Quotes and Acceptance

 

A quote from Grundy Media is an invitation to the Customer to trade with Grundy Media. It shall not constitute an offer by Grundy Media to the Customer to enter into a Contract. The Customer may use the quote to submit an Order to Grundy Media. Prices given in any quote by Grundy Media are applicable to that quote only and will not apply in any other instance, unless confirmed in writing by Grundy Media.

Quotes are valid for the period specified in the quote or, if no period is specified, 14 days from the date of issue by Grundy Media. If the Customer instructs Grundy Media to proceed by word of mouth or in writing, the Customer is taken to have submitted an Order to Grundy Media on the terms of the quote. Grundy Media is not obliged to accept any Order. The Customer agrees Grundy Media may sub-contract part or all of, the provision of the Services.

 

Provision of Services and Customer Obligations

 

For real estate marketing jobs, the Customer must ensure full and free access to the Property is available, and promptly provide all instruction, information and documentation reasonably requested by Grundy Media in order to perform the Services. Grundy Media is not liable to the Customer and/or Vendor for any loss of any kind suffered by the Customer and/or Vendor as a result of any failure or delay by the Customer and/or Vendor. Grundy Media shall be entitled to a reasonable extension of any timeframe applicable to its obligations as a result of any failure or delay by the Customer and/or Vendor.

The Customer and/or Vendor must ensure the Property is in a safe and presentable state for Grundy Media to undertake the Services. Grundy Media may, but are not obliged to, move or remove items on, or add items to, the Property or suggest any moves, removals or additions. Grundy Media may refuse to undertake the Services of any Property (or part of) which Grundy Media considers in its sole discretion to be unsafe or unsuitable for presentation, in which case Grundy Media may vary the Price or Services (including charging a cancellation, postponement or reappointment fee) as determined by Grundy Media to take account of the Property conditions. If, despite the condition of the Property, Grundy Media elects to proceed with the provision of the Services, the Property will be shot ‘as is’ and the Customer and/or Vendor cannot raise any objection to the Services of the Property being taken ‘as is’.

It is the Customer and/or Vendor’s responsibility when booking an appointment to determine the time of day that best suits the Property. The Customer and/or Vendor should consider such things as shadows (Grundy Media recommends to avoid strong shadow casts across the Property), availability of natural lighting, predicted poor weather, and the season of the year. Grundy Media will do its best to suggest best times of the day, if available, for the provision of Services, but is not obliged to do so.

 

Twilight Shoots

 

Regarding Twilight shoots, Grundy Media will suggest the best time of day to start the provision of Services in order to maximise the time for Twilight shoots. It is the Customer and/or Vendor’s responsibility whether to accept or reject this advice. Grundy Media is not liable to the Customer and/or Vendor for any unforeseen circumstances in regards to Twilight shoots.

During daylight savings time, it is understood that due to late sunsets, delivery of the final twilight images may be up to 48 hours after the end of the photography shoot during this period, and Grundy Media is not liable for any loss or inconvenience caused by this delay.

 

Provision of Goods Electronically

 

In regards to real estate marketing, by default, the provision of Goods will be provided electronically only. Grundy Media does not represent or warrant that goods provided electronically will be free from computer viruses, corruption or other damaging or disabling programs. It is the Customer’s responsibility to ensure it has appropriate hardware and software to be able to receive and open any electronic files provided by Grundy Media.

 

Release of Files to Third Parties

 

Grundy Media reserves the right to refuse to release electronic files to third parties. Grundy Media holds all rights to any and all media created by them, and Clients and/or Vendors are not at liberty to release files to third parties, or re-use media for new properties, unless given express approval from Grundy Media.

 

Back-Up/Recovery and Online Tracking

 

Although Grundy Media may keep back-ups or archive the Goods, the Customer accepts that Grundy Media is not required to do so. It is the Customer’s responsibility to ensure it backs-up and makes copies of all goods provided by Grundy Media. If the Customer requests copies of the goods, Grundy Media is entitled to charge a retrieval fee as determined by Grundy Media. Grundy Media accepts no liability or responsibility for any part of the goods not being able to be retrieved.

 

Quality of Services

 

If the Customer and/or Vendor is on the Property when the Services are in progress and Photographs are able to be viewed on the spot, the Customer and/or Vendor must review the Photographs and either approve or object to the Photographs on-site. The Customer and/or Vendor must act promptly and reasonably in approving or objecting to the Photographs. If a Photograph is objected to by the Customer and/or Vendor, Grundy Media will re-take the particular Photograph objected to at that time, and the Customer and/or Vendor must either approve or object to the new Photograph on-site.

If the Customer and/or Vendor is not on the Property to review Photographs, or fails to approve or object to the Photographs taken at the time, the Customer and/or Vendor is taken to have approved all such Photographs.

If the Photographs are not able to be viewed on the spot, then the Customer and/or Vendor must review those Photographs when they are provided by Grundy Media and either approve or object to the Photographs within 7 days of the date on which Grundy Media forwarded same to the Customer. The Customer and/or Vendor must act promptly and reasonably in approving or objecting to those Photographs. Grundy Media will re-take the particular Photograph objected to and the Customer and/or Vendor must approve or object to it in accordance with the above procedure. If the Customer and/or Vendor does not object to Photographs in accordance with the above, the Customer and/or Vendor is taken to have approved all Photographs.

 

Retouching

 

If the Services include retouching or modifying the Photographs, then subject to any agreed instructions from the Customer, Grundy Media will cause the retouching to be undertaken to an extent considered reasonable and adequate to the opinion of Grundy Media, and to comply with relevant legislation.

 

Real Estate Agents/Property Agents

 

If the Customer is a real estate agent or property agent, the Customer agrees Grundy Media will generally take instructions in the following order: vendor/landlord of the Property; the listing/leasing agent; listing/leasing agent’s office; the tenant of the Property. The Customer acknowledges that instructions from any of the abovementioned people bind the Customer. The Customer agrees Grundy Media can contract with other real estate agents and property agents including in respect of the same Property.

 

Delivery Times

 

Grundy Media is entitled to withhold delivery of the Goods if the Customer has not made payment of the Goods, or has outstanding fees payable to Grundy Media. 

Grundy Media will use reasonable endeavors to provide the Services within the agreed time frame, however, the Customer agrees that time is not of the essence. Grundy Media shall not be liable to the Customer for any loss or damage of any kind suffered by the Customer arising out of any failure by Grundy Media to provide the Services on or by the agreed or specified date or within a reasonable time. Without limiting the aforementioned, should completion of the Services be prevented, delayed or hindered directly or indirectly by circumstances beyond Grundy Media’s reasonable control, then at Grundy Media’s option, the delivery time shall be extended until the effect of the delaying cause has ceased. The Customer shall not be entitled to cancel the Order due to the resultant delay. Grundy Media shall not be liable for any loss or damage of any kind suffered by the Customer for the resultant delay of the Order. Unless otherwise agreed by Grundy Media and the Customer, Grundy Media shall be entitled to provide the Services in one or more lots. Where there is a part provision, Grundy Media shall be entitled to Invoice the Customer for pro-rata progress payments in respect thereof. The pro-rata amount is as determined by Grundy Media.

The Customer acknowledges that delays are more likely to occur in times where weather has been a factor to the provision of Services, where access of the Property was an issue, the condition of the Property, the type of services requested, the complexity of instructions provided by the Customer, and the fact that Twilight shoots are typically done after normal business hours and may need additional editing time, especially during the daylight savings period.

 

Price Changes and GST

 

Even after an Order has been received, Grundy Media reserves the right to vary its Price to take account of the complexity, type and/or sizes of floor space within the Property or its surrounds. It is the Customer’s responsibility to check the fees payable for each Service prior to placing an order, as prices are subject to change without notice at the discretion of Grundy Media. All amounts are GST inclusive unless otherwise noted. If an amount is stated to be exclusive of GST, the Customer must pay any applicable GST to Grundy Media in addition to the amount payable at the same time as the amount to which it relates is payable.

 

Cancellation/Postponement by Customer and Fees

 

Grundy Media may cancel an Order at any time before the Services are performed by notice to the Customer in which case Grundy Media shall repay any sums paid by the Customer in advance to Grundy Media in respect of the Services. Grundy Media may postpone an Order at any time. Grundy Media shall not be liable for any loss or damage of any kind suffered by the Customer arising from such cancellation or postponement.

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Without limiting any other rights or remedies of Grundy Media, if the Customer cancels an Order (either with or without consent) or postpones an appointment, the following additional charges will apply: notice of 12 hours or more but less than 24 hours before the scheduled appointment = 10% fee; cancelled on-site = 20% fee and travel fee expenses. The postponement fees shall apply each time the Customer postpones the Services. The Customer must give Grundy Media (and its contractors) full and free access to the Property within 20 minutes from the scheduled appointment start time and if this does not occur, Grundy Media may treat this as a postponement by the Customer and in addition to any other rights or remedies is entitled to charge the postponement fee of 20% + travel expenses.

All postponements will be allocated to the next available date and time slot as determined by Grundy Media and the Customer cannot object to the date and time allocated. Grundy Media reserves the right to alter its cancellation and postponement fees at any time by notice to the Customer (which may be given by publishing such details on Grundy Media’s website and it is the obligation of the Customer to check the website to ascertain whether these charges have been varied before cancelling or postponing the Services).

 

Application of Terms of Trade

 

The Terms of Trade shall apply to every Order between Grundy Media and the Customer for the Services (even if not attached or referred to in an Order). Any action taken in respect of one Order does not automatically affect any or all other Orders. The Customer agrees Grundy Media is entitled to assume that anyone on behalf of the Customer (including its employees) who places an Order with Grundy Media has full power and authority to bind the Customer irrespective of whether or not such person followed the Customers internal procedures before placing the Order and the Customer agrees to be bound by the acts or omissions of such persons.

 

Credit Enquiries

 

The Customer agrees in favor of Grundy Media that: Grundy Media may make such enquiries as it sees fit in order to satisfy itself as to the creditworthiness of the Customer and to assess any application for commercial credit; the inquires may include applying to and obtaining from any credit reporting agency a credit report of the Customer which may contain personal information, in accordance with s18K(1)(b) of the Privacy Act 1988 (Cwlth) (“Act”), and to obtain a report containing information from a person or business which provides information about the commercial credit worthiness of a person in relation to credit provided by Grundy Media, in accordance with s18L(4) of the Act; Grundy Media is authorized in terms of s18N(1)(b) of the Act to disclose information of a report received by it and to exchange information with other credit providers for the purpose of notifying other credit providers of a default by the Customer, assessing an application for credit by the Customer, and assessing the creditworthiness of the Customer; Grundy Media may give information about the Customer or the Customer’s business to a credit reporting agency for the purpose of obtaining a consumer credit code report, and/or to allow the consumer credit reporting agency to create or maintain a credit information file about the Customer or the Customer’s business; the Customer consents to Grundy Media disclosing the Customer’s information to a credit reporting agency as outlined above.

 

Payments, Merchant Fees and Interest

 

The Customer must make payment of any amount payable to Grundy Media in accordance with the time period specified by Grundy Media or, if no such times are specified, within 21 days from the date of the Invoice. All times for payment are of the essence. Payments must only be made by such methods as permitted by Grundy Media from time to time. The persons Grundy Media uses to take Photographic Images and Grundy Media’s contractors and suppliers do not accept payment on location. If any payment is made by credit card, the Customer agrees Grundy Media may also charge and deduct from the credit card any merchant fees that apply. In addition to and without prejudice to any other rights or remedies of Grundy Media, interest shall apply to any payment not made on time at the same rate per annum, calculated daily, that is 2% higher than that specified in Schedule 5 of the Uniform Civil Procedure Rules 2005 (NSW) for the relevant period. In addition to any other rights or remedies of Grundy Media, if the Services (or any part of them) are postponed (other than due to the default of Grundy Media) or Grundy Media suspends the performance of the Services, Grundy Media is entitled to render an Invoice for the value of the Services performed (as determined by Grundy Media) up to that time together with any other fees the Customer is liable to pay (such as postponement fees).

 

Indemnity

 

The Customer indemnifies Grundy Media against any loss, cost, damage or expense (including legal costs and disbursements on a full indemnity basis and any debt collection agency fees on a full indemnity basis), and any claims, demands, suits, actions and proceedings suffered, paid, incurred, instituted or defended by Grundy Media, resulting from or arising out of any breach of the Contract by the Customer or the cancellation or postponement of any Order by the Customer (including if cancelled or postponed with the consent of Grundy Media).

 

Passing of Risk and Retention of Title

 

Risk in respect of loss, damage or destruction of the goods passes to the Customer upon delivery. Despite the passing of risk, Grundy Media retains full title to the goods until such time as all payments due by the Customer of the relevant Order are received by Grundy Media. Grundy Media reserves the right in the event of non-payment of any amounts due by the Customer to cease dealings with the Customer immediately until the outstanding payment is made. If it is or becomes necessary to register this clause or the Order in order to give effect to the retention of title created by this clause, the Customer agrees to promptly sign such reasonable documentation and promptly perform all reasonable acts necessary in order to enable Grundy Media to register this clause or the Order.

 

Variations and Inconsistency

 

If the Customer wishes to vary the Order, Grundy Media reserves the right to vary the Price and/or any other aspect of the Order to take account of such changes and in that case Grundy Media is entitled to suspend the provision of the Services until the Customer approves of the variations in writing. Grundy Media is not obliged to accept any variations put forward by the Customer to the Order. Grundy Media may vary the Terms of Trade from time to time, in which case those new terms of trade shall apply to every new Order after the Customer is notified in writing of the new terms of trade. Subject to the foregoing and any other provision of the Terms of Trade, any variation, amendment or consent to departure by any party from the Order shall have no force or effect unless agreed to in writing by Grundy Media. If there is any inconsistency between the Terms of Trade and the Order, the terms of the Order prevail to the extent of the inconsistency. Any terms or conditions put forward by the Customer in respect of the Services are null and void and of no effect unless accepted by Grundy Media in writing.

 

Limitation of Liability

 

To the fullest extent permitted by law: (i) Grundy Media shall not be liable to the Customer for any consequential, special, incidental or other indirect loss or damage including loss of profit, loss of opportunity, business, revenue, goodwill or anticipated savings arising out of the performance, non-performance or defective performance of the obligations of Grundy Media irrespective of whether or not Grundy Media was made aware of the possibility of such loss and this includes Grundy Media being unable to supply the Services in time to make the Customer’s print and other media deadlines; (ii) all express and implied warranties, terms and conditions in relation to the obligations of Grundy Media including those implied by use, trade, custom or otherwise are hereby excluded; (iii) the Customer agrees Grundy Media is not liable or responsible for any loss or damage the Customer suffers or incurs due to circumstances beyond the reasonable control of Grundy Media; (iv) Grundy Media shall not be liable to the Customer for the negligence, acts or omissions of its contractors; (v) subject to the foregoing, Grundy Media’s total liability to the Customer for breach of its obligations to the Customer are at the option of Grundy Media limited, in the case of the ‘goods’ component of the Services, to replacing or resupplying the goods or paying for the cost of replacing or resupplying the goods, and in the case of the ‘services’ component of the Services, to supplying the services again or paying for the cost of having the services supplied again.

 

Intellectual Property

 

Apart from a limited non-exclusive and non-transferable licence to use the goods supplied to the Customer as part of the Services for the purpose of the Customer advertising, selling or leasing the Property, the Customer agrees it must not use the goods for any other purpose and the Customer agrees: it receives no other Intellectual Property Rights in respect of such goods or any other part of the Services; all Intellectual Property Rights in respect of the Services remain at all times with Grundy Media. Without limiting the foregoing, the goods are not to be used for other projects, sold or given to parties not involved with the project for which they were ordered without the prior written consent of Grundy Media. Specifically, if the Customer is the owner of the Property, it may use the goods for its personal use only but is otherwise not permitted to supply images to any other real estate agent or property agent. Grundy Media reserves the right to use any goods or any other part of the Services for any purpose it sees fit. The Customer warrants that any artwork, designs, drawings, plans, specifications or anything else supplied by or on behalf of the Customer which relates to the creation, performance or development of the Services does not infringe the Intellectual Property Rights of any third party.

 

Suspension and Termination

 

If the Customer defaults or fails or delays in performing its obligations then in addition to and without prejudice to any other rights or remedies of Grundy Media (including exercising a right of termination after suspension), Grundy Media may suspend the performance of its obligations until such default, failure or delay is rectified without being liable to the Customer for any loss or damage of any kind suffered by the Customer as a result of such suspension. Grundy Media shall be entitled to a reasonable extension of any timeframe applicable to its obligations as a result of such suspension. If a party: (i) has a receiver, receiver and manager, administrator, liquidator, provisional liquidator or external controller appointed to it; (ii) becomes bankrupt, insolvent or is wound-up; has a resolution passed for its winding-up, commits an act of insolvency or bankruptcy; (iii) enters into any scheme or arrangement with its creditors; (iv) breaches an essential term of the Contract; (v) breaches a term of the Contract that is not capable of remedy; or (vi) subject to the foregoing, breaches a term of the Contract that is capable of remedy but is not so remedied within 14 days of written demand; then the other party by written notice may terminate the Contract immediately. Termination shall not affect any provision of the Contract expressed or capable of operating or having effect subsequent to termination and shall be without prejudice to any accrued right or remedy of a party in relation to any breach of or default by the other party occurring prior to termination.

 

Miscellaneous

 

In the regard to an Order (Contract): (i) the Contract shall be governed by and construed in accordance with the laws of the State of New South Wales, Australia; (ii) any legal action or proceedings with respect to the Contract against any party or any of its property and assets may be brought in the Courts of the State of New South Wales, Australia and each party accepts, for itself and in respect of its property and assets, generally and unconditionally the jurisdiction of the Courts of that State; (iii) subject to the express written terms of the Contract, the Contract shall confer rights and benefits only upon a person expressed to be a party and not upon any other person; (iv) the Customer shall not transfer, sub-contract or assign its rights or obligations under the Contract without the prior consent in writing of Grundy Media; (v) Grundy Media may assign its rights or obligations under the Contract and if this occurs it shall give written notice to the Customer; (vi) the failure to exercise or delay in exercising by any party of any right conferred by the Contract shall not operate as a waiver and the single or partial exercise of any right by that party shall not preclude any other or further exercise of that or any other right by that party; (vii) subject to the terms of the Contract, the rights of a party conferred by the Contract are cumulative and are not exclusive of any rights provided by law; (viii) each party shall execute all documents and perform all acts necessary to give full effect to the Contract; (ix) apart from the Credit Application, the Contract expresses and incorporates the entire agreement between the parties in relation to its subject matter, and all the terms of that agreement, and supersedes and excludes any prior or collateral negotiation, understanding, communication, agreement, representation or warranty by or between the parties in relation to that subject matter or any term of that agreement. Neither party shall, after the Contract has been entered into, be entitled, as against the other party or other officers of any party, to bring suit on the basis of any verbal or written communications, representations, inducements, undertakings, agreements or arrangements except expressly as provided by the Contract or the Credit Application; (x) any provision of the Contract which is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of that prohibition or unenforceability, without invalidating the remaining provisions of the Contract or affecting the validity or enforceability of that provision in any other jurisdiction; (xi) no provision of the Contract shall merge on completion of the Contract.