1.  Nature of Agreement

These terms and conditions  form part of the  agreement  ("the Agreement") between   Film Construction Group Limited (the “Producer”) and the signatory  (“you / the Client”). Under this Agreement the Producer will produce and deliver to you the agreed commercial, advertisement, content or other production as set out in the Schedule attached (“the Production) pursuant to these Terms and Conditions..

 

You are deemed to have accepted these Terms and Conditions if you continue to deal with the Producer after receiving them.

 

2.  Estimated Budget

Unless expressly agreed to the contrary in writing, all Productions are made on a 'fixed cost plus' basis ("the Production Fee"). Cost breakdowns and budgets are estimates and not quotations. They are supplied to illustrate assumptions by which the agreed total is calculated. The Producer does not warrant or represent that particular costs will be incurred or that costs will be incurred at particular levels. A failure by the Producer to incur a particular cost does not prevent the Producer from allowing for that cost when charging the Production Fee . The Producer is entitled to adjust and reallocate the costs which make up the Production Fee.  

 

You acknowledge and agree that the Producer is entitled to charge extra production costs if you change specifications or requirements for the Production. The changes will be confirmed with you prior to any further costs being incurred. These will be charged at 'cost plus Production Fee'.

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3.  Amendment Requests

If the Client (or authorised third party) asks for the Production schedule, budget or scope of work to be altered, the parties will use their best endeavours to agree new dates and relevant deliverables, and the Client will be responsible for any reasonable and unavoidable increases in the agreed  Production Fee arising as a result.

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4.  Payment

You agree to pay the Producer the Production Fee percentage (as set out in the attached Schedule) no later than five clear working days before the first date scheduled for commencement of work.

 

The balance of the Production Fee is payable in proportions, and by deadlines, determined within the estimated budget and as set out in the Schedule. Unless another payment plan is agreed in writing, payment of the balance of the Production Fee (and any agreed additional costs)  must be made on the due date, otherwise interest will be charged and calculated on a daily basis.

 

5.  Cancellation and Postponement

Cancellation:

If you cancel a Production in circumstances where the Producer has committed no material breach of the agreement, you must:

 

a) In all cases reimburse the Producer for any direct costs (including without limitation fees of all directors and producers) incurred prior to cancellation ("the Direct Costs"); and

b) Pay the Producer all, or a proportion of the production mark-up (as agreed and specified by the Producer in advance in writing ("the Production Mark-up"). The proportion of Production Mark-up payable depends on the following notice periods and the type of Production, but is always additional to the Direct Costs.

 

i. If you give 15 or more days' notice of cancellation of a Production you agree to  pay 25% of the Production Mark up.

ii. If you give less than 15 days' notice,  but more than 10 days' notice of cancellation of a Production, you must pay 50% of Production Mark-up.

iii. If you give 10 days or less notice of cancellation of a Production you must pay 100% of the Production Mark-up.

 

Postponement

c) In all cases of postponement of a Production, the Client agrees to  use its best endeavours 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 equivalent payments made under  clause (b) above ("the Postponement Fees"), and the financial impact of the postponement on the parties. More than 30 days of postponement would be deemed a cancellation.

 

6. Approvals

The Producer shall submit the approval materials as soon as possible and the Client shall approve or detail required amendments as soon as possible having regarding to the Producer’s production schedule, time being of the essence. In the event the Client does not notify the Producer in writing of such approval, disapproval or amendment, the Client shall be deemed to have given its approval and the Producer shall be entitled to continue production of the Production on that basis.

 

7. Attendance of Client Representative

The Client shall provide an Authorised Representative who will attend either the shooting, recording, post production (in person or remote viewing) of the Production at agreed times for consultation and approvals as may be necessary.

 

If the Client Authorised Representative is unable to attend the shoot at any stage the decision of the Producer in all such matters will be determinative and final.

 

8. Legal and Technical Requirements

The Client shall be responsible for ensuring that all materials and directions and Production requirements comply with any legal or regulatory requirements relating to content and broadcast and/or use.

 

9. Safekeeping of Negative/Digital Assets

The Producer shall be responsible for the safekeeping of any negative, videotape, digital assets during the production up to the point at which the materials are delivered to the client.

 

The Producer will return all Production rushes back to the Client at the completion and delivery of the Production upon payment in full to the Producer of the Production Fee and any additional agreed costs. Once these drives are returned the Producer holds no responsibility for storing/keeping or maintaining any of the Client’s work.

 

10. Clearances

The Client must arrange for the provision of the services of all actors and other talent who are to appear in the Production unless otherwise agreed upon in advance. The Client must obtain all necessary licenses, releases and clearances in respect of the Production, Its content and Its broadcast, including without limitation, all music licences, talent, location and any other required chain of documentation.

 

11. Permits and Visas

Unless otherwise agreed in writing, the Producer shall be responsible for obtaining all relevant permits, licences or other official authorisations relation to the Production.

 

The Producer will not be responsible for delays, difficulties or inability to obtain visas or work permits for talent and/or personnel engaged by the Client.

 

12. Copyright, Title and Usage

Subject to full and final payment and receipt of the Production Fee and all other agreed fees and costs, the Producer absolutely and unconditionally assigns and transfers all Producer’s entire right, title and interest to the copyright in all Production and other copyright subject matter created in the course of producing the Production, together with all such chattels created to you.

 

The parties agree that the Producer intends to and does hereby assign, transfer and convey to the Client all rights in the copyright and other copyright subject matter created in the course of producing the Production once full payment of the Production fee and any additional fees and costs has been received by the Producer.

 

Notwithstanding the transfer of sole and absolute rights in all the Production copyright, you accept and agree that you are only entitled to use the Production in the media and in the territory agreed before production commenced as set out in the Schedule attached ("the Permitted Uses"). Without limiting the Producer's rights, if you use the Production otherwise than for the Permitted Uses , you accept and agree that you must pay such further amount as an adjusted Production Fee to the Producer as compensation that the Producer may reasonably charge for the extended use circumstances.

 

Where the Producer expressly commissions any material from a third party for use in the Production or uses any existing material which has been created by  the Producer or such third party for the Production, the Produce undertakes to obtain either an assignment to the Client of such copyright as may exist. If an assignment is not feasible or cannot be negotiated on reasonable terms, a licence on terms to be approved by the Client and at the cost of the client to use the material in the Production.

 

The Producer undertakes, wherever possible and practicable, to procure and pass on to the Client moral rights consents and 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 Production or any part thereof by the Producer.

 

The Client and the Producer will ensure, wherever possible and practicable, the appropriate permissions are obtained in respect of any copyright, or trademarked material supplied by the Client or the Producer for the inclusion in the Production. The party supplying the material being responsible for is clearance.

 

You acknowledge and accept the Producer is entitled to:  

(a) enter the Production in competitions and industry awards, 

(b) promote the Producer, its contractors and employees and its business and other and 

(c) use the Production for  in-house non-commercial use, and for the purposes of the above exclusive uses, you grant Producer a royalty free license to exhibit the Production accordingly.

 

13. Warranties and Indemnity 

Each party warrants that is free to enter into this Agreement and that it has not and will not make any grant or assignment which might interfere with the rights of the other as granted pursuant to this Agreement.

 

Should a party incur any loss or liability, costs (including external legal costs) or damages ("Damage") as a result of the other party breaching this Agreement the offending party shall indemnify the non-offending party in relation to such Damage

 

Each party shall with reasonable promptness advise the other of any claim, demand or suit pertaining to the Production and that party shall fully co-operate in the defence thereof.

 

14. Insurance 

Each party warrants that it has and shall maintain any and all insurance, (including but not limited to Public liability Insurance) as is prudent  and customary insurance cover for Its respective business and activities. Each party shall , upon request, name the other as a party on its insurance policies and/or  shall provide to the other,  evidence that such insurances are in effect.

 

Each party confirms it will not settle, without the other's prior written approval (not to be unreasonably withheld or delayed), any Insurance claim that may affect the rights of the other party pursuant to this Agreement.

 

It is accepted by both parties  that no insurance policy will cover any costs arising as a result of amendments, changes, delays or cancellation   due to a pandemic.

 

15. Contingency, Weather, Force Majeure

The Producer agrees that if a production is suspended, frustrated or delayed by bad weather conditions, a contingency beyond the control of the Producer, or by some other force majeure event which would include, but are not limited to, storms, tempests, earthquakes, wars, floods, injury, illness (including but not limited to health emergencies, epidemics and/or pandemics)  which results In the  non-appearance of key talent, delay or failure of delivery of goods or services to be supplied by the Producer (whether on-camera product, vehicles or otherwise) it must, in such circumstances, and in addition to all other agreed or stipulated payments, pay the Producer the Postponement Fees  or such other compensation as agreed in good faith between the parties having regard to the costs incurred by the Producer and loss of income. 

 

16. Pandemic

It is possible that the parties will need to relocate, postpone or cancel the Production if a competent  authority, including but not limited to  the World Health Organisation or Government , advises or mandates  against all travel or requires 'lockdown' arrangements that prevent the Producer (and Its personnel and equipment) from travelling to the relevant location/s for the Production.

 

1. In the event of a postponement or relocation of a Production, the Producer shall be entitled to recover from the Client, after providing substantiating documentation, such unavoidable, additional costs incurred by the Producer which are directly attributable to such relocation or postponement, to the extent that the Producer was unable to avoid and has used its best endeavours to otherwise mitigate such costs. 

2. In the event of a cancellation of the Production, the Producer shall be entitled to recover from the Client, after providing all film deliverables (if any) and its invoice supported by substantiating documentation (in accordance with the Production Fee), an amount in respect of work performed by the Producer up to the date of the notice of cancellation and not yet paid, together with all budgeted, committed, third party, out-of-pocket expenses relating to the Production (including, but not limited to,  Director Costs  contracted  incurred and/or paid costs  prior to the termination (and not previously reimbursed) including the Production Fee payable to the Producer in accordance with  Clause 4, provided that the Producer  has used its best endeavours to otherwise mitigate such costs. 

 

17. Termination

a) The Client may terminate this Agreement by fifteen (15) days written notice to the Producer if the Producer commits any material breach of this Agreement, and fails to remedy such  breach within 14 days of receiving written notice identifying the breach.  

 

b) Notwithstanding anything else in this Agreement, this Agreement may be terminated by either party, without prejudice to any of their other rights or remedies, by notice in writing to the other  party. if the other party has a receiver or manager appointed over its undertaking or assets or shall commit any act of bankruptcy or enters into any assignment, composition or arrangement with its credits.

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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 any material to complete the Production and/or to transmit the Production/s subject to the Producer receiving payment for any fees and/or Direct Costs legitimately incurred or spent by it towards the Production in accordance with the budget and the payment Terms. 

 

18. Confidentiality

The parties acknowledge that all matters relating to this Agreement (including its Terms and Conditions) are commercially sensitive and that all information generated or required by virtue of this Agreement or received by any party to It from the other shall be held and kept confidential and shall ensure that its employees, agents or contractors shall be bound by such confidentiality.

 

Such Information shall not be disclosed except:

(I) with the prior written consent of the other party

(Ii) for the purposes of obtaining professional advice

(iii) as required by law.

 

19. Disputes Procedure

The parties agree that in the event of either party to this Agreement having a claim, complaint or grievance against the other party, the claimant shall comply to New Zealand Film Guilds guidelines for dispute resolution.

 

20. No Agency

Nothing in this Agreement shall create or constitute a partnership or an agency  between the parties for any purpose whatsoever. Neither party has the authority or power whatsoever to bind the other, or to hold itself out as having the authority to act as agent or in any way bind or commit the other to any obligation.

 

21. Entire Agreement

This Agreement supersedes all previous agreements, representations or promises and contains the entire agreement between the parties and cannot be amended except in writing signed by both parties.

 

22. Jurisdiction

Any action, demand, claim suit or otherwise arising out of or in connection with this Agreement shall be governed by the laws of New Zealand or Australia.

 

23. No Waiver

Failure of any party to exercise or enforce its rights under this Agreement shall not constitute a waiver of those rights unless agreed in writing between the parties.

 

24. Enforceability

If one or more of the provisions of this Agreement are found to be 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.