TERMS OF SERVICE
These Terms of Service form an agreement between the party set out in the relevant Quote “you” and Guerilla Creative Pty Ltd (ABN 87 749 629 582) “we, us, our”.
1.1 By engaging us, you agree to be bound by these Terms of Service. These Terms of Service apply to all work we do unless we have entered into a separate written agreement with you, signed by both parties.
1.2 These Terms of Service and the relevant Quote form the agreement between us and you in respect of each piece of work (each a “Production”).
2.1 We will provide you with the services set out in the Quote in a diligent and professional manner and in accordance with these Terms of Service. For the avoidance of doubt, we are not responsible for any strategy relating to the display or communication of your Production, nor do we guarantee a minimum number of views on any platform or via any medium, unless expressly set out in the Quote.
2.2 We will provide you with a rough edit as soon as practicable following completion of the shoot, taking into account the length and complexity of the Production. You agree that while we will use reasonable efforts to meet deadlines set out in the Quote, the delivery date of the Production is not guaranteed and we will not be liable to you in respect of any loss or damage you suffer as a result of a deadline not being met.
2.3 Each Production includes two rounds of changes or revisions unless otherwise specified. If you require more than two rounds of changes, please make sure this is specified in your brief and is quoted for by us. Additional changes/revisions may be charged at our standard hourly rates.
2.4 The Production is deemed delivered once we have completed the allocated number of edits and/or have provided you with final files (as determined by us).
2.5 Subtitles or captioning are not included in our standard services but may be requested at additional cost.
2.6 You agree that we may subcontract some or all of our obligations under this agreement, provided that we remain principally liable to you in respect of such obligations.
2.7 You agree to credit us in a customary fashion in connection with all uses of the Production if we request. You agree not to remove any credit included in any Production and agree that if the Production is submitted for any award you will list us as a creative partner or collaborator in all submissions.
3.1 All edits will be provided for streaming/download via a password protected video streaming service. This is provided for review purposes only, and not intended as video hosting for the final Production.
3.2 Final edits will be provided in either HD 1280×720 or 1920×1080 resolution, in 25 frames per second as an .mp4 (H264) data file unless otherwise specified. If you required another delivery format please make sure we are made aware when we are setting our Quote as other format deliveries may incur additional hourly charges to cover admin, dubbing and courier costs. We will not deliver a final edit unless and until all outstanding invoices in relation to your Production have been paid.
3.3 We use third-party suppliers for transfer/streaming services, which include password protected options. We take no responsibility for the security of third-party
hosting/transfer services. Your use of such services is subject to the terms and conditions of those services.
3.4 We use third-party services, technologies, and servers in connection with the provision of our services. You acknowledge that we do not control the reliability, availability, or ongoing functionality of such services, technologies, and servers and you agree that we will not have any liability to you in the event that any such service, technology, or server becomes temporarily or permanently unavailable, or where your use of such service, technology, or server, causes you or any third party loss, damage, or liability. In the event that a third-party service, technology, or server becomes unavailable we will use reasonable efforts to procure an alternative service, technology, or server.
3.5 You acknowledge that any third party services (including AR services and hosting services) we provide to or procure for you will be subject to time-limited rights. We will not provide or procure perpetual rights from such providers.
3.6 All raw camera video files/audio will be backed up twice across two hard drives, and archived for three months only (from the date of the final Production delivery). Longer term archival can be provided at additional cost. Whilst every care is taken by us and crew to protect and backup your files, we will not be liable to you in the event any footage is lost or destroyed.
3.7 Raw footage may be provided to you on specific request. Additional costs may be incurred to cover costs of file handing, physical media and couriers, and the grants of rights in such footage.
4.1 Where requested, we will license music for use in your Production. You must provide us with all relevant information in relation to the production and the use of the music in it as requested from third party licensors. You acknowledge and agree that the music will be licensed for the specified uses and any uses outside of those may be in breach of relevant licence agreements.
4.2 We will use reasonable efforts to obtain the requested music within the requested budget, however, you acknowledge that rates for use of commercial music are set by third parties and we do not have any control over such rates.
4.3 We accept no liability in connection with your use of licensed music. You will be the direct signatory to all licences for the use of commercial music in your Production. You[MM1] [BOS2] indemnify us in respect of any cost, claim, loss, damage, or liability we incur or suffer arising out of your use of licensed music in the Production.
5.1 We will agree to shoot dates for each Production with you in writing.
5.2 If our services in respect of your Production are limited to filming (and do not include editing and post-production) the following cancellation terms apply:
(a) Cancellations within 24 hours of job start date – 100% day rate charge applicable; (b) Cancellations within 48 hours of job start date – 50% day rate charge applicable.
5.3 If our services in respect of your Production include editing and post-production the following cancellation terms apply:
(a) Cancellations within 7 days of job start date – we are entitled to retain all amounts paid by you to us prior to the date of cancellation;
(b) Cancellations within 48 hours of job start date – we are entitled to payment of all amounts set out in the quote.
6.1 We will provide you with a written quote setting out the scope of the proposed services, your proposed usage of your Production (including all required edits and deliverables), and the proposed cost (a “Quote”)
6.2 Each Quote remains valid for 30 days from the date of the quotation. Productions may be quoted on a time and materials or full production basis.
6.3 Where a Production is quoted on a time and materials basis a full day rate refers to a period of 4-8 hours. A half day rate refers to 1-4 hours. Hourly overtime may be charged at the producer’s discretion.
6.4 Subject to clauses 6.5 and 6.6, invoices will be issued upon completion of work and unless previously agreed upon. Payment is due within 14 days of receipt of the invoice. For the avoidance of doubt, intellectual property rights in the Production are not assigned to you until payment has been made in full. In the event you do not pay in full any use by you of the Production or any other materials we provide to you will constitute an infringement of our intellectual property and in that event we reserve our rights to take any and all action available to us.
6.5 Projects with a total value of more than $20,000 require payment a 50% deposit prior to the commencement of production. This amount is non-refundable in the event of cancellation of the Production.
6.6 Notwithstanding anything else set out in these Terms of Service, we may in our discretion require that full or partial payment of the production fees be made prior to the commencement of production.
6.7 You are responsible for the payment of all bank and transfer fees and any transaction or service fees payable in connection with the payment of an invoice.
6.8 Guerilla Creative is GST Registered in Australia. All amounts set out in quotes or estimates are expressed exclusive of GST, and GST is payable in addition to all such amounts upon presentation of the validly constituted tax invoice.
6.9 Interest and fees will be charged on overdue payments at 10% per week, plus admin fees.
6.10 If you dispute any invoice, you must notify us in writing within 7 days of receiving it. Notwithstanding such dispute you must pay any undisputed portion of the invoice in accordance with its terms. Invoice disputes will be dealt with in accordance with the dispute resolution provisions below.
7.1 Our actual expenses incurred in connection with your Production are payable in addition to the fees set out in the Quote. We will seek your approval prior to incurring any expenses other than standard courier and materials expenses, which you agree to pay on provision of an invoice, which will be issued at the conclusion of production.
7.2 Travel within the Melbourne CBD (up to 20km from the South Yarra area) will not be charged to the client. For projects and locations outside of this area within the state of Victoria, travel will incur a charge of 72 cents per kilometre travelled.
For example: for a shoot 40km away from South Yarra (VIC), total travel will be 80km. 80km minus 20km free of charge = 60km charge for travel).
7.3 Guerilla Creative will endeavour to find the cheapest possible parking within a reasonable distance of the shoot location. All parking costs and road toll costs will be payable by you in full.
7.4 Interstate car hire charges (including fuel/tolls), flights and accommodation will be charged to you unless otherwise agreed.
8.1 We and/or our subcontractors own the intellectual property rights in and to all materials created in connection with the provision of our services to you. When you have paid for a project in full, we will assign you the rights in the final edit of the Production only. However, you acknowledge and agree that you will not use the Production for any purpose other than that expressly specified in the Quote (including any limitations on the period in which you may exploit the Production). You acknowledge that talent and music
agreements may restrict the use that can be made of the Production and that any use outside of the expressly stated purpose may breach such agreements. You indemnify us in respect of all claims, loss, cost, damage, and liability we incur or suffer as a result of your breach of this clause.
8.2 Notwithstanding the assignment of rights in the Production under clause 8.1 above, you agree that unless otherwise agreed in writing you do not have the right to edit, alter, adapt, or otherwise change any materials we provide to you (including the Production).
8.3 Subject to the payment of additional fees we may agree in our discretion to provide you with other materials, such as the underlying rushes from your shoot.
8.4 Any ideas/concepts/logistic planning/know-how/techniques we disclose to you remain our confidential property unless otherwise agreed in writing. You must not use these ideas/concepts/ know-how/logistic planning/techniques without our permission, especially in relation to working with another competing agency or supplier at any time.
8.5 You agree that we may use your Production in connection with the promotion of our business, subject to us obtaining any relevant music or talent licences necessary for such use. You further agree that we may shoot and use behind-the-scenes photographs and videos in connection with your Production and we may use such photographs and videos for promotional purposes (including via social media).
9.1 Guerilla Creative holds insurance covering public liability for our specific crew and staff. You and your employees and agents will not be covered by our insurance and you are responsible for ensuring that you and such other persons are appropriately insured.
10.1 Unless otherwise agreed in writing you are responsible for obtaining all location agreements and permits in respect of the Production and you warrant that you have done so prior to the commencement of your shoot.
10.2 Unless otherwise agreed in writing you are responsible for obtaining all talent in connection with the Production and you warrant that you have done so prior to the commencement of your shoot.
10.3 Where we agree to obtain location agreements and/or talent on your behalf you must provide us with all relevant information relating to locations and talent as soon as is reasonably practicable following a request from us.
10.4 You acknowledge that your rights to use the Production may be limited by your contract with relevant talent. On that basis it is important to ensure that you have provided us with full disclosure of intended uses of the Production.
10.5 You will be the direct party to all location and talent agreements we obtain on your behalf. It is your obligation to read and understand all such agreements. We will not have any liability to you in respect of any such agreements.
11.1 You warrant and agree that:
(a) you have the power and authority to enter into this agreement with us;
(b) all materials you provide to us for use in, or otherwise in connection with, a Production are owned or controlled by you and our use of such materials will not infringe any third party right (including copyright) or any law (including defamation laws);
(c) you will only use and exploit the Production and any other materials we provide you under these Terms in accordance with the terms expressly set out in the Quote;
(d) unless otherwise agreed in writing you have obtained written talent releases from each person filmed (whether featured or otherwise) in the Production.
11.2 You hereby indemnify us, and our directors, officers, employees, contractors, and agents, from any against any and all loss, cost, damage, claim, or liability suffered by us in connection with:
(a) any breach by you of these Terms of Service;
(b) any failure by you to obtain any agreement, clearance, licence, or release required to be obtained by you under these Terms of Service or otherwise
required for the exploitation of the Production and which is not expressly
set out to be our obligation;
(c) any claim that any materials provided to us by you infringe any law or any third party right (including intellectual property rights); and
(d) any personal injury or death suffered by any person arising out of your negligent act or omission in connection with any Production.
12.1 To the extent permitted by law, our liability in connection with any Production, whether arising in contract, tort (including negligence), under statute or otherwise, will not exceed in aggregate an amount equal to the sum of payments received by us from you in connection with the Production.
12.2 To the extent permitted by law we will not be liable for any indirect, incidental, special or consequential damages (including but not limited to loss of profit, loss of opportunity, loss of data, loss of networks, loss of revenue or any pure economic loss).
12.3 Where legislation implies any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of, or exercise of, or liability under, such condition or warranty, the condition or warranty is deemed to be included in these Terms of Service. However, our liability for any breach of such condition or warranty is limited, at our option, to one or more of the following:
(a) if the breach relates to goods: the replacement of the goods or the supply of equivalent goods, the repair of such goods, the payment of the cost of
replacing the goods or of acquiring equivalent goods, or the payment of the
cost of having the goods repaired; and
(b) if the breach relates to services: the supplying of the services again, or the payment of the cost of having the services supplied again.
13.1 The Parties undertake on behalf of themselves and their employees, agents and permitted subcontractors that they will keep confidential and will not use for their own purposes (other than fulfilling their obligations under this Agreement) nor without the prior written consent of the other disclose to any third party (other than their professional advisers) any information of a confidential nature relating to the other (including, without limitation, any trade secrets, confidential or proprietary technical information, trading and financial details and any other information of commercial value) which may become known to the other under or in connection with this Agreement.
No confidentiality exists in any document or information which:
(a) at the time of its disclosure is in the public domain;
(b) after disclosure becomes generally available in the public domain otherwise than by disclosure in breach of this agreement;
(c) is known to the parties prior to discussing the project or entering into these Terms of Service, whichever is the earlier; or
(d) is received from a third party who owes no obligation of confidence in respect of the Confidential Information.
14.1 If a dispute arises out of or in relation to these Terms of Service, you agree to endeavour to resolve the dispute in good faith in accordance with this clause 14. A party must not commence any legal proceedings relating to a dispute unless it has complied with the provisions of this clause, except where a party seeks urgent
injunctive relief, or the dispute relates to compliance with this clause.
14.2 A party claiming that a dispute has arisen must immediately notify the other party in writing, setting out the dispute and the party’s proposed resolution. The parties must then meet within 10 days to discuss the resolution of the dispute.
14.3 If the dispute is not resolved within 10 days of the meeting referred to in 14.2 above, the parties agree to attempt to settle the dispute via mediation utilising an
independent mediator appointed by agreement of the parties. If the parties cannot agree on appointment of the mediator, the mediator will be appointed by the President of the Law Society of Victoria or the President’s designated representative. The costs of mediation will be borne equally between the parties.
14.4 In the event that the parties are unable to resolve the dispute via a good faith attempt at mediation either party may institute legal proceedings without further notice and take such other action as they may be entitled to under this agreement.
15.1 In the event that we are not able to provide our services to you on an agreed date as a result of any event outside of our reasonable control (for example should a failure occur for all or any of the electronic equipment used or due to illness of the operator or person(s) employed by Guerilla Creative or because of any other unforeseen event) we will use reasonable efforts to reschedule your shoot to a mutually agreed date. In the event we are not able to agree on a replacement shoot date our total liability to you will be a refund of any deposit amount held by us as at the originally planned shoot date less any pre-production costs we have already incurred as at the originally planned shoot date and you agree that we have no further liability to you in such event.
16.1 We may terminate this agreement immediately in the event that:
(a) you commit any act or omission that puts any officer, employee, contractor, or agent of us in actual or apparent danger or where there is a material risk that any of our equipment may be damaged;
(b) you are rude, insulting, do not respond to our correspondence, or otherwise act in bad faith towards us;
(c) you are in material breach of any of these Terms of Service which are not capable of remedy;
(d) you are in material breach of any of these Terms of Service, the breach is capable of remedy, and you have not remedied the breach within 48 hours of us
requesting you to do so; or
(e) you are or become subject to any form of bankruptcy or insolvency
16.2 In the event of termination of this agreement we remain entitled to all rights accrued as of the date of termination.
17.1 These Terms of Service and the relevant Quote form the entire agreement between you and us in respect of the relevant Production.
17.2 The parties enter this agreement as independent contractors and not as employer and employee, partners, joint venturers, or in any other capacity.
17.3 The warranties, indemnities, and obligations of confidentiality set out in these Terms of Service are continuing obligations that survive the termination or conclusion of this agreement.
17.4 We may assign this agreement and/or any of our rights under it to any person in our sole discretion. You may not assign your rights without our prior written consent.
17.5 This Agreement will be governed by and construed in accordance with the laws of Victoria, and the parties submit to the exclusive jurisdiction of the courts exercising jurisdiction in Victoria.
18.1 We may amend these Terms of Service from time to time. Any amendment will not have any effect on a Production then on foot but will apply on and from the next engagement. You should review these terms regularly to ensure you are familiar with any changes.
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This website is operated by Guerilla Creative Pty Ltd (ABN: 84 614 321 952) (ACN: 614 321 952).
The purpose of the Guerilla Creative website is to indicate the services of our business, and provide a platform for clients to make contact. We’ll do our best to prevent any delays or interruptions to the website, but we cannot promise that the website will be available at all times. We may stop the operation of part of the website or all of it, at any time and without telling you. However, we will not be responsible for any loss, cost, damage or liability that may arise as a result. We try to make sure the content on the website is accurate, but we do not guarantee this. The content is also general in nature.
In using our site you must not:
Use the website for anything that breaks the law or infringes someone else’s rights;
Post or send any material via the website which harms anyone else or use the website to send unsolicited messages; and
In any way tamper with the website or transmit any viruses via the website.
The content and design of this website is all subject to copyright, which we reserve and own (or use under licence from someone else). Your browser (by its usual operation) may make a temporary copy of the website, please feel free to do so. Other than that, you must not copy, adapt, store, transmit, print, display, perform, publish or create derivative works from any part of this website; or commercialise any information, products or services on this website. If you wish to do any of these things, you must get our written permission first.
This website may contain links to other websites which we do not control, so we’re not responsible for the content of those websites. Although we would typically approve of the content contained in those links, we do not endorse, provide any warranty or take any responsibility for any aspect of those websites or their content. Those links are provided for convenience only and may not remain current and you use them entirely at your own risk.
All material on the website is provided to you without warranties of any kind, including warranties of merchantability and fitness for purpose. We do not warrant that the website or the website server are free of viruses or any other harmful components.