General Terms and Conditions – Visual Domain
(b) These Terms apply to, and become immediately binding on, any person (you, your, Customer) who, whether personally, or by any of its Representatives:
(i) uses or accesses the Website or Client Hub, including by logging into the Client Hub;
(ii) having received a Confirmation Email from Visual Domain:
(c) Other than as set out in this clause, these Terms supersede and replace all other agreements, arrangements and understandings (whether verbal or written) between you and Visual Domain or any of its Representatives, including any terms and conditions contained or referred to in any purchase order or other communication issued by or on behalf of the Customer. If one or more signed agreements or deeds entered into between you and us are in force, and there is any inconsistency between these Terms and such other agreements or deeds, as between you and us, the other agreements or deeds will prevail over these Terms to the extent of the inconsistency.
(d) Your use or receipt of any Services or Digital Assets from Visual Domain or its sub-contractors is conditional on your accepting these Terms, and any such use or receipt constitutes your acceptance of and agreement to be bound by the Terms.
(e) This document is structured as follows:
2 Definitions and interpretation
In this document, the following definitions apply:
Business Day means a day on which all banks are open for business generally in Melbourne, Australia, other than a Saturday, Sunday or public holiday.
Changes has the meaning given in clause 6.1(a).
Client Hub means Visual Domain’s cloud production and customer platform located at https://clienthub.visualdomain.com.au amended from time to time.
Completion means, in relation to a Key Deliverable, Visual Domain uploading the Key Deliverable to the Client Hub, or otherwise delivering the Key Deliverable to the Customer.
Confidential Information has the meaning given in clause 18(a).
Confirmation Email means each email sent by Visual Domain or its Representatives to the Customer or its Representatives (as amended in accordance with these Terms, if applicable), which sets out a scope of work in relation to a Project, including a description of Services to be provided by Visual Domain to the Customer, and Fees payable by the Customer to Visual Domain in respect of those Services, together with any other relevant terms and details.
Consumer Laws means any Laws relating to consumer protections, and includes the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)), the Fair Trading Act 2012 (Vic) and any corresponding legislation in any other State or Territory of Australia.
Customer Content means:
(a) all Digital Assets, content, documents, materials, text, images, logos, files, data, information, attachments and other subject matter that the Customer or any of its Representatives provides, delivers or otherwise makes available (including via the Client Hub) to Visual Domain or its Representatives in connection with any Project or Services;
(b) all enhancements, modifications and derivative works of the foregoing; and
(c) all creations, inventions and Intellectual Property Rights contained or embodied within the foregoing anywhere in the world.
Digital Assets means all materials, works (including literary, musical, dramatic and artistic works), subject-matter other than works (including films, sound recordings, broadcasts and published editions) and digital assets, including video, audio and photographic content, graphics, images, logos, animations, illustrations, concept art including source files, storyboarding, draft and final outputs including video, static graphics or animations, creative concepts and scripts, in each case, in any format whatsoever.
Featured Individual has the meaning given in clause 8.4(a).
Fees means the amounts payable by the Customer to Visual Domain as consideration for Services, including in respect of any Third Party Expenses, products or services, as set out in the relevant Confirmation Email or notified by Visual Domain to the Customer from time to time (including pursuant to clause 6).
Government Agency means any government or governmental, administrative, monetary, fiscal or judicial, regulatory body, minister, department, commission, authority, instrumentality, board, organisation, tribunal, agency, trade union or entity in any part of the world (or any office or delegate thereof).
GST has the meaning given to that term in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Hourly Rates means the amount per hour for the services of the relevant Personnel, as determined by Visual Domain from time to time.
Insolvency Event means, in relation to a person:
(a) anything which reasonably indicates that there is a significant risk that such person is or will become unable to pay its debts as and when they fall due, including (i) a meeting of the person’s creditors being called or held; (ii) a step being taken to make the person bankrupt; (iii) an application being presented or an order made for the sequestration of the person's estate; (iv) a step being taken to wind the person up; (v) a step being taken to have a receiver, receiver and manager, administrator, controller, liquidator or provisional liquidator appointed to the person or any of its assets; (vi) the person entering into any type of agreement, composition or arrangement with, or assignment for, the benefit of all or any of its creditors; or (vii) the person ceases or threatens to cease to carry on its main business; or
(b) the appointment of a receiver, receiver and manager, administrator, controller, liquidator or provisional liquidator to the person or any of its assets.
Intellectual Property Rights means any and all intellectual property rights (anywhere in the world, whether statutory, common law or otherwise) including patents, patent applications, utility models, copyright (including future copyright), trade marks, logos and design marks, service marks, trade names, business names, brand names, circuit layouts, designs, know how, trade secrets, domain names, other names and locators associated with the world wide web, internet addresses, and including all applications and rights to apply for registration of such intellectual property rights and the right to take action against any third party for infringement of any of those intellectual property rights.
Job means one or more tasks or components which together comprise the Services in relation to a Project, whether or not expressly described on an individual basis in the relevant Confirmation Email.
Key Deliverable means the Job, deliverable or other milestone described as such in a Confirmation Email.
Law means any law or legal requirement, including at common law, in equity, under any State, Territory or Commonwealth statute, regulation, by-law or authorisation, and any decision, directive or requirements of any Government Agency.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
Permitted Users means employees or officers of Customers who have been allocated usernames and passwords in relation to the Client Hub in accordance with these Terms.
Personal Information means any information or opinions to which the Privacy Laws are capable of applying.
Personnel means personnel or Representatives of Visual Domain or its sub-contractors.
Privacy Laws means any Laws in relation to privacy and/or personal or sensitive information, and includes the Privacy Act 1988 (Cth).
Production Pack means bundles of Production Pack Credits purchased by the Customer from Visual Domain.
Production Pack Credits means credits purchased by the Customer from Visual Domain, which may be applied by the Customer to Fees on the basis of one Production Pack Credit per $1.
Project means a project relating to the provision of Services by Visual Domain to the Customer, as described in a Confirmation Email.
Project IP has the meaning given in clause 8.2.
Reduction has the meaning given in clause 7.3(a).
Related Party means:
(a) in respect of a body corporate, anyone who is an associate of that body corporate under sections 11 to 15 (inclusive) of the Corporations Act 2001 (Cth);
(b) in respect of an individual, an 'associate' of that individual as defined in section 318 of the Income Tax Assessment Act 1936 (Cth); and
(c) in respect of any other entity or legal person, a person who is related to, an affiliate of or otherwise associated with that other entity or legal person.
Representatives means, in respect of a person, any director, officer, employee, agent, contractor, adviser or Related Party of or to that person, or any director, officer, employee, agent, contractor or adviser of or to a Related Party of or to that person, and in respect of the Customer includes all Permitted Users.
Services means any products and services to be provided by Visual Domain to the Customer in connection with a Project, including the creation and/or delivery of Digital Assets, as set out in the relevant Confirmation Email/s.
Terms has the meaning given in clause 1(a).
Third Party Expenses means the cost to the Customer of any products or services to be provided by third parties in connection with a Project, as set out in Confirmation Emails or otherwise notified by Visual Domain to the Customer from time to time.
Website means the website located at www.visualdomain.com.au, including all password protected areas and subdomains of such website and all related top-level domains, mobile sites, apps, applications, APIs and widgets.
Website IP has the meaning given in clause 8.1.
In the interpretation of this document, unless the context otherwise requires:
(a) all references to dollars or ‘$’ are references to Australian currency and all amounts payable are payable in Australian dollars;
(b) a reference to any law or legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision;
(c) a reference to a clause, part, schedule or attachment is a reference to a clause, part, schedule or attachment of or to this document;
(d) a reference to any agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time;
(e) a reference to a person includes any company, trust, partnership, joint venture, association, corporation, body corporate or governmental agency;
(f) where a word or phrase is given a defined meaning another part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning;
(g) a word which indicates the singular also indicates the plural, a word which indicates the plural also indicates the singular, and a reference to any gender also indicates the other gender;
(h) a reference to the word ‘include’ or ‘including’ is to be interpreted without limitation;
(i) headings are inserted for convenience only and do not affect interpretation; and
(j) no clause will be construed to the disadvantage of a party because that party was responsible for the preparation of this document or that clause or the inclusion of the provision in this document.
3.1 Provision of Services
In consideration of the Fees payable by the Customer under these Terms and any Confirmation Emails, Visual Domain shall provide the Services in respect of such Confirmation Emails to the Customer in accordance with these Terms.
3.2 Content, views and opinions
The Customer acknowledges and agrees that the content, views and opinions expressed in any Digital Assets produced by Visual Domain for the Customer are solely those of the Customer, and in no way reflect the views and opinions of Visual Domain or its Representatives.
All references in Confirmation Emails to times and dates by which delivery of any part of the relevant Services is to occur are indicative only and are subject to change as notified by Visual Domain to the Customer from time to time.
The Customer must pay the Fees to Visual Domain in accordance with these Terms, each Confirmation Email and any invoices issued by Visual Domain to the Customer from time to time.
(a) The payment terms applicable to each Project will be as set out in the relevant Confirmation Email or as otherwise notified by Visual Domain to the Customer. Invoices may be issued:
(b) Where payment takes the form of applying Production Pack Credits towards Fees, such payment must be made in full prior to the commencement of the Project.
(c) All payments must be paid within 14 days of the date of the relevant invoice, unless otherwise specified in the invoice. Visual Domain may impose any other terms and conditions relating to payments as it sees fit from time to time by stipulating such terms and conditions on invoices.
(d) Where any component of payment is required prior to the commencement of a Project, that payment must be made prior to Visual Domain or its Representatives undertaking any work in relation to the Project.
4.3 Default in payment
If any invoice is not paid in full by the Customer to Visual Domain by the due date:
(a) the Customer must pay, on demand, interest on that sum from the due date until the date immediately before the date of actual payment. Interest will be calculated at 10% per annum and be capitalised monthly, with interest accruing from day to day from and including the due date for payment up to the actual date of payment;
(b) until such time as the invoice and all interest payable under clause 4.3(a) are paid in full:
5 Production Packs
5.1 Purchase of Production Packs
(a) Production Packs may be purchased from Visual Domain at the price and on and subject to the other terms and conditions determined by Visual Domain from time to time in its sole discretion.
(b) Production Packs may not be purchased using Production Pack Credits.
(c) All payments in respect of Production Packs must be made at the time of purchase.
5.2 Production Pack Credits
(a) Production Packs entitle their holder to the number of Production Pack Credits stipulated in the invoice relating to the purchase of those Production Packs.
(b) Production Pack Credits may be applied to Fees by their holder on the basis of one Production Pack Credit per $1.
(a) Production Packs, once purchased (and associated Production Pack Credits) are non-refundable.
(b) Production Packs (and associated Production Pack Credits) expire after 12 months of purchase, or on such other date stipulated in the Client Hub from time to time. Unused credits cannot be used after the expiry date.
6 Changes and additional services
6.1 Requests for changes
(a) The Customer may (whether personally, or by any of its Representatives) request changes to any of the details set out in Confirmation Email with respect to a Project or Services (Changes).
(b) Any Changes are subject to Visual Domain’s approval, which may be granted on such terms and conditions as it determines in its sole discretion, including with regard to the imposition of additional fees and charges.
(c) Where Visual Domain approves any Changes in writing, or by updating the relevant details relating to a Project or Services in the Client Hub, the Confirmation Email will be deemed to be amended from that time for all purposes under these Terms.
(d) Visual Domain may in its discretion issue a new Confirmation Email to the Customer in connection with the approval of any Changes. The issue of such a new Confirmation Email does not affect any accrued rights of either party, and, without limiting any obligations of the Customer under the new Confirmation Email, Visual Domain reserves the right to recover from the Customer all Fees relating to work already undertaken, and any applicable Third Party Expenses, in each case in connection with the relevant Project and Services.
(e) The Customer acknowledges that any Changes may result in delays to the completion of Jobs, Services and/or Projects, as notified by Visual Domain to the Customer from time to time.
6.2 Additional services
(a) The Fees stipulated in a Confirmation Email in relation to a Project are inclusive of the services of Personnel up to the number of hours of stipulated in the relevant Confirmation Email. A Confirmation Email may stipulate a number of hours in respect of a certain type of Personnel or Service (for example, video editing), in which case the Fees are inclusive of the stipulated number of hours in respect of that type of Personnel or Service.
(b) Without limiting anything in clause 6.1, if the Customer requests Visual Domain or its sub-contractors to perform work in relation to a Project or Services in excess of the relevant number of hours stipulated in the relevant Confirmation Email (whether in total or in respect of a specific type of Personnel or Service) or otherwise requests products or services in addition to, or beyond the scope of the Services as described in the relevant Confirmation Email, Visual Domain may charge the Customer for such additional services at the Hourly Rates, and the Customer must pay Visual Domain such additional amount in accordance with payment terms notified to the Customer by Visual Domain from time to time.
6.3 Changes to scheduled events
Any changes to the details of a Job (including scheduling, locations, resources, service quality levels or hours allocated) must be notified at least one week before the scheduled time for the commencement of that Job. If less than one week’s notice is provided, the Customer will be charged an additional amount equal to the greater of:
(a) all Fees relating to work already undertaken, plus the amount of any applicable Third Party Expenses, in each case in connection with the relevant Job; and
(b) if the Job is rescheduled:
7.1 Cancellation of Projects
The Customer may cancel a Project by written notice to Visual Domain. If at the time of cancellation, Visual Domain has not yet commenced work in relation to the Project, the Fees in respect of the Project will be reduced as follows:
(a) if the cancellation occurs 2 weeks or more before such work is due to commence, the Fees in respect of the Project will be reduced to the amount of any applicable Third Party Expenses in connection with the Project;
(b) all Fees relating to work already undertaken, and any applicable Third Party if the cancellation occurs more than 1 week, but less than 2 weeks before such work is due to commence, the Fees in respect of the Project will be reduced to greater of:
(c) if the cancellation occurs 1 week or less before such work is due to commence, the Fees in respect of the Project will be reduced to greater of:
7.2 Cancellation of Jobs
The Customer may cancel a Job by written notice to Visual Domain. If at the time of cancellation, Visual Domain has not yet commenced work in relation to the Job, the portion of the Fees relating to that Job will be reduced as follows:
(a) if the cancellation occurs 1 week or more before such work is due to commence, the portion of the Fees relating to that Job will be reduced to the amount of any applicable Third Party Expenses in connection with that Job; and
(b) if the cancellation occurs 1 week or more before such work is due to commence, the portion of the Fees relating to that Job will be reduced to the greater of:
(a) Where Fees (or the portion of Fees), are reduced in accordance with this clause 7, and the Customer has already paid to Visual Domain some or all of the amount by which the Fees (or a portion of the Fees) has been reduced (Reduction), Visual Domain will issue credit to the Customer for the amount of the Reduction.
(b) Such credits must be used within 12 months of the date on which the Customer paid the relevant amount to Visual Domain, or such other period as is notified to you by Visual Domain from time to time.
(c) Where the Customer paid the relevant amount to Visual Domain by applying Production Pack Credits, the credit to be issued to the Customer will be in the form of Production Pack Credits.
(d) No cash refunds are available unless Visual Domain determines otherwise in its sole discretion.
8 Intellectual Property Rights
8.1 Website IP
The Customer expressly acknowledges and agrees that:
(a) the Website and the Client Hub, their underlying source and object code, all related technology, software, content, documents, materials, text, images, logos, files, data, information, attachments and other subject matter, in any format, forming part of or connected to the Website or the Client Hub;
(b) all enhancements, modifications and derivative works of the foregoing; and
(c) all creations, inventions and Intellectual Property Rights contained or embodied within the foregoing anywhere in the world,
in each case excluding Customer Content and content of third parties (collectively, Website IP), is owned by, or licensed to, Visual Domain or its Related Parties.
8.2 Project IP
The Customer expressly acknowledges and agrees that:
(a) all Digital Assets created by Visual Domain or its Personnel for, and delivered to, the Customer in connection with a Project or Services;
(b) all content, documents, materials, text, images, logos, files, data, information, attachments and other subject matter, in any format, forming part of or connected to any of the Digital Assets described in paragraph (a);
(c) all enhancements, modifications and derivative works of the foregoing; and
(d) all creations, inventions and Intellectual Property Rights contained or embodied within the foregoing anywhere in the world,
(collectively, Project IP), is owned by, or licensed to, Visual Domain or its Related Parties.
(a) In consideration for the payment of the Fees, Visual Domain grants to the Customer a perpetual, irrevocable, royalty-free, non-exclusive, worldwide, non-transferable, non-sub-licensable licence to use, reproduce, copy, publish, communicate to the public, transmit, perform, display, adapt and make derivative works of the Project IP in respect of that Customer, in accordance with these Terms, solely in connection with the Customer’s business.
(b) The Customer:
(c) All rights not expressly granted are expressly reserved.
8.4 Talent releases
(a) The Customer represents and warrants on an ongoing basis that, unless Visual Domain otherwise expressly agrees in writing, to the extent any Customer Content, or Digital Assets created in connection with a Project or Services, contain a recording, in any material form, of the name, likeness, image, voice, sound effects, interview or performance of any individual (Featured Individual), each Featured Individual has, provided their irrevocable, unconditional written authority and consent to:
(b) Visual Domain may require that prior to providing any Services or Jobs, the Customer procures that each Featured Individual signs a document for the benefit of Visual Domain, in the form required by Visual Domain, which contains each of the authorities, consents, acknowledgments and agreements referred to in clause 8.4(a) .
9 Customer Content
(a) In consideration for Visual Domain entering into these Terms, the Customer grants to Visual Domain a perpetual, irrevocable, royalty-free, non-exclusive, worldwide, transferable, sub-licensable licence to reproduce, copy, publish, communicate to the public, transmit, perform, display, adapt and make derivative works of all Customer Content which is included in Project IP in relation to that Customer, for the purposes of:
(b) The Customer represents and warrants to Visual Domain on an ongoing basis that:
(c) The Customer represents and warrants to Visual Domain on an ongoing basis that it will abide by all applicable Laws, rules and regulations for Customer Content.
(d) Because the Customer Content is not in any way developed or provided by Visual Domain, Visual Domain will not be responsible to check or verify any Customer Content nor assess it for suitability for any purpose. Accordingly, any use of or reliance by the Customer, its Representatives or any third parties upon anything contained in the Customer Content will be at the Customer’s own risk.
10 Website and Client Hub
10.1 Manner of use
(a) The Customer must only access and use the Website and Client Hub in the manner permitted by Visual Domain from time to time. For the avoidance of doubt, in accessing or using the Website or Client Hub, the Customer must not (and must ensure that its Representatives do not):
(b) The Customer must follow all reasonable instructions that Visual Domain gives it from time to time about the use or access of the Website or Client Hub.
(a) If Visual Domain provides the Customer or its Permitted Users with (or allows the Customer or its Permitted Users to facilitate the generation of) any account, usernames and/or passwords in relation to the Client Hub, the Customer:
(b) The Customer is fully responsible and liable for all acts and omissions of its Representatives and Permitted Users in relation to the Website, Client Hub and any Customer Content.
11 General rights and obligations
11.1 Customer obligations
The Customer must:
(a) provide full and timely instructions to Visual Domain and render decisions and instructions as expeditiously as necessary in order for Visual Domain to perform Services in accordance with these Terms;
(b) to the extent relevant to Services to be provided by Visual Domain to the Customer in accordance with these Terms, provide to Visual Domain and its Representatives, in a timely manner and at no charge, any equipment, material and any information (including Customer Content), and access to the Customer’s premises and other facilities as Visual Domain may reasonably require, and ensure that such information is accurate in all material respects, and such equipment is in good working order and suitable for the purposes for which it is to be used;
(c) not infringe the Website IP or Project IP;
(d) maintain or cause to be maintained in effect with a reputable insurer, at all times while Services are being requested or provided pursuant to these Terms, the following insurance policies:
(i) a comprehensive general liability insurance against injury to persons and damage to property taking into consideration the location and requirements of each Project and Service; and
(ii) any other insurance that may be applicable to the performance of any Services under these Terms; and
(e) furnish to Visual Domain upon requests copies of the certificates of insurance in respect of each insurance policy referred to in clause 11.1(d).
11.2 Digital Assets
(a) The Customer acknowledges and agrees that Visual Domain may, from time to time, modify, adapt, use, disclose, publish (including via the Client Hub) or otherwise make available to third parties (including customers and prospective customers) all or part of the Digital Assets created by Visual Domain for its customers.
(b) The Customer irrevocably and unconditionally consents to Visual Domain, from time to time, modifying, adapting, using, disclosing, publishing (including via the Client Hub) or otherwise making available to third parties (including customers and prospective customers) all or part of the Digital Assets created by Visual Domain for the Customer in connection with a Project or Services, notwithstanding that those Digital Assets may contain Customer Content.
(c) If Visual Domain, from time to time, discloses, publishes (including via the Client Hub) or otherwise makes available to the Customer or its Representatives Digital Assets created by Visual Domain for a party other than the Customer, the Customer must, and must procure that its Representatives, treat such Digital Assets as Confidential Information for the purposes of clause 18.
(d) Nothing in this clause 11.2 shall operate to limit clause 9(a).
Visual Domain may in its absolute discretion provide all or any part of any Jobs, Services, Projects or Digital Assets through the use of one or more subcontractors.
(b) The Customer must:
(c) If any individual requests access to, deletion of, or correction of their Personal Information stored with or held by the Customer, subject to its obligations under Privacy Laws, the Customer must not direct the individual to pursue the request with Visual Domain instead of itself.
(d) The Customer expressly acknowledges that Visual Domain may be required to use, disclose or otherwise deal with Personal Information forming part of the Customer Content in accordance with its obligations under Privacy Laws and expressly consents to same.
To the extent the Customer Content from time to time includes any Personal Information, the Customer represents and warrants to Visual Domain on an ongoing basis that:
(a) its recording, collection, holding, disclosure and use of that Personal Information (including its inclusion of such Personal Information in the Customer Content and all other uses and disclosures contemplated in these Terms) is necessary for one or more of Customer’s functions or activities and complies with all Privacy Laws;
(b) it has obtained consent from all individuals to which that Personal Information relates(and/or from all people authorised under the Privacy Laws to give consent on behalf of such individuals) to:
(c) it has taken all steps required under the Privacy Laws to ensure that all individuals to which that Personal Information relates are made aware of all matters which the Privacy Laws require they be made aware of in relation to the recording, collection, holding, use and disclosure of their Personal Information;
(d) Visual Domain’s use of the Customer Content as contemplated in these Terms will not put Visual Domain in breach of the Privacy Laws;
(e) the Personal Information is accurate, complete, up to date and relevant to the Customer’s functions and activities;
(f) it has taken, and maintains external to the Client Hub, complete copies of all such Personal Information;
(g) it has not deleted any such Personal Information in contravention of the Privacy Laws; and
(h) it has taken reasonable steps to correct any such Personal Information which it has been established is inaccurate, incomplete, misleading or not up to date and has done so in accordance with the Privacy Laws.
(a) Except as otherwise required by Law, all Services, the Website and the Client Hub are provided ‘as is’ and ‘as available’ without any express or implied representation, warranty or guarantee of any kind.
(b) Your (and your Representatives’) access to the Website or Client Hub may be suspended or restricted occasionally to allow for maintenance, repairs, upgrades, or the introduction of new features, functionality, facilities or services. Visual Domain will always try to limit the frequency and duration of any planned disruption, but will not be liable to you if for any reason the Website or Client Hub are unavailable at any time or for any period. You acknowledge that access and use of the Website, Client Hub or any Services may be interfered with by numerous factors outside of our control.
(c) We cannot ensure that the Customer Content you upload onto our systems will never be accessed without our consent or that our systems are impenetrable.
(d) We are not responsible for loss of or corruption of any data that is entered or uploaded by you or by a third party (including your Representatives) in relation to your access to or use of the Website, Client Hub or any Services.
(e) You are responsible for taking and maintaining, external to the Client Hub, copies of all data and content on the Client Hub to which you require access. To the extent permitted by Law, we make no representations, and give no warranties or guarantees, express or implied, about the availability of such data and content.
(f) We cannot ensure that the Website and Client Hub, and any files you download from either of them, will be free of worms, viruses, trojan horses, malware or any other disabling code or harmful components. While we will use reasonable endeavours to prevent the Website and Client Hub from containing or spreading viruses or other malicious code, you are responsible for ensuring that computers and other devices used to access the Website or Client Hub run up-to-date anti-virus software as a precaution, and that you virus-check all materials downloaded from the Website or Client Hub and regularly check for the presence of viruses and other malicious code.
(g) We will not be liable for any loss or damage caused by interference with or damage to your computer systems in connection with the use of the Services, Website or Client Hub, or by a virus or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Services, Website or Client Hub or to your downloading of any content from them.
(h) We cannot ensure that the Website or Client Hub will be free from defects or error or will operate in any particular way. To the extent permitted by law, we disclaim all liability for any loss or damage, of any nature whatsoever, which may be suffered or incurred by any person as a result of any defect in, or error in the operation or functionality of, the Website or Client Hub (including any part of their underlying code or related technology).
13.2 Limitation of liability
(a) You agree that, to the maximum extent permitted by Law, we and our Representatives are not liable to you or anyone else for any loss or damage (including any direct, indirect, special or consequential loss) whether in contract, tort (including negligence), breach of statutory duty or otherwise arising out of, or in connection with:
(b) Subject to clause 14 and to the maximum extent permitted by law, our maximum aggregate liability for all claims related to the Website, Client Hub and any Services and the use thereof by you and your Representatives, will be an amount not exceeding the lesser of the aggregate amount of Fees paid to us by you in respect of the 12 month period preceding your claim and $10,000. This limit applies collectively to us and our Representatives.
(c) Visual Domain will not be liable for special, incidental, exemplary, indirect or consequential loss or damages, or lost profits, business, value, revenue, goodwill or anticipated savings in any circumstances.
(d) You agree not to bring legal action or make a claim against us or any of our Representatives arising out of or related to the Website, Client Hub or any Services more than two years after the cause of action arose.
14 Severance and Consumer Laws
(a) The Customer acknowledges and agrees that:
(b) The Customer represents and warrants to Visual Domain on an ongoing basis that it is entering into these Terms, and purchases Services, for the purposes of its business and that, to the maximum extent permitted by Law, any Consumer Laws shall not apply to these Terms.
(c) If you constitute a consumer under the Consumer Laws while using the Website, Client Hub or any Services, nothing in these Terms is intended to remove your rights under the Consumer Laws, including to statutory guarantees that may apply to the Website, Client Hub or any Services. If we are entitled to limit the remedies available to you for breach of such guarantees, we expressly limit our liability to either supplying access to the affected Services again or paying the cost of supplying access to those Services again.
15 Suspension and termination
(a) Visual Domain may immediately suspend or terminate the Customer’s access (and the access of its Representatives) to the Client Hub and any Services in circumstances where:
(b) In addition, if the Customer or any of its Representatives breaches any provision of these Terms, Visual Domain may commence proceedings against the Customer for any loss or damage Visual Domain suffers as a result of the breach.
(c) The Customer may terminate its (and, consequently, its Representatives’) access to the Client Hub and any Services at any time with 90 days notice by sending an email to Visual Domain, in accordance with clause 20.10, requesting closure of its account with Visual Domain. On termination the Customer will not receive a refund of any Fees, charges or other amounts already paid to Visual Domain, unless it has terminated as a result of Visual Domain changing these Terms in a way that has a materially detrimental effect on the Customer. In that case:
16 Consequences of termination
(a) If the Customer’s (or its Representatives’) access to the Client Hub or any Services is terminated, all of the Customer’s rights to use the Client Hub and those Services will immediately end, and the Customer will at its expense promptly return, or at Visual Domain’s election destroy, any copies of the Digital Assets and other materials relating to the Services and any of Visual Domain’s Confidential Information that are either in the Customer’s possession or under the Customer’s control.
(b) Termination of the Customer’s (or its Representatives’) access to the Client Hub or any Services will not act as a waiver of any breach of these Terms and will not act as a release of either party from any liability for breach of such party’s obligations under these Terms.
(c) Termination of the Customer’s (or its Representatives’) access to the Client Hub or any Services will be without prejudice to any other right or remedy that Visual Domain may have, and will not relieve either party of any obligation or liability which arose prior to the effective date of such termination.
(d) The following provision of this document will survive any termination of the Customer’s (or its Representatives’) access to the Client Hub or any Services: clauses 2; 8; 9; 11; 12; 13; 14; 16; 17; 18; 19 and 20, and any other provisions of these Terms that by their nature should survive such termination.
The Customer will indemnify and keep indemnified Visual Domain and its Representatives, and each of them, from and against all liabilities, damages, claims, proceedings, actions, demands, costs, losses and expenses incurred by any of them directly or indirectly arising out of or in connection with:
(a) any breach or non-observance of any of these Terms;
(b) any breach of a warranty or representation contained in these Terms;
(c) any breach, or alleged breach, of intellectual or other proprietary rights or interests of third parties; and/or
(d) any claim made against Visual Domain by any party, arising out of or in connection with any breach of these Terms or other act or omission by the Customer or its Representatives, including in relation to any Services or Customer Content.
(a) Subject to this clause 18, each party:
(b) Each party must not disclose Confidential Information to any person except where such disclosure:
(c) Clauses 18(a) and 18(b) do not apply to information which:
(d) The parties will each take any action that is necessary to prevent or remedy any breach of that party’s confidentiality obligations or other unauthorised disclosure of the other party’s Confidential Information.
19 Goods and services tax
(a) In this clause 19, a word or expression defined in the GST Act has the meaning given in that act.
(b) All consideration provided under these Terms is exclusive of GST, unless it is expressed to be GST-inclusive.
(c) Where a party (Provider) makes a supply to another party (Recipient) under or in connection with these Terms that is a taxable supply, the Recipient must pay to Provider an additional amount equal to the GST payable on the supply (unless the consideration for that taxable supply is expressly stated to include GST). The additional amount must be paid by the Recipient at the later of the following:
(d) If, under or in connection with these Terms, Provider has an adjustment for a supply under the GST Act that varies the amount of GST payable by Provider, Provider will adjust the amount payable by the Recipient to take account of the varied GST amount and an adjustment note must be provided to the Recipient.
(e) Subject to an express provision in these Terms to the contrary, any payment, amount, reimbursement or indemnity required to be made to a party (Payee) under these Terms that includes any calculation by reference to a cost, expense, Liability or other amount paid or payable by the Payee to a third party (Expense) will be calculated by reference to that Expense inclusive of GST, less the amount of any input tax credit which the Payee is entitled to claim on that Expense.
(f) If part of a supply is a separate supply under the GST Law (including for the purpose of attributing GST payable to tax periods), that part is a separate supply for the purposes of this clause 19.
(g) Where the context requires, a reference to the Provider, the Recipient or the Payee in this clause 19 includes the representative member of a GST Group of which the Provider, the Recipient or the Payee respectively is a member.
(a) The Customer cannot assign, sub-contract or otherwise transfer its account with Visual Domain, any Services it or its Representatives access or use, or any of its rights or obligations under these Terms to any person without the prior written consent of Visual Domain.
(b) Visual Domain may assign or otherwise transfer any or all of its rights and obligations under these Terms by providing the Customer with reasonable notice in writing.
20.2 Failure to perform or delay
Visual Domain will not be liable for any failure to perform or delay in performing its obligations if the failure or delay results from circumstances beyond the control of Visual Domain.
20.3 Governing law and jurisdiction
This document is governed by the law of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of its courts and courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts on any basis.
If there is any inconsistency between these Terms and a Confirmation Email, these Terms will prevail to the extent of the inconsistency.
We reserve the right to change these Terms at any time by providing at least 30 days’ notice. This may include changes needed to reflect changes to the Law, changes to our terms of trade, or changes to the Website or Client Hub, or to their features or functionality. The amended Terms will only become effective following the above notice period. If you disagree with the revised Terms, you may elect to terminate your access to the Client Hub or any Services in accordance with clause 15(c). Your continued use of the Website, Client Hub or any Services constitutes your acceptance of these Terms as amended from time to time.