REFRESH FILMS
Terms and Conditions - Video, Audio and/or Photography Services
Definitions
In these terms and conditions, unless the context otherwise requires:
Consumer means any individual who acquires REFRESH FILMS’s services wholly or predominately for personal, domestic or commercial use. Customer means any person or entity requesting REFRESH FILMS to provide Services.
REFRESH FILMS means Lighting Matters Pty Ltd trading as REFRESH FILMS (ACN 151 452 149) of 27 Ellerdale Street, Strathpine QLD 4500.
Agreed Fee means the fees estimated by REFRESH FILMS in any quotation once accepted by the Customer.
Materials means any goods, chattels, items or things, including but not limited to any photographs, documents, tapes, videos, films, footage (whether digital or hard copy), props and equipment provided by the Customer to REFRESH FILMS for the purposes of REFRESH FILMS supplying the Services.
Raw Footage means any master footage recorded in any format by REFRESH FILMS as part of provision of the Services.
Services means video and audio production, photography, and/or digital post production services.
Application
These Terms and Conditions apply to and are incorporated into all contracts, agreements, arrangements, transactions and dealings entered into by REFRESH FILMS with any Customer in relation to the provision of Services by REFRESH FILMS.
All work carried out by REFRESH FILMS 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 and Estimates
Quotations and estimates are calculated by estimating how long it will take to provide the Services under typical circumstances and are based on an hourly, half day or daily rate. One round of Customer changes and/or revisions is included in each quotation unless otherwise specified.
If the Customer instructs REFRESH FILMS that changes and/or revisions to the scope of the Services described in the accepted quotation or estimate are required then REFRESH FILMS shall be entitled to charge an additional fee based on further work required via quotation.
Cancellation
If the Customer has engaged REFRESH FILMS to provide Services on a specified date, the Customer may notify REFRESH FILMS in writing (during normal business hours) that the Customer does not require the Services to be provided on that date (“the cancellation”).
If the cancellation is made less than 48 hours prior to the date and time on which REFRESH FILMS has been engaged to provide the Services, the Customer must reimburse REFRESH FILMS for any expenses incurred by REFRESH FILMS in preparation for provision of the Services including but not limited to any fees for permits, approvals, permissions, document preparation and any time spent on pre-production components.
If the cancellation is made between 48 and 24 hours prior to the day on which REFRESH FILMS has been booked to provide the Services, the Customer may be required to pay 50% of the Agreed Fee unless otherwise specified.
If the cancellation is made within 24 hours of the time at which REFRESH FILMS has been engaged to provide the Services, the Customer must pay the Agreed Fee in full.
If the cancellation is made while REFRESH FILMS is providing Services to the Customer, the Customer must pay the Agreed Fee in full without receiving any Services.
Any amount payable pursuant to above clauses must be paid by the Customer within 30 days of the cancellation.
Cancellations due to significant unforeseen circumstances such as lockdowns and unsafe weather conditions are considered on a case by case situation.
Payment
The Customer will pay to REFRESH FILMS the Agreed Fee in the following manner unless otherwise specified:
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 REFRESH FILMS will not commence any pre-production activities until the Customer has paid the Deposit unless otherwise specified in writing.
If any REFRESH FILMS invoice or part thereof is not paid within 30 days of the date of the invoice, then the Customer agrees that an interest rate of 2.5% will accrue on the outstanding amount.
Payments made to REFRESH FILMS are to be the specified bank account as follows:
BANK: Commonwealth Bank of Australia (CBA)
ACC NAME: STAPLES MEDIA
BSB: 063215
ACC: 10335609
REF: Please include the quote, invoice or other reference number as seen on official documentation only.
Operating Hours
We do operate in a 24/7 availability capacity.
Hourly Rate means any activity billed by the hour.
Travel Rate means any time or vehicle costs incurred to prepare, pack, unpack, drive, waiting in traffic or parking areas, tolls, parking costs or fees.
Half Day means a payment rate based on up to 4 hours on location and includes 1 hour of travel.
Full Day means a payment rate based on up to 8 hours on location and includes 1 hour of travel and 30 minute break.
Overtime Rate is billed at the hourly rate multiplied by 1.5 for any and every extra hour or part thereof outside of the original Agreed Fee.
Any Hourly, Half Day or Full Day Rate starts at the moment of arrive at the proposed location, including any time spent waiting in queues, for traffic management directions, parking spaces to become available.
Variations (additional quotation applies)
REFRESH FILMS will provide the Customer with one (1) ‘draft copy’ of an initial edited video file. The Customer must notify REFRESH FILMS of all proposed changes within fourteen (14) days of receipt of the draft copy by the Customer.
Once the proposed changes have been made, REFRESH FILMS 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 REFRESH FILMS 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, REFRESH FILMS may refuse to make any further changes.
The Customer acknowledges that some changes may not be possible.
Customers will allocated hours have unlimited variation or revision requests, however will continue to deplete available editing hours.
Venue Location Fees & Permissions
The Customer must obtain any necessary consent or permission and pay any fees which may apply for REFRESH FILMS to film at a particular venue, location or event. The Customer agrees to pay any and all fees or costs that are incurred and those for the use of remotely piloted aircraft used in production.
Artistic Licence
The Customer acknowledges and agrees that editing and the production of finished works requires and may include elements of artistic expression and interpretation. REFRESH FILMS 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 REFRESH FILMS on request.
Customer’s Materials
All Materials are used and stored by REFRESH FILMS solely at the Customer’s risk and REFRESH FILMS is under no obligation to insure any Materials.
Neither REFRESH FILMS 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; REFRESH FILMS 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 REFRESH FILMS 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 REFRESH FILMS for the purposes of the Contract.
Customer Acknowledgements
The Customer acknowledges and agrees that:
REFRESH FILMS 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 REFRESH FILMS will be transferred to the Customer until the Customer pays all amounts due to REFRESH FILMS in full.
The Customer acknowledges and agrees that upon payment of all outstanding invoices due to REFRESH FILMS, the Customer is entitled to receive the finished works, but has no entitlement to the working or raw files of REFRESH FILMS.
The Customer acknowledges and agrees that the content, views and opinions expressed in the finished works produced for the Customer by REFRESH FILMS 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 REFRESH FILMS, its employees and subcontractors.
Customer Undertakings and Warranties
The Customer must obtain all necessary permits, licenses, permissions and authorisations in respect of the use of the Materials which are to be included in the Customer video.
The Customer indemnifies and holds REFRESH FILMS harmless from any claims or legal actions related to the use of unauthorised content of the Customer’s video.
The Customer hereby indemnifies and holds harmless REFRESH FILMS against all loss, damage, costs or expenses suffered or incurred by REFRESH FILMS as a result of unauthorised use of 3rd party materials provided by the Customer.
Project Delays and Client Liability
Any estimate of the date by which REFRESH FILMS will complete any part of the Services is contingent upon the Customer providing complete instructions to REFRESH FILMS and fully co-operating with REFRESH FILMS until REFRESH FILMS has ceased providing Services to the Customer.
The Customer must appoint a person who has complete authority to provide instructions to REFRESH FILMS and respond to requests for feedback until REFRESH FILMS has ceased providing Services to the Customer.
The person appointed must be available to respond to communications from REFRESH FILMS on every day which is a business day.
Any lack of communications resulting in stagnated or halted production of any kind will result in the project being ceased and terminated after one (1) month of non-communication.
Sub-Contracting
REFRESH FILMS reserves the right to sub-contract any Services that REFRESH FILMS has agreed to perform for the Customer as it sees necessary.
Recorded Material
Ownership
The Raw Footage, video files, audio files and edited video files including all copyright remain the property of REFRESH FILMS until full payment is made for the Services.
Where Services remain unpaid or in the event that a final agreed payment is not made, REFRESH FILMS 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 of all video, images, audio, lyrics or musical composition included or recorded in the edited video or recorded by equipment used by REFRESH FILMS will remain the property of the author or legal entity owning the copyright.
Only the final output files agreed upon will transfer Copyright ownership, all original media remains copyright of REFRESH FILMS.
Special Provisions for Ownership
REFRESH FILMS 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 REFRESH FILMS.
REFRESH FILMS 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 REFRESH FILMS and the Customer. The copyright of such segments will belong exclusively to REFRESH FILMS.
Disposal
Raw Footage, media, video files, audio files and edited video files will be retained for up to six (6) months only and will then be disposed of, deleted or erased. If at the end of six (6) months Services have not been paid for, REFRESH FILMS reserves the right to dispose of all Raw Footage, video files, audio files, edited video files, recorded materials and finished works.
Back-ups
Back-ups of any master, raw, edited or final media are not created unless otherwise agreed in writing. Storage of data is written to dual hard drives for added safety.
Filming Conditions
The Customer agrees that filming or photography must be undertaken in suitable environmental conditions for the operator, crew and equipment. The Customer agrees that any loss or liability incurred due to inability of REFRESH FILMS to fulfil the Service due to changing environmental conditions are strictly refused. The Customer agrees to provide a safe working environment at all times.
Raw Footage
The Customer may purchase Raw Footage, Photographs and Audio Files in their recorded format for an additional fee determined by REFRESH FILMS unless otherwise specified in writing. If the Customer requires any Raw Footage to be provided by way of a separate hard disk or cloud transfer, then Customer must pay REFRESH FILMS an additional fee as determined by REFRESH FILMS. The Customer acknowledges that Raw Footage, Photographs and Audio Files may only be viewable and/or edited in particular licensed software and REFRESH FILMS has no requirement to provide Raw Footage or Photographs in any format other than the master file recorded. An additional Agreed Fee may be required for viewing or edit ready conversions of Raw files.
Failure of Equipment or Illness of REFRESH FILMS employees and contractors
Whilst all reasonable care and preparation is taken for videography and editing, REFRESH FILMS 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 REFRESH FILMS or because of an unforeseen event or any dispute regarding the ownership of recorded materials. This may include but not limited to, lack of available recording space, inability to stream video and audio files due to limited connectivity or bandwidth, lack of physical light, damage to equipment.
Right of Refusal or Termination
REFRESH FILMS reserves the right to terminate the provision of Services, if:
the operator, or any person(s) employed or contracted by REFRESH FILMS is directly or indirectly 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; or any illegal activity.
If REFRESH FILMS terminates the provision of Services pursuant to the above clause then any Deposit paid by the Customer is non-refundable. Should any of the circumstances outlined above occur, REFRESH FILMS 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, REFRESH FILMS 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 REFRESH FILMS in writing, and the liability of REFRESH FILMS for any such matters is hereby excluded. Where (and to the extent) permitted by law the liability of REFRESH FILMS for a breach of a Non-excludable Right can be limited, REFRESH FILMS’s liability is limited, at REFRESH FILMS’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, REFRESH FILMS 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 REFRESH FILMS 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, pandemic, epidemic, quarantine restriction, labour dispute or shortage, mandate, act or omission of any third person or public authority, then REFRESH FILMS’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 REFRESH FILMS in the recovery of unpaid invoices or equipment damages.
Pandemic Mandates and State of Emergency
The Customer acknowledges that rapid Federal and State based changes imposed by the Government may affect the outcome of a Production. REFRESH FILMS accepts no liability for loss due to any Government or business imposed directive, mandate or restrictions.
Privacy
All information received by REFRESH FILMS from the Customer, written or otherwise, will be kept confidential unless in public domain. 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 Queensland and Australia apply to the Contract and the Customer must bring any proceedings against REFRESH FILMS in a Queensland 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.
REFRESH FILMS 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 REFRESH FILMS.
Amendment
REFRESH FILMS 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.