TERMS & CONDITIONS OF ENGAGEMENT
CINEPORT PTY LTD ACN 166 103 966 T/A WILD VISTA (Wild Vista) agrees to provide The Client with the services set out in Wild Vista’s written proposal or quotation on the following terms and conditions. That proposal or quotation and these terms and conditions will together form a binding and entire agreement upon The Client ’s acceptance of quotation or proposal (Agreement), unless otherwise agreed between those parties in writing. Proposal and Services
1. You (The Client ) have provided Wild Vista with a request or instructions to provide you with video production and photography services (Services) and Wild Vista has provided you with a proposal setting out the nature and extent of the proposed Services to be provided (which may include separate options or components) and applicable fees or charges (Proposal). The Proposal will be valid from the date of issue for 14 days or any later date set out in the Proposal, after which time Wild Vista reserves the right to withdraw, change or replace the Proposal. Acceptance of Proposal
2. Acceptance of the Proposal by The Client must be in writing and work will not commence by Wild Vista until written acceptance has been received and any applicable deposit or fees have been paid. However, instructing Wild Vista to commence work will also be deemed acceptance, as will inducing or permitting Wild Vista to commence work. Upon The Client accepting the Proposal, Services will commence and proceed in accordance with the Proposal and this Agreement, which will be deemed legally binding on The Client , and be for all options or components unless only certain options or components are clearly accepted by The Client . The nature and scope of the Services or the Proposal may only be varied with Wild Vista’s consent in writing or as expressly permitted in accordance with this Agreement.
3. If The Client requests any changes outside the scope of the original request, instructions or Proposal, extra costs may be applicable at usual rates and Wild Vista reserves the right to provide The Client a revised Proposal dealing with completion of Services outside of that scope. Payment Terms
4. In consideration of the Services, The Client shall pay to Wild Vista the fees, in accordance with the payment schedule set out in the Proposal, including any deposit or advance payment. Wild Vista will invoice The Client for fees and expenses in accordance with the Proposal. Unless otherwise agreed, Wild Vista will require 50% of quoted fees to be paid on receipt of written acceptance of the Proposal. Payment of invoiced fees and expenses is required within 14 days from the date of each invoice and default interest may be charged on overdue sums at the rate of 12.5% p.a. If invoice terms are not specified in a Proposal, payment terms are at Wild Vista’s sole discretion. The Client acknowledges that Wild Vista has the right to require full payment of fees prior to commencement of work by Wild Vista or prior to final delivery of materials created as a result of the Services.
5. If any cost or expenses will or may be incurred by Wild Vista in providing the Services, including materials, services, equipment, personnel or resources needed in Wild Vista’s discretion to provide the Services or if The Client requests Wild Vista to incur such cost or expenses in providing the Services, these costs and expenses may be on-charged to The Client and Wild Vista may issue The Client with a separate quotation or proposal for those expenses (also a Proposal), or specify them in the original Proposal, and payment terms will be as in Clause 4, or payable directly by The Client to any third party if requested by Wild Vista.
6. Services or work in progress will not be completed or delivered if invoiced fees or expenses are unpaid but Wild Vista may continue work without affecting its rights hereunder.
7. All fees and charges in the Proposal are exclusive of GST, which will be payable by The Client . Wild Vista will if required provide The Client with a valid tax invoice for all fees and expenses. Intellectual Property
8. On completion of any part or component of the Services and full payment of all fees or expenses payable by The Client for it, Wild Vista grants The Client a licence to use that part or component as delivered to The Client (a Work) for the term, territory and use or purpose set out in the Proposal, including any other limits set out in it or otherwise agreed. The Client is not entitled to, and undertakes not to, make any use whatsoever of any of the Services or Work until the licence for it under this Clause commences, unless agreed in writing with Wild Vista. In any event, The Client may not alter or make any adaptation of the Work except to the extent expressly set out in the Proposal or with Wild Vista’s prior written consent, and must give Wild Vista the first option to complete that work before The Client engages any third party to complete that work.
9. Unless otherwise agreed in writing, Wild Vista retains ownership of all the right, title and interest (including copyright) in all work created or undertaken to produce the Services including the Work, all underlying ideas, concepts, methods or techniques, and any rights it may have in or to use third party proprietary work or materials in providing Services. For the purposes of clarity, all masters, film, tapes or other source material created by Wild Vista shall remain the exclusive property of Wild Vista.
10. Where the Services do not proceed beyond an initial Proposal, The Client is not assigned or licensed any rights over any works and is not entitled to make any use of any such works. The Client materials and information
11. All information or materials to be provided by The Client must be provided at commencement of Services or acceptance of the Proposal, unless provision is otherwise made in the Proposal, or provided on later request from Wild Vista. Wild Vista may withhold Services until this material is provided. If any failure to provide materials results in additional work for Wild Vista, the Proposal is deemed revised accordingly and may give rise to additional fees in Wild Vista’s sole discretion.
12. The Client warrants that any and all information or materials it supplies to Wild Vista is true and accurate and does not infringe the intellectual property or other rights of any party, and without limiting the terms of this Agreement, The Client indemnifies Wild Vista for any losses incurred in any way (including by negligence) as a result of a breach of this warranty. To avoid doubt, The Client will ensure any third party material is licensed for its use or inclusion in the Services. Wild Vista may exclude any material it considers may not so comply, without any liability to The Client .
13. Wild Vista is not responsible for the loss of or damage to any materials provided by The Client to Wild Vista. Delivery
14. Wild Vista will use its reasonable endeavours to deliver the Services, Work and materials therein to The Client in accordance any delivery schedule set out in the Proposal, subject to any delay resulting from the failure of The Client to provide information and materials as required, any additional work requested by The Client or any event or circumstance beyond the reasonable control of Wild Vista.
15. Upon delivery of any materials The Client will have 5 business days or such longer period as may be agreed in writing in either a Proposal or at the time of delivery to provide to Wild Vista any objections or changes required to the materials delivered otherwise the Work and materials will be deemed accepted unless otherwise agreed. Any objections and changes must be reasonable and within the parameters of and subject to the Proposal and this Agreement. Any other time frames notified to The Client will be binding on The Client unless otherwise agreed.
16. Wild Vista is not responsible for maintaining copies of any materials, including masters and source files, after delivery to and acceptance by The Client under clause 16.
17. The Client acknowledges that Wild Vista may use cloud technology for the purposes of storing materials and delivering the Services, Work and materials to The Client and The Client is solely responsible for ensuring sufficient internet access to access that technology, and will be solely responsible for maintaining and securing all passwords or logins required to do so. Limitation of liability
18. Without limiting anything in this Agreement, The Client acknowledges and agrees that Wild Vista provides the Services at the direction and pursuant to the instructions or requirements of The Client and, notwithstanding any act or omission by Wild Vista, including negligence, The Client accepts all risk in relation to the Services and releases and forever discharges Wild Vista from all and any loss, damage or liability (including indirect, special or consequential losses) arising in relation thereto, including any claim by a third party arising out of or relating to the Services or from any delay in completion of the Services, for any reason whatsoever and will indemnify and hold harmless Wild Vista from and against all loss, damage or liability, except to the extent any legislation applies and cannot be excluded. This clause applies on creation of the Proposal by Wild Vista for The Client , is a continuing separate obligation and survives termination. Warranties
19. To the full extent permitted by law, Wild Vista makes no warranties or guarantees of any kind, express or implied, relating to work or services including in relation to the Services.
20. To the full extent permitted by law, Wild Vista‘s liability for any claim or action is limited to replacement of goods, supply of equivalent goods or services or payment of the cost of so replacing or supplying goods, or payment of the cost of resupplying those services. Confidentiality
21. Following acceptance of the Proposal, a party may receive or develop confidential information relating to the other (Confidential Information). A party will use Confidential Information only for the purpose of fulfilling its obligations hereunder and it will not be disclosed to third parties, except with the other’s express written consent, required by law or to legal advisors. Credit and Promotional Use
22. The Client undertakes that it will where possible properly acknowledge or attribute Wild Vista (or its personnel, as Wild Vista may advise) as creators of the Work in all uses of the Work by The Client and any credit must be approved by Wild Vista and otherwise consistent with industry practices. Wild Vista may place a credit for Wild Vista on any materials and products created as part of the Services and The Client agrees not to remove it and to use best endeavours to include this on all uses of the Work.
23. Wild Vista may name or refer to The Client as Wild Vista’s The Client on materials and products for the purpose of promoting Wild Vista’s business as it reasonably determines and generate its own publicity relating to the Services or Work, subject to informing The Client beforehand and accommodating any limitation where possible.
24. The Client grants Wild Vista the right to use any Work or samples of any other works produced by it for Wild Vista’s promotional purposes, subject to informing The Client beforehand and accommodating any limitation where possible and The Client agrees to provide Wild Vista with samples of any The Client works that include Works or Services created by Wild Vista, at no cost and for use in Wild Vista’s portfolio, show-reel and other promotional. Termination
25. The Client may terminate the Services at any time on 7 days written notice to Wild Vista. Wild Vista may terminate the Services or this Agreement at any time by giving written notice to The Client including but not limited to if The Client fails to perform any obligations hereunder or if Wild Vista’s ability to perform its obligations under this Agreement are adversely affected by any cause beyond its control.
26. In the event of termination, all sums owing for work undertaken or expenses incurred under this Agreement up to termination (including any deposit that is non-refundable if Services are not completed) are payable by The Client in accordance with this Agreement and Clauses 4 - 7, 9, 12 and 14 - 21 continue to apply. In addition, if The Client withdraws or does not proceed with any part or component of a Proposal already commenced by Wild Vista, The Client must pay the full fee or expenses for that stage or component, and any non-continuation fee set out in the Proposal for that stage or component. General
27. Wild Vista is a contractor, not an employee, partner or agent of The Client.
28. If either party fails to do anything it is entitled to under this Agreement that does not amount to a waiver of that right. Any waiver or variation must be in writing. If any clause or part of a clause is illegal or unenforceable, it is to be treated as removed, but the rest of this document is not affected. Any references to a party include their agents, officers, employees or assigns.
29. The Agreement is governed by the laws of and jurisdiction of the courts of Western Australia.