Noisy Creations Terms & Conditions
Video Production, Photo & Music Services
2. Conditions of use
6. Effect of termination
7. Fees and billing
8. Limitation of liability and indemnity
9. Changes to terms and conditions
11. Confidential Information and Intellectual Property
13. - 24. General
In this Agreement:
Client/you – means Noisy Creations’ client;
company/us/we/Noisy Creations – means Noisy Creations ABN 40966910883 Trading as Noisy Creations or its successors or assigns and includes a related body corporate of Noisy Creations, together with each and every director, officer and employee of Noisy Creations and its related bodies corporate;
Event of default – means an event set out in Schedule 1 hereto;
Service - means the service provided to the client;
Work - means the production material and refers mainly but not limited to the “video”;
Service fee - means fee referred to in Schedule 2 hereto;
Headings - Headings are intended for reference only and do not affect the interpretation of this Agreement.
Gender - Words importing any gender include where appropriate the other gender.
Legislation - A reference to any legislation, regulation, code or local law includes any amendment to or substitution of it.
Obligations - Obligations on the part of a party who is a natural person include his heirs, executors, administrators and assigns and obligations on the part of a party which is a company or other corporate body including its successors and assigns.
2. CONDITIONS OF USE
2.1. It is an essential term of this agreement that the video work of Noisy Creations remains the property of Noisy Creations until 100% payment has been made; after the full payment unless otherwise instructed in writing, the client permits Noisy Creations to display its work for in-house use and case study material. All Copyright is held by Noisy Creations.
2.2. Noisy Creations will from time to time use material from Noisy Creations’s own stock library including: stock film, stock photos and stock music. We give you as our client permission to use this material within the video we have provided and you may broadcast this material within the video. Unless otherwise agreed in writing you are not permitted to reproduce copy/use our stock material outside of the framework of the video we have provided.
2.3. Noisy Creations will also from time to time use Royalty Free stock film, photos and music for which Noisy Creations has purchased permission to use. You are permitted to display and broadcast this material within the video produced by Noisy Creations but you must not reproduce it. If a client wishes to access this material for reproduction you must enter your own agreement with the provider.
2.4. Noisy Creations will upload your first draft video to a specially designated site; the link for your video will be supplied for you to proof the video.
2.5. Following final proofing any outstanding amount owing to Noisy Creations for the video production must be paid.
2.6. Once full payment for the video is received Noisy Creations will supply the final approved video to you in the following format: the video will be provided either by Dropbox or Google Drive.
2.7. Should the client require delivery in further formats a service fee will be applied for formatting and delivery costs, agreed upon delivery.
2.8. Noisy Creations uses Sony 4K and DSLR cameras or equivalent for video recording; we use Rode microphones or equivalent for sound recording; we use Neewer LED lights with softbox or equivalent as a major lighting source if required. We use Blackmagic DaVinci Resolve for editing. When a client requires additional equipment, be it additional recording equipment, additional lighting equipment or additional editing equipment additional service fees will be charged. An additional service agreement will be required between Noisy Creations and the client for hire of equipment outside of those specified in this agreement.
2.9. Noisy Creations clients from time to time may request specific recording, lighting, editing, animation & sound techniques outside of the Noisy Creations production services. Noisy Creations has many industry contacts and can organise specialist contractors in each of these areas. When these specialist contractor services are required, a a further written agreement is required to this agreement and must be formed prior to the commencement of production.
2.10. Noisy Creations clients may require professional actors or voice-over artists for their video production. Unless otherwise specified in this agreement the engagement of these artists will require additional agreements to be entered prior to the commencement of production.
2.11. Upon receipt of final approval from you for your video, Noisy Creations will store a copy of the approved video for 30 days in which time the video will be supplied to you in the agreed format. After this period, Noisy Creations will remove all materials from its editing suites. If during this 30-day period, you have not received your video you must notify Noisy Creations so that we can forward it again. If you fail to notify Noisy Creations within the 30 day period Noisy Creations will automatically remove the copy.
2.12. If you require Noisy Creations to store your material for any longer period than 30 days, an additional storage fee will be applied. Hosting fees are to be agreed upon in a separate contract.
2.13. Noisy Creations will not store any of the footage which has been cut or edited out of the video; this material will be removed from Noisy Creations’s editing suite immediately upon receipt of video approval unless otherwise instructed in writing.
2.14. You may request that Noisy Creations hosts your video on Noisy Creations server. This hosting is an addition to providing your video in MOV format and free hosting on YouTube. Hosting by Noisy Creations is additional to the agreed provision and a hosting fee will apply.
2.15. You will abide by any Code of Practice including but not limited to privacy and advertising codes and those issued by the Australian Internet Industry Association;
2.16. You will abide by the codes issued by the Australian Film, Music and Advertising Industries;
2.17. You will comply with all applicable laws of which it is your duty to be familiar with;
2.18. You will take responsibility to inform the public of your filming requirements and purpose;
2.19. You will obtain all filming permissions which Council or Government may require;
2.20. You accept and acknowledge that technological and systems malfunctions may from time to time interrupt our ability to provide normal service and shall raise no objection or claim for compensation or be entitled to terminate this agreement pursuant to service interruption;
2.21. You accept and acknowledge that the service is subject to change, development and discontinuation at our sole discretion and shall raise no objection or claim for compensation or be entitled to terminate this agreement pursuant to service changes.
2.22. You cannot use the Noisy Creations logo or reproduce any of Noisy Creations' marketing material without prior written authorization from an authorized agent of Noisy Creations.
The client warrants that:
a) All information provided by the client to us whether to qualify to advertise on or to be published on the Noisy Creations website is correct, factual and true to the best of the client’s knowledge
(b) Where necessary it has obtained written permission from the appropriate entity including but not limited to its current or past vendors or buyers or other principals to provide for publication any information including but not limited to details, names, addresses, sales prices, photography, testimonials and or sales results which it has provided to be published and recorded by Noisy Creations.
Unless otherwise agreed in writing the term of the agreement is 1 month. This means that the client has 1 month to complete 100% payment to Noisy Creations for the work provided. The 1 month commences upon the date that approval has been given to Noisy Creations for the video or other work. If payment is not completed to Noisy Creations within the term of this agreement, Noisy Creations is not required to store material for the project beyond 1 month. Once this period is exceeded Noisy Creations will apply at its discretion a 2.5% monthly penalty interest on the clients outstanding debt. The 2.5% will be applied daily and will be cumulative. The client is not permitted by Noisy Creations to display or use the video material until all amounts due are paid and Noisy Creations reserves the right to demand the video material be removed from all displays until such a time as the amounts are fully paid.
In the event that a client does not enable Noisy Creations to carry out its obligations, as specified on the clients first invoice, within 6 months of the invoice date, Noisy Creations’s obligations will become null and void unless otherwise specified as per the “Termination” clause of these Terms and Conditions.
5. TERMINATION & CANCELLATION FEES
This agreement may be terminated by:
(a) the company forthwith pursuant to the occurrence of an Event of Default and by the provision of 14 calendar days written notice in any other case;
(b) the client by the provision of 14 calendar days written notice provided, however, that no refunds will be made by the company and any moneys owing to the term will remain payable by the client. The client by giving 14 or more calendar days written notice will be charged a cancellation fee of 50% of the full project fee; in addition, all moneys owing for work completed will become immediately payable. The cancellation fee of 100% of the full project fee is to be paid to the company when the written notice period is less than 5 days.
6. EFFECT OF TERMINATION
Termination does not release the client from its obligations including but not limited to payment of outstanding fees.
7. FEES AND BILLING
As set out in individual proposals and agreements or in these terms and conditions. Where there is any discrepancy between these terms and agreements and the clients individual final proposal or invoices, the individual final proposal and invoices will prevail.
8. LIMITATION OF LIABILITY AND INDEMNITY
To the extent allowable under the Trade Practices Act 1975 (Cth) or any other applicable law, we:
(a) exclude all implied conditions and warranties together with consequential, direct or indirect loss or damage (included but not limited to loss of opportunity, loss of revenue and loss of profits);
(b) limit our liability for breach of any condition or warranty that to the extent that we cannot mitigate any loss by resupply of the service or payment by us to have the service resupplied;
(c) limit our liability in respect of any other claim in connection with the Agreement whether the claim is based in contract, tort (including negligence) or statute to the amount paid to us by you under this Agreement;
(d) exclude our liability under this agreement where loss or damage is suffered as a result of any breach of your obligations under this Agreement or any delay in performance or breach of this Agreement which arises as a result of any matter beyond our control including but not limited to viruses or other defects or failure of the server hosting our web site.
You indemnify us and our officers, employees and agents (“those indemnified”) against any direct or consequential liabilities, losses, damages, expenses and costs (including legal expenses on a solicitor and own client basis) incurred or suffered by any of those indemnified as a result of any claim or proceedings brought by a third party against those indemnified in connection with any material generated by you in connection with the Service.
9. CHANGES TO TERMS AND CONDITIONS
Noisy Creations reserves the right to make changes to the terms and conditions of this agreement.
The Agreement may not be assigned without the express written authority of Noisy Creations which authority shall not be unreasonably withheld.
The Client may not enter into any sub-contracting agreement or delegate any of its obligations hereunder without the prior written consent of Noisy Creations.
11. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY
(a) The client shall treat as confidential this Agreement and all documents and information received from Noisy Creations (except those intended for dissemination to the public);
(b) The client shall use its best endeavours to ensure that its agents and/or employees treat as confidential this Agreement and all documents and information received from Noisy Creations (except those intended for dissemination to the public).
The client guarantees the performance by the client of each and all obligations under this agreement and is subject to the obligations and restraints set out herein and shall indemnify and keep indemnified Noisy Creations against any loss, claim, demand or action arising out of the client’s or its agents’ and/or employees’ breach of any clause of this agreement. This clause shall not merge on termination of this agreement.
This Agreement is governed by and is to be construed In accordance with the laws of New South Wales and shall be subject to the jurisdiction of the courts of New South Wales.
This Agreement embodies the entire understanding and agreement between the Parties as to the subject matter of this Agreement.
If a court rules that any part of this Agreement is invalid or unenforceable, that part shall be modified where possible and if not possible shall be severed whereupon the rest of the Agreement shall continue to operate.
Each party shall pay its own costs in relation to the preparation and settlement of this Agreement.
Schedule 1 – Events of Default
1. Breach of any warranty contained in this agreement;
2. Failure to pay fees when due;
3. Provision of false, misleading, incorrect or unlawful information/material;
4. Failure to provide within 24 hours information reasonably required by Noisy Creations to substantiate any warranty contained in this agreement;
5. Bankruptcy or insolvency of the client;
6. Conduct by the client which in the opinion of Noisy Creations is prejudicial to Noisy Creations’s interests;
7. Assignment by the client of the burden or benefit of this Agreement without the prior written consent of Noisy Creations;
8. Death of the client or cessation of the client’s business activities
Schedule 2 – Schedule of Fees – all ex GST
1. All videos include editing Blackmagic DaVinci Resolve
2. Editing will include use of Titles, captions, insertion of logos using any of the text animation presets available within the DaVinci Resolve editing suite
3. Our camera operator(s) will attend the video shoot on location within the Sydney Metropolitan area
4. First draft videos will be completed within 7 working days following filming, unless otherwise specified in writing
5.i. Video Proofing: The client will be given one opportunity to request amendments to the video upon receipt of the first draft. The client must provide written instructions of the modifications required. Noisy Creations will edit the video as per instructions where the instructions are performable with the equipment as per this agreement. All the additional revisions will be charged 100$ per hour.
5. ii. When a video is billed per 30 seconds, the fee is applied to the original video length. For example, if a client provides 5 minutes of dialogue, and decides to cut this down to 2 minutes throughout the editing process, the fee is calculated on the original 5 minutes, not the final 2 minutes of video. This does not apply to the various original takes, but to the actual length of the original narration when edited together.
6. Videos will be provided in MP4 or MOV file via Dropbox or similar or will be uploaded to YouTube within 24 hours of the full payment for the video.
1. Unless otherwise agreed in writing, script writing is charged at $150/hour
2. This applies to client meetings and teleconferences.
3. Unless otherwise agreed in writing the script writing fees include one set of proofing
4. Unless agreed in writing further edits to the script will be charged at $150/hour
1. Unless otherwise agreed in writing video animation is charged at $150/hour
2. Unless otherwise agreed in writing the fee schedules include one set of proofing
3. Unless otherwise agreed in writing further edits to the animation will be charged at $150/hour
Additional Fees, unless otherwise agreed in writing
1. Out of Sydney Metropolitan Travel – to be agreed in writing upon production
2. Clients may use their own contractors; if the client requires Noisy Creations to liaise on their behalf with their own contractors there will be a service fee of $60.00 per half hour
3. Voice-over artists (where not already included in the package) – from $100 + per 30 second voice-over.
4. Custom-designed music – per contract
5. Additional edits after first edits supplied – $150 + per hour
6. Use of additional stock footage/music/photography/sound effects to Noisy Creations’s Library – as per selected suppliers prices. There will be an additional fee of $75.00 per half hour if the client requires Noisy Creations to source the additional stock for them
6.1 Customer guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Company for inclusion on the website above are owned by Customer, or that Customer has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Company and its subcontractors from any liability or suit arising from the use of such elements.
6.2 From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Customer agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer’s exercise of Internet electronic commerce.
The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Company and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date.
15. FORCE MAJEURE
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
16. RELATIONSHIPS OF PARTIES
Company, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Customer does not undertake by this Agreement, the Order Form or otherwise to perform any obligation of Company, whether by regulation or contract. In no way is Company to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding.
17. NOTICE AND PAYMENTS
Any notice required to be given under this Agreement shall be in writing.
This Agreement shall be governed in accordance with the laws of the State of NSW
19. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
Customer may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Company. Company reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
24. NO INFERENCE AGAINST THE AUTHOR
No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.
READ AND UNDERSTOOD. Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions