Terms and Conditions

Last Updated July 12, 2019

1. Intellectual Property Rights

Except to the extent agreed in writing by Dynamic Visuals Australia, all intellectual property rights relating to any footage, graphic design, animation or other creative artistic work provided to the Client by or on behalf of Dynamic Visuals Australia pursuant to these Terms the “Intellectual Property” remains the property of Dynamic Visuals Australia. Dynamic Visuals Australia may display its own copyright and intellectual property notices on any Products and the Client must not, remove, obscure, deface or alter such copyright and intellectual property notices.

2. Basis of Contract

Unless otherwise agreed by Dynamic Visuals Australia in writing, these Conditions apply exclusively to every contract for the sale of Services by Dynamic Visuals Australia to the Client and cannot be varied or supplanted by any other conditions (including but not limited to the Client’s terms and conditions of purchase, if any) without the prior written consent of Dynamic Visuals Australia.

Any written quotation provided by Dynamic Visuals Australia to the Client concerning the proposed supply of Services is an invitation only to the Client to place an order based upon that quotation and is subject to the Client offering to enter a contract with Dynamic Visuals Australia and accepting these Conditions. The Conditions may include additional terms in Dynamic Visuals Australia’s quotation provided that such additional terms are not inconsistent with these Conditions.

An order will not be accepted until Dynamic Visuals Australia communicates acceptance to the Client in writing or by electronic means or it has provided the Services.

Dynamic Visuals Australia in its absolute discretion may refuse to accept any offer from a Client.

3. Performance of contract

Any period or date for delivery of Services or provision of Services stated by Dynamic Visuals Australia is intended as an estimate only and is not a contractual commitment. Dynamic Visuals Australia will use its best reasonable endeavours to meet any estimated dates for delivery of the Packages or Services or completion of the Packages or Services, but will, in no circumstances whatsoever, be liable for any loss or damage suffered by the Client or any third party for failure to meet any estimated date.

The Customer warrants that the Client will use its best endeavours to respond to all of Dynamic Visuals Australia queries and requests in a timely manner, which may include the provision of the necessary materials in order to allow Dynamic Visuals Australia to perform its obligations under these terms. Any unreasonable delay by the Customer in responding to Dynamic Visuals Australia queries and requests will not affect Dynamic Visuals Australia’s entitlement to payment under these terms.

4. Cancellation

If, through circumstances beyond the control of Dynamic Visuals Australia, Dynamic Visuals Australia is unable to effect delivery of or provide the Packages or Services, then Dynamic Visuals Australia may cancel the Client’s order (even if it has already been accepted) by notice in writing to the Client, without liability.

No purported cancellation or suspension of an order or any part thereof by the Client is binding on Dynamic Visuals Australia after that order has been accepted by Dynamic Visuals Australia.

The Client must advise Dynamic Visuals Australia within 7 days of receipt of a delivery:

  1. of the non arrival of any Services;

  2. if there is any damage to the Services;

  3. if the wrong Services have been received;

  4. if the quantity of the Services is incorrect; or

  5. if the Services do not meet specifications.

If the Customer fails to give notice in accordance with subsection 4.2, then the Services are deemed to have been accepted by the Client and the Client may be subject to pay for the Services in accordance with these Terms.

4.2 

  1. If the Customer cancels the Video Project within two weeks of purchasing the Video Project, no charges will apply;

  2. If the Customer cancels the Video Project less than two weeks but prior to one week of Jobs commencing as per the agreed Timeline, the Client may be charged up to 10% of the value of the Video Project;

  3. If the Customer cancels the Video Project less than one week of the scheduled Jobs commencing, the Client may be charged up to 50% of the value of the Video Project.

5. Payment

The Customer shall pay Dynamic Visuals Australia the Price for the Services as follows:

  • For a Video Project equal to or above $5,000 (in the currency expressed in the Project Brief):

  1. an upfront payment 50% of the Price may be payable prior to commencement of Services by Dynamic Visuals Australia; and

  2. the remaining 50% of the Price shall be payable upon Completion of Services;

  • For a Video Project below $5,000 (in the currency expressed in the Project Brief), an upfront payment of 100% of the price may be payable prior to the commencement of Services by Dynamic Visuals Australia or after filming dependent on what has been agreed prior.

6. Content Retainment

Dynamic Visuals Australia will retain any raw video footage and other files and materials (Raw Materials) created for the Project for up to 3 months after the Production Stages conclude, following which we will have the right to delete or erase the Raw Materials unless specified in writing by Dynamic Visuals Australia.

7. Risk and Insurance

The risk in the Services and all insurance responsibility for damage or otherwise in respect of the Services will pass to the Client immediately upon delivery of the Services to the Client.

7.2
The Services are sold to the Client on the basis that the Client has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the Services.

7.3
The Client assumes all risk and liability for loss, damage or injury to persons or to property of the Client, or third parties arising out of the publication, use or possession of any of the Packages or Services sold by Dynamic Visuals Australia, whether such Packages or Services are used singularly, or in combination with other products or any process.

8. Liability

Except as specifically set out herein, or contained in any Warranty, any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Services or Services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.

Replacement or repair of the Services or resupply of the Services is the absolute limit of Dynamic Visuals Australia’s liability howsoever arising under or in connection with the sale, use of, storage or any other dealings with the Services or service by the Client or any third party.

Dynamic Visuals Australia is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of perishables, loss of turnover, profits, business or goodwill or any liability to any other party.

Dynamic Visuals Australia will not be liable for any loss or damage suffered by the Client where Dynamic Visuals Australia has failed to deliver Services or Services or fails to meet any delivery date or cancels or suspends the supply of Services or Services.

Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of Services or supply of Services which cannot be excluded, restricted or modified.

8.2. Indemnification

The Client hereby indemnify to the fullest extent Dynamic Visuals Australia from and against any and/or all liabilities, costs, demands, causes of action, damages and expenses arising in any way related to your breach of any of the provisions of these Terms.

9. Severability

If any provision of these Terms is found to be invalid under any applicable law, such provisions shall be deleted without affecting the remaining provisions herein.

10. Variation of Terms

Dynamic Visuals Australia is permitted to revise these Terms at any time as it sees fit, and by using Dynamic Visuals Australia’s services or Website you are expected to review these Terms on a regular basis.

11. Assignment

Dynamic Visuals Australia is allowed to assign, transfer, and subcontract its rights and/or obligations under these Terms without any notification. Dynamic Visuals Australia are permitted in our discretion to engage appropriately skilled independent subcontractors, freelancers or other third parties (Sub-Contractors) to perform some or all of the Services. The Client is not allowed to assign, transfer, or subcontract any of Dynamic Visuals Australia’s rights and/or obligations under these Terms.

12. Acknowledgment

The Client acknowledges that:

  1. It has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Dynamic Visuals Australia in relation to the Services or their use or application;

  2. It has the sole responsibility of satisfying itself that the Packages or Services are suitable for the use of the Customer or any contemplated use by the Customer, whether or not such use is known by Dynamic Visuals Australia; and

  3. Any description of the Services provided on Dynamic Visuals Australia’s website, in any brochure or catalogue or other marketing means, or in a quotation or invoice is given by way of identification only and the use of such description does not constitute a contract of sale by description.

The Customer must not make any claim or demand for any matter referred to in clause 1

13. Confidentiality

In providing the Services to the Client, Dynamic Visuals Australia will provide to the Client such information which is necessary for the purpose of provision of the Services and the Product. This information shall remain the absolute property of Dynamic Visuals Australia and the Client may not use it in any way except for the purpose of the Services.

The Client will provide information to Dynamic Visuals Australia to enable Dynamic Visuals Australia to complete the Services, this information may include sales information, Client information and budget forecasts of the Client. This information shall remain the absolute property of the Client and may not be used by Dynamic Visuals Australia in any way except for the purposes of this Agreement.

Each party acknowledges the confidentiality of the other party’s confidential information. Neither party will gain a right or interest in the other party’s confidential information, other than for the purposes contemplated by these Terms.

Each party must keep all of the other party’s confidential information confidential, and only use it for the purposes of fulfilling its obligations under these Terms. However, this obligation will not apply to information which:

  1. was in the public domain when it was provided to a party, or later enters the public domain, through no fault of the party; or

  2. the party is obliged by law to disclose, provided that it has first advised the other party of this obligation.

14. Entire Agreement

These Terms constitute the entire agreement between Dynamic Visuals Australia and you in relation to your use of this Website, and supersedes all prior agreements and understandings.

15. Client’s Representations and Warranties

The Client represents and warrants that it:

  1. shall pay Dynamic Visuals Australia promptly in accordance with the terms and conditions of this Agreement;

  2. shall provide full and timely instructions to Dynamic Visuals Australia and will render decisions and instructions as expeditiously as necessary in order for Dynamic Visuals Australia to perform the Services in accordance with the terms and conditions of this Agreement;

  3. shall provide, in a timely manner and at no charge, any equipment, material and any information as Dynamic Visuals Australia may reasonably require, and 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;

  4. shall ensure that all material and information provided to Dynamic Visuals Australia is accurate and complete in all material respects;

  5. shall obtain and maintain all necessary licenses and consents and comply with all relevant applicable laws in relation to the Services;

  6. shall use the Services for lawful purposes only and will not (whether in the content of the Digital Assets or video production comments or otherwise):

  7. be libellous or maliciously false;

  8. be obscene or indecent;

  9. infringe on copyright, moral rights, database rights, trademark rights, design right, right in passing off or any other intellectual property rights;

  10. infringe on any rights of confidence, rights of privacy or any other rights under applicable data protection legislation;

  11. provide or make negligent advice or negligent statements;

  12. incite commitment of a crime, instruct the commission of a crime or promote criminal activities;

  13. be in contempt of any court or in breach of any court order;

  14. be in breach of racial or religious hatred or discrimination legislation;

  15. be in breach of any contractual obligation owed to any person;

  16. depict violence in (explicit, graphic or gratuitous) manner;

  17. be pornographic (lewd or suggestive) or sexually explicit;

  18. be untrue, false or misleading or inaccurate; or

  19. be offensive, deceptive, fraudulent, threatening, abusive, harassing, anti-social, menacing, hateful, discriminatory or inflammatory;

  20. shall not breach Dynamic Visuals Australia’s intellectual property rights, including by copying, or seeking to make a derivative based on such software;

  21. shall provide to Dynamic Visuals Australia, its employees, agents, subcontractors and consultants, in a timely manner and at no charge, access to the premises and other facilities as reasonably required by Dynamic Visuals Australia to perform the Services;

Any party entering into this Agreement and purchasing the Services for the purposes of business and that, to the extent permitted by law, any consumer protection laws, legislation, rules and regulations that may be relevant and/or applicable shall not apply to this Agreement.

16. Law & Jurisdiction

These Terms will be governed by and interpreted in accordance with the laws of the State of Victoria, and you submit to the non-exclusive jurisdiction of the state and federal courts located in Victoria for the resolution of any disputes.

17. Privacy

Dynamic Visuals Australia is bound by the Privacy Act 1988. All personal information obtained in connection with the Customer will be appropriately collected, stored, used, disclosed, transferred and destroyed in accordance with the Australian Privacy Principles.

By using this website you hereby allow Dynamic Visuals Australia to use ‘Cookies’.

18. Miscellaneous

  1. The failure of either Party to enforce any of its rights under this Agreement at any time shall not be construed as a waiver of such rights.

  2. If any part, term or provision of this Agreement is held to be illegal or unenforceable, neither the validity or enforceability of the remainder of this Agreement shall be affected.

  3. Dynamic Visuals Australia may assign or transfer all or any part of its rights under this Agreement at its sole discretion. The Client shall not assign or transfer all or any part of its rights under this Agreement without the prior written consent of Dynamic Visuals Australia (which consent shall not be unreasonably withheld).

  4. This Agreement (including the Specific Terms and the Project Brief) constitutes the entire understanding between the Parties relating to the subject matter hereof and supersedes all prior representations, agreements, negotiations or understandings, whether written or oral with respect hereto.

  5. Neither Party shall be liable for a failure or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, natural disasters, war, civil commotion or industrial disputes.

Save for the Kieren and Walt Group Pty Ltd, no person who is not a party to this Agreement shall have or acquire any right to enforce any term of this Agreement.

Definitions

“Conditions” means these Terms & Conditions (which are subject to change from time to time without notice to any customer) including the further Terms & Conditions as displayed here and on our website;

“Client” means a person, firm or corporation (and includes their agents and/or representatives), jointly and severally if there is more than one, acquiring Services from Dynamic Visuals Australia;

“Services” means services supplied by Dynamic Visuals Australia to the Customer, being the production of video content.