- These terms and conditions (the “Conditions”) supersede all previous conditions agreed to,including any terms and conditions of the Client with Visualise It and shall not be
- Superseded, adjusted, varied or waived other than by the express written consent of Visualise It as a trading entity of the Odeon Pty Ltd.
- In these Conditions the following definitions shall apply and are clearly stated:
- “Agreement” means this agreement entered into for the provision of Goods and Services by Visualise It to the Client and includes any document which varies, supplements, replaces, assigns or novates client agreement
- “Client”means the party contracting with the Visualise It to acquire and or facilitate specific Goods and Services:
- Seller means Visualise It trading as a trading entity of Odeon Pty Ltd Address Sunshine Melbourne VIC 3020 – Phone- +61 3 9311 5533 Email –email@example.com Web –https://www.visualise-it.com.au/
- “Goods and Services” means all goods (including intermediate or finished goods) and services including print, mailing, data processing, data formatting, pressure sealing, project management and design services, website development, website hosting;
- “Preliminary Work” means all work done in the pre-project and preparatory stages including design, data development, proofing, communication, resource allocation and project scoping;
- “Electronic File” means any text, illustration, raw data or other matter supplied or produced by either party in digitised form on disc, through a modem or via email or any other communication link;
- “Intellectual Property” means all copyright, patents, trademarks and trade names, design rights, inventions data know-how and other intellectual property including applications for registration and the right to make such applications;
- “Quotation”means a written submission by Visualise It to the Client clearly reflective of the said Good and Services being offered, inclusive of costs, resources, instructions and delivery.
- A reference to legislation or a legislative provision includes any statutory modification, or substitution of that legislation or legislative provision;
- “GST” means the Goods and Services tax as defined in as (Goods and Services Tax) Act 1999 and as amended;
- Any reference to a person includes a natural person, corporation, statutory corporation, partnership or any other organisation or legal entity;
- These conditions apply to every contact and resource used for the sale and development of Good or Services by the Visualise It to the Client, unless Visualise It agrees in writing otherwise.
- Any written quotation provided by Visualise It to the Client concerning the proposed supply of Goods and Services will be valid for (30) days, from specified date of the Quotation.
- Quotations are based on the cost of production prevailing at the date of the Quotation, and are subject to variation on or after acceptance of any order placed in reliance upon such Quotation, to meet any rise or fall in such costs incurred, including a request from the Client to vary the order. Visualise It will notify the Client of any such variation either in writing or re-submission of Quotation, clearly outlining the process variations and costs.
- This agreement is accepted by the Client once an order is place with Visualise It for specific Goods or Services and or approval of Quotation. No purported cancelation or suspension of an order(or any part of an order) by the Client is binding on Visualise It, after that order has been accepted by Visualise It.
- This agreement is accepted by Visualise It when Visualise It confirms its acceptance of an order in writing or electronic means or provides the Client with the Goods or Services. A Quotation is subject to withdrawal or variation by Visualise It at any time prior to Visualise It acceptance of an order by notice in writing, to the Client.
- The Client shall inspect the Goods and Services on delivery and shall within (7) days of delivery, notify the Visualise It of any alleged defects, shortages, damages, quality issues that do not comply with the original Quotation and Agreement.
- The Good and Services shall unless otherwise agreed in writing will be delivered to the Client at theclearly defined Client’s address, depot or store as advised by the Client in writing prior to despatch and the Client shall make all arrangements necessary to take delivery of the Goods and Services including off-loading, further transportation and storage whenever tendered for delivery.
- Visualise It may deliver the Goods and Services directly, to a third party location/s or clearly defined other location/s, outside of the Client’s premises, based on the Quotation or written submission. Each delivery point shall be invoiced and paid for in accordance with the Terms and Conditions or as agreed upon.
- It is the Client’s usual practice to specify the delivery address in writing but, unless so specified or otherwise agreed in writing, the price of the Good and Services is ex-works and delivery will be charged extra.
4. Payment Terms & Cost Information:
- Visualise It standard payment option is EFT with payment expected in full within (30) days of delivery and or issue of invoice or unless otherwise deemed in writing by Visualise It. Other payment terms may be offered at the discretion of Visualise It and are subject to a satisfactory credit control and pre-approval process. Failure to meet this requirement will result in termination of the agreement.
- Payment by cheque is not deemed to have been made until the proceeds of the cheque have cleared, by the appropriate and issuing banking of financial institution.
- Prices quoted, whether in a price list, by written Quotation or verbally, for the supply of Goods and Services will include GST and any other taxes or duties imposed on or in relation to the Goods and Services.
- Estimates are based on Visualise It current costs of production and, unless otherwise agreed in writing, are subject to amendment to meet any rise or fall in such costs that occur prior to delivery.
- Estimates are given exclusive of all taxes and the Client will pay (in addition to the price) all GST and other taxes applicable.
- All Goods and Services provided shall be chargeable including all or any Preliminary Work whether or not the Client agrees to it being carried forward to production.
- Any additional Good and Services required by reason of the Client supplying inadequate copy, incomplete or incorrect instructions or insufficient material or late delivery of any of them shall be chargeable.
- If the Good and Services are suspended or delayed for any reason other than the default of the Client then Visualise It shall be entitled to charge for storage and for loss or wastage of materials and other resources to the extent they cannot otherwise be used. In the event that such suspension or delay extends for more than (30) days Visualise It shall be entitled to immediate payment for all Good and Services supplied, including materials and all additional costs.
- If the Client does not pay an invoice (in full) by the due date in relation to this agreement, then all moneys which would become payable by the Client to Visualise It at a later date on any account, will become immediately due and payable without the requirement of any notice to the Client. Visu-alise It may, without prejudice to any other remedy available to Visualise It, charge the Client interest on any sum due at the prevailing rate under the Penalty Interest Rates Act 1983 (Vic) plus(10) per cent for the period from the due date until the date of payment in full.
- The Client shall also indemnify Visualise It from and against all legal and other costs and fees incurred by or on behalf of Visualise It in connection with the collection of any outstanding indebtedness owed by the Client to Visualise It, relative to this Agreement and the supply of Goods and Services.
- By notice in writing to the Client,Visualise It can terminate this Agreement or any contract with the Client within (14) days of the Quotation issue date, without affecting Visualise It accrued rights under any contract, agreement or prior arrangement.
5. Credit Facilities:
- Credit facilities shall only be granted to applicants who complete the Client’s credit account application form and who satisfy Visualise It credit criteria. Such facilities may be withdrawn by Visualise It at any time by giving (7) days notice in which event all invoices (whether or not otherwise due and payable) shall become due and payable immediately.
- Electronic Files. In the form of artwork, raw data, resources and anything that signifies a project
resource in electronic format or as stipulated in writing by the Client.
- The Client shall maintain a copy of all Electronic Files provided by the Client to the Visualise It. Visualise It shall not be responsible for checking the accuracy of supplied input from any Electronic File unless otherwise agreed in writing or specified clearly in project terms.
- If an Electronic File is not suitable for outputting on equipment normally adequate for such purposes without adjustment or other corrective action Visualise It may either reject the file or charge for any additional costs incurred in taking such corrective action in each case without prejudice to its rights to payment for work done and materials purchased.
- The Client indemnifies and agrees to keep Visualise It indemnified against all liability,losses or expenses incurred by Visualise It in relation to, or in any way directly or indirectly connected with, the use of Client materials by Visualise It, during the course of providing the agreed to Goods and Services..
- Other Materials.
- Where the content of the Good and Services is generated by Visualise It it may at its absolute discretion (including in order to protect its Intellectual Property) replace any material supplied by the Client with materials of similar or better quality.
- Visualise It may reject any Electronic Files or other materials supplied or specified by or on behalf of the Client in which Visualise It considers unsuitable for the intended purpose and any additional costs incurred shall be chargeable except to the extent that such additional costs could have been avoided but for unreasonable delay by Visualise It in ascertaining the suitability of the materials.
- Where materials are so supplied or specified by the Client and that Visualise It so advises the Client of their unsuitability and that the Client instructs Visualise It to proceed anyway in writing, then Visualise It shall have no liability for the quality and of any outcome of the said Goods and Services, provided.
- Quantities of materials supplied by the Client shall be adequate to cover normal spoilage and any costs incurred as a result of shortages, including re-starting jobs and duplicating masters will be chargeable.
- Risk & Storage.
- All property supplied to Visualise It by or on behalf of the Client shall, while it is in the possession of Visualise It or in transit to or from Visualise It, be deemed to be at the Client’s risk unless otherwise agreed in writing.
- Visualise It shall be entitled to make reasonable charges for the storage of any property supplied by or on behalf of the Client before receipt of the order (in sufficient detail to commence the supply of Goods and Services) or after notification to the Client of completion of the Goods and Services
- The Client warrants to Visualise It that the Client owns or has absolute rights to use all Intellectual Property and/or other proprietary interests in all materials (including Electronic Files) supplied by or on behalf of the Client and shall indemnify Visualise It with respect to any and all claims, costs and expenses arising from a breach or infringement, to the same.
- Finished Goods.
- Risk in the delivery of all Goods and Services shall pass to the Client on despatch from Visu-alise It registered office and no liability will be presented to Visualise It for any damage, loss, failed delivery, partial delivery, quality issue and theft during transit of the specified Goods and Services.
- On completion of the said Goods and Services , Visualise It will store the Good and Services with all relevant materials, resources and property for a maximum of one month after which time Visualise It may destroy the stated Good and Services, by giving written(14)days notice to the Client.
7. Proofs, Variations& Approvals:
- The provision of Good and Services undertaken by Visualise It on the basis that proofs will be provided, diligently checked by the Client and approved prior to production of all Goods and Services agreed to and Visualise It shall not be liable for any errors (including errors introduced or missed by the Client) not corrected by the Client or where the Client has been so provided Visua-lise It with pre-approved proofs.
- Alterations required by the Client (except to the extent caused by the default of Visualise It) and additional proofs necessitated thereby shall be chargeable. To the extent that style, type or lay-out is left to Visualise It judgement changes therefrom made by the Client shall be chargeable.
- Where the Client waives any requirement to examine proofs Visualise It shall not be liable for any errors in the finished Goods and Services and shall be indemnified by the Client against all resulting losses, from such waiver.
- Colour proofs: due to differences in equipment, paper, inks and other conditions between colour proofing and production runs it is hereby agreed and accepted by the Client that a reasonable variation in colour between the proofs and the completed job will be acceptable (unless otherwise specifically agreed in writing).
- Data documents and electronic proofs: will be provided in accordance to the specifications of the project and in line with pre-determined data formats and templates, as supplied by the Client. It is hereby accepted by the Client that any variation in formatting, alignment and quality between the signed and approved proofs and the completed Good and Services will be subject to a re-print by Visualise It of the affected Good and Services, with no additional cost to the Client.
- Variations in quantity: estimates of quantity are conditional upon margins of 5% for the provision of Goods and Services is being allowed for “overs” or “unders” which will be chargeable or deductible, unless otherwise agreed in writing.
- Visualise It may at any time change the specification of the Good and Services as required to comply with any applicable safety or statutory requirements or which do not materially impair the function of the Goods and Services provided.
- All implied and express terms, conditions and warranties relating to quality and/or fitness for the purpose of provisioning the said Goods and Services exclude whether made by Visualise It or its servants, contractors, employees, agents or otherwise.
- A Client will be required to sign off and approve all proof/s or document/s submitted by Visualise It to reflect the exact accuracy and requirements of the said Good and Services. The representing proof/s will signify confirmation and an Agreement to proceed and to allow Visualise It to facilitate and provision of the said Goods and Services.
8. Data Services & Protection:
- Data related Good and Services will be performed within the strict guidelines and requirements, as stipulated by the Client in writing, clearly outlining the project scope, formats, layouts and business rules.
- All data sent to Visualise It from the Client must be done so securely and protected in a manner which ensures complete security and access to the secure file/s by Visualise It. By using third party applications, software, systems, servers or hardware to secure the file, Visualise It does not take any responsibility for cause that may lead to damage, corruption or disclosure of secure data to any party, other than Visualise It or designated contractors.
- The Client warrants to Visualise It that it has the absolute right to provide the personal data (if any) contained in materials supplied to the Seller in accordance with this contract and will indemnify Visualise It from and against all claims, costs and expenses arising from any breach of this warranty or data protection legislation by the Client (including the cost of complying with any requests for information by third parties).
- Any personal data may be stored by Visualise It providing its services to the Client but it is the practice of Visualise It to destroy such data on completion of the contract and or as specified in writing by the Client, requesting data be securely stored for a designated period.
- Any data being sent from a third party will be deemed as receipt of data direct from the Client and Visualise It takes no responsibility for the loss, breach or distortion of such data, received from a third party. The Client will indemnify Visualise It of all liability and responsibility, should such a data breach take place
- Visualise It is bound by the Privacy Act 1988 and takes steps to ensure that all personal information obtained in connection with the Client will be appropriately collected, stored, used, disclosed, deleted and transferred in accordance with the Privacy Act 1988. Such information may be accessed by request to Visualise It in accordance with the Privacy Act 1988. The Client must also comply with the Privacy Act 1988 in connection with any personal information supplied to Visualise
It by the Client in connection with this Agreement.
- The Client acknowledges that it has read and fully understood these Terms and Conditions including specifically all clauses relating to delivery, risk, storage, data and exclusion of liability and acknowledges that it should insure such risks as it deems appropriate in all the circumstances and
in any event.
10. Consent & Commencement:
- Subject to any rights for early termination by either Visualise It or the Client, refer to clauses (12.1 & 12.2) this Agreement commences from the specific date on the Quotation or by writing confirming acceptance of such Quotation, to which this commencement date will prevail, based on the written confirmation.
- The Client shall be deemed to have accepted the Good and Services upon delivery. The Client shall inspect all the Good and Services within (48) hours of delivery and shall within (72) hours notify Visualise It of any defects or if the Goods and Services are not in accordance with the Agreement and set criteria in the Quotation.
- In the case of damage, delay or loss of Good and Services in transit or of non-delivery the Client shall so notify Visualise It and the courier within (72) hours of delivery (or, in the case on nondelivery, within (72) hours of notification of despatch) and any claim must be made in writing to Visual-ise It and the courier within (5) days of delivery (or, in the case of non-delivery, within (7) days of notification of despatch).
- If the Client properly rejects any Goods and Services which is not in accordance with the contract
or is defective the Client shall nonetheless pay in full for all the Goods and Services supplied unless
- The Client promptly notifies Visualise It of such rejection in accordance and returns all such Good and Services to Visualise It within (14) days of delivery (in each case time being of the essence).
- Visualise It shall not be liable in respect of any claim for damage, delay or loss of Good and Services in transit or of non-delivery unless the Client promptly notifies Visualise It and returns all such Good and Services (except in the case of non-delivery) to Visualise It within (14) days of delivery (in each case time being of the essence).
11. Liability and Limitation:
- Visualise It shall be under no liability whatever to the Client for any consequential or indirect loss and\or expense (including loss of turnover and profit) suffered by the Client arising out of a breach of this contract or negligence by Visualise It.
- In the event of a breach of this contract or negligence by Visualise It the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of Visualise It exceed the price of the said Goods and Services.
- Visualise It shall be under no liability whatever in respect of the following which are hereby expressly excluded, except insofar as such exclusions may be unlawful:
- For any injury, damage of any kind or nature, direct, indirect, consequential or contingent to personal property howsoever caused;
- For any costs incurred by the Client without the prior written approval of Visualise It to repair, replace, or carry out any work on any of the said Goods and Services, defective or otherwise;
- For any other damage, losses and/or costs (including loss of Good and Services or any delays, loss arising from delay or due to or incurred by way of labour supplies, substitute purchases, liabilities to customers and third parties and all other such losses of any nature) whether direct or indirect and whether or not resulting from or contributed to or aggravated
by the default or negligence of Visualise It, or its servants, contractors, employees or agents or by any defect in the said Goods and Services.
- Where Visualise It offers to replace defective Goods and Services, the Client must accept such an offer unless it can show clear and reasonable cause for refusing to do so, in writing within (14) of such offer. If the Client opts to have the said Goods and Services re-done by any third party without notifying Visualise It in writing then the Client automatically revokes his/her right to any remedies from Visualise It including but not limited to the right to a credit/refund of the price, as per the Quotation.
- Where the Goods and Services are forwarded by or on behalf of the Client to a third party for further processing the Client, it is the responsibility of the Client to inspect and approve the said Goods and Services (and will be deemed to have so inspected and approved it) prior to forwarding. Visualise It shall not be liable for any claims, losses or damages arising subsequent to the third party’s processing.
- Visualise It reserves the right to reject any Good and Services forwarded to it after initial processing by a third party as soon as reasonably practicable without processing the Goods and Services any further. If the Client, notwithstanding such rejection, requires Visualise It to continue, then Visualise It shall only be obliged to so after confirmation from the Client in writing and that Visualise It shall have no liability for the quality of the said Goods and Services.
12. Termination of Agreement:
- Visualise It may as its option, immediately terminate this Agreement upon notice in writing within (14) days of commencement and will not be liable for any costs incurred of such an outcome, unless a written prior arrangement, is submitted by Visualise It to the Client.
- The Client may also cancel the order prior to commencement and or completion of the said Goods and Services in which event the Client shall pay to Visualise It such charges as Visualise It shall determine.
- Reasonable estimate of its loss of profit from the order.
- In the event of any cancellation under this agreement the Client shall be liable to pay a reasonable administration charge to Visualise It in addition to all other relative costs.
- In respect to any breech to the Quotation or is in default with such Agreement.
- Property, legal and beneficial, in any Goods and Services shall not pass to the Client until Visualise It has received full payment for all sums then owed by the Client to Visualise It and as per the Quotation.
- Good and Services in respect of which property has remained with Visualise It shall be kept identifiable as the property of Visualise It and the Client shall at the Client’s own expense immediately return such Good and Services to Visualise It, or permit Visualise It to enter into the Client’s premises to collect it should Visualise It so requests, in accordance to this Agreement and or Quotation.
- Without prejudice to its other remedies, in respect of all debts due from the Client, Visualise It shall have a general lien on all Goods and Services of the Client in its possession and shall be entitled, on the expiration of (14) days’ notice to the Client, to dispose of such Goods and Services as agent for the Client in such manner and at such price as it thinks fit and to apply the proceeds of such disposal towards such debts and shall account to the Client for any excess.
14. Legal Declaration:
- Visualise It may properly refuse to provide any Goods and Services which in its opinion may be of an illegal or defamatory nature or infringe of the proprietary or other rights of any third party.
- The Client shall indemnify Visualise It in respect of any and all claims, costs and expenses arising out of any Goods and Services relating to any unlawful or defamatory matter or which infringes Intellectual Property or other proprietary or personal rights of any third party together with all costs on a full indemnity basis.
- Failure by Visualise It to enforce any terms of this agreement shall not be construed as a waiver of any of its rights.
- The Client must also comply with the Privacy Act 1988 in connection with any personal information.
15. Force Majeure:
- Visualise It shall not be liable for any claims, costs, damages or other losses suffered by the Client to the extent resulting from any failure on the part of Visualise It, its servants, contractors, employees and / or agents caused by or directly or indirectly due to war, terrorism, act of any Government or other competent authority, civil unrest, embargo, computer system failure, storm, fire, accident, industrial action including strikes or lockouts, acts of God, illness, prevention from or hindrance in obtaining raw materials, energy or other supplies, or any other similar cause or matter beyond the reasonable control of Visualise It.
16. Rights of Third Parties:
- It is acknowledged and agreed by the Client that the Conditions are not intended to be and shall not be enforced by any person other than the Client under the Agreement but this does not affect any right or remedy of a third party which exists or is available apart from the said Goods and Services.
- The laws of Victoria, Australia govern this Agreement and the parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
- This Agreement constitutes the entire agreement between the parties regarding the matters set out in it and supersedes any prior representations, understandings or arrangements made between the Client and Visualise It previous to this date, whether it be orally or in writing.
- A notice executing this Agreement must be submitted in writing and handed personally or sent by facsimile, email or prepaid mail to the last known address, fax number or email of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile are deemed received on the date and time the facsimile machine confirms transmission. Email notification where specified within the Quotation and or communication will be deemed acceptable as well.
- Neither this Agreement nor any rights or obligations of the Agreement may be assigned or otherwise transferred by either Visualise It or the Client, without the prior written consent, of either party disclosing all criteria. Information and project data. This in turn will render this Agreement void.
- If any provision of this Agreement should be held to be invalid in any way or unenforceable, then the remaining provisions of these Conditions must not in any way be affected or impaired. This Agreement must be construed so as to most n give effect to the intent of Visualise It and the Client, as it was originally executed.
19. Period and Duration:
- The period in which these Terms and Conditions will apply may vary from Client to Client and clearly listed on the Quotation submitted by Visualise It to the Client. If a period is applicable all dates and periods will be part of any official Quotation and will be relative to the Goods and Services itemised on such document and approved by the Client.
20. Conclusion & Document Date:
- This document was drafted, updated and verified by Visualise It on the 20th February 2018 and any matters or enquiries pertaining to this Agreement can be made in writing to Visualise It, prior to any Agreement and or acceptance of any Quotation.