Waiting 2B Scene: Waiting 2B Scene (herein W2BS) refers to the freelance sole trading business Waiting 2B Scene (ABN: 73 376 048 058) specified in the Client Contract,.
Digital Assets: All Digital Assets including but not limited to video or photographic content captured at W2BS film shoots, all graphics, animation, illustrations, concept art, including source files, storyboarding, draft and final outputs including video, static graphics or animations, any creative concepts and scripts.
Job: A Job is one or more tasks that need to be completed on the Video/Photo Project.
Freelancer or Supplier: A Freelancer or Supplier is a person or organization who is approved to perform one or more Skills for W2BS.
Skill: A specific role and type of work that a Freelancer or Supplier has been approved for by W2BS.
Video/Photo Project: A Video/Photo Project is a project contracted by W2BS to deliver Digital Assets to a Client and/or Other Stakeholders.
Client: Is a Client of W2BS as specified on the Written agreement for a Video/Photo Project.
Stakeholder: A stakeholder is an organization or individual which has a relationship with W2BS on a Video/Photo Project.
Services: The Services are comprised of the Jobs on the Video/Photo Project(s), associated Client Contract, any agreement between W2BS and the Client relating to providing the services defined on the Video/Photo Project and any relating information in the Video/Photo Project brief.
Written agreement: The Written agreement of a Video/Photo Project holds the information on, including but not limited to, Price, Jobs, Payment Terms and Stakeholders.
Video/Photo Project Comment: Is an online message, or email, made by the Client related to the Project.
Client Contract: The specific agreement between W2BS and the Client to deliver a Video/Photo Project[s], comprising the Written agreement (updated by agreement between W2BS and the Client) and these Terms.
Discount: A sum of the final costing that has been deducted from the Purchase..
Waiting 2B Scene
1. Client Contract Terms
1. Waiting 2B Scene shall provide the Services to the Client in accordance with the Client Contract.
1.2. Delivery of the Services
1. Start Date: The term of the Client Contract shall commence when it is signed off and accepted by the Client and W2BS.
2. Completion: Subject to clause 12 of the General Terms, W2BS shall complete the Services by the Video/Photo Project completion date as defined in writing between the parties.
3. Key Dates/ Milestones: Subject to clause 12 of the General Terms, W2BS will use its best commercial endeavours to meet the Key Dates/ Milestones as defined in the Video/Photo Project.
1. The Client agrees to pay W2BS for the Services and payment terms specified in the written agreement of the Video/Photo Project, or as varied under clause 12 of the General Terms, in accordance with the payment terms specified in clause 12 of the General Terms.
2. Unless the Client Contract states that the Price is a fixed quote, the Price specified shall be an estimate only, and the actual Price charged shall be the actual time and costs incurred by W2BS and its Freelancers and Suppliers contracted to the Video/Photo Project in question.
1.4. Term and Termination
1. The term of the Client Contract commences on the start date specified in clause 1.2.1 of these Terms and expires on the actual completion of the Services provided under the Client Contract.
2. Either Party may terminate the Client Contract only if the requirements are met under clause 5 of the General Terms.
3. If the Client terminates a Client Contract without meeting the requirements of clause 5 of the General Terms, :
a. the Client must pay:
i. 50% of the total Price of the Client Contract; and
ii. any third party or out of pocket costs incurred by W2BS or its Freelancers and Suppliers up to the point of cancellation; and
b. the Client will not be refunded any payments it had paid in deposits or instalments/payment schedules.
Waiting 2B Scene
2. Terms and Conditions
These Terms, including the Client Contract Terms, shall be effective from the start date specified in clause 1.2.1 and shall continue, unless terminated sooner in accordance with clause 7 of the General Terms, until the Completion Date of the Client or if another agreement is signed between both parties covering the same services provided in the same Client or Membership Contract.
3. Payment Methods & Terms
1. An invoice of the amount payable will be sent to the Client’s nominated accounts contact as and when the payment falls due under this clause.
2. The Client agrees to pay W2BS in accordance with the payment terms specified in the Client Contract, which shall be one of the following methods:
A. In two equal payments as follows:
i. 50% deposit payable and due from the signing date of the Client Contract;
ii. 50% remaining payable and due after the completion date of the Video/Photo Project; or
B. Via instalments with amounts and dates agreed in writing between the parties; or
C. In full on signing the Client Contract.
If the parties have not specified payments terms in writing then 2 a. and 2 b. apply.
3. The Client shall pay the invoice in cleared funds without set-off or deduction within 15 days of the date of the invoice unless agreed otherwise by the Parties in writing.
4. The method of payment for any Client Contract by the Client to W2BS shall be via:
A. Direct transfer to W2BS as per the payment details on the invoice;
C. Credit/Debit Card.
D. An agreed upon (in writing) combination of the above.
2. Non-payment of an invoice
1. W2BS reserves the right to charge interest on any amount outstanding after the due date for payment, at the rate of 20% per annum, accruing on a daily basis from the due date for payment until the date when payment is actually made.
2. Non-payment of an invoice 90 days after the due date will result in the debt (including accrued default interest) being passed to debt collection services.
3. Any fees or costs incurred by W2BS to obtain payment of any sums due (including legal costs on an indemnity basis and using debt collections services) will be charged to the Client on top of the total invoice and default interest amount.
3. Deposits & Out of Pocket Expenses
1. 25% of the total invoice is non-refundable.
2. The Client shall pay for W2BS out-of-pocket expenses as agreed to in the Video/Photo Project quote or as otherwise agreed by the parties.
1. If a retainer is agreed in the Client Contract, the Client shall pay that retainer at the Commencement of the Video/Photo Project. W2BS may apply the retainer to Video/Photo Projects as and when required to meet its ongoing costs and if the Client requests new Video/Photo Projects, W2BS may require that the retainer be topped up.
4. Term and Termination
1. Either Party may terminate the Client Contract upon notice in writing if:
A. The other is in breach of any material obligation contained in these Terms, which is not remedied (if the same is capable of being remedied) within 30 days of written notice from the other Party so to do; or
B. A voluntary arrangement is approved, a bankruptcy or an administration order is made or a receiver or administrative receiver is appointed over any of the other Party’s assets or an undertaking or a resolution or petition to wind up the other Party is passed or presented (other than for the purposes of amalgamation or reconstruction) or any analogous procedure in the country of incorporation of either party or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order in respect of the other Party.
2. W2BS may terminate the Client Contract if:
A. The Client fails to pay any amount due under these Terms by the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment (notwithstanding any other remedies W2BS may have pursuant to these Terms or law).
B. The Client fails to provide W2BS with adequate instructions, information and/or material to complete a Video/Photo Project or Job and remains in default not less than 14 days after being notified in writing to provide such instruction, information or material.
C. For European Clients Only:
If the Client is a consumer and the Distance Selling Directive (97/7/EC) (the “Directive”) applies to these Terms and Conditions, the Client may terminate these Terms and Conditions within the relevant timescales prescribed by the regulations or laws in the relevant Member State which implement the requirements of the Directive in respect of a right for the Client to withdraw from a contract. In the event of termination in accordance with this Clause 2.4(c), the liability of the Client to W2BS shall be as prescribed in the Directive or in any regulations or laws implementing its requirements in the relevant Member States.
3. Consequences of termination:
A. If the Client Contract is terminated it shall not affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
B. All sums payable to the Supplier under these terms shall become due immediately on its termination, despite any other provision.
5. Intellectual Property Rights
1. Upon payment in full of all invoices rendered and to be rendered for a Client Contract, W2BS agrees to assign the full legal title to the Client in all copyright and other intellectual property rights subsisting in the finished created Digital Assets for the Client during the Services.
2. W2BS retains ownership of the original Digital Assets for a Video/Photo Project.
3. W2BS warrants that it has the right to assign the rights identified in clause 6.1.
4. If any third party intellectual property rights are used by W2BS in the Digital Assets W2BS warrants that it has secured all necessary consents and approvals to use such third party intellectual property rights for W2BS and the Client.
5. The Client warrants that any material it supplies to W2BS will not breach any third party’s intellectual property rights.
6. If the Client Contract is terminated it shall not affect any accrued rights of either Party.
a. W2BS shall indemnify the Client against any claim by any other person that the provision of the Services to the Client in accordance with these Terms (other than any material provided by the Client) infringes any intellectual property rights of that other person.
b. The Client shall indemnify W2BS against any claim by any other person (in relation to any material provided by the Client to W2BS in accordance with these Terms) that the material infringe any intellectual property rights of that other person.
1. W2BS represents and warrants that:
1. It will perform the Services with reasonable care and skill, in accordance with:
A. generally recognised commercial practices and standards in the applicable industry; and
B. all laws and regulations applicable to the Services.
2. The Services and the Digital Assets provided by W2BS to the Client under these Terms will not infringe or violate any intellectual property rights or other right of any third party.
2. The Client represents and warrants that:
1. It will pay W2BS promptly in accordance with these Terms and the Client Contract.
2. It will provide full and timely instructions to W2BS, and will render decisions and instructions expeditiously as necessary for the orderly progress of the Video/Photo Project;
3. It will co-operate with and assist W2BS in all matters relating to the Services and Video/Photo Project.
4. It will provide, in a timely manner and at no charge, any equipment, material and any information as W2BS may reasonably require, and will ensure that such information is accurate in all material respects, and such equipment is in good working order and suitable for the purposes for which it is to be used.
5. It will ensure that material and information provided to W2BS is accurate and complete in all material respects.
6. It will obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services before the date on which the Services are to start.
7. It will use the services for lawful purposes only, and will not generate obscene, offensive or inappropriate content, or content which violates a person’s privacy or infringes a person’s intellectual property, whether in the content of the Digital Assets, in Video Production Comments, or otherwise.
8. It will provide to W2BS, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the premises and other facilities as reasonably required by W2BS to conduct the Services.
7. Limitation of liability
1. Subject to the Client’s obligation to pay the Price to W2BS, either party’s liability in contract, tort or otherwise (including negligence) arising directly out of or in connection with these Terms and Conditions or the performance or observance of its obligations under these Terms and Conditions and every applicable part of it shall be limited in aggregate to the Price.
2. To the extent it is lawful to exclude the following heads of loss and subject to the Client’s obligation to pay the Price, in no event shall either party be liable for any loss of profits, goodwill, loss of business, loss of data or any other indirect or consequential loss or damage whatsoever.
3. Nothing in these Terms and Conditions will serve to limit or exclude either Party’s liability for death or personal injury arising from its own negligence.
4. The Client will have no liability for any additional costs incurred by W2BS resulting from any change in any Freelancer or Supplier, change in personnel within W2BS, or any delay in production arising from by W2BS or Freelancers or Suppliers.
8. Relationship of the Parties
1. The Parties acknowledge and agree that the Services performed by W2BS, its employees, agents or subcontractors shall be as an independent contractor and that nothing in these Terms and Conditions shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between the parties.
9. Freelancers and Suppliers
1. Freelancers and Suppliers used by W2BS are independent contractors and are subject to the W2BS Freelancer and Supplier Terms and Conditions.
2. W2BS is responsible for the performance and quality of the W2BS Freelancers and Suppliers who act within the W2BS Freelancer and Supplier Terms and Conditions; Freelancers acting outside of the W2BS Supplier Terms and Conditions are subject to discipline set out in the W2BS Freelancer and Supplier Terms and Conditions but W2BS is not responsible for said actions.
3. Freelancers and Suppliers under contract with W2BS in respect of the Services cannot be approached by the Client outside of W2BS without prior approval from W2BS.
1. Neither Party will use, copy, adapt, disclose to third parties, alter or part with possession of any information of the other which is disclosed or otherwise comes into its possession via, including but not limited to, these Terms, the Client Contract, Video/Photo Project or any other information which is of a confidential nature.
2. This obligation will not apply to information which the recipient can prove was in its possession at the date it was received or obtained or which the recipient obtains from some other person with good legal title to it or which is in or comes into the public domain otherwise than through the default or negligence of the recipient or which is independently developed by or for the recipient.
1. W2BS shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, provided that W2BS gives the Client reasonable notice of such changes and that such changes do not materially affect the nature/scope of the Services or the Service Charges.
2. The Client may at any time during the term of a Client Contract request a change to the Video/Photo Project, or other job specifications, or the addition of new Services (“Change Request”) by notifying W2BS in writing of its requirements.
3. W2BS shall give due consideration to any Change Request from the Client and shall, within 7 days of receiving a Change Request from the Client:
A. confirm its acceptance of the Change Request, without any further variation to the terms of the Client Contract, in which case the parties shall execute a variation to the Client Contract as soon as reasonably practicable and W2BS shall implement the Change Request accordingly; or
B. provide a written proposal for accepting the Change Request, subject to any variation that W2BS reasonably considers necessary to the Services, the Price, the Video/Photo Project, deadline or any other specification (“Change Proposal”); or
C. if W2BS believes it is not reasonably practicable to accept the Change Request, with or without any such variation, provide the Client with a written statement of its reasons for doing so.
4. The Client shall within 7 days after receipt of the Change Proposal either give W2BS a written notice accepting the Change Proposal (subject to or without further negotiation) or rejecting the Change Proposal. If the Client accepts the Change Proposal, the parties shall as soon as reasonably practicable execute a variation to the Client Contract and W2BS shall implement the agreed variation.
5. W2BS may charge for the time it spent assessing a Change Request and/or Change Proposal, in addition to the Price, whether or not it is accepted, in accordance with its standard hourly rates from time to time.
1. Any notice which may be given by a Party under these Terms and Conditions shall be deemed to have been duly delivered if delivered by hand, post, Video/Photo Project Comments or email to the address of the other Party as specified in these Terms and Conditions or the Client Contract or Membership Contract or any other address notified in writing to the other Party.
2. Subject to any overriding law to the contrary, any such communication shall be deemed to have been received by the other Party:
1. In the case of Video/Photo Project Comments and Email, two working days after it has been sent, without any notice of incomplete transmission;
2. In the case of post, 5 working days from the date of posting; and
3. In the case of Hand delivery, at the time of such delivery.
1. The failure of either party to enforce its rights under these Terms at any time for any period shall not be construed as a waiver of such rights.
2. If any part, term or provision of these Terms is held to be illegal or unenforceable, neither the validity or enforceability of the remainder of these Terms shall be affected.
3. The Client shall not assign or transfer all or any part of its rights under these Terms without the consent of W2BS.
5. These Terms, the Client Contract and the Video/Photo Project constitute the entire understanding between the Parties relating to the subject matter hereof unless any representation or warranty made about these Terms was made fraudulently and, save as may be expressly referred to or referenced herein, supersedes all prior representations, writings, negotiations or understandings with respect hereto.
6. Neither Party shall be liable for failure to perform or delay in performing any obligation under these Terms if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, civil commotion or industrial dispute. If such delay or failure continues for at least 7 days, the Party not affected by such delay or failure shall be entitled to terminate these Terms by notice in writing to the other.
7. This Clause 14.7 and clauses 4.3, 5, 7, 10 and 12 of these Terms shall survive any termination or expiration of the Client Contract.
8. These Terms shall be construed, enforced and governed in accordance with the laws of the Commonwealth of Australia, and the parties submit all their disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the Courts of Australia.