TERMS AND CONDITIONS OF TRADE

  1. Definitions
    • “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
    • “THOR” means Thor Productions Pty Ltd, its successors and assigns, or any person acting on behalf of, and with the authority of, Thor Productions Pty Ltd.
    • “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting THOR to provide the Services as specified in any Proposal, order, invoice or other documentation, and:
      • if there is more than one (1) Client, is a reference to each Client jointly and severally; and
      • if the Client is a partnership, it shall bind each partner jointly and severally; and
      • if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
      • includes the Client’s executors, administrators, successors and permitted assigns.
    • “Services” means all Goods (including output files and raw footage, which means any virtual material, samples, brands, designs, images, advertising, data, graphics, pictures, trademarks, and other associated documentation and/or goods) and/or Services (which includes any advice or recommendations, consultancy, brands, designs, or advertising, project management work, brand integration, and strategising and analytical services, etc.) provided by THOR to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
    • “Proposal” means THOR’s quotation for Services to be provided to the Client, as based on the Client’s brief and the project scope, but does not include any overages or out of scope costs.
    • “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
    • “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Services via the website.
    • “Charges” means the cost of the Services (plus any GST where applicable) as agreed between THOR and the Client subject to clause 5 of this Contract.
    • “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
    • “IPR” means all intellectual property rights, including:
      • know-how, including concepts, technical skills and expertise; and
      • patents, copyright, registered designs, trademarks, and any right to have confidential information kept confidential; and
      • any application or right to apply for registration of any of the rights referred to in either sub-clause (a) or (b).

 

  1. Acceptance
    • The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts, Services provided by THOR.
    • This Contract records the entire agreement between the parties and:
      • supersedes all earlier agreements and representations by the parties about its subject matter; and
      • may only be amended with the consent of both parties in writing; and
      • shall prevail to the extent of any inconsistency with any other document or agreement between the Client and THOR.
    • Once accepted by the Client, the Proposal shall be deemed to interpret correctly the Client’s instructions, whether written or verbal; and
      • where verbal instructions only are received from the Client, THOR shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions; and
      • the Client acknowledges that it is responsible for adequately identifying all issues which it seeks to address by asking THOR to provide the Services.
    • Any advice, recommendations, information, assistance or service provided by THOR in relation to Services provided is given in good faith, is based on information provided to THOR, and THOR’s own knowledge, and experience. Whilst it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services, human error is possible under these circumstances, and THOR shall make all effort to offer the best solution to the Client.
    • Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
    • These terms and conditions may be meant to be read in conjunction with THOR’s Hire Form and/or Labour Hire Form, and:
      • where the context so permits, the terms ‘Goods’ or ‘Services’ shall include any supply of Equipment and/or Labour, as defined therein; and
      • if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.

 

  1. Errors & Omissions
    • The Client acknowledges and accepts that THOR shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      • resulting from an inadvertent mistake made by THOR in the formation and/or administration of this Contract; and/or
      • contained/omitted in/from any literature (hard copy and/or electronic) supplied by THOR in respect of the Services.
    • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of THOR; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

 

 

  1. Change in Control
    • The Client shall give THOR not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or change of trustees, business practice). The Client shall be liable for any loss incurred by THOR as a result of the Client’s failure to comply with this clause.

 

  1. Charges and Payment
    • At THOR’s sole discretion the Charges shall be THOR’s quoted Charges (subject to clause 2) which will be valid for the period stated in the Proposal or otherwise for a period of fourteen (14) days.
    • THOR reserves the right to vary the Charges:
      • to include any additional costs not included in the Proposal. Variations will be charged for on the basis of THOR’s Proposal, and will be detailed in writing, and shown as variations on THOR’s invoice. The Client shall be required to respond to any variation submitted by THOR within ten (10) working days. Failure to do so will entitle THOR to add the cost of the variation to the Charges.  Payment for all variations must be made in full at the time of their completion;
      • where the Client wishes to vary or postpone the Services, which will result in additional or lost costs to THOR. The Client agrees that the Charges will be increased by an amount equivalent to the additional costs that will be incurred by THOR to vary or postpone the Services, including without limitation, the costs and expenses associated with the reservation and/or hire of staff, equipment and venues.
    • At THOR’s sole discretion, a non-refundable deposit may be required upon acceptance of the Proposal.
    • Time for payment for the Services being of the essence, the Charges will be payable by the Client on the date/s determined by THOR, which may be:
      • by way of instalments/progress payments in accordance with THOR’s payment schedule;
      • the date specified on any invoice or other form as being the date for payment; or
      • failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Client by THOR.
    • Payment may be made by cash, bank cheque, electronic/on-line banking, PayPal, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and THOR.
    • THOR may in its discretion allocate any payment received from the Client towards any invoice that THOR determines and may do so at the time of receipt or at any time afterwards. On any default by the Client THOR may re-allocate any payments previously received and allocated. In the absence of any payment allocation by THOR, payment will be deemed to be allocated in such manner as preserves the maximum value of THOR’s Purchase Money Security Interest (as defined in the PPSA) in the Services.
    • The Client shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to the Client by THOR nor to withhold payment of any invoice because part of that invoice is in dispute.
    • Unless otherwise stated, the Charges do not include GST. In addition to the Charges, the Client must pay to THOR an amount equal to any GST THOR must pay for any provision of Services by THOR under this Contract or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Charges. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Charges, except where they are expressly included in the Charges.

 

  1. Client’s Responsibilities
    • The Client warrants that all information and materials provided to THOR in relation to the Services:
      • is accurate and complete; and
      • will be provided in sufficient time so as to permit THOR to carry out the Services in accordance with the Proposal; and
      • does not infringe on the IPR of any person.
    • Unless the Client has ended this Contract as a result of breach by THOR, the Client must pay THOR for Services provided, and expenses incurred, up to the termination of this Contract.

 

  1. Provision of the Services
    • THOR will:
      • provide the Services with due professional care and skill; and
      • use its best endeavours to provide the Services by the date/s set out in the Proposal, but any date/s specified by THOR is an estimate only and THOR will not be liable for any loss or damage incurred by the Client as a result of provision being late. However both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that THOR is unable to provide the Services as agreed solely due to any action or inaction of the Client, then THOR shall be entitled to charge the Client additionally for re-providing the Services at a later time and date.
    • The Client acknowledges that:
      • any changes to the Proposal, the Client’s requirements and/or the Services, may change any date/s specified by THOR.
      • due to the nature of digital display, technical difficulties may arise which could prevent the provision of the Services; and the Client, therefore, agrees to indemnify THOR against any costs or losses incurred by the Client as a result of this.
    • It is the policy of THOR to decline or suspend involvement in any project that contravenes ‘Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 – Act No. 90/1995’ relating to ‘Objectionable Film’. As a part of confirming THOR’s involvement in the project, THOR requires notification of any scenes that may involve explicit sexual acts or excessive violence. This may affect the scheduled time for post-production activities and the staff involved.

 

  1. Risk
    • Irrespective of whether THOR retains ownership of any Goods, all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as THOR may repossess the Goods in accordance with clause 3(e). The Client must insure all Goods on or before delivery.
    • The Client assumes all risk for any loss or damage resulting directly or indirectly from the Client’s use of the Goods.

 

  1. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
    • The Client must inspect THOR’s Services on completion and must within seven (7) days (or as otherwise specified/agreed otherwise in writing) notify THOR in writing of any evident defect in the Services provided (including THOR’s workmanship) or of any other failure by THOR to comply with the description of, or the Proposal for, the Services which THOR was to provide. The Client must notify any other alleged defect in THOR’s Services as soon as is reasonably possible after any such defect becomes evident. Upon such notification, the Client must allow THOR to review the Services that were provided.
    • Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (“Non-Excluded Guarantees”).
    • THOR acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    • Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, THOR makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. THOR’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    • If the Client is a consumer within the meaning of the CCA, THOR’s liability is limited to the extent permitted by section 64A of Schedule 2.
    • If THOR is required to rectify, re-provide, or pay the cost of re-providing the Services under this clause or the CCA, but is unable to do so, then THOR may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services which have been provided to the Client which were not defective.
    • If the Client is not a consumer within the meaning of the CCA, THOR’s liability for any defective Services is:
      • limited to the value of any express warranty, or warranty card, provided to the Client by THOR at THOR’s sole discretion;
      • limited to any warranty to which THOR is entitled, if THOR did not manufacture the Goods;
      • otherwise negated absolutely.
    • Notwithstanding clauses 1 to 9.7 but subject to the CCA, THOR shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      • the Client failing to properly maintain or store the Goods;
      • the Client using the Goods for any purpose other than that for which they were designed;
      • the Client continuing to use the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • interference with the Goods by the Client or any third party without THOR’s prior approval;
      • the Client failing to follow any instructions or guidelines provided by THOR;
      • fair wear and tear, any accident, or act of God.
    • In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by THOR as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that THOR has agreed to provide the Client with the second hand Goods and calculated the Charges of the second hand Goods in reliance of this clause 9.
    • Notwithstanding anything contained in this clause if THOR is required by a law to accept a return then THOR will only accept a return on the conditions imposed by that law.

 

  1. Intellectual Property and Confidentiality
    • All pre-existing IPR of both parties, including IPR used in connection with the Services, remains vested therein, and there is no assignment thereof to the other party, unless by the express written agreement of the parties.
    • Subject to clause 1, and payment of the Charges in full, all IPR specifically created by THOR during the provision of the Services, vests in the Client upon its creation.
    • The Client warrants that all designs, specifications, information and instructions to THOR will not cause THOR to infringe any patent, registered design or trademark in the provision of the Services. Furthermore, the Client agrees to indemnify, defend, and hold THOR harmless from all loss incurred or suffered by THOR arising from any claims (including third party claims) or demands against them where such loss was caused by any infringement or alleged infringement of the IPR of any person or entity by the Client during its use of the Services.
    • Each party agrees to treat all information and ideas communicated to it by the other confidentially and:
      • use it only as permitted under this Contract, and only disclose it to employees, contractors, agents and visitors who have a need to know; and
      • agrees not to divulge it to any third party, without the other party’s written consent; and
      • will not copy any such information supplied, and will promptly comply with any request by the disclosing party to either return it or destroy it (together with any copies thereof), unless required by law to be retained.

 

  1. Default and Consequences of Default
    • 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 a half percent (2.5%) per calendar month (and at THOR’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Client owes THOR any money the Client shall indemnify THOR from and against all costs and disbursements incurred by THOR in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, THOR’s contract default fee, and bank dishonour fees).
    • Further to any other rights or remedies THOR may have under this Contract, if a Client has made payment to THOR, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by THOR under this clause 11 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
    • Without prejudice to THOR’s other remedies at law THOR shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to THOR shall, whether or not due for payment, become immediately payable if:
      • any money payable to THOR becomes overdue, or in THOR’s opinion the Client will be unable to make a payment when it falls due;
      • the Client has exceeded any applicable credit limit provided by THOR;
      • the Client 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
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

 

  1. Cancellation
    • Without prejudice to any other remedies THOR may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions THOR may suspend or terminate the supply of Services to the Client. THOR will not be liable to the Client for any loss or damage the Client suffers because THOR has exercised its rights under this clause.
    • THOR may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice THOR shall repay to the Client any money paid by the Client for the Services. THOR shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by THOR as a direct result of the cancellation (including, but not limited to, any loss of profits).
    • In the event that the Client cancels this Contract, or provision of the Services, at any time after acceptance of the Proposal then the Client shall be liable to THOR for any losses or costs incurred (whether direct or indirect) by THOR (including, but not limited to, any loss of profits) up to the time of, or as a result of the cancellation, notwithstanding that at THOR’s sole discretion:
      • a minimum termination fee of five hundred dollars ($500) may be applicable; or
      • if the Client cancels giving less than twenty-four (24) hours’ notice from the scheduled shooting, fifty percent (50%) of the Charges will apply; or
      • fifty percent (50%) of the Charges will be charged if:
        • the Services are cancelled or postponed within forty-eight (48) hours of the scheduled shooting due to circumstances above and beyond the control of THOR; or
        • the Services are cancelled or postponed due to inclement weather within twenty-four (24) hours of the scheduled shooting; or
        • the Services are disrupted (either in whole or in part) whilst shooting due to inclement weather. THOR will not be responsible for any costs incurred due to overtime or subsequent reshooting attributed to weather conditions, or any additional post-production required also as a direct result of inclement weather.
      • any cancellation requests must be submitted in writing giving at least forty-eight (48) hours prior notice to the scheduled shooting before any form of refund will be considered. Allowance  will  be  made,  whenever  possible  to  reschedule  a  cancelled  or  postponed scheduled shooting  subject  to  availability  and  receipt  of  a  further  advance  payment,  unless  the original shooting date and time slot can be rebooked for an equivalent Charge as per clause 4.

 

  1. Privacy Policy
    • All emails, documents, images or other recorded information held or used by THOR is Personal Information, as defined and referred to in clause 3, and therefore considered Confidential Information. THOR acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). THOR acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by THOR that may result in serious harm to the Client, THOR will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
    • Notwithstanding clause 1, privacy limitations will extend to THOR in respect of Cookies where transactions for purchases/orders transpire directly from THOR’s website. THOR agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
      • IP address, browser, email client type and other similar details;
      • tracking website usage and traffic; and
      • reports are available to THOR when THOR sends an email to the Client, so THOR may collect and review that information (“collectively Personal Information”)

In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via THOR’s website.

  • The Client agrees for THOR to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by THOR.
  • The Client agrees that THOR may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
    • to assess an application by the Client; and/or
    • to notify other credit providers of a default by the Client; and/or
    • to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
    • to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
  • The Client consents to THOR being given a consumer credit report to collect overdue payment on commercial credit.
  • The Client agrees that personal credit information provided may be used and retained by THOR for the following purposes (and for other agreed purposes or required by):
    • the provision of Services; and/or
    • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
    • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
    • enabling the collection of amounts outstanding in relation to the Services.
  • THOR may give information about the Client to a CRB for the following purposes:
    • to obtain a consumer credit report;
    • allow the CRB to create or maintain a credit information file about the Client including credit history.
  • The information given to the CRB may include:
    • Personal Information as outlined in 3 above;
    • name of the credit provider and that THOR is a current credit provider to the Client;
    • whether the credit provider is a licensee;
    • type of consumer credit;
    • details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
    • advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and THOR has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
    • information that, in the opinion of THOR, the Client has committed a serious credit infringement;
    • advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
  • The Client shall have the right to request (by e-mail) from THOR:
    • a copy of the Personal Information about the Client retained by THOR and the right to request that THOR correct any incorrect Personal Information; and
    • that THOR does not disclose any Personal Information about the Client for the purpose of direct marketing.
  • THOR will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
  • The Client can make a privacy complaint by contacting THOR via e-mail. THOR will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

 

  1. Title
    • THOR and the Client agree that the Client’s obligations to THOR for the provision of Services shall not cease (and ownership of any Goods shall not pass) until:
      • the Client has paid THOR all amounts owing to THOR for the Services; and
      • the Client has met all other obligations due by the Client to THOR in respect of all contracts between THOR and the Client.
    • Receipt by THOR 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 THOR’s ownership or rights in respect of the Services, and this Contract, shall continue.
    • It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 1:
      • the Client is only a bailee of the Goods and must return the Goods to THOR on request.
      • the Client holds the benefit of the Client’s insurance of the Goods on trust for THOR and must pay to THOR the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
      • the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for THOR and must pay or deliver the proceeds to THOR on demand.
      • the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of THOR and must sell, dispose of or return the resulting product to THOR as it so directs.
      • the Client irrevocably authorises THOR to enter any premises where THOR believes the Goods are kept and recover possession of the Goods.
      • THOR may recover possession of any Goods in transit whether or not delivery has occurred.
      • the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of THOR.
      • THOR may commence proceedings to recover the Charges notwithstanding that ownership of the Goods has not passed to the Client.

 

  1. Personal Property Securities Act 2009 (“PPSA”)
    • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
    • Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in:
      • all Goods previously provided, or that will be provided in the future, by THOR to the Client;
      • all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to THOR for Services – that have previously been provided and that will be provided in the future by THOR to the Client.
    • The Client undertakes to:
      • promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which THOR may reasonably require to;
        • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        • register any other document required to be registered by the PPSA; or
        • correct a defect in a statement referred to in clause 2(a)(i) or 15.2(a)(ii);
      • indemnify, and upon demand reimburse, THOR for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
      • not register a financing change statement in respect of a security interest without the prior written consent of THOR;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of THOR.
    • THOR and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
    • The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    • The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • Unless otherwise agreed to in writing by THOR, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    • The Client must unconditionally ratify any actions taken by THOR under clauses 2 to 15.5.
    • Subject to any express provisions to the contrary (including those contained in this clause 15) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

  1. Security and Charge
    • In consideration of THOR agreeing to provide Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    • The Client indemnifies THOR from and against all THOR’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising THOR’s rights under this clause.
    • The Client irrevocably appoints THOR and each director of THOR as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Client’s behalf.

 

  1. Trusts
    • If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (Trust) then whether or not THOR may have notice of the Trust, the Client covenants with THOR as follows:
      • the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
      • the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
      • The Client will not without consent in writing of THOR (THOR will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
        • the removal, replacement or retirement of the Client as Trustee of the Trust;
        • any alteration to or variation of the terms of the Trust;
        • any advancement or distribution of capital of the Trust; or
        • any resettlement of the trust property.

 

  1. General
    • The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. 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.
    • These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which THOR has its principal place of business, and are subject to the jurisdiction of the courts in Sydney, New South Wales.
    • Subject to clause 9, THOR shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by THOR of these terms and conditions (alternatively THOR’s liability shall be limited to damages which under no circumstances shall exceed the Charges).
    • THOR may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
    • The Client cannot licence or assign without the written approval of THOR.
    • THOR may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of THOR’s sub-contractors without the authority of THOR.
    • The Client agrees that THOR may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for THOR to provide Goods/Services to the Client.
    • Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
    • The Client warrants that it has the power to enter into this Contract and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this Contract creates binding and valid legal obligations on it.
    • The following clauses survive termination of this Contract: clauses 9 (Defects, Warranties and the Competition and Consumer Act 2010(CCA)) and 10 (Intellectual Property and Confidentiality).

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