The term “Deliverables” refers collectively to Services and Products. Fancy Films will provide video production services to the Client in relation to the creation of DVDs or other creative artistic work. The specific nature of the services that Fancy Films will provide will be as agreed in writing by Fancy Films and the Client and contained in a written quotation with an outline of approach, pricing and schedule of work.
Fancy Films warrants that any services that it provides as part of the deliverables will be provided with a reasonable level of care and skill, using appropriately skilled personnel.
The Client shall make an employee available to meet with Fancy Films when Fancy Films reasonably requires for the purposes of discussing the status of the Deliverables.
These Terms and any written Production Schedule outline the agreement between Fancy Films and the Client in relation to the supply by Fancy Films of Deliverables. They supersede any document that the Client may issue (such as a purchase order), and all prior agreements, negotiations, communications and representations by the parties.
If the Client requests it, Fancy Films may issue a quotation in respect of any Deliverable proposed to be provided under these Terms. The quotation remains open for acceptance for up to 21days from the date of issue. Fancy Films may withdraw a quotation at any time. The Client can accept a Quotation by signing a copy of it and sending to Fancy Films, or if Fancy Films by e-mail.
If the Client accepts Fancy Films’s quotation, Fancy Films will issue a Production Schedule setting out the following details:
a. the nature of the Deliverables to be provided pursuant to the Production Schedule;
b. any specifications for the Deliverables;
c. a production plan or script outline for the preparation of the Deliverables;
d. the fee payable to Fancy Films for the Deliverables and the payment schedule for the Deliverables;
e. the deposit amount to be paid in advance on account of the Deliverables which is 50% upon agreement to proceed and 50% upon delivery of DVD Master or equivalent.
Once the Client accepts the Production Schedule and pays the specified 50% payment referred to in paragraph e. Fancy Films will begin providing the Deliverables in accordance with the Production Schedule. The Client can accept a Production Schedule by signing a copy of it and sending it to Fancy Films, or by e-mail. To the extent of an inconsistency between these Terms and a Production Schedule, the Production Schedule prevails.
Any quotation that Fancy Films gives is based on the information that was provided to Fancy Films at the time of quotation.
If that information is later found to be inaccurate or there is a change to the nature or scope of the Deliverables or if circumstances change, Fancy Films may charge an additional amount calculated on a time and materials basis at Fancy Films’s standard scale of charges.
3. PRODUCTION RATES, EXPENSES & INVOICING
Unless the price for the Deliverables is stated in a Production Schedule to be fixed, Fancy Films is entitled to charge the Client for Deliverables on a time and materials basis at Fancy Films’s standard scale of charges from time to time. The Client will also pay Fancy Films any licensing or other fee that Fancy Films is required to pay to obtain or maintain a licence for the Client for any music or other creative artistic work together with Fancy Films’s own charge that it levies for handling and/or obtaining any relevant sub-licences.
If Fancy Films is required to attend the Client’s or any other premises for any reason pursuant to these Terms, the Client will reimburse Fancy Films for reasonable transport and/or accommodation expenses incurred by Fancy Films in doing so. All travel and accommodation will be charged at cost. However this does not include transport expenses within 25km of the Melbourne Central Business District. The Client will also indemnify Fancy Films and keep it indemnified for all expenses Fancy Films may incur on the Client’s behalf or in carrying out its obligations under these Terms.
The client will indemnify us for all expenses we incur on your behalf or in carrying out our obligations under these Terms (including freight, handling, insurance, prints, materials, proofs and media and any contracts that we enter into as your agent)
Fancy Films’s invoices are payable within 14 days of the invoice date.
Payment is to be made by direct debit to an account nominated in writing by Fancy Films (and must confirm to Fancy Films in writing when it has done so). If the Client does not pay an invoice by that time, then without prejudice to Fancy Films’s rights: (a) interest is also payable on the outstanding amount, to be calculated at the prescribed rate under the Victorian Penalty Interest Rates Act 1983; and (b) by written notice to the Client, Fancy Films can suspend or terminate any licence granted to the Client to use the Deliverable in respect of which payment is outstanding, and may recover or remove from the Facilities any Deliverables for which payment has not been made.
Upon payment in full for the Deliverables, Fancy Films grants the Client a non-exclusive and non-transferable perpetual licence to use the Intellectual Property for the Client’s own business purposes However, the Client must not copy or use any of the Intellectual Property for any other purposes, or permit any act to be done, that infringes Fancy Films’s (or its licensors’) intellectual property rights including music.
The Client must ensure that the written details for any Deliverable (whether in the Production Schedule, script or call sheet) meets with the Client’s requirements prior to the work commencing under this document.
4. INTELLECTUAL PROPERTY
Except to the extent agreed in writing by Fancy Films, all intellectual property rights relating to any footage, graphic design, animation or other creative artistic work provided to the Client by or on behalf of Fancy Films pursuant to these Terms the “Intellectual Property” remains the property of Fancy Films. Fancy Films may display its own copyright and intellectual property notices on any Products and the Client must not, remove, obscure, deface or alter such copyright and intellectual property notices.
Each party acknowledges the confidentiality of the other party’s confidential information. Neither party will gain a right or interest in the other party’s confidential information, other than for the purposes contemplated by these Terms. Each party must keep all of the other party’s confidential information confidential, and only use it for the purposes of fulfilling its obligations under these Terms. However this obligation will not apply to information which: (a) was in the public domain when it was provided to a party, or later enters the public domain, through no fault of the party; or (b) the party is obliged by law to disclose, provided that it has first advised the other party of this obligation.
6. TERM AND TERMINATION
Either party may terminate the agreement under a Production Schedule or these Terms generally, if the other party:
(a) breaches a material obligation under these Terms and does not remedy that breach within 14days of a written notice of that breach from the other party; or
(b) is or is deemed to be insolvent, or ceases to conduct it business in the ordinary way (except if it has assigned its rights and obligations under these Terms in accordance with these Terms prior to that occurring), or an administrator, receiver, receiver and manager, official manager, liquidator, provisional liquidator, or similar is appointed in respect of the other party or any of its assets.
On termination of an agreement under a Production Schedule or these Terms, Fancy Films is entitled to invoice the Client for all Deliverables provided or in the process of being delivered but not yet invoiced, including Products ordered for the Client but not yet delivered and invoiced (unless the Products can be returned to their supplier for a refund without cost or penalty). If any amount payable under these Terms remains unpaid 30days after termination then, without prejudice to Fancy Films’s other rights, all licences granted to the Client for which payment has not been received shall automatically terminate, and Fancy Films may retake possession of any unpaid products.
The Client’s obligations including any obligations to indemnify Intellectual Property and each party’s obligations under Confidentiality and this clause survive the termination of any agreement under these Terms for any reason.
7. GENERAL PROVISIONS
These Terms are governed by and will be interpreted according to the laws of Victoria, and the parties consent and submit to the jurisdiction of the Victorian courts.
If any provision of these Terms proves to be illegal or unenforceable for any reason, that provision is deemed omitted without affecting the remaining provisions and the remaining provisions of these Terms shall continue in full force and effect.
Any notice required or contemplated by these Terms is deemed to have been properly given to a party if it is in writing, properly addressed and delivered personally, or mailed postage prepared addressed or by facsimile to the party at its addresses set out in these Terms, or such other address nominated by a party in writing.
The Client may not assign any of its rights or obligations under these Terms without Fancy Films’s prior written consent. Fancy Films may arrange for subcontractors to perform any of its obligations under these Terms or a Production Schedule.
Fancy Films’s failure, delay or neglect to enforce a term of these Terms is not to be taken as a waiver of that term or Fancy Films’s rights, or a consent to, a waiver of, or any excuse for any different, continuing, or subsequent breach.
These Terms may only be amended or varied by written agreement of the parties.