1.      ENGAGEMENT

(a)    These terms of service (Terms of Service) and the written quote (Quote) provided by Leading Technology Asia Pacific Pty Ltd (we, us, our) to the client listed in the Quote (you) will exclusively govern our supply of the Services and Equipment to you.

(b)   The Agreement commences on the date you accept or sign the Quote, pay a deposit or otherwise give us instructions to begin the Services in the Quote, whichever comes earlier (Commencement Date). The Agreement shall end once the parties have completed their respective obligations under the Agreement (Term).

(c)    The Agreement can only be amended if the parties agree in writing (email to suffice).

2.      SERVICES AND EQUIPMENT

(a)    We are not required to commence the Services until you accept the Quote and pay any relevant deposits, initial instalments or prepayments stated in the Quote or otherwise required by us.

(b)   We will supply the Services and Equipment as a non-exclusive independent contractor to you. We may engage sub-contractors to perform our obligations under this Agreement in our discretion.

(c)    We will supply suitably experienced personnel to provide the Services and operate the Equipment where specified in the Quote (Personnel).  Our Equipment may only be operated by our Personnel unless we otherwise agree in writing.

(d)   If you wish to change the Services and Equipment listed in the Quote (Variations), you must contact us in writing. If we can accommodate the Variations in whole or part, we will issue an updated Quote for your review (Updated Quote). If you are happy to proceed, you must accept the Updated Quote and it will replace the current Quote. A reference to Quote in the Terms of Service includes an Updated Quote.

(e)    We reserve the right to substitute Equipment listed in the Quote with equipment of equal or greater quality if the Equipment is not available at the time it is required for the Engagement.

(f)    Where our Services involve creating deliverables for you such as audio-visual recordings (Deliverables), we will provide Revisions as specified in the Quote. Further Revisions will be subject to additional charges.

3.      OUR RIGHTS

(a)    You grant us the right to act as your representative and deal with third parties on your behalf in relation to the Engagement.

(b)   You agree that we are appointed to provide the Services and Equipment for the Engagement on an exclusive basis unless we otherwise agree in writing. 

(c)    Nothing in this Agreement prevents us from providing similar services to the Services for third parties during the Term.

4.      THIRD PARTY SUPPLIERS

(a)    As part of the Services, you acknowledge and agree that we may need to procure third party suppliers (Third Party Suppliers) to supply goods and services in relation to the Engagement.  We will take care to negotiate and finalise contracts with Third Party Suppliers that are in keeping with industry standards (Supplier Contracts).

(b)   We are entitled to enter into Supplier Contracts directly with Third Party Suppliers. If we do, you agree:

(i)        We have final approval over the Third Party Supplier in relation to the Engagement (unless otherwise agreed between us);

(ii)       Before we engage the Third Party Supplier, you must pay to us any relevant deposit, initial instalment or prepayment required by us in relation to the Supplier Contract (if any);

(iii)      To the extent permitted by law and subject to clause 8(a) and clause 9(b), we are not responsible or liable for the Third Party Supplier’s goods and services, and you release us from any such responsibility and liability; and

(iv)      You agree to follow our and any Third Party Supplier’s reasonable directions and abide by all relevant laws in relation to the Third Party Supplier’s services, including in relation to any safety and security measures.

5.      CLIENT OBLIGATIONS

(a)    In relation to the Agreement, you agree to:

(i)        Promptly supply us with any information, documentation, feedback, approvals, facilities and assistance that we need from time to time (Client Materials);

(ii)       Ensure you comply with all legal requirements and laws in relation to the Services and obtain all necessary permits, licences and consents;

(iii)      Follow the terms of this Agreement and pay all invoices on time;

(iv)      Be collaborative, easily contactable, open and considerate in your dealings with us, our representatives (including Personnel) and Third Party Suppliers;

(v)       Provide a safe working environment for us, our representatives (including Personnel) and Third Party Suppliers; and

(vi)      Ensure our Equipment is kept safe and secure whilst it is in your possession or control.

(b)   If you are not able to follow your obligations in clause 5(a) in any way, the Services may be delayed or negatively impacted, and we are not liable for any Loss you may suffer as a result.

(c)    You agree that you are liable and must pay for any damage (save for reasonable wear and tear as determined by us), theft or loss of Equipment we provide to you under this Agreement while the Equipment is under your control or the control of your representatives (including where you ship the Equipment back to us and the Equipment is damaged in transit).  Payments charged to you under this clause must be made to us within 7 days.

(d)   Where applicable, you must return the Equipment to us by the return date communicated by us to you (Return Date). We reserve the right to charge additional daily hire rates for each day the Equipment has not been returned to us after the Return Date.

(e)    Alternatively, if we agree to collect the Equipment from you, you must permit (or obtain permission) for us to enter the premises in which the Equipment is located after the Engagement at a time convenient to us on the Return Date. If you cannot provide access to us on the Return Date you are liable and must pay on demand for any Loss incurred directly as a result, including the costs of attempts by us to access the Equipment location and loss of income related to other bookings for the Equipment

6.      SERVICE FEES, EXPENSES AND PAYMENT TERMS

(a)    In consideration for the Services, you agree to pay the Fees and expenses (including third party supplier expenses) (Expenses) listed in the Quote or otherwise notified by us.

(b)   You acknowledge and agree that Fees and Expenses have been calculated based on information you have provided to us to date.  If this information is incomplete or inaccurate in any way, we reserve the right to amend the Fees and Expenses accordingly by provision of written notice to you.

(c)    Any fees and expenses relating to services not specified in the Quote, Variations and any reasonable additional expenses we incur in providing the Services (including any merchant fees you incur when making payments to us) must be paid in addition to the Fees and Expenses (Additional Charges).

(d)   The Fees, Expenses, Additional Charges and any other charges that are payable under this Agreement (for example costs incurred in relation to Supplier Contracts) are collectively referred to as the Total Costs under this Agreement. 

(e)    We will issue you with invoices for the Total Costs in accordance with these Terms of Service and any payment schedule set out in the Quote which may include a deposit or initial instalment payment (Deposit).

(f)    You agree to pay all invoices issued under this Agreement (including any GST components required by law on top of Fees and any other costs) by the due date specified on the invoice.

(g)    We may agree to apply discounts to one or more components of the Total Costs in our discretion (Discounts). Discounts are applied by us on the strict condition that all payments due to us under this Agreement are made by the due dates specified on our invoices. We reserve the right to revoke Discounts and seek payment of the full, non-discounted amounts from you if any payments due to us under this Agreement are more than 7 days overdue.

(h)   We reserve the right to charge Interest on any and all overdue payments under this Agreement

(i)     We reserve the right to refer any debts to a debt collector or solicitor. All costs incurred by us in doing so will be payable by you.

7.      INTELLECTUAL PROPERTY

(a)    You will retain ownership of the Intellectual Property in all Client Materials you provide to us and grant us a licence to use the Client Materials in order to perform our obligations under this Agreement and warrant that our use of the Client Materials do not infringe any third-party rights.

(b)   Subject to clause 7(c) – clause 7(e), we agree that all rights, title and interest in and to the Intellectual Property in each of the Deliverables (the Developed IP), will be assigned from us to you throughout the world in perpetuity upon payment in full by you of all costs owing to us in relation to the production of that item of Developed IP. 

(c)    The Developed IP does not include Our IP nor does it include our internal notes, drafts, and preliminary concepts or designs.  For the avoidance of doubt, we retain exclusive ownership of Our IP throughout the world and hereby grant you a non-exclusive worldwide, perpetual, royalty-free, assignable, sub-licensable licence to use Our IP strictly as part of your use of the Deliverables in accordance with the terms of this Agreement.

(d)   We may at our discretion (or at your request) incorporate Intellectual Property owned by third parties into the Deliverables such as stock content, music, voiceovers, talent likeness and other licensed materials (Third Party IP).  The Developed IP does not include any Third Party IP.  Your use of the Third Party IP as part of the Deliverables is subject to terms imposed by the relevant third party owner (Third Party Licences). You will be responsible for obtaining, maintaining and paying for all applicable Third Party Licences unless otherwise notified by us.

(e)    You give us a non-exclusive licence to create and use visual and audio-visual content showing our provision of Services for our self-promotional, marketing or demonstrative purpose and consent to us using your name and logo as part of any published client list.

8.      AUSTRALIAN CONSUMER LAW

(a)    Nothing in this Agreement restricts, limits or excludes any rights you may have under the Australian Consumer Law or any other law.

(b)   If you acquire any services under this Agreement as a Consumer, they will be supplied in accordance with any applicable Consumer Guarantees. Otherwise, to the full extent permitted by law, we exclude any warranty or condition in relation to goods and services supplied under this Agreement, which would otherwise be implied, including that they will be suitable or fit for any particular purpose.

9.      LIABILITY AND INDEMNITY

(a)    Each party (First Party) is liable for and indemnifies the other party and its representatives (Indemnified Party) against any reasonable and quantifiable Loss or Claim suffered by the Indemnified Party in respect of any breach of this Agreement by the First Party, subject to:

(i)        Clause 9(c) below;

(ii)       the Indemnified Party taking reasonable steps to mitigate such Loss or Claim; and

(iii)      the First Party’s liability being reduced proportionately to the extent that the Indemnified Party’s negligent act or omission has contributed to the Loss or Claim.

(b)   Subject to clause 8(a) and to the extent permitted by law, if you are a Consumer under this Agreement, our liability to you for any Loss or Claim suffered by you in respect of:

(i)        Any services supplied to you under this Agreement, including in respect of any failure to comply with any Consumer Guarantees, is limited to (at our election):

(A)    resupplying the services again; or

(B)    paying the cost of having the services supplied again.

(ii)       Any goods supplied to you under this Agreement, including in respect of any failure to comply with any Consumer Guarantees:

(A)    if the goods have a minor problem: is that we will at our election, repair, replace or refund the goods.

(B)     if the goods have a major problem: is that we will at your election, repair, replace or refund the goods.

(c)    Subject to clause 8(a) and to the extent permitted by law,

(i)        Neither party is liable to the other party for any kind of Consequential Loss arising out of or in connection with this Agreement;

(ii)       We are not liable for any Loss you may suffer in relation to the Services or this Agreement, where the Services are restricted or impacted by a Force Majeure Event;

(iii)      We are not liable for any Loss or Claim suffered by you in respect of a Supplier Contract (and you must deal with the relevant Third Party Supplier directly); and

(iv)      We are not liable for any Loss or Claim suffered by an Engagement attendee, and it is your responsibility to ensure that appropriate safety protocols are put in place for the Engagement.

10.     POSTPONEMENT AND CANCELLATION

(a)    If you wish to postpone the Engagement (including because the Engagement is impacted by a Force Majeure Engagement), we will discuss this with you at the time and will make efforts to reschedule the supply of the Services. Subject to clause 8(a) and to the extent permitted by law, if the supply of the Services cannot be rescheduled by us, you may cancel the supply of the Services under clause 10(b).

(b)   Subject to clause 8(a) and to the extent permitted by law, if you wish to cancel the supply of the Services for ‘change of mind’ or due to a Force Majeure Engagement, you must pay the Administration Fee.  You agree the Administration Fee is not a penalty, but a genuine pre-estimate of Loss suffered by us in relation to the cancellation covers Loss relating to inter alia the rescheduling of staff and suppliers, administration costs, cancelling suppliers, returning equipment, loss of income and bringing forward other clients’ projects.

(c)    Subject to clause 8(a) and to the extent permitted by law, we may cancel the supply of the Services due to a Force Majeure Engagement, whereby:

(i)        We are entitled to be paid for all Services carried out by us up to the date of the cancellation and Expenses incurred by us up to the date of the cancellation which are not refundable by the relevant third party (such amount which we will notify you of); and

(ii)       We will refund you for costs paid for Services not supplied and Expenses which we have incurred which are refundable by the relevant third party.

(d)   Either party (the Party) may cancel supply of the Services in writing with immediate effect:

(i)        If the other party materially breaches this Agreement; and

(ii)       This cannot be fixed or if it can be fixed, the other party does not fix it within 14 days after the Party gives written notice of the material breach.

For the avoidance of doubt, the presence of serious safety or security concerns related to the Engagement that become apparent to our representatives on the day of the Engagement would constitute a material breach of the Agreement by you that cannot be fixed.

(e)    Without limiting our rights under clause 9(a), subject to clause 8(a) and to the extent permitted by law, the parties agree that if the supply of the Services is cancelled under clause 10(d):

(i)        We are entitled to be paid for all Services carried out by us up to the date of the cancellation and Expenses incurred by us up to the date of the cancellation which are not refundable by the relevant third party (such amount which we will notify you of);

(ii)       We will refund you for costs paid for Services not supplied and Expenses which we have incurred which are refundable by the relevant third party (although we may firstly set-off any monies owing to us under clause 9(a)); and

(iii)      We reserve the right to charge the Administration Fee where the Agreement ends as a result of a breach by you.

(f)    If the supply of the Services is cancelled under clause 10, this Agreement will terminate once the parties complete their remaining obligations.

11.     INSURANCE

(a)    You must hold a valid insurance policy in relation to damage, loss or theft of our Equipment provided as part of our Services (Equipment Policy). The Equipment Policy must be issued by a reputable insurance provider and must cover the duration of your use of the Equipment. The Policy must cover the ‘new for old’ replacement value of the Equipment and our costs of hiring similar Equipment whilst the damaged, lost or stolen Equipment is being replaced or repaired.

(b)   If requested by us, you must provide a certificate of currency in relation to the Equipment Policy.

(c)    You must also hold public liability insurance for the Engagement in the sum of $20M for one event and in the aggregate.

12.     GENERAL

(a)    Capitalised words may be defined in the Definitions section, the body of these Terms of Service or in the attached Quote.

(b)   This Agreement and any incorporated Quotes forms the entire agreement between the parties as to its subject matter and changes to this Agreement must be agreed in writing by the parties.

(c)    This Agreement will be governed by the laws of Queensland, Australia. The parties agree that the courts of Queensland, Australia (or where applicable, the Federal Court of Australia) will have exclusive jurisdiction of this Agreement.

(d)   Unless expressly permitted in this Agreement, you must not assign or novate your rights and obligations under this Agreement to another person without our prior written consent.

(e)    Each party agrees that it will not disclose the Confidential Information of the other party acquired in relation to this Agreement including our pricing without the party’s consent, except that the Confidential Information may be disclosed to a party’s representatives on a ‘need to know’ basis, to a party’s professional advisors and as required by law.

(f)    If the whole or any part of this Agreement is void, unenforceable or illegal, that part will be severed, and the remainder of this Agreement will continue in full.

(g)    The following clauses will survive the conclusion of this Agreement: 4(b), 6, 7, 9, 10, 11 and 13.

13.     DEFINITIONS AND INTERPRETATION

13.1   Definitions

(a)    Administration Fee means the sum of the Expenses we have incurred or committed to incur at the date of cancellation (which we are not able to have refunded by the relevant third party) plus:

(i)        25% of the Fees where the cancellation occurs 30 days or more from the earliest Engagement date specified in the Quote;   

(ii)       50% of the Fees where the cancellation occurs between 15 and 30 days from the earliest Engagement date specified in the Quote; 

(iii)      75% of the Fees where the cancellation occurs between 8 and 14 days from the earliest Engagement date specified in the Quote;  and

(iv)      100% of the Fees where the cancellation occurs  7 days or less from the earliest Engagement date specified in the Quote;  .

whereby all monies already paid to us shall be applied to the payment of the Administration Fee.

(b)   Australian Consumer Law means Competition and Consumer Act 2010 (Cth) Schedule 2.

(c)    Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature, whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.

(d)   Confidential Information means any information belonging to or relating to a party to this Agreement howsoever acquired that is marked confidential or is by its nature confidential, including, without limitation, trade secrets, Intellectual Property, know-how, business and financial data, policies, plans, databases, client lists and reports but does not include information which is or becomes generally available in the public domain (other than through breach of this Agreement or an obligation of confidence).

(e)    Consequential Loss means special, incidental, indirect or consequential damages, loss of revenue, anticipated savings, profits, goodwill, reputation, interest or business.

(f)    Consumer has the same definition as in the Australian Consumer Law.

(g)    Consumer Guarantees means the consumer guarantees specified in the Australian Consumer Law.

(h)   Force Majeure Event means an act of god, war, natural disaster, pandemic, global financial crisis, financial crisis, injury or illness, death in the family, government shutdown or similar restrictions, hacking, viruses, internet connectivity issues, power outages and any other cause not reasonably within the control of the party affected.

(i)     Intellectual Property or IP means all rights in relation to trade marks, copyright, patentable inventions and designs, whether existing now or in the future, and whether or not registered or registrable, and includes any rights subsisting in or relating to trade secrets, know how, techniques and confidential information.

(j)     Interest means interest at the rate of 2% above the rate set down from time to time under section 2 of the Penalty Interest Rates Act 1983 (Vic), such interest which is capitalised monthly.

(k)    Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs.

(l)     Our IP means Intellectual Property owned by, or licensed to, us prior to the Term, or created by us during the Term independently of the provision of the Services under this Agreement.

(m)  Third Party IP means Intellectual Property owned by third parties such as trade marks, presentations, stock content, music, voiceovers, talent likeness and other licensed materials.

13.2   Interpretation

In this Agreement, unless expressly stated:

(a)    a word importing the singular includes the plural and vice versa;

(b)   a word importing a gender includes other genders;

(c)    a law is a reference to that law as amended, consolidated or replaced;

(d)   this Agreement includes all schedules and attachments to it;

(e)    a party to this Agreement includes its agents, personal representatives, successors and permitted assigns;

(f)    a person, includes a natural person, partnership, joint venture, corporation, trust, governmental agency, association or other body corporate;

(g)    a time, is a reference to the time in the State or Territory of the jurisdiction that governs this Agreement;

(h)   $, is a reference to Australian dollars unless otherwise expressly stated; and

(i)     the words ‘such as’ or ‘including’ are not used as words of limitation