Terms & Conditions

INTRODUCTION

This Agreement (“Agreement”) is made between  (“You”, “Your” or “Client”) and SCARLETT ENTERPRISES PTY LTD T/AS SCARLETT MEDIA ABN 51 619 439 422 (“We,” “Our,” “Us,” or “Scarlett Media”), and governs how We will provide our services to You (the “Services”).

Please review this Agreement carefully as it creates a legally binding contract and comprises the entire agreement between You and Us in relation to Your use of the Services. By accessing the Services and or by accessing or using any of the Services, You agree to be bound by the terms of this Agreement.

DEFINITIONS AND INTERPRETATION

The following definitions apply to this agreement (unless the context otherwise requires):

 

‘Agreement’ means this agreement and any Services Schedule(s) as amended from time to time.

‘Background IPR’ means a party’s IPR that existed prior to, or created independently of, this Agreement.

‘Business Day’ means a day that is not a Saturday, Sunday, or public holiday in the state of South Australia.

‘Changes’ are variances from the supplied or agreed script. Changes requested by You may be liable to additional charges from Scarlett Media. For the avoidance of doubt, new footage, new titles, new order of edit points, a new voice over and generally anything that is new to the supplied script/brief or story board is described as a Change.

‘Commencement Date’ means the date the Services are to commence as specified in the Services Schedule.

‘Completion Date’ means the date the Services will cease as specified in the Services Schedule.

‘Confidential Information’ means confidential information of a party and includes information whether verbal, written or in some other form, including but not limited to electronic form, relating to:

  1. knowledge or information regarding the business transactions, affairs, personnel, clients or suppliers, property, policies, procedures or activities of a party;
  2. any document which is marked confidential; and
  3. any document or information which a party advises the other party is confidential; but does not include information which:
  4. is or becomes public knowledge other than by breach of this Agreement;
  5. was known by the recipient as at the date of this Agreement; or
  • has been independently developed or acquired by the recipient without reference to the disclosing party’s Confidential Information.

where the burden of establishing any of the exceptions referred to in (i) to (iii) will be upon the recipient.

‘Data’ means all data and information relating to the parties, and its operations, facilities, customers, personnel, assets and programs (including, but not limited to, financial and accounting data, reconciliations, summaries, client lists, sales data, employee data, business analytics, personal information) in whatever form that information may exist.

‘Episodes’ means____________________________

Fee’ means the money payable to Scarlett Media for the Services and any incidental costs as set out in Services Schedule.

Force Majeure Event’ has the meaning ascribed to it in clause 19.1.

Intellectual Property Rights’ or ‘IPR’ means the property of our mind or proprietary knowledge. It is a productive new idea we create. It includes but is not limited to all statutory and proprietary rights in respect of copyright and neighbouring rights, trademarks (both registered and unregistered), inventions (including both registered and unregistered patent rights), designs, brands, our business ideas, the application of our ideas, the right to have Confidential Information (including trade secrets and know-how) kept confidential, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. These rights include:

  1. all rights in all applications to register those rights; and
  2. all renewals and extensions of these rights.

Material’ means any scripts, video, photographs, content (whether printed or digital), plans, creative ideas that have been reduced to writing, software, firmware, documented methodology or process, tools, object libraries, documentation or other material in whatever form, including without limitation any reports, specifications, business rules or requirements, user manuals, user guides, operations manuals, training materials and instructions, and the subject matter of any Intellectual Property Rights.

‘Parties’ means both Scarlett Media and the Client and Party means either Scarlett Media or the Client individually.

Production Price’ means the price of production as set out in the Proposal and/or Services Schedule, or as agreed between the parties in writing.

Services Schedule’ means the Services Schedule annexed to this Agreement.

Proposal’ means a proposal submitted by Scarlett Media to the Client for the provision of the Services.

‘Services’ means the services described in the Services Schedule.

Special Conditions’ means the special conditions specified in the Services Schedule (if any).

  • In this agreement, unless the context otherwise requires:
  1. words importing the singular meaning include the plural and vice versa, any reference to a “person” includes a corporation and words importing one gender import all others.
  2. 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.
  3. a reference to a clause, paragraph, item, or schedule is a reference to a clause, paragraph, item or schedule of this agreement.
  4. a reference to a party to a document includes that party’s legal personal representatives, heirs, executors, administrators, beneficiaries, successors and permitted assigns.
  5. a reference to “$” or “dollars” is to Australian currency.
  6. headings and any table of contents or index are for convenience only and do not affect the interpretation of this agreement.
  7. “including” and other similar words are not words of limitation.
  8. general words following words describing a particular class or category are not restricted to that class or category; and
  9. in the event an act under this agreement is due to be performed on a day which is not a Business Day then that act shall be performed on the next Business Day.

PROPOSALS

Scarlett Media has issued a Proposal to the Client as set out in the attached Services Schedule in respect of the Service(s) sought by the Client. The Proposal remains open for acceptance for up to 14 days from the date of issue. Scarlett Media may withdraw a proposal at any time with written notification to the Client. You can accept a proposal by signing a copy of it and returning to Scarlett Media, or if You instruct Scarlett Media to proceed after the proposal has been delivered (Proposal Acceptance).

 

    • Throughout the proposal formulation process, You agree to:
  1. Conduct yourself honestly and in good faith.
  2. Work with us to set reasonable expectations with regards to Service level and budget.
  3. Keep all discussions confidential.
    • Upon Proposal Acceptance, Scarlett Media will:
  4. issue a Services Schedule setting out the following details:
  5. The Services to be provided and timetable for the provision of those Services.
  6. Any specifications for the Services including content/ material or other information required to be supplied by the Client.
  • Pre-production guidelines (if any).
  1. A brief, a script, or a production plan outline for the preparation of the Services.
  2. The fee payable to Scarlett Media for the Services and the payment schedule for it.
  3. Payment to be made in instalments of 50% pre-production, 25% production and 25% upon completion.
    • Once You accept the Services Schedule and pays the specified 50% pre-production payment, Scarlett Media will begin providing the Services in accordance with the Services Schedule. You can accept a Services Schedule by signing a copy of it and sending it to Scarlett Media, or by e-mail. To the extent of an inconsistency between these Terms and a Services Schedule, the Services Schedule prevails.
    • Any proposal that Scarlett Media gives is based on the information that was provided to Scarlett Media at the time of the proposal.
    • If that information is later found to be inaccurate or there is a change to the nature or scope of the Services or if circumstances change, Scarlett Media may charge an additional amount calculated on a time and materials basis at Scarlett Media ’s standard scale of charges.
    • All content contained in the proposal including (but not limited to) the production plan, brief or script outline, or any other Material created for the delivery of the Services are the exclusive property of Scarlett Media in which valuable Intellectual Property Rights subsist. Scarlett Media may take action to protect its rights if it becomes aware or suspects that these rights have been infringed (or an infringement is about to occur).

FEE AND PAYMENT

    • The Fees for the Services are set out in the Services Schedule. Prior to commencing the Services, the Client must pay a deposit as directed by Scarlett Media. Scarlett Media reserves the right to refuse to commence the Services in the event the deposit is not received (unless Scarlett Media confirms otherwise in writing).
    • All fees are exclusive of GST and other taxes. You are responsible for GST and all applicable taxes levied on the fees payable under a service. Such amounts are in addition to the payment for the Services and will be added to any invoice.
    • All Fees are payable by You within 7 days of receiving a valid tax invoice from Scarlett Media or as otherwise agreed and specified in the Services Schedule.
    • If there is a change in the scope, timing, or order of the Services, then Scarlett Media charge additional Fees on a Time and Materials basis or as otherwise set out in the Services Schedule.
    • Where a payment falls overdue, Scarlett Media may elect to charge interest at the rate of 2% over the cash rate set by the Reserve Bank, from the date the payment becomes overdue.
    • Where any payment is overdue by more than 14 days Scarlett Media reserves the right to suspend the Services until payment is made. You must also pay Scarlett Media any expenses incurred in the recovery of payment from You.
    • Where a payment is overdue by more than 60 days, Scarlett Media al has the right to terminate this Agreement in accordance with clause 16.
    • Any disbursements incurred because of providing the Services will be reimbursed in full to Scarlett Media upon submission of receipts to You.

 

Additional fees apply for High-risk insurance, council permission, wardrobe, props, catering, models,

PROVISION OF THE SERVICES GENERALLY

During the Term Scarlett Media will:

 

  1. Provide the Services and/or Inclusions set out in the Services Schedule.
  2. Provide the Services to You with all due care and skill and in a professional manner consistent with generally accepted industry standards; and
  3. Deliver the Services to You in a timely manner.
  1. VIDEO PRODUCTION AND PHOTOGRAPHY
    • Scarlett Media will provide video production services to You in relation to the creative artistic work. The specific nature of the services that Scarlett Media will provide will be as agreed in writing by Scarlett Media and You and contained in a written Proposal and Services Schedule.
    • Scarlett Media has the right to use edited or unedited video files produced pursuant to these Terms and Conditions for promotional or commercial purposes unless an alternative arrangement is made between Scarlett Media and You. All IPR (including copyright) in such segments belong exclusively to Scarlett Media.
    • No Intellectual property rights (including copyright) is transferred unless in accordance with these Terms.
    • Upon delivery and full payment enables full copyright of the final edited videos and any scripts written by Scarlett Media to be assigned to the business owner for online use only in perpetuity. These videos are not permitted to be reedited for further marketing without consent from Scarlett Media. Raw footage remains the copyright of Scarlett Media. Additional fees apply for TV and Cinema Advertising distribution or ownership of raw footage.
    • All footage will be filmed at broadcast quality 4K.
    • The Parties will agree on two dates for filming in case there is inclement weather on the first date.
    • If Client cancels prior to filming, the Client agrees to pay a cancellation fee, which will be 10% of the Production Price.
    • All deposits paid to Scarlett Media to secure the Services are non-refundable.
    • If weather becomes inclement during filming, the Client will be liable to pay for a reshoot.
    • All actors must sign a release form for video production and photography.
    • The Client acknowledges that Scarlett Media cannot film general public or emergency services, nor display logos (e.g. Cocoa Cola).
    • If a Support Worker is required for talent, the Client will incur this cost.
    • All photography will be delivered as JPG files. Scarlett Media can arrange for printed photos upon request and upon payment of a fee.
    • Provided that:
  2. The business owner caters to Scarlett Media’s needs to fulfil the production of all videos by way of information, staff, photographic stock, logos, motion graphics, fonts and any other information requested by Scarlett Media; and
  3. There are no extreme unusual weather conditions or unforeseeable events,

 

  • The videos will be delivered at a negotiated date.
  • Once the video has been edited, we will conduct an hour consultation with You where you should point out any changes that need to be made.
  • If You want any further script editing/filming/animation/voice over, this is will be charge as an additional of $150 + GST per hour of editing or scripting. You must then notify Scarlett Media within two (2) days, whether the video is approved, or whether additional changes be required.
  • After this consultation, once the changes have been made, Scarlett Media will provide the Customer with a ‘final video’. The video will be delivered at 1080p and optimised for both resolution and size of file for best results for streaming and embedding for all platforms.
  • You must notify Scarlett Media of any errors in the final video within seven (7) days. Once the seven (7) days review period for the ‘final video’ has elapsed without notice from You, Scarlett Media may refuse to make any further changes (unless you agree to incur the Additional Fees as set out in the Services Schedule) and will issue the final Invoice.
  • After the videos have been advertised via various platforms online, we will be in contact to arrange a time to review how the videos are generating sales for You and Your business.
  • Raw Footage, video files, audio files and edited video files will be retained for up to twenty-four (24) months only and will then be disposed of, deleted or erased. If at the end of twenty-four (24) months Services have not been paid for, Scarlett Media reserves the right to dispose of all Raw Footage, video files, audio files, edited video files, recorded materials and finished works.
  • Whilst all reasonable care and preparation is taken for videography and editing, Scarlett Media will not be liable for any compensation except for return of any deposit paid, should a failure occur in all or any of the electronic equipment used or due to illness of the operators or person(s) employed or engaged by Scarlett Media or because of an unforeseen event or any dispute regarding the ownership of recorded materials.

GRAPHIC DESIGN AND WEBSITE DESIGN

    • Scarlett Media offers graphic design and website design as part of its service offering (Design Services).
    • Upon final invoice payment, the Client will be provided with a completed, approved new or redesigned website installed on the hosting domain of choice. Full site ownership, and any and all creatives used to create the website will be owned by the Client. Any subsequent website work after completion is given with consent of the Client and work will be performed in accordance with the Clients service expectations. After site completion, additional work is charged at an hourly rate.
    • Additional costs associated with site creation, will be outlined and provided in addition to the quote.
    • With all applicable materials and access provided, the client can expect to see regular weekly updates and completion within a reasonable timeframe agreed to in the proposal.
    • Client websites can be hosted and managed by Scarlett Media for an additional regular monthly fee and is not part of a website design quote.
    • Scarlett Media can also provide managed website hosting services depending on client needs.
    • The Client will own all IP rights in the logo and the website upon Scarlett Media’s receipt of the final payment (full Fees applicable to these Services).

SOCIAL MEDIA, ADWORDS, LIVESTREAM AND PODCASTS

    • All client social media channels, whether created or managed by Scarlett Media, are the property of the Client who are recognised as the sole owners. Any advertising, managed ad creatives, audience targeting are reflected as the property of the client when managed by Scarlett Media.
    • Any direct advertising costs are charged directly to the Client.
    • Credit card details and ABN are provided to Scarlett Media to establish direct billing for all client managed ads. Clients will be billed a set-up fee, monthly software and managed services fee for each social media channel. Managed advertising services are billed every 30 days and services provided take effect 30 days from the date of the paid invoice. 30 days written notice is required to cease managed advertising services. All payments are established via direct, credit or debit card only. All direct advertising costs incurred by the Client are the responsibility of the Client only.
    • All ads, targeting, budget and content is sent as a draft and approved by the Client prior to being published.
    • Ad drafts are presented to the Client within a reasonable time period after Proposal Acceptance, all creatives supplied, and any managed advertising settings have been created for the social channel(s).
    • Scarlett Media offers Google Adwords management as part of its service offering. The Client agrees to pay Scarlett Media a monthly management fee and a campaign fee. The Client agrees to pay Google directly through its credit card for all ads spend.
    • Scarlett Media works with Zoom and WebEX, but not Microsoft Teams. Scarlett Media is not responsible for failed internet connection or inclement weather. Scarlett Media can offer satellite service for a live streaming for a fee.
    • Where a studio booking is required, the studio must be booked for minimum half a day (4 hours).
    • A license fee will apply for all copyrighted music. Scarlett Media can offer the use of free license music.
    • Scarlett Media can arrange for copywriting of content at the Client’s request and upon payment of an additional fee.
    • Scarlett Media may offer additional Services to the client e.g. podcasting at an additional rate, to be negotiated between the parties.

TRAINING AND WORKSHOPS

    • Scarlett Media offers training for actors and in video production.
    • All training and workshop services offered are strictly non-refundable.
    • If the Client (or any of its personnel) attend a training course in acting, it must be prepared and committed.
    • Any Material provided by Scarlett Media in a training session or workshop is confidential and must not be distributed to any third parties.
    • Scarlett Media requires 24 hours notice for cancellation prior to any training session or workshop.

SUB-CONTRACTING

    • Scarlett Media reserves the right to sub-contract any Services that We has agreed to perform for You as it sees fit.

INTELLECTUAL PROPERTY

    • You acknowledge and agree that you own the Intellectual Property Rights in your trademarks and in any other Material you provide us for the provision of the Services. You warrant that use by Scarlett Media of Your Intellectual Property and/or Material will not infringe the rights of any third party.
    • All IPR in any Material (including but not limited to footage, graphic design, animation, or other creative artistic work) created or developed in the course of performing the Services (Services Material) will be, from the time of creation, owned by Scarlett Media.
    • You grant us a worldwide, royalty free, non-exclusive licence to publish, copy, licence (including the right to sublicense), to use, copy, modify and adapt. transmit, publish, and distribute, Your Intellectual Property and/or Material that you have provided to us (including existing content) in accordance with this Agreement for the provision of the Services and for Our internal business purposes. This does not apply to Your Material which you have classified as being confidential.
    • Upon the full payment of the Fees, Scarlett Media grants You an exclusive, royalty-free, worldwide, perpetual, transferable, sublicensable license to use, copy, modify, adapt, transmit, publish and distribute the Services Material, with the exception of any RAW files, for the purposes of promoting Your business and for other purposes as agreed with Us from time to time in writing.
    • Where the Client wishes to own the IPR in the Services Material, it will negotiate the terms of such assignment with Scarlett Media in good faith and on commercial terms. You agree that a Transfer Fee will be charged by Scarlett Media at this time.
    • You agree to indemnify Scarlett Media, its officers, employees and agents against all loss, liability, damage or expense (including legal costs on a full indemnity basis) arising in respect of any action or claim for:
  1. Infringement or alleged infringement by any third party of their intellectual property rights (breach of warranty);
  2. Infringement of Scarlett Media’s IPR in the Services Material caused by Your use of the Services Material in a way that contravenes the license terms; and
  3. Damages (monetary or otherwise, including reputational) suffered or incurred by Scarlett Media howsoever arising due to your breach of Your obligations under this clause.

CONFIDENTIALITY

    • Scarlett Media holds all client Material, including records of conversations and communications in the strictest confidence. We expect the same commitment from You in respect of Our Confidential Information, which includes our Proposal, Services Schedule, and the terms of this Agreement.
    • Each Party must always:
  1. maintain the secrecy and confidentiality of any Confidential Information of the other Party;
  2. not divulge or disclose to any other person, firm, corporation or entity any Confidential Information of the other Party;
  3. refrain from copying, transmitting, retaining or removing any Confidential Information of the other Party, or attempting to do the same; and
  4. use its best endeavours to prevent the disclosure of any Confidential Information of the other Party by or to third parties.
    • Neither Party will gain a right or interest in the other Party’s Confidential Information, other than for the purposes contemplated by this Agreement. 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 this Agreement. However, this obligation will not apply to information which: 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 the Party is obliged by law to disclose, provided that it has first advised the other Party of this obligation.
    • For the avoidance of doubt all methodologies, documentation and procedures used by Scarlett Media during any project or services are classified as Scarlett Media’s Confidential Information and may only be disclosed to staff of the Client on a need-to-know basis. Disclosure to third parties of this Confidential Information is strictly prohibited unless Scarlett Media provides its express written consent (which may be withheld in its absolute discretion).
    • You agree to comply with the Privacy Act 1988 in its dealings with Scarlett Media. In particular, You warrant that it has made all necessary disclosures and obtained all consents required under the Act in respect of personal information given to or accessed by Scarlett Media in connection with this Agreement.  You indemnify and keep indemnified Scarlett Media from and against all costs, losses, damages, claims and expenses arising from your breach of this warranty.
    • Where a data breach occurs, the parties will work together to comply with the provisions of the Privacy Act 1988 (Cth) and immediately take any steps within their control to minimise any risk arising from or associated with the data breach.

INDEPENDENT CONTRACTOR

    • Scarlett Media (including Our officers, employees, contractors, agents or representatives) is an independent contractor and not Your employee or agent, partner or joint venturer. Neither party represent that they are in partnership with the other nor will they pledge the credit or warrant the authority of the other party.
    • The manner of performance of the Services will be at all times within the judgement and discretion of Scarlett Media.

CANCELLATION OF A SERVICE

    • All cancellation requests must be submitted to us in writing. You may submit Your cancellation requests by email, fax and/or direct mail.
    • Your cancellation request will not be considered valid until You have received written confirmation from Us that we have received the request.
    • If You cancel the Services before the cancellation time below, You will not have to pay the Cancellation Fee, except for any costs already incurred by Scarlett Media with respect to the service (including any content production costs). Cancellation deadlines are as follows:
  1. Video production – 12 weeks before campaign start date.
  2. Website design – 8 weeks before campaign start date.
  3. Digital content – 10 weeks before campaign start date.
  4. Social content – 8 weeks before campaign start date.
    • If You cancel after the deadline, a Cancellation Fee will apply (and any applicable content production costs), equal to four (4) weeks of the Production Price or the total Fees payable for the Service.

TERM AND TERMINATION

    • This Agreement commences on the Commencement Date and continues until the Completion Date, unless otherwise agreed by the Parties or terminated earlier in accordance with this clause 16. The Parties may agree to extend the term of this Agreement in writing.
    • Subject to clause 15, either Party may terminate this agreement by giving 60 days’ written notice to the other Party (unless the parties mutually agree to an earlier termination date in writing).
    • Without limiting any other rights or remedies Scarlett Media may have against You arising out of or in connection with this Agreement, Scarlett Media may terminate the Agreement with immediate effect if You:
  1. Have not paid a correctly rendered invoice or has not notified Scarlett Media that it disputes the charges specified under an invoice within 30 days of receipt of that invoice; and
  2. Breach a provision of this Agreement and fails to remedy the breach within 14 days of receiving notice to do so; or
  3. Become insolvent or enter into liquidation or receivership or makes a composition or arrangement with its creditors generally or takes advantage of any statutory relief for insolvent debtors.
    • On termination of this Agreement or a Services Schedule, Scarlett Media is entitled to invoice You for all Services provided or in the process of being delivered but not yet invoiced up to and including the date of termination.
    • A termination of this Agreement will not affect Your liability to pay Fees for Services already performed.
    • The provisions of clauses 12 (Intellectual Property), 13 (Confidentiality), 16 (Term and Termination), clause 5, 18 (Legal Costs), 20 (Warranties and Indemnities), 21 (Disputes) and 23 (General Provisions) survives termination or expiration of this Agreement.

PROJECT DELAYS AND LIABILITY

    • Any estimate of the date by which Scarlett Media will complete any part of the Services is contingent upon You providing complete instructions to Scarlett Media and fully cooperating with us until we have ceased providing Services to You.
    • You must appoint a person who has complete authority to provide instructions to Scarlett Media and respond to requests for feedback until we have ceased providing Services to You.
    • The person appointed must be available to respond to communications from Scarlett Media on every day which is a business day in South Australia.
    • If You reject the footage after it has been edited, unless it is an obvious mistake or poor workmanship by Scarlett Media, then a full re-shoot and editing costs will apply.
    • Scarlett Media cannot be held liable for project delays which are caused by lack of communication on behalf of You, an equipment failure, or Force Majeure Event, or any other reason not directly the fault of Scarlett Media and which has made it impossible to complete or perform the service/work.

LEGAL COSTS

    • You will be liable for any legal costs incurred by Scarlett Media in the recovery of unpaid invoices on a full indemnity basis.

FORCE MAJEURE

    • If Scarlett Media cannot carry out an obligation under this Agreement either in whole or in part because of anything outside its reasonable control, including without limitation, the declaration of a national emergency or pandemic, fire, 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.

WARRANTIES AND INDEMNITIES

    • Nothing in this Agreement is to be read as excluding, restricting or modifying the application of any legislation which by law cannot be excluded, restricted, or modified.
    • Subject to clause 1 any representation, warranty, condition or undertaking in relation to the performance of the Services which (but for this clause) would be implied in this Agreement by law, is excluded.
    • Any liability Scarlett Media 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 Scarlett Media’s option) in the case of the Services:
  1. re-supplying the Services.
  2. paying the cost of re-supplying the Services.
    • To the extent that Scarlett Media’s liability cannot be or is not otherwise limited according to this clause 20, under no circumstances will Scarlett Media total aggregate liability under this Agreement, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the actual amounts paid to Scarlett Media by You under this Agreement.
    • You assume sole responsibility for the use of the Services in Your business operations and You hereby indemnify Scarlett Media (and keep Scarlett Media indemnified), its 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:
  3. Your use of, or reliance on, any part of the Services and/or Services Material; or
  4. any other person’s use of, or reliance on, any part of the Services and/or Services Material which were provided to that person directly or indirectly by You.
  5. a breach or failure to perform Your obligations under this Agreement; or
  6. any wilful, unlawful or negligent act or omission by You.
    • Your liability under clause 5 will be reduced proportionately to the extent that Scarlett Media’s negligent act or omission contributed to that loss or liability.
    • For the avoidance of doubt and to the fullest extent permitted by law, Scarlett Media is not liable for:
  7. Any increased costs or expenses;
  8. Any 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
  9. 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.
    • You acknowledge and agrees that the content, views and opinions expressed in the finished works produced for You by Scarlett Media are solely Yours. The finished works are intended to represent Your opinion and in no way reflect the views and opinions of Scarlett Media, its employees, and subcontractors.
    • The Customer indemnifies and holds Scarlett Media harmless from any claims or legal actions related to the content of Your video, website or social media pages.

DISPUTES

    • The parties must work in good faith to resolve any dispute between them arising from this Agreement.
    • Any dispute will initially be referred to the nominated representatives of each party for resolution. If such dispute is not resolved within 7 days, the dispute will be referred to a meeting of the Director/ CEO or equivalent of each party.
    • If the dispute remains unresolved after a period of 30 days after the second meeting referred to in clause 2, the parties will agree upon an appropriate mediator. Failing agreement, the President of the Law Society of South Australia will appoint a mediator.  Agreement as to the allocation of costs will be determined through mediation.
    • A party may not commence court proceedings until 30 days after referral to a mediator pursuant to clause 3 except that nothing in this clause will prevent any party from seeking urgent interlocutory relief through courts of appropriate jurisdiction.

NOTICES

    • 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 set out in the Services Schedule, or such other address nominated by a party in writing.
    • 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:
  1. in the case of hand delivery, on the date of delivery.
  2. in the case of prepaid Express post, 2 Business Days after being sent by prepaid Express post; or
  3. in the case of email, on day of transmission provided that the sender can give evidence of transmission and the intended recipient does not give evidence of non-receipt.

GENERAL PROVISIONS

    • This Agreement are governed by and will be interpreted according to the laws of South Australia, and the parties’ consent and submit to the exclusive jurisdiction of the courts of South Australia.
    • This Agreement contains the entire understanding between the Parties concerning the subject matter of the Agreement and supersedes all prior written or verbal communications.
    • This Agreement cannot be amended or varied except in writing signed by the Parties.
    • A Party must not assign or otherwise deal with its rights or obligations under this Agreement without the other Party’s prior written consent.
    • Each Party must pay its own legal costs of and incidental to the preparation and completion of this Agreement.
    • 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.
    • 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.
    • You may not assign or otherwise transfer any of your rights or obligations under this Agreement to any other person without Scarlett Media’s consent. Scarlett Media may assign or otherwise transfer any of its rights or obligations under this Agreement without your consent.
    • Scarlett Media’s failure, delay, or neglect to enforce a term of this Agreement is not to be taken as a waiver of that term or Scarlett Media’s rights, or a consent to, a waiver of, or any excuse for any different, continuing, or subsequent breach.