Unless the context otherwise requires, the following words have these meanings: Contract means the Terms of Trade and the relevant Order (together they comprise the ‘Contract’); Credit Application means a written credit application with Xorix Media for the provision of credit by Xorix Media to the Customer; Customer means: if the Customer has signed or provided Xorix Media with a Credit Application, the customer specified in the Credit Application; or if the Customer has not signed or provided Xorix Media with a Credit Application, the customer specified in the Order; Xorix Media means OMGD Limited (CRN 2458843) its successors and assigns (and which may trade as “Xorix Media”); Intellectual Property Rights means all intellectual property rights of any kind including patents, designs, trademarks, circuits, copyright, service marks, trade names, business names, brand names, inventions, discoveries, trade secrets, know-how and all moral rights (whether allowable now or at some point in the future), an application for, or right to apply for registration or renewal of, an intellectual property right, and in each case whether registered or unregistered (and whether capable of registration or not) and any similar or equivalent rights and interests in Hong Kong or anywhere in the world; Order means any agreement (verbal and/or written) between Xorix Media and the Customer for the supply of the Services. Unless otherwise specified by Xorix Media, an Order has no set form and could be comprised of an email/emails, order by phone or fax or a combination of same; Photographic Images means images (including laser pointer measures) taken using Photographic Equipment; Photographic Equipment means the photographic, video camera or other visual recording device or non-visual recording device (such as a laser pointer) used to take the Photographic Images; Price means the price payable for the Services; Property means the property the subject of the Services; Services means the goods and/or services supplied by Xorix Media to the Customer as indicated in the Order. Without limiting the foregoing, reference to the ‘goods’ includes the work, Photographic Images and material supplied to the Customer as part of the Services.
Unless the context otherwise requires: (i) headings, boldings and underlines are for convenience only and do not affect the interpretation of this Contract; (ii) words importing the singular include the plural and vice versa; (iii) reference to a ‘person’ includes a company, partnership, joint venture, association, trust, corporation and vice-versa; (iv) a reference to any statute or regulation includes all statutes and regulations varying, consolidating or replacing them; (v) a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued after that statute; (vi) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of the Contract or any part of it; (vii) the words “includes”, “including”, “for example” or “such as” or similar expressions are not words of limitation; (ix) a covenant, an agreement or acknowledgment on the part of, or in favor of, two or more persons, binds them or ensures to their benefit jointly and severally (including if there are two or more persons forming the “Customer”).
Quotation, Orders and Acceptance
A quotation by Xorix Media shall be an invitation to the Customer to trade with Xorix Media. It shall not constitute an offer by Xorix Media to the Customer. The Customer may use the quotation to submit an Order to Xorix Media. Prices given in any quotation by Xorix Media are applicable to that quotation only and will not apply in any other instance, unless confirmed in writing by Xorix Media. Quotations are valid for the period specified in the quotation or, if no period is specified, 7 days from the date of issue by Xorix Media. If the Customer is given a quote, doesn’t sign and return it to Xorix Media but otherwise instructs Xorix Media to proceed, the Customer is taken to have submitted an Order to Xorix Media on the terms of the quote. Xorix Media is not obliged to accept any Order. The Contract shall only be or be deemed to have been entered into between Xorix Media and the Customer for the supply of Services when the Order has been accepted by Xorix Media (which may be done in writing, verbally or by Xorix Media commencing to fulfil the Order such as by making an appointment for the Services to be performed). The Customer agrees Xorix Media may sub-contract part or all of the provision of the Services.
The Customer must ensure full and free access to the Property is available and promptly provide all instruction, information and documentation reasonably requested by Xorix Media in order to perform the Services. Xorix Media is not liable to the Customer for any loss or damage of any kind suffered by the Customer as a result of any failure or delay by the Customer in respect of the foregoing and Xorix Media shall be entitled to a reasonable extension of any timeframe applicable to its obligations as a result of such failure or delay.
The Customer must ensure the Property is in a safe and presentable state for taking Photographic Images. Xorix Media may, but are not obliged to, move or remove items on or add items to the Property or suggest any moves, removals or additions. Xorix Media may refuse to take Photographic Images of any Property (or part thereof) which Xorix Media considers in its sole discretion to be unsafe or un presentable, in which case Xorix Media may vary the Price or Services (including charging a cancellation, postponement or reappointment fee) as determined by Xorix Media to take account of these Property conditions. If despite the condition of the Property Xorix Media elects to proceed with the taking of the Photographic Images, the Property will be shot ‘as is’ and the Customer cannot raise any objection to the Photographic Images of the Property being taken ‘as is’.
It is the Customer’s responsibility when booking an appointment to determine the time of day that best suits the Property. The Customer should consider such things as shadows (strong shadow casts across the Property should at all times be avoided), availability of natural lighting, predicted poor weather, and the season of the year.
Some properties may require two appointments at varying times of the day for best results (unless the second appointment is expressly included as part of the Services, the second appointment is an additional fee to the Price and charged at the rate determined by Xorix Media).
Electronic Files, Release of Files, Back-Up/Recovery and Online Tracking
Usually, the goods part of the Services will be provided electronically only. Xorix Media does not represent or warrant that goods provided electronically will be free from computer viruses, corruption or other damaging or disabling programs. It is the Customer’s responsibility to ensure it has appropriate hardware and software to be able to receive and open any electronic files provided by Xorix Media. Xorix Media reserves the right to refuse to release electronic files to third parties unless the Customer has provided their written consent to Xorix Media. Although Xorix Media may keep back-ups of or archive the goods (including storing them off-site with third parties), it is not required to do so, thus it is the Customer’s responsibility to ensure it backs-up and makes copies of all goods provided by Xorix Media. If the Customer requests copies of the goods, Xorix Media is entitled to charge a retrieval fee as determined by Xorix Media. Xorix Media accepts no liability or responsibility for any part of the goods not being able to be retrieved. If Xorix Media allows the Customer to track Orders on-line, it is the Customer’s responsibility to ensure any passwords and usernames are kept secure. Xorix Media does not represent or warrant that its on-line system will be hacker proof.
Quality of Services, Weather Conditions and Re-Shoot Fees
If the Customer is on the Property when the Photographic Images are taken and the Photographic Image is able to be viewed on the spot, the Customer must review the Photographic Images on the Photographic Equipment at the time the Photographic Images are taken and either approve or object to the Photographic Images taken at that time. The Customer must act promptly and reasonably in approving or objecting to the Photographic Images. If a Photographic Image is objected to by the Customer, Xorix Media will re-take the particular Photographic Image objected to at that time and the Customer must again either approve it or object to it at that time. If the Customer is not on the Property (and the Photographic Image is one that would have been able to be viewed on the spot) or fails to approve or object to the Photographic Images taken at the time of the Photographic Images are taken in accordance with the foregoing, the Customer is taken to have approved all such Photographic Images.
If the Photographic Image is not able to be viewed on the spot, then the Customer must review those Photographic Images when they are provided by Xorix Media and either approve or object to those Photographic Images within 7 days of the date on which Xorix Media forwarded same to the Customer. The Customer must act promptly and reasonably in approving or objecting to those Photographic Images. If a Photographic Image is objected to by the Customer it must be objected to in writing and be received by Xorix Media within the said 7 day period, after which Xorix Media will re-take the particular Photographic Image objected to and the Customer must again either approve it or object to it in accordance with the foregoing procedure. If the Customer does not object to the Photographic Images in accordance with the foregoing, the Customer is taken to have approved all such Photographic Images.
Except as agreed by Xorix Media, post-shoot requests for a re-shoot of any or all of the Photographic Images based on coverage, composition, photographic or visual recording style, artistic style of the Photographic Images, time of day, objects/artifacts/vehicular obstructions, state of the Property or access or other limitations that were present during the time the Photographic Images are taken will not be approved and the Customer is not entitled to withhold or delay payment because of such factors or because of its opinions regarding the quality or lack of perceived artistic merit in the Services. Xorix Media will, however, undertake a re-shoot at no additional cost if in its sole opinion the Photographic Images were significantly and adversely affected by the poor location of the sun or technical errors were made by Xorix Media, provided the Customer has made a written request for a re-shoot within 14 days after receiving the Photographic Images.
For best results, Xorix Media recommends Photographic Images be taken in dry weather conditions only, however, Xorix Media operates under a “shoot in all weather conditions” protocol. If Xorix Media issues a “poor weather notification” (PWN) to the Customer (including by SMS or email) and the Customer does not instruct Xorix Media to post-pone the taking of the Photographic Images before Xorix Media commences to take the Photographic Images, the appointment will continue. If the instructions are to postpone, usual postponement fees will apply. Unless the Customer has requested Xorix Media to continue with an appointment, if in poor weather (as determined by Xorix Media) Xorix Media proceeds with an appointment without issuing a PWN, any re-appointments required for incomplete work will not incur additional charges. Any re-appointments required for incomplete work or quality related issues due to poor weather, will incur charges at the rates determined by Xorix Media.
If the Services include re-touching, air-brushing or otherwise modifying the Photographic Images, then subject to any agreed instructions contained in the Order, Xorix Media will undertake same to the extent considered reasonable and adequate in the sole opinion of Xorix Media.
Real Estate Agents/Property Agents
If the Customer is a real estate agent or property agent, the Customer agrees Xorix Media will generally take instructions in the following order: vendor/landlord of the Property; the listing/leasing agent; listing/leasing agent’s office; the tenant of the Property. The Customer acknowledges that instructions from any of the foregoing people bind the Customer. The Customer agrees Xorix Media can contract with other real estate agents and property agents including in respect of the same Property.
Xorix Media is entitled to withhold delivery of the goods if the Customer has not completed and returned a signed Credit Application (if Xorix Media has requested the Customer to sign it) or if the Customer has failed to pay any amount required to be paid before delivery occurs.
Although Xorix Media will use reasonable endeavors to provide the Services by the due date, this time is not of the essence. Xorix Media shall not be liable to the Customer for any loss or damage of any kind suffered by the Customer arising out of any failure by Xorix Media to provide the Services on or by the agreed or specified date or within a reasonable time. Without limiting the foregoing, should completion of the Services be prevented, delayed or hindered directly or indirectly by circumstances beyond Xorix Media’s reasonable control then, at Xorix Media’s option, either the delivery time shall be extended until the effect of the delaying cause has ceased or Xorix Media may cancel the Contract. The Customer shall not be entitled to cancel the Contract for the resultant delay. Xorix Media shall not be liable for any loss or damage of any kind suffered by the Customer for the resultant delay or cancellation of the Contract. Unless otherwise agreed by Xorix Media and the Customer, Xorix Media shall be entitled to provide the Services in one or more lots. Where there is a part provision, Xorix Media shall be entitled to Invoice the Customer for pro-rata progress payments in respect thereof. The pro-rata amount is as determined by Xorix Media.
Without limiting the foregoing, the Customer acknowledges that: peak periods for Xorix Media are usually January, February, March, September, October, and November; timeframes are subject to factors such as the weather, access to the Property, condition of the Property, type of shoot for Photographic Images requested, instructions received from or on behalf of the Customer; twilight packages are more susceptible to over-run due to the nature of the Photographic Images taken at that time of day; extra time is needed to deliver open-home DVD’s.
Even after a Contract has been entered into, Xorix Media reserves the right to vary its Price to take account of the complexity, type and/or sizes of floor space within the Property or its surrounds. It is the Customer’s responsibility to check the fees payable for each Service prior to Order as prices are subject to change without notice at the discretion of Xorix Media.
Cancellation/Postponement by Customer and Fees
Xorix Media may cancel a Contract at any time before the Services are performed by notice to the Customer in which case Xorix Media shall repay any sums paid by the Customer in advance to Xorix Media in respect of the Services. Xorix Media may postpone a Contract at anytime. Xorix Media shall not be liable for any loss or damage of any kind suffered by the Customer arising from such cancellation or postponement.
Once an Order has been accepted by Xorix Media, the Contract arising from it may only be cancelled by the Customer with the written consent of Xorix Media. Without limiting any other rights or remedies of Xorix Media, if the Customer cancels a Contract (either with or without consent) or postpones an appointment, the following additional charges will apply: notice of 1 hour or more but not more than 2 hours before the scheduled appointment = $55; notice of 20 minutes or more but less than 1 hour before the scheduled appointment = $95; notice of less than 20 minutes before the scheduled appointment = $125. The postponement fees shall apply each time the Customer postpones the Services. The Customer must give Xorix Media (and its contractors) full and free access to the Property within 20 minutes of the scheduled appointment start time and if this does not occur, Xorix Media may treat this as a postponement by the Customer and in addition to any other rights or remedies is entitled to charge an additional postponement fee of $125. Auctions: A $110 payment will be applicable to cancellations with less than 24 hours notice; 50% of the total invoice value shall be payable for orders which are cancelled or postponed at the time of the on-site appointment or after the appointment is conducted but before the commencement of the editing. 100% of the total invoice value shall be payable once editing has commenced.
All postponements will be allocated to the next available date and time slot as determined by Xorix Media and the Customer cannot object to the date and time allocated. The Customer may not postpone the Contract more than once without the consent of Xorix Media. Xorix Media reserves the right to alter its cancellation and postponement fees at anytime by notice to the Customer (which may be given by publishing such details on Xorix Media’s website and it is the obligation of the Customer to check such website to ascertain whether these charges have been varied before cancelling or postponing the Services).
Refunds and Credit Notes
Payments made to Xorix Media for projects which are subsequently cancelled or postponed, invoice overpayments and billing errors are available for a full refund for up to 30 days from receipt. After 30 days, payments will be converted to a credit note for a period of 12 months which can be used on any of Xorix Media’s in-house products and services. After 12 months, credit notes will expire and customers will forfeit any remaining balance to Xorix Media.
Application of Terms of Trade and Authority to Contract
The Terms of Trade shall apply to every Order between Xorix Media and the Customer for the Services (even if not attached or referred to in an Order). Each Contract is a combination of these Terms of Trade and the relevant Order and each such Contract constitutes a separate and independent agreement. Any action taken in respect of one Contract does not automatically affect any or all other Contracts. The Customer agrees Xorix Media is entitled to assume that anyone on behalf of the Customer (including its employees) who places an Order with Xorix Media has full power and authority to bind the Customer irrespective of whether or not such person followed the Customers internal procedures before placing the Order and the Customer agrees to be bound by the acts or omissions of such persons.
The Customer must make payment of any amount payable to Xorix Media in accordance with the time period specified in the Contract or, if no such times are specified, within 21 days from the date of the Invoice. All times for payment are of the essence. Payments must only be made by such methods as permitted by Xorix Media from time to time. The persons Xorix Media uses to take Photographic Images and Xorix Media’s contractors and suppliers do not accept payment on location. If any payment is made by credit card, the Customer agrees Xorix Media may also charge and deduct from the credit card any merchant fees that apply.
Billing and Payment Policy for Supply Chain
All supplier invoices are to be issued Monthly In Arrears.
All invoices are to be submitted by the 5th Day after the Billing Month (Invoice Submission Day – ISD).
Only one invoice per supplier, per month will be accepted.
Invoices are paid between 21 to 37 days after ISD.
During the post-Christmas months of January to March, invoice payments may take longer than 37 days after ISD.
The Customer indemnifies Xorix Media against any loss, cost, damage or expense (including legal costs and disbursements on a full indemnity basis and any debt collection agency fees on a full indemnity basis), and any claims, demands, suits, actions and proceedings suffered, paid, incurred, instituted or defended by Xorix Media, resulting from or arising out of any breach of the Contract by the Customer or the cancellation or postponement of any Contract by the Customer (including if cancelled or postponed with the consent of Xorix Media).
Passing of Risk and Retention of Title
Risk in respect of loss, damage or destruction of the goods passes to the Customer upon delivery. Despite the passing of risk, Xorix Media retains full title to the goods until such time as all payments due by the Customer under the relevant Contract are received by Xorix Media. Xorix Media reserves the right in the event of non-payment of any amounts due by the Customer under the relevant Contract to retrieve the goods from the Customer including by entering any premises where the goods are stored and the Customer agrees Xorix Media shall not be liable for trespass as a result or for any damage caused in removing the goods from the premises. If it is or becomes necessary to register this clause or the Contract in order to give effect to the retention of title created by this clause, the Customer agrees to promptly sign such reasonable documentation and promptly perform all reasonable acts necessary in order to enable Xorix Media to register this clause or the Contract.
Variations and Inconsistency
If the Customer wishes to vary the Contract, Xorix Media reserves the right to vary the Price and/or any other aspect of the Contract to take account of such changes and in that case Xorix Media is entitled to suspend the provision of the Services until the Customer approves of the variations in writing. Xorix Media is not obliged to accept any variations put forward by the Customer to the Contract. Xorix Media may vary the Terms of Trade from time to time, in which case those new terms of trade shall apply to every new Order after the Customer is notified in writing of the new terms of trade. Subject to the foregoing and any other provision of the Terms of Trade, any variation, amendment or consent to departure by any party from the Contract shall have no force or effect unless agreed to in writing by Xorix Media. If there is any inconsistency between the Terms of Trade and the Order, the terms of the Order prevail to the extent of the inconsistency. Any terms or conditions put forward by the Customer in respect of the Services are null and void and of no effect unless accepted by Xorix Media in writing.
Limitation of Liability
To the fullest extent permitted by law: (i) Xorix Media shall not be liable to the Customer for any consequential, special, incidental or other indirect loss or damage including loss of profit, loss of opportunity, business, revenue, goodwill or anticipated savings arising out of the performance, non-performance or defective performance of the obligations of Xorix Media irrespective of whether or not Xorix Media was made aware of the possibility of such loss and this includes Xorix Media being unable to supply the Services in time to make the Customer’s print and other media deadlines; (ii) all express and implied warranties, terms and conditions in relation to the obligations of Xorix Media including those implied by use, trade, custom or otherwise are hereby excluded; (iii) the Customer agrees Xorix Media is not liable or responsible for any loss or damage the Customer suffers or incurs due to circumstances beyond the reasonable control of Xorix Media; (iv) Xorix Media shall not be liable to the Customer for the negligence, acts or omissions of its contractors; (v) subject to the foregoing, Xorix Media’s total liability to the Customer for breach of its obligations to the Customer are at the option of Xorix Media limited, in the case of the ‘goods’ component of the Services, to replacing or resupplying the goods or paying for the cost of replacing or resupplying the goods, and in the case of the ‘services’ component of the Services, to supplying the services again or paying for the cost of having the services supplied again.
Apart from a limited non-exclusive and non-transferable licence to use the goods supplied to the Customer as part of the Services for the purpose of the Customer advertising, selling or leasing the Property, the Customer agrees it must not use the goods for any other purpose and the Customer agrees: it receives no other Intellectual Property Rights in respect of such goods or any other part of the Services; all Intellectual Property Rights in respect of the Services remain at all times with Xorix Media. Without limiting the foregoing, the goods are not to be used for other projects, sold or given to parties not involved with the project for which they were ordered without the prior written consent of Xorix Media. Specifically, if the Customer is the owner of the Property, it may use the goods for its personal use only but is otherwise not permitted to supply images to any real estate agent or property agent. Xorix Media reserves the right to use any goods or any other part of the Services for any purpose it sees fit. The Customer warrants that any artwork, designs, drawings, plans, specifications or anything else supplied by or on behalf of the Customer which relates to the creation, performance or development of the Services does not infringe the Intellectual Property Rights of any third party.
Suspension and Termination
If the Customer defaults or fails or delays in performing its obligations then in addition to and without prejudice to any other rights or remedies of Xorix Media (including exercising a right of termination after suspension), Xorix Media may suspend the performance of its obligations until such default, failure or delay is rectified without being liable to the Customer for any loss or damage of any kind suffered by the Customer as a result of such suspension. Xorix Media shall be entitled to a reasonable extension of any timeframe applicable to its obligations as a result of such suspension. If a party: (i) has a receiver, receiver and manager, administrator, liquidator, provisional liquidator or external controller appointed to it; (ii) becomes bankrupt, insolvent or is wound-up; has a resolution passed for its winding-up, commits an act of insolvency or bankruptcy; (iii) enters into any scheme or arrangement with its creditors; (iv) breaches an essential term of the Contract; (v) breaches a term of the Contract that is not capable of remedy; or (vi) subject to the foregoing, breaches a term of the Contract that is capable of remedy but is not so remedied within 14 days of written demand; then the other party by written notice may terminate the Contract immediately. Termination shall not affect any provision of the Contract expressed or capable of operating or having effect subsequent to termination and shall be without prejudice to any accrued right or remedy of a party in relation to any breach of or default by the other party occurring prior to termination.
In the Contract: (i) the Contract shall be governed by and construed in accordance with the laws of the Country of Hong Kong; (ii) any legal action or proceedings with respect to the Contract against any party or any of its property and assets may be brought in the Courts of the Country of Hong Kong and each party accepts, for itself and in respect of its property and assets, generally and unconditionally the jurisdiction of the Courts of that State; (iii) subject to the express written terms of the Contract, the Contract shall confer rights and benefits only upon a person expressed to be a party and not upon any other person; (iv) the Customer shall not transfer, sub-contract or assign its rights or obligations under the Contract without the prior consent in writing of Xorix Media; (v) Xorix Media may assign its rights or obligations under the Contract and if this occurs it shall give written notice to the Customer; (vi) the failure to exercise or delay in exercising by any party of any right conferred by the Contract shall not operate as a waiver and the single or partial exercise of any right by that party shall not preclude any other or further exercise of that or any other right by that party; (vii) subject to the terms of the Contract, the rights of a party conferred by the Contract are cumulative and are not exclusive of any rights provided by law; (viii) each party shall execute all documents and perform all acts necessary to give full effect to the Contract; (ix) apart from the Credit Application, the Contract expresses and incorporates the entire agreement between the parties in relation to its subject matter, and all the terms of that agreement, and supersedes and excludes any prior or collateral negotiation, understanding, communication, agreement, representation or warranty by or between the parties in relation to that subject matter or any term of that agreement. Neither party shall, after the Contract has been entered into, be entitled, as against the other party or other officers of any party, to bring suit on the basis of any verbal or written communications, representations, inducements, undertakings, agreements or arrangements except expressly as provided by the Contract or the Credit Application; (x) any provision of the Contract which is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of that prohibition or unenforceability, without invalidating the remaining provisions of the Contract or affecting the validity or enforceability of that provision in any other jurisdiction; (xi) no provision of the Contract shall merge on completion of the Contract.