MadMatt 4wd Trading Terms (As of July 2018)
In these terms and conditions, unless the context otherwise requires:
Consumer means any individual who acquires MADMATT 4WD’s services wholly or predominantly for personal, domestic or commercial use.
Customer means any person or entity requesting MADMATT 4WD to provide Services.
MADMATT 4WD means (Eco Digital Solutions PTY LTD Trading as MADMATT 4WD, ABN 157872056)
Agreed Fee means the fees estimated by MADMATT 4WD in any quotation once accepted by the Customer.
Materials means any goods, chattels, items or things, including but not limited to any photographs, documents (whether digital or hard copy), tapes, videos, films, footage, props and equipment provided by the Customer to MADMATT 4WD for the purposes of MADMATT 4WD supplying the Services.
Raw Footage means master footage recorded by MADMATT 4WD as part of provision of the Services.
Services means video production and/or post production services and/or talent services.
These Trading Terms apply to and are incorporated into all contracts, agreements, arrangements, transactions and dealings entered into by MADMATT 4WD with any Customer in relation to the provision of Services by MADMATT 4WD.
All work carried out by MADMATT 4WD is on the basis that the Customer has agreed to these Trading Terms. These trading terms are considered activated when a verbal or written agreement is accepted or the Customer makes a deposit.
If the Customer is a Consumer:
These conditions do not affect any rights the Customer has under Schedule 2 of the Competition and Consumer Act 2010 (Cth); and These conditions do not affect the laws in force in the place in which the contract is made prior to the contract.
Quotations are calculated by estimating how long it will take to provide the Services under typical circumstances and are based on an hourly rate. One round of minor Customer changes and/or revisions is included in each quotation.
If the Customer instructs MADMATT 4WD that significant changes and/or revisions to the scope of the Services described in a quotation are required then MADMATT 4WD shall be entitled to charge an additional Agreed Fee based on a further quotation.
If the Customer has engaged MADMATT 4WD to provide Services on a specified date, the Customer may notify MADMATT 4WD in writing (during normal business hours) that the Customer does not require the Services to be provided on that date (“the cancellation”).
If notification of the cancellation is provided outside of normal business hours, it is deemed to have been provided at the commencement of the following business day.
If the cancellation is made more than 48 hours prior to the day on which MADMATT 4WD has been engaged to provide the Services, the Customer must reimburse MADMATT 4WD for any expenses incurred by MADMATT 4WD in preparation for provision of the Services.
If the cancellation is made between 48 and 24 hours prior to the day on which MADMATT 4WD has been engaged to provide the Services, the Customer must pay 50% of the Agreed Fee.
If the cancellation is made within 24 hours of the time at which MADMATT 4WD has been engaged to provide the Services, the Customer must pay the Agreed Fee in full and paid within the Trading Terms of invoice.
If the cancellation is made while MADMATT 4WD is providing Services to the Customer, the Customer must pay the Agreed Fee in full and paid within the Trading Terms of invoice.
The Customer will pay to MADMATT 4WD the Agreed Fee in the following manner:
Agreed fees of less than $10,000 plus GST:-
50% of the Agreed Fee will be payable prior to the commencement of the Services (“the Deposit”); and – MADMATT 4WD will not commence any pre-production activities or commence Services until the Customer has paid the Deposit.
The balance will be payable within 7 days of the date of any interim or final invoices submitted in respect of the Services.
Agreed fees of greater than $10,001 plus GST:-
30% of the Agreed Fee will be payable 7 days prior to the commencement of the Services (“the Deposit”); and – MADMATT 4WD will not commence any pre-production activities or commence Services until the Customer has paid the Deposit.
40% Part Payment of the Agreed Fee will be payable prior to the commencement of editing.
Both the Deposit and Part Payment require payment within 7 days.
The balance will be payable within 7 days of final invoices submitted in respect of the Services;
and MADMATT 4WD will not commence any pre-production activities or services until the Customer has paid the Deposit nor will commence editing until the Part Payment is received.
If any MADMATT 4WD invoice or part thereof is not paid within 7 days of the date of the invoice, then the Customer agrees that interest will accrue on the outstanding amount at the rate specified pursuant to Section 2 of the Penalty Interest Rates Act 1983 (NSW), calculated for the period the account is due until the date it is paid. In the event where the overdue account is referred to a collection agency and/or law firm, you will be liable for all costs which would be incurred as if the debt is collected in full, including legal demand costs.
Variations (additional quotation applies)
MADMATT 4WD will provide the Customer with one (1) ‘draft copy’ of an initial edited video file. The Customer must notify MADMATT 4WD of all proposed changes within seven (7) days of receipt of the draft copy by the Customer or earlier if the final deadline is before that.
Once the proposed changes have been made, MADMATT 4WD will provide the Customer with a ‘final draft copy’ that is to be used solely for the purpose of verifying that the proposed changes have been correctly implemented. No new changes may be requested unless the Customer purchases another variation quote.
The Customer must notify MADMATT 4WD of any errors in the final draft copy within seven (7) days.
Once the seven (7) day review period for both the ‘draft copy’ and ‘final draft copy’ has elapsed, MADMATT 4WD may refuse to make any further changes.
The Customer acknowledges that some changes may not be possible.
If the Customer is requesting changes to be made that require a re-shoot the customer is required to purchase a variation costing to achieve the desired changes.
Venue Location Fees & Permissions
The Customer must obtain any necessary consent or permission and pay any fees which may apply for MADMATT 4WD to film at a particular venue, location or event.
Brief for Service provided
A Brief from the Customer for Services being contracted is required at least seven (7) days prior to the first day of Services being provided. IF a brief is not provided by this time the cancellation of serviced can be enforced by MADMATT 4WD and all expense paid for by MADMATT 4WD to that point must be paid for in full by the Customer.
The Customer acknowledges and agrees that editing an event and the production of finished works may include elements of artistic expression and interpretation. MADMATT 4WD reserves the right to use ‘Artistic Licence’ in any commissioned works that require editing or the production of finished works. The re-editing of commissioned works is offered as an optional extra by prior arrangement. A quotation for re-editing will be provided by MADMATT 4WD on request.
All Materials are used and stored by MADMATT 4WD solely at the Customer’s risk and MADMATT 4WD is under no obligation to insure any Materials.
Neither MADMATT 4WD nor any of its officers, employees, agents or sub- contractors will be liable for any loss, destruction or damage (“Loss”) of the Materials other than loss caused by their negligence but any liability for such loss will be limited to replacement of the Materials; MADMATT 4WD will not be liable in respect of any Loss of the Materials arising out of the action of any person not employed or engaged by or associated with MADMATT 4WD even though such person is present during and involved with the performance of the Services; and The Customer must retain a master copy of each and every recording delivered to MADMATT 4WD for the purposes of the Contract.
The Customer acknowledges and agrees that:
MADMATT 4WD will have a lien on Materials provided by the Customer; and – No title (including any copyright) in the Services manufactured, produced, duplicated or otherwise provided by MADMATT 4WD will be transferred to the Customer or used by the customer until the Customer pays all amounts due to MADMATT 4WD in full.
The Customer acknowledges and agrees that upon payment of all outstanding invoices due to MADMATT 4WD, the Customer is entitled to receive the finished works, but has no entitlement to the working files of MADMATT 4WD. The Customer acknowledges and agrees that the content, views and opinions expressed in the finished works produced for the Customer by MADMATT 4WD are solely those of the Customer. The finished works are intended to represent the opinion of the Customer and in no way reflect the views and opinions of MADMATT 4WD, its employees and subcontractors.
Customer Undertakings and Warranties
The Customer must obtain all necessary permissions and authorities in respect of the use of the Materials which are to be included in the Customer video.
The Customer indemnifies and holds MADMATT 4WD harmless from any claims or legal actions related to the content of the Customer’s video.
The Customer hereby indemnifies and holds harmless MADMATT 4WD against all loss, damage, costs or expenses suffered or incurred by MADMATT 4WD as a result of any breach of the customer’s failure to obtain all necessary permissions and authorities in respect of the use of the Materials which are to be included in the Customer video or Services provided.
Project Delays and Client Liability
Any estimate of the date by which MADMATT 4WD will complete any part of the Services is contingent upon the Customer providing complete instructions to MADMATT 4WD and fully cooperating with MADMATT 4WD until MADMATT 4WD has ceased providing Services to the Customer.
The Customer must appoint a person who has complete authority to provide instructions to MADMATT 4WD and respond to requests for feedback until MADMATT 4WD has ceased providing Services to the Customer.
The person appointed must be available to respond to communications from MADMATT 4WD on every day, which is a business day in NSW or the state or country, which the Services are being provided.
MADMATT 4WD reserves the right to sub-contract any Services that MADMATT 4WD has agreed to perform for the Customer as it sees fit.
The Raw Footage, video files, audio files and edited video files including all copyright remain the property of MADMATT 4WD. The customer may use the completed work paid for but is not permitted to re-edit or alter the end product provided by MADMATT 4WD in any way or use in another project of video not produced by MADMATT 4WD.
Where Services remain unpaid or in the event that a final agreed payment is not made, MADMATT 4WD reserves the right to withhold all recordings and finished works and use all or portions of the recordings and finished works for display, promotional or commercial purposes.
Copyright in all video, images, audio, lyrics or musical composition included or recorded in the edited video or recorded by equipment used by MADMATT 4WD will remain the property of MADMATT 4WD.
Special Provisions for Ownership
MADMATT 4WD reserves the right to retain ownership of any recorded material
of an anomalous nature once discovered in post production. The copyright of such recordings will belong to MADMATT 4WD.
MADMATT 4WD has the right to use edited or unedited video files produced pursuant to these Trading Terms for promotional or commercial purposes, unless an alternative arrangement is made between MADMATT 4WD and the Customer. The copyright of such segments will belong exclusively to MADMATT 4WD.
Raw Footage, video files, audio files and edited video files will be retained for up to twelve (12) months only and will then be disposed of, deleted or erased. If at the end of twelve (12) months Services have not been paid for, MADMATT 4WD reserves the right to dispose of all Raw Footage, video files, audio files, edited video files, recorded materials and finished works.
Failure of Equipment or illness of MADMATT 4WD employees and contractors.
Whilst all reasonable care and preparation is taken for videography and editing, MADMATT 4WD will not be liable for any compensation except for return of any deposit or part payments paid, should a failure occur in all or any of the electronic equipment used or due to illness of the operators or person(s) employed or engaged by MADMATT 4WD or because of an unforeseen event or any dispute regarding the ownership of recorded materials.
Right of Refusal or Termination
MADMATT 4WD reserves the right to terminate the provision of Services, if:
the videographer, or any person(s) employed or contracted by MADMATT 4WD is placed in a position where there is an actual or apparent risk of injury; or there is a risk that any of the equipment used may be damaged.
If MADMATT 4WD terminates the provision of Services because of the previous paragraph in this section of the trading terms then any Deposit or Part Payments paid by the Customer are non-refundable.
Should any of the circumstances outlined in in this section of the trading terms occur, MADMATT 4WD may seek compensation from the Customer for any loss or damage suffered.
Limitation of Liability
The parties acknowledge that, under applicable State and Commonwealth law, certain clauses, conditions, guarantees and warranties may be implied in these Trading Terms and there are rights and remedies conferred on the Customer in relation to the provision of goods or of services which cannot be excluded, restricted or modified by agreement (“Non-excludable Rights”). Except to the extent of Non-excludable Rights, MADMATT 4WD will not be liable for:
Any claim by the Customer or any person, including without limitation any claim relating to or arising from all clauses, conditions, guarantees and warranties express or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom, usage or otherwise; and Any representations, warranties, conditions or agreement made by any agent or representative which are not expressly confirmed by MADMATT 4WD in writing, and the liability of MADMATT 4WD for any such matters is hereby excluded. Where (and to the extent) permitted by law the liability of MADMATT 4WD for a breach of a Non-excludable Right can be limited, MADMATT 4WD’s liability is limited, at MADMATT 4WD’s option, to one of the following:
The supply of the service again; or
Payment for the cost of having the services supplied again. Notwithstanding any other provision, MADMATT 4WD is in no circumstance (whatever the cause) liable in contract, tort (including without limitation negligence or breach of statutory duty) or otherwise to compensate the Customer for:
Any increased costs or expenses;
Any loss of profit, revenue, business, contracts or anticipated savings;
Any loss or expense resulting from a claim by a third party; or
Any special, indirect or consequential injury, loss, damage or expense whatsoever and howsoever arising.
If MADMATT 4WD cannot carry out an obligation under the Contract either in whole or in part because of anything outside its reasonable control, including without limitation, re: flood, storm, earthquake, explosion, accident, road or rail closures, rail derailment, wharf delays, war, terrorism, sabotage, epidemic, quarantine restriction, labour dispute or shortage, act or omission of any third person or public authority, then MADMATT 4WD’s obligations under the Contract will be suspended for the duration of the event or waived to the extent applicable.
The Customer will be liable for any legal costs incurred by MADMATT 4WD in the recovery of unpaid invoices on an indemnity basis.
All information received by MADMATT 4WD from the Customer, written or otherwise, will be kept confidential. Any private information will not be divulged or distributed to any third party without the Customer’s consent.
Other Matters which Affect the Contract
The laws of NSW apply to the Contract and the Customer must bring any proceedings against MADMATT 4WD in a NSW Court.
If a condition or part of a condition is unenforceable, it must be severed from the Contract and does not make the rest of the Contract unenforceable. MADMATT 4WD is not bound by any waiver, discharge or release of a condition or any agreement, which changes the Contract unless it is in writing, and signed by or for MADMATT 4WD.
MADMATT 4WD reserves the right to amend these Trading Terms at any time. Amendments will be effective after the Customer has been given 7 days written notice.