TERMS AND CONDITIONS OF TRADE of Visual Culture Pty Ltd
1. These Terms and Conditions comprise the entire agreement between Visual Culture Pty Ltd (ABN 38 141 411 270) and the Client whose details are set out above and supersedes any prior agreements, understanding or arrangements dealing with the same subject matter.
2. This Agreement is governed by the law of Victoria and the parties submit to the jurisdiction of the Courts of Victoria and any courts taking appeal from them.
3. This Agreement governs the terms and conditions pursuant to which Visual Culture will provide the client (Client) with Video Production Services (Services). A detailed description of the Services was provided to the Client in the Proposal and/or Quote (Proposal and Quote). The Client must provide written approval of the Services outlined in the Proposal and/or Quote. These terms and conditions of trade will apply to the Services.
4. In these terms and conditions of trade Services means a single engagement by the Client for video production Services or if the Client proceeds to provide additional instructions to Visual Culture with respect to other Services then these terms and conditions shall apply to all future work done by Visual Culture for the Client.
Payment Terms
5. Visual Culture terms of payment are: The first 50% deposit of the Quote cost for the Services to be paid when providing written approval on the Quote and/or Proposal or on giving instructions to commence the Production. The final 50% of the Quote cost to be paid when either a) 5 days after the first video edits have been sent; b) on completion of the Services; c) or on the terms of invoice but in any event no later than 15 calendar days post completion of the Services. Fees not paid on time may incur interest as prescribed under the Penalty Interest Rate Act 1983 (Vic). The client must pay Goods and Services Tax as prescribed by law.
6. If the client cancels the Services before any work has been done on the Services, the Client will receive a full refund of the 50% deposit paid. Once Visual Culture commence working on the Services, the 50% deposit is not refundable in part or in whole.
7. Visual Culture will produce the Services and will enable the Client to review and provide feedback and comments. The Client must review the Services and provide Visual Culture with its comments within 5 business days (being Monday to Friday) from the date the Client was given access to the Services.
8. If the client does not provide Visual Culture with comments by the time frame set out in clause (7), the client is deemed to have accepted the Services, the final invoice will be sent to the Client and payment of the outstanding balance is due.
9. For the purpose of these terms and conditions, Services completion occurs when the Client accepts the Services as complete or if the client is deemed to have accepted the Services pursuant to clause (8).
10. The Client will be allowed multiple revisions of the Services included in the quote Services cost. However, if these Services exceed the Quote rate, please refer to clause (12).
11. Visual Culture provided the above stated quote based on information provided by the Client. Visual Culture will not be responsible and the Client releases Visual Culture from any liability arising out of Visual Culture relying on information supplied by the Client.
12. If Visual Culture ascertained during the Services that unplanned cost may be incurred that will exceed the quoted Services cost, Visual Culture will advise the Client as soon as it becomes aware of such budgetary item. Visual Culture will not be liable for the additional cost if such cost arises from information supplied by the Client and/or events that are beyond the direct and/or indirect control of Visual Culture. If as a result of information not disclosed to Visual Culture the cost of the Services changes, Visual Culture reserves the right to issue the Client with a revised Quote.
13. For instances where there is a cancellation or postponement of Services related to Visual Culture booking filming, equipment and crew personel for a specific time and date, any changes to these dates and times may incur a fee penalty of 50% of the quoted Service cost if advised by the Client in less than 48 hours or 100% of the total cost in less than 24 hours. These fees may be waived dependant on circumstances such as adverse weather, illness and location access based on a written request from the Client with Visual Culture. Visual Culture reserves the right to uphold fee penalties based on the request.
Intellectual Property in the Services
14. The below terms explain certain terms used in these terms and conditions dealing with intellectual property.
(a) Copyright means the rights created by operation of the Copyrights Act 1968 (Cth) in any literary, dramatic, musical or artistic work including cinematography used in the Services.
(b) Final version means the final version of the Services produced by Visual Culture and accepted by the client.
(c) Intellectual property means any copyrighted materials, design, trade mark and any artwork
(d) Raw footage/materials means the materials, content, creative sequence, Services files or tools and any versions of the Services (other than the final version) used by Visual Culture to deliver the Services including the number of raw footage versions taken by Visual Culture.
(e) Project files means a file that contains a combination of the raw footage/materials together with Visual Culture knowhow and added value from its proprietary software with respect to (but not limited to), editing functions, graphics, audio files, colour grading and other unique attributes by Visual Culture that enables the project file to be processed by any production company to create a final version.
15. Visual Culture warrants and represents that it either owns or is authorised to use any intellectual property it incorporates into the Services.
16. At the conclusion of the Services and after the client approves the final version, Visual Culture will deliver to the client the final version. The client acknowledges and agrees that the client has no right to demand that Visual Culture hand over the raw footage or the project files.
Services
17. Subject to clause 18 and 20, the client owns the final version of the Services (the physical video) and the copyright in the final version.
18. Ownership to the final version Services does not pass to the client until all payments owed to Visual Culture have been paid in full.
19. Visual Culture owns any and all intellectual property in the Services, other than the final version, including all raw footage and materials and the project files. Visual Culture may use the raw footage and materials and the project files in its business as it deems fit. The client may request a copy of the raw footage and/or project files and if the parties agree on the fee payable by the client for the raw footage and/or project files, Visual Culture will deliver to the client the raw footage and/or project files on full payment. Noting in these terms and conditions obligates Visual Culture to agree to provide raw footage and/or the project files.
20. Notwithstanding clause 17, unless the client advises Visual Culture otherwise, the client expressly authorises Visual Culture to;
(a) refer to the Services post completion in reference to its portfolio of works;
(b) use the final version, raw footage and project files for marketing purposes of Visual Culture;
(c) use the final version, raw footage and project files for internal purposes;
(d) use the final version, raw footage and project files for promotional purposes displaying Visual Culture prior work.
21. Visual Culture must not use the final version, raw footage and project files for any income producing and commercial purposes other than as permitted in clause 20.
22. The client acknowledges that Visual Culture will be relying on information and intellectual property (see definition clause 12) it provides to Visual Culture. The client warrants and represents that it either owns or is authorised to use any intellectual property it provides to Visual Culture.
General
23. Each of the parties must keep the terms of this agreement confidential. Any information supplied by the client to Visual Culture and or supplied by Visual Culture to the client, unless that information is in the public domain, the information is confidential. Each of the parties must protect the confidential nature of the information it receives.
24. In the event liability is imposed on Visual Culture with regards to the Services (in contract, torts or otherwise) then to the extent permitted by law, Visual Culture limits its liability under this Agreement and the Services to the resupply of the services and the reproduction of the video to the client. Visual Culture shall not otherwise be liable to the client for any liability however arising in regards to the Services. All implied warranties (by statute or otherwise) unless expressly included herein, are excluded.
