TERMS OF BUSINESS

 

Definitions

1. In these conditions, the following terms shall have the following meanings:

'Heckler' means Heckler Group Pty Ltd and its associated companies upon whose document

these conditions are endorsed.

'the Client' means the person, firm, company or other body to whom such document is

addressed.

'these conditions' means these conditions of business; and

'the contract' means the contract to which these conditions apply, such as approval of

Heckler estimations, quotations and invoices and which incorporates these conditions.

 

Formation of Contract

2.1 All goods, services or facilities are offered and all contracts are entered into subject to the

following conditions of business. Subject always to condition 15.4 all other terms, conditions or

warranties whatsoever are, to the maximum extent permitted by law, excluded from the contract or

any variation thereof unless expressly accepted by Heckler in writing. No servant or agent of Heckler

has the power to vary these conditions orally or to make any statement or representation about the

goods, services or facilities offered, their fitness for any purpose or any other matter whatsoever.

2.2 These conditions shall be incorporated into any contract between Heckler and the Client to the

exclusion of any terms or conditions stipulated or referred to by the Client. Any dealings with

Heckler following receipt by the Client of notice of these conditions shall automatically be deemed

acceptance thereof notwithstanding the absence of formal acknowledgment.

2.3 Unless otherwise expressly stated in writing, all quotations and estimates supplied by Heckler are

invitations to treat. The Client's order is an offer and shall become binding upon acceptance by The

Heckler.

 

Prices

3.1 All prices quoted are exclusive of GST. Heckler shall further be entitled to make an adjustment to

the quoted price in the event that:-

3.1.1 additional costs are incurred by Heckler due to materials supplied by the Client or any third

party being in the opinion of Heckler, in any way defective, in an unsuitable format (or a different

format to that which Heckler is expecting to receive the same) or of unsuitable quality for normal

processing; or

3.1.2 the information supplied by the Client or any third party in connection with its order does not

provide a full and accurate indication of the work involved; or

3.1.3 additional costs are incurred by Heckler, due to alterations by the Client or any third party in its

requirements.

3.1.4 additional costs are incurred by Heckler due to exceptional circumstances outside the control

of Heckler, including currency fluctuations and changes in third party costs.

 

Performance, Delivery or Collection

4.1 Unless otherwise agreed in writing, all times quoted for performance or delivery or availability

for collection are given in good faith but are not guaranteed. Notwithstanding that Heckler and the

Client may have agreed that time is of the essence, the time for performance or delivery or

availability for collection shall in every case be dependent upon prompt receipt of all necessary

information, final instructions or approvals from the Client. Alteration by the Client of its

requirements may result in delay in performance, delivery or availability for collection.

4.2 Any packaging supplied by Heckler, unless otherwise expressly agreed, is intended to provide

adequate protection throughout normal conditions of transport by the means specified in the

contract or as may be otherwise agreed. If the Client (or the intended recipient) fails to take delivery

on the agreed delivery date or to collect on the agreed collection date or, if no specific delivery or

collection date has been agreed, when the goods are ready for despatch, Heckler shall be entitled to

store the goods and to charge the Client the reasonable costs of so doing and to tender its account

for such charges under condition 5. Notwithstanding the terms of condition 7.1 below, Heckler shall

be under no liability in respect of any loss or damage following the despatch of any goods from

Heckler's premises.

4.3 If Heckler and the Client shall agree that any goods shall be delivered electronically or via any

form of telephony ("Direct Delivery") the following provisions shall as applicable apply:

4.3.1 the Client acknowledges that Direct Delivery is not or may not be a completely secure

medium of communication and that an unauthorised third party may intercept, tamper with

or delete goods delivered by Direct Delivery and that Direct Delivery may involve reliance

upon third party data carriers over which Heckler has no control; and

4.3.2 Heckler shall not be responsible for and shall have no liability to the Client or any third

party for:

4.3.2.1 any delay to any Direct Delivery or any non receipt of any goods delivered by Direct

Delivery;

4.3.2.2 any loss or damage that results from any person gaining unauthorised access to any

Direct Delivery of any goods;

4.3.2.3 use or disclosure of any data obtained by any third party as a result of the same

having gained unauthorised access to any Direct Delivery; and

4.3.2.4 any loss or damage resulting from any malfunction of or the introduction of any

viruses, worms, Trojan horses and/or bugs to any equipment and/or software used to effect

and/or receive any Direct Delivery.

 

Terms of Payment

5.1 Subject to condition 5.2 and unless otherwise agreed by Heckler in writing all invoices rendered

by Heckler are payable within 7 days of the invoice dates thereof.

5.2 Heckler expressly reserves the right at its sole option to require payment by installments during

the performance of the contract and/or payment of all amounts owing to Heckler immediately prior

to delivery or making goods available for collection.

5.3 The Client shall pay all amounts owing to Heckler in full and shall not exercise any rights of set off

or counterclaim against invoices submitted. Payment of all amounts shall only be made in the

currency in which they are invoiced and shall not be subject to any deductions/charges whatsoever.

5.4 In the event of default in payment by the Client under any contract between the Client and

Heckler, Heckler shall be entitled, without prejudice to any other right or remedy, to suspend any

further performance of or deliveries under any contract or contracts between Heckler and the Client

without notice and to charge interest on any amount outstanding at the rate of 4% above the base

Cash Rate of the Reserve Bank of Australia from time to time (accruing from day to day both before

and after judgment), from the due date of payment to the actual date of payment.

5.5 All prices quoted or agreed are exclusive of any applicable Goods and Services Tax, which the

Client shall be liable to pay in addition.

 

Cancellation

6.1 Any contract between Heckler and the Client may only be cancelled or varied with the written

consent of Heckler Directors and upon the terms of these conditions. The giving of Heckler's consent

shall not in any way prejudice Heckler's right to recover from the Client full compensation for any

loss or expense arising from such cancellation or variation.

6.2 If notwithstanding condition 6.1 and without prejudice to any other rights or remedies available

to Heckler, the Client shall give Heckler notice of cancellation of an order which notice is received by

Heckler :

6.2.1 less than 24 hours prior to, as applicable, the date for performance or the

commencement of performance or the date on which the applicable facilities were to be

utilised by or on behalf of the Client (the "Contract Date"), Heckler shall be entitled to

charge the Client the full contract price or, if none is stated, the applicable amount under

Heckler's rate card current at the Contract Date; and

6.2.2 less than five working days but more than 24 hours prior to the Contract Date, Heckler

shall be entitled to charge the Client one half of the contract price or, if none is stated, one

half of the applicable amount under Heckler's rate card current at the Contract Date in each

case reflecting the fact that Heckler is unlikely to be able to secure an order for the facilities

that had been allocated to the processing of the Client's order from a third party within the

time available.

 

Liability

7.1 The Client hereby agrees that without limiting any other provision of these conditions:

7.1.1 to the maximum extent permitted by law Heckler's entire liability for breach of any

provisions of the contract, or any terms, warranties or conditions implied in the contract by

operation of law, including Heckler's liability for negligence (except where such negligence

results in death or personal injury) are excluded;

7.1.2 under no circumstances shall Heckler be liable for any consequential loss whatsoever

(including damages for loss of business profits, business interruption or other indirect

pecuniary loss of any kind);

7.1.3 Heckler's entire liability for any direct loss suffered by the Client, as a result of

Heckler's breach of the contract and for which Heckler shall notwithstanding any other

provision of the contract be liable, shall (subject to the terms of conditions 4.2, 4.3 above

and 9.1 below) be limited to the amount actually paid by the Client in accordance with the

contract;

7.1.4 the price to be paid by the Client under the contract reflects the limitation on the

liability accepted by Heckler; and

7.1.5 this condition 7.1 is reasonable and necessary in the circumstances and that having

regard to that fact, this condition does not work harshly or unreasonably against the Client.

7.2 The Client shall indemnify Heckler from and against:-

7.2.1 all claims or proceedings taken against Heckler by any third party including any client

of the Client, Heckler's employees, the Client's employees or the employees of any

contractor employed by the Client or Heckler or the personal representatives or dependants

of any such employee or other third party in respect of personal injury or damage to

property caused by or arising out of any act or omission of Heckler in the course of carrying

out the specific instructions of the Client;

7.2.2 all claims or proceedings taken against Heckler arising out of the acts and/or omissions

of the Client, its agents or sub-contractors or any of their respective employees, whether

negligent or otherwise.

7.3 The Client expressly agrees that it will at all times maintain and keep effective insurance policies

with reputable insurers with sufficient cover which protect the Client against any loss or liability

which it may incur or suffer arising out of the contract or any act or default of Heckler in the

performance by Heckler of its obligations to the Client. Such insurance shall include insurance for

any damage or loss for which Heckler is not liable pursuant to the conditions hereof, insurance

which protects the Client against any accidental loss, damage or destruction to any master tapes,

film negative prints, sound tapes, video tapes or visual images or sound held in any media or any

other materials of any kind supplied to Heckler whilst in the possession or control of Heckler. Heckler

accepts no liability for any liability or loss which arises from any failure by the Client to maintain and

keep effective such insurances.

7.4 Any recommendations or suggestions relating to the use of any goods supplied by Heckler are

given in good faith but it is for the Client to satisfy itself of the suitability of the goods for its own

particular purpose. Accordingly unless otherwise expressly agreed in writing and notwithstanding

and without limiting condition 7.1, Heckler gives no warranty as to the fitness of the goods for any

particular purpose even though that purpose may be specified in the Client's order and any implied

warranty or condition (statutory or otherwise) to that effect is excluded.

7.5 In the case of goods or component parts of goods supplied by Heckler but not of Heckler's

manufacture, Heckler shall be entitled to assign to the Client its rights against its supplier and such

rights shall be taken in extinction of and in substitution for any rights which the Client would

otherwise have had against Heckler.

 

Intellectual Property and Data Protection

8.1 The Client shall indemnify Heckler from and against all actions, claims, costs, charges, expenses

and proceedings arising from or incurred by reason of any defamatory or libellous matter or any

infringement or alleged infringement of any patent, trademark, copyright, registered design or

design copyright or other exclusive right including any moral right claim or any other title of any

third party in respect of any work carried out for the Client by Heckler.

8.2 Each of Heckler and the Client acknowledge and agree that copyright in underlying materials

processed by Heckler in the performance of its services and/or embodied in materials produced by

Heckler may be owned by third parties and that the use by the Client of all materials processed

and/or produced by Heckler shall be subject always to the Client obtaining any and all necessary

licences and consents from the relevant underlying rights owner(s). The Client hereby grants to

Heckler a perpetual and royalty free licence to use all materials processed and/or produced by

Heckler on the Client's behalf to promote Heckler's business and in connection with appropriate

industry awards.

8.3 Without limitation to the rights of Heckler at law, the Client acknowledges and agrees that if, in

the course of fulfilling the Client's order and/or processing or producing materials on behalf of the

Client, Heckler discovers or devises any techniques or know how, all rights of every kind in and to

such techniques and know how, shall vest absolutely in Heckler.

8.4 The Client acknowledges that in the course of its dealings with Heckler , Heckler may acquire

personal data which relates to the Client and/or any of its officers, employees or contractors and the

Client hereby consents to Heckler, in accordance with its authorisation to, collect, store, process and

transfer to third parties such personal data. The Client further consents to the sale or transfer by

Heckler of such personal data in connection with an assignment or transfer of any of its assets and

its disclosure in compliance with any rule of law or order of competent authority.

8.5 The Client's consents pursuant to this condition 8 are given by it for itself and on behalf of (if any)

its officers, employees and contractors and the Client hereby warrants to Heckler that it has the

authority to give such consent on behalf of those persons.

 

Client's Materials

9.1 Where the Client supplies any materials to Heckler or where any materials or goods which are

the property of the Client are otherwise left in Heckler's possession:-

9.1.1 notwithstanding the terms of condition 7.1. above, Heckler shall be under no liability in

respect of any loss or damage or otherwise arising as a result of damage to or the loss or

destruction of such materials or goods;

9.1.2 without limiting the terms of condition 7.3 above, the Client shall insure all such

materials or goods to their full value against all risks; and

9.1.3 the Client shall remove all such materials or goods within six months of the date of

issue of Heckler's invoice relating to such materials or goods in respect of which the

materials have been utilised and in default, Heckler shall be entitled to return all such

materials or goods to the Client and to charge the Client for any costs and expenses incurred

by Heckler in so delivering such materials or goods. Until the removal or return of the

materials or goods, Heckler shall be entitled to store the materials and goods and to charge

the Client the reasonable costs of so doing and to tender its account for such charges under

condition 5. In the event that Heckler does not so return such materials or goods, Heckler

shall be under no liability whatsoever for any loss or damage to such materials or goods

whilst they are in the possession of Heckler and the Client is advised to maintain insurance

to the full value of such materials or goods against all risks.

9.2 Where materials are supplied or specific instructions are given by the Client, Heckler accepts no

liability for any reduction in the quality of Heckler 's services caused by defects in or the unsuitability

of such materials so supplied or by Heckler 's adherence to such specific instructions.

 

Risk and Title

10.1 Risk shall pass to the Client so that the Client is responsible for all loss, damage or deterioration

to the goods the subject of the contract:-

10.1.1 if Heckler delivers the goods by its own transport or, in accordance with a specific

contractual obligation, arranges transport for the goods at the time when the goods or a

relevant part thereof arrive at the place of delivery; or

10.1.2 in all other circumstances, at the time when the goods or a relevant part thereof

leave the premises of Heckler , or

10.1.3 if risk otherwise passes in accordance with the conditions hereof.

10.2 Title to the goods the subject of the contract or any relevant part thereof shall only pass to the

Client upon the Client paying to Heckler all sums due and payable by it to Heckler under the contract

and all other prior contracts between Heckler and the Client.

10.3 Heckler may recover goods in respect of which title has not passed to the Client at any time.

10.4 Until title to the goods has passed to the Client pursuant to the terms hereof:

10.4.1 it shall possess the goods as a bailee of Heckler on the terms of these conditions;

10.4.2 if Heckler so requires the Client shall store the goods separately from other goods and

shall ensure that they are clearly identifiable as belonging to Heckler ;

10.4.3 the Client shall be entitled to re-sell or use the goods in the ordinary course of its

business but shall account to Heckler in respect of the proceeds of sale or otherwise of such

goods;

10.4.4 the Client shall maintain records of the persons to whom it sells or disposes of the

goods and of the payments made by such persons for such goods and will allow Heckler to

inspect those records on request; and

10.4.5 Heckler shall be entitled to trace the proceeds of sale or otherwise of the goods.

10.5 The Client hereby irrevocably authorises Heckler, its officers, employees and agents to enter

upon any premises of the Client for the purpose of repossessing any goods in respect of which title

has not passed to the Client and/or to ensure that the provisions of this condition 10 are being

complied with.

 

Client input and access to/use of Heckler's premises and equipment

11.1 The Client shall be solely responsible for ensuring that all information, advice and

recommendations given to Heckler either directly or indirectly by the Client or by the Client's agents,

servants, consultants or advisers are accurate, correct and suitable. Examination or consideration by

Heckler of such information advice or recommendations shall in no way limit the Client's

responsibility hereunder unless Heckler specifically agrees in writing to accept responsibility.

11.2 The Client hereby undertakes to Heckler to ensure that all of its personnel (to include all

employees and agents of the Client) that shall at any time have access to any premises occupied by

Heckler or at which any of Heckler's equipment shall be kept all such persons shall at all times:

11.2.1 observe all rules and regulations in force at the applicable premises to include

Occupational Health and Safety regulations and any rules governing the use of equipment

and/or facilities at the applicable premises;

11.2.2 keep confidential and not divulge or communicate or make any use of any

confidential information (being any and all information which relates to and/or concerns the

business or activities of Heckler and/or any Client of Heckler) which the applicable person

shall become aware of as a result of being present at the applicable premises.

11.3 The Client shall indemnify Heckler from and against all actions, claims, costs, charges, expenses

and proceedings arising from or incurred by reason of any breach or non-observance of any

provision of condition 11.2 by any of the Client's personnel.

 

Insolvency

12. If the Client shall become bankrupt or be deemed to be unable to pay its debts or compounds

with its creditors or in the event of a resolution being passed or proceedings commenced for the

administration or liquidation of the Client (other than for a voluntary winding up for the purpose of

reconstruction or amalgamation) or if a Receiver or Manager or Administrative Receiver is appointed

of all or any part of its assets or undertaking, Heckler shall be entitled to cancel the contract in whole

or in part by notice in writing without prejudice to any right or remedy accrued or accruing to

Heckler.

 

Force Majeure

13. In the event of the performance of any obligation accepted by Heckler being prevented, delayed,

or in any way interfered with by any act of government, war, industrial dispute, strike, breakdown of

machinery or equipment, accident, fire or by any other cause beyond Heckler's control, Heckler may

at its option suspend performance or cancel its obligations under the contract without liability for

any damage or consequential loss resulting therefrom, such suspension or cancellation being

without prejudice to Heckler's right to recover all sums owing to it in respect of goods delivered and

costs incurred up to the date of the suspension or cancellation.

 

Sub-contractors

14. Heckler shall be entitled to appoint one or more sub-contractors to carry out all or any of its

obligations under any contract between Heckler and the Client.

 

General

15.1 The Client shall observe the provisions and requirements of all applicable trade union

agreements and shall indemnify Heckler against any costs, expenses or loss incurred by it as a result

of any failure by the Client to do so.

15.2 Where appropriate and required by Heckler (but not otherwise), screen credits shall be given to

Heckler and nominated individuals for all goods, services or facilities supplied by Heckler.

15.3 Headings used in these conditions are purely for ease of reference and do not form any part of

or affect the interpretation of these conditions.

15.4 Nothing in these conditions shall operate to relieve Heckler from any liability for any fraudulent

misrepresentation made to the Client at any time.

15.5 If any provision of this contract as applied to either party or to any circumstance shall be

adjudged by a court to be void or unenforceable, the same shall in no way affect any other provision

of this contract or the validity or enforceability of this contract generally.

15.6 References to Heckler shall, as the context permits, include its licensees, sub-contractors and

assigns.

15.7 References to goods shall include any and all forms of audio and audio visual material

processed and/or produced by Heckler on the Client's behalf such as advertisements.

15.8 The words "include" and "including" shall not be construed restrictively.

15.9 Client shall not assign its rights under this agreement without the express written consent of

Heckler.

15.10 All notices required to be given under these terms and conditions shall be deemed to be

properly given if made in writing via Fax or in the text of an Email, three (3) days after such dispatch.

15.11 These terms and conditions shall be governed by the laws of the State of New South Wales,

Australia.