of such action, cost, charge, claim and demand.

No warranties in relation to completion

The Supplier provides no warranty that any result or objective can or will be achieved or attained at all or by the completion date or any other date, whether stated in this agreement or elsewhere.

Limitation on liability

1. Except in the case of death or personal injury caused by the Supplier’s negligence, the liability of the Supplier under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the fees paid by the Customer to the Supplier under this agreement. 
2. Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. For the purposes of this sub-clause, “consequential loss or damage” means any loss that does not arise naturally and according to the usual course of things as a result of a breach of this agreement or other event giving rise to such loss, whether or not such loss may reasonably be supposed to have been in the contemplation of the Parties at the time they made this agreement.

No reliance

Each of the Parties acknowledges that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.

Survival of obligations

The obligations accepted by the Supplier and the Customer under this clause 26 survive termination or expiry of this agreement.

• Amendment

An amendment or variation to these terms is not effective unless it is in writing and signed by the Supplier and the Customer.

• Dispute resolution

If a dispute arises between the parties, the complainant must not commence any court or arbitration proceedings, except where that party seeks urgent interlocutory relief, unless it has first complied with this clause:

• Notification

The complainant must inform the respondent in writing of the following:

1. The nature of the dispute;
2. The outcome the complainant desires; and
3. The action the complainant believes will settle the dispute.

• Endeavour to resolve dispute

On receipt of the complaint by the respondent, both parties will make every effort to resolve the dispute by mutual negotiation within 14 business days.

• Mediation

Any unresolved dispute or difference whatsoever arising out of or in connection with this agreement shall be submitted to mediation under the Mediation Rules of the Resolution Institute.

• Survival of this clause

This clause survives termination of this agreement.

• Waiver and amendments

Any waiver by any party to a breach of these terms shall not be deemed to be a waiver of a subsequent breach of the same or of a different kind.

• Events beyond control

Neither party shall be liable to the other party for any loss caused by any failure to observe the terms and conditions of this agreement, where such failure is occasioned by causes beyond its reasonable control including but not limited to by fire, flood, riot, strike, war, restrictions and prohibitions or any other actions by any government or semi government authorities.

• Severance

If anything in these terms is unenforceable, illegal, or void, it is severed and the rest of the terms remain in force.