For the purposes of interpretation and construction of this Agreement:

• 1.1 Words importing the singular or plural number include the plural and singular number respectively;
• 1.2 A “person” includes any individual, corporation, unincorporated association, government department or municipal authority;
• 1.3 References to a Party to this Agreement include that Party's successors and permitted assignees;
• 1.4 This Agreement shall be governed by New Zealand law;
• 1.5 Virtual Media is a trading Brand for Vistech Limited
• 1.6 A statute includes that statute as amended from time to time and any legislation passed in substitution therefore.

Virtual Media will provide the products and services, as identified in the attached order form, by the due date unless the Agreement is terminated or otherwise altered as agreed by both parties.

Support, Maintenance or Enhancement to any other products, applications or any other services, not included in the agreement herein, is not in scope for this agreement.

The specific requirements for the solution delivered under this agreement shall be detailed in a separate requirements document or order form and attached to this agreement. The requirements shall explicitly describe the scope, timeframes, technical requirements, user requirements, deliverables and any other information necessary by either party to complete the project and deliver the desired outcomes on time and on budget.

The requirements must be signed and dated by both parties to this agreement to be deemed effective.

• a) Work will only commence upon the acceptance by Virtual Media of full project specifications detailing all products and services required and documented in an order or project services schedule. Virtual Media reserves the right not to accept such order or project services schedule at its discretion.
• b) Changes and additions to design specifications may be made prior to customer's acceptance of the goods and services ordered but Virtual Media reserves the right to charge the Customer for any work undertaken until the time at which changed and/or new design specifications are provided to it.
• c) Should the Customer cancel a an order or project services schedule after acceptance by Virtual Media then the Customer will be charged for all work undertaken up until the time notice of cancellation is received by Virtual Media.

• a) Virtual Media commits to keeping its customers informed of any delivery delays arising from circumstances beyond it's control. In no event will Virtual Media be held responsible for losses incurred by the Customer for delivery delays caused by circumstances outside it's control.
• b) Virtual Media will deliver the exact products and services outlined on the order acceptance. Unless otherwise agreed, the Customer is responsible for arranging access to the location at which the products and services are to be delivered and/or installed.
• c) A project is deemed delivered by Virtual Media when a CD-Rom, DVD or similar media containing all 3D models, panoramic images, still photography imagery, and (if required) associated web pages and other associated marketing collateral which constitute the products and services as specified by the Customer for the specified project, have been physically received by the Customer or by any party nominated to take delivery in the Customer order and agreed to in Virtual Media’ order acceptance or if all files which constitute the completed project have been electronically received by the Customer or by any party nominated to take delivery on behalf of the Customer as mutually agreed by Virtual Media and the Customer.
• d) Virtual Media takes no responsibility for the deliverable products and services once they have been delivered and accepted by the Customer.
• e) the Customer is deemed to have accepted the products and services delivered when the Customer provides signed confirmation of acceptance to Virtual Media, or three (3) working days after their delivery in accordance with the delivery definitions above, whichever occurs first.

• (a) the Customer undertakes to:
  • (i) properly supervise, control and manage the use of the products and services provided by Virtual Media to the Customer under the provisions of this Agreement.
  • (ii) participate in good faith in any change control process where the customer requests a change to the products or the service deliverables or the manner in which they are supplied..
• (b) The parties agree that the Customer has independently determined that the services ordered under this agreement meet its requirements.

• (a) Virtual Media is responsible for finding and allocating resources for the Services to be performed by Virtual Media under this Agreement. Virtual Media shall advise the Customer as soon as possible about the availability of resources for the provision of additional services. If Virtual Media staff are unavailable to complete the work then, subject to clause 12, Virtual Media is obliged to find third party resources to complete the work.
• (b) Virtual Media is obliged to keep a master copy of this Agreement, all Schedules, Statements of Work, the Operations Manual and all Change Requests. These master copies are to be made available to the Customer on request.
• (c) Virtual Media shall participate in good faith in any Change Management Process where the customer requests a change to the Services or the deliverables or the manner in which they are supplied

All copyright and intellectual property (IP) of all technology, models, websites, images and other collateral supplied to the Customer will reside with Virtual Media at all times. Virtual Media holds all rights to the idea, to the intellectual property, to the techniques employed to produce the deliverables, and to any other technical information. Virtual Media reserves the right to seek compensation for any financial losses incurred due to any breach by the Customer of the above stated rights. Unauthorised use or copying of Virtual Media technology and processes is not allowed under any circumstances. Virtual Media reserves the right to use any deliverables produced by it for promotional reasons in the media, in printed publications, on the world wide web, or as links on its own web sites, without prior permission from the Customer

All copyright for still photos remains with Virtual Media. The Customer may use the finished images in any manner providing the intended use is not inappropriate, offensive or insulting to Virtual Media or any other persons.

All copyright of models, images, text and animations which constitute a finished project will reside with the Customer upon receipt of full payment. Virtual Media reserves the right to reference and link to any customer web site for any promotional reasons.

Virtual Media will charge the Customer a fixed fee for the products and services agreed within this agreement and supporting schedules for the term of this agreement.

Any services delivered in addition to the contracted services will be charged to the Customer at the time of successful completion of the service. For ongoing services, the Customer will be charged at the end of each calendar month, in which the service was delivered. The charges for additional services will be detailed in an appendix to this agreement.

If the Customer fails to pay any of the above charges by the due date, Virtual Media reserves the right to instruct a third party debt collection agency to recover outstanding amounts. The Customer will be liable for any and all costs incurred to recover outstanding payments.

Failure to pay by the due date may result in the debt collection action. Any debt collection costs incurred will be charged to the customer.

Overdue payments may incur interest charges of 2% per month, or part thereof for every month that payments remain outstanding.

Payment for all work is due within 7 working days unless otherwise agreed.

All charges are in New Zealand dollars and are exclusive of GST.

An instruction/loading fee of $10.00 will be charged on the loading of each New Zealand based debt. Credit Consultants Group NZ Limited will add a Commission at the rate of 20% (percent) and will be charged on each payment/debt reduction, including on tracing, field visits, and legal charges. A minimum amount of $2.00 will be charged on any payment received.

• 11.1 If either party wishes to alter any Contract, Services Agreement, Services Schedule, Appendix, or any related documentation, including the addition or deletion of Products or Services under this or any related or accompanying documentation, a Change Control Process, will be applied.
• 11.2 The Change Control Process will be mutually agreed and documented in an appendix to this agreement.

• (a) Virtual Media may sub-contract for the performance of this Agreement or any part of this Agreement to the extent specified in clause 8.
• (b) Virtual Media may, without the consent of the Customer, engage individuals on a sub-contract or consultancy basis to assist in the provision of Products and Services pursuant to this Agreement.

• 13.1 Limitation of Liability

  Subject to clauses 13.2 and 13.3, each party’s total liability to the other in respect of a single claim or series of related claims in contract and tort (including but not limited to negligence) for direct loss suffered by the non-defaulting party arising out of or in connection with defaulting party’s performance of its obligations under this Agreement shall not exceed the greater of:

  • 13.1.1 the liability amount specified in the relevant schedules or appendices to this agreement; or
  • 13.1.2 an amount equal to the total amount the Customer has paid to Virtual Media in the 30 days immediately prior to the event giving rise to the claim or series of related claims.
• 13.2 Extent of Limitation

  No term of this Agreement shall limit the defaulting party’s liability to the non-defaulting party for:

  • 13.2.1 Any damage to physical property;
  • 13.2.2 the death of any person;
  • 13.2.3 any injury to any person,

  caused by the negligence of the defaulting party or its officers, employees, contractors or agents.

• 13.3 No Liability for Indirect Loss

  Subject to clause 13.2, under no circumstances will either party or their respective officers, employees, contractors or agents be liable to the other or any person claiming through the other in contract, tort (including but not limited to negligence), in equity, for breach of statutory duty or otherwise for loss (whether direct or indirect) of profits, business or anticipated savings or for any indirect or consequential loss whatsoever notwithstanding that the other party or its officers, employees, contractors or agents have been advised of or are otherwise aware of the likelihood of such losses.

• 13.4 Termination

  If this agreement is terminated by the customer prior to completion the customer forfeits any deposit made. The customer shall be liable to pay Virtual Media for the value of all unpaid work carried out prior to the termination taking effect.

• 13.5 Force Majeure

  No Party shall be liable for any failure to perform its obligations where such failure is as a result of Acts of Nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, labour dispute, strike, lockout or interruption or failure of electricity or [telephone service], and no other Party will have a right to terminate this Agreement in such circumstances.

  Any Party asserting Force Majeure as an excuse shall have the burden of proving that reasonable steps were taken (under the circumstances) to minimize delay or damages caused by forseeable events, that all non-excused obligations were substantially fulfilled, and that the other Party was timely notified of the likelihood or actual occurrence which would justify such an assertion, so that other prudent precautions could be contemplated.

• 14.1 Assignment
  • 14.1.1 Virtual Media shall not assign transfer or subcontract its rights or obligations under this Agreement without the prior written consent of the Customer which consent the Customer shall not unreasonably withhold. For the purposes of this Agreement, the Customer approves Virtual Media Pty Limited (Australia) as a sub-contractor in respect of the provision of Products and Services under this agreement.
  • 14.1.2 For the purposes of this clause the transfer of any shares in Virtual Media which directly results in a change of control of Virtual Media shall be deemed an assignment.
• 14.2 Dispute Resolution

  Any disputes between the parties will be referred to the parties’ Chief Executive Officers (CEOs), or their equivalent. The CEOs will endeavour to resolve the dispute within ten (10) Working Days. If the CEOs do not resolve the dispute within this time, the dispute will be referred to arbitration in accordance with paragraph (b) of this clause. Subject to paragraph (a) of this clause, any dispute arising in connection with this Agreement will be referred to the arbitration of an independent arbitrator appointed by the President for the time being of the New Zealand Law Society. Such arbitration shall be conducted under the Arbitration Act 1996. The decision of the arbitrator shall be final.

• 14.3 Applicability of Conditions

  All sections, clauses, terms and conditions under this agreement shall apply jointly and severally for the duration of the agreement.

• 14.4 Amendments

  Any modification to or variation of this Agreement shall be in writing and signed by authorised representatives of Virtual Media and the Customer.

• 15.5 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
  • 15.5.1 these terms and conditions constitute a security agreement for the purpose of the PPSA; and
  • 15.5.2 a security interest is taken in all Goods and Services previously supplied by Virtual Media to the Customer (if any) and all Goods and Services that will be supplied in the future by Virtual Media to the Consumer.
• 15.6 The Customer undertakes to:
  • 15.6.1 sign any further documents an/or provide any further information (such information to be complete, accurate and up to date in all respects) which Virtual Media may be reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
  • 15.6.2 indemnify, and upon demand reimburse, Virtual Media for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods or Services charged thereby;
  • 15.6.3 not register a financing change statement or a change demand without the prior written consent of Virtual Media; and
  • 15.6.4 immediately advise Virtual Media of any material change in its business practices of selling the Goods or Service which would result in a change in the nature of proceeds derived from such sales.
• 15.7 Virtual Media and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
• 15.8 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
• 15.9 Unless otherwise agreed to in writing by Virtual Media, the Customer waives its rights to receive a verification statement in accordance with section 148 of the PPSA.
• 15.10 The Customer shall unconditionally ratify any actions taken by Virtual Media under clause 15.1 to 15.5.