Our SME packages small print
By working with us on one of the SME packages or variations thereof,
you accept the below terms and conditions.
1. Delivery and Payment
a) In consideration for the Production Company’s services under this Agreement, the Client agrees to pay the Production Company the Agreed Quote in accordance with the Payment Terms.
b) The Production Company agrees that it will perform the Responsibilities and produce the Materials and the Specified Media(s) in accordance with best practice industry standards.
2. Approvals and Changes in Specifications
a) If at any time, Client desires to make any additional changes or variations from the script(s) or storyboard(s) in the Specified Media(s) or from any material or work in progress, and such changes result in additional costs to the Production Company, reimbursement for such additional costs shall be payable with the terms of this Agreement for final payment.
b) The Production Company shall submit the Approval Materials as soon as possible and the Client shall approve or detail their required amendments to the Approval Materials as soon as possible having regard for the need of the Production Company to proceed to prepare the Materials in accordance with the Delivery Dates or to change the item in advance of the shoot.
c) Both parties acknowledge and agree that time shall be of the essence in relation to the submission and approval of the Approval Materials, and that they shall employ their best efforts to perform their obligations in relation to the Approval Materials.
d) The Client representative should be available to approve Approval Materials as per an agreed schedule.
3. Attendance of Client Representative on Shoot
a) The Client shall provide the Client Authorised Representative, who will attend the shooting and/or recording and/or post-production of the Specified Media(s) at agreed times for consultation and approvals as may be necessary relating to the content of the Specified Media(s).
b) If the Client Authorised Representative is unable to attend the shoot at any stage the decision of the Production Company in all such matters will be determinative and final.
4. Safekeeping of Digital Assets and Hard-drives
a) All data, documents and tapes that are received and stored by the Production Company solely at the Client’s risk.
b) The Production Company shall be responsible for the safekeeping of any rushes, negatives and digital assets during production of the Specified Media(s) and during the post-production and at all other times up to the point at which the Materials are delivered to the Client.
c) After delivery of the Specified Media(s) the Production Company will keep the Materials on hand for up to ninety (90) days. After this period of time, the Materials will go into deep storage and recovering these files may incur a recovery fee. The Production Company will take all reasonable care in the archiving process of the Materials but can not be held liable for any loss of data or data corruption that may happen over a period of time while the Materials are in deep storage.
d) The Production Company shall not be responsible for the security of the Materials or any other items in any other circumstances.
5. Legal and Technical Requirements
a) The Client and the Production Company shall jointly be responsible for ensuring that the Specified Media(s)s and the Materials comply with any legal or regulatory requirements including regulations around the Health and Safety at Work Act 2015 relating to content, production and post-production.
b) The Production Company shall ensure the Materials comply with the technical requirements and standards in force in New Zealand at the date of signing of the Agreement.
6. Permits and Visas
a) The Client shall be responsible for paying for all relevant permits, licences or other official authorisations relating to the shoot, including any necessary visas or work permits in respect of personnel engaged by the Production Company.
b) The Production Company will not be responsible for delays, difficulties or inability to obtain visas or work permits for talent or personnel engaged by the Client.
7. Copyright and Other Rights
a) The Production Company and the Client agree that the following rights shall be transferred from the Production Company to Client upon completion of the Specified Material(s) and receipt of the total Agreed Quote and any extra charges incurred as a result of an agreed revision to the Responsibilities. The Production Company shall reserve any rights not expressly specified herein.
The Production Company grants and assigns to Client the exclusive rights to publish, print, employ, advertise, or otherwise utilize the Specified Media(s) in perpetuity and on any platform(s), unless modified by a writing signed by both parties. The Production Company expressly reserves all right, title and ownership of all Materials and all related property produced pursuant of this Agreement, including all preliminary materials including but not limited to script(s), storyboard(s) and concept(s). Any alterations of Specified Media(s) (color shirt, mirroring, flopping and paste) creating additional Media(s) is prohibited without the express permission of the Production Company. The Production Company will be given first opportunity to make alterations required.
c) The Production Company retains a right to utilize Materials used in or produced as a consequence of the Specified Media(s) without the Client being entitled to compensation. These may be used for the purpose of the Production Company’s Show Reels, Industry Awards and promotions in any media (including internet formats).
d) Where the Production Company expressly commissions any material from a third party for use in the Specified media(s) or uses any existing material which has been created by the Production Company or such third party for the Specified Media(s), the Production Company undertakes to obtain either an assignment of such copyright as may exist in such materials or, if an assignment is not feasible, or cannot be negotiated on reasonable terms, a license on terms to be approved by the Client, and at the cost of the Client, to use the materials in the Specified Media(s).
e) The Production Company undertakes, wherever possible and practicable, to procure and pass on to the Client moral rights consents or waivers in a form to be approved by the Client, from the director and all other persons materially engaged in the creation or production of the Specified Media(s) or any part thereof by the Production Company.
f) The Client and the Production Company will ensure, wherever possible and practicable, that appropriate permissions are obtained in respect of any copyright or trademarked material supplied by any copyright or trademarked material supplied by the Client or the Production Company, as the case may be, for inclusion in the Specified Media(s). The party supplying such material being responsible for its clearance.) Where the Production Company agrees to be responsible for the engagement of actors, other performers or models, the Production Company undertakes to obtain where possible, all necessary consents from such parties on terms to be approved by the Client.
8. Amendment Requests
If the Client (including where such request occurs for or on behalf of any third party) asks for the production schedule, Budget or scope of work to be altered:
a) the parties will use their best endeavors to agree new dates and relevant deliverables, and the Client will be responsible for any reasonable and unavoidable increases in the Agreed Quote or costs arising as a result;
b) if any of the additional costs cannot be agreed, the dispute resolution procedure detailed under Clause 15 shall apply;
c) any amounts which are not in dispute shall be paid in full by the Client in accordance with the Payment Dates detailed under this Agreement.
9. Cancellation & Postponement by Client
A cancellation or postponement is defined as a rescheduling of the production to a later specific date caused or directed by Client or a total cancelation of the project. If the Production Company blocks out a specific period of time with the agreement that it represents a firm commitment from the Client, then the Production Company makes no further efforts to sell the time. If the job is canceled or postponed within the scheduled time frame, it is unlikely that this time can be re-booked. It should be understood that this time represents the Production Company’s only source of income.
The Production Company reserves the right to charge a compensation fee in full for all monies paid (or to be paid) to any third party in connection with the confirmed work, including all expenses and costs incurred by the Production Company up to the date of cancelation unless the Production Company in its sole discretion advises the Client on the date of cancelation that no compensation is charged.
a) If the Client cancels or postpones production of the Specified Media(s) in circumstances where the Production Company has committed no material breach of the agreement, the Client must in all cases reimburse the Production Company for all direct costs and the total Creative Fee plus the proportions of the Production Fee as provided in clause 9(b) below.
b) For the avoidance of doubt, the proportion of the Production Fee payable under this clause depends on the notice period and the type of production but is always additional to the direct costs so that where:
I. the Client gives the Production Company 15 or more business days’ notice of cancellation or postponement of a production, the Client must pay 25% of the Production Fee;
II. the Client gives the Production Company less than 15 but more than 10 business days’ notice of cancellation or postponement of a production the Client must pay 50% of the Production Fee;
III. the Client gives the Production Company 10 or less business days’ notice of cancellation or postponement of a production the Client must pay 100% of the Production Fee;
For the purposes of this clause, ‘business day’ means any day Monday to Friday, excluding public holidays.
c) Notwithstanding the above, in all cases of postponement of a production the Client will use its best endeavors to limit the time period of any such postponement and upon the postponement ceasing, the parties will negotiate new terms and fees for the production taking into account the length of postponement, any payments made under this clause, and the financial impact of the postponement on the parties.
10. Contingency & Weather Days & Force Majeure
A contingency day is any day where a scheduled media/film shooting has been prevented from occurring due to circumstances beyond the control of the Production Company. The Client agrees that if a production is suspended, frustrated or delayed by bad weather conditions, a contingency beyond the control of the Production Company, or by some other force majeure event which would include, but are not limited to, storms, tempests, earthquakes, wars, floods, injury, illness or non-appearance of key talent, delay or failure of delivery of goods or services to be supplied by the Client, whether on-camera product, vehicles or otherwise it must, in such circumstances, and in addition to all other agreed or stipulated payments, pay the Production Company the costs and fees specified by Producer in advance in the Production Agreement Addendum A or supplied to the Client on request.
a) The Client may terminate this Agreement by fourteen (14) days written notice to the Production Company if the Production Company commits any material breach of this Agreement, and fails to remedy that breach within 14 days of receiving written notice identifying the breach.
b) Either party may terminate this Agreement forthwith by written notice to the other if that other party (being a company) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect or (being a partnership or other unincorporated association)
is dissolved or (being a natural person) dies, or if either party becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors or has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets or ceases or threatens to cease to carry on business.
c) In the event of termination by the Client under this clause the Client shall be entitled, without prejudice to any other rights it may have, to continue and/or complete the production and shall in addition be entitled on demand to immediate delivery of the Materials to complete the production and/or to transmit the Specified Media(s) subject to the Production Company receiving payment for any fees and/or direct costs legitimately incurred or spent by it towards production of the Specified Media(s) in accordance with the Budget and the Payment Terms.
a) Should a party incur any loss or liability, costs (including external legal costs) or damages as a result of the other party breaching this Agreement the offending party shall indemnify the non-offending party in relation to such damage.
b) Each party’s liability under this clause shall be limited to the Production Fee (together with the cost of any extra work required by the Client and carried out by the Production Company) paid under this agreement and no party shall have any liability for consequential loss, airtime costs, loss of business profits or other pecuniary losses.
Each party agrees to insure itself effectively, and to provide on request evidence that such insurances are in effect, for all actions, claims, losses and demands which may arise out of or in respect of the performance, non-performance or breach by a party of its obligations under this Agreement as agreed between the parties including, but not limited to:
a) the non-appearance or inability to complete the scheduled performance of any artist or key personnel;
b) the non-appearance, inadequacy or unusability of any materials or production facilities provided by a party to the other;
c) loss of or damage to any property as a result of the actions, recklessness or negligence of a party or its representatives;
d) the death or bodily injury to artists and other persons caused by or arising out of the negligence or recklessness
of a party or their representatives;
e) risks to the Materials, Commercials or other related material whilst being worked on or transported by third parties;
f) any responsibility a party may have for providing Employer’s Liability insurance, Worker’s Compensation insurance or superannuation to its personnel; and
g) the loss sustained due to the interruption, postponement, cancellation or abandonment of the production which arises out of any matter for which the party is responsible.
14. Entire Agreement
This Agreement is the entire agreement between the parties relating to the subject matter of this Agreement and supersedes all previous communications, agreements and other arrangements (other than those expressly attached to or incorporated into this Agreement by reference). No variation or assignment of this Agreement shall be effective unless it is in writing and signed by both parties.
15. Disputes Procedure
a) If any dispute arises between the Client and the Production Company out of or in connection with the Agreement they will use their best endeavours to negotiate in good faith a mutually satisfactory resolution. If they are unable to do so within ten (10) days after the date when the dispute is first raised either the production Company or the Client may refer the dispute to mediation. If they are unable to agree on a mediator or process then a mediator and process will be nominated by the President for the time being of the Auckland District Law Society. If within ninety (90) days after the dispute is first raised a resolution by mediation is not achieved to the satisfaction of both parties either of them may then seek redress through the Court.
b) In connection with any disputes, or enforcement of any provision under any Agreement, the laws of New Zealand will apply and to determine a dispute the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.
16. Confidential Information
a) The parties acknowledge a duty to not during or after the termination or completion of this Agreement to disclose without the other’s prior written permission any confidential information either concerning the other’s business, or that of the advertiser, its business plans, customers or associated companies or any other relevant information about the Specified Media(s) disclosed as a result of this Agreement.
b) In particular during and after the production the Production Company acknowledges its responsibility to treat in confidence all the marketing and sales information and statistics relating to the advertiser’s business.
c) Both parties shall impose obligations in terms equivalent to those above on its own personnel. For purposes of clarification all information involved in the production of the Materials is of a confidential nature and may only be discussed outside of the production/standard production procedures with the express written permission of the Client Authorised Representative.
17. Late Payments
The Client acknowledges that any payment of the Agreed Quote later than the times required under the Payment Terms shall attract an interest rate of 5% per annum above the current interest rate set by the Reserve Bank of New Zealand, with interest to be calculated daily.
18. No Waiver
a) Failure of any party to exercise or enforce its rights under this Agreement shall not constitute a waiver of those rights unless expressly agreed in writing between the parties.
b) Any waiver will apply only to the particular matter in respect of which it is given.
19. Blue Book
a) The Blue Book is the Code of Practice for the Engagement of Crew in the New Zealand Screen Production Industry, published by the New Zealand Film and Video Technicians Guild (Inc) and The Screen Production and Development Association (Inc).
b) The Client acknowledges that the Production Company is obliged to comply with the Blue Book in respect of any Crew it hires. Accordingly, to the extent that any obligation of the Production Company hereunder or under any Contract conflicts with its obligations under the Blue Book at the time. The Production Company’s contractual obligations will be deemed modified to the extent necessary for it to comply with the Blue Book.
If one or more of the provisions of this Agreement are found to unenforceable, it shall not affect the enforceability of the other provisions, and the impacted provision shall only be read down to the extent necessary to give effect to the purposes of this Agreement.
21. Governing Law
The laws of New Zealand shall govern this Agreement, and the parties hereby submit to the non-exclusive jurisdiction of the Courts in that Country.