TERMS AND CONDITIONS OF ENGAGEMENT (CLIENT)
HOOTZMAN TRUST PTY LTD trading as MUSOMAGIC ABN 55 786 616 771 (MusoMagic) agrees to provide the Client with the services set out in MusoMagic’s written proposal or quotation on the following terms and conditions. That proposal or quotation and these terms and conditions will together form a binding and entire agreement upon the Client’s acceptance of quotation or proposal (Agreement), unless otherwise agreed between those parties in writing.
Proposal and Services
- You (Client) have provided MusoMagic with a request to provide you with music workshop and music video production services (Services) and MusoMagic has provided you with a proposal setting out the nature and extent of the proposed Services to be provided (which may include separate options or components) and applicable fees or charges (Proposal). The Proposal will be valid from the date of issue for 30 days or any later date set out in the Proposal, after which time MusoMagic reserves the right to withdraw, change or replace the Proposal.
Acceptance of Proposal
- Acceptance of the Proposal by the Client must be in writing and work will not commence by MusoMagic until written acceptance has been received and any applicable deposit or fees have been paid. However, instructing MusoMagic to commence work will also be deemed acceptance, as will inducing or permitting MusoMagic to commence work. Upon the Client accepting theProposal, Services will commence and proceed in accordance with the Proposal and this Agreement, which will be deemed legally binding on the Client, and be for all options or components unless only certain options or components are clearly accepted by Client. The nature and scope of the Services or the Proposal may only be varied with MusoMagic’s consent in writing or as expressly permitted in accordance with this Agreement.
- If the Client requests any changes outside the scope of the original request, instructions or Proposal, extra costs may be applicable at usual rates and MusoMagic reserves the right to provideClient a revised Proposal dealing with completion of Services outside of that scope.
- In consideration of the Services, the Client shall pay to MusoMagic the fees, in accordance with the payment schedule set out in the Proposal, including any deposit or advance payment.MusoMagic will invoice the Client for fees and expenses in accordance with the Proposal. Unless otherwise agreed, MusoMagic will require 50% of quoted fees to be paid within one week from receipt of written acceptance of the Proposal. Payment of invoiced fees and expenses is required within 14 days from the date of each invoice and default interest may be charged on overdue sums at the higher of 12.5% p.a. or 1.5% above the official cash rate used by Muso Magic’s If invoice terms are not specified in a Proposal, payment terms are at MusoMagic’s discretion. The Client acknowledges that MusoMagic has the right to require full payment of fees prior to final delivery of the Services.
- If any cost or expenses will or may be incurred by MusoMagic in providing the Services, including flights, accommodation, food and beverages, consumables, materials, equipment, personnel or resources needed in MusoMagic’s discretion to provide the Services or if the Client requests MusoMagic to incur such cost or expenses in providing the Services, these costs and expenses may be on-charged to the Client and MusoMagic may issue Client with a separate quotation or proposal for those expenses (also a Proposal), or specify them in the original Proposal, and payment terms will be as in Clause 4, or payable directly by Client to any third party if requested by MusoMagic.
- Services or work in progress will not be completed or delivered if invoiced fees or expenses are unpaid but MusoMagic may continue work without affecting its rights hereunder.
- All fees and charges in the Proposal are exclusive of GST, which will be payable by the Client. MusoMagic will if required provide the Client with a valid tax invoice for all fees and expenses.
- Unless otherwise agreed in writing, MusoMagic retains ownership of all the right, title and interest (including copyright) in all work created or undertaken to produce the Services including any music and music video created as a result of the Services (each, a Work), all underlying ideas, concepts, methods or techniques, and any rights it may have in or to use third party proprietary work or materials in providing Services. For the purposes of clarity, all masters, film, tapes or other source material created by MusoMagic shall remain the exclusive property ofMusoMagic
Participant releases and Client materials and information
- The Client will be responsible for obtaining and providing releases of all participants who are or may be filmed and recorded as part of the Services. Any participant who does not agree to be this must be identified to MusoMagic as soon as possible after a workshop so that they can be excluded or treated accordingly. If there is any failure to identify such participants, the Clientmay incur additional costs for MusoMagic to edit participants from the relevant footage and the Client indemnifies MusoMagic from any loss suffered as a result.
- All workshop requirements, information or materials to be provided by the Client must be provided at commencement of Services or acceptance of the Proposal, unless provision is otherwise made in the Proposal, or provided on later request from MusoMagic. MusoMagic may withhold Services until this material is provided. If any failure to provide materials results in additional work for MusoMagic, the Proposal is deemed revised accordingly and may give rise to additional fees in MusoMagic’s sole discretion.
- The Client warrants that any and all information or materials it supplies to MusoMagic is true and accurate and does not infringe the intellectual property or other rights of any party, and without limiting the terms of this Agreement, the Client indemnifies MusoMagic for any losses incurred in any way (including by negligence) as a result of a breach of this warranty. To avoid doubt, the Client will ensure any third party material is licensed for its use or inclusion in the Services. .
- MusoMagic is not responsible for the loss of or damage to any materials provided by the Client to MusoMagic.
- MusoMagic’s delivery of the Services, Work and materials therein to the Client is subject to any delay resulting from the failure of the Client to provide information and materials as required, any additional work requested by the Client, or any event or circumstance beyond the reasonable control of MusoMagic.
- Upon delivery of any Work the Client will have 5 business days or such longer period as may be agreed in writing in either a Proposal or at the time of delivery to provide to MusoMagic any minor edits or changes required to the Work and materials delivered otherwise the Work and materials will be deemed accepted unless otherwise agreed. Any objections and changes must be reasonable and of a minor nature only, within the parameters of and subject to the Proposal and this Agreement. Any other timeframes notified to the Client will be binding on the Clientunless otherwise agreed. The fee includes one minor set of edits to the Work. Any other or further edits requested by the Client will incur additional charges for editing and file preparation.
- MusoMagic is not responsible for maintaining copies of any Work or materials, including masters and source files, after delivery to, and acceptance by the Client under clause 14.
- The Client acknowledges that MusoMagic may use cloud technology for the purposes of storing materials and delivering the Services, Work and materials to the Client and Client is solely responsible for ensuring sufficient internet access to access that technology, and will be solely responsible for maintaining and securing all passwords or logins required to do so.
Limitation of liability
- Without limiting anything in this Agreement, the Client acknowledges and agrees that MusoMagic provides the Services at the direction and pursuant to the instructions or requirements of the Client and, notwithstanding any act or omission by MusoMagic, including negligence, the Client accepts all risk in relation to the Services and releases and forever dischargesMusoMagic from all and any loss, damage or liability (including indirect, special or consequential losses) arising in relation thereto, including any claim by a third party arising out of or relating to the Services or from any delay in completion of the Services, for any reason whatsoever and will indemnify and hold harmless MusoMagic from and against all loss, damage or liability, except to the extent any legislation applies and cannot be excluded. This clause applies on creation of the Proposal by MusoMagic for the Client, is a continuing separate obligation and survives termination.
- To the full extent permitted by law, MusoMagic makes no warranties or guarantees of any kind, express or implied, relating to work or services including in relation to the Work and Services.
- To the full extent permitted by law, MusoMagic‘s liability for any claim or action is limited to replacement of goods, supply of equivalent goods or services or payment of the cost of so replacing or supplying goods, or payment of the cost of resupplying those services.
- Following acceptance of the Proposal, a party may receive or develop confidential information relating to the other (Confidential Information). A party will use Confidential Informationonly for the purpose of fulfilling its obligations hereunder and it will not be disclosed to third parties, except with the other’s express written consent, required by law or to legal advisors.
Credit and Promotional Use
- The Client undertakes that it will where possible properly acknowledge or attribute MusoMagic (or its personnel, as MusoMagic may advise) as creators of the Work in all uses of the Workby the Client and any credit must be approved by MusoMagic and otherwise consistent with industry practices. MusoMagic may place a credit for MusoMagic on any materials and products created as part of the Services and the Client agrees not to remove it and to use best endeavours to include this on all uses of the Work.
- MusoMagic may name or refer to the Client as MusoMagic’s client on materials and products for the purpose of promoting MusoMagic’s business as it reasonably determines and generate its own publicity relating to the Services or Work, subject to informing the Client beforehand and accommodating any limitation where possible.
- MusoMagic grants the Client the right to use any Work produced by it for Client’s marketing and promotional purposes only, subject to obtaining MusoMagic’s written consent beforehand and accommodating any limitation’s specified.
- The Client agrees and acknowledges that MusoMagic, as owner of all copyright in any Work, also has the right to use any Work produced by it for MusoMagic’s marketing, showreel and promotional purposes.
- The Client may terminate the Services at any time on 7 days written notice to MusoMagic. MusoMagic may terminate the Services or this Agreement at any time by giving written notice to the Client including but not limited to if the Client fails to perform any obligations hereunder or if MusoMagic’s ability to perform its obligations under this Agreement are adversely affected by any cause beyond its control.
- In the event of termination, all sums owing for work undertaken or expenses incurred under this Agreement up to termination (including any deposit that is non-refundable if Services are not completed) are payable by the Client in accordance with this Agreement and Clauses 4 – 7, 8, 12 and 11 – 22 continue to apply. In addition, if the Client cancels, withdraws or does not proceed with any part or component of a Proposal already commenced by MusoMagic, the Client must pay the full fee or expenses for that stage or component.
- MusoMagic is a contractor, not an employee, partner or agent of the Client.
- If either party fails to do anything it is entitled to under this Agreement that does not amount to a waiver of that right. Any waiver or variation must be in writing. If any clause or part of a clause is illegal or unenforceable, it is to be treated as removed, but the rest of this document is not affected. Any references to a party include their agents, officers, employees or assigns.
- The Agreement is governed by the laws of and jurisdiction of the courts of Victoria.