Long Haul Studios PTY LTD

1. Acceptance

1.1 These Terms apply to all facility hire and services provided by Long Haul Studios PTY LTD to the Client. These Terms, together with the Booking Form, and any other documents incorporated by these Terms, form part of, and constitute the entire agreement between the parties and shall prevail over any terms and conditions put forward by the Client unless otherwise expressly agreed in writing by Long Haul Studios.

1.2 Where there is more than one Client, those Clients are jointly and severally liable for all money payable under these Terms.

1.3 By executing the Booking Form, the Client acknowledges and accepts that it has read, understood and accepts these Terms.

2. Studio Bookings

2.1 Subject to clause 2.2, Long Haul Studios shall make the Studio, and if required, the Producer, available to the Client for the Booking Date and Booking Period.

2.2  The Client acknowledges and agrees that the Studio and Producer hire are subject to availability. Long Haul Studios will endeavour to make the selected Studio available to the Client for the Booking Date and Booking Period.

3. Studio Rules

3.1 Long Haul Studios shall hire the Studio to the Client with the Equipment (as applicable) for the Permitted Use during the Booking Period.

3.2 The Client must and must procure that Client Personnel do not, during the Booking Period:

(a) engage in any hazardous or like activities, including but not limited to the use of open flames, fireworks or any other dangerous materials;

(b) consume any food and drink within the Studio, with water being the exception; and

(c) alter or modify the Studio’s structure or Equipment without Long Haul Studios’s express written consent.

3.3 The Client must and must procure that Client Personnel adhere to appropriate conduct within the Studio, that shall include but not be limited to avoiding excessive noise levels, respecting Equipment and Studio property, and following any Long Haul Studios safety and safe conduct guidelines in effect from time to time. Any disruptive or unsafe behaviour may result in immediate termination of the Booking.

3.4 Only Client Personnel shall be permitted to enter the Studio during the Booking Period. Additional personnel may be refused entry at Long Haul Studios’s absolute discretion.

3.5 Set-up and clean-up must be completed within the Booking Period. Any additional time required for set-up or clean-up beyond the Booking Period will be charged at Long Haul Studios’s standard rates, as set out in Schedule 1 of these Terms. Client Personnel shall be responsible for leaving the Studio in the same condition as it was at the commencement of the Booking Period.

3.6 Except to the extent any act or omission is directly caused or contributed to by Long Haul Studios, or its employees and representatives, and without limiting any other remedy available to Long Haul Studios under these Terms, the Client shall be fully responsible for any act or omission by Client Personnel in breach of this clause 3. The Client shall indemnify Long Haul Studios for any such acts or omissions as if they were the Client’s own. This includes but is not limited to:

(a) damage to the Studio, Premises, and Equipment;

(b) any injury, loss or damage to any person’s equipment or premises caused by the Client Personnel, or due to any defect or fault of the Client’s equipment; and

(c) any cost incurred on behalf of the Client at their request.

4. Equipment Use

4.1 The Client Personnel must only use Equipment as specified in the Booking Form. Operation of Equipment shall require the presence of a Producer, provided by Long Haul Studios, to ensure Equipment is operated under proper instruction and manufacturer directions. Client Personnel shall only operate Equipment without a Producer in circumstances where Long Haul Studios has expressly given its consent and in accordance with Long Haul Studios’s strict instructions.

4.2 Except to the extent any act or omission is directly caused or contributed to by Long Haul Studios, or its employees and representatives, and notwithstanding clause 4.1, the Client shall be responsible for any damage to the Equipment or property of Long Haul Studios which occurs during the Booking Period. Any damages will be assessed by Long Haul Studios in its sole discretion (acting reasonably), and the Client will be billed for repair or replacement costs. The Client agrees to pay all assessed costs within 10 business days of receiving an invoice for such costs.

4.3 Should Long Haul Studios permit the Client, in its sole discretion, to use any of its own equipment in the Studio, such equipment must be safe to use and fit for purpose. All Client equipment must be tested for electrical safety and have a current (which for the avoidance of doubt means such equipment has been tested within the last 12 months) electrical safety test tag affixed in accordance with AS/NZS 3760:2010.

5. Consent and Ownership

5.1 The Client shall own all right, title and interest in the Content created during the Booking Period.

5.2 Long Haul Studios shall not be responsible for any Content created or distributed as a result of use of the Studio. The Client acknowledges and agrees that it is solely liable for any damages or losses that occur as a result of its creation and distribution of Content.

5.3 The Client must not produce Content at the Studio that will:

(a) be illegal, fraudulent, or deceptive;

(b) infringe on any third-party’s Intellectual Property Rights;

(c) constitute pornography;

(d) be defamatory, obscene, scandalous or offensive; and

(e) promote violence or discrimination based on race, religion, gender, sexual orientation, or age,

5.4 The fact that the Content may be recorded, edited or distributed by Long Haul Studios does not imply an endorsement as between Long Haul Studios and the Content or the Client.

5.5 The Client will be responsible for the integrity of any Existing Content used in creating its Content at the Studio or through the use of the Producer. Unless directly caused or contributed to by Long Haul Studios, its employees and representatives, any corruption or damage to, or caused by, the use of any Existing Content will be the sole responsibility of the Client, and the Client shall hold harmless Long Haul Studios for any such corruption or damage to Existing Content.

5.6 The Client shall promptly notify Long Haul Studios in writing of any defect in or loss of or damage to the Content. Long Haul Studios will use its reasonable endeavours to recover any lost or damaged Content and arrange for the replacement of the Content if the loss or damage is attributable to the negligence of Long Haul Studios.

6. Consent

6.1 The Client acknowledges and agrees that Long Haul Studios may:

(a) record audio or session footage of the Client and the Client Personnel while using the Studio;

(b) have the right to access, use and or repurpose the Content created by the Client for marketing purpose across its social media platforms;

(c) capture “behind the scenes” photographs for marketing purposes across its social media platforms while the Client Personnel is recording Content during the Booking Period; and

(d) repurpose and use the Content for marketing purposes across both parties social media.

6.2 Any requests from the Client for Long Haul Studios to delete the Content or cease use of such Content must be delivered in writing with seven (7) business days’ notice.

7. Delivery and Ongoing Storage of Content

7.1 Long Haul Studios will provide the Content to the Client via a shareable drive or SSD. If the Client has an alternative preference for the delivery of Content, this may be agreed between the parties at the time of Booking.

7.2 To the extent permitted by law, Long Haul Studios may, in its discretion, agree to electronically store any Content on behalf of the Client. However, any Content held by Long Haul Studios on the Clients behalf will be held solely at the risk of the Client, Long Haul Studios accepts no liability for any lost, damaged or corrupted Content and makes no representations regarding the reliability or security of such storage facilities. The Client is encouraged to maintain their own backup copies of all Content.

7.3 The Client shall be liable to Long Haul Studios for the reasonable charges Long Haul Studios may incur for the electronic storage (as set out in Schedule 1) of the Content which shall be payable by the Client in accordance with clause 8.

7.4 Any Content not delivered to, downloaded or claimed by, the Client, shall be, unless otherwise agreed between the parties, destroyed or otherwise disposed of following a holding period of ninety (90) days from the Booking Date.

8. Fee and Payment

8.1 The Client agrees that subject to clause 15.1 the Fee shall be due and payable in accordance with the payment period set out in the invoice from Long Haul Studios.

8.2 The Fee shall be liable for GST in accordance with clause 10.

8.3 The Client acknowledges and agrees that additional charges may be incurred:

(a) under those circumstances contemplated by clauses 3.5, 4.2, and 7.3 of these Terms; or

(b) if the Client requires additional Work Product from that agreed in Item 7 of the Booking Form.

8.4 Long Haul Studios reserves its right to retain possession of all Content until such time that it receives payment in full of the Fee.

8.5 The Client will be liable to pay interest on any sums overdue and payable to Long Haul Studios from time to time at the Interest Rate, which shall accrue on a day-to-day basis from the due date up to and including the date of actual payment being received by Long Haul Studios.

9. Intellectual Property

9.1 All Intellectual Property Rights created prior to the Booking Date shall remain vested in the relevant party who created it. The Client acknowledges and agrees that it will not use Long Haul Studios’s Intellectual Property Rights to promote, endorse or otherwise advertise its products or services without the express written permission of Long Haul Studios.

9.2 All Intellectual Property Rights created during the Booking Period shall vest in the Client upon creation, however, the Client grants and, shall procure that Client Personnel grants, to Long Haul Studios, an irrevocable, non-transferable, licence to use the Client’s Intellectual Property in accordance with clause 6.1.

9.3 By using the Studio, the Client, and the Client Personnel warrant that it is not breaching any third party Intellectual Property Rights, including that use of any Existing Content under these Terms is not in breach of any third party Intellectual Property Rights.

10.GST

10.1 All amounts payable by the Client to Long Haul Studios and all other references to monetary amounts under these Terms are exclusive of GST, unless expressly stated otherwise.  The Client must pay an additional amount equal to the GST liability on a supply or transaction to which GST applies. Unless otherwise agreed in writing, the GST amount under this clause 10 must be paid at the same time as specified in the Invoice for payment of the services to which the GST liability applies.

11. Liability

11.1 To the maximum extent permitted by law, Long Haul Studios’s total aggregate liability to the Client for any loss or damage arising from, or in connection with any performance or non-performance of, these Terms, including any breach or any negligent act or omission by Long Haul Studios, its employees, representatives and agents, howsoever arising, under any statute, custom, law or on any other basis, shall be limited to 100% of the Fee set out in the Booking Form.

11.2 Notwithstanding any other clause in these Terms, neither party shall be liable to the other for any loss of:

(a) revenue;

(b) profit or anticipated profit;

(c) business or business opportunity;

(d) a bargain;

(e) anticipated savings or wasted overheads;

(f) use;

(g) production;

(h) reputation, financing or holding costs, pure economic loss or special, penal or exemplary damages;

that does not arise directly and naturally from the relevant breach or circumstance giving rise to the loss or damage, or that was not, at the Booking Date, reasonably foreseeable by that party as a probable result of the relevant breach or circumstance giving rise to the loss or damage, but nothing in the above limits or restricts a party’s entitlement to damages as expressly set out in this contract

11.3 Consumer guarantees under the Indian Consumer Law may apply to the Studio hire provided by Long Haul Studios. Long Haul Studios makes no representation or warranty additional to those consumer guarantees. The liability of in connection with the Studio hire supplied under these Terms may be subject to the Indian Consumer Law, and in any event, shall be limited to 100% of the Fee set out in the Booking Form.

11.4 Nothing in these Terms limits or excludes a party’s liability:

(a) for death or personal injury caused by Long Haul Studios’s negligence or wilful misconduct or that of Long Haul Studios’s employees, agents and representatives as applicable;

(b) for fraud or fraudulent misrepresentation by Long Haul Studios, or that of Long Haul Studios’s employees, agents and representatives as applicable;

(c) for misleading or deceptive conduct under section 18 of the ACL; or

(d) where liability cannot be limited or excluded by applicable law;

11.5. This clause 11 shall survive termination of these Terms.

12. Force Majeure

12.1 Neither party is liable for failure to perform any obligations under these Terms during the time and to the extent that such performance is prevented, wholly or substantially, by a Force Majeure Event.

12.2 Either party may terminate the contract or other engagement between the parties by written notice to the other party if a Force Majeure Event has continued for more than 30 days.  Neither party is liable to the other for any loss or damage suffered by the other party as a result of a Force Majeure Event or either party’s exercise of the termination rights under this clause.

13. Confidentiality

13.1 Subject to clause 13.2, the parties must at all times:

(a) hold in strict confidence all Confidential Information;

(b) not disclose or permit or cause the Confidential Information to be disclosed to any person other than any of the parties personnel who require that Confidential Information for the purposes of using the Studio (Approved Purpose);

(c) not make use of the Confidential Information (including duplicating, reproducing, distributing, disseminating or directly or indirectly deriving information from that Confidential Information) except and solely to the extent necessary for the Approved Purpose; and

(d) ensure that any permitted person to whom the parties pass any of the Confidential Information (unless disclosed for the Approved Purpose) acknowledges and complies with the confidentiality obligations under this clause 13 as if that person were that party.

13.2 The obligations in clause 13.1 do not apply to the Client to the extent that such information is Excluded Information.

13.3 The obligations under this clause 13 survive the termination of these Terms.

14. Privacy

14.1 The Client agrees that personal information (as that term is defined in the Privacy Act 1988 (Cth)) provided may be used and retained by Long Haul Studios for the following purposes and for other purposes as agreed between the Client and Long Haul Studios or required by law from time to time:

(a) provision of Studio hire;

(b) marketing and promotional activity by Long Haul Studios, its agents or distributors in relation to the Studio hire;

(c) where applicable, analysing, verifying and checking the Client’s credit, payment and status in relation to provision of services; and

(d) processing of any payment instructions, direct debit facilities or credit facilities requested by the Client.

15. Cancellation and Termination

15.1 These Terms shall expire upon the later of (i) conclusion of the Booking Period, (ii) payment in full of the Fee.

15.2 If the Client wishes to cancel a confirmed Booking within 24 hours of the commencement of the Booking, a cancellation fee of 50% of the Fee may apply (Cancellation Fee).

15.3 The Cancellation Fee will not apply in circumstances where Long Haul Studios is able to rebook the Studio for the Booking Period for an equivalent amount of the Fee. Long Haul Studios reserves the right, at its sole discretion, to waive the Cancellation Fee.

15.4 Long Haul Studios shall have the right in its discretion to terminate these Terms and cancel any Studio hire for any reason subject to a full refund of any Fee to the Client paid to Long Haul Studios prior to the Booking Date.

15.5 Either party may terminate these Terms if a party breaches a provision of these Terms and such breach is not remedied within 10 Business Days of being requested by the non-breaching party to do so.

16. Consequences of termination

16.1 Upon expiry or termination of these Terms, except in circumstances where such termination arises due to Long Haul Studios’s own breach of these Terms, all amounts owed to Long Haul Studios shall, to the extent not already paid, become immediately due and payable in accordance with clause 8.

16.2 The following clauses survive expiry or termination, or earlier termination, of these terms, together with any other term which by its nature is intended to do so:

(a) clause 9;

(b) clause 11;

(c) clause 13

(d) clause 17

17. General

17.1 These Terms are governed by the laws of Western Australia and the parties submit to the non-exclusive jurisdiction of the courts of Western Australia.

17.2 If any provision of these Terms is invalid, void, illegal or unenforceable, then that provision is to be ignored in the interpretation of these Terms such that the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.

17.3 The Client shall procure that neither the Client nor any of the Client Personnel shall be held out as an agent of or pledge the credit of Long Haul Studios.

17.4 Notices under these Terms must be in writing, in English and delivered email to:

[email protected]

17.5 A notice is deemed to have been delivered by registered post, in two (2) Business Days if sent within Australia and in five (5) Business Days if sent by air mail from one country to another.

17.6 An email is deemed to be sent if the sender’s email system records error-free transmission to the correct email address and no error message is received by the sender within 2 hours after sending.  

18. Definitions and Interpretation

18.1 The following words have the meaning given to them below when used in these Terms:

(a) Indian Consumer Law means the Indian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).

(b) Booking means the hire of a Studio for the Booking Period on the Booking Date subject to these Terms and, if applicable, any special conditions specified in the Booking Form.

(c) Booking Date has the meaning given to that term in Item 3 of the Booking Form.

(d) Booking Form means the form to hire a Studio contained on either Long Haul Studios’ website or as emailed to the Client upon lodging a request to hire a Studio.

(e) Booking Period has the meaning given to that term in Item 4 of the Booking Form.

(f) Business Day means a day other than a Saturday, Sunday, public holiday or bank holiday in Perth, Western Australia.

(g) Confidential Information means, other than to the extent that it constitutes Excluded Information, all records, documents or other information, in whatever form, which relate to the business, affairs or activities of the parties(including a Related Entity of either party) or that is marked by or behalf of either party as being confidential or is of a confidential nature, including methods of operation, Intellectual Property Rights, client lists, products, prices, Fee, costs, technology, inventions, trade secrets, know-how, software, marketing methods, plans, personnel, suppliers, competitors, markets or other specialised information or proprietary matters.

(h) Content means any visual, audio and/or immersive video or any one or more pieces of recorded sound or visual image recorded, used or captured during the Booking Period.

(i) Client means the person(s) set out in Item 1 of the Booking Form.

(j) Client Personnel means persons set out in Item 2 of the Booking Form.

(k) Equipment means any equipment provide by Long Haul Studios for the purposes of the Studio hire and may include cameras, tripods, cords, microphones, headphones lighting, furniture, audio interfaces, video switches, XLR cables, SD drives.

(l) Excluded Information means any records, documents or other information to the extent that such information:

(i) becomes publicly available (except if it is in the public domain by reason of the failure of a party to perform and observe its obligations under these Terms);

(ii) is acquired from a third party entitled to disclose it on a non-confidential basis;

(iii) is required to be disclosed to comply with any law or order of a court, arbitrator or government body; and

(iv) is disclosed to any legal counsel, accountant, insurance advisor, bank or other professional adviser in relation to either parties affairs provided that the professional advisor is bound by an obligation or confidentiality in regards to the information disclosed; or

(v) is independently developed without use of Confidential Information.

(m) Existing Content means any pre-recorded material or media the Client incorporates, or intends to incorporate, into their Content.

(n) Fee means, in respect of a Service, the hourly charge applicable to that Service set out in Item 6 of the Booking Form.

(o)Force Majeure Event means an event beyond either party’s reasonable control which, by exercise of reasonable diligence and precautions, could not have been prevented or reasonably foreseen by the Supplier, including any:

(i)act of God, unusually severe weather (including a cyclone/hurricane), earthquake, fire, subsidence, land slide, mud slide, wash-out, explosion, radioactive contamination or natural disaster;

(ii) terrorism, insurrection, revolution or civil disorder, act of public enemies, malicious damage, sabotage, vandalism, war (whether declared or undeclared) or a military operation, blockade or riot;

(iii) industrial dispute of any kind, strike, lock-out, ban, limitation or other industrial disturbances;

(iv) any failure, delay or suspension by any third party supplier of the supply in whole or in part of fuel, electricity, equipment, machinery, infrastructure (including telecommunications or internet infrastructure and systems) or materials to the Supplier provided that the Supplier has acted in a timely manner in endeavouring to secure the same (which does not require the Supplier, to secure the same if the alternative supply is only available to the Supplier at a materially increased or additional cost to it); or

(v) adverse application of any law or enforcement actions of any court or Government Agency.

(p) GST means the tax levied under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(q) Intellectual Property Rights means all rights and interests throughout the world vesting or otherwise in relation to industrial or intellectual property protectable under law, whether registered, unregistered or registrable, and whether now existing or that come into existence in the future, including:

(i) any patent, trade mark, copyright (including future copyright), moral right, design, plant breeder’s rights, circuit layout rights or any other corresponding property or right under the laws of any jurisdiction;

(ii) rights in respect of an invention, discovery, trade secret, know-how, concept, idea, methodology, information (including, where applicable, Confidential Information), data, algorithm or formula; any right to apply for grant or registration of intellectual property or intellectual property rights; and

(iii) all renewals and extensions and all similar or equivalent rights or forms of protection in relation to intellectual property or intellectual property rights.

(r) Interest Rate means, for a given date, the daily cash rate set by the Reserve Bank of Australia and displayed at or about 2.30 pm (AEST time) on that date on the Reserve Bank of Australia website.

(s) Producer means a qualified producer of Long Haul Studios.

(t) Permitted Use means audio and visual production activities, including but not limited to music recording, podcasting, and video shoots.

(u) Premises means Long Haul Studios Studios, Level 3, 16 Parliament Place, West Perth WA 6005, and any other premises which may be occupied by Long Haul Studios from time to time.

(v) Studio means the recording studio selected via the Booking Form.

(w) Terms means these Terms and Conditions.

(x) Work Product has the meaning given to that term in Item 7 of the Booking Form.

18.2 In these Terms:

(a) if a word or phrase is defined, then its other grammatical forms have a corresponding meaning;

(b) the singular includes the plural and vice versa;

(c) a reference to a gender includes any gender;

(d) the words “includes” and “including” are not words of limitation;

(e) a reference to a statute includes its subordinate legislation, proclamations, ordinances and a modification, replacement or re-enactment of the same;

(f) a reference to person, includes a reference to:

(i) an individual, a body corporate, a trust, a partnership, a joint venture an unincorporated body or other entity, whether or not it is a separate legal entity;

(ii) if the person is an individual, the person’s personal representatives and assigns; and

(iii) if the person is not an individual, the person’s successors and assigns;

(g) an agreement, representation or term of these Terms in favour of or on the part of two or more people, benefits or binds them jointly and severally;

(h) a reference to currency is to the USD;

(i) a reference to time is to India Standard Time (IST), in Mumbai;

(j) if the date on which an act, matter or thing must be done or take place is not a Business Day, then that act, matter or thing must be done or take place on the next Business Day;

(k) if a period of time runs from a given date, act or event, then the time is calculated exclusive of the date, act or event;

(l) a provision in these Terms must not be construed adversely to a party solely on the ground that the party was responsible for the preparing these Terms or that provision;

(m) a reference to “writing” or “written” includes any electronic transmission or communication by facsimile;

(n) a reference to a right includes a benefit, remedy, discretion or power;

(o) the terms Related Bodies Corporate and Related Entity has the meaning given to those terms in the Corporations Act 2001 (Cth); and

(p) the phrase “in relation to” has the widest possible import and encompasses the phrases “in connection with”, “in respect of”, “arising out of” and “resulting from”