Video Production
Terms and Conditions
Definitions
In these terms and conditions, unless the context otherwise requires: Consumer means any individual who acquires Cubed Media’s services wholly or predominantly for personal, domestic or commercial use.
Customer means any person or entity requesting Cubed Media to provide Services.
Cubed Media means Cubed.Media Pty Ltd (ACN 619856763) Agreed Fee means the fees estimated by Cubed Media 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 Cubed Media for the purposes of Cubed Media supplying the Services.
Raw Footage means master footage recorded by Cubed Media 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 Cubed Media with any Customer in relation to the provision of Services by Cubed Media.
All work carried out by Cubed Media 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 an hourly rate. One round of Customer changes and/or revisions is included in each quotation.
If the Customer instructs Cubed Media that significant changes and/or revisions to the scope of the Services described in a quotation are required then Cubed Media shall be entitled to charge an additional Agree Fee based on a further quotation..
Cancellation
If the Customer has engaged Cubed Media to provide Services on a specified date, the Customer may notify Cubed Media 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 Cubed Media has been engaged to provide the Services, the Customer must reimburse Cubed Media for any expenses incurred by Cubed Media in preparation for provision of the Services.
If the cancellation is made between 48 and 24 hours prior to the day on which Cubed Media 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 Cubed Media has been engaged to provide the Services, the Customer must pay the Agreed Fee in full.
If the cancellation is made while Cubed Media 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 Cubed Media 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
Cubed Media will not commence any pre-production activities until the Customer has paid the Deposit.
If any Cubed Media invoice or part thereof is not paid within 30 days of the date of the invoice, then the Customer agrees that interest will accrue on the outstanding amount at the rate specified pursuant to Section 2 of the Penalty Interest Rates Act 1983 (Vic).
Cubed Media also reserves the right to apply an additional 20% overdue fee if payment is not received within 14 days of the invoice’s ‘due date’
Variations (additional quotation applies)
Cubed Media will provide the Customer with one (1) ‘draft copy’ of an initial edited video file. The Customer must notify Cubed Media of all proposed changes within fourteen (14) days of receipt of the draft copy by the Customer.
Once the proposed changes have been made, Cubed Media 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 Cubed Media 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, Cubed Media 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 Cubed Media 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. Cubed Media 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 Cubed Media on request (see clause 7 - variations above).
Customer’s Materials
All Materials are used and stored by Cubed Media solely at the Customer’s risk and Cubed Media is under no obligation to insure any Materials.
Neither Cubed Media 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;
Cubed Media 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 Cubed Media 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 Cubed Media for the purposes of the Contract.
Customer Acknowledgements
The Customer acknowledges and agrees that:
Cubed Media 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 Cubed Media will be transferred to the Customer until the Customer pays all amounts due to Cubed Media in full.
The Customer acknowledges and agrees that upon payment of all outstanding invoices due to Cubed Media, the Customer is entitled to receive the finished works, but has no entitlement to the working files of Cubed Media.
The Customer acknowledges and agrees that the content, views and opinions expressed in the finished works produced for the Customer by Cubed Media 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 Cubed Media, 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 Cubed Media harmless from any claims or legal actions related to the content of the Customer’s video.
The Customer hereby indemnifies and holds harmless Cubed Media against all loss, damage, costs or expenses suffered or incurred by Cubed Media 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 Cubed Media will complete any part of the Services is contingent upon the Customer providing complete instructions to Cubed Media and fully cooperating with Cubed Media until Cubed Media has ceased providing Services to the Customer.
The Customer must appoint a person who has complete authority to provide instructions to Cubed Media and respond to requests for feedback until Cubed Media has ceased providing Services to the Customer.
The person appointed pursuant to clause 13.2 must be available to respond to communications from Cubed Media on every day which is a business day in Victoria.
Sub-Contracting
Cubed Media reserves the right to sub-contract any Services that Cubed Media has agreed to perform for the Customer as it sees fit.
Recorded Material
Ownership
The Raw Footage, video files, audio files and edited video files including all copyright remain the property of Cubed Media until full payment is made for the Services.
Where Services remain unpaid or in the event that a final agreed payment is not made, Cubed Media 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 Cubed Media will remain the property of the author or legal entity owning the copyright.
Special Provisions for Ownership
Cubed Media 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 Cubed Media.
Cubed Media 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 Cubed Media and the Customer. The copyright of such segments will belong exclusively to Cubed Media.
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, Cubed Media 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 $2000 per filming day plus GST. If the Customer requires any Raw Footage to be provided by way of a
separate hard disk, then Customer must pay Cubed Media an additional fee of
$2500.00 plus GST.
Failure of Equipment or illness of Cubed Media employees and contractors
Whilst all reasonable care and preparation is taken for videography and editing, Cubed Media 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 Cubed Media or because of an unforeseen event or any dispute regarding the ownership of recorded materials.
Right of Refusal or Termination
Cubed Media reserves the right to terminate the provision of Services, if:
the videographer, or any person(s) employed or contracted by Cubed Media 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 Cubed Media 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, Cubed Media 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, Cubed Media 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 Cubed Media in writing,
and the liability of Cubed Media for any such matters is hereby excluded.
Where (and to the extent) permitted by law the liability of Cubed Media for a breach of a Non-excludable Right can be limited, Cubed Media’s liability is limited, at Cubed Media’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, Cubed Media 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 Cubed Media 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 Cubed Media’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 Cubed Media in the recovery of unpaid invoices on an indemnity basis.
Privacy
All information received by Cubed Media 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 Victoria apply to the Contract and the Customer must bring any proceedings against Cubed Media in a Victorian 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.
Cubed Media 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 Cubed Media.
Amendment
Cubed Media 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.