Dubsat Pty Ltd

ACN 082 402 739

TERMS AND CONDITIONS OF TRADING


 

1. Definitions

In these terms and conditions unless the context otherwise clearly requires: 
"Business Day" means Monday to Friday inclusive but excluding all public holidays; 
"Broadcaster" means the person notified by the Customer who will broadcast or otherwise transmit the Content and who has an installation and maintenance agreement with Dubsat in force; 
"Conditions" means these terms and conditions; 
"Content" means that part of the Customer's Materials notified by the Customer which is to be forwarded to the Broadcaster; 
"Contract" means any written or oral contract, agreement, arrangement, transaction or dealing entered into or made by Dubsat with any Customer; 
"Customer" means, in respect of each Contract entered into by Dubsat (either Standard or Premium), the person with whom Dubsat so contracts and where there is more than one person contracting with Dubsat under a Contract means each person so contracting and each such person will be bound jointly and severally by these Conditions; 
"Customer's Materials" means any items or things, including any Media, made available by the Customer to Dubsat for the purposes of a Contract; 
"Dubsat" means Dubsat Pty Ltd, each and every division of Dubsat Pty Ltd (whether carried on under a different business name or otherwise) and any successor in business of Dubsat Pty Ltd; 
"IP" means any intellectual property of any nature including software owned, acquired, controlled or licensed by Dubsat; 
"Media" means any article or thing in on or by means of which visual images and/or sounds are recorded, reproduced, stored or embodied, including tape, master tape, videodiscs, computer discs and compact discs or any similar article; 
"Transmission" means the movement of content to between Dubsat and any number of broadcasters in accordance with Customer instructions. 
"Services" means;

(a) where the services form part of the services known as "TVC Distribution", then in respect of each segment of Content:

(i) digitisation and video compression of the Content by Dubsat; and

(ii) the Transmission of the Content to Broadcasters by Dubsat as data, in accordance with the details of Broadcasters and times for Transmission agreed between the parties (and confirmed in writing by Dubsat);

where the services form part of the services known as "MediaPro", then in respect of each segment of Content:

(iii) making that Content available for viewing by the Customer on a computer at the Customer's premises;

(iv) labelling elements of the Content (such as the Content Title, Key number) to allow for searching of that Content by the Customer;

(v) allowing the Customer to download the Content as a compressed computer file;

(vi) allowing the Customer to compile the Content with other Content in a linear manner to medium such as videotape:

where the services form part of the services known as "IntaCad" or "CAD", then in respect of each segment of Content:

(vii) digitisation and video compression of the Content by Dubsat; and

(viii) Transmission of the Content to Free TV Australia in a manner which allows Commercials Advisory (CAD) to view Content as required, or to TV CAB for the same purpose

the singular means and includes the plural and vice versa; the male gender means and includes the female and neuter genders and vice versa; and the word "including" is not a word of limitation.

2. Application

(a) These Conditions apply to all Contracts other than a written Contract which by its terms expressly excludes these Conditions.

(b) Subject always to Condition 2(a), these Conditions will apply to and are to be incorporated into all Contracts. Dubsat is only prepared to provide Services upon these Conditions and no Contract will exist between Dubsat and the Customer except upon these Conditions. Any order placed by a Customer is deemed to be an order incorporating these Conditions despite any inconsistencies in the Customer's order. Where the Customer places an order with Dubsat and such order contains terms or conditions conflicting with or differing from these Conditions the subsequent provision of Services to the Customer under that order will be deemed to be a counter-offer to provide those Services on these Conditions and that counter-offer will be deemed to have been accepted by the Customer on the date on which those Services are first provided to the Customer.

3. Provision of Services

(a) Subject to Condition 3(b), Dubsat will provide the Services to the Customer in accordance with these Conditions and with the details in the written confirmation provided by Dubsat for each segment of Content.

(b) If Dubsat experiences circumstances which prevent Dubsat from providing Services in accordance with Condition 3(a) ("an Interruption"), the following provisions will apply:

(i) Dubsat's obligation to the Customer will, during the period of the Interruption, be to use all reasonable endeavours to provide the Services in accordance with Condition 3(a);

(ii) if the Customer's order for Services was made before the Interruption started, and the provision of Services pursuant to that order ("the Job") has not been successfully completed when the Interruption started, Dubsat will arrange for the Job to be completed without additional charge to the Customer as soon as reasonably practicable; and

(iii) if the Customer orders Services after it is informed of an Interruption having started, it agrees and acknowledges that the Job to which that order relates will only be undertaken by Dubsat in accordance with Condition 3(b) (i) during the period of the Interruption.

4. Provision of Software

The Customer acknowledges that any IP remains the property of Dubsat notwithstanding that Dubsat may grant a licence to, or allow, Customer to use such IP or receive physical copies (including software or source code) embodying such IP. The Customer acknowledges that Dubsat only permits the Customer to use the IP owned or controlled by Dubsat to the extent that the IP is provided by Dubsat to the Customer for its intended purpose, being to facilitate the Services, or as otherwise authorised in writing by Dubsat.

5. Rates

For rates, please refer to the MediaPro rate card on the Dubsat website. Dubsat reserves the right to change the rates at any time.

The Customer acknowledges that Dubsat's charges do not include any component for any government duty, tax, impost, levy or charge ("tax") which Dubsat may at any time be liable to pay in respect of the provision of the Services and the Customer agrees that it shall pay or reimburse to Dubsat the full amount of any tax assessed on or in relation to the Contract or any transaction charged to or incurred by Dubsat in the course of the provision of the Services and the Customer indemnifies Dubsat against any liability for any such tax and any penalty, fine or interest payable in respect of or by reason of late or non-payment of any such tax. For the avoidance of doubt, any goods and services tax ("GST") that may be payable in connection with the provision of the Services will be a tax for the purposes of the Customer's obligation to pay, even if that GST is expressed to be included in the prices charged for the Services.

6. Payment

(a) All Standard Customers start as credit card customers unless prior arrangements have been made with our credit department. Upon registration you will be asked to fill out your credit card details. (For Standard Customer's any monies owing to Dubsat will be debited from the Customer's credit card account at the successful completion of the Transmission.

(b) For Premium Customers, any monies owing to Dubsat must be paid to Dubsat within 30 days from the date of the invoice to which such payment relates. Payment maybe made by credit card or any other method approved by Dubsat.

(c) Any claim for adjustment by the Customer in relation to any invoice must be made to Dubsat in writing at the address stated on the invoice within 10 days from the date of the relevant invoice and Dubsat will be under no liability to consider or accept any claim made by the Customer after the expiration of that period.

(d) No payment due from the Customer to Dubsat will be deemed to have been made until it is actually received by Dubsat at its address stated on the invoice and, if payment is made by cheque, the cheque is cleared for payment.

(e) In addition to and without limiting Dubsat's other remedies for late payment, Dubsat shall be entitled to charge and the Customer will be liable to pay interest on any payment that is overdue under Condition 6(b) calculated at a rate of interest charged by Dubsat's bank on its overdraft, plus 4%, from the date of the relevant invoice up to and including the date of payment in full of the due amount (including any interest incurred).

7. Refunds

We define our service as a receiving, quality checking, archiving, repurposing and delivering your media files, although all these parts do not have to be completed for each transaction to be deemed as completed. Dubsat will happily refund any charges incurred where you have been charged for a service that has not been used. Dubsat will also refund any charges where a file has not reached its final destination, for instance in the case where a TVC booking to a broadcaster has not had the TVC delivered but you have been charged, you will receive a refund in full. In the case where your booking has the incorrect destinations chosen and the TVC has been delivered, you will not be entitled for a refund.

8. Cancellations

Cancellations can be made before a spot is delivered by contacting the Dubsat Client Service team in writing on bookings@dubsat.com.au. Once the cancellation has been made, the client can re-book the file for delivery to the same destination(s) or choose a different destination.

Cancellations can be made after a file has been delivered by contacting the Dubsat Client Service team in writing on bookings@dubsat.com.au to 'vaporise' the spot which will clear it from the chosen destinations. Clients will then need to re-book and will be charged again accordingly if they wish to deliver the file to another destination.

9. Lien

The Customer acknowledges that Dubsat shall have a lien on any and all Customer's Materials until such time as all monies due under the Contract are paid to Dubsat.

10. Customer's Covenants, Warranties and Indemnity

(a) The Customer covenants and warrants with and to Dubsat that no act or thing required to be done or omitted to be done by Dubsat under the Contract or at the request or direction of the Customer pursuant to the Contract:

(i) will infringe the copyright of any person or render Dubsat liable or expose Dubsat to any action, suit, proceeding, claim or demand ("claim") for infringement of copyright; or

(ii) will infringe the privacy or contravention of any privacy regulations of any person or render Dubsat liable or expose Dubsat to any claim for breach of privacy; or

(iii) will be defamatory of any person or render Dubsat liable or expose Dubsat to any claim under the law of defamation; or

(iv) will render Dubsat liable or expose Dubsat to prosecution in respect of the production or distribution of any obscene article or thing; or

(v) will render Dubsat liable or expose Dubsat to prosecution or other action under any Federal, State or Territory legislation or at common law; or

(vi) will cause or lead to the following in relation to the Transmission:

  • the transmission of any material that is obscene or otherwise in breach of any law rule or regulation; or

  • interference with, or harm or damage to, the Transmission (or any part of it) by Dubsat or by users other than Dubsat.

(b) The Customer indemnifies Dubsat against any and all fines, penalties, damages, losses, costs or expenses (including legal expenses of any nature and payable to or on behalf of any person) suffered or incurred by Dubsat as a result of or arising from or in connection with any breach of the covenants and warranties given and made by the Customer under Condition 10 (a).

(c) Without in any way limiting Condition 10(b), Dubsat may at its sole discretion by itself or in conjunction with the Customer defend, settle or compound any claim against it by any person as a result of or in connection with any breach of the covenants and warranties given and made by the Customer to Dubsat under Condition 10(a), and the Customer acknowledges and agrees that that indemnity will extend to any cost or expense incurred by Dubsat in conducting any such defence and any cost or expense incurred by Dubsat in settling or compounding any such claim.

(d) Dubsat reserves the right to refuse to do or to omit to do any act or thing or to refuse to comply with any request or direction of the Customer which in the reasonable opinion of Dubsat would if done, omitted to be done or complied with constitute a breach of any warranty given by the Customer under to Section 10(a).

11. Customer's Materials

(a) The Customer acknowledges that any Customer's Materials are delivered to and used and stored by Dubsat solely at the Customer's risk and that Dubsat will be under no obligation to insure Customer's Materials.

(b) Neither Dubsat nor any of its officers, employees or agents will be liable for the loss, destruction or damage of Customer's Materials (or for the non-preservation of the content or integrity of the data recorded on those materials), unless that loss, destruction or damage was caused by the negligence of Dubsat or any of its officers, employees or agents, in which event the liability of Dubsat and any of its officers, employees or agents will be limited to the cost of replacement of the Customer's Materials so lost, destroyed or damaged. Where the Customer's Materials that are lost, destroyed or damaged are in the form of Media, Dubsat's liability will be limited to the cost of replacing that Media with unexposed raw-stock or blank Media in the same quantity as that which was lost, destroyed or damaged.

(c) The stipulation in paragraph (b) is made on behalf of each of the officers, employees and agents of Dubsat and the Customer agrees with Dubsat:-

(i) not to bring or to be a party to or to assert any action, claim, counterclaim or set-off against any such officer, employee or agent in a manner inconsistent with the protection extended to them by Condition 11(b); and

(ii) to indemnify Dubsat and its officers, employees and agents against any claim or demand made against any of them by any person other than the Customer in connection with the loss, destruction or damage of Customer's Materials or the data or intellectual property stored on them.

(d) The Customer must collect from Dubsat any Customer's Materials within seven days after being requested to do so by Dubsat. If the Customer fails to do so, Dubsat may (at its discretion):-

(i) return those materials to the Customer; or

(ii) arrange for storage of those materials,

in each case at the cost of the Customer as reasonably determined by Dubsat and notified to the Customer.

(e) The Customer must ensure that any Customer's Materials comprising recorded materials are of a technical standard which complies with the Free TV Australia (previously known as the Federation of Australian Commercial Stations) Operating Standard No. 30, "Quality Specifications for the International and National Exchange of Programs in SDTV and HDTV Formats" (including ITU-R Rec.BT601 for standard definition and ITU-R Rec.B709-3 for high definition). Dubsat may refuse to accept any such Customer's Materials which do not comply with those standards.

12. Sub-contracting

Dubsat reserves the right to sub-contract for the provision of any Services required to be provided by Dubsat under the Contract. Any and all monies due to such sub-contractor will be paid by Dubsat.

13. Implied Conditions and Warranties and Limitation of

Dubsat Liability

(a) Conditions and warranties expressed or implied by Statute, the common law, equity, trade, custom, useage of otherwise howsoever are to the extent permitted by law excluded from this Contract.

(b) The Customer acknowledges that except for a breach of a condition or warranty implied by the Trade Practices Act, 1974, the Customer's remedy in respect of any breach by Dubsat of any condition or warranty not otherwise excluded by these Conditions is limited, if that breach relates to goods, to the replacement of such goods or the supply of equivalent goods or, if that breach relates to the supply of services, the resupply of such services or the cost of having such services resupplied.

(c) Except as expressly otherwise provided in these Conditions, Dubsat shall not be liable to the Customer or the Customer's servants or agents for any direct, indirect, incidental or consequential damage or loss of any nature howsoever caused (whether based on tort, contract or otherwise) including loss of profits, loss of production, loss of sales opportunity or business reputation, direct or indirect labour costs and overhead expenses and damage to equipment or property or any other claim arising or in any way attributable to the performance or non-performance of its obligations under the Contract (including these Conditions).

(d) Without limiting the generality of Condition 13(c), Dubsat will not be liable for any damage or loss caused or contributed to by the failure to have any Customer's Materials (including the Content) transmitted to the Broadcaster by the time at which those materials are required by the Broadcaster for the purpose of a broadcast or transmission to air by the broadcaster.

14. Termination

If the Customer:

(a) commits or allows to be committed any breach of any of its obligations under these Conditions (including its obligation to pay any monies due to Dubsat) and does not remedy that breach within 14 days of it occurring, whether or not Dubsat has made formal demand upon the Customer to remedy the breach; or

(b) resolves or is ordered to be wound up, goes or passes into liquidation (provisional or otherwise) enters into any scheme of arrangement or otherwise compounds with its creditors or is otherwise unable to pay its debts

then Dubsat will have the right to:

(i) terminate the Contract;

(ii) cease and withhold the provision of Services to the Customer under the Contract; and/or

(iii) retain any payments made by the Customer under the Contract

all of which remedies will be in addition to any right of action or remedy that Dubsat may have against the Customer for recovery of any monies due to Dubsat or for or in respect of any earlier breach by the Customer of the Contract (including these Conditions).

15. General

(a) Any failure or delay on the part of Dubsat in insisting upon strict performance by the Customer of any provision of the Contract (including these Conditions) is not to be taken to be a waiver of that provision or of any rights of Dubsat and in particular is not to be taken to be a waiver of the same provision on any subsequent occasion.

(b) The Contract is personal to the Customer and may not be assigned or novated in any circumstances.

(c) Any notice required to be given by Dubsat to the Customer under the Contract (including these Conditions) will be in writing and will be given by Dubsat to the Customer by delivering or posting to the address of the Customer last known to Dubsat and will be deemed to have been properly given:

(i) if delivered, on the day of such delivery; or

(ii) if posted, on the day being two days after the day on which it was posted to the address of the Customer;

(iii) if sent by facsimile transmission, on the date on which the sending party's facsimile machine records that it has been transmitted.

(d) The headings to these Conditions are for convenience only and are not to be used for the purpose of or to affect the interpretation of these Conditions.

(e) The Contract (of which these Conditions form part) is to be governed by and construed in accordance with the laws of the State of New South Wales and Dubsat and the Customer submit to the jurisdiction of the courts of that State, and courts competent to hear appeals from those courts.