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TERMS AND CONDITIONS
By submitting a completed Order Form to Homestudios Pty Ltd (ACN 109 261 707) (ClassMovies), the organisation specified in the Order Form (Organisation) agrees to comply with and to be bound by these Terms and Conditions.
1. DEFINITIONS
Unless the context otherwise requires:
Agreement means:
- these Terms and Conditions; and
- the completed Order Form.
Intellectual Property Rights means includes, without limitation, all copyright, trade mark, design, patent, semiconductor or circuit board layout rights, trade, business or company names, confidential information and other proprietary rights, and any rights to registration of such rights whether created before or after the date of this Agreement and whether created in Australia or elsewhere;
Fees means the amount that the Organisation pays or is to pay to ClassMovies for the use of the Program as specified in the Order Form;
Laws mean laws, acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements and directions of any relevant Commonwealth, State or Local Government Departments, government agencies, bodies and public authorities, in force from time to time;
Losses includes disbursements, losses, liabilities, damages, charges, costs and expenses (including legal costs and expenses on a full indemnity basis), claims, demands, actions or proceedings (each a Loss);
Order Form means the form completed by the Organisation requesting the Program;
Partner means the entity identified as a partner in the Order Form;
Program means ClassMoviesí program for making films as described in a Starter Pack and the Order Form and the following process:
- ClassMovies will edit the raw material which has been filmed in accordance with the instructions contained in the Starter Pack by the Organisation to produce a 15-20 minute film, including a 1-2 minute trailer;
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ClassMovies will provide the edited draft of the Raw Material to the Organisation for its approval and subsequent revision, including without limitation the addition of extra scenes or edits to scenes (such approval not to be unreasonably withheld and deemed to have been given if the Organisation has not refused the edited material in writing within 14 days after the edited material has been submitted to the Organisation);
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ClassMovies will then edit the film based on the Organisation's feedback and produce a DVD using ClassMovies' standard branding and containing enough information to identify the Organisation;
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ClassMovies will supply the Organisation with the number of DVDs that have been ordered, a complimentary portfolio DVD for the Organisation and an archive DVD for the Partner and the Organisation;
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ClassMovies will return all raw footage and other information and media that was provided by the Organisation;
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Upon the Partner or the Organisation's request, ClassMovies will provide a Showreel DVD (at no cost) that will include all trailer highlights for each film produced during the Term;
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ClassMovies will establish a digital library archive (Wrap Room) that will be based on ClassMovies' global class code system (Class Codes). The Wrap Room will contain every film (both in full and trailer versions) that ClassMovies has produced for the Partner and the Organisation. New films will be added to the Wrap Room once the Organisation has approved the film online. The Wrap Room will be stored on a secure fileserver which will be backed up every day. This Wrap Room will remain in existence until this Agreement is terminated; and
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If specified in the Order Form, ClassMovies will provide the Partner with an index to the combined Wrap Rooms and Class Codes of the Partner or the Organisation. The Partner or Organisation may request, during the term of this Agreement, further copies of individual or compilation films from the Wrap Room be supplied. The Partner or Organisation acknowledges that such further copies will be supplied at an additional cost.
Starter Pack means the film pack that ClassMovies provides to the Organisation; and
Term means the period from the date of the Order Form until this Agreement is terminated in accordance with clause 910.
2. Program
ClassMovies agrees to provide the Program to the Organisation.
3. Organisation's responsibilities
The Organisation agrees that, unless the Order Form requires otherwise, the Organisation:
- will obtain all necessary consents and comply with all applicable Laws including without limitation, Laws relating to privacy; and
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warrants that any material provided by the Organisation to ClassMovies as part of the Program or under a Starter Pack will not breach any third partyís rights (including Intellectual Property Rights and moral rights).
4. Ordering process
- Unless otherwise specified in the Order Form, the Organisation will order the minimum amount of Starter Packs and services in relation to the Starter Packs from ClassMovies in accordance with this Agreement.
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Orders for copies of the Starter Packs or back orders of individual films must only be made in accordance with ClassMoviesí standard order process as amended by ClassMovies from time to time. Orders will be deemed to have been accepted by ClassMovies only once ClassMovies has sent an email confirmation to the Organisation.
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ClassMovies agrees to use all reasonable commercial endeavours to deliver to the Organisation any Starter Packs that are ordered by the Organisation in a timely manner. The Organisation agrees that ClassMovies will not be liable in any way for Loss suffered by the Organisation in the event delivery of a Starter Pack is delayed due to events out of ClassMoviesí control.
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The Organisation agrees that it cannot cancel or amend an order once it has been accepted by ClassMovies without ClassMoviesí written consent.
5. Fees, charges and taxes
- Unless otherwise specified in the Order Form, ClassMovies will invoice the Organisation upon completion of its services to the Organisation under a Starter Pack and the Organisation agrees to pay ClassMovies the Fees within 30 days of a receipt of an invoice. The Organisation agrees that interest in accordance with ClassMovies' standard overdue interest charges will be payable on any late payments.
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The Organisation acknowledges that ClassMovies may increase the Fees from time to time. ClassMovies will provide the Organisation with advance written notice of such increases. The Organisation may terminate this Agreement without liability by 30 days' written notice if it does not agree to the increase in Fees.
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The Organisation agrees to pay all costs and disbursements incurred by ClassMovies with respect to the recovery of any outstanding amounts including but not limited to legal costs.
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The Organisation agrees to pay any taxes and duties (including without limitation, GST) levied by any authority on, or in connection with, this Agreement (other than income taxes payable by ClassMovies).
6. Intellectual Property
- The parties agree that other than as expressly provided in this Agreement, nothing in this Agreement transfers ownership in, or otherwise grants any rights in, any Intellectual Property Rights of a party.
- ClassMovies agrees that it does not own any Intellectual Property Rights in any raw footage or raw images provided to ClassMovies (Raw Material).
- The Organisation agrees that ClassMovies owns any Intellectual Property Rights in the Program and any other material or information that ClassMovies provides to the Organisation (ClassMovies Material).
- The Organisation agrees that ClassMovies owns any Intellectual Property Rights that ClassMovies creates as a result of the services it provides to the Organisation in relation to the Program, including any modifications it makes to the Raw Material (Created Material). The Organisation assigns to ClassMovies all rights, title and interest (including all Intellectual Property Rights) in the Created Material and will obtain any moral rights waivers and consents necessary. This assignment operates as an assignment of future Intellectual Property Rights to the extent that the Created Material is not in existence at the date of this Agreement.
- ClassMovies grants the Organisation a revocable, limited, non-exclusive licence to use the ClassMovies Material for the purposes of using the Program during the Term in accordance with this Agreement.
- The Organisation may use the Created Material in the form delivered by ClassMovies for the Organisation's sole non-commercial purposes only but acknowledges that the Organisation cannot reproduce the Created Material in the form delivered without ClassMovies' prior written consent. Any other licences granted by ClassMovies to the Organisation will be specified in the Order Form. For the avoidance of doubt, the Organisation must not copy or modify the contents of the Program or the Created Material without ClassMovies' consent.
- The Organisation grants to ClassMovies an irrevocable, perpetual, non-exclusive, sublicensable, transferable licence to use the Raw Material for the purposes of providing the services under the Program. ClassMovies agrees that it will not rent, broadcast or communicate to the public any of the Created Material or the Raw Material without the Partner or the Organisation's prior written consent. The Organisation acknowledges that if the Partner provides its consent under this clause, such consent will be deemed to be the Organisation's consent.
7. Indemnities
The Organisation agrees to indemnify and keep indemnified ClassMovies, its affiliates, agents, personnel and subcontractors from and against any and all Losses arising from any third party claims in connection with, or incidental to:
- any breach of the Organisation's obligations (including under any warranty) under this Agreement; and
- any fraud, dishonesty, unlawful conduct or wilful misconduct by the Organisation or any of the Organisation's personnel under this Agreement.
8. Limitations of Terms and Liability
- The Organisation acknowledges that access to the Wrap Room may be unavailable on occasions, including due to delays in internet traffic, breakdown in telecommunications equipment, computer viruses and other acts beyond ClassMovies' reasonable control.
- This Agreement is the entire statement of the terms of the parties' relationship concerning the Program. Subject to clause 89c), all terms (whether conditions or warranties, and whether oral or implied) not expressed in this Agreement are excluded.
- Nothing in this Agreement excludes, restricts or modifies any guarantee, condition, warranty, right or remedy which applies under the Competition and Consumer Act 2010 (Cth) which cannot be excluded, restricted or modified.
- To the fullest extent permitted by law, ClassMovies' liability to the Organisation whether arising in or for breach of contract, tort (including negligence) breach of statutory duty or otherwise shall be limited, at ClassMovies' sole discretion to:
- in the case of goods supplied under this Agreement, the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- in the case of services supplied under this Agreement, the re-performance of the services or the payment of the cost of having the services supplied again.
9. Termination
- Either party may terminate this Agreement upon 30 days written notice to the other party.
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Upon the expiration of termination of this Agreement, the Organisation acknowledges that ClassMovies may delete all films that are in the Wrap Room.
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For the avoidance of doubt, clauses 34, 6.g)7.h), 7, 8 and 10 shall survive the termination or expiration of this Agreement.
10. General
- The Organisation must not assign or otherwise deal with its rights or obligations under this Agreement.
- ClassMovies may assign, novate, or otherwise deal with this Agreement with the Organisation's prior written consent, such consent not to be unreasonably withheld. The Organisation agrees that ClassMovies may assign, novate or otherwise deal with this Agreement without the Organisation's prior written consent as part of a corporate restructure or sale of ClassMovies' business or a substantial part of its business to a third party.
- This Agreement is governed by the law in force New South Wales, Australia, and each party submits to the exclusive jurisdiction of the courts of New South Wales, Australia.
- The parties are not and are not to be taken to be in a partnership, joint venture, employment or fiduciary relationship. Nothing in this Agreement gives a party the authority to bind the other party in any way.
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