Standard Form of Agreement (SFOA)
These terms and conditions apply to customers (Customer) of The Shooting Star Picture Company T/As Star Media Platinum {Star Media). By placing an order with Star Media by executing Star Media’s Order Form, the Customer is deemed to have accepted these terms and conditions.
Advertisement means the advertisement attached to or described in the Order Form. Fee means all fee(s), charges and costs payable to Star Media for the preparation and exhibition of the Advertisement. as specified in the Order Form, or otherwise notified to the Customer following the Customer’s completion of the Order Form, including, but not limited to, any variations under clauses 1 and 2 below. Insolvency Event means (a) the Customer ceases to (or is unable to) pay its creditors in the ordinary course of business. or announces its intention to do so. or states that it is insolvent: and/or (b) a receiver, receiver and manager, administrator, liquidator or similar officer is appointed to any or any part of the Customer’s assets; and/or (c) the Customer enters into, or resolves to enter into, a scheme or arrangement, compromise or composition with or assignment for the benefit of all or any class of its creditors, or it proposes a reorganisation. moratorium or other administration involving any of its creditors (save for voluntary reorganisation whilst solvent); and/or (d) a resolution is passed or an application to a court is made for the winding up, dissolution, official management or administration of the Customer; and/or (e) anything having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction. Intellectual Property Rights means the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar property whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets. knowhow or confidential information throughout the word for the full period of the rights and all renewals and extensions. Order Form means the order form, provided by Star Media and completed by the Customer in respect of the preparation and exhibition of the Advertisement by Star Media. Trade Identification means corporate and business names. brand names. trademarks, services marks. logos and other trade indicia.
1. Orders
1.1 If the Customer requires Star Media to produce the Advertisement then the Customer must complete and submit the Order Form,, 1.2 Star Media will notify the Customer of the Fees for preparing and exhibiting the Advertisement. based on the information provided by the Customer in the Order Form,, 1.3 The Fee is based on the Customer supplying any required material and information (including acceptance or amendment of proofs) to Star Media by the Material Deadline Date specified in the Order Form,. Star Media reserves the right to make additional charge(s) j”additional charges”) for inadequate material supplied to Star Media, material supplied late or any corrections requested by the Customer. 1.4 If the Customer varies the order after Star Media issues an invoice for the order or after Star Media has accepted the order, Star Media reserves the right to vary the Fee and present an additional invoice for any additional charges incurred by the variation(s). 1.5 The Fee must be paid by the Customer in the amounts and at the times set out in the Order Form. Additional charges incurred and notified to the Customer constitute part of the Fee for that month and are payable at the same time and in the same manner as the next monthly installment of the Fee.
2. Delivery of Materials
2.1 The Customer must supply to Star Media in accordance with the Order Form, all of the materials required by Star Media to produce the Advertisement and/or provide the Advertisement to cinemas for exhibition, including. where applicable. text, graphics and audio materials 2.2 If the material supplied is not in a medium or form suitable for Star Media to complete the order. or for cinemas to exhibit the Advertisement. Star Media will notify the Customer. If the Customer does not provide the material in a suitable form, within two weeks prior to the material deadline specified in the Order Form. Star Media may in its discretion take all necessary steps to ensure that the materials are in a suitable form. Star Media may charge for the time and cost of any such work os if the Customer had asked for Star Media to perform such production work for the Customer.
3. Production of Advertisement
3.1 Proofs or drafts of the Advertisement will not be supplied to the Customer unless requested by the Customer in the Order Form,. Star Media is not responsible for production errors if: (a) proofs or drafts are not requested by the Customer; (b) the Advertisement is finalised with the Customer’s approval; or (c) changes are communicated orally. 3.2 Where proofs are supplied to the Customer, Star Media will assume that the proofs are satisfactory with no production errors unless the Customer notifies Star Media in writing within one {l) week {or such reasonable shorter period as notified to the Customer by Star Media in writing). 3.3 Star Media will own all Intellectual Property Rights in the Advertisement and/or other works or materials created by Star Media pursuant to the Customer’s order. Nothing in these terms and conditions assigns to Star Media any Intellectual Property Rights in any material supplied to Star Media by the Customer. Each party shall retain all rights in and/or to that party’s Trade Identification.
4. Exhibition of Advertisement
4.1 Star Media will use its best endeavours to arrange for the Advertisement to be exhibited in accordance with the Order Form. or to provide equivalent exhibition of the Advertisement at another time. In the event that the requested location becomes unavailable Star Media will notify the Customer of a suitable alternative location. 4.2 The Customer acknowledges that Star Media is not liable for any action, default, omission or neglect of any cinema management or staff which results in the Advertisement not being exhibited as requested by the Customer and inadvertent, non-habitual failures by a cinema to exhibit the Advertisement shall not constitute a breach of this agreement. 4.3 If this contract is terminated or cancelled in accordance with clause 6, below, the Advertisement will be immediately withdrawn from exhibition.
5. Payment
5.1 Payment to Star Media will be due in accordance with the Order Form, based on the debit dates advised at the time of booking. Notwithstanding the Customer has failed to comply with the Delivery and Production terms and dates in clauses 2 & 3, above, the Fee remains due and fully payable on and from each debit date. 5.2 Payment of any part of the Fee which is due will not be deemed to have been made until Star Media is in receipt of the full amount of such part of the Fee {including any amount for GST and any amount caused by a variation to the order) in cleared funds. 5.3 The Customer must not off-set any amount owed to the Customer by Star Media or its related companies against any amount owed to Star Media by the Customer. 5.4 If payment of any part of the Fee is not made when due. the following will apply: (a) the amount outstanding is immediately due and payable on the dates set out in the Order Fom, or otherwise agreed by the parties in writing; {b) interest of 10% per annum. calculated daily, will be charged on all amounts unpaid from the due date until payment is made; (c) any administration or bank charges which Star Media incurs as a result of the Customer’s failure to pay will be payable by the Customer in addition to the Fee; (d) all incomplete production and any exhibition of the Advertisement will be suspended until the amount payable, including GST and interest, is paid in full; (e) Star Media may terminate any other orders made by the Customer or impose additional reasonable conditions of payment on the Customer before production or exhibition of such other orders; (f) in addition to any other rights available to Star Media legal proceedings may be instituted for the recovery of the unpaid amount, bank or other administration charges and the costs of such recovery. 5.5 In the event of any dispute of any of the costs or charges by Star Media, the Customer must first make full payment of any outstanding proportion of the Fee.
6. Termination & Cancellation Fees
6.1 This agreement may be terminated immediately by Star Media by written notice to the Customer in the event that the Customer suffers an Insolvency Event, the Customer fails to pay the Fee {or any part of the Fee) when due, Star Media has reason to believe the Customer is unable to pay the Fee (or part of the Fee) when due and/or the Customer is otherwise in breach of the Order Form or these terms and conditions. 6.2 If the contract is cancelled by Star Media for any of the reasons set out in clause 6. 1 or for any other reason resulting from the act or omission of the Customer. or if the contract is cancelled by the Customer by written notice to Star Media for any reason other than Star Media’s breach of the Order Form, or these terms and conditions. a cancellation fee equal to the balance of the total value of the order will be applicable. The balance of the total value of the order shall mean any part of the total Fee not invoiced as at the date of cancellation. The cancellation fee is due and payable immediately from the time of cancellation. Interest is payable in respect of any such cancellation fee. in accordance with 5.4{b) above. For the avoidance of doubt the cancellation fee is payable in addition to any part of the Fee previously invoiced by Star Media and then outstanding.
7. Warranties
7.1 The Customer warrants that: (a) the Customer owns the Intellectual Property Rights in the materials and information provided to Star Media for inclusion in the Advertisement and/or is fully entitled to use such materials and information and authorise Star Media to use such materials and information within the Advertisement and exploit the Advertisement in the manner contemplated by the order and these terms and conditions; {bl nothing in the materials provided to Star Media to comprise the Advertisement will infringe the Intellectual Property Rights, moral rights or any other rights of any person; {c) where Trade Identification or any entity’s or person’s name, image, likeness or character is used in the Advertisement. the Customer has the consent of such entity and/or person to use such Trade Identification, name, image, likeness or character in that manner; {d) the broadcast and/or use of the Advertisement in accordance with the Customer’s instructions shall not result in any financial or other liability to Star Media including in respect of the use of the materials comprising the Advertisement; (e) the materials provided to Star Media to comprise the Advertisement do not contain any material which is obscene, defamatory or illegal; and {f) the Advertisement and the exhibition of the Advertisement in accordance with the order placed by the Customer and these terms and conditions does not breach any law or regulation. 7.2 The Customer hereby indemnifies Star Media and the Customer agrees to keep Star Media indemnified in respect of any and all expenses. loss and/or damage (including legal expenses) arising out of or connected with: (a) the exhibition or other use of the Advertisement in accordance with the order placed by the Customer and these terms and conditions; and/or {b) any breach by the Customer of the Customer’s warranties, representations or agreements whether made in the Order Form. in these terms and conditions or in the Customer’s instructions to Star Media.
8. Liability of Star Media
8.1 Star Media is not liable for any delay in the perfomance of any of its obligations caused by a circumstance which by the exercise of its best efforts. Star Media is unable to control including, without limitation, an act of God, natural disaster. war declared or undeclared, blockade, strike, civil disturbance, lightning, fire, earthquake, explosion, governmental or quasi-governmental restraint. expropriation, prohibition, intervention, inability or delay in obtaining governmental or quasi-governmental approvals, consents. permits. licences, authorities or allocations. If such an event occurs, Star Media will notify the Customer and Star Media’s obligations will be suspended for the duration of the event. 8.2 Star Media does not make any and, subject to the following provisions of this clause, excludes all warranties, terms, conditions or undertakings, whether express or implied, whether written or oral, statutory or otherwise including any implied warranty or merchantability or fitness for a particular purpose or likely effectiveness of and/or in respect of the Advertisement. To the full extent permitted by applicable law, any conditions or warranties imposed by applicable law are hereby excluded and insofar as liability under or pursuant to such applicable law may not be excluded, such liability is limited, at the exclusive option of Star Media, to (l) the production of the Advertisement again: or (2) the payment to the Customer of the cost of having the production of the Advertisement carried out again: and/or (3) a refund of that part of the Fee which represents the exhibition fee. 8.3 Without limiting the generality of clause 8.2. the Customer acknowledges that. to the full extent permitted by applicable law, Star Media is not liable for any special. indirect or consequential damages (including loss of profit or loss of business) arising under or pursuant to the Order Form and/or these terms and conditions, or the acts or omissions of Star Media.
9. Miscellaneous
9.1 Each clause in these terms and conditions must be read down to the extent necessary to be valid. If a clause cannot be read down to that extent. it shall be deemed severed. Any such reading down or severance shall not affect the remainder of the terms and conditions and the parties shall agree necessary substituted wording (if any) in good faith. 9.2 Any waiver of any clause of these terms and conditions is only valid if made in writing and signed by Star Media. 9 .3 Any variation of these terms and conditions must be in writing and signed by Star Media. 9 .4 The governing law of these terms and conditions is and the terms and conditions shall be construed in accordance with the law of New South Wales, Australia.
10. Direct Debit Request (DDR)
l 0.1 Following receipt of the Customer’s DDR. Star Media will initiate direct debit processing of the Fees due to it from the Customer on the days, or nearest business day to the days, agreed by both parties. 10.2 All debits will be processed immediately on or from the day mentioned on the Order Form and/or on each invoice is stated to be due, irrespective of confirmation of receipt by the Customer. 10.3 In the event that Star Media proposes to vary any terms of this DOR Service Agreement. it will provide the Customer with 14 day’s notice of its intention to do so. I 0.4 If the Customer wishes to vary, defer, suspend or stop the direct debit arrangement described herein, the Customer should contact Star Media on {02) 9660 6969. If the Customer wishes to cancel a DOR the Customer must give Star Media at least 10 business days notice. 10.5 If the Customer wishes to dispute any debit item, the Customer should contact Star Media on (02) 9660 6969 or provide full details in writing to Star Media, Level 2, 233-235 Bulwara Road, Ultimo NSW 2007. 10.6 Star Media will use its best endeavours to ensure that direct debit disputes are resolved within 14 business days of receipt of notice of the dispute from the Customer. 10.7 The Customer is responsible for ensuring that sufficient clear funds are available in the Customer’s nominated account on the processing date described in clause 10.l to facilitate the payment of debit items in accordance with the Customer’s DDR. 10.8 If debit items are unpaid by the Customer’s financial institution, the Customer will be liable for any dishonour fees charged by that financial institution. Star Media has no liability in this regard. Star Media shall charge the Customer $30 in each instance that fees are levied against Star Media by the bank. in respect of any failed direct debit (including each attempt at such direct debit). 10.9 Star Media will use its best endeavours to protect the privacy of the Customer’s personal information provided in respect of the direct debit payments however the Customer acknowledges and agrees that some personal information may need to be disclosed by Star Media to financial institutions in the event of a direct debit dispute or to provide confirmation in relation to a DOR.
SFOA v.150515
