Terms and Conditions // Joshua Maguire Stills and Video Pty Ltd

1. Definitions and Interpretation

1.1 Definitions

In this Agreement, the following definitions apply:

Additional Works means any other services other than the Services provided by Joshua Maguire Stills and Video in the Quotation.

Agreement means the Quotation, these Terms and includes any schedules and annexures.

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2009 (Cth).

Background Intellectual Property means Intellectual Property developed, owned by or licensed to a party as at the Commencement Date, or acquired or developed by a party during the Term, other than for the sole purpose of this Agreement, which that party has the right to license to third parties and which are necessary or desirable for the performance of the Services.

Business Day means a day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland.

Buyout Usage means the transfer of ownership of the Deliverables and any associated Intellectual Property Rights from Joshua Maguire Stills and Video to the Customer.

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.

Commencement Date means the date on which the Customer accepts the Quotation and/or these Terms.

Confidential Information of a party means:

(a) this Agreement and the information within this Agreement;

(b) all information, know-how, ideas, concepts, technology, data, source or object code, designs, functions, features and performance notes, technical data and marketing information such as customer lists, financial information and business plans which is disclosed, communicated or delivered to, learnt by or which otherwise comes to the knowledge of or into the possession of the other party under or in connection with this Agreement,

but does not include information:

(a) which is or becomes generally available in the public domain (other than through any breach of confidence);

(b) received by the other party other than as a result of a breach of any duty of confidence owed to the first party; or

(c) which has been independently developed by the other party.

Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the Agreement:

(a) incidental, special, remote or unforeseeable loss or damage;

(b) loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, but excluding loss of any amounts that would, but for the act or omission of a party, have otherwise been payable under this Agreement;

(c) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or

(d) loss or damage of the nature set out above in clauses (a) to (c) (inclusive) that is incurred or suffered by or to a third party.

Customer, you or your means the individual or entity as set out in the Quotation who enters into this Agreement with Joshua Maguire Stills and Video.

Deliverables means any photos or videos to be provided by us to the Customer in accordance with the Services.

Deposit means the deposit payable to secure the Services and is the amount equivalent to 50% of the total amount payable under in the Quotation.

End User means a party for whom the Customer accesses the Services for and who receives the ultimate benefit of the Deliverables.

Fees means the fees for the Services as outlined in the Quotation.

Force Majeure means anything outside the reasonable control of a party regardless of whether it is reasonably contemplated by the parties at the Execution Date as a likely result of breach of the Agreement.

GST means the goods and services tax imposed by A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Infringement Claim is any actual, threatened or potential claim, demand, proceeding, suit, objection or other challenge;

(a) affecting either parties’ ownership of, or rights in, that parties’ Background Intellectual Property; or

(b) claiming that the supply or other use of the Material or Background Intellectual Property, infringes or may infringe the Intellectual Property rights of a third party.

Insolvency Event means a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or any event that has a substantially similar effect to the above events.

Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, circuit layouts, domain names, know-how and other rights of a similar nature worldwide, whether registered or not, and any applications for registration or rights to make such an application.

Joshua Maguire Stills and Video, we, us, our means Joshua Maguire Stills and Video Pty Ltd (ABN 33 657 722 382).

Overtime Fees means a rate of two and a half times the unit price as set out in the Quotation, calculated on an hourly basis.

Personal Information means data by which a person may be personally identified, including a person's name, postal address, email address, telephone number and any other information a party collects, including that which is defined as personal or personally identifiable information under applicable Privacy Laws.

Privacy Laws means all domestic and international laws, rules, regulations and regulatory guidance relating to privacy, data security, cybersecurity, anti-spam and the collection, storage, use and disclosure of Personal Information, as applicable to either party.

Quotation means the quotation provided by us to you, outlining the Services and deliverables and the amount payable for same.

Services means photography, videography and editing services, pre-production consultation, direction, equipment hire and any Deliverables to be supplied by Joshua Maguire Stills and Video to the Customer in accordance with the scope of works outlined in the Quotation.

Terms means these Terms and Conditions.

Usages means the purpose, medium, territory and duration for which the Customer may use the Deliverables as set out in the Quotation.

1.2 Interpretation

In this Agreement:

(a) no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for preparing this Agreement or including the provision in this Agreement;

(b) an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits them all jointly and severally;

(c) all monetary amounts are expressed in AUD; and

(d) the parties must perform their obligations on the dates and times fixed by reference to Brisbane, Queensland.

2. Legally binding agreement

(a) These Terms and Conditions apply to your acquisition of the Services from us.

(b) By accepting our Quotation, paying the Deposit or by providing us with further instructions in relation to

carrying out the Services, you are deemed to have read and accepted these Terms and enter into a binding agreement with Joshua Maguire Stills and Video. You should read these Terms carefully and in full to ensure you understand their effect.

3. Term

This Agreement commences on the Commencement Date and continues until such time as we provide the Deliverables to the Customer, unless otherwise terminated in accordance with these Terms.

4. Basis of Engagement

Joshua Maguire Stills and Video is a non-exclusive, independent contractor to the Customer. Nothing in these Terms is intended to create an employment or agency relationship between Joshua Maguire Stills and Video and the Customer.

5. Customer Obligations

The Customer will work with Joshua Maguire Stills and Video to facilitate the performance of the Services, including by:

(a) fully co-operating with Joshua Maguire Stills and Video to enable it to perform the Services;

(b) providing Joshua Maguire Stills and Video with all accurate information and instructions necessary to provide the Services, in a prompt and timely manner;

(c) not unreasonably impeding Joshua Maguire Stills and Video's provision of the Services;

(d) ensuring it pays all invoices on time;

(e) not unreasonably withholding any payments; and

(f) complying with all applicable laws.

6. Our Obligations

Joshua Maguire Stills and Video will:

(a) perform the Services with due care and skill in a timely and professional manner;

(b) perform the Services only to the extent detailed in the Quotation;

(c) endeavour to provide the Services in accordance with the Quotation(s) and these Terms; and

(d) comply with all applicable laws and maintain any licences, insurances or authorisations as required for the purposes of providing the Services.

7. Agency Customers

Where the Customer is an Agency or enters into this Agreement for the purpose of obtaining the Services on behalf of a third party (End User), the Customer:

(a) agrees to enter into a binding agreement with the End User on terms no less favourable than these Terms; and

(b) understands and agrees that any breach of the Customer's agreement with an End User will have no bearing on this Agreement or the Customer’s obligations under these Terms, including its obligation to make payments.

8. Quotations

A Quotation supplied by Joshua Maguire Stills and Video will remain valid for a period of 30 days from the date of issue. After 30 days Joshua Maguire Stills and Video reserves the right, at its sole discretion, to revise the quoted price and any conditions.

9. Deliverables

9.1 Provision of the Deliverables

Unless otherwise provided for in the Quotation, the Deliverables will be provided to the Customer via data transfer by email or Dropbox.

9.2 Delays

The Customer understands and agrees that where inclement weather results in Joshua Maguire Stills and Video’s inability to provide the Services, Joshua Maguire Stills and Video:

(a) will provide the Services when it becomes reasonable to do so and such determination will be at the sole discretion of Joshua Maguire Stills and Video; and

(b) is not responsible for any costs incurred by the Customer as a result of delays to the Customer’s receipt of the Deliverables.

9.3 Accidental loss or destruction

Where the Deliverables are subject to accidental loss or destruction:

(a) for any reason that is not attributable to the Customer’s fault or the fault of a third party (for example, due to a technical fault), prior to delivery to the Customer, Joshua Maguire Stills and Video agrees to resupply the Services and the Customer agrees to pay the balance of the Quotation in accordance with clause 11.3(a)(ii); or

(b) by the Customer after receipt of the Deliverables, Joshua Maguire Stills and Video, reserves the right to charge the Customer a reasonable re-delivery fee as agreed between the parties.

10. Day Rate and Additional Works

10.1 Day rate

(a) The Customer understands and agrees that a:

(i) full day is 10 hours, inclusive of a 30 minute break, (Full Day); and

(ii) half day is 5 hours (Half Day),

commencing at call and completing upon wrap (collectively, Day Rate).

(b) Where the Customer books Joshua Maguire Stills and Video for either a Full Day or Half Day, Joshua Maguire Stills and Video reserves its right to charge Overtime Fees in accordance with the Quotation, for any additional time in excess of the applicable Day Rate.

10.2 Additional Works

(a) The Customer may make a request to Joshua Maguire Stills and Video for the Additional Works.

(b) Joshua Maguire Stills and Video may, at its discretion, accept or refuse to provide the Additional Works and may request an additional fee for providing the Additional Works.

(c) Any Additional Works, including additional fees, must be recorded, and acknowledged by both parties in writing.

11. Fees and invoicing

11.1 Deposit

(a) The Customer must pay the Deposit within 14 days of receipt of an invoice and in any event, prior to the Commencement Date, unless otherwise agreed in writing between the parties.

(b) The Customer understands and agrees that the Deposit represents a reasonable estimate of Joshua Maguire Stills and Video’s time and costs incurred in association with the Customer’s acceptance of a Quotation and is therefore non-refundable where the Customer fails to provide at least 48 hours written notification of cancellation.

11.2 Fees

In consideration of Joshua Maguire Stills and Video providing the Services, the Customer must pay the Fees in accordance with the Quotation and these Terms.

11.3 Payment terms

(a) Invoices

(i) Joshua Maguire Stills and Video may issue an invoice to the Customer for the Deposit and the Fees in accordance with the Quotation and these Terms.

(ii) Unless otherwise provided or agreed in writing between the parties, the Customer will pay an invoice within 14 days of the date of the invoice (Due Date).

(b) Method of payment

Payments to Joshua Maguire Stills and Video will be accepted via electronic funds transfer only, into the nominated bank account as set out on the invoice.

11.4 Dispute of invoices

(a) If the Customer disputes any invoice issued under clause 11.3(a), the Customer will:

(i) notify Joshua Maguire Stills and Video of the amount in dispute and the reason for dispute by the Due Date; and

(ii) pay any amounts not in dispute.

(b) The parties must resolve any dispute under this clause 11.4 in accordance with clause 18.

(c) If it is resolved that some or all of the amount in dispute should have been paid by the Due Date, the Customer must pay the amount finally resolved together with interest on that amount calculated in accordance with clause 11.5(a).

11.5 Failure to pay

If the Customer does not make payment by the Due Date, Joshua Maguire Stills and Video is entitled to do any or all of the following:

(a) charge interest on the outstanding amount at a rate equivalent to the reference rate charged by Joshua Maguire Stills and Video's principal bank, accruing daily;

(b) retain possession of any Deliverables that are the subject of the Services, until such time as payment is received;

(c) require the Customer to pay in advance for any Services which have not yet been performed;

(d) not perform any further Services;

(e) terminate this Agreement; and/or

(f) recover any losses suffered by Joshua Maguire Stills and Video as a result of the Customer’s failure to pay, including reasonable legal costs incurred.

11.6 GST

(a) The Customer acknowledges that the Fees are exclusive of any GST.

(b) If GST is payable in respect of a supply made under or in relation to this Agreement, the recipient must pay to the supplier an amount equal to the GST payable on the supply (GST Amount). The GST Amount is payable by the recipient in addition to and at the same time as any consideration for the supply, provided the supplier has given the recipient an Invoice.

12. Confidentiality

(a) Each party acknowledges that:

(i) it will obtain Confidential Information in the course of performing its obligations under this Agreement;

(ii) all Confidential Information is secret, confidential and valuable to the party making the disclosure and constitutes proprietary information of that party; and

(iii) disclosure or misuse of the Confidential Information may diminish the value of the Confidential Information and could materially harm the party making the disclosure.

(b) The obligations of confidentiality in clause 12 will not apply to information which:

(i) is generally available in the public domain except where such availability is as a result of a breach of this Agreement;

(ii) was known prior to the disclosure of the information by the other party;

(iii) is reasonably made to a professional legal advisor; or

(iv) is required to be disclosed by an applicable law or court order.

(c) Subject to clause 12(d) below, at the request of the party to whom the Confidential Information belongs, each party must deliver, erase or destroy all electronic and physical documents in its possession or control that contain Confidential Information.

(d) If a party must retain the other party's Confidential Information for the purpose of complying with any law, litigation, internal quality assurance and record-keeping or performing its obligations or exercising its rights under this Agreement, it may retain and use it solely for this purpose but must deal with the Confidential Information in accordance with clause 12(a) promptly after it is no longer required for this purpose.

(e) The obligations imposed under this clause will survive the termination of this Agreement.

13. Intellectual Property

13.1 Intellectual Property Rights

(a) Joshua Maguire Stills and Video own or are the licensee of all rights, title and interest (including Intellectual Property Rights) in the Services and the Deliverables. Your use of and access to the Services does not grant or transfer any rights, title or interest to you in relation to the Deliverables.

(b) Unless the Customer or an End User has requested Buyout Usage, Joshua Maguire Stills and Video may reuse, sell, license or otherwise deal with the Deliverables in its sole discretion.

(c) You must not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, commercially exploit, reverse engineer, create derivative works from, transfer, or sell any Deliverables unless expressly stated otherwise in these Terms or a Quotation.

13.2 Licencing

Where:

(a) the Customer is the recipient of the Deliverables, Joshua Maguire Stills and Video grants the Customer; or

(b) the Customer is obtaining the Deliverables on behalf of an End User, Joshua Maguire Stills and Video grants the End User,

a non-transferrable, non-sublicensable, limited licence to use the Deliverables, unless otherwise agreed in writing between the parties, solely in accordance with the Usages as set out in the Quotation.

13.3 Buyout Usage

(a) Notwithstanding clause 13.1(a), upon the Customer’s request, Joshua Maguire Stills and Video may at its sole discretion, provide the Customer with Buyout Usage of the Deliverables:

(i) in accordance with the Quotation; or

(ii) where the Customer later requests Buyout Usage, at a cost to be agreed upon by the parties.

(b) Where the Customer requests Buyout Usage and Joshua Maguire Stills and Video agrees to same, Joshua Maguire Stills and Video agrees to do all things reasonably necessary in order to affect the transfer of ownership of the Deliverables to the Customer.

14. Acknowledgement and attribution

(a) Subject to clause 12, the Customer authorises Joshua Maguire Stills and Video to use its name and logo, together with the Deliverables as part of Joshua Maguire Stills and Video’s marketing materials.

(b) The Customer acknowledges and agrees that any public representations of the Works will include an attribution to Joshua Maguire Stills and Video in accordance with its moral rights as provided for under section 193 of the Copyright Act 1996 (Cth).

15. Privacy

(a) Each party must:

(i) comply with all Privacy Laws in relation to Personal Information even if a party is not an entity regulated under those Privacy Laws;

(ii) only collect, store, use, disclose or otherwise deal with Personal Information in accordance with all Privacy Laws;

(iii) only use or disclose Personal Information to the extent necessary to provide, use or receive the Services;

(iv) ensure any person to whom it discloses Personal Information is aware of and complies with the party’s obligations under this clause 15; and

(v) not do any act, engage in any practice, or omit to do any act or engage in any practice that:

(A) would result in a breach of a Privacy Law if the Privacy Law applies to those things done, engaged in or omitted to be done by the party; or

(B) would cause the other party to breach or be taken to breach a Privacy Law.

(b) Joshua Maguire Stills and Video may disclose Personal Information to its personnel and contractors, to the extent they have a need to know for the purposes of providing the Services.

16. Warranties

Each party represents and warrants to the other party that as at the Commencement Date and during the Term:

(a) it has full power and authority to enter into, perform and observe its obligations under these Terms, and that its execution, delivery and performance of these Terms has been duly and validly authorised by all necessary corporate action; and

(b) its obligations under these Terms are valid, binding and enforceable.

17. Indemnity and Infringement Claim

17.1 Mutual indemnities

(a) Subject to the limitation of liability under clause 20.1, each party (Indemnifying Party) indemnifies the other party (Indemnified Party) and their representatives (together, Indemnified Persons) against all reasonable Claims, loss or damage (including, but not limited to, reasonable legal costs and defence or settlement costs) incurred as a result of:

(i) any fraudulent or unlawful act or omission of the Indemnifying Party or its representatives;

(ii) any damage to or loss or destruction of real or personal property caused or contributed to by any act or omission of the Indemnifying Party or its representatives;

(iii) any third-party Claim; and

(iv) any Infringement Claim,

except to the extent the liability, loss or damage is caused or contributed to by the act or omission of the Indemnified Persons or its representatives.

(b) It is not necessary for a party to incur expense or make a payment before enforcing a right of indemnity conferred by this clause 17.1.

17.2 Conduct of Infringement Claims

If an Infringement Claim is made:

(a) the Indemnified Party must promptly notify the Indemnifying Party of the Infringement Claim and provide assistance at the Indemnifying Party's expenses for the purposes of managing the Infringement Claim, as reasonably requested by the Indemnifying Party; and

(b) the Indemnifying Party is responsible for and will have the right solely to control the defence and settlement of the Infringement Claim.

18. Dispute Resolution

(a) A party must not commence legal proceedings relating to this Agreement unless the party wishing to commence proceedings has complied with this clause 18. However, this clause will not apply where a party seeks urgent interlocutory relief from a court.

(b) If a dispute arises between the parties out of or relating to this Agreement, then:

(i) the party alleging the dispute must notify the existence and nature of the dispute to the other party within 10 days of the dispute arising (Dispute Notice);

(ii) upon receipt of a Dispute Notice, the parties must, within 5 days, engage in good faith negotiations and use best endeavours to resolve the dispute;

(iii) if the dispute is not resolved as provided in paragraph (ii) within 5 days of receipt of the Dispute Notice, then either party may refer the dispute to mediation as provided in paragraph (iv) and must do so before initiating proceedings in a court to resolve the dispute;

(iv) any dispute which is referred to mediation must be referred to the Resolution Institute and must be conducted in accordance with the Mediation Rules of the Resolution Institution or the parties may appoint a mediator by mutual agreement; and

(v) if the dispute is not resolved within 30 days of referral to mediation, any party is free to initiate proceedings in a court in respect of the dispute.

19. Termination

19.1 Termination for cause

Either party may terminate these Terms or a Quotation by notice with immediate effect if the other party:

(a) commits a material breach of the Agreement that is not capable of remedy;

(b) commits a material breach of the Agreement capable of remedy, and does not remedy that breach within 10 business days after receipt of notice of the breach; or

(c) is bankrupt, or is liquidated or wound up, or if a controller, administrator, receiver, manager or similar insolvency administrator is appointed to a party, or over any substantial part of its assets.

19.2 Termination by Joshua Maguire Stills and Video for the Customer’s default

Joshua Maguire Stills and Video may immediately terminate these Terms or a Quotation by notice to the Customer, if:

(a) the Customer fails to pay one or more undisputed amounts due and payable by the Due Date;

(b) Joshua Maguire Stills and Video issues a notice to the Customer that it intends to terminate these Terms or a Quotation pursuant to this clause 19.2 if payment of the outstanding amount, plus interest, is not received within 10 business days of the Customer receiving the notice; and

(c) the Customer fails to make payment of the outstanding amount plus interest within 10 business days of receiving a notice in accordance with clause 19.2(b).

19.3 Consequences of termination

(a) If these Terms or a Quotation is terminated then, without limiting any other rights:

(i) all money owing by the Customer to Joshua Maguire Stills and Video under these Terms and any Quotation for Services performed or costs incurred as at the effective date of termination, will become immediately due and payable to Joshua Maguire Stills and Video;

(ii) the Customer will not be required to make any payment in respect of Services not yet supplied as at the effective date of termination; and

(iii) the Customer may recover from Joshua Maguire Stills and Video all money paid for any Services not yet supplied, less any costs incurred by Joshua Maguire Stills and Video, as at the date of termination.

(b) For the avoidance of doubt, termination of a Quotation by either party does not constitute termination of these Terms, unless specified in the relevant notice of termination.

19.4 Preservation of rights

Expiry or termination of these Terms for any reason does not affect any rights of either party against the other which arose prior to the time at which such termination or expiry occurred, or which otherwise relate to or which may arise at any future time for any breach or non-observance of obligations under these Terms occurring prior to the termination or expiry.

20. Exclusions and limitation of liability

20.1 Limitation of liability

To the fullest extent permitted by law, the total liability of a party to the other party under or in connection with these Terms in respect of all Claims will not exceed the total value of the Services to be performed under these Terms.

20.2 Implied terms

(a) Subject to clause 20.2(b), any condition or warranty which would otherwise be implied in these Terms is excluded.

(b) Pursuant to s64A of the Australian Consumer Law, this clause applies regarding any services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption. Liability for breach of a guarantee conferred by the Australian Consumer Law is limited at Joshua Maguire Stills and Video’s option to:

(i) the re-supply of the Services; or

(ii) the payment of the direct cost of having the Services resupplied.

20.3 Exclusion of consequential loss

Neither party is liable to the other for any kind of Consequential Loss arising out of or in connection with these Terms.

20.4 Australian Consumer Law

Nothing in these Terms is intended to limit or exclude the Customer's consumer guarantees under the Australian Consumer Law.

21. General

21.1 Notice

(a) A notice, consent, approval, waiver or other communication provided in connection with this Agreement must be in writing.

(b) A notice may be given by hand delivery, post or by email and is effective upon receipt.

21.2 Variation

This Agreement may only be varied in writing signed by the parties.

21.3 No Waiver

No waiver of rights under this Agreement shall constitute a subsequent waiver of this or any other right under this agreement. Any failure on our part to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.

21.4 Severability

If any provision of our Terms is unenforceable or invalid, it will be ineffective to the extent it is unenforceable or invalid and will not affect the enforceability or validity of the remaining provisions.

21.5 Survival

Termination or expiration in whole or in part of the Agreement does not affect those provisions and those obligations of a party which by their very nature survive termination, including clause 12 (Confidentiality), 13 (Intellectual Property), 16 (Warranties), 17 (Indemnity and Infringement Claim), 20 (Exclusions and limitation of liability) and 21.8 (Governing law and jurisdiction).

21.6 Counterparts

(a) This Agreement may be executed by email and in any number of counterparts and all counterparts constitute an original document and when taken together will constitute one document.

(b) Where execution by a party requires more than one signature, the signatures may be on individual and separate counterparts.

21.7 Electronic Signature

The parties expressly consent and agree that this Agreement may be signed electronically, including through exchange of scanned PDF signatures.

21.8 Governing law and jurisdiction

This Agreement is governed by the laws in force in Brisbane, Queensland and the parties submit to the exclusive jurisdiction of the courts of Brisbane, Queensland.

21.9 Entire Agreement

The Agreement is the entire agreement between the parties in respect of all matters dealt with by this Agreement, and supersedes all prior discussions, representations, negotiations, understandings and agreements (both written and verbal) in relation to the subject matter of this Agreement.