CONDITIONS OF SALE, HIRE & CONSULTANCY SERVICES:
Every Sale or Hiring of any Training Material from Mind Resources shall be subject to the Conditions of Sale and Hire as set out below.
1.1 In these conditions and on any order or invoice:
(a) The term “Company” means Mind Resources Pty Ltd ACN 003180087 (The Mind Resources Institute and the Mind Resources Institute of Learning and Innovation)
(b) Any reference to the “sale” or “purchase” of Training Material by the Company to the customer means the granting or acquisitions (as the case requires) of a non transferable, non exclusive license to view and retain the Training Material subject to these conditions:
( c) The term “hire” when used in connection with the hiring of Training Material by the Company to the customer shall mean a license to view and retain the Training Material for such a period as may be agreed between the Company and the customer.
( d) Any reference to the customer includes a reference to the customer’s employees, agents and subcontractors; and e) “Training Material” means all Videos, DVD’s, CD Roms, e- Learning programmes, Accessories and Text material as supplied by the Company from time to time, together with any accompanying and associated literature, brochure and other materials, irrespective of the medium on which they are recorded.
1.2 The Company is the duly licensed distributor or agent of the duly licensed distributor or producer of Training Material
1.3 Copyright subsists in all Training Material regardless of whether it is supplied for sale or for hire. Such copyright is held by a number of producers, including in some cases, the Company.
1.4 If any Training Material is supplied by the Company to the customer for preview, whether at no charge or not, the customer will only use such Training material to assess their quality and suitability and not for training, educational or presentation purposes of any kind. If the customer is in breach of this clause then the customer shall pay fees as though the Training material was provided for hire pursuant to the terms hereof for the period commencing on the day when the customer was first supplied with the Training material and ending on the day when the Training material was returned to the Company.
1.5 At no time can the Company be held responsible for the message of the video. Previews arranged externally are at the customer expense for carriage costs.
2. USE OF TRAINING MATERIAL FOR SALE AND HIRE:
2.1 The customer shall:
( a) Ensure that any Training material is used only by employees of the customer in the course of their work or teaching courses conducted by employees of such customer for employees of such customer.
( b) Neither charge nor accept any payment for the exhibition of a Training material or any event of which it forms part thereof.
( c) Use its utmost endeavor to prevent any person or entity from doing anything with respect to Training material which the customer is prevented from doing pursuant to the terms hereof and d) Promptly notify the Company of anything done by any person or entity with respect to Training material of which the customer has knowledge which, if done by the customer would constitute a breach of these terms and conditions.
The customer shall not:
( a) Show a Training material in a cinema or at any fair or exhibition of any nature where members of the public may generally enter whether for payment or not;
( b) Broadcast by diffusion or otherwise transmit Training material.
(c) Copy or duplicate Training material (or part thereof) in any way on any media.
( d) Loan, hire, lease or offer for sale Training material e) Alter or remove any notices, labels or other material on the copies of any Training material.
( e) Amend, cut or alter the contents or the recorded material on the copies of the Training material.
(f) Permit any other person to do anything with respect to Training material supplied to the customer that is not in line with the terms hereof.
3. MIND RESOURCES RENTAL PROGRAMME
3.1 The Mind Resources Rental Programme is an arrangement for the hire of Training material whereby:
( a) The Customer and the Company agree that a given number (“The Agreed number”) of Training materials will be hired by and to the customer over a specified period (“The Agreed Period”) for an agreed price in respect of the hire of the Agreed Number of Training materials (the Agreed Price”) and b) The Agreed Price is received by the Company from the customer prior to the commencement of the Agreed Period
3.2 The following additional terms and conditions shall apply orders placed pursuant to the Mind Resources Programme and shall, insofar as they may conflict with any other term or condition prevails:
( a) The customer will place orders with the Company to hire the Agreed Number of Training Videos for exhibition (subject to clause 2 hereof) at any time during the Agreed Period
(b) The Agreed Period shall commence on the date of receipt by the Company of payment of the Agreed Price (or such date as may be agreed in writing)
( c) The customer shall be entitled to select the titles of the Training materials to be hired at any time or times during the Agreed Period and, subject to availability, each title ordered will be supplied to the customer on a minimum two day rental basis.
( d) The Mind Resources Rental Programme applies only to those components of the Training Material that are available for hire.
(e) Each separate title in a series of Training Materials shall constitute one Training Material usage for the purpose of the Mind Resources Rental Programme.
( f) In the event that the customer does not hire the Agree Number of Training Materials during the Agreed Period, the customer is not entitled to;
(g) Receive a refund of the Agreed Price or any part thereof, or ii) Receive a credit on the hire of a Training Material after the expiration of the Agreed Period.
( h) The customer is not entitled to assign or transfer its right to hire Training Materials under the Mind Resources Rental Programme and the Company is not obliged to recognize any assignment in breach of this clause.
( i) All orders for the supply of Training Materials under the Mind Resources Rental Programme must be placed by a person nominated in writing by the customer PROVIDED THAT the Company may, but is not obliged to accept, any other person on behalf of the customer. To avoid any overdue fees, all Training Materials must be returned to the Company, by the customer, at the expiration of the Agreed Period.
4.1 Any bookings for hire will not be accepted by the Company by telephone as firm orders of the customer and customer will be bound thereby, unless also confirmed by fax/email/mail .
4.2 If the customer when placing their order indicates that a customer order number is required to be quoted on the invoice before such invoice is paid, then the Company shall not be obliged to send any Training materials so ordered until such order number is advised in writing PROVIDED THAT the failure to provide such a number shall not release the customer from the order.
4.3 Unless otherwise agreed in writing between the Company and the customer, the price for the Training material will be those effective at the time of dispatch.
4.4The company may without notice to the customer, cancel or vary any quotation or accepted order at any time until the particular order has been delivered.
5. DELIVERY AND RISK
5.1 Whilst the Company makes every effort to comply with times for delivery and such times are given as accurately as possible, they are not guaranteed. . The customer has no right to damages or to cancel the order for failure for any reason to meet any delivery time stated.
5.2 Without limiting the effect of clause 5.1 the customer acknowledges that:
( a) The date of delivery shall in every case be dependent upon prompt receipt of all necessary information, and where appropriate final instruction or approvals from the customer, and
(b) Alterations by the customer in specifications may result in delay in delivery
5.3 The method of carriage shall be determined by the Company at its sole discretion and its customer shall pay and be responsible for all carriage costs. If Training material is ordered less than 24 hours (exclusive of Saturdays, Sundays and statutory holidays) prior to the dispatch the customer is liable to pay the Company’s express surcharge then enforce any additional carriage cost incurred.
5.4 Risk shall pass to the customer so that the customer is responsible for all loss, damage or deterioration to Training material or a relevant part thereof. a) If the company delivers the training material by its own transport, at the time when the Training material or relevant part thereof arrives at the place of delivery or In all other circumstances at the time when the Training material leaves the premises of the Company whether or not the Company arranges the transport.
6. RETURN OF TRAINING MATERIAL FROM HIRE, RENTAL PROGRAMMES AND OTHER LONG TERM PLANS
6.1 The customer must dispatch by delivery method specified by the Company for return to the Company any Training material hired no later than the day following the period for which the Training material was hired except where the said day is Saturday, Sunday or public holiday when the next day thereafter shall be the day for despatch.
6.2 The customer agrees to pay a pro-rata fee for the period in excess of the period of hire when the Training material is despatched for return to the company at a later date than when stated in 6.1 above i.e. when any Training material is returned late to the Company.
6.3 Where Training material is returned in damaged state, other than fair wear and tear, the customer will be liable for the cost of the repair or the replacement of the entire Training material that is damaged. Damage shall include any form of interference with the recording of the content of the Training material when the exact format is video or all electronic formats.
7. CANCELLATION AND VARIATION
7.1 No cancellation or variation of an order shall be valid or effective until written notice thereof is received by the Company within 3 days of receipt by the customer of Training material from the Company.
7.2 All valid cancellations (ie those that comply with 7.1) will only be agreed to by the Company on conditions that all costs and expenses incurred by the Company by reason of such cancellation will be reimbursed by the customer to the Company forthwith.
7.3 In the case of cancellations of hire bookings received by the Company
( a) 2 – 7 days before the date of delivery, the customer will be liable to pay 50% of the hire charge per title for the period booked, and
(b) less than 2 days before the date of delivery of the Training material, the customer will be liable for the full hire charge per title for the period booked.
7.4 The fee for any programme in conjunction with the Training Consultancy Services Division of Mind Resources, cancelled within 2 months of the agreed dates is 50% of the original quoted fee.
8. SHORTAGES AND DEFECTS FOUND ON INSPECTION
8.1 If ( a) The customer inspects the Training material and a written complaint is made to the Company within 3 days of receipt of the Training material or such shorter period as the carrier’s conditions (if applicable) require, specifying the shortage of defect,
(b) The Company is given the opportunity to inspect the Training material and investigate any complaint before any further use is made of the Training material.
( c)The conditions of the Training material is found by the Company to be defective, the Company shall use its best endeavors to repair or resupply a satisfactory substitute Training material free of cost and within a reasonable time.
8.2 If the Company does not or cannot repair or resupply a satisfactory substitute as aforesaid, the Company shall refund any money paid by the customer in respect of such Training material.
8.3 If a complaint is not made to the Company as provided in clause 8.1 then the Training material shall be deemed to be in all respects in accordance with the contract and the customer shall be bound to pay for the same accordingly.
8.4 If the condition of the Training material is defective;
( a) The customer shall not be entitled to claim damages or to repudiate the contract or any order.
( b) The customer’s sole remedy shall be to require the Company of cost and within a reasonable time as foresaid.
( c) If the Company does so repair or re-supply the Training material the customer shall be bound to accept such repair or substitute Training material.
(d) If the Company shall be under no liability on any account, in respect of any loss or damage (including consequential loss) whatsoever arising from or consequent upon i) The initial delivery of the defective Training material or ii) Any delay before the defective Training material is repaired or the substitute Training material is delivered or iii) The inability to repair or re-supply a defective training material within a reasonable time or at all.
9.1 The customer shall pay to the Company the fees set out in the Company price list produced by the Company from time to time in accordance with the provisions here of .
9.2 All accounts are strictly net and must be paid by a method approved by the Company and in any event no later than 7 days from the date of the invoice.
9.3 The customer shall pay interest at the current bank rate for any day beyond 28 days in respect of which payment shall not have been made pursuant to these conditions.
9.4 The customer will be liable for any legal and external debt collection agent’s fees that are incurred in the event of retrieval of overdue debts.
10. TERMINATION AND BREACH OF TERMS
10.1 If the customer shall become bankrupt or insolvent or compound with creditors or a resolution is passed or proceedings commenced for liquidation of the customer (other than a voluntary winding up for the purpose of re-construction or amalgamation) or if a Receiver Manager is appointed of all or part of its assets or undertaking, the Company shall be entitled to terminate the contract in whole or in part by notice in writing without prejudice to any right or remedy accruing to the Company.
10.2 If the customer is in breach of any provision of clauses 2.1 or 2.2 the Company may at its option by notice in writing terminate this agreement forthwith.
10.3 If the customer fails to adhere to the provisions of clauses 9.1, 9.2 or 9.3 then either the sale or hire arrangements between the Company and the customer may, at the option of the Company, be terminated.
10.4 If this agreement is terminated in whole or in part pursuant to clauses 10.1, 10.2 or 10.3 ),
(a) Any license to view and retain a Training material shall be at an end
(b) The customer shall return all Training materials in their possession, regardless of whether supplied for sale or hire.
(c) Such termination shall be without prejudice to the customer’s liability to make such payments and any rights or remedies of the Company, and
(d) The customer shall indemnify the Company against the consequences of any breach of these terms and conditions by the customer, including without limiting the generality breach of any obligation it owes to the owner of any copyright in any Training material.
11. GENERAL TERMS
11.1 Neither party shall be under any liability for any delay, loss or damage caused wholly or in part an Act of God, governmental restrictions or control or by reason of any act, matter or thing beyond its reasonable control including failure by the other party to carry out the provisions of these conditions.
11.2 Any addition or alteration that may be agreed by the Company shall have no effect unless confirmed in writing and signed by an authorized signatory officer of the Company.
11.3 If any statement of representation has been made to the customer upon which the customer relies, other than documents enclosed with the Company’s quotation for acknowledgement, the customer must set out the statement or representation in a document to be attached or endorsed on a copy of the Company’s hire and/or Sale Order Form.
11.4 The interpretation and application of these conditions shall be in accordance with the laws of the state of New South Wales and the parties submit to the jurisdiction of the courts of that state and of the Commonwealth of Australia.
11.5 Any notice may be validly served on the customer as first notified to the Company in writing.
WARNING! COPYING IS ILLEGAL
Mind Resources is the duly licensed distributor for a number of Australian and International producers & suppliers of Training Material.
The Company’s policy is to seek whatever criminal and/or civil remedies necessary in situations where a breach of copyright has occurred.