Terms and Conditions
1.1 OVM agrees to provide, and the Customer agrees to pay for, the Services in accordance with the terms of this Agreement.
1.2 This Agreement continues for the Term, unless terminated earlier in accordance with this Agreement.
In this agreement, unless the context otherwise requires:
Agreement means this agreement, comprising the Order Sheet, the General Terms, and each Service Description, as may be amended from time to time in accordance with clause 13.7;
Charges means the charges payable by the Customer for the Services, in accordance with the relevant Model (refer clause 5), and as set out in the relevant Service Description;
Confidential Information means all information received by one party in relation to the other party under or in relation to this Agreement (including in connection with the Services), whether in writing, electronically or orally;
Commencement Date means the date that both parties sign/accept the Order Sheet (or, if two dates, the later date);
Force Majeure Event means an event or circumstance beyond the reasonable control of either party which makes it impossible or illegal to perform that party’s obligations under this Agreement;
General Terms means these general terms;
GST means goods and services tax;
Intellectual Property means copyright, all rights in relation to inventions (including patents), registered and unregistered trademarks, registered and unregistered designs, trade or other proprietary rights or rights derivative of those rights (including licence rights) anywhere in the world, and any other rights in intellectual property which are recognised or protected under law;
Model means the service delivery model selected (and identified in the Order Sheet and Service Description), being either the “Instalment Model” or the “Lump Sum Model”;
Order Sheet means the terms preceding the General Terms, and includes the Quote and Creative Brief;
Output is the by-product of the Services, and includes any deliverable to be completed and provided by OVM to the Customer under this Agreement, including any video outputs (as described in the relevant Service Description);
Personnel includes employees, agents, officers and subcontractors;
Service Disruption means a service description that:
- relates to the provision of Services and Output(s);
- contains the information required by clause 3.2 (or such other information as the parties may agree); and
- is incorporated into this Agreement in accordance with clause 3.3,
Services means any and all of the services to be provided to the Customer, and obligations to be performed by OVM under this Agreement, including the services described in the Video Brief and the Service Description, and also includes the Outputs;
Term means the term of this Agreement specified in the Service Description.
3.1 Delivery of Services: OVM will provide the Services:
- in accordance with this Agreement; and
- with due care, skill and diligence.
3.2 Service Disruptions: At the Customer’s request, OVM will prepare, and submit for the Customer’s approval, a draft Service Description, which must include (unless otherwise agreed):
- a detailed description of the Services to be provided;
- the medium on which the Outputs will be provided e.g., via YouTube, a USB, or any mutually agreed medium;
- target delivery date(s) for the Output(s);
- the Charges;
- the selected Model; and
- any other relevant specifications.
3.3 Incorporation of Service Descriptions: Each Service Description that is signed or digitally agreed to by both parties will form part of this Agreement.
3.4 Delivery of Outputs: Each Output will be complete only when the Customer receives the Output in accordance with the Service Description.
3.5 Delay in delivering Outputs: If OVM considers that it is (or is likely to be) prevented or delayed from providing an Output, it will notify the Customer verbally or in writing providing a new delivery date.
4.1 Mutual requirements: Each party will proactively and fully co-operate with the other party in good faith with respect to all matters that relate to this Agreement.
4.2 The Customer’s general responsibilities: In addition to its other obligations under this Agreement, the Customer will:
- pay the Charges in full, without set-off, counterclaim or deduction;
- provide OVM with all information and access rights reasonably requested by it to enable OVM to provide the Services (and will take all reasonable steps to ensure that such information is accurate); and
- give OVM reasonable access to the Customer’s Personnel.
4.3 OVM’s general responsibilities: In addition to its other obligations under this Agreement, OVM will:
- provide and maintain (at its own cost) sufficient resources (including human resources, equipment, software, premises and other facilities) to enable it to perform its obligations on time and otherwise in accordance with this Agreement;
- ensure that all information provided to the Customer contains sufficient content and detail to enable the Customer to make use of the information for the purpose for which it was requested; and
- as soon as is practicable, notify the Customer of any problems or issues that arise in relation to the performance of its obligations under this Agreement, including any problems or issues that will or are likely to affect the provision or quality of the Services, or the ability of OVM to perform its obligations under this Agreement.
5. Payment and invoicing
5.1 Payment Models: The Customer must pay the Charges, including GST (or any other taxes or duties incurred in relation to the Services), in accordance with this Agreement. The Charges payable, and method for payment, are determined in accordance with the selected Model as follows:
- Charges for Services provided under the Instalment Model are set out in the Service Description.
- OVM will render one itemised invoice to the Customer at the end of each month during the Term.
- The Customer must pay the amount specified in the relevant invoice on or before the 20th day of the month following the month in which the relevant Services were provided.
Lump Sum Model:
- Charges for Services provided under the Lump Sum Model are as set out in the Service Description.
- OVM will render one itemised invoice to the Customer once the parties have finalised the relevant Service Description.
- The Customer must pay the amount specified in that invoice in full on or before the 20th day of the month (or as otherwise agreed in writing) following the Commencement Date.
6. Intellectual Property
6.1 Intellectual Property in the Services: The parties agree that:
- OVM (or its licensors) owns all existing and developed Intellectual Property rights in or relating to the Services, subject to clause 6.2.
- OVM grants the Customer a non-exclusive, non-transferable and royalty-free licence during the Term to use the Intellectual Property rights in the Services (which excludes Outputs) as required to enable the Customer to obtain the full benefit of the Services.
6.2 Intellectual Property in the Outputs: Ownership of Intellectual Property rights in the Outputs are determined in accordance with the selected Model as follows:
- OVM (or its licensors) owns and retains all Intellectual Property rights in the Outputs.
- OVM grants to the Customer a non-exclusive, non-transferable, non-sublicensable, revocable, licence to use the Intellectual Property rights in the Outputs for the Customer’s business purposes during the Term.
- At the end of the Term and subject to payment of the Charges, the Customer is the owner of all Intellectual property rights in the Outputs.
- At the end of the Term, The Customer grants OVM a non-exclusive, transferable, sub-licensable, irrevocable, perpetual, world-wide and royalty-free licence to use, copy, store, modify, adapt, communicate to the public and exploit the Outputs
Lump Sum Model
- Subject to the payment of the Charges, the Customer is the owner of all Intellectual Property rights in the Outputs.
- The Customer grants to OVM a non-exclusive, transferable, sub-licensable, irrevocable, perpetual, world-wide and royalty-free licence to use, copy, store, modify, adapt, communicate to the public and exploit the Outputs
6.3 Output watermark: OVM can watermark its branding on any of the Outputs, regardless of ownership of the Intellectual Property rights in the Outputs. The Customer must not remove this watermark (and ensure that no third party removes this watermark), unless OVM provides its written consent.
7.1 Protection of Confidential Information: Subject to clause 7.2, each party will treat as confidential and not disclose to any third party nor use for its own benefit (other than for the purposes of this Agreement), any Confidential Information that is the Confidential Information of any other party.
7.2 General exceptions: Clause 7.1 does not preclude a party from disclosing Confidential Information:
- if that information was known, or becomes known, to the public through no act or default of the recipient;
- that the recipient is required by law or Parliamentary practice to disclose so long as the recipient provides written notice of the required disclosure promptly upon receipt of notice of the required disclosure (if it is permitted to do so by law);
- that was lawfully known to the recipient prior to the date it was received;
- that becomes available to the recipient from a source other than a party to this Agreement provided that the recipient has no reason to believe such source is itself bound by an obligation of confidence to the person that disclosed that information or is otherwise prohibited under law from disclosing such information;
- that has been or is independently developed by the recipient;
- to any accounting, legal or technical services professional for the purposes of rendering professional services to a party and in relation to this Agreement; or
- to the extent that such disclosure is authorised by this Agreement or in writing by the party from whom the Confidential Information is first received.
8.1 General warranties: Each party represents, warrants and undertakes that:
- it has full power, capacity and authority to execute, deliver and perform its obligations under this Agreement;
- it has, and will continue to have, all the necessary consents, permissions, licences and rights to enter into and perform its obligations under this Agreement; and
- once executed, this Agreement constitutes its legal, valid and binding obligations and is enforceable in accordance with its terms.
8.2 Other warranties excluded: Representations or warranties (statutory, express or implied) that are not expressly referred to in this Agreement are excluded to the fullest extent permitted by law.
8.3 NZ Consumer laws: For the purposes of section 5D of the Fair Trading Act 1986 (FTA) and section 43 of the Consumer Guarantees Act 1993 (CGA), the parties acknowledge and agree that:
- the Services provided by OVM under this Agreement are being provided and acquired in trade; and
- to the maximum extent permitted by law, in respect of all matters covered by this Agreement, the parties are contracting out of the CGA and sections 9, 12A, 13 and 14 of the FTA.
8.4 Filming consents: The customer represents, warrants and undertakes that they have sought the consent of all persons participating in any filming or photography carried out by OVM, including ensuring all parties have signed the relevant Waiver and Indemnity. The Customer further warrants that it will be responsible for any costs incurred in obtaining this consent.
8.5 Other consumer laws: To the fullest extent permitted by law, the liability of OVM for a breach of a consumer guarantee, right or remedy that cannot be excluded, restricted or modified by agreement is limited, at OVM's option, to supplying the Services again or paying the cost of having the Services supplied again.
9.1 Maximum liability: The maximum aggregate liability of either party under or in connection with this Agreement in respect of all claims, proceedings, actions, liabilities, damages, costs, expenses or losses will be limited to the total Charges paid by the Customer during the lesser of the Term or the past 12 months. However, this clause does not limit the Customer’s obligation to pay the Charges or any other amounts expressly payable under this Agreement.
9.2 Equipment liability: If the Customer requests the use of time lapse camera equipment on their premises, or to use or have any OVM equipment under their care and that equipment suffers damage or loss, then the Customer is liable for the costs of repair in the case of damage or replacement in the case of loss.
9.3 Indirect loss or damage: Neither party will under any circumstances be liable in relation to this Agreement for any indirect or consequential loss, or any loss of profits, revenue or anticipated savings, arising out of or in connection with the performance or non-performance of this Agreement.
9.4 Talent fee liability: The Customer agrees that it will indemnify OVM in the event of any claim arising from filming any person who is not paid a talent fee for their appearance (including consequential loss and legal fees on a solicitor and client basis).
9.5 Source of liability: The limitations and exclusions of liability in this clause 9 will:
- apply irrespective of how liability arises, whether in contract, equity, tort (including negligence), breach of statutory duty or otherwise; but
will not apply to or limit the liability of either party:
- for breach of clause 7 (Confidentiality); or
- for any fraudulent, wilful or unlawful act or omission.
10.1 Termination for Material Breach: If either party commits a material breach of this Agreement, the other party may provide written notice specifying the material breach and requiring that it be remedied within 20 business days of such notice. The other party may terminate the Agreement by providing five business days’ written notice to the party if such material breach has not been remedied within the 20 business days’ period.
10.2 Termination for Force Majeure: Either party may terminate this Agreement by notice in writing to the other party, with immediate effect on the date specified in that notice, if either party is unable to perform all, or a substantial part, of its obligations under this Agreement as a result of a Force Majeure Event for a continuous period of 30 business days.
11. Force Majeure
11.1 Neither party will be liable to the other for any failure to perform its obligations under this Agreement (other than a payment obligation) during the time and to the extent that such performance is prevented, wholly or substantially, by reason of any Force Majeure Event. The party affected must:
- notify the other party as soon as practicable after the Force Majeure Event occurs and provide full information concerning the Force Majeure Event, including the extent of its inability to perform, and an estimate of the time likely to be required to overcome it;
- use its reasonable endeavours to remedy or mitigate the effect of the Force Majeure Event and minimise the impact on its obligations and the other party; and
- use its reasonable endeavours to complete its obligations under this Agreement as far as practicable.
12. Precedence and construction
12.1 Precedence: If there is any conflict or inconsistency between the documents that comprise this Agreement the order of precedence is:
- the Order Sheet;
- the General Terms; and
- any Service Description that has been incorporated into this Agreement in accordance with clause 3.3.
12.2 Construction: In this Agreement, unless the context otherwise requires:
- a person includes an individual, body corporate, association of persons (whether corporate or not) and any other Customer (in each case, whether or not having separate legal personality);
- any legislation includes a modification and re-enactment of legislation enacted in substitution for, and a regulation, order in council and other instrument from time to time issued or made under, that legislation;
- a reference to OVM in this Agreement includes reference to its successors in title and permitted assigns and where the context so permits its Personnel;
- headings are inserted for convenience only and are to be ignored in construing this Agreement;
- the words “includes” or “including” are deemed to be followed by the words “without limitation”;
- the singular includes the plural and vice versa;
- a reference to a clause is a reference to a clause of the General Terms;
- a reference to a business day is a reference to any day of the year other than a Saturday, a Sunday, a New Zealand public holiday, Auckland anniversary day or Wellington anniversary day;
- a reference to any time is a reference to New Zealand time; and
- a reference to currency is a reference to New Zealand currency.
13. General Provisions
13.1 Relationship of the parties: Nothing expressed or implied in this Agreement will be deemed to constitute either party as the partner, agent, or joint venturer of the other party.
13.2 Assignment: The Customer must not assign, novate, transfer or otherwise dispose of the whole or any part of its rights and obligations under this Agreement without first obtaining OVM’s written consent (not to be unreasonably withheld).
13.3 Notices: Any notice given under this Agreement by either party:
- must be in writing and delivered by post, personal delivery, or email to the contact persons identified in the Order Sheet (which may be amended by giving the other party written notice); and
will be deemed to be received:
- in the case of a letter between two parties whose postal addresses are in New Zealand, on the second business day after posting;
- in the case of a letter between two parties whose postal addresses are in different countries, on the seventh business day after posting;
- in the case of personal delivery, on receipt; or
- in the case of email, on the business day on which it is dispatched or, if dispatched after 5.00 p.m. (in the place of receipt) on the next business day after the date of dispatch.
13.4 Severability: If any term or provision of this Agreement is held to be illegal, invalid or unenforceable it will be severed from this Agreement without affecting the legality, validity or enforceability of the remaining provisions.
13.5 Waiver: Neither party will be deemed to have waived any right under this Agreement unless the waiver is in writing and signed by the parties. Any failure or delay by a party to exercise any right or power under this Agreement will not operate as a waiver of that right or power. Any waiver by a party of any breach, or failure to exercise any right, under this Agreement will not constitute a waiver of any subsequent breach or continuing right.
13.6 Entire agreement: This Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes all previous agreements, arrangements, understandings or representations relating to that subject matter.
13.7 Amendment: This Agreement may only be amended by agreement in writing signed by authorised representatives of both parties.
13.8 Counterparts: This Agreement may be executed in any number of counterparts, each of which is to be deemed an original, but all of which together are to constitute a single instrument.
13.9 Governing law and jurisdiction: This Agreement is governed by, and will be construed in accordance with, New Zealand law. Each party irrevocably submits to the exclusive jurisdiction of the New Zealand courts for the purpose of hearing and determining all disputes under or in connection with this Agreement.