Welcome to Melbourne Films!
By using Melbourne Films and signing up as a client, you agree to be legally bound by these terms & conditions of use (the “Terms & Conditions”). Please read the terms and conditions carefully.
1.Delivery and Payment
a)In consideration for the Production Company’s service under this Agreement, the Company agrees to pay the ProductionCompany the Agreed Quote in accordance with the PaymentTerms.
b)The Production Company agrees that it will perform the Responsibilities and produce the Materials and the Commercial/s in accordance with best practice industry standards.
2.Approvals
a)The Production Company shall submit the Approval Materialsas soon as possible and the Company shall approve or detailtheir required amendments to the Approval Materials as soonas possible having regard for the need of the ProductionCompany to proceed to prepare the Materials in accordancewith the Delivery Dates or to change the item in advance ofthe shoot.
b)Both parties acknowledge and agree that time shall be of theessence in relation to the submission and approval of theApproval Materials, and that they shall employ their bestefforts to perform their obligations in relation to the ApprovalMaterials.
c)The Company representative should be available to approve Approval Materials as per an agreed schedule.
3.Attendance of Company Representative on Shoot
a)The Company shall provide the Company Authorised Representative, who will attend the shooting and/or recordingand/or post-‐ production of the Commercial/s at agreed timesfor consultation and approvals as may be necessary relating tothe content of the Commercial/s.
b)If the Company Authorised Representative is unable to attendthe shoot at any stage the decision of the Production Company in all such matters will be determinative and final.
4.Safekeeping of Negative/Videotape/Digital Assets
a)The Production Company shall be responsible for the safekeeping of any negative, videotape, digital assets during production of the Commercial/s and during their laboratory processing and at all other times up to the point at which theMaterials are delivered to the Company.
b)The Production Company shall not be responsible for thesecurity of the Materials or any other items in any other circumstances.
c) The Company is responsible for insuring the negative,videotape/digital assets and any other Materials (includingthat which remains in the possession of the Production Company) after the final Delivery Date or the Completion Date (whichever date occurs first).
5.Legal and Technical Requirements
a) The Company shall be responsible for ensuring that the Commercial/s and the Materials comply with any legal orregulatory requirements relating to content and post-‐ production.
d)The Production Company shall ensure the Materials complywith the technical requirements and standards in force inAustralia at the date of signing of the Agreement.
6.Permits and Visas
a)Unless otherwise agreed in writing, the Production Company shall be responsible for obtaining all relevant permits, licences
or other official authorisations relating to the shoot, including any necessary visas or work permits in respect of personnel engaged by the Production Company (but excluding any talent or personnel engaged by the Company).
b)The Production Company will not be responsible for delays, difficulties or inability to obtain visas or workpermits for talent or personnel engaged by the Company.
7.Copyright and Other Rights
a)Ownership of the Materials and all related propertyproduced under this Agreement shall remain vested in theProduction Company until it has received payment of theentire Agreed Quote.
b)Upon receipt by the Production Company of the totalAgreed Quote and any extra charges incurred as a result ofan agree one revision to the Responsibilities, the ProductionCompany shall assign to the Company all of its copyright inthe Materials and the Commercial/s for use as agreed inAnnexure One.
c)Where the Production Company expressly commissions anymaterial from a third party for use in the Commercial/s oruses any existing material which has been created by theProduction Company or such third party for theCommercial/s, the Production Company undertakes toobtain either an assignment to the Company of suchcopyright as may exist in such materials or, if an assignmentis not feasible, or cannot be negotiated on reasonableterms, a licence on terms to be approved by the Company,and at the cost of the Company, to use the materials in theCommercial/s.
d)The Production Company undertakes, wherever possibleand practicable, to procure and pass on to the Company
moral rights consents or waivers in a form to be approved by the Company, from the director and all other persons materially engaged in the creation or production of the Commercial/s or any part thereof by the Production Company.
e)The Company and the Production Company will ensure,wherever possible and practicable, that appropriatepermissions are obtained in respect of any copyright ortrademarked material supplied by the Company or theProduction Company, as the case may be, for inclusion in theCommercial/s. The party supplying such material being responsible for its clearance.
f)Where the Production Company agrees to be responsible forthe engagement of actors, other performers or models, theProduction Company undertakes to obtain where possible, allnecessary consents from such parties on terms to be approvedby the Company.
8.Amendment Requests
If the Company (including where such request occurs for or onbehalf of any third party) asks for the production schedule, Budget or scope of work to be altered:
a)the parties will use their best endeavours to agree on new datesand relevant deliverables, and the Company will beresponsible for any reasonable and unavoidable increases inthe Agreed Quote or costs arising as a result;
b)if any of the additional costs cannot be agreed, the disputeresolution procedure detailed under Clause 15 shall apply;
c)any amounts which are not in dispute shall be paid in full bythe Company in accordance with the Payment Dates detailedunder this Agreement.
9.Cancellation & Postponement by Company
a)If the Company cancels or postpones production of theCommercial/s in circumstances where the ProductionCompany has committed no material breach of theagreement, the Company must in all cases reimburse theProduction Company for all direct costs and the total CreativeFee plus the proportions of the Production Fee as provided inclause 9(b) below.
b)For the avoidance of doubt, the proportion of the ProductionFee payable under this clause depends on the notice periodand the type of production but is always additional to thedirect costs so that where:
i.the Company gives the Production Company 15 or morebusiness days’ notice of cancellation or postponement of aproduction, the Company must pay 25% of the ProductionFee;
ii.the Company gives the Production Company less than 15but more than 10 business days’ notice of cancellation orpostponement of a production the Company must pay50% of the Production Fee;
iii.the Company gives the Production Company 10 or lessbusiness days’ notice of cancellation or postponement of aproduction the Company must pay 100% of the ProductionFee;
For the purposes of this clause, ‘business day’ means any day Monday to Friday, excluding public holidays.
c)Notwithstanding the above, in all cases of postponement of aproduction the Company will use its best endeavours to limit the time period of any such postponement and upon thepostponement ceasing, the parties will negotiate new termsand fees for the production taking into account the length ofpostponement, any payments made under this clause, and thefinancial impact of the postponement on the parties.
10.Contingency & Weather Days & Force Majeure:
The Company agrees that if a production is suspended, frustrated or delayed by bad weather conditions, a contingency beyond the control of the Production Company, or by some other force majeure event which would include, but are not limited to, storms, tempests, earthquakes, wars, floods, injury, illness or non-‐ appearance of key talent, delay orfailure of delivery of goods or services to be supplied by the Company, whether on-‐ camera product, vehicles or otherwise itmust, in such circumstances, and in addition to all other agreed or stipulated payments, pay the Production Company the costs and fees specified by Producer in advance or supplied to the Company on request.
11.Termination
a)The Company may terminate this Agreement by fourteen (14)days written notice to the Production Company if theProduction Company commits any material breach of thisAgreement, and fails to remedy that breach within 14 days ofreceiving written notice identifying the breach.
b)Either party may terminate this Agreement forthwith bywritten notice to the other if that other party (being acompany) passes a resolution for winding up (otherwise thanfor the purposes of a solvent amalgamation or reconstruction)or a court makes an order to that effect or (being apartnership or other unincorporated association) is dissolved or (being a natural person) dies, or if either party becomes oris declared insolvent or convenes a meeting of or makes or
proposes to make any arrangement or composition
with its creditors or has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets or ceases or threatens to cease to carry on business.
c)In the event of termination by the Company under thisclause the Company shall be entitled, without prejudice toany other rights it may have, to continue and/or complete the production and shall in addition be entitled on demandto immediate delivery of the Materials to complete theproduction and/or to transmit the Commercial/s subject tothe Production Company receiving payment for any feesand/or direct costs legitimately incurred or spent by it towards production of the Commercial/s in accordance withthe Budget and the Payment Terms.
12.Indemnity
a)Should a party incur any loss or liability, costs (including external legal costs) or damages as a result of the otherparty breaching this Agreement the offending party shallindemnify the non-‐ offending party in relation to suchdamage.
b)Each party’s liability under this clause shall be limited tothe Production Fee (together with the cost of any extra work required by the Company and carried out by theProduction Company) paid under this agreement and noparty shall have any liability for consequential loss, airtimecosts, loss of business profits or other pecuniary losses.
13.Insurance
Each party agrees to insure itself effectively, and to provideon request evidence that such insurances are in effect, for allactions, claims, losses and demands which may arise out ofor in respect of the performance, non-‐ performance or breach by a party of its obligations
under this Agreement as agreed between the parties including, but not limited to:
a)the non-‐ appearance or inability to complete the scheduledperformance of any artist or key personnel;
b)the non-‐ appearance, inadequacy or unusability of anymaterials or production facilities provided by a party to theother;
c)loss of or damage to any property as a result of the actions, recklessness or negligence of a party or its representatives;
d)the death or bodily injury to artists and other persons causedby or arising out of the negligence or recklessness of a party ortheir representatives;
e)risks to the Materials, Commercials or other related materialwhilst being worked on or transported by third parties;
f)any responsibility a party may have for providing Employer’sLiability insurance, Worker’s Compensation insurance or superannuation to its personnel; and
g)the loss sustained due to the interruption, postponement, cancellation or abandonment of the production which arisesout of any matter for which the party is responsible.
14.Entire Agreement
This Agreement is the entire agreement between the partiesrelating to the subject matter of this Agreement andsupersedes all previous communications, agreements andother arrangements (other than those expressly attached to orincorporated into this Agreement by reference). No variationor assignment of this Agreement shall be effective unless it isin writing and signed by both parties.
15.Disputes Procedure
The parties agree that:-‐
a)For the purposes of this Agreement, ‘CPCDP shall mean theCommercial Producers Council Dispute Policy’; and
b)in the event of either party to this Agreement having a claim,complaint or grievance (the ‘complaint’) against the otherparty, the claimant shall comply with the CPCDP in force at thetime of dispute before taking any other action, the provisionsof which the parties hereby agree to submit and comply; and
c)if the parties agree to mediation:-‐
i.the mediation shall be administered by mediatorsrecommended in accordance with the CPCDP;
ii.the mediator shall be a person nominated from theirregister of CPCDP accredited mediators; and
iii.the parties and their representatives shall comply with allprocedures and time limits identified by the CPCDP or themediator.
16.Confidential Information
a)The parties acknowledge a duty to not during or after thetermination or completion of this Agreement to disclosewithout the other’s prior written permission any confidentialinformation either concerning the other’s business, or that ofthe advertiser, its business plans, customers or associatedcompanies or any other relevant information about the Commercial/s disclosed as a result of this Agreement.
b)In particular, during and after the production the ProductionCompany acknowledges its responsibility to treat
c)Both parties shall impose obligations in terms equivalent
17.Late Payments
The Company acknowledges that any payment of the AgreedQuote later than the times required under the Payment
18.No Waiver
Failure of any party to exercise or enforce its rights under
19.Enforceability
If one or more of the provisions of this Agreement are
20.Governing Law
This Agreement shall be governed by the laws of the State ofVictoria, Australia and the parties hereby submit to the non-‐ exclusive jurisdiction of the Courts in that State.