(a) WeEditFast will provide the Services to the Customer in accordance with the terms of the Order.
(b) Subject to sub-clause (c) below, WeEditFast will use reasonable efforts to provide the Services to the Customer in accordance with the delivery dates agreed by the parties. The Customer accepts there may be some factors outside of WeEditFast’s control which may affect delivery dates.
(c) WeEditFast will have no liability whatsoever to the Customer if WeEditFast fails to provide any element of the Services by the relevant due date.
(d) The Customer acknowledges that:
(i) WeEditFast will deliver the Materials to the Customer; and
(ii) other than as referred to in sub-paragraph (i) above, WeEditFast will not publish or distribute the Materials.2. Fees and payment
(a) The Customer must pay to WeEditFast the Fee in accordance with the Payment Schedule.
(b) Any payments made in accordance with this Agreement are exclusive of Goods and Services Tax (GST) and any and all applicable taxes, charges and levies.
(c) WeEditFast may require the Customer to make a payment earlier than the date it is due if WeEditFast acting reasonably is concerned about the Customer’s credit worthiness.
(d) The Customer must make all payments under this Agreement in full without deduction, counter-claim or set-off.3. Intellectual Property
(a) Subject to WeEditFast receiving payment of the Fee in full as contemplated by clause 2 above, WeEditFast will assign all Intellectual Property Rights held by WeEditFast in and to the Materials to the Customer.
(b) The Customer grants WeEditFast the right to use the Customer Materials for the purposes of providing the Services and creating the Materials as contemplated by the Order.
(c) The Customer represents and warrants to WeEditFast that:
(i) it has the right to grant the rights granted under sub-paragraph (b) above;
(ii) it has obtained appropriate consents and releases from each person (or their parent or guardian if they are under the age of 18 years old) featured in the Customer Materials;
(iii) it has obtained appropriate licences and clearances in relation to any third party content (including, without limitation, music, artworks or footage) included in the Customer Materials; and
(iv) the Customer Materials and WeEditFast’s use of the Customer Materials for the purposes of providing the Services and creating the Materials will not:(A) infringe any third party’s Intellectual Property Rights or other rights;(B) be in contempt of court;(C) defame any person;(D) be discriminatory, obscene, offensive or otherwise objectionable.
(d) The Customer indemnifies WeEditFast against all losses, liabilities, damages and claims, and all related costs and expenses (including any and all reasonable legal fees on a solicitor client basis and reasonable costs of investigation, litigation, settlement, judgment, appeal, interest and penalties) arising from a breach of the warranties given by the Customer under sub-clause (c) above.4. Liability
(a) To the maximum extent permitted by law:
(i) WeEditFast makes no representations or warranties to the Customer;
(ii) WeEditFast hereby excludes all representations, warranties, terms and conditions whether express or implied (and including without limitation, those implied by statute, custom, law or otherwise);
(ii) WeEditFast’s cumulative liability to the Customer for all claims made by the Customer under or in relation to this Agreement will not exceed in aggregate the amount actually paid by the Customer to WeEditFast in relation to the Order;
(iii) WeEditFast will not be liable to the Customer in relation to any claim for any loss of profit, data, goodwill or business, for interruption to business, for any failure to realise anticipated savings or for any consequential, indirect, special punitive or incidental damages.
(b) Certain legislation may imply warranties or conditions, impose obligations or give statutory guarantees (together, “Statutory Provisions”) which cannot be excluded, restricted or modified except to a limited extent. This Agreement must be read subject to the Statutory Provisions. If the Statutory Provisions apply, notwithstanding any other provision of this Agreement, to the extent to which WeEditFast is entitled to do so, WeEditFast limits its liability in respect of any claim to:
(i) in the case of goods, at WeEditFast’s option:(A) the replacement of the goods or the supply of equivalent goods;(B) the repair of the goods;(C) the payment of the cost of replacing the goods or acquiring equivalent goods; or(D) the payment of having the goods repaired; and
(ii) in the case of services, at WeEditFast’s option:5. Suspension of Services and Termination(A) the supply of the Services again; or(B) the payment of the cost of having the Services supplied again.
(a) Without limiting any of WeEditFast’s other rights, WeEditFast may suspend the provision of some or all of the Services if the Customer does not make payment as contemplated by clause 2 above.
(b) WeEditFast will have no liability to the Customer whatsoever in the event of a suspension of the Services as contemplated by sub-clause (a) above.
(c) WeEditFast may terminate this Agreement with immediate effect by notice in writing to Customer upon the occurrence of any of the following:
(i) WeEditFast becomes aware of a breach of any of the warranties given by the Customer under this Agreement;
(ii) the Customer commits a breach of this Agreement that is remediable and fails to remedy the breach within 7 days of written notice from WeEditFast requiring the Customer to do so;
(iii) the Customer commits a breach of this Agreement that is incapable of remedy;
(iv) the Customer undergoes an Insolvency Event.
(d) If this Agreement is terminated for any reason:
(i) all payments to be made by the Customer to WeEditFast become due and payable to WeEditFast on the date of termination;
(ii) clauses 2, 3, 4, 6, 7 and this clause 5 survive termination or expiry of this Agreement.6. Confidentiality
The terms of this Agreement are confidential and must not be disclosed by the Customer to any third party other than the Customer’s professional advisers, or as required by law, without the prior written consent of WeEditFast.7. General
(a) The Customer acknowledges that WeEditFast may subcontract the provision of the Services.
(b) Subject to this subclause, a party may only assign this Agreement or a right under this Agreement with the prior written consent of the other party. Notwithstanding any other provision of this Agreement, WeEditFast may assign the benefit of this Agreement to any of its related bodies corporate (as that term is defined in section 50 of the Corporations Act 2001 (Cth)) without the Customer’s prior consent.
(c) This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
(d) If the whole or any part of a provision of this Agreement is invalid or unenforceable in a jurisdiction it must, if possible, be read down for the purposes of that jurisdiction so as to be valid and enforceable. If however, the whole or any part of a provision of this Agreement is not capable of being read down, it is severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
(e) A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise by a party of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
(f) Except where this Agreement expressly states otherwise, this Agreement does not create a relationship of employment, trust, agency or partnership between the parties.
(g) This Agreement will be governed by and construed in accordance with the law for the time being in force in New South Wales and the parties, by entering into this Agreement, are deemed to have submitted to the non-exclusive jurisdiction of the courts of that State.8. Definitions
In these Terms and Conditions:
Customer means the customer set out in the Order.
Customer Materials means any content or materials of any nature provided by the Customer to WeEditFast in relation to the provision of the Services and/or for incorporation in the Materials.
Fee means the fee set out in the Order.
Insolvency Event in relation to the Customer means:
(a) bankruptcy proceedings are commenced against the Customer, or the Customer is declared bankrupt;
(b) any step is taken to enter into any scheme of arrangement between the Customer and its creditors;
(c) any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of the Customer’s assets or business;
(d) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, an administrator or other like person to the Customer;
(e) the Customer suspends payment of its debts generally; or
(f) the Customer is or becomes unable to pay its debts when they are due or a party is or is presumed to be insolvent for the purposes of any provision of the Corporations Act 2001 (Cth).
Intellectual Property Rights means all industrial and intellectual property rights of whatever nature throughout the world conferred under statute, common law or equity, whether existing now or at any time in the future, and includes rights in respect of or in connection with copyright, inventions (including patents), formulae, databases, business processes and methods, trade marks, service marks, business names, trade names, domain names, designs, confidential information, trade secrets and know-how and similar industrial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for or renew the registration of such rights.
Materials means all products and proceeds of the Services.
WeEditFast means FinTV Pty Ltd ACN 156 097 531 trading as WeEditFast of 120 Cathedral Street, Woolloomooloo, NSW 2011, Australia.
Order means the order agreed by WeEditFast and the Customer setting out the provision of services by WeEditFast to the Customer.
Payment Schedule means the payment schedule set out in the Order.
Services means the services set out in the Order.