Terms and Conditions

Oneshot Productions Terms & Conditions (referred to herein as ‘agency’, ‘we’, us’, ‘our’) is a business registered in Australia with the ABN 28 749 667 015 and is registered at 17 Rowlands Street, Maylands WA, 6051.

The terms and conditions set out below (“Terms”) govern any contract that we enter into with you, the client (referred to as ‘client’,’ you’, ‘your’) in respect of our services and apply whether you view our services or communicate with us via our website, social media or whether you communicate with us by telephone, email or any other form of communication.

We also draw your attention to our Client Privacy and Confidentiality Policy which is incorporated by reference into any contract (defined below) we enter into with you and or any communications we have with you.

Interpretation

Definitions:

Amendments

alterations to Work in Progress which results in the estimated lead time as set out in the Creative Brief or the estimated time communicated by the Agency, to complete that Work in Progress or the level of personnel or cost required to perform the Services, being exceeded.

Applicable Laws

means any present or future law relating to the Services including any code of practice, adjudication, decision, guideline, direction including any modification, revision or replacement thereof from time to time;

Creative Brief

means the creative specification produced by us as our interpretation of your Instruction setting out description and scope of Services required to produce the Deliverables and which is agreed between us prior to commencement of the Services and which may be revised as required from time to time upon our mutual agreement.

Deliverables

means any products or services produced by the Agency based upon your Instruction whether that is carried out by us in a single or multiple phases, which may include, the production of the Creative Brief, mood board or other forms of design concept, the proofs, designs, images, photographs, video footage, animation files, artwork, graphics, models, copy, communications, digital or hard copy, software, footage, features, characters or other deliverables commissioned by you and set out in any Instruction placed by you that are produced by the Agency in accordance with these Terms.

Final Works

means the final versions of Work in Progress produced by the Agency which shall be submitted to the Client for approval.

Hourly Rate

means the hourly rate set out in our Proposal for performing the Services and agreed between us.

Instruction

means any order, instruction, statement or work or brief submitted by you for our Services following acceptance of our Proposal based on the Creative Brief or Specification as the case may be.

Logo Design Services

the design of a logo or set of logos or branding produced by us in accordance with the Creative Brief.

Proposal

means the estimate of costs that we provide to you for the Services we propose to perform to implement your Instruction and produce the Deliverables which may either be based on time and materials or a fully costed project fee;

Services

includes any or all of our Animation Services, Design Services, or Filming Services or any services related to the production of Deliverables, performed in accordance with any Creative Brief agreed between us

Terms

means the terms and conditions that apply to the Services as set out below.

Work in Progress

any single tranche or any element of output generated and/or produced by us during the performance of the Services, whether in a hard copy or digital format of whatever form or medium including any element of any Deliverables

Engagement

These Terms set out how we deliver our services and regulate the contract we enter into with you. Receipt by us of your signed Confirmation Acceptance Form (defined below) indicates acceptance of our Proposal and your agreement to these Terms.

Client Instruction

You can submit a request for our Services by telephone on 0449 021 795, or by email to josh@oneshotproductions.com.au or otherwise via our website enquiries forms. If you are an existing Client or your Instruction is part of a larger project that we are undertaking for you, any Instructions placed with your nominated Agency account manager will be processed in accordance with these Terms unless otherwise agreed in writing between us.

Your Instruction sets out the Services you need from the Agency, any Deliverables you require us to produce and other bespoke or specific requirements that you may have.

Your Instruction should contain a clear description of your requirements, any brief you wish us to consider and any Deliverables you wish us to produce.

Upon consideration of your Instruction, we will send you our Proposal including any recommendations of what is required to produce the Deliverables, which may include our suggested timescales and any project methodologies that we consider may be needed to meet your requirements.

Our Proposal shall only remain valid for a period of 30 Business Days from its date of issue by us. The Proposal does not constitute an offer to provide our Services to you, or that we have entered into any Contract with you.

The Proposal does not constitute an offer to provide our Services to you, or that we have entered into any Contract with you. When you notify us that you accept our Proposal, either by responding to our email containing our Proposal or otherwise requesting the Agency to proceed on the basis of our Proposal this will indicate acceptance.

The Contract between us shall commence with effect from the date of acceptance or by agreed date set out in the proposal.

These Terms apply to the Contract between us to the exclusion of any other terms that you, the Client, or anyone on your behalf, seeks to impose or incorporate, into our agreement with you at any time, or any terms that may be implied by trade, custom, practice or course of dealing.

Performance of Services

The Agency shall supply the Services to you in accordance with the Creative Brief and these Terms in all material respects.

Upon commencement of the Contract the Agency shall prepare the Creative Brief during the Discovery Process.

The Agency shall send the Creative Brief to you, for final approval and signature which will indicate your acceptance of the Creative Brief prepared by us.

Where the nature of the Services are such that we consider it is appropriate to provide you with an estimate of any phases, performance milestones or completion dates for the Services, please note such dates shall be estimates only and time shall not be of the essence for performance of the Services or the completion of Deliverables. Time estimates depend on a number of factors that may change during the course of performing the Services, but we shall do our best to communicate any changes to you as soon as possible where you have notified us in your Instruction of key milestones dates that are important to your business.

The Agency shall have the right to make any changes to the Services which are necessary to comply with any Applicable Laws or safety requirements or which do not materially affect the nature or quality of the Deliverables, but we shall always notify you before implementing any such changes to the Services in any such event. If such changes result in any change to our Proposal this will be added to our Proposal and a revised Proposal sent to you for approval prior to continuing the Services. Certain changes may require the payment of additional Charges for which the Client is responsible and will be included in our revised Proposal.

If you do not agree any revised Proposal sent as a result of changes referred to above, or as a result of changes you require to the Creative Brief you may issue written notice to terminate our Services but please note the Agency is entitled to recoup in full all Charges incurred in respect of Work in Progress carried out up to the date of termination which will be charged on a time and materials basis.

The Agency undertakes to the Client that our Services will be provided using reasonable care and skill.

Intellectual Property Rights and Use

Before using the Deliverables in any way, it is always the Client’s responsibility to ensure that content contained in them does not infringe the Intellectual Property Rights or Trademarks of any third party. The Agency does not conduct such investigations and by entering into a Contract with us you agree that you are solely responsible for the conduct of any necessary investigations and obtaining a licence to use third party Intellectual Property where required, including for all related costs. Neither the Agency, nor anyone acting on our behalf shall be liable for any dispute arising from or in connection with the use or infringement of any Intellectual Property Rights of any third party, in any jurisdiction.

Without prejudice to the above, the Client acknowledges that the Agency cannot and does not advise, nor will the Agency be responsible, for any legal matters arising out of or in connection with your Instruction, any Work in Progress or Deliverables or the protection of copyright or other Intellectual Property Rights. Clients must seek their own legal advice on protecting their Intellectual Property Rights, including copyright in any branding, design, logos or other images or content that may arise as a result of the performance of the Services.

Any samples, drawings, content, images, proofs, video footage, animation files, descriptive matter or advertising issued by the Agency, or contained in any of our catalogues or brochures or detailed on our Website, whether in connection with the Services or any other services provided by the Agency, are © Copyright Oneshot Productions and are issued or published for illustrations purposes only, to enable us to provide a description of our Services. They shall not form part of the Contract or have any contractual force between us.

Subject to clause below, upon payment in full by the Client, ownership and any Work in Progress or Deliverables shall transfer to the Client. Until the Agency has been paid in full for the Services in accordance with clause 11 below, any Work In Progress or Deliverables or any element of the Services shall be owned by the Agency.

You acknowledge that you may not always own the copyright or other Intellectual Property Rights where such rights are owned by third parties and licensed for use to the Agency or generally. For instance, the Client does not own the copyright in ‘stock’ photographs’ or film footage, negatives or fonts (unless otherwise agreed between the Agency and the Client and set out in the Proposal) and your use of any third party Intellectual Property Rights is conditional upon the Agency obtaining a written licence from the relevant licensor to entitle us to license such rights to you or incorporate into any Work In Progress or Deliverables we produce for you. If we need to obtain those third party licenses to fulfil the Creative Brief, you shall be solely responsible for the payment of any licensing fees that any licensor charges to the Agency for use of such content. Where the Client requires us to use specific fonts that have been used in your previous branding or other proprietary material or that of any third party, you need to ensure you obtain the licence to use such fonts and you are solely responsible for payment of any related licensing fees which, in order for us to commence the Services, we advise Clients to obtain in advance of the Instruction.

All Proprietary Materials, remain at all times our exclusive property and nothing in the performance of the Services shall operate to transfer or assign ownership in such Proprietary Materials to the Client at any time.

Changes to Work in Progress

The Client shall be entitled to request that the Agency makes changes to the Creative Brief during the course of the performance of the Services. The first two Amendments are included in the Charges set out in the Contract provided that they are not material or result in a change to the Instruction or its scope, the personnel needed to implement the change and/or result in additional time or cost to the Agency, in which case we may need to amend the Charges set out in the Proposal and we shall agree any updated Charges with you prior to implementing any Amendments. However, where you request more than two rounds of Amendments to Work in Progress, any such additional Amendments will be charged at our usual Hourly Rate. Where Amendments result in an adjustment to Charges and/or timescale for performance of the Services, we shall notify you prior to continuing the Services and the Proposal shall be updated and sent to you for your acceptance in writing.

If you require a third party voiceover you shall be entitled to dial in to the recording session for an additional fee charged by the 3rd party voiceover company.

You accept that any changes to third party voiceovers after the recording session has ended will be charged at the cost set by the 3rd party voiceover company.

The Client shall be entitled to request that the Agency makes changes to the storyboard, script and animation style after they have been Approved by the Client, any such additional Amendments will be charged at our usual Hourly Rate.

Client’s Obligations

The Client shall:

• ensure that the details of the Instruction and any information set out therein are complete and accurate;

• cooperate with the Agency and our personnel in all matters relating to the performance of the Services;

• provide us with such information and materials as we may reasonably require in order to perform the Services and ensure that such information is accurate in all material respects;

• obtain and maintain all necessary licences, permissions and consents which may be required before the date on which we are due to commence performance of the Services;

• where appropriate, keep and maintain any Proprietary Materials in safe custody, in good condition and not dispose of or use the Proprietary Materials other than in accordance with our written instructions or authorisation; and

• comply with any additional obligations or instructions that we may reasonably request from time to time in order to enable us to perform the Services in accordance with your Instruction and the Creative Brief.

If performance of the Services is prevented or delayed by any act or omission by the Client or failure by you to perform any relevant obligation (“Client Default”):

• we shall, without limiting our other rights or remedies have the right to suspend performance of the Services until you remedy the Client Default, and we shall be entitled to rely on the Client Default to relieve us from performance of the Services to the extent performance is prevented or delayed by Client Default;

• we shall not be liable for any costs or losses sustained or incurred by you that arise directly or indirectly from Client Default; and

• you shall reimburse the Agency on written demand for any costs or losses sustained or incurred by the Agency arising directly or indirectly from the Client Default.

Portfolio

You consent that the Agency may display and exhibit the Deliverables, which may or may not include reference to the Client or your business, products or services, to our prospective clients in any Marketing Materials and on our Website or social media for the purpose of the promotion of our Services.

If you do not wish us to publish Client details as set out in clause 9.1 above, you should notify us in writing in advance by setting it out clearly in the Instruction. The Agency shall not be liable for publication in the event that we have not been notified of the Client’s objection to publication

Approval of Final Works

The Agency shall transmit the Final Works to the Client for proofreading, preview or review and for approval, in an Approved File Format..

We may also, at our discretion, watermark the Final Works and require that they be deleted from your system at any point after they have been received by you.

Charges and payment

The Charges for the Services shall be on a time and materials basis unless otherwise agreed with you in advance of commencing the Services.

The Charges for performance of the Services requested in your Instruction are based on our Proposal, which may, if you have requested changes, be updated and revised from time to time;

Any additional request for Services to those set out in the Instruction shall be calculated in accordance with our Hourly Rates as notified to you;

If we provide you with a daily rate this is based on the basis of an seven-hour day from 9.00 am to 5.00 pm worked on Business Days;

We appreciate Clients may have rigorous deadlines or expedited lead times and will try to facilitate you where possible which may require working beyond our standard working hours. We shall be entitled to charge an overtime rate of 20% percent of our Hourly Rate or the Charges set out in our Proposal to you (or such alternative increased rate as we deem appropriate in the circumstances) on a pro-rata basis for each part day or for any time spent by Agency personnel performing Services outside the hours referred to in clause above. Where we identify from your Instruction or following the production of the Creative Brief that working out of hours is necessary we shall set out our overtime rate in our Proposal. Otherwise, where the need arises in the course of performance of any Services, we shall notify you of our overtime rates and agree that with you in advance of performing Services outside our standard working hours.

We shall be entitled to charge you for any expenses reasonably incurred by us, our personnel or any other individual engaged in the performance of the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties for the performance of the Services, together with the cost of any materials

We shall be entitled to increase our Charges and any Proposal previously given in connection with performing the Services providing that we notify you and agree such increases with you in advance. In any event we shall always be entitled to increase our Charges to reflect an increase in costs incurred by the Agency as a result of RPI.

We shall invoice you our Charges for the Services on such dates and/or at such intervals that are set out in the Proposal and agreed in writing with you before commencing the Services. The Agency may require an element of Charges to be paid in advance of commencing performance of Services and we will send you an invoice for these Charges following your acceptance of the Proposal. Before commencing performance of the Services this invoice must be paid in full, by cleared funds to our bank account.

You undertake to pay each invoice relating to performance of Services:

• within 14 days of the date of the invoice; and

• in full and in cleared funds to our client bank account which will be notified to you.

Timely of payment of invoices shall be of the essence of the Contract. The Agency shall be entitled to suspend performance of the Services until outstanding invoices are paid in full. As referred to above, Where payment in advance of commencement is required for Services, the commencement of Services will not commence until the commencement invoice is paid in full and non-payment may lead to cancellation of your Instruction and expiry of the Proposal.

Our Charges are inclusive of value added tax chargeable for the Services which will be set out in addition in our invoice.

If the Client fails to make any payment by the due date referred to above we shall charge interest on any overdue sums at the rate of 2% per cent per annum. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.

The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).

Data Protection

You acknowledge that for the purposes of the Data Protection Laws, the Client is the Data Controller and the Agency is the Data Processor in respect of any Personal Data.

We shall process the Personal Data only in accordance with your instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by you.

Each party warrants to the other that it will process the Personal Data in compliance with all Data Protection Laws.

You shall indemnify the Agency against all costs and expenses, claims, liabilities, proceedings, fines, loss or damage incurred by us as a result of any failure by you, or your employees or agents to comply with any of the obligations set out under this clause.

Termination

Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party one months’ written notice. The Client’s right to terminate under this clause 14.1 is strictly subject to payment in full of all outstanding Charges including accrued interest (if any).

Without prejudice to the provisions above and without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

• the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

• the other party takes any step or action in connection with its entering administration, liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

• the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

• the other party’s financial position deteriorates to such an extent that in the terminating party’s reasonably held opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

Without limiting its other rights or remedies, we may, at our discretion terminate the Contract with immediate effect by giving you written notice if:

• you fail to pay any Charges due under the Contract on the due date for payment and those Charges remained outstanding for more than 14 days after we notify you to make such payment; or

• if we consider in our reasonably held opinion that the Client, its services, products or its business do not conform with our commercial ethos, our business objectives and trading standards.

Consequence of termination

On termination of the Contract for any reason:

• the Client shall immediately make payment to discharge all outstanding unpaid invoices including interest (if any).

• we shall issue an invoice in respect of Charges arising in connection with any Work in Progress completed, which shall be payable by you immediately upon receipt;

• you will immediately return all Proprietary Materials and any Work in Progress or Deliverables which have not been fully paid for (and hence where title has not passed to you) at our request. If you fail to do so, then you agree that we may enter your premises and take possession of them. Until they have been returned, you shall be solely responsible for their safekeeping and will not use them for any purpose unconnected with this Contract;

• the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

• obligations set out in these Terms that expressly or by implication survive termination shall continue in full force and effect.

Force Majeure

Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

Confidentiality

Each party undertakes that it shall not at any time at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted below..

Each party may disclose the other party’s Confidential Information:

• to its employees, officers, representatives, subcontractors or professional advisers on a need to know basis for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this clause 18; and

• as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under the Contract.

Entire agreement

This agreement constitutes the entire agreement between the Agency and the Client and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.

Each of the Agency and the Client agree that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms.

Variation

No variation of the Contract or of these Terms shall be effective unless it is in writing and signed by both parties.

Waiver

A waiver of any right, any breach or entitlement to remedy is only effective if given in writing to the other party and an agreed waiver on one occasion shall not be deemed a waiver of any subsequent right, breach or entitlement to remedy. A delay or failure to exercise, or the single or partial exercise of any right or remedy shall not waive that or any other right or remedy or prevent or restrict the further exercise of that or any other right or remedy.