The Company is a video production company based in Christchurch, New Zealand.
The Client has engaged the Company to provide video production services (Services) in accordance with the Company’s proposal letter and/or quote dated (Proposal).
The parties wish to enter into this agreement (Agreement) to record the terms and conditions relating to the Services.
Words capitalised in this Agreement refer to the following definitions:
Act means the Copyright Act 1994.
Agreement has the meaning in Background C.
Clearances means any clearance, permit, licence or consent obtained from any third party or authority.
Deliverables means the final audio-visual product delivered by the Company to the Client pursuant to this Agreement as set out in the Proposal.
Fee means the total sum (comprising of a fee for filming on the Filming Dates and a fee for editing/delivery of the Deliverables) payable by the Client to the Company for the Services as set out in the Proposal.
Filming Dates means the dates for shooting for the Deliverables as set out in the Proposal.
Intellectual Property means all intellectual property rights whether conferred by statute, at common law or in equity, including but not limited to:
rights in relation to newly developed products and/or training modules (including all patents and patent applications); and
rights in relation to designs including electronic media (whether registerable or not).
Proposal has the meaning in Background B.
Script means the script for the Deliverables, including drafts and the final form of the script.
Services has the meaning in Background B.
Timeframe means an estimated period of time for the delivery of the Deliverables as set out in the Proposal.
In this Agreement, unless the context otherwise indicates:
Reference to any party includes their respective successors, executors, administrators and permitted assigns and substitutes.
Any references to clauses and schedules refers to clauses in, and the schedules to, this Agreement. Each schedule shall form part of this Agreement.
Words which refer to the singular include the plural and vice versa, and words importing one gender include the other gender.
Any reference to “dollars” or “$” shall mean New Zealand dollars (NZD$) unless otherwise specified.
Reference to a document includes the document as novated, altered, supplemented or replaced from time to time.
Any reference to persons or individuals includes any individual, company, corporation, corporation sole, trust, firm, partnership, joint venture, syndicate, authority, association or group, and any other entity, or any other association of persons either corporate or unincorporated.
References to any statutes or laws shall include any amendments or replacements applicable to those statutes or laws from time to time.
Headings are used in this Agreement for convenience only and shall not affect the interpretation of this Agreement.
The Client engages the Company to provide the Services on a non-exclusive basis. The Company may, at its sole expense, engage any subcontractors to assist with the Services, and unless otherwise agreed, the Services shall take place on the Filming Dates and at the location(s) outlined in the Proposal.
The Company shall:
deliver the Deliverables to the Client in a format reasonably requested by the Client;
use all reasonable endeavours to deliver the Deliverables to the Client within the Timeframe;
ensure that the Deliverables are technically commensurate to previous projects produced by the Company within similar budgets. Upon request by the Client, the Company shall provide links to examples of such similar works as promoted on the Company’s website storylight.co.nz;
provide all filmmaking equipment as part of the Services unless otherwise agreed; and
undertake the Services using its upmost skill, ability and talent and in accordance with standard practice within the professional production services industry.
The Client acknowledges as follows:
The Timeframe is an estimate only and has been determined on the basis of the Services. The Timeframe does not take into account any additional services requested by the Client or any unforeseeable events or delays (including, without limitation, any delays caused by failure by the Client to provide content, documents, information or feedback relating to the Services);
Any failure by the Company to deliver the Deliverables within the Timeframe shall not constitute a breach of this Agreement provided that the Deliverables are delivered by the Company within a reasonable period of time taking into account all relevant matters. The Company shall not be responsible for any losses, costs, expenses or damages however occasioned (including direct, indirect or consequential) arising out of any delay to deliver the Deliverables;
Unless otherwise agreed in writing, the Deliverables shall exclude additional materials or footage created by the Company during filming including without limitation “raw” unedited video footage, photographs, the Script, demos, storyboards, audio tracks, project files and outtakes;
Any changes to the scope of the Services and the Deliverables must be recorded and agreed by the parties in writing (email to suffice). The Company shall be entitled to charge additional fees at such rate to be advised by the Company for the following:
Any agreed changes to the scope of the Services requested by the Client (including, without limitation, additional services, footage or materials); and
Any changes or additions to the Deliverables requested by the Client (unless such changes or additions relate solely to the Company’s failure to meet the technical standards required under clause 2.2.3);
Any additional Filming Dates;
The Company will use all reasonable endeavours to keep a copy of raw video files for a maximum of six (6) months after the completion of the Services, however after the expiration of this 6-month period, the Company shall be under no obligation to continue the storage of such files, unless the parties agree otherwise;
The Client is responsible for, and shall take all reasonably necessary steps to ensure, its own personal safety and the safety of all staff, employees and contractors. Notwithstanding the foregoing, the Client shall comply with any reasonable health and safety directions given by the Company; and
The Client shall be solely responsible for the storage and back-up of the Deliverables once the same has been delivered by the Company to the Client.
The Client shall pay the Fee within seven (7) days of the issue of the Company’s invoice along with any additional costs and expenses relating to the Deliverables as referred to in clause 2.3.5. Payment shall be made electronically in cleared funds into the Company’s nominated account without any set off or deduction.
Unless otherwise agreed in writing, the Fee shall be payable by the Client as follows:
An initial non-refundable fifty percent (50%) deposit shall be payable on execution of this Agreement; and
A final payment of fifty percent (50%) shall be payable on delivery of the Deliverables to the Client.
If the Fee is not received within seven (7) days of the issue of the Company’s invoice, the Client shall pay interest on all outstanding amounts at the rate of eighteen percent (18%) per annum until such amounts owing are paid in full.
Unless otherwise agreed to by the parties, the Company acknowledges that it shall be responsible for obtaining Clearances with respect to:
performers used in the Deliverables;
script writers, composers, directors, actors, producers and any other third parties engaged by the Company to provide services in connection with the Deliverables;
any musical or literary works used in the soundtrack of the Deliverables;
any sound recordings used in the soundtrack of the Deliverables;
graphics or Intellectual Property contained within the Deliverables;
third party footage used or incorporated into the Deliverables; and
obtaining props and contracting extras.
Notwithstanding clause 4.1, the Client shall be responsible for all Clearances relating to documents, content, materials, items, locations, Intellectual Property, individuals or groups included in the Deliverables at the request of the Client and all Clearances which have not been included in clause 4.1. For the avoidance of doubt, the Company shall not be responsible for any errors or omissions in any documents, content, materials or items provided by the Client for use in the Deliverables.
For the purposes of obtaining the correct Clearances, the Client must inform the Company of the intended use of the Deliverables. The Company shall obtain all Clearances on this basis, and the Client shall be responsible for obtaining any Clearances relating to any additional uses.
All creative elements relating to the Deliverables shall be determined by the Company in consultation with the Client. The “creative elements” referred to in the preceding sentence shall include, without limitation:
the selection of shots, footage, material, props and extras;
filming technique and style;
directions given to actors and performers;
the storyboard (if not previously agreed to between the parties);
the location(s) for filming;
the equipment used for filming;
post-production and editing; and
third party services to be provided.
Notwithstanding clause 1, the Company shall use all reasonable endeavours to:
incorporate any agreed concepts into the Deliverables;
take into account any requests, directions or instructions from the Client; and
deliver drafts and demos of the Deliverables to the Client during the editing process as an indication as to the artistic direction of the Deliverables.
For the avoidance of doubt, the Client may not withhold any portion of the Fee on account of any commercial or creative matters relating to the Deliverables, unless such dissatisfaction relates solely to the Company’s failure to meet the technical standards outlined in clause 2.2.3.
The Company reserves the right to terminate this Agreement by written notice to the Client if the Client fails to pay any amounts of the Fee to the Company within the times specified in this Agreement, or if the Client breaches any term of this Agreement and fails to rectify such breach within three (3) days of written notification from the Company.
In the event this Agreement is terminated by the Company pursuant to clause 1 the following shall apply:
If termination is within fifteen (15) days of the commencement of the Filming Dates, the Company shall be entitled to retain any amounts of the Fee received prior to termination and the Client shall reimburse the Company for reasonable out-of-pocket expenses (if any) incurred by the Company in connection with the preparation of the Deliverables.
Any additional Filming Dates shall attract further fees in accordance with clause 2.3.4(c). In the event that the Client wishes to postpone, re-schedule or cancel any Filming Date, the following shall apply:
If such request to postpone, re-schedule or cancel occurs within forty eight (48) hours of the applicable Filming Date, the Client must pay the Company a cancellation fee equivalent to fifty percent (50%) of the filming component of the Fee;
If such request to postpone, re-schedule or cancel occurs within fourteen (14) days of the applicable Filming Date, the Client must pay the Company a cancellation fee equivalent to twenty five percent (25%) of the filming component of the Fee.
The Company may terminate this Agreement for any reason other than as outlined in clause 6.1 or 11, and the Client may not impose any penalty on the Company provided that any amounts of the Fee paid to the Company are promptly refunded to the Client.
The parties may assign this Agreement or any of their rights and/or obligations hereunder to any person, firm, or corporation, provided that the parties shall remain responsible for any payments required to be made under this Agreement.
The Client shall not disclose any material relating to and provided by the Company and/or relating to the Company’s business affairs that might reasonably be understood to be confidential or to have been disclosed in confidence including but not limited to all information, know-how, trade secrets, project files, processes, concepts, ideas, data, business plans, reports and any other written, printed or electronically stored materials, including Intellectual Property of any nature whatsoever unless:
at the time of disclosure to the Company was in the public domain; or
the information is required to be disclosed by law.
The parties agree that the contents of this Agreement shall remain confidential and shall not be disclosed to any other party except where such disclosure is reasonably necessary to give effect to the terms and conditions of this Agreement, or is to the professional advisors of the parties for the purposes of obtaining professional advice, funding, financing or distribution in relation to the Deliverables.
The Company shall obtain and maintain at its own expense public liability insurance in respect of the filming location.
Should the parties agree that the Client shall organise any domestic freight, the Client must secure and maintain appropriate transit insurance for all items being freighted from point of origin until return.
The Company shall not be liable for any failure to deliver the Deliverables or to fulfil its obligations under this Agreement in the event that such failure is caused by or due to unforeseen circumstances including illness or incapacity, acts or regulations of public authorities, labour or industrial disturbance or acts of God, riot, civil disturbance, extreme weather events, strikes, epidemics, pandemic (including Covid-19), interruption or delay of transportation services, or family death provided such events are beyond the reasonable control of the Company.
Notwithstanding any other provision of this Agreement, the Company shall assign all copyright ownership in the Deliverables to the Client, provided that the Client acknowledges that this Agreement does not grant the Client any ownership of any additional and associated materials related to the Deliverables including but not limited to demos, project files, “raw” unedited video footage, unused footage, storyboards, or the Script.
Notwithstanding clause 12.1, the Company shall:
retain all copyright ownership in the Deliverables until such time as the Fee and any additional costs and expenses are paid in full by the Client to the Company;
be permitted to reproduce the Deliverables (including demos, project files, “raw” unedited video footage, unused footage and storyboards) for the non-commercial purposes of advertising and promoting the Company’s production services. Such reproduction may be in any format at the Company’s complete discretion and throughout all media including but not limited to via the Company’s website, Vimeo, social media channels and YouTube channels;
retain and exercise to the fullest extent allowable by law all moral rights granted to the Company pursuant to the Act including any similar rights granted to the Company at any time in the future; and
retain all other Intellectual Property owned by the Company.
The Company warrants to the Client that:
To the best of the Company’s knowledge, the Deliverables are an original work and do not infringe the copyright of any other person, except to the extent of any material (including any musical work and/or sound recordings) included in the Deliverables at the direction or request of the Client or the Client’s agents;
the Company is the sole owner of the Deliverables (except to the extent of any material included in the Deliverables at the direction or request of the Client or the Client’s agents) and is lawfully entitled to enter into this Agreement; and
the Company has not granted any rights in the Deliverables or entered into any agreements that could conflict with or detract from the rights granted pursuant to this Agreement.
The Client warrants to the Company that:
The Client is lawfully entitled to enter into this Agreement; and
The Client has not granted any rights in the Deliverables or entered into any agreements that could conflict with or detract from the rights granted pursuant to this Agreement.
Where material is included in the Deliverables at the direction or request of the Client or the Client’s agents, the Client warrants to the Company as follows:
The Client has obtained all Clearances and other consents necessary for the inclusion of such material (including all musical work and sound recordings) in the Deliverables;
Such material is not defamatory; and
Such material will not breach any third party rights and its use will not constitute a breach of confidence, passing off, unfair competition or misleading or deceptive conduct.
The Client indemnifies the Company against any loss or damage (including legal costs on a solicitor-client basis or expenses reasonably incurred) which arises from any material included in the Deliverables at the instigation or request of the Client, the Client’s agents or any other party associated with the Client.
In the event that any action or claim is brought against the Company in respect of any material included in the Deliverables at the direction or request of the Client, the Client’s agents or any other party associated with the Client, the Company
shall immediately give written notice to the Client of such action or claim; and
shall not compromise or settle any such claim or action without the Client’s prior written consent, such consent not to be unreasonably withheld.
Subject to the provisions contained in this Agreement, any dispute arising out of or in connection with this Agreement shall be resolved as follows:
The parties shall negotiate with each other in good faith for a period of no less than fourteen (14) calendar days to seek to resolve such dispute;
If agreement cannot be reached within thirty (30) calendar days from the date of commencement of such negotiation, the parties agree to have the matter mediated as soon as reasonably practicable by a qualified mediator;
If the matter cannot be resolved before a professional mediator within five (5) calendar days of such mediation taking place, either party may refer the dispute to arbitration.
The parties agree to comply with their obligations under this Agreement while attempting to resolve the matter in dispute.
Any notice under this Agreement shall be in writing and delivered, emailed or sent by registered post to the relevant party at the addresses set out in this Agreement.
Notices shall be deemed to have been received either when personally served, or two (2) days after being sent by mail, or if by email when receipt is acknowledged by the intended recipient.
No amendment, variation or modification to this Agreement will be effective unless it is in writing and signed by duly authorised representatives of both parties.
No failure or delay on the part of either party to exercise any right or remedy under this Agreement will be construed or operate as a waiver of such right or remedy. No single or partial exercise of any right or remedy will preclude the further exercise of such right or remedy.
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement will remain otherwise in full force apart from such provisions, which will be deemed deleted.
Nothing in this Agreement will create, constitute or evidence any partnership, joint venture, agency, trust or employer/employee relationship between the parties, and neither party may make or allow to be made, any representation that any such relationship exists between the parties. Neither party will have the authority to act for, or incur any obligation on behalf of, the other party, expect as expressly provided for in this Agreement.
This Agreement contains the whole of the contract and understanding between the parties relating to the matters covered by it and supersedes all prior representation, agreements, statements and understandings between the parties relating to those matters, whether verbal or in writing.
Each party agrees to execute, acknowledge and deliver such further instruments, make all applications and do all further similar acts, as may be necessary or appropriate to carry out the purpose and intent of this Agreement.
The laws of New Zealand shall govern this Agreement and the parties agree to submit to the exclusive jurisdiction of the New Zealand courts.
Each party shall bear its own costs and expenses in relation to the negotiation, execution, delivery and completion of this Agreement and any other related documentation.
The warranties and indemnities contained in this Agreement are continuing obligations and will survive the termination of this Agreement.
Words and expressions not otherwise defined and which are defined in the Act will have the same meaning given to them in the Act.