Standard Terms and Conditions of Service
Agreement between GlobeCast and the Customer
The customer in placing a verbal or written booking with GlobeCast
for the Service, signing a Contract or commencing use of a Service,
thereby accepts the following terms and conditions.
1 DEFINITIONS
"Booking" means the details of the Service requested
by the Customer
"Contract" means the contract that comes into
existance once the Customer accepts the details of the Service
offered to the Customer by GlobeCast in response to the Customer's
Booking (which contract will include those agreed details in addition
to all of the terms and conditions set out in this document)
"Customer" means any company or authorised representative
of such company who wishes to make use of the Service.
"Force Majeure" means any event beyond the reasonable
control of GlobeCast including, but not limited to fire, flood,
earthquake, explosion, inclement weather or unforeseeable natural
occurrence or accident, strikes, lock-outs, work-to-rule, or other
labour disputes, war, civil unrest, acts of vandalism or other
violence, any law, order proclamation, regulation, ordinance,
demand or requirement of any government agency, any pre-emption
or failure of satellite transponder capacity that GlobeCast has
procured for the provision of a Service or any unforeseen failure,
degradation or severance of terrestrial facilities for the uplink
to such transponder capacity.
"GlobeCast" means GlobeCast Australia Pty Ltd
of 2 Prentice Lane, Willoughby, NSW 2068, Australia ACN 079 173
961 trading as GlobeCast Australia ("GlobeCast").
"Parties" means the Customer and GlobeCast may
be referred to individually as a 'party' or jointly as 'parties.'
"Space Segment" means capacity on any satellite
of GlobeCast's choice.
"Service" means the provision of all or part
of a complete communications service as required under the Contract,
which may include (without limitation) uplink facilities, space
segment, digital transmissions and television equipment for the
purpose of gathering, transmitting and receiving data signals
via satellite or any other communications pathway.
"Service Period" means the period between the
start and end time of the Service stipulated in the Contact or
the Booking or, if start and end times are not stipulated, the
period required for GlobeCast to provide the Service in accordance
with the Contract.
"The Rules" means the rules of the Australian
Court of International Arbitration
2 CONDITIONS OF SERVICE
2.1 The customer undertakes that its use of the Service does
not and will not violate any applicable law, statute, regulation
or government licence (granted to a class or to the customer specifically)
and that it has obtained, on or before the date of the commencement
of the Service and shall maintain, any and all necessary licence
and permissions in respect thereof.
2.2 Without prejudice to the generality of the foregoing, the
Customer shall not: -
a) Use the Service to convey any message which is defamatory
or an invasion of privacy of any person, grossly offensive or
of an indecent, obscene or menacing character, or
b) Use the Service to convey messages in breach of copyright
or other proprietary rights or
c) Do, or omit to do, anything which would result in GlobeCast
to be in breach or its licence under any relevant law, stature
or regulation.
2.3 In the event that the customer violates the terms of this
clause, the Customer indemnifies GlobeCast from any direct or
indirect responsibility for such breach and any consequent action
of litigation.
3 TERMS OF CONTRACT
3.1 GlobeCast will accept a faxed or original Contract bearing
the signature of an authorised agent of the Customer, such Contract
being or containing reference to a written offer of Service made
by an authorised agent of GlobeCast.
3.2 At its absolute discretion, GlobeCast will accept verbal
Bookings for a Service on location or at its offices or offices
of associated companies. Where the Customer is unable to sign
a written contract at the time the verbal Booking is placed, the
Customer will confirm the verbal Booking in writing at the earliest
opportunity.
3.3 In the event that GlobeCast is not in receipt of a written
confirmation from the Customer twelve hours prior to the proposed
start time of the Services, the provision of the Service cannot
be guaranteed and GlobeCast shall be free from any liability arising
therefrom.
4 CANCELLATION OF SERVICE
4.1 GlobeCast will accept cancellation of verbal or written Bookings
or Contracts but cancellation charges will be paid by the Customer
according to the period of notice given prior to the start time
of the Contract Period. All cancellations must be confirmed in
writing.
4.2 Cancellation charges will be calculated as stipulated in
the Contract or Booking. If these are not detailed, they will
be as follows:
4.3 For bookings cancelled within 24 hours of the start of the
Contract Period or at any time during the Contract Period, 100%
of the quoted price for the Service or part thereof will be charged.
4.4 For bookings cancelled between 48 and 24 hours of the start
of the Contract Period, 75% will be charged.
4.5 For bookings cancelled between 7 days and 48 hours of the
booked period, 50% will be charged.
4.6 For bookings cancelled more than 7 days prior to the booked
period, charges are discretionary but will not exceed 20% of the
invoice total.
4.7 In the case of a cancellation involving space segment bookings
with a satellite operator, where the cancellation charges for
which GlobeCast is liable are greater than those payable to GlobeCast
under the terms of 4.2 above, the cancellation charges to the
Customer will be calculated according to the terms of the satellite
operator's own cancellation policy.
4.8 If GlobeCast incurs any out of pocket expenses whatsoever,
relating to the Booking prior to a cancellation by the customer,
all such costs will be charge to the customer in full plus a 10%
administration fee.
5 PAYMENT TERMS
5.1 Charges for the Service will be according to the Contract.
5.2 All Service charges due to GlobeCast from the Customer under
the contract are exclusive of Goods and Services Tax ("GST")
and any other applicable taxes of duties which may from time to
time be applicable to the provision of the Service, such taxes
and duties to be advised at the time of quoting or in the Contract.
All such taxes or duties as may become due shall be charged to
and paid by the Customer at the applicable rate.
5.3 Charges for the Service shall be payable in Australian ("A$")
or US Dollars ("US$") as specified on the invoice unless
otherwise agreed in writing between the Parties. Terms of payment
are as specified in the Contract and invoice.
5.4 The Customer agrees to pay interest at the rate of 10% per
annum on any amount payable pursuant to an invoice that is unpaid
after the specified date, and for the full period for which the
amount remains unpaid. GlobeCast may withdraw or interrupt its
Services if an invoice is not paid within the specified time.
The Customer agrees to pay any costs incurred in collection of
an overdue invoice.
6 FORCE MAJEURE
In no event shall GlobeCast be liable to the Customer for any
failure to perform its obligations under the Contract where the
failure is due to Force Majeure. If GlobeCast's performance of
any of its obligations is prevented, restricted or interfered
with by reasons of Force Majeure, then GlobeCast shall be excused
from such performance to the extent of such prevention, restriction
or interference and shall continue performance hereunder whenever
such causes are removed.
7 FAILURE OF SERVICE
7.1 In the event that the Service fails or is impaired due to
an element of the Service under GlobeCast's reasonable direct
control, GlobeCast's maximum liability to the Customer will be
calculated according to the duration of the interruption as a
proportion of the total charge for the full duration of that specific
element of the Service. "Failure" or "impairment"
shall mean an event that materially and adversely affects the
Service.
7.2 In the event that the Service fails or is impaired either
temporarily or permanently, the Customer shall, unless otherwise
agreed between the parties, advise GlobeCast as soon as possible,
and confirm in writing within 24 hours of such failure.
7.3 If GlobeCast does not receive notice as required above, GlobeCast
shall be entitled to invoice for the full price for the provision
of the Service.
8 LIMITATIONS OF LIABILITY
8.1 In no event shall GlobeCast be liable to the customer for
any direct, indirect or consequential damages arising out of or
in connection with the provision of the Service, including but
not limited to loss of revenue or profits, loss of use of abortive
expenditure, either anticipated or otherwise.
8.2 For the avoidance of doubt it is hereby specifically agreed
by the Parties that the Customer's remedies under the Agreement
are exclusive and in substitution for any other rights and remedies
at law or equity. The total liability of GlobeCast to the Customer
with respect to the aggregate of all claims of any kind including
but without limitation to, breach of contract, warranty, strict
liability shall be limited to the remedies set forth herein and
shall in no event exceed the total charge for the Service.
9 GENERAL INDEMNITY
The customer hereby indemnifies and hold harmless GlobeCast from
and against all claims, loss, liability, damage, and expense including
legal fees, arising out of the Customer's use or reception of
the Service including but not limited to libel, slander, invasion
of privacy, infringement of copyright or invasion and/or alteration
of private records or data or messages transmitted by GlobeCast
whilst providing the Service to or on behalf of the Customer.
10 COPYRIGHT
Where video and audio signals have been originated by GlobeCast
on its own account without having been commissioned by a Customer,
copyright in the signals will remain vested in GlobeCast.
11 WAIVER
The failure of forbearance of GlobeCast on one or more occasions,
to enforce any of the provisions of this Agreement or to exercise
any right or privilege hereunder shall not be construed as a waiver
or any such provisions, rights, or privileges nor shall such failure
or forbearance of any waiver thereafter be constructed as a waiver
of a subsequent breach or default of a similar nature.
12 NOTICE
All notices, including invoices, required or permitted hereunder
shall be deemed to be communicated on the date when personally
delivered or upon delivery if sent by registered or recorded delivery
letter to the other Party at their address as given on the Contract,
or if they are sent by telex or facsimile transmissions, on the
date when the proper answer back is received by the sender.
13 ENTIRE AGREEMENT
This agreement, in conjunction with the Booking and Acceptance,
shall constitute the entire agreement between the Parties and
supersedes any other written or oral agreement or understanding
with respect to the subject matter thereof. The Customer acknowledges
that no representation, promise, inducement or statement of intention
has been made by GlobeCast which is not contained in this document
or the other documents that constitute the Contract.
14 GOVERNING LAW
This Agreement shall be governed by and construed in accordance
with the laws of New South Wales. GlobeCast and the Customer agree
irrevocably to submit to the New South Wales courts.
15 DISPUTES AND ARBITRATION
15.1 If any dispute arises out of or in connection with this
Agreement, such dispute shall be finally settled in accordance
with clause 15.
15.2 Prior to commencing formal proceedings with respect to any
dispute as provided for above, each Party shall give written notice
to the other detailing its position and reasons therefor and may
recommend corrective action.
15.3 In the event that agreement cannot be reached within ten
(10) working days after receipt of the respective notices referred
to in Clause 15.2 above, either Party may refer such dispute for
final determination according to The Rules.
15.4 Three arbitrators shall be appointed in accordance with
the Rules.
15.5 The place of arbitration shall be Sydney, Australia
15.6 Judgement of the award may be rendered and executed by any
Court having competent jurisdiction according to clause 14 above.
15.7 Subject to any relevant judgement therefore, each party shall
bear the costs of its own legal representation, witnesses produced
by such Party, document production and other discovery expenses.
16 SEVERABILITY
In the event that any of the provisions of the Agreement shall,
for any reason, be held to be invalid or unenforceable, the remaining
provisions of the Agreement shall be unimpaired and the invalid
or unenforceable provision shall be replaced by a valid and enforceable
provision which comes closest to reflecting the intentions of
the Parties underlying the invalid or unenforceable provision.
End of GlobeCast's General Terms and Conditions
