1. Definitions
Additional Charge means:
a) fees or charges for additional work performed at the Client’s request or reasonably required as a result of the Client’s conduct, calculated in accordance with KOJO’s then current prices; and
b) expenses incurred by KOJO, at the Client’s request or reasonably required as a result of the Client’s conduct.
Business Day means a day that is not a Saturday, Sunday, or public holiday in the place where the Services are principally being carried out or the Goods provided.
Client means the person identified on a Quote or Order as the Client and includes the Client’s agents and permitted assigns.
Goods means any goods supplied by KOJO including those supplied in the course of providing Services.
Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, business marks, patents, and registered designs.
KOJO means KOJO Studios Pty Ltd or KOJO Studios (NZ) Pty Limited as the provider of Goods or Services, as specified on the Quote or Order, and includes its employees, agents and permitted assigns.
Loss includes, but is not limited to, costs (including party to party legal costs and KOJO’s legal costs), expenses, lost profits, award of damages, personal injury, and property damage.
Order means a purchase order for Goods or Services placed by a Client in response to a Quote and as varied in writing from time to time by the parties.
PPS Law means the Personal Property Securities Act 2009 (Cth) and the Personal Properties Securities Act 1999 (NZ).
Quote means a written description of the Goods or Services to be provided by KOJO, which includes:
a) KOJO’s charges for the performance and delivery of the required work as an estimate or a fixed amount; and
b) an estimate of the time frame for the delivery of the work.
Services means the services to be provided by KOJO to the Client in accordance with a Quote or Order and these terms of business.
2. Interpretation
In these terms of business, unless the context otherwise requires:
a) a reference to writing includes email and other communication established through KOJO’s website (if any);
b) the singular includes the plural and vice versa;
c) a reference to a clause or paragraph is a reference to a clause or paragraph of these terms of business;
d) a reference to a party to these terms of business or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
f) headings are for ease of reference only and do not affect the meaning or interpretation of these terms of business; and
g) if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
i) if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
ii) in all other cases, must be done on the next Business Day.
3. General
a) These terms of business apply to all transactions between the Client and KOJO relating to the provision of Goods and Services. This includes all quotations, orders, contracts and variations. These terms of business take precedence over terms of business contained in any document of the Client or elsewhere.
b) The variation or waiver of a provision of these terms of business or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
c) KOJO may amend any details in a Quote by notice in writing to the Client. Such amended details supersede any relevant prior detail in dealings between the parties.
4. Quotes
a) KOJO may provide the Client with a Quote. Any Quote issued by KOJO is valid for 30 days from the date of issue.
b) Quotes are based upon the cost of materials available at the time of preparation of the Quote and assume the timely supply by the Client of necessary material and instructions to KOJO.
c) Following provision of a Quote to the Client, KOJO is not obliged to commence work until the Quote has been accepted by the Client. This occurs by an authorised representative of the Client signing the Quote and returning the signed Quote to KOJO.
d) A signed Quote by the Client, or written acceptance (including by email or any other form of written communication) provided by the Client which gives effect to agreeing to the Quote, signifies acceptance by the Client:
i) to be provided the nominated Goods or Services by KOJO in accordance with the Quote; and
ii) to these terms of business.
e) KOJO reserves the right to amend any Quote before the provision of Goods or Services has been completed to take into account any Additional Charges. KOJO will notify the Client of any amendment as soon as practicable, at which point the amended Quote will be the Quote for the purposes of these terms of business.
f) An indication in a Quote of the time frame for the provision of the Goods or Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law (ACL), this estimate is not binding upon KOJO.
5. Orders
a) Any Order submitted by the Client for the provision of Goods or Services must be agreed in writing in the same format as KOJO’s standard Quote form (unless otherwise agreed) and accepted by an authorised representative of both parties.
b) An Order cannot be cancelled without the prior written consent of KOJO. Where an Order is cancelled, the Client indemnifies KOJO against any Losses incurred by KOJO as a result of the cancellation. This includes, but is not limited to, recovery of all costs incurred prior to cancellation taking effect, loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.
6. Variations
a) The Client may request that its Order be varied by providing a request in writing to KOJO. A request for a variation must be agreed to in writing by KOJO in order to have effect.
b) If the Client wishes to vary its requirements after a Quote has been prepared by KOJO or after the placement of an Order, KOJO reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by KOJO in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods or Services or both.
c) KOJO has an automatic extension of time for the provision of the Goods or Services equal to the delay caused by the variation.
7. Occupational Health and Safety
a) KOJO acknowledges that safety is the top priority of the Client.
b) KOJO agrees to comply with:
(i) the Client’s safety requirements and take all actions necessary to keep KOJO, the Client and the officers, employees, agents and subcontractors of KOJO and the Client safe from injury and death; and
(ii) all Occupational Health and Safety Legislation that is applicable or relevant to the Services (OHS Requirements).
c) KOJO must ensure that its officers, employees, agents and subcontractors engaged in connection with the Services comply with the OHS Requirements
8. Invoicing and payment
a) KOJO may in its absolute discretion, issue an invoice to the Client in any one or more of the following ways:
i) prior to commencing the provision of the Goods or Services, for an amount equal to the Quote and Additional Charges where KOJO has not previously carried out work for the Client or where KOJO chooses to do so; or
ii) upon completion of the provision of the Goods or Services or any time thereafter, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing KOJO’s charge for the work performed in completing the Order and for any Additional Charges.
b) The amount payable by the Client will be the amount set out in the invoice. This will be calculated as:
i) the amount for the Goods or Services (or both) as set out in the Quote and any Additional Charges, or
ii) where no Quote has been provided by KOJO, KOJO’s usual charges for the Goods or Services (or both) as described in the Order.
c) The Client must pay an invoice issued by KOJO to KOJO within 14 days of a valid tax invoice being issued to the Client.
d) If any invoice is due but unpaid, KOJO may withhold the provision of any further Goods or Services until overdue amounts are paid in full.
e) The Client is to pay KOJO on demand, interest at the rate equivalent to the daily cash rate determined by the Reserve Bank of Australia, calculated daily, for any overdue monies due to KOJO.
f) All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of KOJO, are to be paid by the Client as a debt due and payable under these terms of business.
g) The Client and KOJO agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.
9. Additional Charges
a) KOJO may require the Client to pay Additional Charges in respect of costs incurred by KOJO as a result of reliance on inadequate or incorrect information or material provided by the Client or information or material supplied later than required by KOJO in order for it to provide the Goods or Services within the specified time frame (if any).
b) The imposition of Additional Charges may also occur as a result of:
i) cancellation by the Client of a Quote or Order where cancellation results in Loss to KOJO; or
ii) additional work required by the Client or any other occurrence which causes KOJO to incur costs in respect of the Client’s Order additional to the quoted cost.
10. Acceptance of Goods and Services
a) If the Client fails to advise KOJO in writing of any fault in Goods or failure of Goods to accord with the Client’s Order within 24 hours of delivery, the Client is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Client’s Quote or Order. Nothing in this paragraph affects the Client’s rights for any alleged failure of a guarantee under the ACL.
b) If the Client fails to advise KOJO in writing of any fault or defect in any deliverables or materials provided by KOJO to the Client in the performance of the Services, within 14 days of delivery, the Client is deemed to have accepted the deliverables or materials and to have accepted that the deliverables or materials are not faulty and that the Services have been performed in accordance with the Client’s Quote or Order. Any request made by the Client after this period for KOJO to provide further Services may incur an Additional Charge.
11. Title and risk
a) Risk in Goods passes to the Client immediately upon delivery.
b) Property and title in Goods supplied to the Client under these terms of business do not pass to the Client until all money (including money owing in respect of other transactions between KOJO and the Client) due and payable to KOJO by the Client have been fully paid.
c) Where Goods are supplied by KOJO to the Client without payment in full, the Client:
i) is a bailee of the Goods until property in them passes to the Client;
ii) irrevocably appoints KOJO to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of KOJO with respect to the Goods under applicable law;
iii) must be able upon demand by KOJO to separate and identify as belonging to KOJO Goods supplied by KOJO from other goods which are held by the Client;
iv) must not allow any person to have or acquire any security interest in the Goods;
v) agrees that KOJO may repossess the Goods if payment is not made within 60 days (or such longer time as KOJO may, in its complete discretion, approve in writing) of the supply of the Goods; and
vi) the Client grants an irrevocable licence to KOJO or its agent to enter the Client’s premises in order to recover possession of Goods pursuant to this paragraph. The Client indemnifies KOJO for any damage to property or personal injury which occurs as a result of KOJO entering the Client’s premises.
d) Where Goods are supplied by KOJO to the Client without payment in full of all moneys payable in respect of the Goods and any Services provided by KOJO in respect of those Goods, and:
i) the Client makes a new object from the Goods, whether finished or not;
ii) the Client mixes the Goods with other goods; or
iii) the Goods become part of other goods (New Goods),
the Client agrees with KOJO that the ownership of the New Goods immediately passes to KOJO. The Client will hold the New Goods on trust for KOJO until payment of all sums owing to KOJO whether under these terms of business or any other contract have been made. KOJO may require the Client to store the New Goods in a manner that clearly shows the ownership of KOJO.
e) For the avoidance of doubt, under paragraph 10(d), the ownership of the New Goods passes to KOJO at the beginning of the operation or event by which the Goods are converted into, are mixed with, or become part of other goods.
f) Despite paragraph 10(c ), the Client may transfer, sell, or dispose of Goods, including New Goods, to a third party in the ordinary course of business. This is provided that:
i) where the Client is paid by a third party in respect of Goods including New Goods, the Client holds the whole of the proceeds of sale, less any GST, on trust for KOJO in a separate account, until all amounts owned by the Client to KOJO have been paid; or
ii) where the Client is not paid by a third party, the Client agrees to assign all of its rights against the third party to KOJO upon KOJO giving the Client notice in writing to that effect and for the purpose of giving effect to that assignment the Client irrevocably appoints KOJO as its attorney.
g) Where Goods are supplied by KOJO to the Client without payment in full of all monies payable in respect of the Goods and any Services provided by KOJO in respect of those Goods, the Client acknowledges that KOJO has a right to register and perfect a personal property security interest.
h) If:
i) a PPS Law applies or commences to apply to these terms of business, or any transaction contemplated by them, or KOJO determines (based on legal advice) that this is the case; and
ii) in KOJO’s opinion, the PPS Law:
A) does or will adversely affect KOJO’s security position or obligations; or
B) enables or would enable KOJO’s security position to be improved without adversely affecting the Client,
KOJO may give notice to the Client requiring the Client to do anything (including amending these terms of business or execute any new Terms and Conditions) that in KOJO’s opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in paragraph 10(h)(ii)(A) or improve the security position as contemplated in paragraph 10(h)(ii)(B). The Client must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this paragraph, in KOJO’s opinion KOJO’s security position or obligations under or in connection with these terms of business have been or will be materially adversely affected, KOJO may by further notice to the Client cancel these terms of business. If this occurs, the Client must pay to KOJO any money owed to KOJO by the Client immediately.
12. Intellectual Property Rights
a) The Client warrants that it owns all Intellectual Property Rights pertaining to its Order for Goods or Services or has a licence to authorise KOJO to reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied by the Client to KOJO for the purposes of the Order. Further, the Client indemnifies and agrees to keep indemnified KOJO against all Losses incurred by KOJO in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by the Client.
b) Unless specifically agreed in writing between KOJO and the Client, all Intellectual Property Rights in any works created by KOJO on behalf of the Client vest in and remain the property of KOJO.
c) Subject to payment of all invoices due in respect of the Goods or Services, KOJO grants to the Client a perpetual, non-exclusive licence to use the works created or produced by KOJO in connection with the provision of Goods or Services under these terms of business for the purposes contemplated by a Quote or Order.
13. Agency and assignment
a) KOJO has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties, and obligations arising in, under or from these terms of business provided that the assignee agrees to assume any duties and obligations of KOJO owed to the Client under these terms of business.
b) The Client is not to assign, or purport to assign, any of its obligations or rights under these terms of business without the prior written consent of KOJO.
14. Default by Client
a) Each of the following occurrences constitutes an event of default:
i) the Client breaches or is alleged to have breached these terms of business for any reason (including, but not limited to, defaulting on any payment due under these terms of business) and fails to remedy that breach within 14 days of being given notice by KOJO to do so;
ii) the Client, being a natural person, commits an act of bankruptcy;
iii) the Client, being a corporation, is subject to:
A) a petition being presented, an order being made or a meeting being called to consider a resolution for the Client to be wound up, deregistered or dissolved;
B) a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Client’s property and undertaking;
C) the entering of a scheme of arrangement (other than for the purpose of restructuring); and
D) any assignment for the benefit of creditors;
iv) the Client purports to assign its rights under these terms of business without KOJO’s prior written consent; or
v) the Client ceases or threatens to cease conduct of its business in the normal manner.
b) Where an event of default occurs, except where payment in full has been received by KOJO, KOJO may:
i) terminate these terms of business;
ii) terminate any or all Quotes, Orders and credit arrangements (if any) with the Client;
iii) refuse to deliver Goods or provide further Services;
iv) repossess and re-sell any Goods delivered to the Client, the payment for which has not been received; or
v) retain (where applicable) all money paid by the Client on account of Goods or Services or otherwise.
c) In addition to any action permitted to be taken by KOJO under paragraph 13(a.), on the occurrence of an event of default all invoices will become immediately due.
15. Termination
a) In addition to the express rights of termination provided in these terms of business, a party may terminate these terms of business by giving 30 days written notice to the other party.
b) KOJO may decline or suspend the provision of Services under these terms of business where the provision of Services involves any project which is classified as an Objectionable Film, as defined under the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Cth). The Client must notify KOJO as soon as reasonably practicable where the provision of Services involves an Objectionable Film.
16. Exclusions and limitation of liability
a) The Client expressly agrees that use of the Goods and Services is at the Client’s risk. To the full extent allowed by law, KOJO’s liability for breach of any term implied into these terms of business by any law is excluded.
b) All information, specifications and samples provided by KOJO in relation to the Goods or Services are approximations only and, subject to any guarantees under the ACL, small deviations or slight variations from them which do not substantially affect the Client’s use of the Goods or Services will not entitle the Client to reject the Goods upon delivery, or to make any claim in respect of them.
c) KOJO gives no warranty in relation to the Services provided or supplied. Under no circumstances is KOJO or any of its suppliers liable or responsible in any way to the Client or any other person for any losses, damages, costs, expenses, or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods or Services. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
i) any Goods or Services supplied to the Client;
ii) any delay in supply of the Goods or Services; or
iii) any failure to supply the Goods or Services.
d) Any advice, recommendation, information, assistance, or service given by KOJO in relation to Goods or Services or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given and is provided without any warranty or accuracy, appropriateness, or reliability. KOJO does not accept any liability or responsibility for any Loss suffered as a result of the Client’s reliance on such advice, recommendation, information, assistance, or service.
e) To the fullest extent permissible at law, KOJO is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on these terms of business, negligence, strict liability or otherwise, even if KOJO has been advised of the possibility of damages.
f) The Client acknowledges that the Goods or Services are not for personal, domestic, or household purposes.
g) The ACL may give to the Client certain guarantees, which cannot be restricted, limited, or varied.
17. Indemnity
a) The Client indemnifies and keeps indemnified KOJO, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Client) against KOJO or, for which KOJO is liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Quote, Order or the subject matter of these terms of business.
b) This includes, but is not limited to, any legal costs incurred by KOJO in relation to meeting any claim or demand or any legal costs for which KOJO is liable in connection with any such claim or demand.
c) This provision remains in force after the termination of these terms of business.
18. Force majeure
a) If circumstances beyond KOJO’s control prevent or hinder its provision of the Goods or Services, KOJO is free from any obligation to provide the Goods or Services while those circumstances continue. KOJO may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
b) Circumstances beyond KOJO’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
19. Dispute Resolution
a) If a dispute arises between the Client and KOJO, the following procedure applies:
i) A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this clause 18.
ii) A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.
iii) A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.
b) If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 30 Business Days (or other period as agreed).
c) Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation which operate at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these terms of business. This paragraph survives termination of these terms of business.
d) Despite the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these terms of business.
e) The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.
20. Miscellaneous
a) These terms of business are governed by the laws of the state or territory of the registered office of the relevant KOJO entity providing the Goods or Services per the Quote or Order, and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state or territory.
b) These terms of business and any Quotes or Orders and written variations agreed to in writing by KOJO represent the whole agreement between the parties relating to the subject matter of these terms.
c) These terms of business supersede all oral and written negotiations and communications by and on behalf of either of the parties.
d) In entering into these terms of business, the Client has not relied on any warranty, representation, or statement, whether oral or written, made by KOJO or any of its employees or agents relating to or in connection with the subject matter of these terms of business.
e) If any provision of these terms of business at any time is or becomes void, voidable, or unenforceable, the remaining provisions will continue to have full force and effect.
f) A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
g) A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote or Order (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Quote or Order; sent by fax to the fax number of the addressee specified in the relevant Quote or Order, with acknowledgment of receipt from the facsimile machine of the addressee or sent by email to the email address of the addressee specified in the relevant Quote or Order with acknowledgement of delivery.
h) A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by fax or email before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
i) A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.