Ther Legal Side PRIVACY POLICY

Legal documentation TERMS & CONDITIONS:

1. Interpretation

In these conditions unless the contrary intention appears:
“Additional Charges” includes all delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Purchase Price, payable by the Customer to Arcane Media arising out of the Goods or Services.
“Arcane Media” means Arcane Media Pty Ltd ABN 32 129 446 457.
“Customer” means the person to or for whom the Services are to be provided by Arcane Media.
“Goods” means any website, development in website, design, business cards or other products produced or sold to the Customer as part of the Services or otherwise by Arcane Media.
“Intellectual Property” means Arcane Media’s business names, trade names, trade marks, product names, copyright, patents, designs, industrial processes, trade secrets, know how and other intellectual property rights and any development in such intellectual property rights
“Purchase Price” means the list price for the Goods or Services as charged by Arcane Media at the date of supplying the Goods or of carrying out the Services or such other price as may be agreed by Arcane Media and the Customer prior to the Services being carried out.
“Services” means the services to be provided to the Customer by Arcane Media, where services include but are not limited to design services, printing, website design, animation, virtual tours and web hosting services.
“Tooling” means any tooling, dies, guillotines, stamps and other equipment used by Arcane Media in supplying the Goods or carrying out the Services.

2. Order for Services

2.1 An order given to Arcane Media is binding on Arcane Media and the Customer, if:
(a) a written acceptance is signed by Arcane Media; or
(b) Arcane Media sends the Customer an invoice for the deposit amount required to initiate the order, where the Customer does not countermand by the close of the next business day of receiving the invoice; or
(c) the Services are provided by Arcane Media in accordance with the order.
2.2 An acceptance of the order by Arcane Media is then to be an acceptance of these Terms and Conditions by Arcane Media and the Customer and these Terms and Conditions will override any conditions contained in the Customer’s order. Arcane Media reserves the right to accept a part only of any order by notifying the Customer in writing or by providing the Services to the Customer. No order is binding on Arcane Media until accepted by it.
2.3 An order which has been accepted in whole or in part by Arcane Media cannot be cancelled by the Customer without obtaining the prior written approval of Arcane Media which it may refuse in its absolute discretion.
2.4 Arcane Media and the Customer agree that Arcane Media may vary the Terms and Conditions from time to time. Arcane Media will communicate such changes to the Customer either directly or via its website and the Customer agrees to be bound by such Terms and Conditions.
2.5 Arcane Media is not liable for any error or fault in the text, artwork or other materials provided by the Customer to Arcane Media and the Customer agrees that it has satisfied itself independently of Arcane Media of the appropriateness of such materials for the Customer’s intended use.

3. Limitation of Liability

3.1 The liability of Arcane Media is limited, to the extent permissible by law and at the option of Arcane Media: in relation to Goods, to;
(a) replacing the Goods or the supply of equivalent Goods;
(b) the repair of the Goods;
(c) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(d) the payment of the cost of having the Goods repaired;
and in relation to Services, to:
(a) the supply of the services again; and
(b) the payment of the cost of having the services supplied again.
3.2 To the extent permitted by law, all other warranties whether implied or otherwise, not set out in these Terms and Conditions or in specific warranties, are excluded and Arcane Media is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for:
(a) any increased costs or expenses;
(b) any loss of profit, revenue, business, contracts or anticipated savings;
(c) any loss or expense resulting from a claim by a third party; or
(d) any special, indirect or consequential loss or damage of any nature whatsoever.
3.3 Any claims to be made against Arcane Media for short delivery of Goods or Services must be lodged with Arcane Media in writing within 7 days of the delivery date.
3.4 Unless the terms and warranties are included in these Terms and Conditions or are provided in specific warranties, all prior discussions, quotations, warranties to the extent permitted by law, are excluded.

4. Delivery

4.1 The times quoted for delivery are estimates only and Arcane Media accepts no liability for failure or delay in delivery of Goods or Services. The Customer is not relieved of any obligation to accept or pay for Goods or Services by reason of any delay in delivery. Goods or Services may be delivered by instalments at the discretion of Arcane Media.
4.2 Risk in accepting the Goods or Services passes on delivery to the Customer. In relation to Services, delivery occurs when Services are provided to the Customer. Where the Goods need to be delivered, delivery shall be deemed to have taken place:
(a) if the Goods are to be collected from Arcane Media’s premises, then:
(i) just prior to the Goods being loaded onto the carrier organised by the Customer; or
(ii) at the time and date when the Goods are scheduled to be collected by the Customer, whichever occurs first; or (b) if the Goods are to be delivered to Customer’s address as nominated by the Customer on the order, then just prior to the Goods being unloaded from the carrier at the nominated address in accordance with the order, which order is delivered to the Customer at the Customer’s expense.
4.3 All Additional Charges are payable by the Customer in addition to the Purchase Price of the Goods or Services. 4.4 Return of Goods will not be accepted by Arcane Media except by prior agreement in writing with Arcane Media.
Any Goods returned will be subject to a restocking charge of 10% of the Purchase Price of those Goods.

5. Price and Payment

5.1 The Customer must pay the Purchase Price and the Additional Charges to Arcane Media.
5.2 If the Customer is in default, Arcane Media may at its option withhold further deliveries or cancel a contract without prejudice to any of its existing rights.
5.3 All payments are due before commencement of provision of the Goods or Services unless agreed otherwise by Arcane Media in writing. The Customer is liable for interest at the discretion of Arcane Media calculated at the rate of 1.5% per month or part of a month from the due date until the date payment is received by Arcane Media.

6. Retention of Title

6.1 Ownership, title and property of Goods remains with Arcane Media until payment in full for the Goods and all sums due and owing by the Customer to Arcane Media on any account has been made. Until the date of payment:
(a) the Customer has the right to sell the Goods in the ordinary course of business;
(b) until the Goods have been sold by the Customer in the ordinary course of the Customer’s business, the Customer holds the Goods as bailee for Arcane Media;
(c) the Goods are always at the risk of the Customer.
6.2 The Customer is deemed to be in default immediately upon the happening of any of the following events:
(a) if any payment to Arcane Media is not made promptly before the due date for payment;
(b) if the Customer ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any cheque or bill of exchange drawn by the Customer payable to Arcane Media is dishonoured;
6.3 In the event of a default by the Customer, then without prejudice to any other rights which Arcane Media may have at law or under these Terms and Conditions:
(a) Arcane Media or its agents may without notice to the Customer enter the Customer’s premises or any premises under the control of the Customer for the purposes of recovering the Goods.
(b) Arcane Media may recover and resell the goods;
(c) if the Goods cannot be distinguished from similar goods which the Customer has or claims to have paid for in full, Arcane Media may in its absolute discretion seize all goods matching the description of the Goods sold by Arcane Media and hold same for a reasonable period so that the respective claims of Arcane Media and the Customer may be ascertained. Arcane Media must promptly return to the Customer any goods the property of the Customer and Arcane Media is in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the Customer’s business howsoever arising from the seizure of the Goods.
(d) In the event that the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for Arcane Media. Such part will be an amount equal in dollar terms to the amount owing by the Customer to the Arcane Media at the time of the receipt of such proceeds. The Customer will pay Arcane Media such funds held in trust upon the demand of Arcane Media.
(e) The Customer must pay to Arcane Media all reasonable costs and disbursements incurred by Arcane Media in pursuing any recovery action, or any other claim or remedy against the Customer, including debt recovery fees and legal costs incurred by Arcane Media on a solicitor client basis and as a liquidated sum.

7. Personal Properties Securities Act (“PPSA”)

7.1 Defined terms in this clause have the same meaning as given to them in the PPSA.
7.2 Arcane Media and Customer acknowledge that these Terms and Conditions constitute a Security Agreement and give rise to a Purchase Money Security Interest (“PMSI”) in favour of Arcane Media over the Goods supplied or to be supplied to the Customer as Grantor pursuant to the Terms and Conditions.
7.3 The Goods supplied or to be supplied under these Terms and Conditions fall within the PPSA classification of ”Other Goods” acquired by the Customer pursuant to these Terms and Conditions.
7.4 Arcane Media and the Customer acknowledge that Arcane Media, as Secured Party, is entitled to register its interest in the Goods supplied or to be supplied to the Customer as Grantor under the Terms and Conditions on the PPSA Register as Collateral.
7.5 To the extent permissible at law, the Customer:
(a) waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer, as Grantor, to Arcane Media.
(b) agrees to indemnify Arcane Media on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;
(i) registration or amendment or discharge of any Financing Statement registered by or on behalf of Arcane Media; and
(ii) enforcement or attempted enforcement of any Security Interest granted to Arcane Media by the Customer.
(c) agrees that nothing in sections 130 and 143 of the PPSA will apply to the Terms and Conditions or the Security under the Terms and Conditions;
(d) agrees to waive its right to do any of the following under the PPSA:
(i) receive notice of removal of an Accession under section 95;
(ii) receive notice of an intention to seize Collateral under section 123;
(iii) object to the purchase of the Collateral by the Secured Party under section 129;
(iv) receive notice of disposal of Collateral under section 130; (v) receive a Statement of Account if there is no disposal under section 132(4);
(vi) receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged. (vii) receive notice of retention of Collateral under section 135; (viii) redeem the Collateral under section 142; and (ix) reinstate the Security Agreement under section 143.
7.6 All payments received from the Customer must be applied in accordance with section 14(6)(c) of the PPSA.

8. Security and Virus Warning

8.1 The internet and World Wide Web are unsecured public networks. The Customer acknowledges and agrees that the information sent to or from Arcane Media may be intercepted, corrupted or modified by third parties and files and data may be susceptible to computer viruses or other defects and the Customer agrees that Arcane Media is not liable for any loss, damage or claims arising out of this.

9. Intellectual Property

9.1 The Goods contain Intellectual Property rights that belong to Arcane Media. Property, right and title in that Intellectual Property will remain with Arcane Media despite the Customer acquiring the Goods.
9.2 All Intellectual Property created during the course of the design or manufacture by Arcane Media and the supply of the Goods or Services or as a result of work done in connection with the supply of the Services will be and will remain the property of Arcane Media unless agreed to otherwise by Arcane Media in writing. The Customer agrees to execute all documents evidencing Arcane Media’s ownership in the Intellectual Property as Arcane Media may reasonably require.
9.3 The Customer must not pass any Intellectual Property to third parties without Arcane Media’s prior written approval.
9.4 Any third party intellectual property used by Arcane Media on behalf of the Customer cannot be used by the Customer without first seeking the third party’s permission.
9.5 The Customer agrees to indemnify and keep indemnified Arcane Media against all damages, penalties, costs and expenses arising out of the Customer’s use of the Goods and Services.
9.6 The Customer warrants that all artwork, text, photography, animation, information or material of any kind provided by the Customer is the intellectual property of the Customer. Arcane Media is not liable for any errors or omissions or faults in the materials provided to Arcane Media by the Customer.
9.7 The Customer warrants that the use by Arcane Media of any intellectual property provided by Customer to Arcane Media so that Arcane Media may provide the Goods and/or Services under these Terms and Conditions does not infringe any intellectual property rights of third parties.
9.8 The Customer acknowledges and agrees that Arcane Media is entitled to use copies of material developed for the Customer, including material provided by the Customer, for Arcane Media’s marketing purposes, including on its website.
9.9 Customer must indemnify and keep indemnified Arcane Media against any and all liabilities, expenses, losses and/or damages including attorney’s fees whether direct, indirect or consequential, arising from a third party, alleging that the Goods or Services infringe the intellectual property rights of the third part due to Arcane Media’s use in the production of the Goods and/or Services of any branding, artwork or other intellectual property provided to Arcane Media by Customer.

10. Website Alterations

10.1 For website design services, Arcane Media commits to make adjustments free of charge for the first hour of consultation, after which, changes, updates and additions, unless quoted on a project by project basis, will be charged at standard hourly rates.

11. Search Engine Submissions

11.1 The Customer acknowledges and agrees that Arcane Media is not liable for poor ranking or non-appearance on search engines where the Customer’s website is submitted to nominated search engines.

12. Confidential Information

12.1 The Customer must not at any time whether during or after the Services are carried out by Arcane Media divulge any information in relation to Arcane Media’s affairs or business or method of carrying on business.

13. Advertising

13.1 The Customer agrees to allow Arcane Media to include a small and discreet advertisement link at the bottom of the Customer’s website pages where the website has been designed by Arcane.

14. Customer Login details

14.1 The Customer Login page of the Arcane Media website contains links that are accessible only through the use of username and password authentication. If the Customer has been assigned a username and password for access to these restricted areas, the Customer is responsible for maintaining the security and confidentiality of their username and password, and any information contained in the restricted areas. Arcane Media may cancel the Customer’s Login access at any time without notice.

15. Printing

15.1 All artwork provided by the Customer must meet Arcane Media’s artwork specifications as specified on the Arcane Media website and as amended from time to time.
15.2 Arcane media is not liable for any errors which occur in the electronic transfer of any artwork.
15.3 Where the Customer’s order is not print ready and Arcane Media proceeds to arrange printing, the Customer is liable for costs of any alterations or subsequent changes required to make the order print ready.
15.4 The Customer acknowledges and agrees that Arcane Media may not be able to provide an exact match in colour or texture compared to the Customer’s artwork. The Customer acknowledges and accepts that there are acceptable levels of colour variation (+/- 12%) from print run to print run, from stock to stock, from back to front, and between different printing processes.
15.5 Trimming may vary from the proof or specification.

16. Tooling

16.1 Where Arcane Media uses Tooling to supply the Goods or carry out the Services, the Customer acknowledges and agrees that Arcane Media is not liable for the Goods or Services being exact measure, content or capacity as that referred to in the description of the Goods or Services.
16.2 Property of any Tooling will not transfer to the Customer, whether charged for or not, and Arcane Media will not be under any obligation to deliver them to the Customer. The Customer must not part possession with the Tooling.
16.3 The Customer agrees to pay for any alteration of Tooling required by Arcane Media to carry out the Services and Customer agrees to assume all risk of resultant damage of such Tooling.

17. Force Majeure

17.1 Arcane Media is not liable for delay in performing, or non-performance, of any of its obligations under these Terms and Conditions caused by unforeseeable circumstances beyond Arcane Media’s reasonable control (including, without limitation, acts of God, civil or military authority, accidents, earthquakes, strikes, the elements, labour disputes, shortage of suitable part or components or other materials, mechanical breakdown, fire, flood, tempest and war) and in such circumstances, Arcane Media will be entitled to a reasonable extension of time for the performance of its obligations.

18. General

18.1 These terms and conditions are to be construed in accordance with the laws from time to time in the State of New South Wales and the Commonwealth of Australia.
18.2 These Terms and Conditions contain all of the terms and conditions of the contract between the parties and may only be varied by agreement in writing between the parties.
18.3 Any conditions found to be void, unenforceable or illegal may, to that extent be severed from the Agreement.
18.4 No waiver of any of these terms and conditions or failure to exercise a right or remedy by Arcane Media will be considered to imply or constitute a further waiver by Arcane Media of the same or any other term, condition, right or remedy.

19. Indemnity

19.1 To the full extent permitted by law, Customer will indemnify Arcane Media and keep Arcane Media indemnified from and against any liability and any loss or damage Arcane Media may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Terms and Conditions by Customer or its representatives.

20. Floor Plans

20.1 Arcane does not warrant the accuracy or correctness of any house or floor plans, including but not limited to the dimensions, scale or size of the house or floor plan, prepared by Arcane.