terms & conditions

1. Definitions

     In these terms and conditions, unless the context otherwise requires:

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1.1   CP means Caktus Productions (ABN 79 579 985 873) of 33 Hill Road, Wentworth Point, NSW 2127.

1.2   Consumer means any individual who acquires CP’s services wholly or predominately for personal, domestic or commercial use.

1.3   Customer means any person or entity requesting CP to provide Services.

1.4   Agreed Fee means the fees estimated by CP in any quotation once accepted by the Customer.

1.5   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 CP for the purposes of CP supplying the Services.

1.6   Raw Footage means master footage recorded by CP as part of provision of the Services.

1.7   Services means video production and/or post production services.

 

2. Application

2.1   These Terms and Conditions apply to and are incorporated into all contracts, agreements, arrangements, transactions and dealings                      entered into by CP with any Customer in relation to the provision of Services by CP.

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2.2   All work carried out by CP is on the basis that the Customer has agreed to these Terms and Conditions.

 

3. Consumer Contract

3.1   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.

 

4. Quotations

4.1   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.

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4.2   If the Customer instructs CP that significant changes and/or revisions to the scope of the Services described in a quotation are required,              then CP shall be entitled to charge an additional Agree Fee based on a further quotation.

 

5. Cancellations

5.1   If the Customer has engaged CP to provide Services on a specified date, the Customer may notify CP in writing (during normal business              hours) that the Customer does not require the Services to be provided on that date (“the cancellation”).

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5.2   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.

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5.3   If the cancellation is made more than 48 hours prior to the day on which CP has been engaged to provide the Services, the Customer                 must reimburse CP for any expenses incurred by CP in preparation for provision of the Services.

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5.4   If the cancellation is made between 48 and 24 hours prior to the day on which CP has been engaged to provide the Services, the                           Customer must pay 50% of the Agreed Fee.

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5.5   If the cancellation is made within 24 hours of the time at which CP has been engaged to provide the Services, the Customer must pay the            Agreed Fee in full.

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5.6   If the cancellation is made while CP 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.

 

6. Payments

     The Customer will pay to CP the Agreed Fee in the following manner:

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6.1   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 CP will not commence any pre-production                 activities until the Customer has paid the Deposit.

6.2   If any CP 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 (NSW).

 

7. Variations (additional quotation applies)

7.1   CP will provide the Customer with one (1) ‘draft copy’ of an initial edited video file. The Customer must notify CP of all proposed changes            within fourteen (14) days of receipt of the draft copy by the Customer.

 

7.2   Once the proposed changes have been made, CP 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

 

7.3   The Customer must notify CP of any errors in the final draft copy within fourteen (14) days.

 

7.4   Once the fourteen (14) day review period for both the ‘draft copy’ and ‘final draft copy’ has elapsed, CP may refuse to make any further                changes. The Customer acknowledges that some changes may not be possible.

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8. Venue Location Fees & Permissions

8.1   The Customer must obtain any necessary consent or permission and pay any fees which may apply for CP to film at a particular venue,              location or event.

 

9. Artistic Licence

9.1   The Customer acknowledges and agrees that editing an event and the production of finished works may include elements of artistic                    expression and interpretation. CP reserves the right to use ‘Artistic Licence’ in any commissioned works that require editing or the                         production of finished works.

9.2   The re-editing of commissioned works is offered as an optional extra by prior arrangement. A quotation for re-editing will be provided by            CP on request (see clause 7 - variations above).

 

10. Customer’s Materials

10.1   All Materials are used and stored by CP solely at the Customer’s risk and CP is under no obligation to insure any Materials. Neither CP                  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; CP 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 CP                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 CP for the purposes of the Contract.

 

11. Customer Acknowledgements

        The Customer acknowledges and agrees that:

11.1   CP 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 CP will be transferred to the Customer until the Customer pays all amounts due to CP in full.

11.2   The Customer acknowledges and agrees that upon payment of all outstanding invoices due to CP, the Customer is entitled to receive the            finished works, but has no entitlement to the working files of CP.

11.3   The Customer acknowledges and agrees that the content, views and opinions expressed in the finished works produced for the                            Customer by CP 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 CP, its employees and subcontractors.

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12. Customer Undertakings and Warranties

12.1   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.

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12.2   The Customer indemnifies and holds CP harmless from any claims or legal actions related to the content of the Customer’s video.

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The Customer hereby indemnifies and holds harmless CP against all loss, damage, costs or expenses suffered or incurred by CP as a result of any breach of clauses 12.1 and 12.2.

 

13. Project Delays and Client Liability

13.1   Any estimate of the date by which CP will complete any part of the Services is contingent upon the Customer providing complete                          instructions to CP and fully cooperating with CP until CP has ceased providing Services to the Customer.

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13.2   The Customer must appoint a person who has complete authority to provide instructions to CP and respond to requests for feedback                until CP has ceased providing Services to the Customer.

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The person appointed pursuant to clause 13.2 must be available to respond to communications from CP on every day which is a business day in NSW.

 

14. Sub-Contracting

14.1   CP reserves the right to sub-contract any Services that CP has agreed to perform for the Customer as it sees fit.

 

15. Recorded Material

Ownership

15.1   The Raw Footage, video files, audio files and edited video files including all copyright remain the property of CP until full payment is                      made for the Services.

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15.2   Where Services remain unpaid or in the event that a final agreed payment is not made, CP 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.

 

15.3   Copyright in all video, images, audio, lyrics or musical composition included or recorded in the edited video or recorded by equipment                used by CP will remain the property of the author or legal entity owning the copyright.

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Special Provisions for Ownership

15.4   CP 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 CP.

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15.5   CP 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 CP and the Customer. The copyright of such segments will belong                        exclusively to CP.

 

Disposal

15. 6   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, CP reserves the right to dispose of all Raw                     Footage, video files, audio files, edited video files, recorded materials and finished works.

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Raw Footage

15.7   The Customer may purchase Raw Footage in view able format for an additional fee of $200.00 per day of footage plus GST. If the                          Customer requires any Raw Footage to be provided by way of a separate hard disk, then Customer must pay CP an additional fee of                     $250.00 plus GST.

 

Failure of Equipment or illness of CP employees and contractors

15.8   Whilst all reasonable care and preparation is taken for videography and editing, CP 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 CP or because of an unforeseen event or any dispute regarding the ownership of recorded materials.

 

16. Right of Refusal or Termination

16.1   CP reserves the right to terminate the provision of Services, if: the videographer, or any person(s) employed or contracted by CP 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.

 

16.2   If CP terminates the provision of Services pursuant to clause 16.1 then any Deposit paid by the Customer is non-refundable.

 

Should any of the circumstances outlined in clause 16.1 occur, CP may seek compensation from the Customer for any loss or damage suffered.

 

17. Limitation of Liability

17.1   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, CP 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                 CP in writing, and the liability of CP for any such matters is hereby excluded. Where (and to the extent) permitted by law the liability of                 CP for a breach of a Non-excludable Right can be limited, CP’s liability is limited, at CP’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, CP 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.

 

18. Force Majeure

18.1   If CP 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 CP’s obligations under the Contract will be suspended for the duration of the event or waived to the extent applicable.

 

19. Legal Costs

19.1   The Customer will be liable for any legal costs incurred by CP in the recovery of unpaid invoices on an indemnity basis.

 

20. Privacy

20.1   All information received by CP 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.

 

21. Other Matters which affect the Contract

21.1   The laws of Victoria apply to the Contract and the Customer must bring any proceedings against CP 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.

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21.2   CP 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 CP.

 

22. Amendment

22.1   CP 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.