Terms & Conditions
1. Delivery and Payment
a) In consideration for Marver services under this Agreement, the Company agrees to pay the Marver the Agreed Quote in accordance with the Payment Terms.
b) Marver agrees that it will perform the Responsibilities and produce the Materials and the Commercial/s in accordance with best practice industry standards, given the client upholds requirements within means to complete tasks assigned that is needed to complete each
a) Marver shall submit the services as soon as possible and the Company shall approve or detail their required amendments to the services as soon as possible having regard for the need of the Marver to proceed to prepare the Materials in accordance with the Delivery Dates proposed or to change the item in advance of the shoot.
b) Both parties acknowledge and agree that time shall be of the essence in relation to the submission and approval of the assets, and that they shall employ their best efforts to perform their obligations in relation to the assets.
c) Marver representatives should be available to approve assets as per an agreed schedule.
3. Attendance of Company Representative on Shoot
a) The Company shall provide the Company Authorised Representative, who will attend the shooting and/or recording and/or post-production of the Commercial/s at agreed times for consultation and approvals as may be necessary relating to the content of the Commercial/s.
b) If the Company Authorised Representative is unable to attend the shoot at any stage the decision of Marver in all such matters will be determinative and final.
c) Marver will not be responsible for delays in regards to difficulties or inability to obtain assets needed from the Company.
4. Safekeeping of Negative/Videotape/Digital Assets
a) Marver shall be responsible for the safekeeping of any negative, videotape, digital assets during production of the Commercial/s and during their laboratory processing and at all other times up to the point at which the Materials are delivered to Marver.
b) Marver shall not be responsible for the security of the Materials or any other items in any other circumstances.
c) The Company is responsible for insuring the negative, videotape/digital assets and any other Materials (including that which remains in the possession of the Production Company) after the final Delivery Date or the Completion Date (whichever date occurs first).
5. Legal and Technical Requirements
a) The Company shall be responsible for ensuring that the Commercial/s and the Materials comply with any legal or regulatory requirements relating to content and post- production.
b) Marver shall ensure the Materials comply with the technical requirements and standards in force in Australia at the date of signing of the Agreement.
6. Permits and Visas
a) Unless otherwise agreed in writing, Marver shall be responsible for obtaining all relevant permits, licences or other official authorisations relating to the shoot, including any necessary visas or work permits in respect of personnel engaged by Marver (but excluding any talent or personnel engaged by the Company).
b) Marver will not be responsible for delays, difficulties or inability to obtain visas or work permits for talent or personnel engaged by the Company.
7. Copyright and Other Rights
a) Ownership of the Materials and all related property produced under this Agreement shall remain vested in the Marver until it has received payment of the entire Agreed Quote.
b) Upon receipt by Marver of the total Agreed Quote and any extra charges incurred as a result of an agreed revision to the Responsibilities, the Production Company shall assign to the Company all of its copyright in the Materials and the Commercial/s for use as agreed.
c) Where Marver expressly commissions any material from a third party for use in the Commercial/s or uses any existing material which has been created by Marver or such third party for the Commercial/s, Marver undertakes to obtain either an assignment to the Company of such copyright as may exist in such materials or, if an assignment is not feasible, or cannot be negotiated on reasonable terms, a licence on terms to be approved by the Company, and at the cost of the Company, to use the materials in the Commercial/s.
d) Marver undertakes, wherever possible and practicable, to procure and pass on to the Company moral rights consents or waivers in a form to be approved by the Company, from the director and all other persons materially engaged in the creation or production of the Commercial/s or any part thereof by the Production Company.
e) The Company and Marver will ensure, wherever possible and practicable, that appropriate permissions are obtained in respect of any copyright or trademarked material supplied by the Company or Marver, as the case may be, for inclusion in the Commercial/s. The party supplying such material being responsible for its clearance. . f) Where Marver agrees to be responsible for the engagement of actors, other performers or models, Marver undertakes to obtain where possible, all necessary consents from such parties on terms to be approved by the Company.
8. Amendment Requests
If the Company (including where such request occurs for or on behalf of any third party) asks for the production schedule, Budget or scope of work to be altered:
a) the parties will use their best endeavours to agree new dates and relevant deliverables, and the Company will be responsible for any reasonable and unavoidable increases in the Agreed Quote or costs arising as a result;
b) if any of the additional costs cannot be agreed, the dispute resolution procedure detailed under Clause 15 shall apply;
c) any amounts which are not in dispute shall be paid in full by the Company in accordance with the Payment Dates detailed under this Agreement.
9. Cancellation & Postponement by Company
a) If the Company cancels or postpones production of the Commercial/s in circumstances where the Production Company has committed no material breach of the agreement, the Company must in all cases reimburse Marver for all direct costs and the total Creative Fee plus the proportions of the Production Fee as provided in clause 9(b) below.
b) For the avoidance of doubt, the proportion of the Production Fee payable under this clause depends on the notice period and the type of production but is always additional to the direct costs so that where:
the Company gives Marver 15 or more business days’ notice of cancellation or postponement of a production, the Company must pay 25% of the Production Fee;
the Company gives Marver less than 15 but more than 10 business days’ notice of cancellation or postponement of a production the Company must pay 50% of the Production Fee;
the Company gives Marver 10 or less business days’ notice of cancellation or postponement of a production the Company must pay 100% of the Production Fee;
For the purposes of this clause, ‘business day’ means any day Monday to Friday, excluding public holidays.
c) Notwithstanding the above, in all cases of postponement of a production the Company will 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 payments made under this clause, and the financial impact of the postponement on the parties.
10. Contingency & Weather Days & Force Majeure:
The Company agrees that if a production is suspended, frustrated or delayed by bad weather conditions, a contingency beyond the control of Marver, or by some other force majeure event which would include, but are not limited to, storms, tempests, earthquakes, wars, floods, injury, illness or non-appearance of key talent, delay or failure of delivery of goods or services to be supplied by the Company, whether on-camera product, vehicles or otherwise it must, in such circumstances, and in addition to all other agreed or stipulated payments, pay the Production Company the costs and fees specified by Producer in advance or supplied to the Company on request.
a) The Company may terminate this Agreement by fourteen (14) days written notice to Marver if Marver commits any material breach of this Agreement, and fails to remedy that breach within 14 days of receiving written notice identifying the breach.
b) Either party may terminate this Agreement forthwith by written notice to the other if that other party (being a company) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect or (being a partnership or other unincorporated association) is dissolved or (being a natural person) dies, or if either party becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors or has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets or ceases or threatens to cease to carry on business.
c) In the event of termination by the Company under this clause the Company 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 the Materials to complete the production and/or to transmit the Commercial/s subject to Marver receiving payment for any fees and/or direct costs legitimately incurred or spent by it towards production of the Commercial/s in accordance with the Budget and the Payment Terms.
a) Should a party incur any loss or liability, costs (including external legal costs) or damages as a result of the other party breaching this Agreement the offending party shall indemnify the non-offending party in relation to such damage.
b) Each party’s liability under this clause shall be limited to the Production Fee (together with the cost of any extra work required by the Company and carried out by Marver) paid under this agreement and no party shall have any liability for consequential loss, airtime costs, loss of business profits or other pecuniary losses.
Each party agrees to insure itself effectively, and to provide on request evidence that such insurances are in effect, for all actions, claims, losses and demands which may arise out of or in respect of the performance, non-performance or breach by a party of its obligations under this Agreement as agreed between the parties including, but not limited to:
a) the non-appearance or inability to complete the scheduled performance of any artist or key personnel;
b) the non-appearance, inadequacy or unusability of any materials or production facilities provided by a party to the other;
c) loss of or damage to any property as a result of the actions, recklessness or negligence of a party or its representatives;
d) the death or bodily injury to artists and other persons caused by or arising out of the negligence or recklessness of a party or their representatives;
e) risks to the Materials, Commercials or other related material whilst being worked on or transported by third parties;
f) any responsibility a party may have for providing Employer’s Liability insurance, Worker’s Compensation insurance or superannuation to its personnel; and
g) the loss sustained due to the interruption, postponement, cancellation or abandonment of the production which arises out of any matter for which the party is responsible.
14. Entire Agreement
This Agreement is the entire agreement between the parties relating to the subject matter of this Agreement and supersedes all previous communications, agreements and other arrangements (other than those expressly attached to or incorporated into this Agreement by reference). No variation or assignment of this Agreement shall be effective unless it is in writing and signed by both parties.
15. Disputes Procedure
The parties agree that:-
a) For the purposes of this Agreement, ‘CPCDP shall mean the Commercial Producers Council Dispute Policy’; and
b) in the event of either party to this Agreement having a claim, complaint or grievance (the ‘complaint’) against the other party, the claimant shall comply with the CPCDP in force at the time of dispute before taking any other action, the provisions of which the parties hereby agree to submit and comply; and
c) if the parties agree to mediation:-
i. the mediation shall be administered by mediators recommended in accordance with the CPCDP
ii. the mediator shall be a person nominated from their register of CPCDP accredited mediators; and
iii. the parties and their representatives shall comply with all procedures and time limits identified by the CPCDP or the mediator.
16. Confidential Information
a) The parties acknowledge a duty to not during or after the termination or completion of this Agreement to disclose without the other’s prior written permission any confidential information either concerning the other’s business, or that of the advertiser, its business plans, customers or associated companies or any other relevant information about the Commercial/s disclosed as a result of this Agreement.
b) In particular during and after the production Marver acknowledges its responsibility to treat in confidence all the marketing and sales information and statistics relating to the advertiser’s business.
c) Both parties shall impose obligations in terms equivalent to those above on its own personnel. For purposes of clarification all information involved in the production of the Materials is of a confidential nature and may only be discussed outside of the production/standard production procedures with the express written permission of the Company Authorised Representative.
17. Late Payments
The Company acknowledges that any payment of the Agreed Quote later than the times required under the Payment Terms shall attract possible late payment fees.
18. No Waiver
Failure of any party to exercise or enforce its rights under this Agreement shall not constitute a waiver of those rights unless expressly agreed in writing between the parties.
If one or more of the provisions of this Agreement are found to 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.