TERMS AND CONDITIONS OF ENGAGEMENT RELATING TO THIRD-PARTY SUPPLIER - Videography, Photography, Drone Footage, Pre and Post-Production.

  1. 1 revision included (if applicable)
  2. Proposal valid for 14 days
  3. Invoice(s) due 7 days from issue date or same day for booking fee
  4. All recurring and ongoing instalments and projects must be paid in full on a month-tomonth basis and overwrites the payment options terms and conditions below
  5. Footage stored for 3 months by default then deleted thereafter if not on recurring Third-Party Supplier content library subscription
  6. Music licence is the sole responsibility of client and must advise Third-Party Supplier on how many employees and turnover to ensure the correct music licence for each video or asset
  7. Booking cancellation policy for less than 5 days notice from scheduled and agreed on date for filming is 50% of agreed fee above in the section “Production (Filming)”
  8. Booking cancellation policy for less than 48 hours notice from scheduled and agreed on date for filming is 100% of agreed fee above in the section “Production (Filming)”
  9. In the event filming can not take place due to weather conditions, yet filming has been scheduled the client is liable to pay for all costs incurred and any rebooking fees, studio fees and hire equipment. Third-Party Supplier will aim to facilitate a reduction in rates where possible by negotiation however Third-Party Supplier and Skie Group is under no obligation to offer further discounts
  10. Any videos or assets supplied within this agreement / quote / proposal are NOT to be edited, reused or repurposed without written consent from Third-Party Supplier management. The copyright of these assets are protected under Australian and International copyright law. Editing, changing music or any other distribution outside of this agreement is in breach of licensing and copyright law – “RAW” or “master footage” is not supplied as standard, this is due to most clients not being able to edit the data heavy complex format we film in. The quality of our work is directly linked to the specifications we film on our movie level cameras

These terms and conditions (“Terms”) together with the Third-Party Supplier – Videography and related services Specifications constitute a legally binding agreement between you (“Client”) and Third-Party Supplier – Videography and related services (“Independent Contractor”), for the provision of website optimisation services, website production and online advertising services and/or other services set out in your Third-Party Supplier – Videography and related services Specifications (“Services”) effective from the date the last party signs the Third-Party Supplier – Videography and related services Specifications or commences utilising the Services. This policy also sets out how Third-Party Supplier – Videography and related services uses and protects any information you give Third-Party Supplier – Videography and related services when you use this website and/or services.

Third-Party Supplier – Videography and related services is committed to ensuring your privacy is protected. Should we ask you to provide certain information by which you can be identified when using this website then you can be assured it will only be used in accordance with this policy statement.

We may change this policy from time to time by updating this page. You should check this page from time to time to ensure you are happy with any changes. This policy is effective from 1st November 2017.

STANDARD TERMS & CONDITIONS RELATING TO QUOTE / PROPOSAL:

  1. Booking fee payment is required at least 7 days before shoot date for filming if possible;
  2. Balance of payment for editing and / or additional services due within 7 days of invoice date;
  3. Bookings are only guaranteed when booking fee is paid or payment is received in full;
  4. RAW footage not supplied unless agreed upon / paid for and authorised by Third-Party Supplier – Videography and related services management in writing;
  5. Actual filming time on location may vary based on client brief and deliverables;
  6. Studio hire is subject to studio availability at the time;
  7. Third-Party Supplier – Videography and related services logo will be included on every single video unless agreed in writing that the final logo is not that of Third-Party Supplier – Videography and related services.

1. DEFINITIONS

As used herein and throughout this Agreement:

  1. Agreement means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto;
  2. Client Content means all materials, footage, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables;
  3. Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Australian Copyright Law;
  4. Deliverables mean the services and work product specified in the Proposal to be delivered by Third-Party Supplier – Videography and related services to the Client, in the form and media specified in the Proposal;
  5. Film Tools means all film tools developed and/or utilised by Third-Party Supplier – Videography and related services in performing the Services, including without limitation pre existing and newly developed software including editing, colour grading, animations, and application tools, together with any other software, or other inventions whether or not patentable, and general non copyrightable concepts such as video style, storytelling, colour and functional elements;
  6. Final Art means all creative content developed or created by Third-Party Supplier – Videography and related services, or Commissioned by Third-Party Supplier – Videography and related services, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Third-Party Supplier – Videography and related services’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials;
  7. Final Deliverables means the final versions of Deliverables provided by Third-Party Supplier – Videography and related services and accepted by Client;
  8. Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Third-Party Supplier – Videography and related services and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art;
  9. Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal;
  10. Services means all services and the work product to be provided to Client by Third-Party Supplier – Videography and related services as described and otherwise further defined in the Proposal;
  11. Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or stock video or illustration;
  12. Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.

2. PROPOSAL

The terms of the Proposal shall be effective for 31 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.

3. FEES AND CHARGES

  1. Fees.
    In consideration of the Services to be performed by Third-Party Supplier – Videography and related services, Client shall pay to Third-Party Supplier – Videography and related services fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value-added taxes, even if calculated or assessed subsequent to the payment schedule;
  2. Expenses.
    Client shall pay Designer’s expenses incurred in connection with this Agreement as follows: (a) incidental and out of pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus Designer’s standard markup of 30%, and, if applicable, a mileage reimbursement at $ per kilometer; and (b) travel expenses including transportation, meals, and lodging, incurred by Third-Party Supplier – Videography and related services with Client’s prior approval;
  3. Additional Costs.
    The Project pricing includes Third-Party Supplier – Videography and related services’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal;
  4. Invoices.
    All invoices are payable within 31 days of receipt. A monthly service charge of 1.5% [or the greatest amount allowed by state law] is payable on all overdue balances.
    Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Third-Party Supplier – Videography and related services reserves the right to withhold delivery and any transfer ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes;

4. CHANGES

  1. General Changes.
    Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Third-Party Supplier – Videography and related services’s standard hourly rate of $100.00 per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Designer may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes;
  2. Substantive Changes.
    If Client requests or instructs Changes that amount to a revision of at least 15% of the time required to produce the Deliverables, and or the value or scope of the Services, Third-Party Supplier – Videography and related services shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Third-Party Supplier – Videography and related services;
  3. Timing.
    Third-Party Supplier – Videography and related services will prioritise performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Designer. The Third-Party Supplier – Videography and related services shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Third-Party Supplier – Videography and related services’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Third-Party Supplier – Videography and related services’s obligations under this Agreement;
  4. Testing and Acceptance.
    Third-Party Supplier – Videography and related services will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within 5 business days of receipt of each Deliverable, shall notify Third-Party Supplier – Videography and related services, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Third-Party Supplier – Videography and related services will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted;

5. CLIENT RESPONSIBILITIES

Client acknowledges that they shall be responsible for performing the following in a reasonable and timely manner:

  1. coordination of any decision making with parties other than Third-Party Supplier – Videography and related services;
  2. provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and/or
  3. final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.

6. ACCREDITATION/PROMOTIONS

Third-Party Supplier – Videography and related services retains the right to reproduce, publish and display the Deliverables in Third-Party Supplier – Videography and related services’s portfolios and websites and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.

7. CONFIDENTIAL INFORMATION

Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.

8. RELATIONSHIP OF THE PARTIES

  1. Independent Contractor.
    Third-Party Supplier – Videography and related services is an independent contractor, not an employee of Client or any company affiliated with Client Third-Party Supplier – Videography and related services shall provide the Services under the general direction of Client, but Third-Party Supplier – Videography and related services shall determine, in Third-Party Supplier – Videography and related services’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorised to act as agent or bind the other party except as expressly stated in this Agreement. Third-Party Supplier – Videography and related services and the work product or Deliverables prepared by Third-Party Supplier – Videography and related services shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement;
  2. Third-Party Supplier – Videography and related services Agents.
    Third-Party Supplier – Videography and related services shall be permitted to engage and/or use third party editors or shooters or other service providers as independent contractors in connection with the Services (“video”). Notwithstanding, Third-Party Supplier – Videography and related services shall remain fully responsible for such Third-Party Supplier – Videography and related services Agents’ compliance with the various terms and conditions of this Agreement;
  3. No Solicitation.
    During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any shooter or editor, employee or Design Agent of Third-Party Supplier – Videography and related services, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that Third-Party Supplier – Videography and related services shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 31 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. Third-Party Supplier – Videography and related services, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity;
  4. No Exclusivity.
    The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Third-Party Supplier – Videography and related services, and Third-Party Supplier – Videography and related services shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Third-Party Supplier – Videography and related services.

9. WARRANTIES AND REPRESENTATIONS

  1. By Client.
    Client represents, warrants and covenants to Third-Party Supplier – Videography and related services that:
    • Client owns all right, title, and interest in, or otherwise has full right and authority to Permit the use of the Client Content;
    • To the best of Client’s knowledge, the Client Content does not infringe the rights of Any third party, and use of the Client Content as well as any Trademarks in connection With the Project does not and will not violate the rights of any third parties;
    • Client shall comply with the terms and conditions of any licensing agreements which Govern the use of Third Party Materials; and/or
    • Client shall comply with all laws and regulations as they relate to the Services and Deliverables;
  2. By Third-Party Supplier – Videography and related services.
    • Third-Party Supplier – Videography and related services hereby represents, warrants and covenants to Client that Third-Party Supplier – Videography and related services will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services;
    • Third-Party Supplier – Videography and related services further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Third-Party Supplier – Videography and related services and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Third-Party Supplier – Videography and related services, Third-Party Supplier – Videography and related services shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Designer to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Third-Party Supplier – Videography and related services’s knowledge, the Final Art provided by Third-Party Supplier – Videography and related services and Third-Party Supplier – Videography and related services’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Third-Party Supplier – Videography and related services r shall be void;
    • Except for the express representations and warranties stated in this agreement, Third-Party Supplier – Videography and related services makes no warranties whatsoever, designer explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.

10. INDEMNIFICATION/LIABILITY

  1. By Client.
    Client agrees to indemnify, save and hold harmless Third-Party Supplier – Videography and related services from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Third-Party Supplier – Videography and related services shall promptly notify Client in writing of any claim or suit:
    • Client has sole control of the defence and all related settlement negotiations; and/or
    • Third-Party Supplier – Videography and related services provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Third-Party Supplier – Videography and related services in providing such assistance;
  2. By Third-Party Supplier – Videography and related services.
    Subject to the terms, conditions, express representations and warranties provided in this Agreement, Third-Party Supplier – Videography and related services agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Third-Party Supplier – Videography and related services representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that:
    • Client promptly notifies Designer in writing of the claim;
    • Designer shall have sole control of the defence and all related settlement negotiations;
    • Client shall provide Third-Party Supplier – Videography and related services with the assistance, information and authority necessary to perform Third-Party Supplier – Videography and related services’s obligations under this section. Notwithstanding the foregoing, Third-Party Supplier – Videography and related services shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorised content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Third-Party Supplier – Videography and related services;
  3. Limitation of Liability.
    The services and the work product of Third-Party Supplier – Videography and related services are sold “as is.” In all circumstances, the maximum liability of designer, its directors, officers, employees, design agents and affiliates (“Third-Party Supplier – Videography and related services Parties”), to client for damages for any and all causes whatsoever, and client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of designer. In no event shall designer be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by designer, even if designer has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.

11. TERM AND TERMINATION

  1. This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered;
  2. This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
    • becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; and/or
    • breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 5 days from receipt of written notice of such breach;
  3. In the event of termination, Designer shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Designer or Designer’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation;
  4. In the event of termination by Client and upon full payment of compensation as provided herein, Designer grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination;
  5. Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.

12. GENERAL

  1. Modification/Waiver.
    This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Third-Party Supplier – Videography and related services’s invoices may include, and Client shall pay, expenses or costs that Client authorises by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach;
  2. Notices.
    All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt;
  3. No Assignment.
    Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party;
  4. Force Majeure.
    Third-Party Supplier – Videography and related services shall not be deemed in breach of this Agreement if Third-Party Supplier – Videography and related services is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Third-Party Supplier – Videography and related services or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Third-Party Supplier – Videography and related services’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Designer shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services;
  5. Governing Law and Dispute Resolution.
    The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of Australia and the state of WA without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the Fair Trade Office, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of WA, Australia. The parties hereby waive any jurisdictional or venue defences available to them and further consent to service of process by mail. Client acknowledges that Designer will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Third-Party Supplier – Videography and related services shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein;
  6. Severability.
    Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision;
  7. Headings.
    The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect;
  8. Integration.
    This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A, and Invoices as well as emails. By their execution, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein. Schedule A: Intellectual Property Provisions.

13. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART

  1. Client Content.
    Client Content, including all pre existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Third-Party Supplier – Videography and related services a nonexclusive, non transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Designer’s performance of the Services and limited promotional uses of the Deliverables as authorised in this Agreement;
  2. Third Party Materials.
    All Third Party Materials are the exclusive property of their respective owners. Third-Party Supplier – Videography and related services shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Third-Party Supplier – Videography and related services shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Third-Party Supplier – Videography and related services from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art;
  3. Trademarks.
    Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out of pocket expenses due, Third-Party Supplier – Videography and related services assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Third-Party Supplier – Videography and related services for use by Client as a Trademark. Third-Party Supplier – Videography and related services shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party;
  4. Cinematography Tools and work.
    All Cinematographer Tools and work are and shall remain the exclusive property of Third-Party Supplier – Videography and related services. Third-Party Supplier – Videography and related services hereby grants to Client a nonexclusive, non transferable perpetual, worldwide license to use the cinematographer Tools solely to the extent necessary with the Final Deliverables for the Project. Clients may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any cinematographer Tools comprising any software or technology of cinematographer.

14. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART

  1. Client Content.
    Client Content, including all pre existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Third-Party Supplier – Videography and related services a nonexclusive, non transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Designer’s performance of the Services and limited promotional uses of the Deliverables as authorised in this Agreement;
  2. Third Party Materials.
    All Third Party Materials are the exclusive property of their respective owners. Third-Party Supplier – Videography and related services shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Third-Party Supplier – Videography and related services shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Third-Party Supplier – Videography and related services from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
  3. Trademarks.
    Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out of pocket expenses due, Third-Party Supplier – Videography and related services assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Third-Party Supplier – Videography and related services for use by Client as a Trademark. Third-Party Supplier – Videography and related services shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party.
  4. Cinematography Tools and work.
    All Cinematographer Tools and work are and shall remain the exclusive property of Third-Party Supplier – Videography and related services. Third-Party Supplier – Videography and related services hereby grants to Client a nonexclusive, non transferable perpetual, worldwide license to use the cinematographer Tools solely to the extent necessary with the Final Deliverables for the Project. Clients may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any cinematographer Tools comprising any software or technology of cinematographer.

15. RIGHTS TO FINAL ART.

  1. Assignment:
    Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, Third-Party Supplier – Videography and related services hereby assigns to Client all right, title and interest, including without limitation copyright and other intellectual property rights, in and to the Final Art. Third-Party Supplier – Videography and related services agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.
    Supplement 1: Print specific Terms and Conditions.

16. COMPLIANCE WITH LAWS.

Third-Party Supplier – Videography and related services shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.

Supplement 3: Environmental specific Terms and Conditions.

17. PHOTOGRAPHS OF THE PROJECT.

Third-Party Supplier – Videography and related services shall have the right to document, photograph or otherwise record all completed designs or installations of the Project, and to reproduce, publish and display such documentation, photographs or records for Designer’s promotional purposes in accordance with Section 6 of the Basic Terms and Conditions of this Agreement.

18. ADDITIONAL CLIENT RESPONSIBILITIES.

Client acknowledges that Client shall be responsible for performing the following in a reasonable and timely manner:

  1. Communication of administrative or operational decisions if they affect the design or production of Deliverables, and coordination of required public approvals and meetings;
  2. Provision of accurate and complete information and materials requested by Designer such as, by way of example, not limitation, site plans, building plans and elevations, utility locations, colour/material samples and all applicable codes, rules and regulation information;
  3. Provision of approved naming, nomenclature; securing approvals and correct copy from third parties such as, by way of example, not limitation, end users or donors as may be necessary;
  4. Final proofreading and written approval of all project documents including, by way of example, no limitation, artwork, message schedules, sign location plans and design drawings before their release for fabrication or installation. In the event that Client has approved work containing errors or omissions, such as, by way of example, not limitation, typographic errors or misspellings, Client shall incur the cost of correcting such errors;
  5. Arranging for the documentation, permissions, licensing and implementation of all electrical, structural or mechanical elements needed to support, house or power signage; coordination of sign manufacture and installation with other trades; and/or
  6. Bid solicitation and contract negotiation; sourcing, establishment of final pricing and contract terms directly with fabricators or vendors.

OTHER TERMS

1. Term and extension

  1. This Agreement will commence on the Commencement Date and continue until the Completion date (the ‘Term”) unless terminated earlier in accordance with clause 24.
  2. The parties agree that the Agreement will run for the Minimum Term in order to maximise the results and benefits of the Services. Should the Client wish to terminate the Services during the Minimum Term, it can do so in accordance with clause 24.1 noting however that Third-Party Supplier – Videography and related services reserves the right to charge a Cancellation Fee (or part thereof) in its absolute discretion.
  3. The parties may choose to extend the Term for a further 12 months or as agreed by the Parties in writing (including moving to a monthly agreement).

2. Provision of the Services

During the Term Third-Party Supplier – Videography and related services will:

  1. Provide the Services to the Client with all due care and skill and in a professional manner consistent with generally-accepted industry standards;
  2. Assist the Client in the establishment of a digital strategy in order to maximise the effectiveness of the Services;
  3. Keep the Clients nominated contact(s) informed of the progress of the Services;
  4. Inform the Client of any issues, which Bonfire reasonably believes may impact on the provision of the Services; and
  5. Provide the Client with detailed accounts of Services rendered.

3. Client Obligations

  1. The Client warrants that:
    • It owns the rights or has the right to use the Client Content;
    • It owns the rights or has the rights to use any software, hardware, systems, IP addresses, domain names and other items in the Clients’ ICT systems and infrastructure (“Infrastructure”);
    • Its Infrastructure is in good working order and that it has sole responsibility for the availability and integrity of the Infrastructure;
    • Has put in place sufficient internal controls to ensure the accuracy and integrity of the Client Content;
    • It will check the integrity of the Client Content on a regular basis; and
    • It will use its best endeavours to comply with its obligations under this Agreement.
  2. For the avoidance of doubt, Third-Party Supplier – Videography and related services does not take any responsibility for the Client Content and it is the Clients sole responsibility to ensure the integrity of the Client Content.
  3. During the term of this Agreement, the Client must:
    • Provide all necessary information to Third-Party Supplier – Videography and related services upon request;
    • Provide access to locations, systems and Infrastructure including relevant passwords and/or data required by Third-Party Supplier – Videography and related services in order to perform the Services;
    • Regularly backup its data, Client Content and/or website and use appropriate and up-to-date malicious code and virus detection software for preventing and detecting any harmful code, and take all reasonable precautions to safeguard its business against loss or disruption.
    • Cooperate with Third-Party Supplier – Videography and related services by providing access to its premises and facilities as reasonably necessary to enable Third-Party Supplier – Videography and related services to provide the Services;
    • Provide other such access, documents, information or data as Third-Party Supplier – Videography and related services reasonably requires in order to perform the Services; and
    • Comply with the terms and conditions of this agreement including any Special Conditions set out in Schedule 1.
  4. The Client agrees to comply with these Terms at all times and not engage in any conduct that in the reasonable opinion of Third-Party Supplier – Videography and related services obstructs the nature and goodwill of the Services.
  5. The Client agrees to use the Services only for lawful purposes and is prohibited from posting on or transmitting through the Services any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically or otherwise objectionable material of any kind, including, but not limited to, any material which encourages conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any applicable local, state or national law.
  6. During the Term of this Agreement, Third-Party Supplier – Videography and related services may elect to electronically monitor the Services for adherence to these terms and may disclose to the extent permitted by law (and subject to our obligations of confidentiality) any content, records or electronic communication of any kind:
    • As required by law;
    • If such disclosure is necessary to perform the Services, or
    • To protect the rights or property of Third-Party Supplier – Videography and related services.
  7. Third-Party Supplier – Videography and related services reserves the right to remove any Client Content or other content that it deems to be offensive or as otherwise described in clause 3.5 if a series of such breaches occurs by the Client. After receiving notice to desist from Third-Party Supplier – Videography and related services, Third-Party Supplier – Videography and related services will terminate the Agreement with immediate effect in accordance with clause 24.2 (a).

4. Fee and Payment

  1. The Fees for the Services are set out in Schedule 1.
  2. Unless otherwise indicated in Schedule 1 the Fee does not include goods and services tax (‘GST’). In addition to and at the same time as payment of the Fee, the Client must pay to Third-Party Supplier – Videography and related services any GST relating to the Services.
  3. The Client hereby gives its express authorisation for Third-Party Supplier – Videography and related services to automatically debit the Clients nominated bank account (Including credit card payment) on the Debit Date for the payment of the Fees.
  4. Third-Party Supplier – Videography and related services will provide the Client with a Statement of Account showing the amounts debited and any other fee or disbursement accrued on the Clients behalf.
  5. Any disbursements incurred as a result of providing the Services will be reimbursed in full to Third-Party Supplier – Videography and related services upon submission of receipts to the Client.
  6. If there is a change in the scope, timing or order of the Services, then Third-Party Supplier – Videography and related services will be entitled to additional payment of any amount which is reasonable in the circumstances.

5. Failed or overdue payments

  1. Where Third-Party Supplier – Videography and related services has attempted to debit the funds on the Debit Date and the payment has been rejected due to insufficient funds (or some other reason), Third-Party Supplier – Videography and related services will contact the Client to arrange another date to debit the account. Where the second attempt to debit the account fails, Third-Party Supplier – Videography and related services reserves the right to charge a Failed Payment Fee. The outstanding payment immediately becomes a debt due and payable by the Client to Third-Party Supplier – Videography and related services.
  2. Where 2 or more attempts have been made to debit the account but payment fails, Third-Party Supplier – Videography and related services will suspend all services until the relevant payment(s) have been made.
  3. The Client agrees to pay any and all costs associated with recovery of debt under this clause including (but not limited to) debt collection, outsourcing and legal costs should Third-Party Supplier – Videography and related services take legal action through courts of appropriate jurisdiction.

6. Paid Advertising Management

  1. Third-Party Supplier – Videography and related services will set up paid advertising campaigns and deliver paid traffic to the Clients website. This can be from a variety of networks including Google, Facebook and Bing. If paid traffic cannot be delivered to the website in question due to the editorial policies of the search engines regarding the acceptance of advertiser web properties, then the Client will be notified of the situation in writing. Third-Party Supplier – Videography and related services is not to be held liable in this situation. When subscribing to re-marketing services through Third-Party Supplier – Videography and related services, it is the responsibility of the Advertiser to ensure relevant Privacy Laws and Policies (Google, Facebook) are in place regarding direct marketing.
  2. Costs associated with media and clicks generated from running this service will be charged directly by respective platform. The Client authorises Third-Party Supplier – Videography and related services to provide your credit card details to the advertising platform for this purpose. These fees will appear as separate charges on the Clients credit card statement.
  3. The Client agrees that Third-Party Supplier – Videography and related services is not responsible or liable for any incorrect payments charged by third party advertising platforms. The Client agrees to communicate directly with the advertising platform should any incorrect charges be made on your nominated account by a third party advertising platform. Third-Party Supplier – Videography and related services agrees to provide reasonable assistance to facilitate communication between the Client and Google should this situation arise.
  4. All paid platform accounts initially set up by Third-Party Supplier – Videography and related services are the property of Third-Party Supplier – Videography and related services. Upon termination or expiration of this Agreement, the Client may apply to Third-Party Supplier – Videography and related services to transfer ownership of the account which will be granted if the following conditions are met:
    • The term of the agreement is realised; and
    • A minimum of 12 payments have been made on this service.
  5. The Client must comply with guidelines for the respective paid advertising platforms.
  6. A Paid Advertising campaign, which is still in its Minimum Term and has had a minimum of 3 payments processed, can be paused for 1 regular payment, per 3 regular payment period. Where the campaign is suspended for a longer period of time, then Third-Party Supplier – Videography and related services may choose to terminate the Agreement and charge the Client a Cancellation Fee in accordance with clause 1.3.
  7. If Third-Party Supplier – Videography and related services elects to use a paid platform account owned by the Client, changes to the account should only be made by Third-Party Supplier – Videography and related services staff. The Client can request changes to the account via the nominated Third-Party Supplier – Videography and related services account manager.
  8. Please note that Third-Party Supplier – Videography and related services is not directly affiliated with Google™.

7. Upload of Content to Customer Websites

  1. Third-Party Supplier – Videography and related services will upload optimised content and tags to the Client’s website where a web page is written in a language that our technicians are trained in. If a web page has been designed using languages that we are not skilled in, uploading of content will be the responsibility of the Client and/or their webmaster.
  2. During the provision of the Services, the Client may provide Third-Party Supplier – Videography and related services with access to make changes to their website. However, the Client agrees that Third-Party Supplier – Videography and related services is not liable for any errors which may occur in these updates. Although full care is taken when making such website changes, the Client is expected to regularly back up its data in accordance with clause 3.3. This excludes websites which been developed by and still hosted with Third-Party Supplier – Videography and related services.

8. Website Design

  1. Website design services are provided as per your Website Design Agreement with Third-Party Supplier – Videography and related services. An approximate timing schedule is provided at the time of the Website Design Agreement. Failure to provide content or other items within the specified time will delay the setup of the website.
  2. Website design costs may be subsidised by Third-Party Supplier – Videography and related services and set out in Schedule 1. If the Client discontinues the development of the website at any stage prior to completion, the Client is liable to pay this subsidised amount. Further, if the Client discontinues the development of the website at any stage prior to completion, the Client is responsible for any fees associated with the completion of the website as outlined in their Website Design Agreement.
  3. After the launch of a website, the Client is responsible for backing up their website on a regular basis, unless the website is hosted by Third-Party Supplier – Videography and related services. In the event that the Clients website goes down and it is hosted on a website server other than an Third-Party Supplier – Videography and related services affiliate server, we are not responsible for bringing the website back online.

9. Website Hosting Services

  1. Where Third-Party Supplier – Videography and related services will host a Clients existing website, the Client must pay a Transfer Fee at the outset of the web hosting service.
  2. Third-Party Supplier – Videography and related services warrants that the Clients uptime availability will be at least 99.9% except where the failure results from:
    • A failure or malfunction in relation to any device or equipment, any software or power supply outside our control, unless caused by our wrongful act or omission;
    • The Client’s act or omission (or a person under the Client’s direction or control);
    • A failure or malfunction of any software forming part of the Services which has not been subjected to a testing regime due to its time critical nature including updates, patches, definitions etc.;
    • During scheduled maintenance windows and any emergency maintenance and upgrade work;
    • A requirement, direction or any other order issued by a court, government authority, administrative or judicial body;
    • Unauthorised or illegal access by any party to any party of the computer systems used to provide the Services including hacking, cracking, virus dissemination and denial of service attacks;
    • Any false breaches reported as a result of outages or errors of any Third-Party Supplier – Videography and related services measurement system;
    • DNS propagation;
  3. If in any calendar month, should Third-Party Supplier – Videography and related services fail to meet the Uptime SLA, Third-Party Supplier – Videography and related services will refund to the Client, as its sole right or remedy, a 20% percentage credit of the fees for the relevant Service in that month (“Service Credit”). Service Credits are calculated against that month’s web hosting fees and charges only. The Client must request a Service Credit in writing via our email address [email protected]. All requests must be made within 30 days of the Uptime SLA breach occurring, and the Client must provide Third-Party Supplier – Videography and related services with details of the breach claimed for verification purposes. If the breach is confirmed by Third-Party Supplier – Videography and related services (based on Third-Party Supplier – Videography and related services records obtained from its monitoring services) to have occurred, then Third-Party Supplier – Videography and related services will, within 60 days of your request being received, apply the relevant Service Credit to the Client’s nominated account.
  4. The Client is only entitled to make 1 claim for a Service Credit per month.
  5. Where the Client is in breach of its obligations under this Agreement, including its obligation to pay Fees, then any Service Credit will be set off and deducted from the amount owed by the Client to Third-Party Supplier – Videography and related services. Nothing in this clause prevents Third-Party Supplier – Videography and related services from exercising its full rights to recover monies from the Client owed to Third-Party Supplier – Videography and related services under this Agreement.
  6. Third-Party Supplier – Videography and related services takes no responsibility for a websites functionality or performance that has been transferred into its hosting environment pursuant to this clause. If Third-Party Supplier – Videography and related services identifies any issues with the website which may degrade the server and/or affect the stability of the Clients website, Third-Party Supplier – Videography and related services will notify the Client of same and such issues must be rectified at the Clients expense in order to continue the hosting services.

10. Email setup

  1. Third-Party Supplier – Videography and related services will assist the Client in the setup of email addresses via a preferred services provider. Instructions will be provided on the setup of the email access on your desktop and mobile devices.
  2. Any further support regarding the setup or ongoing usage of your email will be provided via the preferred services provider.

11. Search Engine Optimisation (SEO)

  1. Third-Party Supplier – Videography and related services will undertake the optimisation of the Clients website as per best practise techniques used in the industry.
  2. Although Third-Party Supplier – Videography and related services are the professionals within in the industry, the Client agrees and understands that SEO does not provide any guaranteed results and that results can vary based on the Clients website history, industry and many more factors. The Client agrees to release Third-Party Supplier – Videography and related services and any employee, owner, or director of Third-Party Supplier – Videography and related services from being liable for any damages, cost, or loss of business due to any incidents and/or issues relating to any search engine’s actions.
  3. Any alterations of SEO keywords by the Client after the initial selection of the keywords will incur additional fees.
  4. One face to face meeting is included in SEO services per year. Organic Search Marketing services include three face to face meetings per year.
  5. SEO services do not include the consultation required in the launching of a new website, on the domain being worked on. An additional fee will be payable for this service, which will be quoted prior to commencement of this consultation. Organic Search Marketing services are exempt of this fee.

12. Website Content Maintenance

  1. Ad-hoc website maintenance including content updates is charged at the hourly rates set out in Schedule 1 with a one (1) hour minimum and has a ten (10) business day turnaround time. Website maintenance packages will have content changes administered five (5) business days after requested.

13. Linked Websites

  1. Some of the Services may contain links to other websites (“linked websites”) which are not owned or operated by Third-Party Supplier – Videography and related services. These links are provided for convenience only and may not remain current or be maintained. Third-Party Supplier – Videography and related services is not responsible for the content or the terms and conditions and privacy practices associated with linked websites.
  2. Third-Party Supplier – Videography and related services links with linked websites should not be construed as an endorsement, approval or recommendation by Third-Party Supplier – Videography and related services of the owners or operators of those linked websites, or of any information, graphics, materials, products or services referred to or contained on those linked websites, unless written and authorised endorsements have been made by Third-Party Supplier – Videography and related services in relation to those specific links, products and/or services.

14. Service Inclusions

  1. During the Term Third-Party Supplier – Videography and related services will:
    • Supply telephone or other electronic support to the Client between the hours of 8:30am – 5:30pm Monday to Friday (“Business Hours”) in order to support Clients enjoyment of the Services;
    • Provide the services set out in the Third-Party Supplier – Videography and related services Services Specifications; and
    • Provide any additional services which have been agreed to in writing between Third-Party Supplier – Videography and related services and the Client, the provision of any additional services are subject to the terms of the Agreement and may incur additional fees.

15. Service Exclusions

  1. Unless otherwise agreed in writing, Third-Party Supplier – Videography and related services has no liability for and is not required to provide Services under this Agreement if it relates to:
    • Rectification of lost or corrupted data arising for any reason other than Third-Party Supplier – Videography and related services’s own negligence;
    • Support rendered more difficult because of any changes, alterations, additions, modifications or variations to the Services or the use of the system or operating environment;
    • Attendance to faults caused by using the Services outside design or other specifications or outside the provisions laid down in any documentation or manual supplied with the Services, or caused by operator error or omission;
    • Restoration of data files following failure to back-up data/website in accordance with Third-Party Supplier – Videography and related services’s recommended procedures;
    • Diagnosis and/or rectification of problems not associated with the Services;
    • Damage due to external causes outside Third-Party Supplier – Videography and related services control, namely force majeure events including, but not limited to any accident, disaster, electrical fault, power surges, lightning, internet connection fault, vandalism, burglary etc.;
    • The Client not following Third-Party Supplier – Videography and related services or the a third party (such as Google) written instructions for the Services;
    • The Client’s or its third party’s abnormal use of the Services and/or any repair or damaged caused by such misuse;
    • Any other exclusions listed in the Third-Party Supplier – Videography and related services Services Specifications.
  2. Third-Party Supplier – Videography and related services may choose to provide the above services at an additional cost to the Client (which will be invoiced separately).

16. Confidentiality

  1. Each party must at all times:
    • Maintain the secrecy and confidentiality of any Confidential Information of the other party;
    • Not divulge or disclose to any other person, firm, corporation or entity any Confidential Information of the other party;
    • Refrain from copying, transmitting, retaining or removing any Confidential Information of the other party, or attempting to do the same; and
    • Use its best endeavours to prevent the disclosure of any Confidential Information of the other party by or to third parties.
  2. For the avoidance of doubt all methodologies, documentation and procedures used by Third-Party Supplier – Videography and related services for the provision of the Services are classified as Third-Party Supplier – Videography and related services’s Confidential Information and may only be disclosed to staff of the Client on a need-to-know basis. Disclosure to third parties of this Confidential Information is strictly prohibited unless Third-Party Supplier – Videography and related services provides its express written consent (which may be withheld in its absolute discretion).

17. Privacy

  1. The Client agrees to comply with the Privacy Act 1988 in its dealings with Third-Party Supplier – Videography and related services. In particular, the Client warrants that it has made all necessary disclosures and obtained all consents required under the Act in respect of personal information given to or accessed by Third-Party Supplier – Videography and related services in connection with this Agreement. The Client indemnifies and keeps indemnified Third-Party Supplier – Videography and related services from and against all costs, losses, damages, claims and expenses arising from the Client’s breach of this warranty.
  2. By entering into this Agreement, the Client confirms that it has read the Third-Party Supplier – Videography and related services Privacy Policy which can be found at equiptmedia.com/privacy-policy. The Client may request a hard copy from Third-Party Supplier – Videography and related services by emailing [email protected].

18. Partner Referral Agreements

  1. Where the Client has been introduced to Third-Party Supplier – Videography and related services via a third party referrer, the Client acknowledges and agrees that some information may be shared with these partners including email, name and products purchased for reporting purposes.

19. Ownership of Data and Services Material

  1. No Background IPR is transferred by virtue of this Agreement. Each party hereby grants to the other a royalty-free, non-exclusive, non-transferable license to use its Background IPR for the purposes of this Agreement. For the avoidance of doubt, the Client owns all IPR in the Client Content and grants Third-Party Supplier – Videography and related services a royalty-free right to use the Client Content for the provision of the Services and any other additional services that may arise during the Term of this Agreement.
  2. All IPR in the Services Material is owned by Third-Party Supplier – Videography and related services upon creation. Subject to the payment of the Fee, Third-Party Supplier – Videography and related services hereby grants the Client a royalty-free, non-exclusive, non-transferable license to use, modify and adapt the Services Material for the purposes of this Agreement and for its internal business purposes.
  3. The Client agrees to not copy, reproduce, export or deal in the Services and/or Services Materials or any part of them in any way except as expressly permitted by this Agreement.
  4. The Client agrees not to decompile, reverse engineer, disassemble or otherwise reduce any part of the Services and/or Services Material to human-readable form nor permit any third party to do so.
  5. The Client indemnifies, saves and holds Third-Party Supplier – Videography and related services harmless from any loss, liability, claim, damage or expense Third-Party Supplier – Videography and related services suffers or incurs as a result of the Clients failure to comply with its obligations under this clause.

20. Use of Third-Party Supplier - Videography and related services Trademarks

  1. Use of Third-Party Supplier – Videography and related services Trademarks is strictly prohibited unless written consent is obtained from Third-Party Supplier – Videography and related services.
  2. Where consent is provided under clause 20.1, the Client must include a statement attributing ownership of the Trademark(s) to Third-Party Supplier – Videography and related services.
  3. The Client must not use the Trademarks:
    • In or as the whole or part of its own trademarks;
    • In connection with activities, products or services which are not provided by Third-Party Supplier – Videography and related services;
    • In a manner which may be confusing, misleading or deceptive;
    • In a manner that disparages Third-Party Supplier – Videography and related services or its information, products or services.
  4. Failure to comply with the obligations contained in this clause may result in infringement action being taken against the Client without further notice.

21. Security

  1. Notwithstanding the security precautions taken against disclosure of information, there are certain conditions that exist on the Internet generally which are outside Third-Party Supplier – Videography and related services’s control and could result in a breach of security. The Client hereby expressly waives any claim against Third-Party Supplier – Videography and related services arising out of the loss of data through corruption, piracy, and breach of security or for any other reason.

22. Warranties and Indemnities

  1. Nothing in this Agreement is to be read as excluding, restricting or modifying the application of any legislation which by law cannot be excluded, restricted or modified.
  2. Subject to clause 22.1, any representation, warranty, condition or undertaking in relation to the performance of the Services which (but for this clause) would be implied in this Agreement by law, is excluded.
  3. Any liability Third-Party Supplier – Videography and related services may have for any failure to comply with a consumer guarantee imposed by the Australia Consumer Law, or any condition or warranty implied into this Agreement by legislation that cannot be excluded is not excluded but to the extent permitted by law is limited to (at Third-Party Supplier – Videography and related services’s option) in the case of the Services:
    • Re-supplying the Services;
    • Paying the cost of re-supplying the Services.
  4. To the extent that Third-Party Supplier – Videography and related services’s liability cannot be or is not otherwise limited according to this clause 22, under no circumstances will Third-Party Supplier – Videography and related services’s total aggregate liability under this Agreement, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the actual amounts paid to Third-Party Supplier – Videography and related services by the Client under this Agreement.
  5. The Client assumes sole responsibility for the use of the Services in its business operations and hereby indemnifies (and keeps indemnified) Third-Party Supplier – Videography and related services, its officers, employees, agents, and contractors from and against all liability, losses, actions, claims (including third party claims), demands, proceedings, awards, settlements, compensation, damages, costs and expenses, directly or indirectly arising from, or relating to:
    • The Client’s use of, or reliance on, any part of the Services and/or Services Material; or
    • Any other person’s use of, or reliance on, any part of the Services and/or Services Material which were provided to that person directly or indirectly by the Client.
    • A breach or failure to perform by the Client of its obligations under this Agreement; or
    • Any wilful, unlawful or negligent act or omission of the Client.
  6. The Client’s liability under clause 22.5 will be reduced proportionately to the extent that Third-Party Supplier – Videography and related services’s negligent act or omission contributed to that loss or liability.
  7. For the avoidance of doubt and to the fullest extent permitted by law, Third-Party Supplier – Videography and related services is not liable for:
    • Any special, indirect or consequential loss including (but not limited to) loss of opportunity and/or loss of profits, savings, clients, contracts, revenue, interest or goodwill, suffered or incurred by the Client as a result of its use of the Services and/or Services Material under this Agreement; or
    • Any loss or damage suffered by the Client or any third party due to the Clients negligent or improper use or of the Services and/or Services Material.
  8. Third-Party Supplier – Videography and related services is not responsible for URLs dropped or excluded for any reason.
  9. Third-Party Supplier – Videography and related services does not represent, warrant, or guarantee that the Clients URLs will achieve a favourable position, or any position. Third-Party Supplier – Videography and related services cannot control or guarantee which, if any, search engines will accept the submission of the Clients website. Third-Party Supplier – Videography and related services will not be responsible for delays or failure of performance resulting from internet service provider delivery problems or failure, or any communication or delivery problems associated with the Clients order details, such as incorrect email address or URL address.

23. Disputes

  1. The parties must work in good faith to resolve any dispute between them arising from this Agreement.
  2. Any dispute will initially be referred to the nominated representatives of each party for resolution. If such dispute is not resolved within 7 days, the dispute will be referred to a meeting of the Director/ CEO or authorised delegate or equivalent of each party.
  3. If the dispute remains unresolved after a period of 60 days after the second meeting referred to in clause 23.2, the parties will agree upon an appropriate mediator. Failing agreement, the President of the Law Society of Western Australia will appoint a mediator. Agreement as to the allocation of costs will be determined through mediation.
  4. A party may not commence court proceedings until 30 days after referral to a mediator pursuant to clause 23.3 except that nothing in this clause will prevent any party from seeking urgent interlocutory relief through courts of appropriate jurisdiction.

24. Termination

  1. Each party may terminate this agreement by giving 30 days’ written notice to the other party. If the Agreement is terminated by the Client within the Minimum Term, the Client will be liable to pay the Cancellation Fee in accordance with clause 1.2
  2. Without limiting any other rights or remedies Third-Party Supplier – Videography and related services may have against the Client arising out of or in connection with this Agreement, Third-Party Supplier – Videography and related services may terminate the Agreement with immediate effect if the Client:
    • Commits a serious breach of this Agreement including (but not limited to) posting offensive material or material promoting or suggestive of illegal or criminal activity;
    • Has had insufficient funds in their nominated bank account on the Debit Date for 2 consecutive months or more, or has not notified Third-Party Supplier – Videography and related services that it disputes the charges specified under an invoice within 60 days of receipt of that invoice; and
    • The Client breaches a provision of this Agreement and fails to remedy the breach within 30 days of receiving notice to do so; or
    • The Client becomes insolvent or enters into liquidation or receivership or makes a composition or arrangement with its creditors generally or takes advantage of any statutory relief for insolvent debtors.
  3. A termination of this Agreement will not affect the Client’s liability to pay Fees for Services already performed.
  4. The provisions of clauses 5.3, 16, 17, 19, 20, 21, 22, 27 and this clause 24.4 survives termination or expiration of this Agreement.

25. Independent Contractor

  1. Third-Party Supplier – Videography and related services is an independent contractor and not an employee or agent of the Client.
  2. The manner of performance of the Services will be at all times within the judgement and discretion of Third-Party Supplier – Videography and related services.
  3. Neither Third-Party Supplier – Videography and related services nor any employee, contractor, representative, agent of Third-Party Supplier – Videography and related services will by virtue of this Agreement be deemed to be an employee of the Client.
  4. The parties to this Agreement will not be or be deemed to be in any partnership, collaboration or joint venture and neither party will hold itself out as being in any way a partner or in a joint venture with the other party and neither party will pledge the credit or warrant the authority of the other party.
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