1.1 “Seven Levels” shall mean SEVEN LEVELS Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Seven Levels Pty Ltd.
1.2 “Cinemas” shall include any cinema or cinema complex that is independent of Seven Levels and through which Seven Levels markets and sells advertising. “BIGSCREEN Cinemas” shall mean QUEENSLAND PROVINCIAL CINEMAS Pty. Ltd. trading as BIGSCREEN Cinemas in Hervey Bay or Caloundra. “Reading Cinemas Bundaberg” shall include Reading Cinemas Pty Ltd and Reading Cinemas in Bundaberg.
1.3 “Advertiser” shall mean the Advertiser (or any person acting on behalf of and with the authority of the Advertiser) as described on any quotation, work authorisation or other form as provided by Seven Levels to the Advertiser.
1.4 “Services” shall mean all Services (including, but not limited to, display schedules and production of advertising material) supplied by Seven Levels and cinemas to the Advertiser and includes any advice or recommendations.
1.5 “Price” shall mean the price payable for the Services as agreed between Seven Levels and the Advertiser in accordance with clause 5 of this agreement.
2.1 Any instructions received by Seven Levels from the Advertiser for the supply of Services and/or the Advertiser’s acceptance of Services supplied by Seven Levels and the Cinemas shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Advertiser has entered into this agreement, the Advertisers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Advertiser the terms and conditions are binding and can only be amended with the written consent of Seven Levels.
2.4 The Advertiser shall give Seven Levels not less than fourteen (14) days prior written notice of any proposed change of ownership of the Advertiser or any change in the Advertiser’s name and/or any other change in the Advertiser’s details (including but not limited to, changes in the Advertiser’s address, contact numbers, or business practice). The Advertiser shall be liable for any loss incurred by Seven Levels as a result of the Advertiser’s failure to comply with this clause.
2.5 The Advertiser acknowledges that this agreement does not entitle the Advertiser to any admission passes to any cinema session(s) free of charge or at a discounted rate.
3. Advertiser Responsibilities
3.1 The Advertiser shall supply Seven Levels, within five (5) business days unless otherwise agreed, with any video advertising media or all guidelines, documents, and other reference material needed for the provision of the Services.
3.2 The Advertiser warrants that all material supplied to Seven Levels will:
(a) be true and correct in every particular; and
(b) comply with Clause 4.2; and
(c) not be, nor contain, anything that is defamatory of any person or is indecent or obscene; and
(d) not breach any advertising industry standards or guidelines; and
(e) not contain nor constitute a statement that is misleading or deceptive or likely to deceive or to mislead or which is otherwise in breach of a provision of the Trade Practices Act of 1974 or of any other Commonwealth legislation or legislation of the State or States in which the Services are provided.
3.3 Seven Levels reserves the right to refuse to accept, or withdraw from display at any time, any material submitted by the Advertiser that does not comply with Clause 3.2.
3.4 Subject to Seven Levels’ consent, the Advertiser may be required to resubmit any material rejected by Seven Levels under clause 3.3 and the Advertiser shall pay all additional costs incurred by Seven Levels when processing the resubmitted material.
3.5 The Advertiser agrees to indemnify and hold harmless Seven Levels against any action taken by a third party against Seven Levels in respect of any damages relating to materials provided to Seven Levels for the purposes of the Services.
4. Intellectual Property
4.1 Where Seven Levels has designed, drawn, written or produced material for the Advertiser, then the copyright in those designs, illustrations, written or video material shall remain vested in Seven Levels, and shall only be used by the Advertiser at Seven Levels’ discretion and with Seven Levels’ written consent.
4.2 The Advertiser warrants that all designs, written, illustrated, video material, or instructions to Seven Levels will not cause Seven Levels to infringe any patent, registered design or trademark in the execution of the Advertiser’s order and the Advertiser agrees to indemnify Seven Levels against any action taken by a third party against Seven Levels in respect of any such infringement.
5. Price and Payment
5.1 Once Seven Levels has commenced processing the material provided by the Advertiser all costs incurred by Seven Levels when processing any replacement or additional material provided by the Advertiser, or in following the Advertiser’s amended instructions, must be paid by the Advertiser.
5.2 Advertising with Cinemas is based on a three (3) month minimum Display Schedule term.
5.3 A nonrefundable payment equal to one (1) month term of the subscribed Display Schedule plus the total of the amount due for any production as provided for in the estimate of works (the Price) must be paid prior to the Services being commenced.
5.3 Time for payment for the Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
5.4 All future payments due on the subscribed advertising schedule following the first month payment become payable to Seven Levels no later than the 22nd Day of each month in advance.
5.6 Payment will be made by cash, or by bank cheque, or by direct credit, or by any other method as agreed to between the Advertiser and Seven Levels.
5.7 GST and other taxes and duties that may be applicable shall be included in the Price unless otherwise indicated.
6. Delivery of Services
6.1 Delivery of the Services shall take place in accordance with the Display Schedule provided by Seven Levels which will include the date of commencement and the date of minimum term.
6.2 Seven Levels will confirm the commencement date for the Display Schedule with the Advertiser at the time the campaign is signed however, this is dependent upon production or provision of appropriate advertising material being available to screen in the selected Cinema(s) prior to the commencement of the Advertiser’s campaign term.
6.3 The Advertiser acknowledges that for the purposes of the Display Schedule, one (1) month’s screening of the advertising material shall mean screening the advertising material on those days in any given month on which the Cinema(s) specified in the Display Schedule is/are open to the public (excluding film festivals, private events, preview events, and any other special events).
6.4 Should a dispute arise between the Advertiser and Seven Levels as to whether the Display Schedule was actually provided, confirmation in writing from the projectionist or Cinema manager shall be supplied to the Advertiser. The Advertiser acknowledges that the written confirmation will be conclusive evidence that the Display Schedule was provided on the dates shown on the written advice.
6.5 The failure of Seven Levels to deliver shall not entitle either party to treat this contract as repudiated.
6.6 Seven Levels shall not be liable for any loss or damage whatsoever due to failure by Seven Levels to deliver the Services (or any of them) promptly or at all, due to circumstances beyond the control of Seven Levels.
7.1 If Seven Levels retains ownership of the Services nonetheless, all risk for the Services passes to the Advertiser on delivery.
8.1 Seven Levels and the Advertiser agree that ownership of the Services shall not pass until:
(a) the Advertiser has paid Seven Levels all amounts owing for the particular Services; and
(b) the Advertiser has met all other obligations due by the Advertiser to Seven Levels in respect of all contracts between Seven Levels and the Advertiser.
8.2 Receipt by Seven Levels of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Seven Levels’ ownership or rights in respect of the Services shall continue.
9. Errors and Omissions
9.1 The Advertiser shall inspect the Services on delivery and shall notify Seven Levels of any alleged defect, errors, omissions, or failure to comply with the service description, otherwise the Services will be deemed to have been correctly provided in full.
10. The Commonwealth Trade Practices Act 1974 (“TPA”)/Fair Trading Acts (“FTA”)
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in Queensland, except to the extent permitted by those Acts where applicable.
11. Default & Consequences of Default
11.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
11.2 If the Advertiser defaults in payment of any invoice when due, the Advertiser shall indemnify Seven Levels from and against all costs and disbursements incurred by Seven Levels in pursuing the debt including legal costs, solicitor’s fees and collection agency costs.
11.3 Without prejudice to any other remedies Seven Levels may have, if at any time the Advertiser is in breach of any obligation (including those relating to payment); Seven Levels may suspend or terminate the supply of Services to the Advertiser and any of its other obligations under the terms and conditions. Seven Levels will not be liable to the Advertiser for any loss or damage the Advertiser suffers because Seven Levels has exercised its rights under this clause.
11.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
11.5 Without prejudice to Seven Levels’ other remedies at law Seven Levels shall be entitled to cancel all or any part of any order of the Advertiser which remains unfulfilled and all amounts owing to Seven Levels shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Seven Levels becomes overdue, or in Seven Levels’ opinion the Advertiser will be unable to meet its payments as they fall due; or
(b) the Advertiser becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Advertiser or any asset of the Advertiser.
12.1 The Advertiser may only terminate the contract:
(a) if the Advertiser disposes of or closes the business to which this contract relates; and
(b) the Advertiser’s solicitor or accountant gives Seven Levels not less than two (2) weeks written notice of the termination including reasonable proof of the sale or closure of the business.
12.2 Upon Seven Levels’ written acceptance of the termination of the contract (providing the Advertiser has complied with the provisions of Clause 12.1), the Advertiser shall pay Seven Levels:
(a) all money payable to Seven Levels up to the time of cancellation; and
(b) all production costs incurred.
13. Privacy Act 1988
13.1 The Advertiser agrees that personal and/or company information provided may be used and retained by Seven Levels for the following purposes and for other purposes as shall be agreed between the Advertiser and Seven Levels or required by law from time to time:
(a) provision of Services; and/or
(b) marketing of Services by Seven Levels, its agents or distributors in relation to the Services;
(c) analysing, verifying and/or checking the Advertiser’s credit, payment and/or status in relation to provision of Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Advertiser; and/or
(e) enabling the daily operation of Advertiser’s account and/or the collection of amounts outstanding in the Advertiser’s account in relation to the Services by Seven Levels.
13.2 Seven Levels may give information about the Advertiser to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Advertiser; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Advertiser.
14.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
14.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
14.3 Seven Levels shall be under no liability whatsoever to the Advertiser for any indirect loss and/or expense (including loss of profit) suffered by the Advertiser arising out of a breach by Seven Levels of these terms and conditions.
14.4 In the event of any breach of this contract by Seven Levels the remedies of the Advertiser shall be limited to damages which under no circumstances shall exceed the Price of the Services.
14.5 The Advertiser shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Advertiser by Seven Levels.
14.6 Seven Levels may license or sub-contract all or any part of its rights and obligations without the Advertiser’s consent.
14.7 Seven Levels reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Seven Levels notifies the Advertiser of such change.
14.8 Neither party shall be liable for any default due to any act of God, war, threat of terrorism, strike, lock-out, industrial action, fire, flood, drought, epidemic, storm or other event beyond the reasonable control of either party.
14.9 The failure by Seven Levels to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Seven Levels’ right to subsequently enforce that provision.