1. Scarlett Media is a video production business. The Services that We provide lead to the production of films and other types of video content (“Material”) for You to use on an exclusive licence. The terms on which We provide the Services, produce the Material, and permit You to use it, are set out below and referred to as our ‘Standard Terms’. The Standard Terms incorporates the Proposal along with any agreed amendments or alterations between You and Us as the Parties to this Agreement. The interpretations and definitions at the end of this Agreement apply to all our Standard Terms.
2. When You enter a contract with Us on our Standard Terms.
- 2.1. We will issue you a Proposal, which sets out the processes and procedures we research and develop to best deliver our Services to you and to produce the Material. The Proposal is the first of two stages to retaining Us. The second stage is when we start work preparing timeframes, locations, booking extras, hiring equipment and the like to film and edit the final product, which is the Material defined herein.
- 2.2. The Proposal does not include creative elements of our Services, which are provided You commit to us starting stage two.
- 2.3. The Proposal is charged as a fixed fee. The fee amount is deducted from our total fee for completing stage two.
3. Our Services centre around the production of videos and include:
- 3.1. Pre-production for the planning, budgeting, contracting extras, researching locations and logistics of the production.
- 3.2. Production to shoot the film, including audio recordings and voice overs, coordinating with actors and film-crew, and preparing for post-production.
- 3.3. Post-production to edit and settle the final product, including sound editing, special effects and credits.
- 3.4. Distribution, which is an available service if you are commercialising the end film Material including different mediums to display the Material including television, theatres, social media and websites.
PROVIDING OUR SERVICES
4. We provide our Services to produce Material:
- 4.1. The quality of the Material we produce is of paramount importance to Us. You acknowledge that We may refuse to perform certain work if we reasonably believe that work will compromise the quality of the Material we produce.
- 4.2. Our Services are based on industry standards and developed from our experience in the industry. You agree to comply with our reasonable directions relating to communicating with third parties because that may affect our ability to provide our Services to the standard we need.
- 4.3.. You appoint us as agent in every reasonable respect to ensure We control communications that relate to the Parties’ contract on these Standard Terms.
- 4.4. Our Services are industry-specific and may change to adapt to industry trends. You acknowledge and permit us to change the scope of our Services from time to time where it is consistent with the overarching intention of these Standard Terms.
- 4.5. You permit Us to use edited and unedited physical and/or electronic material that You provide us or that we create pursuant to the Contract between Us.
- 4.6. If You provide Us material that We use to provide our Service and to create any Material, You warrant and confirm you are permitted at law to provide that material. You shall indemnify Us for any expense, damage or injury We suffer in any way if the Material that You provide Us breaches any law or infringes any legal right.
- 4.7. Any IP that attaches to material We create, whether that is provided to You as Material on these terms or otherwise, remains our Property.
- 4.8. You agree to meet any reasonable request We make. You acknowledge that if you do not meet any of our reasonable requests, that may have a detrimental impact on the quality of the Material we produce, and it is for this reason that failing to do so is a Termination Event.
5. You grant us a licence during the operation of this Agreement and subject to these Standard Terms as follows:
- 5.1. A full, irrevocable, and non-exclusive licence to provide our Services.
- 5.2. This licence shall be effective from the date of execution of this Agreement and continue until the Parties’ rights and obligations extinguish under this Agreement. We may use any tools, software, or equipment necessary for us to provide our Services, provided that such use does not violate any applicable laws or regulations or infringe any third-party rights.
- 5.3. We shall be solely responsible for the quality and performance of the Services provided to You under this Agreement. You shall have the right to review and approve all work performed by Us before it is deemed final and complete.
- 5.4. This licence shall not be transferable or assignable by Us without your prior written consent.
- 5.5. This licence shall not be revoked by You unless an applicable event in this Agreement occurs, which includes either full performance, a Termination Event, or order by a court within the Jurisdiction.
- 5.6. The licence permits Us to represent our association with You and agency to bind You to third parties for the purpose of Us providing the Services to produce the Material provided We act on your instructions before you are bound.
CANCELLATION OF SERVICES
6. Cancelling a Service may not be a Termination Event provided You comply with the following requirements:
- 6.1. Cancellation requests must be submitted to Us in writing. You may submit your cancellation requests by email, fax and/or direct mail.
- 6.2. Cancellation request will not be considered valid until You have received written confirmation that We have received the request.
- 6.3. If You cancel during engagement of our Services, You will be required to pay any costs already incurred by Us with respect to the Service (including any content production costs) and the total fees or disbursements owing for the Service already provided.
PREPARING THE PROPOSAL
7. When we develop our Proposal, we will:
- 7.1. Hold a strategy session with You, where we ask you for information about what You want Us to produce.
- 7.2. Research your brand, business, competitors, clients, target audiences and the like and as appropriate.
- 7.3. Determine what we think is the best type of film for you.
- 7.4. Provide You with a Production Schedule, which includes a scope of the work, timeframes, budgets, and total cost.
8. To help Us develop our Proposal, we require from you:
- 8.1. Your fixed or estimated budget.
- 8.2. A style guide with any current brand images, fonts and colour schemes.
- 8.3. Timeframes or deadlines you need to meet.
- 8.4. A payment of $1,000 +GST, which is deductible from our total costs.
PROJECT DELAYS AND LIABILITY
9. The following terms control our liability to You for the provision and standard of Services that We provide for You under these Standard Terms:
- 9.1. Our estimates of dates We will provide any part of the Services is contingent upon You providing complete instructions to Us and fully cooperate with Us until We have ceased providing Services to You, which may not be when the Material is provided and/or Material Licence is granted to You.
- 9.2. You must be or appoint a person who has complete authority to provide Us instructions and respond to our requests for information and/or instructions until We cease providing the Services to You.
- 9.3. Any person appointed must be available to respond to communications from Us on every day that is a business day in South Australia as we may request information and/or instructions from you at short notice.
- 9.4. If You reject the Material as a final product and after it has been edited, unless it is an obvious mistake or poor workmanship by Us, then a full re-shoot and editing will incur further costs, fees, charges and/or disbursements.
- 9.5. You hold us harmless for project delays that are caused by lack of communication by You, an equipment failure, Force Majeure Event, or any other reason not directly our fault and that has makes it unreasonable to complete or provide the Services.
10. The Parties agree as follows:
- 10.1. to retain the Confidential Information of the other parties in confidence and only disclose it to such of their directors, officers, attorneys or employees for the purposes of this Agreement, provided always that nothing contained herein shall prevent the receiving party from referring to the Confidential Information in a general sense without specific disclosure thereof;
- 10.2. not to disclose the Confidential Information to anyone without the prior written consent of the disclosing party;
- 10.3. not to use the Confidential Information for any purpose other than in connection with the provision of this Agreement;
- 10.4. not to copy any of the Confidential Information for any purpose, other than in connection with this Agreement.
11. The restrictions mentioned in this clause shall not apply to information that:
- 11.1. is in the public domain at the time it is disclosed or after disclosure thereof and in such case, through no wrongful act of the receiving party;
- 11.2. the receiving party can establish was known to it prior to disclosure of that Confidential Information by the disclosing party;
- 11.3. the receiving party can establish the information was independently developed by it without knowledge of or disclosure of the Confidential Information;
- 11.4. is shown by the receiving party to have been received from a third party who is not under an obligation of secrecy to the disclosing party with respect to the same;
- 11.5. is required to be disclosed by an order of any court of competent jurisdiction or tribunal or regulatory body;
- 11.6. is required to be disclosed pursuant to any procedure for discovery of documents or any proceedings before any such court tribunal or body;
- 11.7. is required to be disclosed pursuant to any law or regulations having the force of law.
12. The receiving party must use reasonable endeavours to:
- 12.1. Establish and maintain effective security measures to safeguard the Confidential Information and its access, use, copying or disclosure;
- 12.2. Prevent or stop and comply with all reasonable directions of the disclosing party in respect of suspected, or actual, breaches of the covenants in this Agreement.
- 12.3. The receiving party shall within 24 hours notify the disclosing party if it becomes aware of any suspected or actual unauthorised access, use, copying or disclosure by any person, firm or corporation to whom it has divulged all or any part of the Confidential Information or who becomes aware of it in an unauthorised way and shall give the disclosing party all reasonable assistance in connection with any proceedings that the disclosing party may institute against such person, firm or corporation for breach of confidence or otherwise.
- 12.4. The receiving party further agrees that all Confidential Information remains the property of the disclosing party. Upon the disclosing party’s written request, the receiving party must, at the disclosing party’s option, either return to the disclosing party or destroy all such Confidential Information together with any summaries or extracts from such information and all copies or adaptations thereof, which the receiving party may have in its possession or control including removal of any such information from electronic storage. The receiving party must ensure that all parties to whom it has disclosed such information will comply with the disclosing party’s request. The receiving party agrees to give the disclosing party a written notice stating that it has returned or destroyed all Confidential Information in accordance with this clause;
- 12.5. The receiving party’s obligations under this Agreement will be operative for a period of 2 years from the termination of this Agreement, and will survive the termination of association with the disclosing party regardless of the manner of such termination and will be binding upon the receiving party’s successors and assigns.
- 12.6. No failure to exercise, or delay in exercising, on the part of the disclosing party, any right power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege hereunder preclude the further exercise of the same right or the exercise of any other right hereunder.
- 12.7. In event of the breach of any covenant of this Agreement by the receiving party, the disclosing party may by notice in writing terminate the Agreement immediately and demand return of all of the Confidential Information and seek such other remedies as it may have in relation to damages or compensation for any loss suffered and to restrain the receiving party from using, divulging or dealing with the Confidential Information in any manner whatsoever.
- 12.8. The disclosing party hereby acknowledges and confirms that it is bound by the terms of this Agreement in relation to any confidential information of the same nature as the Confidential Information which is disclosed to it by the receiving party and it will treat any such information, which is revealed to it but is so revealed upon the basis of it being confidential, in compliance with the terms of this Agreement as if they applied to the disclosing party as being in the place of the receiving party, and vice versa, and as if Confidential Information means such information disclosed by the receiving party to the disclosing party.
13. The following provisions determine the definition, operation and ownership of Intellectual Property (“IP”) in this Agreement:
- 13.1. IP means any patent, design, trade mark, copyright, know-how, trade secret or other form of intellectual property (whether protectable by registration or not) recognised in Australia and including any technology, concept, idea, data, program or other software (including, without limitation, in source and object codes), specification, formula, drawing, program, design, system, process, logo, mark, style or other matter or thing, existing or conceived, used, developed or produced by us and that we already own or create in the course of providing You the Services and producing the Material, or that You own and licence Us to use or that you are licenced to use and permitted to extend that use to us.
- 13.2. We own or have obtained valid and enforceable licenses to use the IP we utilise to provide the Services and produce the Material. To our knowledge, and except as would not reasonably be expected, there are no third parties who have rights to any Intellectual Property, except for customary reversionary rights of third-party licensors with respect to Intellectual Property at the time of the Proposal, who claim infringement of rights the hold over the Intellectual Property.
- 13.3. You warrant and declare that in relation to your IP that we use in providing the Services and producing the Material, and except as would not reasonably be expected, there are no pending or, to your knowledge, threatened action, suit, proceeding or claim by others:
- 13.3.1. challenging your rights in or to any Intellectual Property, and You are not aware of any facts that would form a reasonable basis for any such action, suit, proceeding or claim;
- 13.3.2. challenging the validity, enforceability or scope of any Intellectual Property, and You are not aware of any facts that would form a reasonable basis for any such action, suit, proceeding or claim; or
- 13.3.3. asserting that You or any of your subsidiaries infringes or otherwise violates, or would, upon the commercialisation of any Material we produce for You under this Agreement, infringe or violate, any valid IP, and You are not aware of any facts that would form a reasonable basis for any such action, suit, proceeding or claim.
- 13.3.4. Except as would not reasonably be expected, You and your subsidiaries have complied with the terms of any and all agreements pursuant to which IP has been licensed and/or assigned to You or any subsidiary, and all such agreements are in full force and effect.
- 13.4. Our IP remains our property at all times and that ownership does not vary or change in any way because we use it to provide You the Services and/or produce the Material. By entering the Contract on these Standard Terms, you are acknowledging that you have no right over or interest in our IP, or the IP we utilise that may be owned by a third party.
FEES AND PAYMENT
14. The following general provisions apply to this Agreement and underpin the Proposal:
- 14.1. Payments for each stage of our Services as set out in the Proposal are to be paid in advance of each stage commencing.
- 14.2. Fees charged are exempt of GST and other taxes, and those taxes are identified on our invoices as additional expenses.
- 14.3. You agree to cover our GST liability for the Services We provide You and the fees We charge for same.
- 14.4. If there is a change in the scope, process, timing or order of things as set out in the Proposal, We may charge additional items of fees or adjust a fee amount. We will make those changes without notice if the nature of the change is in our reasonable opinion minor and in line with the overarching matters set out in the Proposal.
- 14.5. Payments:
- 14.5.1. are payable anytime from when they are issued;
- 14.5.2. due no later than seven (7) days from when they are issue;
- 14.5.3. overdue fourteen (14) days from when they are issued; and
- 14.5.4. Provisions relating to Notices under this Agreement apply to this clause.
- 14.6. Disbursements that We incur are on your behalf and You agree to indemnify us for the costs of those disbursements in addition to our own fees.
- 14.7. For the sake of clarity on intention, disbursements include but are not limited to insurances, council permission applications, wardrobe costs, props, catering, talent acquisition, travel, specialised equipment hire, venue hire and cleaning services.
- 14.8. You agree that if You fail to make a payment owing to us under this Agreement whether they be fees or disbursements, We may charge you interest at two percent (2%) per annum over the cash rate set by the Reserve Bank of Australia and from the date after the day on which the payment becomes overdue.
- 14.9. A breach of this section is intended to fall within provisions of a Termination Event as defined in this Agreement.
15. Subject to performance by You on these Standards Terms and completion of the Material pursuant to the Proposal, We grant You a licence to use the Material as follows:
- 15.1. The Material Licence has key terms. The Material Licence:
- 15.1.1. Is for the length of time stipulated in the proposal and may or may not be ongoing. If the length of time is limited, We will contact you toward the end of the Licence to discuss any extension of licence or purchase of the material and further associated costs.
- 15.1.2. You may request an extension of the Licence to include or change platforms for use but We reserve the right to refuse that request unconditionally. Any change or the Licence may incur additional charges.
- 15.1.3. Is granted for use in the geographical area stipulated in the Proposal and may or may not be worldwide and/or online.
- 15.1.4. Is royalty-free.
- 15.1.5. Is exclusive.
- 15.1.6. Is not transferable.
- 15.1.7. Cannot be modified or adapted other than permitted at law within the Jurisdiction.
- 15.1.8. Can be commercially exploited.
- 15.1.9. Can be associated with third parties but only where they are lawful associations and do not, in our reasonable interpretation, bring Us and our reputation into disrepute.
15.2. A ‘modification’ has its ordinary industry and legal interpretation but for clarity and to assist with our intention, the following modifications are not permitted:
- 15.2.1. A change to the displayed resolution;
- 15.2.2. Removal of credits and any other form of cropping or change to the recorded length of the Material;
- 15.2.3. Removing, adding to or isolating audio or visual aspects of the Material;
15.3. The exclusivity of the Material Licence does not prevent Us from using the Material as we see fit provided it is not, in our reasonable opinion, detrimental to your commercial interests, including not using the Material in a competitive way against You.
15.4. You may only use the Material in the material or digital forms or formats that we permit, and which may change from time-to-time.
15.5. Express exclusions for using the Material are:
16. Each of the following events is a Termination Event exercisable by Us and under this Agreement:
- 16.1. You fail to pay an amount owing to Us in accordance with this Agreement and following the expiry of time given to You in a Notice by Us.
- 16.2. You fail to perform an act required of you under any term or condition of this Agreement, that in our reasonable opinion frustrates our ability to perform on this Agreement in a way that cannot be remedied, or if that remedy is a monetary amount, it is in our reasonable opinion disproportionate to the fees we otherwise charge You under this Agreement.
- 16.3. You make a representation to Us, or give Us information in connection with this Agreement, and in our reasonable opinion is untrue or misleading in a material way that either frustrates our ability to perform on this Agreement or is detrimental to Us in any way including but not limited to our reputation, business operations or other business interests.
- 16.4. If You are a company:
- 16.4.1. a person is appointed over your affairs either voluntarily or by order of a court.
- 16.4.2. You are a party to court proceedings relating to your solvency.
- 16.5. In our reasonable opinion You perform an act or omission that brings your reputation into disrepute that by association affects our business or business interests.
- 16.6. You breach a term of the Licence we grant You over the Material or permit anyone else to use the Material the subject of the Licence either directly or indirectly or by omission.
- 16.7. You instruct Us, or fail to instruct Us, in a way that in our reasonable opinion prevents Us from providing the Services at least at industry standards.
- 16.8. You attempt to assign or otherwise deal with your rights or obligations under this Agreement without our prior written consent.
- 16.9. You fail, refuse or neglect to comply with the general provisions to these Standard Terms.
17. A Notice under this Agreement has the following definition and application:
- 17.1. Any notice required or contemplated by this Agreement is deemed to have been properly given to a party if it is in writing, properly addressed and delivered personally, or mailed postage prepared addressed or by facsimile to the party at its addresses, or such other address nominated by a party in writing.
- 17.2. Any notice to be given by one party to any other must be signed by the party giving the notice or by one of its officers or its duly authorised lawyer or agent and must be hand delivered or sent by prepaid post or email to the address, or email address (as the case may be) shown at the commencement of this Agreement (or any other address, or email address that a party may notify to the other) and will be deemed sufficiently given:
- 17.3. in the case of hand delivery, on the date of delivery.
- 17.4. in the case of prepaid Express post, two (2) Business Days after being sent by prepaid Express post; or
- 17.5. in the case of email, on the day of transmission provided that the sender can give evidence of transmission and the intended recipient does not give evidence of non-receipt.
18. If We cannot carry out an obligation under this Agreement either in whole or in part because of anything outside our reasonable control, including without limitation, the declaration of a national emergency or pandemic, fire, rain, flood, storm, earthquake, explosion, accident, road or rail closures, rail derailment, wharf delays, war, terrorism, sabotage, epidemic, quarantine restriction, labour dispute or shortage, act or omission of any third person or public authority (‘Force Majeure Event’), then Scarlett Media’s obligations under this Agreement will be suspended for the duration of the event or waived to the extent applicable.
19. Nothing in this part derivates or limits any other aspect of this Agreement, and in particular payment provisions.
20. This Agreement contains the entire terms agreed between the parties. The only enforceable obligations and liabilities of the parties in relation to this Agreement are those that arise out of the terms contained in this Agreement. And any all representations, communications or prior agreements in relation to the subject matter of this Agreement superseded by this Agreement.
21. Any provision in this agreement which is invalid or unenforceable in any jurisdiction:
- 21.1. is to be read down for the purposes of that jurisdiction if possible; or
- 21.2. if cannot be read down, is to be severed to the extent of the invalidity or unenforceability for the purposes of that jurisdiction, so as to be valid and enforceable in that jurisdiction.
LIABILITY OF PARTIES
22. If two or more parties are included within the same defined term in this Agreement:
- 22.1. a liability of those persons under this Agreement is a joint liability of all of them and a several liability of each of them.
- 22.2. a right given to those parties under this Agreement is a right given severally to each of them; and
- 22.3. a representation, warranty or undertaking made by each of them is made by each of them in respect of itself.
- 22.4. An individual representing a company is held in joint and severable liability to Us for that company and irrespective of whether the individual is an officer of the company as defined at law and by legislation.
23. If a dispute as to the force, effect, operation, validity or performance of or pursuant to this Agreement arises from one or more Parties, then that Party or those Parties agree as follows:
- 23.1. A dispute must be approached and attempted to resolve in good faith and in a commercial responsible way.
- 23.2. A Notice of the dispute must be given to all other Parties five (5) Business Days clear of a proposed meeting to resolve the dispute.
- 23.3. Nominated representatives, legal or otherwise, are permitted to represent the Parties at a dispute meeting.
- 23.4. If the dispute does not resolve at the dispute meeting, and also remains unresolved for a further five (5) Business Days, the Parties shall nominate a mediator to conduct a second dispute meeting. A second dispute meeting must be held within twenty Business Days from conclusion of the first dispute meeting.
- 23.5. If the parties cannot agree on a mediator or an important matter necessary to conduct a second dispute meeting, then the party raising the dispute must to all things necessary to cause the Law Society of South Australia to appoint a mediator for the Parties and the cost of that mediator shall not be disputed and shall be born equally by the Parties.
- 23.6. A Party may not commence Court proceedings until a mediator formally determines a resolution was unsuccessful between the Parties at a second dispute meeting.
- 23.7. The dispute process set out herein does not act as pre-action notice for the purpose of Court proceedings.
- 23.8. Notwithstanding any provision in this clause, nothing shall prevent a Party from seeking urgent interlocutory relief through court proceedings within the Jurisdiction.
JURISDICTION AND GOVERNING LAW
24. This Agreement will be governed by the laws of the Commonwealth of Australia and the State of South Australia. The parties agree to submit to the non-exclusive jurisdiction of the Courts of the State of South Australia.
25. The following terms apply:
- 25.1. Agreement – means the terms agreed to and recorded in this document, and on which the parties intend to be bound in a contract, and which includes the Proposal.
- 25.2. Business Day – means a day that banks ordinarily trade in the State of South Australia.
- 25.3. IP – is an acronym for ‘intellectual property’ and has the definition and application at clause 12 to the Agreement.
- 25.4. Jurisdiction – has the meaning and application at clause 24 to the Agreement.
- 25.5. Material – means the material created by Scarlett Media and used to produce the film including all raw footage, audio recordings including sound bites, film recordings, scripts, digital imagery, and metadata relating to each of the aforementioned.
- 25.6. Material Licence – is the licence granted to You and by Scarlett Media to use the Material on the terms and in the ways set out at clause 15 to the Agreement.
- 25.7. Parties – means all parties to this Agreement.
- 25.8. Proposal – means the presented summary or summaries of processes and budgeting developed as suitable solutions to produce and deliver the Material to you, and over which the Licence granted by Scarlett Media is granted to You.
- 25.9. Services – has the meaning and application at clause 3 to the Agreement.
- 25.10. Standard Terms – means the terms reduced to writing in this Agreement and read as totality of the terms agreed between the parties.
- 25.11. Termination Event – is one or any other of the events set out at clause 16 to the Agreement.
- 25.12. You – means the party accepting Scarlett Media’s Standard Terms as recorded in the Agreement.
- 25.13. We – means Scarlett Enterprises Pty Ltd ACN 619 439 422 and trading as Scarlett Media, or any of its registered names under ABN 51 619 439 422 at such times as those names are the property of Scarlett Enterprises Pty Ltd.
26. In this Agreement, unless the context otherwise requires:
- 26.1. words importing the singular meaning include the plural and vice versa where the context grammatically requires and including necessary construction of identifying the parties to this Agreement including possessive expressions such as ‘your’ and ‘our’.
- 26.2. a reference to a “person” includes a corporation and words importing one sex imports the other.
- 26.3. references to any legislation or to any provision of any legislation shall include any modification or re-enactment, or any legislation or legislative provision substituted for or corresponding or similar to, and all legislative and statutory instruments issued under such legislation or such provision.
- 26.4. a reference to a clause, paragraph, item, or schedule is a reference to a clause, paragraph, item or schedule of this Agreement.
- 26.5. a reference to a party to a document includes that party’s legal personal representatives, heirs, executors, administrators, beneficiaries, successors and permitted assigns.
- 26.6. a reference to “$” or “dollars” is to Australian currency.
- 26.7. headings and any table of contents or index are for convenience only and do not affect the interpretation of this agreement.
- 26.8. “including” and other similar words are not words of limitation.
- 26.9. general words following words describing a particular class or category are not restricted to that class or category;
- 26.10. a list of words is not intended to be exhaustive unless expressly stated to have that intention; and
- 26.11. in the event an act under this Agreement is due to be performed on a day that is not a Business Day, that act shall be performed on the next Business Day.
27. The following provisions operate In Globo to these Standard Terms:
- 27.1. Nothing in this Agreement is to be read as excluding, restricting or modifying the application of any legislation that by law cannot be excluded, restricted, or modified.
- 27.2. Subject to the preceding subclause, any representation, warranty, condition or undertaking in relation to the performance of the Services that (but for this clause) would be implied in this Agreement by law, is excluded.
- 27.3. Any liability We may have for any failure to comply with a consumer guarantee imposed by the Australian Consumer Law, or any condition or warranty implied into this Agreement by legislation that cannot be excluded is not excluded but to the extent permitted by law is limited to (at our option) in the case of the Services:
- 27.3.1. re-supplying the Services; or
- 27.3.2. paying the cost of re-supplying the Services.
- 27.4. To the extent that our liability cannot be or is not otherwise limited according to this clause, under no circumstances will our total aggregate liability under this Agreement, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the actual amounts paid to Us by You under this Agreement.
- 27.5. You assume sole responsibility for the use of the Services in your business operations in line with the Material Licence and You hereby indemnify Us (and keep Us indemnified), our officers, employees, agents, and contractors from and against all liability, losses, actions, claims (including third party claims), demands, proceedings, awards, settlements, compensation, damages, costs and expenses, directly or indirectly arising from, or relating to:
- 27.5.1. Your use of, or reliance on, any part of the Services and/or the Material; or
- 27.5.2. any other person’s use of, or reliance on, any part of the Services and/or the Material that were provided to that person directly or indirectly by You.
- 27.5.3. a breach or failure to perform Your obligations under this Agreement; or
- 27.5.4. any wilful, unlawful or negligent act or omission by You.
- 27.6. If We are liable to You by a negligent act or omission that contributes to you suffering loss, you agree that loss is to be reduced proportionately to the extent of our negligent act or omission.
- 27.7. For the avoidance of doubt, and to the full extent permitted by law, You agree that We are not liable for:
- 27.7.1. Any increased costs, expenses or disbursements;
- 27.7.2. Special, indirect, or consequential injury, damage or expense whatsoever and howsoever arising, loss including (but not limited to) loss of opportunity and/or loss of profits, revenue, business savings, clients, contracts, revenue, interest, or goodwill, suffered or incurred by You because of the provision of the Services under this Agreement; or
- 27.7.3. Any loss, expense resulting from a claim by a third party or damage suffered by You or any third party due to Your negligent or improper use or of the Services and/or Services Material.
- 27.8. You acknowledge and agrees that the content, views and opinions expressed in the finished works produced for You and by Us are solely yours. The finished Material is intended to represent your opinion and in no way reflects our, our employees, or our subcontractors’ views or opinions.
- 27.9. You indemnify and hold us harmless from any claims or legal actions related to the content in the final Material through its use on any website or social media platform whatsoever.
- 27.10. Each Party is liable for their legal costs of and incidental to the preparation and completion of this Agreement.
- 27.11. Failure or neglect by either party to enforce at any time any of the provisions of this Agreement is not to be construed nor deemed to be a waiver of that party’s rights under this Agreement nor in any way affect the validity of the whole or any part of this Agreement nor prejudice that party’s rights to take subsequent action.
- 27.12. If any provision of this Agreement proves to be illegal or unenforceable for any reason, that provision is deemed omitted without affecting the remaining provisions and the remaining provisions of this Agreement shall continue in full force and effect.
- 27.13. Our failure, delay, omission, or neglect to enforce a term of this Agreement is not to be taken as a waiver of that term or our rights, or a consent to, a waiver of, or any excuse for any different, continuing, or subsequent breach.
- 27.14. You permit Us to sub-contract any Services that We provide You as We see fit.
- 27.15. You permit us to request you provide Us with a police clearance, working-with-children clearance, or other form of suitable person requirement as may be the case, and not providing same is a Termination Event as defined herein.