TERMS & CONDITIONS – 33South Films and Video production Newcastle

THIRTY3SOUTH Films | Terms and Conditions
Definitions

In these terms and conditions, unless the context otherwise requires:

Consumer means any individual who acquires THIRTY3SOUTH’s services wholly or predominately for personal, domestic or commercial use.

Customer means any person or entity requesting THIRTY3SOUTH Film’s to provide Services.

THIRTY3SOUTH means Just Media Group Pty Ltd TA’s THIRTY3SOUTH Films (ABN 67 142 649 161) of 46 Annie Street, Wickham NSW 2293.

Agreed Fee means the fees estimated by THIRTY3SOUTH in any quotation once accepted by the Customer.
Materials means any goods, chattels, items or things, including but not limited to any photographs, documents (whether digital or hard copy), tapes, videos, films, footage, props and equipment provided by the Customer to THIRTY3SOUTH for the purposes of THIRTY3SOUTH supplying the Services.

Raw Footage means unedited source footage recorded by THIRTY3SOUTH as part of provision of the Services.
Services means video production and/or post production services.

Application

These Terms and Conditions apply to and are incorporated into all contracts, agreements, arrangements, transactions and dealings entered into by THIRTY3SOUTH with any Customer in relation to the provision of Services by THIRTY3SOUTH.

All work carried out by THIRTY3SOUTH is on the basis that the Customer has agreed to these Terms and Conditions.

Consumer Contract
If the Customer is a Consumer:

These conditions do not affect any rights the Customer has under Schedule 2 of the Competition and Consumer Act 2010 (Cth); and
These conditions do not affect the laws in force in the place in which the contract is made prior to the contract.

Quotations

Quotations are calculated by estimating how long it will take to provide the Services under typical circumstances and are based on a daily rate. One round of Customer changes and/or revisions is included in each quotation.

If the Customer instructs THIRTY3SOUTH that significant changes and/or revisions to the scope of the Services described in a quotation are required then THIRTY3SOUTH shall be entitled to charge an additional Agree Fee based on a further quotation.

Cancellation

If the Customer has engaged THIRTY3SOUTH to provide Services on a specified date, the Customer may notify THIRTY3SOUTH in writing (during normal business hours) that the Customer does not require the Services to be provided on that date (“the cancellation”).
If notification of the cancellation is provided outside of normal business hours, it is deemed to have been provided at the commencement of the following business day.

If the cancellation is made more than 48 hours prior to the day on which THIRTY3SOUTH has been engaged to provide the Services, the Customer must reimburse THIRTY3SOUTH for any expenses incurred by THIRTY3SOUTH in preparation for provision of the Services.

If the cancellation is made between 48 and 24 hours prior to the day on which THIRTY3SOUTH has been engaged to provide the Services, the Customer must pay 50% of the Agreed Fee.

If the cancellation is made within 24 hours of the time at which THIRTY3SOUTH has been engaged to provide the Services, the Customer must pay the Agreed Fee in full.

If the cancellation is made while THIRTY3SOUTH is providing Services to the Customer, the Customer must pay the Agreed Fee in full.

Any amount payable pursuant to clauses 5.3, 5.4, 5.5 or 5.6 must be paid by the Customer within 30 days of the cancellation.

Payment

The Customer will pay to THIRTY3SOUTH the Agreed Fee in the following manner:

60% of the Agreed Fee will be payable prior to the commencement of the Services (“the Deposit”); and
The balance will be payable within 7 days of the date of any interim or final invoices submitted in respect of the Services; and
THIRTY3SOUTH will not commence any pre-production activities until the Customer has paid the Deposit.

If any THIRTY3SOUTH invoice or part thereof is not paid within 30 days of the date of the invoice, then the Customer agrees that a rate of 15% will be added to the invoice (ex GST) to compensate cash flow financing.

Variations (additional quotation applies)

THIRTY3SOUTH will provide the Customer with one (1) ‘draft copy’ of an initial edited video file. The Customer must notify THIRTY3SOUTH of all proposed changes within fourteen (14) days of receipt of the draft copy by the Customer.

Once the proposed changes have been made, THIRTY3SOUTH will provide the Customer with a ‘final draft copy’ which is to be used solely for the purpose of verifying that the proposed changes have been correctly implemented. No new changes may be requested unless the Customer purchases another variation.

The Customer must notify THIRTY3SOUTH of any errors in the final draft copy within fourteen (14) days.

Once the fourteen (14) day review period for both the ‘draft copy’ and ‘final draft copy’ has elapsed, THIRTY3SOUTH may refuse to make any further changes.

The Customer acknowledges that some changes may not be possible.

Venue Location Fees & Permissions

The Customer must obtain any necessary consent or permission and pay any fees which may apply for THIRTY3SOUTH to film at a particular venue, location or event.

Artistic Licence

The Customer acknowledges and agrees that editing an event and the production of finished works may include elements of artistic expression and interpretation. THIRTY3SOUTH reserves the right to use ‘Artistic Licence’ in any commissioned works that require editing or the production of finished works. The re-editing of commissioned works is offered as an optional extra by prior arrangement. A quotation for re-editing will be provided by THIRTY3SOUTH on request (see clause 7 – variations above).

Customer’s Materials

All Materials are used and stored by THIRTY3SOUTH solely at the Customer’s risk and THIRTY3SOUTH is under no obligation to insure any Materials.

Neither THIRTY3SOUTH nor any of its officers, employees, agents or sub- contractors will be liable for any loss, destruction or damage (“Loss”) of the Materials other than loss caused by their negligence but any liability for such loss will be limited to replacement of the Materials; THIRTY3SOUTH will not be liable in respect of any Loss of the Materials arising out of the action of any person not employed or engaged by or associated with THIRTY3SOUTH even though such person is present during and involved with the performance of the Services; and

The Customer must retain a master copy of each and every recording delivered to THIRTY3SOUTH for the purposes of the Contract.

Customer Acknowledgements

The Customer acknowledges and agrees that:

THIRTY3SOUTH will have a lien on Materials provided by the Customer; and, no title (including any copyright) in the Services manufactured, produced, duplicated or otherwise provided by THIRTY3SOUTH will be transferred to the Customer until the Customer pays all amounts due to THIRTY3SOUTH in full.

The Customer acknowledges and agrees that upon payment of all outstanding invoices due to THIRTY3SOUTH, the Customer is entitled to receive the finished works, but has no entitlement to the working files of THIRTY3SOUTH. The Customer acknowledges and agrees that the content, views and opinions expressed in the finished works produced for the Customer by THIRTY3SOUTH are solely those of the Customer. The finished works are intended to represent the opinion of the Customer and in no way reflect the views and opinions of THIRTY3SOUTH, its employees and subcontractors.

Customer Undertakings and Warranties

The Customer must obtain all necessary permissions and authorities in respect of the use of the Materials which are to be included in the Customer video.

The Customer indemnifies and holds THIRTY3SOUTH harmless from any claims or legal actions related to the content of the Customer’s video.

The Customer hereby indemnifies and holds harmless THIRTY3SOUTH against all loss, damage, costs or expenses suffered or incurred by THIRTY3SOUTH as a result of any breach of clauses 12.1 and 12.2.

Project Delays and Client Liability

Any estimate of the date by which THIRTY3SOUTH will complete any part of the Services is contingent upon the Customer providing complete instructions to THIRTY3SOUTH and fully cooperating with THIRTY3SOUTH until THIRTY3SOUTH has ceased providing Services to the Customer.

The Customer must appoint a person who has complete authority to provide instructions to THIRTY3SOUTH and respond to requests for feedback until THIRTY3SOUTH has ceased providing Services to the Customer.

The person appointed pursuant to clause 13.2 must be available to respond to communications from THIRTY3SOUTH on every day which is a business day in New South Wales.

Sub-Contracting

THIRTY3SOUTH reserves the right to sub-contract any Services that THIRTY3SOUTH has agreed to perform for the Customer as it sees fit.

Recorded Material

Ownership

The Raw Footage, video files and audio files including all copyright remain the property of THIRTY3SOUTH.

Edited and Mastered files including all copyright remain the property of THIRTY3SOUTH. until full payment is made for the Services.

Where Services remain unpaid or in the event that a final agreed payment is not made, THIRTY3SOUTH reserves the right to withhold all recordings and finished works and use all or portions of the recordings and finished works for display, promotional or commercial purposes.

Copyright in all video, images, audio, lyrics or musical composition included or recorded in the edited video or recorded by equipment used by THIRTY3SOUTH will remain the property of the author or legal entity owning the copyright.

Special Provisions for Ownership

THIRTY3SOUTH reserves the right to retain ownership of any recorded material of an anomalous nature once discovered in post production. The copyright of such recordings will belong to THIRTY3SOUTH.

THIRTY3SOUTH has the right to use edited or unedited video files produced pursuant to these Terms and Condtions for promotional or commercial purposes, unless an alternative arrangement is made between THIRTY3SOUTH and the Customer. The copyright of such segments will belong exclusively to THIRTY3SOUTH.

Disposal

Raw Footage, video files, audio files and edited video files will be retained for up to twelve (12) months only and will then be disposed of, deleted or erased. If at the end of twelve (12) months, storage Services have not been paid for, THIRTY3SOUTH reserves the right to dispose of all Raw Footage, video files, audio files, edited video files, recorded materials and finished works.

Raw Footage

The Customer may purchase Raw Footage in viewable format for an additional fee of $1000.00 per 500GB of footage plus GST. If the Customer requires any Raw Footage to be provided by way of a separate hard disk, then Customer must pay THIRTY3SOUTH an additional fee of $300.00 plus GST.

Supplied External Sources of Footage:

THIRTY3SOUTH has the capacity to use DVD and digital formats (WMV / MOV / AVI). Any formats beyond these will result in extra transfer costs. Further, if sources arrive without time-coded references for specific shots, a charge for research may incur.

Music Allowances:

THIRTY3SOUTH always allows for the use of a single production track per program in its estimates. Anything beyond this will incur an additional copyright fee. Commercial music tracks generally incur higher fees and require longer lead-time for approval.

File Footage:

THIRTY3SOUTH has a vast library of images and footage, which may be used in all productions. In the case that sufficient footage cannot be acquired during a shoot, from the client or by THIRTY3SOUTH, file footage may be required to complete the production. If this was not originally covered in the estimate, it will incur additional license and peripheral costs. (Usually minimum of $2750.00).

Confidentiality:

Neither party will disclose confidential information of the other.

Intellectual Property:

The client will own the intellectual property rights, subject to the terms of the licensing agreements for third party material, to the film as outlined above worldwide, in perpetuity, subject to the following exclusion: namely, the client gives permission for THIRTY3SOUTH and to use the films, or sections of the films, as part of their showreels.

Failure of Equipment or illness of THIRTY3SOUTH employees and contractors

Whilst all reasonable care and preparation is taken for cinematography and editing, THIRTY3SOUTH will not be liable for any compensation except for return of any Deposit paid, should a failure occur in all or any of
the electronic equipment used or due to illness of the operators or person(s) employed or engaged by THIRTY3SOUTH or because of an unforeseen event or any dispute regarding the ownership of recorded materials.

Right of Refusal or Termination

THIRTY3SOUTH reserves the right to terminate the provision of Services, if:

the videographer, or any person(s) employed or contracted by THIRTY3SOUTH is
placed in a position where there is an actual or apparent risk of injury; or
there is a risk that any of the equipment used may be damaged.

If THIRTY3SOUTH terminates the provision of Services pursuant to clause 18.1 then any Deposit paid by the Customer is non-refundable.

Should any of the circumstances outlined in clause 18.1 occur, THIRTY3SOUTH may seek compensation from the Customer for any loss or damage suffered.

Limitation of Liability

The parties acknowledge that, under applicable State and Commonwealth law, certain clauses, conditions, guarantees and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the Customer in relation to
the provision of goods or of services which cannot be excluded, restricted or modified by agreement (“Non-excludable Rights”). Except to the extent of Non-excludable Rights, THIRTY3SOUTH will not be liable for:

Any claim by the Customer or any person, including without limitation any claim relating to or arising from all clauses, conditions, guarantees and warranties express or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom, usage or otherwise; and

Any representations, warranties, conditions or agreement made by any agent or representative which are not expressly confirmed by THIRTY3SOUTH in writing,and the liability of THIRTY3SOUTH for any such matters is hereby excluded. Where (and to the extent) permitted by law the liability of THIRTY3SOUTH for a breach of a Non-excludable Right can be limited, THIRTY3SOUTH’s liability is limited, at THIRTY3SOUTH’s option, to one of the following:

The supply of the service again; or

Payment for the cost of having the services supplied again. Notwithstanding any other provision, THIRTY3SOUTH is in no circumstance (whatever the cause) liable in contract, tort (including without limitation negligence or breach of statutory duty) or otherwise to compensate the Customer for:

Any increased costs or expenses;

Any loss of profit, revenue, business, contracts or anticipated savings;

Any loss or expense resulting from a claim by a third party; or

Any special, indirect or consequential injury, loss, damage or expense whatsoever and howsoever arising.
Force Majeure

If THIRTY3SOUTH cannot carry out an obligation under the Contract either in whole or in part because of anything outside its reasonable control, including without limitation, fire, flood, storm, earthquake, explosion, accident, road or rail closures, rail derailment, wharf delays, war, terrorism, sabotage, epidemic, quarantine restriction, labour dispute or shortage, act or omission of any third person or public authority, then THIRTY3SOUTH’s obligations under the Contract will be suspended for the duration of the event or waived to the extent applicable.

Legal Costs

The Customer will be liable for any legal costs incurred by THIRTY3SOUTH in the recovery of unpaid invoices on an indemnity basis.

Privacy

All information received by THIRTY3SOUTH from the Customer, written or otherwise, will be kept confidential. Any private information will not be divulged or distributed to any third party without the Customer’s consent.

Other Matters which Affect the Contract

The laws of New South Wales apply to the Contract and the Customer must bring any proceedings against THIRTY3SOUTH in a New South Wales Court.

If a condition or part of a condition is unenforceable, it must be severed from the Contract and does not make the rest of the Contract unenforceable.

THIRTY3SOUTH is not bound by any waiver, discharge or release of a condition or any agreement which changes the Contract unless it is in writing and signed by or for THIRTY3SOUTH.

Amendment

THIRTY3SOUTH reserves the right to amend these Terms and Conditions at any time. Amendments will be effective after the Customer has been given 7 days written notice.