New Mac Video Agency Pty Ltd, ABN 95 615 332 066, trading as New Mac Video Agency (New Mac) agrees to provide the Client with the services set out in New Mac’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 (Client) have provided New Mac with a request or instructions to provide you with video production and/or digital design services (Services) and New Mac 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 until the later date set out in the Proposal and 30 days from it, after which time New Mac 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 New Mac until written acceptance has been received and any applicable deposit or fees have been paid. However, instructing New Mac to commence work will also be deemed acceptance, as will inducing or permitting New Mac to commence work. Upon 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 Client. The nature and scope of the Services or the Proposal may only be varied with New Mac’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 New Mac reserve the right to provide Client a revised Proposal dealing with completion of Services outside of that scope.
4. In consideration of the Services, the Client shall pay to New Mac the fees, in accordance with the payment schedule set out in the Proposal, including any deposit or advance payment. New Mac will invoice the Client for fees and expenses in accordance with the Proposal. Unless otherwise agreed, New Mac 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 New Mac’s sole discretion. The Client acknowledges that New Mac has the right to require full payment of fees prior to commencement of work by New Mac 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 New Mac in providing the Services, including materials, services, equipment, personnel or resources needed in New Mac’s discretion to provide the Services or if Client requests New Mac to incur such cost or expenses in providing the Services, these costs and expenses may be on-charged to the Client and New Mac may issue 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 Client to any third party if so requested by New Mac.
6. Services or work in progress will not be completed or delivered if invoiced fees or expenses are unpaid but New Mac 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. New Mac will if required provide the Client with a valid tax invoice for all fees and expenses.
8. On completion of any part or component of the Services and full payment of all fees or expenses payable by Client for it, New Mac 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 New Mac. 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 New Mac’s prior written consent, and must give New Mac the first option to complete that work before Client engages any third party to complete that work.
9. Unless otherwise agreed in writing, New Mac 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 New Mac shall remain the exclusive property of New Mac.
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.
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 New Mac. New Mac may withhold Services until this material is provided. If any failure to provide materials results in additional work for New Mac, the Proposal is deemed revised accordingly and may give rise to additional fees in New Mac’ sole discretion.
12. Client warrants that any and all information or materials it supplies to New Mac is true and accurate and do not infringe the intellectual property or other rights of any party, and without limiting the terms of this Agreement, the Client indemnifies New Mac for any losses incurred in any way (including by negligence) as a result of a breach of this warranty. To avoid doubt, Client will ensure any third party material is licensed for its use or inclusion in the Services. New Mac may exclude any material it considers may not so comply, without any liability to the Client.
13. New Mac is not responsible for the loss of or damage to any materials provided by the Client to New Mac. Delivery
14. New Mac 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 New Mac.
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 New Mac 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 within the parameters of and are subject to the Proposal and this Agreement. Any other timeframes notified to the Client will be binding on the Client unless otherwise agreed.
16. New Mac 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.
Limitation of liability
17. Without limiting anything in this Agreement, the Client acknowledges and agrees that New Mac provides the Services at the direction and pursuant to the instructions or requirements of the Client and, notwithstanding any act or omission by New Mac, including negligence, the Client accepts all risk in relation to the Services and releases and forever discharges New Mac 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 New Mac 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 New Mac for Client, is a continuing separate obligation and survives termination.
18. To the full extent permitted by law, New Mac makes no warranties or guarantees of any kind, express or implied, relating to work or services including in relation to the Services.
19. To the full extent permitted by law, New Mac‘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.
20. 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
21. Client undertakes that it will where possible properly acknowledge or attribute New Mac (or its personnel, as New Mac may advise) as creators of the Work in all uses of the Work by Client and any credit must be approved by New Mac and otherwise consistent with industry practices. New Mac may place a credit for New Mac on any materials and products created as part of the Services and Client agrees not to remove same and to use best endeavours to include this on all uses of the Work.
22. New Mac may name or refer to Client as New Mac’s client on materials and products for the purpose of promoting New Mac’ 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.
23. Client grants New Mac the right to use any Work or samples of any other works produced by it for New Mac’ promotional purposes, subject to informing the Client beforehand and accommodating any limitation where possible.
24. Client agrees to provide New Mac with samples of the Project or final works comprised within it, at no cost and for use in New Mac’ portfolio, showreel and other promotional materials.
25. Client may terminate the Services at any time on 7 days written notice to New Mac. New Mac 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 New Mac’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, 8, 9, 12, 13, and 17 – 24 continue to apply. In addition, if Client withdraws or does not proceed with any part or component of a Proposal already commenced by New Mac, 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.
27. New Mac is a contractor, not an employee, partner or agent of 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. If any clause or part of a clause hereof is illegal or unenforceable, that clause or part is to be treated as removed here-from, but the rest of this Agreement is not affected.
30. The Agreement is governed by the laws of and the jurisdiction of the courts of Victoria.