TRADING TERMS AND CONDITIONS
1. Definitions
In these terms and conditions, unless the context otherwise requires: “Consumer” means any individual who acquires Angelique Gerber Films’ services wholly or predominantly for personal, domestic or commercial use. “Client” means any person or entity requesting AGF to provide Services. “AGF” means Angelique Gerber Films ® (ABN 68157332900) of 203 Northstead Street, Scarborough, Western Australia 6019. “Agreed Fee” means the fees estimated by AGF in any quotation once accepted by the Client. “Materials” means any goods, chattels, items or things, including but not limited to any photographs, documents (whether digital or hard copy), videos, films, footage, props and equipment provided by the Client to AGF for the purposes of AGF supplying the Services. “Raw Footage” means master footage recorded by AGF as part of provision of the Services. “Services” means video production and/or post production services.
2. APPLICATION
These Terms and Conditions apply to and are incorporated into all contracts, agreements, arrangements, transactions and dealings entered into by AGF with any Client in relation to the provision of Services by AGF. All work carried out by AGF is on the basis that the Client has agreed to these Terms and Conditions.
3. Consumer Contract
If the Client is a Consumer: These conditions do not affect any rights the Client 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.
4. Quotations
Quotations are calculated by estimating how long it will take to provide the Services under typical circumstances and are based on an hourly rate. One round of Client changes and/or revisions is included in each quotation.
If the Client instructs AGF that significant changes and/or
revisions to the scope of the Services described in a quotation are required, then AGF shall be entitled to charge an additional Agreed Fee based on a further quotation.
5. Cancellation
If the Client has engaged AGF to provide Services on a specified date, the Client may notify AGF in writing (during normal business hours) that the Client 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 AGF has been engaged to provide the Services, the Client must reimburse AGF for any expenses incurred by AGF in preparation for provision of the Services.
If the cancellation is made between 48 and 24 hours prior to the day on which AGF has been engaged to provide the Services, the Client must pay 50% of the Agreed Fee.
If the cancellation is made within 24 hours of the time at which AGF has been engaged to provide the Services, the Client must pay the Agreed Fee in full. If the cancellation is made while AGF is providing Services to the Client, the Client 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 Client within 30 days of the cancellation.
6. Payment
The Client will pay to AGF the Agreed Fee in the following
manner: 50% of the Agreed Fee will be payable prior to the commencement of the Services (“the Deposit”); and the balance will be payable within 14 days of the date of any interim or final invoices submitted in respect of the Services; and AGF will not commence any pre-production activities until the Client has paid the Deposit.
If any AGF invoice or part thereof is not paid within 30 days of the date of the invoice, then the Client agrees that interest will accrue on the outstanding amount at the rate specified on any AGF invoice. If the Client has not confirmed variations within their (14) day review period, their draft copy will be considered final and the balance of the Agreed Fee will be payable within 14 days of the date of any interim or final invoices submitted in respect of the Services;
7. Variations (additional quotation applies)
AGF will provide the Client with one (1) ‘draft copy’ of an initial edited video file. The Client must notify AGF of all proposed changes within fourteen (14) days of receipt of the draft copy by the Client. Once the proposed changes have been made, AGF will provide the Client 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 Client purchases another variation. The Client must notify AGF 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, AGF may refuse to make any further changes.
The Client acknowledges that some changes may not be
Possible.
8. Venue Location Fees & Permissions
The Client must obtain any necessary consent or permission and pay any fees which may apply for AGF to film at a particular venue, location or event.
9. Artistic Licence
The Client acknowledges and agrees that editing an event and the production of finished works may include elements of artistic expression and interpretation. AGF 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 AGF on request (see clause 7 - variations above).
10. Client’s Materials
All Materials are used and stored by AGF solely at the Client’s risk and AGF is under no obligation to insure any Materials. Neither AGF nor any of its officers, employees, agents or subcontractors 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;
AGF 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 AGF even though such person is present during and involved with the performance of the Services; and The Client must retain a master copy of each and every recording delivered to AGF for the purposes of the Contract.
11. Client Acknowledgements
The Client acknowledges and agrees that:
AGF will have a lien on Materials provided by the Client; and No title (including any copyright) in the Services manufactured, produced, duplicated or otherwise provided by AGF will be transferred to the Client until the Client pays all amounts due to AGF in full.
The Client acknowledges and agrees that upon payment of all outstanding invoices due to AGF, the Client is entitled to receive the finished works, but has no entitlement to the working files of AGF.
The Client acknowledges and agrees that the content, views and opinions expressed in the finished works produced for the Client by AGF are solely those of the Client. The finished works are intended to represent the opinion of the Client and in no way reflect the views and opinions of AGF, it’s employees and Subcontractors.
12. Client Undertakings and Warranties
The Client must obtain all necessary permissions and authorities in respect of the use of the Materials which are to be included in the Client’s video. The Client indemnifies and holds AGF harmless from any claims or legal actions related to the content of the Client’s video. The Client hereby indemnifies and holds harmless AGF against all loss, damage, costs or expenses suffered or incurred by AGF as a result of any breach of clauses 12.1 and 12.2.
13. Project Delays and Client Liability
Any estimate of the date by which AGF will complete any part of the Services is contingent upon the Client providing complete instructions to AGF and fully cooperating with AGF until AGF has ceased providing Services to the Client.
The Client must appoint a person who has complete authority to provide instructions to AGF and respond to requests for feedback until AGF has ceased providing Services to the Client. The person appointed pursuant to clause 13.2 must be available to respond to communications from AGF on every day which is a business day in Western Australia.
14. Sub-Contracting
AGF reserves the right to sub-contract any Services that AGF has agreed to perform for the Client as it sees fit.
15. Recorded Material
Ownership
The Raw Footage, video files, audio files and edited video files including all copyright remain the property of AGF until full payment is made for the Services. Where Services remain unpaid or in the event that a final agreed payment is not made, AGF 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 AGF will remain the property of the author or legal entity owning the copyright.
Special Provisions for Ownership
AGF 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 AGF. AGF has the right to use edited or unedited video files produced pursuant to these Terms and Conditions for promotional or commercial purposes, unless an alternative arrangement is made between AGF and the Client. The copyright of such segments will belong exclusively to AGF.
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 Services have not been paid for, AGF reserves the right to dispose of all Raw Footage, video files, audio files, edited video files, recorded materials and finished works.
Raw Footage
The Client may purchase Raw Footage in viewable format for an additional fee of 50% of the shoot cost according to the Agreed Fee, and no less than $300 per day of footage.
If the Client requires any Raw Footage to be provided by way of a separate hard disk, then Client must pay AGF an additional fee of $250.00.
16. Failure of Equipment or illness of AGF employees and contractors
Whilst all reasonable care and preparation is taken for videography and editing, AGF 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 AGF or because of an unforeseen event or any dispute regarding the ownership of recorded materials.
17. Right of Refusal or Termination
AGF reserves the right to terminate the provision of Services, if: the videographer, or any person(s) employed or contracted by AGF 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 AGF terminates the provision of Services pursuant to clause 17.1 then any Deposit paid by the Client is non-refundable.
Should any of the circumstances outlined in clause 17.1 occur, AGF may seek compensation from the Client for any loss or damage suffered.
18. 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 Client 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, AGF will not be liable for:
Any claim by the Client 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 Client, 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 AGF in writing, and the liability of AGF for any such matters is hereby excluded.
Where (and to the extent) permitted by law the liability of AGF for a breach of a Non-excludable Right can be limited, AGF’s liability is limited, at AGF’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, AGF 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 Client 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.
19. Force Majeure
If AGF 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 AGF’s obligations under the Contract will be suspended for the duration of the event or waived to the extent applicable.
20. Legal Costs
The Client will be liable for any legal costs incurred by AGF in the recovery of unpaid invoices on an indemnity basis.
21. Confidentiality
All information received by AGF from the Client, written or otherwise, will be kept confidential. Any private information will not be divulged or distributed to any third party without the Client’s Consent.
22. Other Matters which Affect the Contract
The laws of Western Australia apply to the Contract and the Client must bring any proceedings against AGF in a Western Australian 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.
AGF 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 AGF.
23. Amendment
AGF reserves the right to amend these Terms and Conditions at any time. Amendments will be effective after the Client has been given 7 days written notice.
Dated: 25 March 2018 - Current.