TERMS OF TRADE
PROFILE AND ACCEPTANCE
Buff Dubs trading as Silver Trak Digital and incorporating DAMsmart operates within the technology and services sector for the media and entertainment industry. The following Terms of Trade will be deemed to have been accepted by Your acceptance of quotation and request for service/work to be commenced by the Company. You acknowledge and agree that the Company may engage DAMsmart in the provision of goods and services hereunder, provided always that the Company remains responsible for their supply in accordance with these terms. These Terms of Trade will supersede any previous terms of trade. No conditions outside of those listed below will be accepted unless specified and agreed by the Company in writing.
“Buff Dubs” Buff Dubs Pty Ltd ACN 112 643 348 trading as Silver Trak Digital
“Company” Buff Dubs
“Client/Customer” An entity or individual (referred to herein as “You” and ”Your”) availing themselves of the services provided by the Company
“Cloud” Digital environment based and built on replicated computer servers
“DAMsmart” Silver and Ballard (Australia) Pty Ltd ACN 067 210 851, a related body corporate of Buff Dubs
“LTO” Linear Tape Open – a tape-based storage device, written in a storage software format
“Services” Services offered and agreed to by the Company and may include: broadcast duplication, optical media burning, authoring and mastering, disc replication, digitisation, DCP creation, QC certification, transcoding, digital delivery and/or media asset management.
“MAM” Media Asset Management
“Acceptance” T&Cs will be deemed to have been accepted by You requesting services to be performed
“GST” Goods and Services Tax – as specified under Government Act 1999 and as otherwise amended from time to time
“Digital Storage” Retention of content within a “cloud” based environment
“Physical Storage” Retention of physical media items within secure premise environment
“Transactions” Any use of content for the purposes of viewing, delivery, specified transcoding, security enhancements, QC, restoration, or other service pertaining to the handling of specific content.
2.1 Prices supplied by the Company will remain valid for a period not greater than 60 days and may be subject to review after this initial period, unless otherwise agreed in writing. You will be notified of any price revision that may affect the provision of proposed supply of goods and services.
2.2 Price stated in list, proposal or quotation are exclusive of Goods and Service Tax (GST) or other taxes. Total invoice price will show GST (or other) as an express addition of Tax – currently 10% on goods and services, but subject to government legislation.
3.1 An invoice for supplied good and services will be issued upon completion of agreed works unless deposit or progressive payments have been otherwise agreed in writing against which partial or final invoice will be issued at or on agreed date.
3.2 Invoice for retained content (physical or digital) will be issued on or about the first working day of the month, one month in arrears for the retention of content along with all ‘transaction’ costs impacting or affecting the retained content.
4.0 TERMS OF PAYMENT
4.1 The total amount payable by You to the Company for the quoted works is the price shown on the tax invoice issued by the Company.
4.2 Unless otherwise agreed in writing payment for works will be strictly 7 days from delivery of goods or services. Payment can be made by Electronic Funds Transfer, Credit Card or company cheque.
4.3 Subject to clause 9.1 all goods and services supplied remain the sole property of the Company until final payment has been received. Content retained by the Company pending payment will not be released until payment has been made or suitable agreement for payment has been reached.
4.4 The Company retains the right to seek payment of outstanding invoice amounts through mercantile or legal recourse – all fees and commissions for such services will be Your responsibility.
5.0 LATE PAYMENTS
5.1 Where invoice for payment other than for MAM service remains outstanding for a period longer than 90 days and no alternate arrangements have been agreed, services will be suspended and debt recovery processes initiated.
5.2 Where invoice for payment for MAM services remains outstanding for a period of three (3) months and no other arrangements have been entered into – the account will be considered derelict and content removed from ‘cloud’ storage and retained on ‘LTO’ tape. Access to any such content will not be granted until full payment of arrears and current invoicing for LTO creation, storage and recovery has been received.
5.3 Transfer of content from ‘cloud’ to LTO will attract a one-time fee of $20 per 100Gb (rounded up) to cover tape, cloud egress and processing, with a further $5/tape per month storage, from date of content transfer accumulating monthly, backdated to 1st day of month and billed for entire month.
5.4 To recover data a restoration fee for content from LTO will be invoiced as a one-time fee of $150 per tape for recovery of data.
5.5 LTO creation, monthly storage and restoration costs will be in addition to any outstanding service fees and form the basis of the final settlement.
5.6 The Company will accept no other claim for content delivery from other party or third party where invoice amounts remain outstanding, regardless of Your agreement with such party or entity.
5.7 All costs, fees or interest charges incurred by the Company in recovery of outstanding service fees will be charged to the Client/Customer and included in final settlement.
6.1 The Company warrants that all goods and services will be provided to an accepted commercial standard and will actively seek to 3.0 INVOICING
6.2 The Company warrants that it has the expertise, equipment and knowledge to carry out the services that are being proposed or quoted and will use its best judgement to deliver a quality product. Any encountered difficulties or limitations that may affect this delivery will be notified to You within 24 business hours of detection.
6.3 You warrant that materials supplied to the Company by You are free of defect and encumbrance and that You have and hold all necessary rights, consents, licenses or authorisations to appoint the Company to carry out the proposed/quoted works.
6.4 You will indemnify the Company, its directors, shareholders, employees, contractors and agents (and shall keep them indemnified) against all claims, losses or damages or other liability arising from any breach of your warranties or any other term of this agreement. The Company may suspend or withdraw from the provision of services if it considers in its sole discretion that there has been or is likely to be a breach of your warranties, without prejudice to any rights it may have against You
6.5 You warrant that you will take the necessary steps to ensure that content or data sent to the Company for treatment or handling has been appropriately secured by way of copy, redundancy, duplication or other against loss or damage.
7.0 LIMITATION OF LIABILITY
7.1 The Company will not be held liable for actions or performance of any third party service provider, telecommunications provider, Internet Service Provider or technical support other than as outlined in any agreed Service Level Agreement (SLA).
7.2 Due to the nature of content being in a form other than physical, to the extent permitted by law the Company accepts no responsibility to the perceived quality or completeness of the received item, content, file or data and will not be held liable for perceived losses or quality defects in the delivered item, content, file or data.
8.1 The Company warrants that it maintains as current commercial insurances in accordance with normal commercial practices (viz.: Property Insurance, Workers’ Compensation Insurance and Public Liability Insurance).
8.2 While the Company exercises all care and diligence in carrying out agreed services, responsibility for suitable insurance coverage over the value of provided item and content(s) remains Your responsibility. To the extent permitted by law, the Company will not be held liable for damages other than at its discretion the resupply of services or physical device or paying the cost of comparable goods or services; where possible, should any defect, loss or destruction occur, whether at the Company premise or in transit.
9.0 OWNERSHIP OF PHYSICAL ITEMS, DIGITAL MEDIA AND DATA
9.1 You retain exclusive ownership of all data, information or material that you provide to the Company. The Company is not granted any proprietary rights in the data and You have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use of data. Nothing in this clause 9.1 will limit or displace Your obligation to pay all amounts owed by you in accordance with these Terms of Trade and any relevant invoice.
9.2 The Company retains the exclusive ownership of all goods and services produced by the Company until such time as full invoiced fees have been satisfactorily paid as outlined in clause 4 above.
9.3 Ownership of material items, content or data remains with You as the incumbent who will have sole responsibility for diligent payment of invoiced service fees. In the event of content or data transfer to another party it is Your responsibility to notify the company within 14 days of transfer of the new ‘ownership’ arrangements. Responsibility for payment of outstanding accounts remains with You until such time that the transferee assumes in writing full responsibility for content or data, and on-going payment of fees in accordance with these Terms of Trade.
9.4 Access rights to content and data remains with You and the Company disclaims any responsibility for individuals’ access as assigned and managed by You.
10.0 TERMINATION OF AGREEMENT
10.1 Acceptance of proposal, quotation and/or placement of service order will constitute acceptance of these terms and conditions and for subsequent delivery of goods and services provided by the Company. The Company retains the right to terminate the services agreement in the event that:
(a) there has been a breach of these terms and conditions;
(b) it is subsequently discovered that You have no legal right or authorisation to request or continue the service proposed;
(c) payment of duly invoiced fees have not been paid in accordance with Clauses 4 and 5; or
(d) an instruction has been received from authorised legal entity to cease and desist.
10.2 Where You cancel or terminate the agreement for reasons other than non-performance, loss of deposits or invoicing for works to date will result.
11.0 FORCE MAJEURE
11.1 The Company shall be liable to You for any delay or failure in performance under this agreement arising out of a cause beyond its control and without its fault or negligence. Such causes may include, but are not limited to fires, floods, earthquakes, strikes, unavailability of necessary utilities, acts of God, acts of declared or undeclared war, acts of regulatory agencies, or national disasters.
11.2 The foregoing implication shall not excuse a party from:
(a) Safeguarding its systems, data or facilities;
(b) Taking actions to prevent computer network or system security breaches
(c) The release of Confidential Information or:
(d) Losses due to fraudulent activity
12.0 DISPUTES AND RESOLUTIONS
12.1 Any question of quality or non-performance should be raised to the relevant production area for resolution within 7 days of goods or service delivery. Where a satisfactory resolution cannot be reached You must raise the matter in writing to the Chief Operating Officer or Managing Director for response.
12.2 Matters raised in writing will be responded to within 48 hours of receipt detailing the next course of action.
12.3 Nothing in these Terms of Trades will restrict a party from commencing legal proceedings in relation to any matter hereunder.
12.4 These Terms of Trade are subject to and governed by the laws of New South Wales. The courts of that state will have exclusive jurisdiction over dispute arising hereunder.
13.1 If any term of these Terms of Trade is invalid, illegal, or incapable of being enforced, such term shall be excluded to the extent of such invalidity, illegality, or unenforceability and all other terms shall remain in full force and effect.