Rental Terms and Conditions

Blackbox Terms and Conditions
ABN 19969154575

General Terms and Conditions 

  1. Agreement
    1. These Terms and Conditions apply to each Agreement formed between Blackbox and the Customer when method of accepting Quote.
    2. To the extent of any inconsistency, an Element with higher priority will supersede an Element with lower priority.
    3. All communication, correspondence and other documents passing between the parties (other than the Elements), including all terms and conditions the Customer provides to Blackbox, are void and unenforceable.
    4. If for any reason clause 1.3 is found to be illegal, invalid or unenforceable, to the extent of any inconsistency all communication, correspondence and other documents passing between the Customer and Blackbox (other than the Elements), including all terms and conditions the Customer provides to Blackbox, are superseded by the Quote, the Special Conditions and these Terms and Conditions.
    5. If the Quote includes the hiring of Equipment, the Hire Terms and Conditions form part of the Agreement.
    6. If the Quote includes the Monitoring Services, the Monitoring Terms and Conditions form part of the Agreement.
    7. If the Quote includes a Production, the Production Terms and Conditions form part of the Agreement.
  2. Quote
    1. From time to time, Blackbox may in its sole discretion provide one or more Quotes to a Customer.
    2. The Customer must provide Blackbox with notice accepting the Quote by the Deadline.
    3. If the Customer does not accept the Quote by the Deadline, Blackbox may in its sole discretion elect to reject the Customer’s acceptance by providing the Customer notice within 10 Business Days of Blackbox’s rejection.
    4. Nothing in this Agreement requires Blackbox to provide one or more Quotes to any person.
  3. Payment
    1. The Customer must pay:
      1. all Invoices within 10 Business Days of the date of the Invoice;
      2. all other amounts payable by the Customer to Blackbox under this Agreement within 2 Business Days of the due date;
      3. by electronic transfer to the account advised by Blackbox from time to time; and
      4. without setoff, withholding or other deduction.
    2. If the Customer fails to pay the entirety of any Invoice or other amount by the due date under this Agreement, that Invoice or other amount (or the balance of the same) will accrue daily interest at the Default Rate from the due date to the date of actual payment.
    3. Interest accrued under clause 3.2 is immediately payable (without demand) by the Customer to Blackbox.
    4. If the Customer alleges the Invoice has an error, within 5 Business Days of receiving the invoice the Customer must give Blackbox notice describing the invoice and error.
    5. If the Customer does not provide notice of an alleged error in an invoice within the time permitted under clause 3.2, the Customer will be deemed to have accepted that invoice as complete and accurate in all respects.
  4. Termination
    1. A party may terminate this Agreement:
      1. at any time by providing the other party 10 Business Days’ notice; and
      2. otherwise as permitted by these Terms and Conditions.
  5. Default
    1. A party will be in default under this Agreement if it:
      1. breaches a term or condition of this Agreement that cannot be remedied within 5 Business Days; and
      2. breaches a term or condition of this Agreement that can be remedied within 5 Business Days and fails to remedy that breach within 5 Business Days of receipt of notice from the non-breaching party requiring the breaching party to remedy the breach.
    2. The Customer will be in default under this Agreement if it:
      1. fails to pay all Invoices and other monies payable under this Agreement by the due date;
      2. ceases to carry on its business;
      3. if the Customer is a corporation – is insolvent (as defined in the Corporations Law), has a liquidator or administrator appointed over the Customer or any of its assets, or commences winding up (voluntary or involuntary); and
      4. if the Customer is a natural person –commits an act of bankruptcy (as defined in the Bankruptcy Law), appoints an administrator over any of their assets, or dies or is incapacitated for more than 14 days in any 60day period.
    3. If Blackbox is in default, the Customer may elect to:
      1. affirm or terminate this Agreement; and/or
      2. sue Blackbox for damages and/or compensation.
    4. If the Customer is in default, Blackbox may in its sole discretion elect to:
      1. suspend:
        1. the Customer’s use of the Equipment or Website;
        2. the delivery, repair or replacement of Equipment;
        3. Training;
        4. Monitoring; or
        5. Production;
      2. seek urgent injunctive relief;
      3. affirm or terminate this Agreement; and/or
      4. sue the Customer for damages and/or compensation.
    5. If Blackbox suspends anything under clause 5.4(a):
      1. the Customer will still incur and must pay all monies that would have been payable by the Customer to Blackbox had Blackbox not suspended anything; and
      2. Blackbox must promptly lift the suspension upon the Customer remedying (to the satisfaction of Blackbox) the breach the cause of the default.
    6. Without limiting clause 5.5, if Blackbox suspends the use of Equipment under clause 5.4(a) Blackbox may collect the Equipment from the Site (as if the Term had ended) and, if it does, upon the suspension lifting must promptly redeliver the Equipment to the Site.
    7. If Blackbox in its sole discretion determines that providing the Customer notice would in any way prejudice a right or remedy of Blackbox (whether under this Agreement or at Law) then, notwithstanding any other term of this Agreement and to the maximum extent permitted by Law, Blackbox may exercise that right without providing notice and doing so will not be a breach of this Agreement.
    8. The rights and remedies described in this clause 5 are cumulative and in addition to all rights available at Law.
  6. Liability
    1. Subject to clause 6.3, the Customer releases and discharges Blackbox and holds Blackbox forever harmless from and against all demands, claims and proceedings howsoever caused (including Blackbox’s negligence) which the Customer has, may have or but for this clause 6.1 would have against Blackbox, arising from or connected to:
      1. the Equipment;
      2. the Training;
      3. the Website and Data;
      4. the Production; and
      5. the Presentation.
    2. Subject to clause 6.3, the Customer indemnifies Blackbox and will keep Blackbox indemnified from and against all loss and damage Blackbox suffers or incurs (including administrative costs and legal costs on an indemnity basis) arising from or connected to all demands, claims and proceedings howsoever caused (including Blackbox’s negligence) by the Customer (or anyone on the Customer’s behalf) against Blackbox arising from or connected to the matters described in clauses 6.1(a) to 6.1(d) (inclusive).
    3. The Customer does not release, discharge or hold Blackbox harmless or indemnify Blackbox from or against demands, claims or proceedings arising from or connected to the matters described in clauses 6.1(a) to 6.1(d) (inclusive) to the extent that:
      1. the demand, claim or proceeding arises from Blackbox’s:
        1. intentionally harmful act or omission;
        2. breach of a term of this Agreement; or
      2. Blackbox cannot exclude the liability at Law.
    4. Subject to clause 6.5, the Customer indemnifies Blackbox and will keep Blackbox indemnified from and against all loss and damage Blackbox suffers or incurs (including administrative costs and legal costs on an indemnity basis) arising from or connected to:
      1. the Customer’s breach of this Agreement;
      2. the Equipment;
      3. the Training;
      4. the Website and Data;
      5. the Production;
      6. the Presentation;
      7. Blackbox’s exercise of its rights under this Agreement in respect of any breach of this Agreement by the Customer; and
      8. acts under a power of attorney granted under this Agreement.
    5. The Customer does not indemnify Blackbox for loss and damage Blackbox suffers or incurs arising from or connected to the matters described in clauses 6.4(a) to 6.4(h) (inclusive) to the extent that the loss or damage arises from an act or omission of Blackbox.
    6. Notwithstanding any other term of this Agreement, the Customer acknowledges and agrees:
      1. Blackbox is not liable for any loss or damage of the Customer, however caused, that is indirect loss, incidental loss, consequential loss, special loss, loss of revenue loss of profit, loss of reputation, loss of opportunity or loss that flows from demands, claims or proceedings by third parties; and
      2. the maximum compensation payable (or the value in kind transferable) by Blackbox to the Customer arising from or connected to:
        1. this Agreement:
        2. the Equipment;
        3. the Website and Data;
        4. the Production; and
        5. the Presentation,

will be an amount equal to all Invoiced amounts paid by the Customer to Blackbox under this Agreement in the 12 months preceding the act or omission the cause of the compensation (excluding interest and costs arising from the Customer’s default under this Agreement).

    1. The limitations described in clause 6.6 are cumulative for all of the Customer’s demands, claims and proceedings arising from or connected to this Agreement and will apply to the maximum extent permitted by Law, notwithstanding the failure of any remedy under this Agreement or at Law.
  1. Collateral
    1. As security for the payment of all monies payable by the Customer to Blackbox under this Agreement and the Customer’s performance of its obligations under this Agreement, the Customer charges for the due and punctual payment and performance of those obligations and liabilities all of the Customer’s legal and equitable interest (both present and future) of whatsoever nature held in the Collateral.
    2. Without limiting the generality of the charge in clause 7.1 upon request by Blackbox the Customer will sign all documents and do all things required to register a charge, caveat, mortgage, security or other instrument of security in favour of Blackbox over the Collateral.
    3. The Customer irrevocably appoints each officer of Blackbox as its attorney with the power to sign all documents and do all things the Customer is obligated to do under this clause 7.
    4. If the Collateral is a bank guarantee or cash deposit:
      1. Blackbox may apply that guarantee or deposit to any amount payable by the Customer to Blackbox that has not been paid by the due date; and
      2. upon demand by Blackbox, the Customer will promptly obtain a fresh guarantee or deposit further monies to restore the Collateral to its condition prior to Blackbox’s exercise of clause 7.4(a).
    5. Within 10 Business Days of all the Customer’s obligations (including future and contingent obligations) under this Agreement being discharged, Blackbox must sign all documents and do all things required to release and/or return the Collateral.
  2. Assignment
    1. The Customer cannot assign any part of its rights or obligations under this Agreement to a third party.
    2. At any time, the Customer may assign the whole of its rights and obligations under this Agreement to a third party with the consent of Blackbox.
    3. Blackbox may place conditions on its consent under clause 8.2, including that:
      1. the proposed assignee provide evidence to Blackbox’s satisfaction of the proposed assignee’s ability to discharge the Customer’s obligations under this Agreement; and
      2. the Customer provide or procure security for Blackbox for the proposed assignee’s performance of the Customer’s obligations under this Agreement.
    4. At any time, Blackbox may in its sole discretion assign the whole or any part of its rights or obligations under this Agreement to one or more third parties.
  3. Force Majeure
    1. If a party’s performance of an obligation under this Agreement is prevented or delayed by a Force Majeure Event, that party may suspend that obligation by providing notice to the other party describing the Force Majeure Event and the suspended obligation.
    2. A party that has suspended an obligation under clause 9.1 must promptly and diligently act to mitigate or remove the effects of the Force Majeure Event that gave rise to the suspension.
    3. An suspension under clause 9.1 will immediately lift upon the ending or removal of the Force Majeure Event that gave rise to the suspension.
    4. If an obligation has been suspended under clause 9.1 for more than 1 month, a party may immediately terminate this Agreement by providing notice to the other party.
  4. Alterations
    1. From time to time Blackbox may in its sole discretion add, remove, alter or replace any term of this Agreement by giving notice to the Customer.
    2. Subject to clause 10.3, an addition, removal, alteration or replacement of any term of this Agreement will take effect 20 Business Days after Blackbox provides the Customer with notice.
    3. Subject to clause 10.4, if the addition, removal, alteration or replacement of any term of this Agreement would require the Customer to pay more monies or incur more costs than the Customer would have prior to the change, that term will apply only to Equipment, Monitoring and Productions quoted after the addition, removal, alteration or replacement.
    4. For the purposes of clause 10.3, the Customer will be deemed to not pay more monies or incur more costs if the increase in monies or costs is less than 5% of the monies or costs payable by the Customer under this Agreement on the date this Agreement is formed.
    5. Nothing in this Agreement obligates Blackbox to add, remove, alter or replace any term of this Agreement or to refrain from doing any of those things.
  5. Confidential Information
    1. Subject to clause 11.2, each party will not:
      1. disclose the Confidential Information of the other party to any person;
      2. copy the Confidential Information of the other party; or
      3. use or exploit the Confidential Information of the other party.
    2. A party may disclose the Confidential Information of the other party only:
      1. if that Confidential Information is in the public domain for any reason other than a breach of an obligation of confidentiality to the other party;
      2. if required by Law;
      3. to its professional advisors, provided the advisors have a duty of confidentiality to that party;
      4. to prosecute proceedings to enforce a right under this Agreement or remedy a breach of this Agreement; or
      5. as required to discharge obligations under this Agreement.
    3. A party may use or exploit the Confidential Information of the other party only if that use or exploitation:
      1. is necessary for the party to discharge its obligations under this Agreement; and
      2. will not and is not likely to cause any loss, damage or harm to Blackbox or Blackbox’s business, products, operations, reputation, staff or relationships.
    4. If a party may disclose, use or exploit Confidential Information of the other party under clause 11.2 or 11.3, it must disclose, use or exploit only the minimum amount of Confidential Information required to achieve the permitted purpose.
    5. Each party will at its own cost:
      1. restrict its Staff’s access to the Confidential Information of the other party to those persons who:
        1. must know the Confidential Information to discharge its obligations under this Agreement; and
        2. it has advised of the Confidential Information’s confidential nature and the restrictions imposed under this clause 11; and
      2. secure and deal with its Confidential Information, and all Confidential Information of the other party in its possession or control, in accordance with all applicable Laws and current industry best practice.
    6. At the request of the other party (which may be made from time to time), a party will procure an executed deed from one or more of its Staff requiring that person to comply with the obligations under this clause 11.
    7. If a party is required by Law to disclose Confidential Information of the other party, it will notify the other party of the compulsion as soon as possible before making the disclosure and will at the other party’s expense sign all documents and do all things reasonably requested by the other party to oppose the requirement.
    8. Notwithstanding the terms of this clause 11 and subject to clause 11.9, Blackbox may use aggregate information and metadata to measure general Equipment and Website usage patterns and characteristics of its user base and may include such aggregate information about its audience in promotional materials or reports to third parties.
    9. Aggregate information and metadata used under clause 11.8 will not reference names, phone numbers, email addresses, or other personally identifiable information and it is not traceable to a specific recipient or user email address.
    10. The Customer expressly consents to receiving electronic messages from Blackbox and its agents for the purposes of the Spam Act 2003 (Cth).
    11. At any time, the Customer may withdraw its consent under clause 11.10 by providing Blackbox notice.
    12. Each party will comply with all Law regarding privacy and personal information.  A copy of Blackbox’s privacy policy will be provided upon request.
  6. Disputes
    1. A party will not commence proceedings regarding this Agreement and its subject matter in any court or tribunal except in accordance with this clause 12.
    2. In the event of a Dispute, a party may provide the other party notice describing the Dispute and a proposed solution.
    3. If the recipient does not agree to the proposed solution, within 3 Business Days of receipt of notice under clause 12.2 the recipient must provide the other party notice proposing the recipient’s own solution.
    4. Upon provision of notice under clause 12.3, the parties must use their reasonable endeavours to communicate and attempt to resolve the Dispute in good faith.
    5. If the parties have not resolved a dispute within 10 Business Days of provision of notice under clause 12.3, a party may commence proceedings regarding this Agreement and its subject matter in any court or tribunal.
    6. Nothing in this clause 12 prohibits a party from seeking urgent injunctive relief.
  7. Relationship
    1. In the performance of their respective obligations under this Agreement, the parties are independent contractors and are not agent and principal of each other, joint venturers or partners, franchisor and franchisee or acting on behalf of each other.
    2. If any term of this Agreement would cause the parties to have any relationship other than as independent contractors, that term will be read down only to the extent that the parties are only independent contractors and if it cannot be read down will be severed from this Agreement without prejudice to the remaining terms and replaced with a new term that most closely matches the commercial and economic effect of the severed term whilst not causing the parties to have any relationship other than as independent contractors.
  8. Notice
    1. Notice provided under this Agreement must be in writing.
    2. A party may provide notice under this Agreement by:
      1. delivering the notice to the last advised address of the recipient;
      2. mailing the notice by pre-paid post to the last advised address of the recipient; or
      3. emailing the notice to the last advised address of the recipient.
    3. Subject to clause 14.4, notice provided under this Agreement will be deemed received:
      1. if delivered, at the time of delivery;
      2. if posted, 4 Business Days after posting; and
      3. if emailed, at the time of sending (provided that the sender does not receive notification that the email was not transmitted to or received by the receiver).
    4. If notice provided under this Agreement is received after 5:00pm on a Business Day, the notice will be deemed received at 8:30am on the next Business Day.
  9. GST
    1. Except where the contrary intention appears, expressions used in this clause 15 have the meanings given to them in the GST Act.
    2. If a party makes a taxable supply in connection with this Agreement for a consideration which represents its value, then the recipient of the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
    3. A party’s right to payment under this clause 15 is subject to a valid tax invoice being delivered to the recipient of the taxable supply.
    4. To the extent that one party is required to reimburse another party for costs incurred by the other party, those costs do not include any amount in respect of GST for which the other party is entitled to claim an input tax credit.
    5. To the extent that any consideration payable to a party under this agreement is determined by reference to a cost incurred by that party, the GST exclusive amount of that cost must be used.
    6. Unless explicitly stated otherwise, all quotes, prices, fees and amounts described in this Agreement or that Blackbox communicates to the Customer are exclusive of GST.
  10. General
    1. Amendment.  No variation of this Agreement will be effective unless in writing and signed by all parties.
    2. Disclaimer.  Other than as expressly provided or made in this Agreement, to the maximum extent permitted by Law, Blackbox makes no representation and gives no warranty or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, effectiveness, accuracy and/or completeness of the Equipment, Training, Website, Monitoring, Production or Presentation.
    3. Discretion.  Unless an act, standard or decision is within a party’s sole discretion, a party must act reasonably when exercising its discretion under this Agreement.
    4. Entire Agreement.  This Agreement comprises the entire agreement between the parties regarding its subject matter and supersedes all prior communication, representations, agreements and arrangements.
    5. Joint and Several Liability.  If a party comprises more than one person, the rights, powers and remedies herein must be exercised jointly and the covenants and obligations herein apply to each of them jointly and severally.
    6. Jurisdiction.  This Agreement is governed by the laws of Queensland and each party submits to the non-exclusive jurisdiction of the tribunals and courts of Queensland.
    7. Limitation of Liability. If this Agreement excludes a warranty that by Law Blackbox cannot exclude, then to the maximum extent permitted by Law Blackbox’s liability will be limited to repair or replacement of the goods or services to which the warranty applies, or payment of the cost of replacing those goods or services.
    8. No Consequential Loss. Blackbox will not be liable to the Customer for any loss of profit, loss of reputation, loss of opportunity or other consequential loss arising from or connected to this Agreement and its subject matter.
    9. No Merger.  None of the terms of this Agreement, nor any act, matter or thing done under or by virtue of, or in connection with, this Agreement (including termination) will operate as a merger of any of the rights and remedies of Blackbox in or under this Agreement or otherwise and all such rights and remedies will continue in full force and effect.
    10. Perfection.  Each party will sign all documents and do all things required to perfect and give full effect to this Agreement and the rights and obligations herein.
    11. Prejudice. The Customer will not do or permit anyone to do any act or omission that may prejudice any right of Blackbox against any third party (including a right of recovery).
    12. Reliance.  The Customer warrants that it:
      1. has not been induced to enter into this Agreement by any alleged statement, representation, warranty or condition made by any person;
      2. has read and understood this Agreement; has had the opportunity to obtain independent financial and legal advice about its terms; and
      3. has entered into this Agreement in reliance solely upon its own research and inquiry.
    13. Severability.  If a term of this Agreement is illegal, invalid or unenforceable, that term will be read down only to the extent that it is no longer illegal, invalid or unenforceable and if it cannot be read down will be severed from this Agreement without prejudice to the remaining terms and replaced with a new term that most closely matches the commercial and economic effect of the severed term whilst being legal, valid and enforceable.
    14. Failure to Act.  No delay or failure to exercise or seek any right, power or remedy will prejudice that right, power or remedy, nor will it constitute a waiver of that right, power or remedy.
    15. Waiver.  A waiver of any right, power or remedy under this Agreement must be explicit and in writing and will not prejudice the exercise or seeking of that right, power or remedy at any other time or in any other circumstances.
  11. Definitions
    1. In this Agreement:

Agreement

means an agreement between Blackbox and the Customer for one or more of Blackbox’s:

  1. hiring of Equipment;
  2. making the Website available;
  3. liaising with the Customer and Monitor regarding the Monitoring Agreement; and
  4. carrying out a Production and providing a Presentation.

Bankruptcy Law

means the Bankruptcy Act 1966 (Cth).

Blackbox

means name as trustee for Blackbox Australia Unit Trust ABN 19 969 154 575 and (where appropriate) its Staff.

Business Day

means all days excluding Saturdays, Sundays and public holidays in Brisbane, Queensland.

Collateral

means the proposed monies, property or other security described in the Quote.

Completion Date

means the proposed completion date described in the Quote.

Confidential Information

means information of any kind, recorded or transmitted by any method, regarding the party’s structure, operations, finances and intentions (including information regarding customers, clients, officers, employees, contractors, agents, assets, liabilities, income, expenses, projections, plans, marketing, advertising, goods, services, methods, procedures, know-how, disputes and litigation) that is not public knowledge or that is marked confidential or that by its nature is confidential.

Corporations Law

means the Corporations Act 2001 (Cth).

Customer

means the person who provides Blackbox notice of accepting a Quote and to whom Blackbox is hiring Equipment and providing access to the Website, with whom Blackbox is liaising regarding Monitoring and/or for whom Blackbox is carrying out the Production and providing the Presentation.

Data

means video, audio and photographic information (including metadata) of the Site and activities on the Site recorded by Equipment.

Deadline

means the deadline for the Customer to respond to the Quote and, if no deadline is described, the Deadline will be the date 1 month after the date of the Quote.

Default Rate

means the low doc commercial lending rate of the Blackbox’s bank plus 2%.

Dispute

means a dispute or disagreement between the parties regarding this Agreement and its subject matter excluding:

  1. disputes or disagreements regarding payment of amounts payable by the Customer under this Agreement; and
  2. breaches of this Agreement that cannot be remedied within 5 Business Days.

Elements

means (in descending order of priority):

  1. the Quote;
  2. the Special Conditions;
  3. the Equipment Terms and Conditions, Monitoring Terms and Conditions and Production Terms and Conditions (as appropriate); and
  4. the General Terms and Conditions.

End Date

means the proposed end date described in the Quote.

EOT

means an extension of time.

Equipment

means the equipment (including Controllers, cameras, solar panels, mobile equipment, accessories and parts) described in the Quote that Blackbox proposes to hire to the Customer.

Equipment Fees

means the proposed fees and costs of hiring the Equipment described in the Quote.

Equipment Insurance

means a policy of insurance:

  1. for the full replacement of the Equipment;
  2. with a reputable underwriter;
  3. naming Blackbox as an interested party.

Executed Monitoring Agreement

means a Monitoring Agreement executed by the Customer and the Monitor.

Fees

means (as the context requires):

  1. Equipment Fees;
  2. Production Fees; or
  3. any combination of the above that is described in a Quote or payable by the Customer under this Agreement.

Force Majeure Event

means war, vandalism, sabotage, terrorism, epidemics, quarantines, fires, explosions, earthquakes, floods, strikes, labour disputes, shortages or delays in obtaining suitable material, labour or transportation, interruption of utility services, statutory obligation, order or direction or instruction or request or notice of a regulator or emergency services organization or any other competent authority, acts of any government unit or agency thereof and acts and omissions of the other party.

General Terms and Conditions

means the terms and conditions set out in clauses 1 to 18 (inclusive).

Government Body

means:

  1. the federal government or a state or local government;
  2. an entity created by or operating under a government described in clause (a); and
  3. an entity brought into existence under legislation.

Government Charge

means all taxes, duties, tolls, levies, fees, costs, expenses and like charges paid or payable by Blackbox to a Government Body arising from the hiring of Equipment under this Agreement (including interest and penalties).

GST Act

means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Hire Terms and Conditions

means the terms and conditions set out in clauses 19 to 35 (inclusive).

Instalment Amounts

means the instalment amounts described in the Quote that comprise the Production Fee.

Instalment Dates

means the dates described in the Quote for the payment of Instalment Amounts.

Intellectual Property

means right, title or interest created by or recognised under Law (at any time on and from the date of this Agreement) in property of the mind or propriety knowledge, including patents, trade marks, registered designs, geographical indications, copyright, trade secrets, circuit layouts.

Invoice

means an invoice prepared in accordance with this Agreement for Blackbox’s provision of goods and services to the Customer under this Agreement.

Law

means all legislation, subordinate legislation, common law and equity applicable to each party and to the subject matter of this Agreement including Equipment, Training, Monitoring, Production, Presentation and Fees.

License

means a perpetual, compensation-free, non-transferable license to do the things described in clause 49.5.

Monitor

means the proposed entity to provide Monitoring to the Customer.

Monitoring

means the real-time monitoring of Data and provision of security services as set out in the Monitoring Agreement.

Monitoring Agreement

means the agreement between the Customer and the Monitor for the provision of Monitoring.

Monitoring Terms and Conditions

means the terms and conditions set out in clauses 36 to 42 (inclusive).

PPSA

means the Personal Property Security Act 2009 (Cth).

Presentation

means the complete audio and visual presentation prepared by Blackbox using the Footage.

Price List

means notice provided by Blackbox to the Customer describing the rates for the hiring of Equipment.

Production

means the filming, photography, post-production, editing and related services described in the Quote that Blackbox proposes to carry out.

Production Fees

means the proposed fees and costs of the Production described in the Quote.

Production Terms and Conditions

means the terms and conditions set out in clauses 43 to 49 (inclusive).

Qualifying Cause

means:

  1. a Force Majeure Event; or
  2. a Variation.

Quote

means notice provided by Blackbox to the Customer describing the proposed Deadline, Collateral, Special Conditions, Equipment, Equipment Fees, Equipment Insurance, Start Date, End Date, Term, Website access, Monitor, Production, Presentation, Production Fees, Completion Date, Instalment Amounts and Instalment Dates.

Site

means the location where the Customer will use and store the Equipment or where Blackbox will carry out the Production.

Special Conditions

means any terms or conditions in writing and labelled as special conditions that are either:

  1. provided by Blackbox to the Customer together with the Quote; or
  2. provided by the Customer to Blackbox, signed by Blackbox and returned to the Customer.

Staff

means the directors, employees, contractors and agents of a party (or any one of them).

Stand Down

means a temporary suspension of the use of Equipment.

Stand Down Rate

means an amount equal to 50% of the Equipment Fee for that Equipment.

Start Date

means the proposed start date described in the Quote.

Term

means the period of time commencing on the Start Date and ending on the End Date.

Training

means training by Blackbox’s officer, employee, contractor or agent regarding the use and maintenance of Equipment.

Transport Fee

means the reasonable costs of Blackbox delivering Equipment to the Customer (including unloading and setup) and collecting Equipment from the Customer (including breakdown and loading).

Variation

means an addition, subtraction or variation to the Production or Presentation.

Website

means the website made available by Blackbox for the viewing and retrieval of Data.

  1. Interpretation
    1. In this Agreement, unless the context requires otherwise:
      1. grammatical forms of defined words or phrases have corresponding meanings;
      2. words importing the singular include the plural and vice versa;
      3. reference to a clause or annexure is to a clause of or annexure to this Agreement;
      4. reference to a document is to that document as amended, novated, supplemented, varied or replaced from time to time and includes any annexures, schedule and appendices to that document, except to the extent prohibited by that document;
      5. reference to legislation or a legislative provision includes any statutory modification, substitution or re-enactment and any subordinate legislation issued under that legislation or provision;
      6. reference to a party includes that party’s Staff and executors, administrators, substitutes, successors and permitted assignees;
      7. reference to a person includes a natural person, partnership, corporate entity, association, governmental or local authority or agency or other entity;
      8. no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it or because that party seeks to rely on any part of the Agreement; and
      9. no clause of this Agreement is limited or restricted by the term “including” or the use of examples.

 

Hire Terms and Conditions

  1. Hire
    1. Blackbox grants the Customer the right to use the Equipment for the Term in accordance with the Agreement.
    2. During the Term, the Customer will pay Blackbox:
      1. the Hire Fee;
      2. the Transport Fee;
      3. the Government Charges; and
      4. all other amounts payable by the Customer to Blackbox under this Agreement.
  2. Training
    1. At the time of delivery of Equipment to the Customer, the Customer will make at least 1 and no more than 3 of its Staff available at the Site for Training.
    2. If the Customer fails to comply with clause 20.1, in addition to the rights and obligations described in clause 5:
      1. Blackbox may in its sole discretion elect to immediately collect the Equipment;
      2. if Blackbox collects the Equipment:
        1. Blackbox will re-deliver the Equipment to the Customer at least 1 hour before the end of ordinary hours within a reasonable period of time; and
        2. the Customer will pay the Transport Fee for the original delivery and re-delivery;
      3. if Blackbox leaves the Equipment at the Site:
        1. its obligation to deliver the Equipment to the Site, including its obligation under clause 20.1, will be deemed discharged;
        2. the Customer will remain liable for the correct use and maintenance of the Equipment as if Blackbox had provided Training under clause 20.1; and
        3. the Customer indemnifies Blackbox and will keep Blackbox indemnified from and against all loss and damage Blackbox suffers or incurs (including administrative costs and legal costs on an indemnity basis) arising from or connected to the Customer’s incorrect use or maintenance of the Equipment.
    3. From time to time during the Term, the Customer may give Blackbox notice requesting Training.
    4. Within a reasonable time of receipt of notice under clause 20.3, Blackbox will arrange persons to attend the Site to provide Training to at least 1 and no more than 3 of the Customer’s Staff.
    5. At the time arranged by Blackbox under clause 20.4, the Customer will make at least 1 and no more than 3 of its Staff available at the Site for Training.
    6. The Customer will pay Blackbox the Training Fee for each Training session provided under clauses 20.3 to 20.5 (inclusive).
    7. Training is instructive only and does not result in or contribute to any qualification.
  3. Term
    1. Blackbox may in its sole discretion describe the start date or duration of the Term in the Quote.
    2. If the Quote does not describe the start date of the Term, the start date of the Term will be the date Blackbox delivers any Equipment to the Customer.
    3. If the Quote does not describe the duration of the Term, the duration of the Term will be 3 months from the start date of the Term.
    4. The Term ends on the earlier of:
      1. close of business on the last day of the duration of the Term; or
      2. termination of this Agreement.
    5. No later than 10 Business Days before the end of the Term, the Customer may give notice to Blackbox requesting an extension of the Term.
    6. A notice requesting an extension of the Term must describe the duration of the requested extension.
    7. Subject to clause 21.8, Blackbox cannot unreasonably refuse a request for an extension of the Term.
    8. For the purposes of clause 21.7, the following items will be deemed reasonable grounds for refusing a request for an extension of the Term:
      1. the Customer being in default under this Agreement;
      2. the Customer having repeatedly breached the same or similar terms of this Agreement;
      3. Blackbox requiring any of the Equipment to meet an obligation to a third party; and
      4. Blackbox determining that it must collect the Equipment for maintenance or repair.
    9. If the Customer retains possession of any Equipment after a reasonable period from the end of the Term for Blackbox to collect the Equipment, the Customer will hold that Equipment on the terms and conditions of this Agreement save that:
      1. the Term will be indefinite; and
      2. notwithstanding clause 21.9(a), either party may terminate the agreement by providing the other party 2 Business Days’ notice.
  4. Price List
    1. This clause 22:
      1. applies only to notices that are a Price List; and
      2. to the extent of any inconsistency, will supersede any other term in this Agreement dealing with notices.
    2. From time to time, Blackbox may in its sole discretion vary, withdraw or replace the Price List by giving notice to the Customer.
    3. In addition to the other methods for providing notice under this Agreement, Blackbox may vary, withdraw or replace the Price List by making the Price List available on the Blackbox’s website or removing the Price List from Blackbox’s website (as the case may be).
    4. The Customer acknowledges its responsibility to monitor Blackbox’s website for variations, withdrawals and replacements of the Price List.
    5. The Price List must:
      1. be clearly labelled as the Price List; and
      2. describe the rate for hiring a least one type of Equipment.
    6. A variation, withdrawal or replacement of the Price List will take effect 20 Business Days after Blackbox provides the Customer with notice.
    7. Nothing in this Agreement obligates Blackbox to:
      1. vary, withdraw or replace the Price List or to refrain from varying, withdrawing or replacing the Price List; or
      2. subject to clause 22.5(b), have the Price List describe the rate for hiring any type of Equipment
  5. Invoicing
    1. No later than 10 Business Days after the beginning of each month, Blackbox will Invoice the Customer for all Equipment Fees the Customer will incur under this Agreement for that month.
  6. Equipment
    1. At delivery, all Equipment will be of good quality and repair and capable of carrying out its intended functions.
    2. The Equipment will be:
      1. at Blackbox’s risk until delivery to the Customer; and
      2. at the Customer’s risk until the completion of collection (being return of the Equipment to Blackbox’s premises).
    3. Without limiting clause 24.2(b), and subject to clause 24.4, during the Term the Customer will be liable to Blackbox for all damage to the Equipment however caused.
    4. The Customer will not be liable to Blackbox for damage to the Equipment caused by:
      1. fair wear and tear; and
      2. an act or omission of Blackbox.
    5. Subject to clause 24.6, if the Equipment is stolen, lost or destroyed during the Term, the replacement value of that Equipment will be a debt immediately due and owing by the Customer to Blackbox without demand.
    6. If an act or omission of Blackbox causes the Equipment to be stolen, lost or destroyed during the Term, Blackbox will at its own cost promptly replace the Equipment.
  7. Equipment Insurance
    1. This clause 25 is subject to Blackbox requiring the Customer obtain and maintain Equipment Insurance by noting that requirement on the Quote.
    2. During the Term, the Customer will obtain and maintain Equipment Insurance.
    3. Subject to clause 25, the Customer will pay all costs of the Equipment Insurance, including all amounts payable in respect of a claim under the Equipment Insurance.
    4. Blackbox will pay all amounts payable in respect of a claim under the Equipment Insurance if the claim was caused by an act or omission of Blackbox.
    5. Other than acts and omissions in the ordinary course of its business, the Customer will not do or fail to do anything that would increase any cost under the Equipment Insurance.
    6. The Customer will provide Blackbox with evidence of the Equipment Insurance (including a copy of the certificate of currency) within 2 Business Days of:
      1. the delivery of Equipment; and
      2. receipt of a certificate of currency or other document confirming coverage; and
      3. receipt of notice from Blackbox requesting evidence (provided Blackbox has not provided such a request in the preceding 6 months).
    7. Upon becoming aware of any circumstance that may cause a claim under the Equipment Insurance, the Customer will immediately provide Blackbox with notice describing the details of the circumstance.
    8. Upon a claim being made under the Equipment Insurance, the Customer will:
      1. immediately provide Blackbox with all correspondence and documentation the Customer sends or receives regarding the claim;
      2. promptly provide Blackbox will all requested information and documentation in the Customer’s possession or control regarding the claim; and
      3. sign all documents and do all things required to facilitate the claim.
    9. The Customer will direct the underwriter of the Equipment Insurance to pay all monies payable in respect of a claim under the Equipment Insurance to the bank account nominated by Blackbox.
    10. Blackbox may in its sole discretion apply some or all monies received from the underwriter of the Equipment Insurance to:
      1. the repair or replacement of any Equipment;
      2. monies owed by the Customer to Blackbox under this Agreement; and
      3. monies to be owed by the Customer to Blackbox under this Agreement until the end of the term or the end of 12 months from receipt (whichever is shorter).
    11. Upon performance of clause 25.10, Blackbox must pay to the Customer the balance of any monies received from the underwriter of the Equipment Insurance.
  8. Before Hire
    1. Blackbox will deliver the Equipment to the Customer at least 1 hour before the end of ordinary hours:
      1. on or before the start date described in the Quote; or
      2. if the Quote does not describe a start date, within a reasonable period of time.
    2. Without limiting the generality of the word, Equipment will be deemed “delivered” to the Customer under this Agreement upon:
      1. the Equipment being unloaded on the Site; or
      2. the Customer taking possession of the Equipment.
    3. Subject to clause 26.8, notwithstanding any other term of this Agreement if Blackbox has not delivered the Equipment in accordance with clause 26.1:
      1. Blackbox will not be in default or breach of this Agreement;
      2. the Customer will have no cause of action or other right of recovery against Blackbox under this Agreement or at Law; and
      3. the Customer may provide Blackbox notice terminating this Agreement.
    4. Notwithstanding any other term of this Agreement, Blackbox is not obligated to deliver any Equipment to the Customer until:
      1. Blackbox and the Customer consult with each other to determine the condition and suitability of the Equipment for the Customer’s purpose; and
      2. the Customer has provided Blackbox evidence (to Blackbox’s satisfaction) of the Customer having obtained all permits, permissions and consents and paid all amounts required to hold and use the Equipment.
    5. Each party will use reasonable endeavours to discharge its obligations under clause 26.4.
    6. At the request of the Customer, Blackbox may in its sole discretion deliver Equipment to the Customer without the parties having discharged their obligations under clause 26.3.
    7. If Blackbox delivers Equipment to the Customer without the parties reaching a determination after having consulted under clause 26.3(a), the Customer will indemnify Blackbox and keep Blackbox indemnified from and against all loss and damage Blackbox suffers or incurs (including legal costs on an indemnity basis) arising from or connected to:
      1. the Equipment being of unsuitable condition for the Customer’s purpose; and
      2. any permit, permission or consent or payment required for the Customer to hold and use the Equipment.
    8. Subject to clause 26.8, if the parties have not reached a determination after having consulted under clause 26.3(a) within 10 Business Days of the formation of this Agreement, and a party has discharged its obligation under clause 26.4, that party may provide the other party notice terminating this Agreement.
    9. A party cannot terminate this Agreement under clause 26.2 or 26.8 if Blackbox has delivered any Equipment.
    10. Upon delivery, the Customer will inspect the Equipment and if the Equipment is in unsatisfactory condition or is does not meet the suitably requirements agreed to by the parties, within 3 Business Days of delivery the Customer must give Blackbox notice describing the unsatisfactory condition or unsuitably of the Equipment.
    11. If the Customer does not provide notice within the time required by clause 26.10:
      1. the Equipment will be deemed to have been at the time of delivery in satisfactory condition and suitable for the Customer’s purpose; and
      2. Blackbox may plead this Agreement as a bar to any allegation or claim by the Customer that at the time of delivery the Equipment was in unsatisfactory condition or unsuitable for the Customer’s purpose.
  9. During Hire
    1. During the Term, the Customer will:
      1. permit only suitably trained, experienced licensed, accredited and capable Staff to use and maintain the Equipment;
      2. use, store and maintain the Equipment:
        1. in a safe, secure and diligent manner exercising due care and attention; and
        2. in accordance with the Equipment’s documentation, the Training and all Laws;
      3. without limiting clause 27.1(a):
        1. maintain the Equipment in the same condition as at the time of delivery (fair wear and tear excepted); and
        2. not use or store the Equipment, or allow the Equipment to be used or stored, in any manner that may cause injury or damage to the Equipment or any person or property;
      4. be liable for and will promptly pay all costs of operating the Equipment and complying with this clause 27.1
      5. immediately cease using Equipment that has broken down or failed or that has been destroyed or damage or involved in an incident that breached any Law or caused loss or damage to any person or property;
      6. notify Blackbox within 1 Business Day of:
        1. breakdown or failure of the Equipment;
        2. the destruction of or damage to the Equipment; and
        3. any incident involving the Equipment that breached any Law or caused loss or damage to any person or property;
      7. not remove the Equipment from the Site;
      8. not repair or attempt to repair or cause any repair to be made to the Equipment without the prior consent of Blackbox;
      9. not add, alter or remove:
        1. any part of the Equipment (other than in the ordinary course of using and maintain the Equipment); and
        2. any plate, marking, numbering or other information on the Equipment;
      10. comply with Blackbox’s directions regarding the Equipment;
      11. upon Blackbox’s request, give Blackbox notice describing reasonable times for Blackbox to inspect the Equipment;
      12. permit Blackbox to attend the Site for the purposes of inspecting the Equipment; and
      13. make the Equipment available for Blackbox to inspect.
    2. From time to time during the Term, Blackbox:
      1. may give the Customer notice requesting an inspection of the Equipment;
      2. may attend the Site and inspect the Equipment at the times designated by the Customer; and
      3. will follow the Customer’s directions whilst on the Site; and
      4. may in its sole discretion determine that any Equipment is unsuitable for use and must be repaired or replaced.
    3. Notice under clause 27.1(d) will be deemed permission to attend the Site and inspect the Equipment under clause 27.2 and the parties will cooperate in good faith to organise a time for inspection as soon as possible.
    4. Without limiting clause 27.2(d), Equipment will be unsuitable for use if there is more than a negligible risk that the Equipment’s ordinary use may cause loss or damage to the Equipment or any person or property.
    5. If Blackbox determines that any Equipment is unsuitable for use, Blackbox will give notice to the Customer advising:
      1. whether Blackbox is of the view that the unsuitable condition of the Equipment was caused or contributed to by the Customer or any person under the Customer’s direction or control or the Customer’s breach of this Agreement; and
      2. that the Equipment must be repaired or replaced.
    6. If Blackbox provides the Customer notice under clause 27.5:
      1. Blackbox must promptly attend to the repair or replacement of the Equipment;
      2. subject to clause 27.6(c), the Customer will:
        1. continue to incur and pay the Equipment Fee for the Equipment;
        2. pay Blackbox’s reasonable costs of repairing or replacing the Equipment;
      3. if the unsuitable condition of the Equipment was not caused or contributed to by the Customer or any person under the Customer’s direction or control or the Customer’s breach of this Agreement:
        1. the Equipment Fee for the Equipment will be suspended until the Equipment is repaired or replaced; and
        2. Blackbox will pay its own costs of repairing or replacing the Equipment.
  10. Stand Down
    1. The Customer cannot Stand Down the Equipment except in accordance with this clause 28.
    2. From time to time, the Customer can give notice to Blackbox requesting to Stand Down Equipment for a defined period.
    3. Within 2 business days of receipt of notice under clause 28.2, Blackbox must give the Customer notice advising whether Blackbox consents to the request to Stand Down.
    4. Blackbox may place reasonable conditions on giving consent under clause 28.3, including that:
      1. the period of the Stand Down be increased or decreased;
      2. the Customer has no unremedied breaches of the Agreement;
      3. the Customer has not Stood Down Equipment in the 3 months prior to the request under clause 28.2; and
      4. the End Date be extended by a period equal to the period of Standing Down.
    5. If Blackbox does not provide consent, the notice under clause 28.3 must describe Blackbox’s reasons for withholding consent.
    6. If Blackbox consents to the request to Stand Down, during the Stand Down period the Customer will continue to comply with all its obligations under this Agreement save that the Customer:
      1. will not use the Stood Down Equipment; and
      2. will pay the Stand Down Rate for the Stood Down Equipment.
  11. After Hire
    1. At the end of the Term:
      1. the Customer must immediately:
        1. cease using the Equipment; and
        2. make the Equipment available for collection from the Site during business hours; and
      2. Blackbox must:
        1. within 2 Business Days of the Equipment becoming available, collect the Equipment from the Site during business hours; and
        2. within 5 Business Days of the end of the Term, arrange to transfer all Data to the Customer.
    2. The Customer will:
      1. continue to incur the Equipment Fee until completion of collection (being delivery of the Equipment to Blackbox’s premises).
      2. cease to incur the Equipment Fee if:
        1. the Customer has made the Equipment available for collection from the Site; and
        2. Blackbox has not collected the Equipment within 2 Business Days of the Equipment becoming available.
    3. If the Customer terminates this Agreement for any reason other than Blackbox’s breach of this Agreement, and less than 90% of the Term has elapsed, within 10 Business Days of termination the Customer must pay Blackbox the greater amount between:
      1. the Early Termination Fee; or
      2. the Hire Fee had the Agreement continued to the end of the Term.
    4. If Blackbox terminates this Agreement for any reason, the Customer will have no right and Blackbox will have no obligation to refund or otherwise compensate the Customer for any payment by the Customer to Blackbox made or applied under this Agreement.
    5. After collection of the Equipment, Blackbox may in its sole discretion inspect the Equipment at the times designated by the Customer determine that any Equipment is unsuitable for use and must be repaired or replaced.
    6. Without limiting clause 29.5, Equipment will be unsuitable for use if there is more than a negligible risk that the Equipment’s ordinary use may cause loss or damage to the Equipment or any person or property.
    7. If Blackbox determines that any Equipment is unsuitable for use, Blackbox will give notice to the Customer advising that the Equipment is unsuitable for use and that the Customer is liable for repairing or replacing the Equipment.
    8. If Blackbox provides the Customer notice under clause 29.7:
      1. Blackbox must:
        1. promptly attend to the repair or replacement of the Equipment; and
        2. upon completion of the repair or replacement, provide the Customer notice describing Blackbox’s reasonable costs of repairing or replacing the Equipment; and
      2. within 5 Business Days of the date of notice provided under clause 29.8(a)(ii), the Customer will pay Blackbox’s reasonable costs of repairing or replacing the Equipment.
  12. PPSA
    1. Blackbox:
      1. may in its sole discretion register its interest in the Equipment under the PPSA; and
      2. is not required to provide the Customer notice under the PPSA unless that obligation cannot be excluded.
    2. Without limiting clause 30.1, Blackbox’s interest in the Equipment under the PPSA includes and/or attaches to all proceeds.
    3. The Customer:
      1. consents to Blackbox registering its interest in the Equipment under the PPSA;
      2. will sign all documents and do all things necessary to facilitate the registration of Blackbox’s interest under the PPSA;
      3. waives the right to receive verification of a registration of an interest under the PPSA pursuant to section 157(3)(b) of the PPSA; and
      4. must do everything necessary on its part to ensure that section 275(6)(a) of the PPSA continues to apply.
    4. Pursuant to section 115 of the PPSA, the parties contract out of the following sections of the in respect of all goods to which that section can be applied: section 95 (notice of removal of accession); section 96 (when a person with an interest in the whole may retain an accession); section 121(4) (enforcement of liquid assets – notice to grantor); section 125 (obligations to dispose of or retain collateral); section 130 (notice of disposal); sections 129(2) and 129(3) (disposal by purchase); section 132(3)(d) (contents of statement of account after disposal); section 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).
    5. The parties will not disclose information of the kind that can be requested under section 275(1) of the PPSA.
    6. The sole purpose of clause 30.3(d) is giving Blackbox the benefit of section 275(6)(a) and Blackbox is not liable for any compensation or to any injunction regarding a breach of clause 30.3(d).
    7. Blackbox’s rights under this clause 30 are in addition to and not in substitution for their respective rights under Law.
    8. Nothing in this Agreement requires Blackbox to register its interest in the Equipment under the PPSA or otherwise.
  13. Repossession
    1. The operation of this clause 31 is subject to:
      1. the Customer being in default under this Agreement; or
      2. at any time, Blackbox determining that, if the Equipment remains in the possession or control of the Customer or remains on the Site:
        1. the Equipment has reasonable prospects of being damaged or destroyed or possession;
        2. there are reasonable prospects of a third party taking possession or control of the Equipment; or
        3. Blackbox’s right, title or interest in the Equipment or rights under this Agreement regarding this Equipment have reasonable prospects of being materially prejudiced.
    2. Blackbox may in its sole discretion sign all documents and do all things required to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any Equipment under:
      1. section 123 (secured party may seize collateral); section 126 (apparent possession of collateral); section 128 (secured party may dispose of collateral); section 129 (disposal by purchase); and section 134 (proposal of secured party to retain collateral) of the PPSA; and
      2. this Agreement.
    3. For the purpose of exercising the rights under clause 31.2, the Customer authorises Blackbox to enter the Site and all other premises the Customer owns or controls at which Equipment is located.
    4. Blackbox’s rights under clause 31.2 do not prejudice any other right or remedy available to Blackbox under this Agreement or at Law.
    5. If Blackbox exercises its rights under clause 31.2, this Agreement will be terminated and will be deemed terminated by agreement between the parties and that termination will not prejudice any rights accrued prior to termination.
  14. Power of Attorney
    1. The Customer irrevocably appoints each officer of Blackbox as its attorney with the power to sign all documents and do all things the Customer is obligated to do under clauses 30 and 31.
  15. Title
    1. All right, title and interest in the Equipment remains with Blackbox.
    2. Nothing in this Agreement transfers any right, title or interest in the Equipment to the Customer (other than the rights specifically described in this Agreement).
    3. The Customer will not, and will not agree to, part with possession of, sell, sub-lease, re-hire, transfer, pledge, dispose of, mortgage, represent, charge or encumber the Equipment or otherwise deal with the Equipment in any way which is inconsistent with Blackbox’s right, title and interest in the Equipment
  16. Website
    1. This clause 34 is subject to Blackbox offering to supply Website access to the Customer and describing that offer in the Quote.
    2. During the Term, Blackbox will make the Website and Data available for access and use by the Customer.
    3. The Customer will:
      1. use the Website in accordance with the Website’s documentation and all Laws; and
      2. comply with Blackbox’s directions regarding the Website.
    4. The Customer will not:
      1. copy, reproduce, translate, reverse engineer, derive source code from, modify, disassemble, decompile or create derivative works using the whole or any part of the Website;
      2. collect, distribute, store or transmit Data which Blackbox (in its sole discretion) determines violates any Law;
      3. use the Website or Data:
        1. to access, copy or distribute information of any owner and nature to which the Customer is not explicitly entitled to access under this Agreement;
        2. to circumvent the security of the Website and Data or their network or server;
        3. in a way that may or does cause any loss, damage or harm to Blackbox or Blackbox’s business, products, operations, reputation, staff or relationships; or
      4. agree to or permit any person to do any thing described in this clause 34.3(b).
    5. Without limiting clauses 34.2 and 34.4, the Customer will breach this Agreement by:
      1. introducing malicious programs (including viruses and worms) to the Website or Data network or server;
      2. intercepting or disrupting the Website or Data’s communication and/or connectivity with the internet or any other person (including port scans, pings, email-bombing, packed spoofing, IP spoofing, forged routing information, denial of service attacks and distributed denial of service attacks);
      3. avoiding user authentication (including the use of accounts and passwords not explicitly assigned to the Customer);
      4. conducting itself in a manner designed to avoid restriction or access limits to specific services, hosts or networking;
      5. running an openly accessible proxy of any kind.
    6. If the Customer breaches any term of this Agreement regarding the Website or Data then, in addition to all rights and remedies available to Blackbox under this Agreement and at Law, Blackbox may in its sole discretion without notice immediately suspend or block the Customer’s access to the Website or Data.
    7. If Blackbox suspends or blocks the Customer’s access to the Website or Data under clause 34.6, Blackbox must:
      1. promptly notify the Customer or the suspension or block; and
      2. lift the suspension or unblock the Website and Data upon the Customer remedying the breach the cause of the suspension or block.
    8. Further and in addition to clause 6, the Customer acknowledges and agrees that, excluding wilful disruption or damage caused by Blackbox, Blackbox is not responsible or liable for:
      1. any disruption or failure of the Website at any time for any reason; or
      2. any communications, Data and/or Customer information lost, altered, intercepted or stored without authorisation in connection with the Customer’s use of the Website or Data.
    9. Excluding specifically described Equipment, nothing in this Agreement obligates Blackbox to provide or make available to the Customer the physical means of accessing and using the Website, including computer, tablet or phone equipment.
    10. Blackbox does not represent or warrant that the Website will:
      1. be secure, uninterrupted or error-free;
      2. operate with any hardware, software, system or Data;
      3. meet the Customer’s requirements or expectations;
      4. be accurate or reliable;
      5. be free of errors or defects;
      6. be free of viruses or other harmful components.
    11. The Website is provided to the Customer strictly on an ‘as is’ basis; all other conditions, representations and warranties, whether express, implied, statutory or otherwise, including without limitation, any implied warranty of merchantability fitness, for a particular purpose, or non-infringement of third party rights are disclaimed by Blackbox to the maximum extent permitted by applicable law.
  17. Intellectual Property
    1. Subject to clause 35.2, the Customer will not use, copy, disseminate or otherwise exploit the Intellectual Property in the Equipment or Website.
    2. The Customer may use the Intellectual Property in the Equipment and Website only if:
      1. necessary for the Customer to exercise a right under this Agreement; and
      2. that use will not and is not likely to cause any loss, damage or harm to Blackbox or Blackbox’s business, products, operations, reputation, staff or relationships.
    3. The Customer acknowledges and agrees that all Intellectual Property in the Equipment and Website is licensed or owned by Blackbox and nothing in this Agreement grants, assigns or otherwise transfers that Intellectual Property to the Customer.
    4. Upon request by Blackbox, the Customer will promptly sign all documents and do all things required to transfer to Blackbox all Intellectual Property created or modified by the Customer while using the Equipment or Website.
    5. If the Customer breaches clause 35.5 then, without prejudice to any other remedy available under this Agreement, the Customer appoints each director of Blackbox as the Customer’s attorney to sign all documents and do all things transfers to Blackbox all Intellectual Property created or modified by the Customer while operating the Equipment or using the Services.
    6. Each attorney appointed under clause 35.6 may exercise their power jointly or severally.
    7. Upon request by Blackbox, the Customer will promptly sign all documents and do all things required to ratify each act of an attorney under clause 35.6.
    8. Upon request by Blackbox, the Customer will promptly sign all documents and do all things requested by Blackbox to assist Blackbox with obtaining, registering, transferring, maintaining and defending its Intellectual Property in the Equipment and Website.
    9. Provided the action was not caused or contributed to by the Customer, Blackbox will pay the Customer’s reasonable costs of complying with clause 35.9.
    10. The Customer will cease using the Intellectual Property in the Equipment and Website upon the earlier of:
      1. the end of the Term; or
      2. termination of this Agreement.
    11. The Customer warrants to Blackbox that:
      1. the Customer will not provide the Intellectual Property in the Equipment or Website to any other person without the prior written permission of Blackbox; and
      2. the Customer will not copy, disseminate, reverse-engineer or otherwise exploit the Intellectual Property in the Equipment and Website other than in accordance with this Agreement.

Monitoring Terms and Conditions

  1. Monitoring Agreement
    1. This Agreement is subject to and conditional upon the Customer and the Monitor executing a Monitoring Agreement.
    2. Notwithstanding the Equipment Terms and Conditions, Blackbox has no obligation to deliver Equipment (or arrange to do the same) prior to receipt of an Executed Monitoring Agreement.
    3. If Blackbox has not received an Executed Monitoring Agreement within 11 business days of the Customer having accepted the Quote, either party may immediately terminate this Agreement by providing notice to the other party.
    4. A party cannot terminate this Agreement under clause 36.3 if Blackbox has received an Executed Monitoring Agreement.
    5. Nothing in this Agreement obliges the Customer or the Monitor to execute a Monitoring Agreement.
    6. No terms of any Monitoring Agreement form part of this Agreement.
  2. Monitoring
    1. All Monitoring will be provided by the Monitor.
    2. If at any time Blackbox does any thing deemed an act under or in fulfilment of any Monitoring Agreement, the Customer acknowledges and agrees that Blackbox did that thing on behalf of the Monitor and not in Blackbox’s own capacity.
    3. Nothing in this Agreement obligates Blackbox to:
      1. provide any Monitoring to the Customer; or
      2. do any thing deemed an act under or in fulfilment of any Monitoring Agreement.
  3. Payment
    1. Nothing in this Agreement obligates the Customer to pay any monies to Blackbox in respect of the Monitoring agreement.
    2. If the Customer pays Blackbox any monies in respect of the Monitoring Agreement, Blackbox:
      1. holds those monies on trust for the Monitor;
      2. will promptly pay those monies to the Monitor; and
      3. will not apply those monies to any amounts payable by the Customer to Blackbox under this Agreement.
  4. Breach and Termination
    1. The Customer’s breach of the Monitoring Agreement will be deemed a breach of this Agreement.
    2. If the Monitoring Agreement is terminated due to the Customer’s breach of the Monitoring Agreement, at any time Blackbox may immediately terminate this Agreement by providing the Customer notice.
    3. If the Monitoring Agreement is terminated due for any reason other than the Customer’s breach of the Monitoring Agreement, either party may immediately terminate this Agreement by providing the other party notice within 10 business days of the termination of the Monitoring Agreement.
    4. The rights and remedies in this clause 39 are cumulative and in addition to all other rights and remedies under this Agreement and at Law.
  5. Acknowledgement
    1. The Customer acknowledges that:
      1. Blackbox:
        1. did not prepare the Monitoring Agreement;
        2. is not party to the Monitoring Agreement;
        3. cannot amend the Monitoring Agreement;
        4. will not provide the Monitoring;
        5. has no control or influence over the Monitoring; and
        6. has no control or influence over the Monitor;
      2. the Monitor:
        1. prepared the Monitoring Agreement;
        2. will provide the Monitoring; and
        3. controls the Monitoring.
    2. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including without limitation, any implied warranty of merchantability fitness, for a particular purpose, or non-infringement of third party rights regarding the Monitoring Agreement, the Monitoring and the Monitor are disclaimed by Blackbox to the maximum extent permitted by applicable law.
  6. Warranty
    1. Blackbox does not represent or warrant that the Monitoring will:
      1. be secure, timely, uninterrupted or error-free;
      2. operate in combination with the Equipment or any other hardware, software, system or Data;
      3. meet the Customer’s requirements or expectations;
      4. be accurate or reliable;
      5. be free of errors or defects; or
      6. be free of viruses or other harmful components.
  7. Release and Indemnity
    1. The Customer releases and discharges Blackbox and holds Blackbox forever harmless from and against all demands, claims and proceedings howsoever caused (including Blackbox’s negligence) which the Customer has, may have or but for this clause 42 would have against Blackbox, arising from or connected to:
      1. any Monitoring Agreement;
      2. the Monitoring; and
      3. the Monitor.
    2. The Customer indemnifies Blackbox and will keep Blackbox indemnified from and against all loss and damage Blackbox suffers or incurs (including administrative costs and legal costs on an indemnity basis) arising from or connected to all demands, claims and proceedings howsoever caused (including Blackbox’s negligence) by the Customer (or anyone on the Customer’s behalf) against Blackbox arising from or connected to the matters described in clauses 42.1(a) to 42.1(c) (inclusive).

Production Terms and Conditions

  1. Obligations
    1. Blackbox must:
      1. carry out the Production and complete the Presentation:
        1. by the Completion Date; and
        2. in accordance with this Agreement;
      2. exercise due care and skill while carrying out the Production;
      3. as far as reasonably practical, consult, cooperate and coordinate with the Customer regarding:
        1. the dates and times for carrying out the Production; and
        2. the Production and Site to ensure the Production does not detrimentally affect the health and safety obligations and environmental obligations of the Customer or the Site;
      4. comply with the Customer’s health and safety directions and policies while on the Site;
      5. be responsible for and maintain the tidiness of the area on the Site on which it carries out the Production; and
      6. do all things and take all steps required to discharge its obligations under this clause 43.1 at its own expense.
    2. The Customer must:
      1. as far as reasonably practical, consult, cooperate and coordinate with the Blackbox regarding:
        1. the dates and times for carrying out the Production; and
        2. the Production and Site to ensure the Production does not detrimentally affect the health and safety obligations and environmental obligations of the Customer or the Site;
      2. promptly respond to Blackbox’s enquiries regarding the Production and Presentation; and
      3. provide Blackbox the on-Site electricity and data (including connections) and amenities (including water and toilets) reasonably required for Blackbox to carry out the Production.
  2. Invoicing
    1. Blackbox will Invoice the Customer the Instalment Amounts on the Instalment Dates.
  3. Extension of Time
    1. If a Qualifying Cause will prevent Blackbox from completing the Presentation by the Completion Date, Blackbox may within 3 Business Days of the occurrence of the Qualifying Cause give the Customer notice requesting an EOT.
    2. Within 3 Business Days of receiving notice under clause 45.1, the Customer must give Blackbox notice accepting or rejecting the request.
    3. Blackbox will not be entitled to any compensation for the acceptance or rejection of the request under clause 45.3.
  4. Variations
    1. From time to time, a party may provide the other party notice proposing a Variation.
    2. If Blackbox proposes a Variation under clause 46.1, Blackbox:
      1. must describe any increase in the Production Fee in its notice; and
      2. must not carry out the Variation unless the Customer approves.
    3. If the Customer proposes a Variation under clause 46.1, and that Variation would increase the Production Fee, Blackbox:
      1. must provide the Customer notice describing the increase; and
      2. must not carry out the Variation unless the Customer approves.
    4. Blackbox may in its sole discretion determine the increase in the Production Fee caused by a proposed Variation.
    5. The Customer may approve under clause 46.2 or 46.3 by providing Blackbox notice to proceed with the Variation.
    6. If a Variation would reduce or not affect the Production Fee and:
      1. the Customer proposed the Variation – Blackbox must carry out the Variation; and
      2. either party proposed the Variation – the Customer must pay the full Production Fee notwithstanding any reduction in the labour or materials required for the Production.
  5. Presentation
    1. Blackbox will provide at least 4 copies of the Presentation to the Customer of varying size/quality and in common formats playable on DVD players and computers.
    2. No later than 6 months after the provision of the Presentation, the Customer may give notice to Blackbox requesting a copy of the Presentation in a size/quality or format previously provided and Blackbox will promptly provide the requested copy.
    3. No later than 1 month after the provision of the Presentation, the Customer may give notice to Blackbox requesting a copy of the Presentation in a certain size/quality or format and Blackbox will use its reasonable endeavours to promptly provide the requested copy.
    4. If Blackbox’s costs of formatting and providing a copy of the Presentation under clause 47.3 are more than negligible, Blackbox may invoice the Customer for those costs and require payment before providing the requested copy.
  6. Site
    1. The Customer hereby authorises and permits Blackbox and its Staff to enter, traverse and remain on the Site.
    2. The Customer is responsible for and will maintain safety and security on the Site (including all health and safety obligations under the Law regarding the Site, whether imposed on the Customer or Blackbox).