TRADING TERMS AND CONDITIONS
Hoverscape Pty Ltd (ACN: 165 330 254) trading as Hoverscape
2.1. The Supplier is Hoverscape Pty Ltd (ACN: 165 330 254) trading as Hoverscape of 59 Arden Street, Clovelly in the state of New South Wales.
2.2. The Customer is the party or any person acting on behalf of and with the authority of the Customer that the Order is provided for.
2.3. The Guarantor is the person(s), or entity, who agrees to be liable for the debts of the Customer.
2.4. The Order shall be defined as any request for the provision of Goods and/or Services by the Customer with the Supplier which has been accepted by the Supplier.
2.5. The Goods are the photos, videos, maps and/or related goods provided by the Supplier.
2.6. The Services are all the delivery and/or supply of Goods, photography, videography, production, development, promotion and/or related services done by the Supplier, including any advice or recommendations.
2.7. The Premises are the land or land and buildings where the Services are to be carried out.
2.8. The Price is the amount invoiced for Goods supplied and/or Services provided.
2.9. Indirect, Special or Consequential loss or damage includes i) any loss of income profit or business; ii) any loss of good will or reputation; iii) any loss of value of intellectual property.
2.10. Invoices include invoices for Good supplied or for Services provided, or both.
2.11. Major failure in this Agreement is as defined under the Competition and Consumer Act 2010.
2.12. “Security Agreement”, “Commingled Goods”, “Collateral”, “Financing Statement”, “Financing Change Statement” is defined under Section 10 of the Personal Property Securities Act 2009 (Cth).
2.13. GST refers to Goods and Services Tax under the Goods and Services Act 1999 (“GST Act”) and the terms used herein have meanings contained within the GST Act.
3.1. These Terms and Conditions together with the Supplier’s Credit Application Form and the Supplier’s written or verbal quotation form this Agreement.
3.2. Any Order requested by the Customer is deemed to be an Order incorporating these Terms and Conditions and may not be varied unless expressly agreed to by the Parties in writing. In the event that an inconsistency exists and/or arises between these terms and the Order it is acknowledged between the parties that these Terms and Conditions will prevail.
3.3. No subsequent correspondence or document or discussion shall modify or otherwise vary these Terms and Conditions unless such variation is in writing and signed by the Supplier.
3.4. The Terms and Conditions are binding on the Customer, his heirs, assignees, executors, trustees and where applicable, any liquidator, receiver or administrator.
3.5. In these Terms and Conditions, the singular shall include the plural, the masculine shall include feminine and neuter and words importing persons shall apply to corporations.
3.6. Where more than one Customer completes this Agreement each shall be liable jointly and severally.
3.7. 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 and the offending provision shall be deemed as severed from these Terms and Conditions.
3.8. The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent but the Supplier acknowledges that it remains at all times liable to the Customer.
3.9. The failure by the Parties to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect each Party’s right to subsequently enforce that provision.
3.10. The Customer acknowledges that the Supplier may detail these Terms and Conditions on its website. In this event, the Terms and Conditions on the Supplier’s website shall apply to any future dealings as between the parties and the Customer is deemed to have notice of any such Terms and Conditions and/or amendments.
3.11. The Customer covenants that he is either the owner of the Premises or is acting with the authority of the Owner.
4. PLACEMENT OF ORDERS
4.1. Orders placed by the Customer with the Supplier will be considered valid when placing the Order by telephone.
4.2. Customers must provide the Supplier with a Purchase Order before any Goods or Services are provided.
4.3. Any written Quotation given by the Supplier shall expire thirty (30) days after the date of the written quotation. Quotations may also be provided to the Customer by verbal communication over the telephone.
4.3.1. All prices are based on taxes and statutory charges current at the time of the Quotation. Should these vary during the period from the date of the Quotation to the date of the invoice, the difference will become the responsibility of the Customer and the Customer will be invoiced for the extra charge by the Supplier.
5.1. The Supplier reserves the right to change the Price to the Supplier’s Order in the event of a variation which was previously unknown or unforseen by the Parties at the time the Order was placed, and notice will be provided in writing by the Supplier within a reasonable time.
5.2. At the Supplier’s sole discretion the Price shall be either:
5.2.1. As detailed on invoices provided by the Supplier to the Customer in respect of Goods and or Services supplied; or
5.2.2. The Supplier’s quoted Price as for the Order (subject to clause 5.1).
6. SUPPLY AND DELIVERY OF GOODS
6.1. At any time before payment is made by the Customer, the Supplier reserves their right to:
6.1.1. Decline requests for any Goods requested by the Customer.
6.1.2. Cancel or postpone the delivery of Goods at their discretion.
6.2. Delivery of the Goods shall be deemed to be complete when the Goods are collected by the Customer or are delivered to the Customer or to the carrier as nominated by the Supplier and/or Customer.
6.3. If the Customer fails to make all arrangements necessary to take delivery of the Goods the Customer shall, at the discretion of the Supplier, be liable for the Supplier’s standard Non Delivery Fee and the Supplier shall be entitled, also at its discretion, to charge a reasonable fee for redelivery and storage.
6.4. Unless specified by the Supplier to the contrary in the Order, the Supplier does not warrant that it will be capable of providing the Goods at specific times requested by the Customer during the term of this Agreement.
6.5. Subject to otherwise complying with its obligations under this Agreement, the Supplier shall exercise its independent discretion as to its most appropriate and effective manner of providing the Goods and of satisfying the Customer’s expectations of those Goods.
6.6. In the discharge of its duties, the Supplier shall comply with all reasonable directions of the Customer as to the nature and scope of the Goods to be provided.
6.7. Nothing in the above clause shall effect the Supplier’s right to exercise its own judgment and to utilise its skills as it considers most appropriate in order to achieve compliance with the said resolutions, regulations and directions or otherwise with its obligations under this Agreement.
6.8. The Supplier may agree to provide, on request from the Customer, additional Goods not included or specifically excluded in the Quotation/Order. In this event, the Supplier shall be entitled to make an additional charge. Additional Goods includes, but is not limited to, alterations, amendments, and any additional visits by the Supplier after provision of the Goods at the request of the Customer.
6.9. The Customer is responsible for ensuring that the Goods are secured at the Premises and warrants to be responsible for any loss, damage or theft of the Goods delivered by the Supplier to the Premises.
6.10. The Supplier will retain and make available The Goods (your data) for download for 30 days, after which it will be removed from our system for your security and cannot be recovered
7. PROVISION OF SERVICES
7.1. The Supplier reserves their right to:
7.1.1. Decline requests for any Services requested by the Customer. 7.1.2. Cancel or postpone appointments at their discretion.
7.2. The Customer will provide all necessary material to the Supplier, in the Supplier’s requested format, within seven (7) days of the request. The Customer shall be liable to the Supplier for any loss or damage or consequential loss or damage whatever arising from a failure to comply with this clause.
7.3. At the sole discretion of the Supplier, the Supplier may charge an attendance fee at the prevailing rate for any appointment made by the parties.
7.4. Unless specified by the Supplier to the contrary in the Order, the Supplier does not warrant that it will be capable of providing the Services at specific times requested by the Customer during the term of this Agreement.
7.5. Subject to otherwise complying with its obligations under this Agreement, the Supplier shall exercise its independent discretion as to its most appropriate and effective manner of providing the Services and of satisfying the Customer’s expectations of those Services.
7.6. In the discharge of its duties, the Supplier shall comply with all reasonable directions of the Customer as to the nature and scope of the Services provided.
7.7. Nothing in the above clause shall effect the Supplier’s right to exercise its own judgment and to utilise its skills as it considers most appropriate in order to achieve compliance with the said resolutions, regulations and directions or otherwise with its obligations under this Agreement.
7.8. The Supplier may agree to provide, on request from the Customer, additional Services not included or specifically excluded in the Quotation/Order. In this event, the Supplier shall be entitled to make an additional charge. Additional Services includes, but is not limited to, alterations, amendments, and any additional visits by the Supplier after provision of the Goods and/or or Services at the request of the Customer.
7.9. The Customer grants full access to the Supplier its servants and agents to the Premises to enable it to carry out the Services.
7.10. The Customer is responsible to obtain all necessary permits and to mark out the site at the Premises for the provision of the Services.
8. PAYMENT AND CREDIT POLICY
8.1. Account customers must make full payment to the Supplier within seven (7) days from the date of issue of invoice(s) for the Goods and/or Services.
8.2. The Supplier may request a deposit of fifty per centum (50%) be paid no later than seven (7) days before the Goods and/or Services are provided.
8.3. Credit will only be granted at the sole discretion of the Supplier and upon submission of a completed Credit Application Form.
8.4. Any credit granted may be revised by the Supplier at any time and at its discretion.
8.5. The Supplier reserves the right to withdraw any credit facility upon any breach by the Customer of these Terms of Conditions or upon the Customer ceasing to trade and/or being subject to any legal proceedings and/or the Customer committing an act of insolvency.
8.6. The Customer agrees that upon such withdrawal, any and all monies owing on the account shall become immediately due and payable.
9. DISHONOUR OF CHEQUE
9.1. If any cheque issued by the Customer or by any third party in payment of the Price is dishonoured:
9.1.1. The Supplier may refuse to supply any further Goods until satisfactory payment is received in full, including bank fees and charges;
9.1.2. The Supplier is entitled to treat the dishonour of the Customer’s cheque as a repudiation of this Agreement and to elect between terminating this Agreement or affirming this Agreement, and in each case claiming and recovering compensation for loss or damage suffered from the Customer.
9.1.3. The Customer may be liable for a dishonoured cheque fee of $40.00.
10.1. Invoices issued by the Supplier shall be due and payable within seven (7) days from the date of the invoices (“Default Date”). Without prejudice to any other rights of the Supplier, the Customer may be charged interest at the rate of fifteen per centum (15%) per annum on any payment in arrears.
10.2. If the Supplier does not receive the Outstanding Balance for the Price on or before the Default Date, the Supplier may, without prejudice to any other remedy it may have, forward the Customer’s outstanding account to a debt collection agency for further action. The Customer acknowledges and agrees that:
10.2.1. After the Default Date, the Outstanding Balance shall include, but not limited to, all applicable fees and charges under this Agreement;
10.2.2. In the event of the Customer being in default of his obligation to pay, and the overdue account is then referred to a debt collection agency and/or law firm for collection, the Customer shall be liable for the recovery costs incurred, and if the agency charges commission on a contingency basis the Customer shall be liable to pay as a liquidated debt, the commission payable by the Supplier to the agency, fixed at the rate charged by the agency from time to time as if the agency has achieved one hundred per cent recovery and the following formula shall apply:
Commission = Original Debt X 100 100 – Commission % charged by the agency (including GST)
10.2.3. In the event where the agency is Prushka Fast Debt Recovery the applicable commission rate for the amount unpaid is as detailed on www.prushka.com.au
10.2.4. In the event where the Supplier or the Supplier’s agency refers the overdue account to a lawyer the Customer shall also pay as a liquidated debt the charges reasonably made or claimed by the lawyer on the indemnity basis.
11. RISK AND LIABILITY
11.1. The Customer will ensure when placing Orders that there is sufficient information to enable the Supplier to execute the Order.
11.2. The Supplier takes no responsibility if the specifications provided by the Customer are wrong or inaccurate and the Customer will be liable in that event for the expenses incurred by the Supplier for any work required to rectify the Order.
11.3. The Customer is responsible for ensuring that the Supplier is made aware of any special requirements pertaining to the Order and the Supplier relies upon the integrity of the information supplied to it.
11.4. The Supplier takes no responsibility and will not be liable for any indirect, special or consequential losses, damages or costs associated with the Goods being faulty as a consequence of insufficient information provided by the Customer.
11.5. The Supplier takes no responsibility for representations made in relation to the Goods or any delay in the delivery of the Goods made by a third party or third party manufacturer, which was organised by the Customer.
11.6. The Customer acknowledges that the Supplier shall not be liable for and the Customer releases the Supplier from any loss incurred as a result of delay, or failure to provide the Goods or to observe any of these conditions due to an event of force majeure, being any cause or circumstance beyond the Supplier’s reasonable control.
11.7. The Supplier does not represent that it will provide and/or deliver any Goods and/or Services unless it is included in the Quote.
11.8. Subject to Clause 12.1 and 12.2, the Customer accepts risk in relation to the Goods when Goods pass to their care and/or control.
11.9. The Supplier will not be liable for any indirect, special or consequential loss or damage that arises as a result of the Supplier losing any material, either electronic or paper based, provided by the Customer to the Supplier.
12.1. The Supplier warrants that the Customer’s rights and remedies in this Agreement arising from a warranty against defects are in addition to other rights and remedies under any applicable law in relation to the goods and services to which the warranty relates.
12.2. The Supplier does not purport to restrict, modify or exclude any liability that cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any related or complementary legislation or regulations as in force and amended from time to time.
Warranty for Services
12.3. The Supplier warrants that if any defect in any Service provided by the Supplier becomes apparent and is reported to the Supplier within ninety (90) days of the provision of the Services (time being of the essence) then the Supplier will (at the Supplier’s sole discretion) remedy the defective Service.
12.4. To the extent permitted by law as read in conjunction with Clause 12.2, the Supplier’s liability in respect of defective services will be limited to:
12.4.1.the re-supply of the Service; or
12.4.2.the payment of the cost of having the Services supplied again; or 12.4.3.the refund of the Price paid by the Customer in respect of the Service.
12.5. InrespectofallclaimstheSuppliershallnotbeliabletocompensatetheCustomerforanyreasonabledelayin remedying the defective Services or in assessing the Customer’s claim. The Customer warrants that it will use its best endeavors to assist the Supplier with identifying the nature of the defective Service claim.
Warranty for Goods
12.6. The Customer warrants that it will report any defect in any Goods supplied within fourteen (14) from the date that the defect became apparent (time being of the essence).
12.7. The Supplier warrants:
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods are not of acceptable quality and the failure does not amount to a major failure.
12.8. The Customer acknowledges that additional costs incurred, such as labour and/or freight, will be borne by the Customer.
12.9. If the Goods and Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Supplier’s liability for a consumer guarantee under the Australian Consumer Law in relation to those Goods and Services is limited to, at the discretion of the Supplier:
12.9.1.The resupply of the Goods and Services;
12.9.2.The payment of the cost of providing the Goods and Services again.
Claims made under Warranty
12.10. Subject to clause 12.2 of this Agreement claims for warranty should be made in one of the following ways:
12.10.1. The Customer must send the claim in writing together with proof of purchase to the Supplier’s business address stated in clause 2.1 of this Agreement;
12.10.2. The Customer must email the claim together with the proof of purchase to the Supplier on [email protected].
12.10.3. The Customer must contact the Supplier on the Supplier’s business number 1300 332 152.
12.11. Goods where a claim is made are to be returned to the Supplier or are to be left in the state and conditions in which they were delivered until such time as the Supplier or its Agent has inspected the Goods. Such inspection is to be carried out within a reasonable time after notification.
13. TERMINATION AND CANCELLATION
Cancellation by Supplier
13.1. The Supplier may cancel any Order to which these Terms and Conditions apply or cancel delivery of Goods at any time before payment is made by the Customer by giving written notice to the Customer. The Supplier shall not be liable for any loss or damage or consequential loss or damage whatever arising from such cancellation.
13.2. Without prejudice to the Supplier’s other remedies at law, the Supplier shall be entitled to cancel all or any part of any Order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that:
13.2.1. Any money payable to the Supplier becomes overdue; or
13.2.2. The Customer 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
13.2.3. A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
Cancellation by Customer
13.3. Any Order cannot be cancelled by the Customer unless expressly agreed to by the Supplier in writing.
13.4. If the Customer cancels the Services within 24 hours of the provision of the Services, the Customer will be liable for fifty per centum (50%) of the quoted amount for the Services to a value of $550.00 including GST.
13.5. Deposits paid by the Customer are not refundable should the Goods and/or Services be cancelled by the Customer.
13.6. In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by the Supplier (including, but not limited to, any loss of profits) up to the time of cancellation.
13.7. If the Customer places an Order with the Supplier and the Supplier places an Order with a third party Supplier to meet the Customer’s request, the Customer shall be liable for the Price of the Goods ordered if the Customer cancels the Order and the Goods have already been dispatched.
13.8. The Supplier acknowledges that in the event the Supplier contravenes any of the terms of this Agreement, then clauses 13.3, 13.4, 13.5, 13.6 and 13.7 will not apply.
Cancellation due to weather
13.9. If the weather is unsuitable for the provision of the Services, the Supplier is entitled to cancel all or any part of any Order. The Supplier shall not be liable for any loss or damage or consequential loss or damage whatever arising from such cancellation.
13.10. If the Supplier cancels the Services due to weather conditions, no cancellation fee will apply.
13.11. If the Customer chooses to proceed against recommendations by the Supplier in relation to the weather, and the job cannot be completed on the day due to the weather, a cancellation fee will apply.
13.12. If unforeseen weather causes a cancellation of the services, no cancellation fee will be charged.
14.1. The Customer shall have no right of set-off in any suit, claim or proceeding brought by the Supplier against the
Customer for default in payment.
14.2. The Customer acknowledges that the Supplier can produce this clause in bar of any proceeding for set-off.
15.1. The Supplier is not liable to provide any insurance cover in relation to the provision of the Goods and Services. The Customer is responsible to effect whatever insurance cover he requires at his own expense.
16. INTELLECTUAL PROPERTY
16.1. The Customer gives the Supplier authority to use and reproduce any material provided by the Customer to the Supplier for the purpose of providing the Services.
16.2. The Customer warrants the material it provides the Supplier will not infringe on any third party’s intellectual property rights. The Customer shall be liable to the Supplier for any loss or damage or consequential loss or damage whatever arising from a failure to comply with this clause.
16.3. The Customer warrants that it shall not, whether directly or indirectly, infringe or allow any party to infringe on any intellectual property rights in relation to the Goods and/or Services provided.
16.4. All photographs, videos and related documents remain the property of the Supplier and are to be returned to the Supplier on demand, The Customer warrants that it shall not publish, disclose or communicate any details contained within the drawings and related documents to a third party without first obtaining the Supplier’s consent in writing.
16.5. The Customer hereby indemnifies and agrees to keep indemnified the Supplier against all direct, indirect, special or consequential losses, liability, and or expenses incurred by the Supplier in relation to and/or in any way related with any breach of intellectual property rights by the Customer in relation to the Goods and/or Services supplied.
16.6. The Customer authorises the Supplier to use the Customer’s trademark, business name and/or other mark or logo and any footage produced by the Supplier for the Customer for marketing and promotional activities, whether the Customer is a current client of the Supplier or not.
16.7. The Supplier reserves the right not the use any Customer material which the Supplier deems to be inappropriate or offensive or otherwise in breach of any law or regulation.
16.8. Upon full payment of the Price by the Customer, the Supplier will grant a royalty free, non-exclusive and non- transferable licence to the Customer to use the Supplier’s intellectual property for the Customer’s internal purposes or purposes communicated in writing to the Supplier at the time of booking the Services.
17. CONFIDENTIAL INFORMATION
17.1. In the event the Order is cancelled by either party, each party must return to the other party all confidential information and documentation owned by that other party.
17.2. Confidential information transferred between the parties for the provision of the Services shall only be used for its intended purpose.
17.3. The parties may disclose Confidential information if required by law, they have been given written consent or during legal proceedings relating to the provision of the Goods and/or Services.
17.4. Clauses 17.1, 17.2 and 17.3 survive the termination of this agreement.
18.1. The Customer shall, where relevant, ensure the Supplier has full and safe access to the Premises and any necessary essential services, resources, equipment, materials and information.
18.2. The Customer will be charged an additional fee if the Supplier’s work is interfered with or no proper or safe access is provided to the Supplier.
18.3. The Supplier will not be held responsible for any delay due to inclement weather, failure of the Customer to provide required Items or changes requested to be made by the Customer and/or in any circumstances beyond the Supplier’s reasonable control.
19.1. This Agreement is deemed to be made in the State of New South Wales and all disputes hereunder shall be determined by the appropriate courts of New South Wales.
20. PRIVACY ACT 1988
20.1.1. For the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Supplier.
20.1.2. That the Supplier may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency.
20.1.3. The Customer consent to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (Privacy Act 1988).
21. ENTIRE AGREEMENT
21.1. These Terms and Conditions as defined in Clause 3.1 constitute the whole Agreement made between the Customer and the Supplier.
21.2. This Agreement can only be amended in writing signed by each of the parties.
21.3. All prior discussions and negotiations are merged within this document and the Supplier expressly waives all prior representations made by him or on his behalf that are in conflict with any clauses in this document in any way.
21.4. Nothing in these Terms and Conditions is intended to have the effect of contravening any applicable provisions of the Competition and Consumer Act 2010 or the Fair Trading Acts in each of the States and Territories of Australia.