Terms
& Conditions
Balloon Tree Productions Pty Ltd (Standard Terms and Conditions)
These Terms govern
the use of Balloon Tree Productions, and,
any other related Agreement or legal relationship with the Owner
in a legally binding way. Capitalised words are defined in the relevant dedicated section of this document.
The User must read this document carefully.
Nothing in these Terms creates any relationship of employment, agency, or partnership between the involved parties.
Hebron Films is provided by:
BALLOON TREE PRODUCTIONS PTY LTD - 161 Donald St, Brunswick East, VIC 3057, Australia
Owner contact email: info@balloontreeproductions.com
Definitions and interpretation
Definitions
In this agreement unless the context indicates otherwise, the following words have the following meanings.
"Additional Shooting" means any additional filming work requested by the Client
"Additional Post-Production" means any additional post-production work over and above that which has been agreed as part of BALLOON TREE’s estimate and included in the Budget & Fees.
“Aspect Ratio” means the size and shape of your video. Most video is in a 16:9 ratio (landscape) but we can also deliver you video in 9:16 (vertical) and 1:1 (square) which are perfect for social media.
"BALLOON TREE" shall mean Balloon Tree Productions Pty Ltd (ACN 613 449 004.
"Budget" means the cost of the entire project and shall be based on
required Crew size
number of days pre-production time
cameras used
number of Post-Production days required to produce one Draft Product and subsequently one Finished Product
additional costs for locations, equipment, talent and so on.
“Bump in” means the period of time to set up equipment before a shoot.
“Call time” means the time the crew and talent need to be on set.
"Casting" means the process of assembling and selecting persons other than the Client who shall appear as performers in the video. This excludes members of the public who may appear in the video but are not being explicitly filmed.
"Client" shall mean any person, partnership, company, trust, body or other entity incorporated or unincorporated who have, by signing this contract, commissioned the Project.
"Crew" means persons sourced by BALLOON TREE for the purpose of conducting the Shoot.
"Draft Product" means a clean edited version of the Project which is satisfactory to BALLOON TREE as a working version of the production and which shall be submitted to the Client for their approval, including a watermark and timecode.
“CGI” means computer-generated imagery (special visual effects created using computer software).
“Cinematographer” means the camera operator.
“Colour grading” means the process that happens during editing namely the process of improving the appearance of the production for presentation in different environments on different devices. Various attributes are adjusted such as contrast, color, saturation, detail, black level, and white point may be enhanced.
“Deliverables” means the final videos that will be edited and delivered to the client.
“DOP” means the Director of Photography.
“Embedded subtitles” means the subtitles that are permanently on the video.
"Fees" means the monies paid by the Client to BALLOON TREE in consideration of the Project, either in the form of cash, cheque or money transfer. This may or may not include expenses.
"Filming Equipment" means the equipment required by BALLOON TREE in order to undertake the Shoot, including but not limited to cameras and grip equipment.
"Filming Day" means a period not to exceed 8 (eight) hours in duration, inclusive of all meal breaks. A Shoot may last for one or more Filming Days but shall be deemed to last a minimum of one (1) Filming Day. Additional hours over this time when directly attributable to the Client may be liable to additional charges.
"Filming Location” means the location(s) of any filming which forms part of the Project. In the case of a Live Shoot, such venue is to be sourced by the Client and made known to BALLOON TREE as early as possible. In the cases of a Studio or Performance Video, such location(s) are to be agreed between the Client and BALLOON TREE prior to filming.
"Finished Product" means a clean edited version of the performance video which is approved by BALLOON TREE and the Client. For the avoidance of doubt, the Project shall be deemed approved by the Client where a majority of the Client members have given their approval (either verbal or written) to the final Finished Product.
“Frame rate” means the number of frames per second that the camera records. Usually, we shoot at 25 frames per second, but for slow motion footage we must shoot at a higher frame rate.
“Gaffer” means the Crew member in charge of lighting.
"Grading" means the process of enhancing the edited video by means of colour correction and application of filters. This process is undertaken to produce the desired ‘look’ to the video and will be done so to the satisfaction of the video Director, Director of Photography and Editor.
“Green Screen” means a green backdrop that is used to remove the background from behind the subject and insert any background you like.
“Interview bed” means an organised selection of interview footage, cut to time, that serves as a base for the production of the video.
“Lower third” means any graphics or text that come up along the bottom of the screen.
“Overlay / b-roll footage” means supplemental or alternative footage intercut with the main shot.
“Piece to camera (PTC) / Talking heads” means interviews or footage of a person talking directly to camera.
"Post-Production" means the capturing, logging and editing of the film captured during the Shoot. For the avoidance of doubt, Post-Production shall commence on the earliest available opportunity upon completion of the Shoot and last until the video is edited and the Finished Product authored to a satisfactory standard by BALLOON TREE and approved by the Client. This process encompasses any Grading and CGI work where this has been specifically included in the Budget.
"Pre-Production" means the overall process of defining the parameters of the desired Finished Product (including but not limited to; meetings with the Client or their representatives, the organising of the Shoot (including assembling of Crew, location sourcing, project planning etc), Casting and any other activities prior to commencement of the Shoot.
"Production Design" means the process of defining the visuals of the desired Finished Product (including but not limited to; location, props, performers, make-up, costume).
"Project" means the work done by BALLOON TREE including but not limited to; Pre-Production, the Shoot, Additional Filming and Post Production in order to achieve the Finished Product.
“Resolution” means the quality of your video. We usually work in 1080p (HD/High Definition), or 4k (4 times the definition of HD!).
“Rushes” means all of the unedited footage from the shoot.
"Shoot" means the filming of the Client (including any Additional Filming) and/or other persons selected during Casting for the purpose of producing a video, prior to Post Production. For the avoidance of doubt the Shoot shall commence on the day/night of the performance, or of the first day of filming any non-live segment, which is listed at the top of this Contract.
“SRT file” means the Subtitle file that can be added to YouTube, Facebook etc. to toggle subtitles on or off.
“Super” means text that appears over interview footage with the name and title of the person being interviewed.
“Teleprompter / autocue” means a screen that your on-screen talent reads from while presenting on camera.
“Timecode” means a time point in a video file described in hours, minutes and seconds. For example, 00:27:34 would point to the moment in the video at 27 minutes and 34 seconds.
"Treatment" means the document defining the nature of the Finished Product (including but not limited to; type of video, ‘look and feel’, Shoot duration, camera angles, camera movement, narrative elements and themes, song breakdown, filming approach, use of colouring, filters, CGI and Grading).
"Production" means all and any elements of film production including and without limit to film, digital filming, final filming, Picture and all methods governing storing or the retaining and/or subsequent use of all and any media.
“Works” shall mean the provision of complete media production.
“Wrap time” means the time the crew will need to leave set.
“Materials” shall mean all goods and items required to complete the Production
“Parties” shall mean BALLOON TREE and the Client, and Party means either one of them
“Payment claim” shall mean as set out in clause 3 below
“Fee” shall mean the monetary sum payable by the Client to BALLOON TREE for the Works.
“Quotation” means the estimate for the required scope of works as prepared by BALLOON TREE for the Client for a particular job
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Interpretation
In this agreement unless the context otherwise requires:
words importing any gender include every gender;
words importing the singular number include the plural number and vice versa;
words importing persons include firms, companies and corporations and vice versa;
reference in any schedule to this agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
the headings to the clauses and schedules of this agreement are not to affect the interpretation;
any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
the word "including" (and related forms including "includes") means "including without limitation".
Obligations of The Client
Upon signature of this Contract, the Client shall:
agree to give BALLOON TREE overall creative control of the Principal Photography and Finished Product unless otherwise agreed in writing prior to the start of any aspect of the production process;
agree that, having provided, or been given an opportunity to provide creative input to the Project prior to and during the Shoot, any Client dissatisfaction with the Final Product on creative or artistic grounds does not constitute failure on the part of BALLOON TREE to fulfil its obligations under this Contract, nor does it offer the Client grounds on which to refuse to pay the full Fees to BALLOON TREE.
Production scope and deliverables
The Client agrees BALLOON TREE will only commence the Project upon acceptance of the quotation and payment of the deposit by the Client, unless otherwise agreed between the parties.
The parties agree that if any term or condition appearing on any Purchase Order delivered by the Client to BALLOON TREE conflicts with any term or condition of this agreement, the term or condition of this agreement shall take precedence and apply, unless BALLOON TREE expressly agrees in writing to the contrary.
Script / Storyboard
If required for the production / deliverables, BALLOON TREE will prepare the scope and production of the storyboard / script in collaboration with the client with final approval of the Script / Storyboard to be provided by the Client in writing to BALLOON TREE.
The client grants to BALLOON TREE the exclusive license to use all of the Client's story, script, screenplay and any other story or screenplay elements as produced and provided by the Client for use in the Production and whether adapted by BALLOON TREE or not for its use to continue to grant such an exclusive license.
Treatment and Production Design
The parties agree that, unless otherwise developed with BALLOON TREE, the Client will supply the Treatment and the Production Design for the video prior to the Shoot and give BALLOON TREE control to produce, direct and edit the Project according to the provisions herein. In the case that a specific Treatment is not drawn up for the video, or that the Client provides no input into the look and feel of the video prior to the Shoot, any suggestions by the Client as to the nature of the Finished Product cannot be guaranteed to be accommodated during Post-Production.
Any requests for changes to the Production made after approval of the Treatment cannot be guaranteed to be accommodated. This includes any suggestions made by the Client or its affiliates during the Shoot or Post Production, particularly the submission of additional or contradictory reference material or story material.
The Client must provide any photo gallery images, logos or additional material required for the completion of the Finished Product and do so in a timely manner so as not to adversely impact the Post-Production schedule, further, agree that any perceived deficiencies in the Finished Product caused by deficiencies in the above material are not the responsibility of BALLOON TREE. BALLOON TREE reserves the right to refuse to include any such material provided in the Project, specifically video footage produced by parties other than BALLOON TREE;
Crew, Equipment & Location(s)
The Client agrees to give BALLOON TREE a reasonable amount of notice to allow for a Crew to be formed – no less than two weeks prior to the start date of the Shoot unless otherwise agreed in writing.
BALLOON TREE will source a Crew suitable, in the opinion of BALLOON TREE in collaboration with the Client, for the size and scope of the Project. BALLOON TREE reserves the right to change the nominated Crew prior to the Shoot, for operational reasons, and no financial recompense is offered to the Client in this eventuality, but the Client is liable for all costs of such.
BALLOON TREE is responsible for Casting, unless informed otherwise and will source artists suitable, in the opinion of BALLOON TREE, for the size and scope of the Project and according to the Client’s requirements, where given. If the Client declines to be involved in this process, or the Shoot itself, BALLOON TREE cannot be held liable for any failures on the part of the artists to perfectly realise the expectations of the Client. This clause holds unless the Client has undertaken, through written agreement with BALLOON TREE, to be wholly responsible for Casting or for inclusion of some Artists therein.
Once BALLOON TREE have booked necessary Crew, Locations, Schedule and Cast, the Client must provide consent of the Location and Cast in writing to BALLOON TREE before scheduling can commence and required Call Sheets are prepared.
BALLOON TREE is not liable for any perceived deficiencies in the Final Product caused by actual or perceived deficiencies or imperfections in the physical attributes, facial expressions, wardrobe or performances of the Client or of artists, performers or extras selected, hired or brought to the Shoot directly by the Client or Production Company. Further that the Client is liable for any additional costs incurred by re-shooting or Additional Shooting caused by the actions of such artists, performers or extras.
BALLOON TREE, before the shoot, will ensure that their equipment and that of any hired in, is in working order and up to standard prior to the shoot however unforeseen technical difficulties can occur unexpectedly and whilst every effort will be made to deal with these on the day they cannot always be dealt with – this includes, but is not limited to batteries dying, camera errors including subsequent discovery of dropped frames, light bulbs blowing, power supplies failing, digital storage media failing – including but not limited to compact flash cards and SSD cameras.
BALLOON TREE and the Client will agree Filming Location(s) for the Project unless otherwise specified and requested with BALLOON TREE. Further, the Client understands that BALLOON TREE will not film in any Filming Location unless permission to film has been obtained in advance and any Permits or Fees have been paid, costs for which are to be borne by the Client as part or additional part of the Fees;
BALLOON TREE is not liable for any perceived deficiencies in the Final Product caused by filming difficulties with any Filming Location(s) or third-party services (e.g. car hire, equipment, crew) hired and/or chosen by the Client.
The Client is liable for any additional costs incurred by re-shooting or Additional Shooting caused by such difficulties or the cancellation or postponement by such service provider(s).
The Client may not bring to the Shoot or any other event related to the Production any person or persons who are not directly connected with the Shoot (i.e. fulfilling a role within either Cast or Crew). Further, the Client agrees that BALLOON TREE is within its rights to ask any person or persons to leave the Shoot set or location where it deems such action as necessary and at its discretion and for the smooth running of the Shoot.
Travel & Accommodation
BALLOON TREE shall employ such means of travel as are most appropriate for the size of the Crew, the amount of Equipment travelling, and geographical and itinerary concerns. BALLOON TREE shall seek to minimise travel expenses payable by the Client, whilst taking account of comfort and security concerns whilst in transit.
BALLOON TREE shall have the right to select or veto any choice of accommodation which is provided. Accommodation is on the basis of 1 person per room unless otherwise agreed.
Client attendance on Shoot
Whereas the Client has opportunity to attend the Shoot and monitor the aspects of the Shoot which it considers important, but fails to attend or draw attention to matters of concern, BALLOON TREE shall not be held liable for any perceived deficiencies in the Final Product.
BALLOON TREE will not be liable for any perceived deficiencies in the Final Product caused by the late arrival of the Client at the Shoot, or unscheduled absences from the Shoot, nor is BALLOON TREE obligated to make any efforts to compensate for any such lost time. Further, BALLOON TREE is not liable for any perceived deficiencies in the Final Product caused by the Client’s failure to approve any re-shooting when offered or suggested by BALLOON TREE.
Any time lost during the Shoot as a direct result of Client actions may have a direct impact on the amount of filming that is possible, and BALLOON TREE reserves the right to alter the shot list or filming schedule as a result.
The client indemnifies BALLOON TREE against any cost incurred resulting from any failure to attend the shoot on the part of the artist or key Client individuals, without due notice being given of non-attendance, which results in the loss of a filming day, or rescheduling or abandonment of the Project.
Post Production
The Client agrees that they may not be present during the Post-Production phase that delivers the Draft Product, unless such permission has been expressly granted by BALLOON TREE, and that any such involvement will incur Post-Production delays and the costs of this will be borne by the Client.
The parties agree that any Post Production work, primarily Grading or CGI, carried out by parties other than BALLOON TREE, will only be undertaken when the Draft Product has been approved and any requested edit changes made i.e. when the edit is ‘locked’. Any changes required to the Project after this outsourced work has been completed will be at cost to be borne by the Client – this includes any further Grading or CGI.
Both BALLOON TREE and the Client agree that any Grading or CGI work undertaken will be as defined by the Client and BALLOON TREE and that the party undertaking such work will be acting on their best understanding of the instructions given to them. The Client understands that such work is carried out on a time-and-materials basis, and once the Budget limit for this work has been reached, any rework will be at additional cost to the Client. As such it is important that the Client has a clear vision of what is required and that this is adequately communicated.
The parties agree that the quotation outlines the Post Production time allocated as per the Fees and this includes solely the edit itself and any Grading BALLOON TREE deem appropriate, or has previously discussed with the Client. Any additional work not requested, outlined, planned for and paid for before the Shoot commences, will not be undertaken by BALLOON TREE unless additional monies are paid by the Client in advance. Such work may include but not limited to; CGI, additional Grading, audio reworking, remixing or re-mastering, physical blemish and imperfection removal, additional Post Production work over and above any set of changes included within the Fees.
Draft Product
Upon completion of the Draft Product, which BALLOON TREE deem acceptable for distribution to the Client, the Client will receive a Web URL link to the draft video to view online and, if necessary, send one list of suggested changes (to a maximum of three) which will be considered by BALLOON TREE and, where possible, carried out.
The Draft Product is not available for public viewing and any parties connected with the Client may only view it subject to the express permission of both the Client and BALLOON TREE.
The Client is permitted three revisions of the Draft Product prior to the Finished Product, additional revisions above the permitted three variations will be undertaken by BALLOON TREE and shall be considered a variation at an additional cost to be borne by the Client
Finished Product
The parties agree that in the event that the Finished Product, completed to the best abilities and to the satisfaction of BALLOON TREE and to the agreed Treatment, is not acceptable to the Client, any reworking or remaking subsequently requested to the Project, whether this be Additional Filming or Additional Post-Production, shall be at an additional cost borne by the Client and paid in advance of the commencement of this additional work. This includes additional re-edits (however significant) over and above the single set of changes which the Client are allowed to request to the Draft Product to make the Finished Product. This also includes re-edits where the Client has reversed a previous decision or direction given to BALLOON TREE.
The Client indemnifies BALLOON TREE against any liability for failure to deliver the completed Project on any requested date due to unavailability of the Client for consultation on filming, editing or review of the Project. Furthermore, the Client agrees that BALLOON TREE may not be held liable for any consequences to the Client, including but not limited to; loss of revenue or publicity, missed deadlines or future opportunities, where such consequences are a result of the Client’s failure to comply with the terms of this Contract. Further, the Client agrees that BALLOON TREE may not be held liable for any consequences to the Client where BALLOON TREE has materially fulfilled the terms of this Contract.
The parties agree that material relating to the Project may appear on BALLOON TREE’s website for marketing purposes unless agreed otherwise between the parties prior to commencement of the works as defined in Schedule 1.5.
BALLOON TREE legally holds the copyright to the material at all times, unless bought out by the Client at a mutually agreed cost as defined in Schedule 1.6.
Final Deliverables
BALLOON TREE will produce, direct, shoot and edit the Project to a high standard in order to produce the Finished Product. The Project will be shot in the format as defined in Schedule 1.7.
BALLOON TREE will supply a maximum of one master encoded copy of the Finished Product to the Client. BALLOON TREE is liable to provide replacement copies in the event of verifiable technical problems with original copy– replacements to be at a cost borne by BALLOON TREE. Further copies shall be made available to the Client, if desired, at further cost to the Client. BALLOON TREE is liable to supply a digital copy of the works provided to the Client by downloadable WEB URL (link). Any problems with the digital file should be reported as occasionally problems including but not limited to synch issues, audio distortion, no playback at all and other issues can occur and will need to be rectified by BALLOON TREE and resupplied.
BALLOON TREE is not obligated to provide un-encoded copies, or copies of the Finished Product on other media. Such arrangements may be made separately and any additional costs incurred by BALLOON TREE shall be borne by the Client, any un-encoded or data files provided to the Client and which work correctly on the equipment of BALLOON TREE but the Client subsequently has trouble playing – including to but not limited to no audio, no image, synch issues, image breakup etc – are not the responsibility of BALLOON TREE, BALLOON TREE cannot allow for every system variation and will provide standard video data files which should work.
BALLOON TREE will retain the original recorded media (digital tape, digital recordings etc.) and keep this for a period of not less than twelve calendar months from the start date of the Shoot, and shall own the copyright within said original recorded media and edited product. Copies of the full recording to own all copyright shall be made available to the Client upon request, but at additional cost (“buy out”) borne by the Client. Unless requested earlier, after a period decided by BALLOON TREE, the Client shall have the opportunity to purchase the original recorded media for a mutually agreed Fee. Notwithstanding the above, where the Client has not purchased the original recorded media within a period of eighteen months from the start date of the Shoot, BALLOON TREE reserves the right to dispose of it.
Where requested by the Client, BALLOON TREE will refrain from undertaking any publicity or communication regarding either the Project or the Client. Such publicity may include but not be limited to; posting information about the project on any of BALLOON TREE’s website or affiliated web pages, discussing matters regarding the contract with individuals outside of BALLOON TREE, distributing Draft or Final copies of the Project to unauthorized persons before any agreed date, disclosing the Project’s budget to other clients or individuals outside BALLOON TREE, revealing any information which may have a detrimental impact on the image of the Client.
Client Representative
The parties agree that the Main Client Contact / Client Representative referred to in Schedule 1.1 shall bear responsibility for decision making by the Client or its affiliates. BALLOON TREE will not operate under any direct instruction given by person or persons who are not granted authority under this contract, nor is BALLOON TREE responsible for any disagreements between the Client and any Third Parties as a result of its actions. Further, that BALLOON TREE will not bear any costs arising from any additional work which is required as a result of the interference of third parties.
The Main Client Contact shall be available for consultation during Post-Production, so that the Finished Product may be completed in a timely manner, respective of BALLOON TREE’s schedule or by any deadline required by the Client, failure to do so will result in BALLOON TREE taking creative decisions on behalf of the Client.
Project Duration & Deadlines
Prior to signature of the Contract BALLOON TREE shall estimate the amount of time required to complete all aspects of the Project, including the amount of filming days required (the Filming Days). BALLOON TREE reserves the right to alter the number of Filming Days required should the original estimate prove to be unrealistic, subject always to the Fees section of this Contract.
The original Fees includes provision for only three set of changes between the Draft Product and the Finished Product. Should the eventual Post-Production time be over and above that originally estimated by BALLOON TREE, where the additional time required is directly attributable to requests for rework or Additional Post Production by the Client, BALLOON TREE reserves the right to charge an additional fee in respect of the extra periods of Post-Production.
Any deadlines required by the Client must be recorded in this Contract. BALLOON TREE is not obligated to meet any other deadlines imposed after the signature of this Contract or any deadline which subsequently becomes hard to meet based on delays borne by the Client. If the Client wishes to shorten the originally agreed Post-Production timescales, this ‘fast-track’ service will be at additional cost to be borne by the Client, and such an arrangement will be agreed in writing.
The delivery of the Finished Product as described represents the end of BALLOON TREE’s obligations under this Contract. Further copies of the video of any kind – DVDs, miniDV tapes, DigiBeta tapes, data files, web files and so on – required by the Client fall outside the scope of this Contract and as such BALLOON TREE is not obligated to provide them unless at cost.
Should any changes requested by the Client be incorporated in the Finished Product but against the wishes of BALLOON TREE, BALLOON TREE reserves the right to remove their name from the video and create a “Directors Cut” for use exclusively on their website.
The Project will be deemed to have been completed when the Client has paid the remainder of the agreed Fees and then receives the Finished Project.
In the event of outstanding contractual or invoice disputes with the Client regarding other Projects, BALLOON TREE reserves the right to suspend work on this Project until such contract disputes are resolved.
Fees
In the event that the Fees are to be paid in a single instalment, BALLOON TREE will invoice the Client prior to the Shoot and the Post Production will not commence until the invoice has been paid. In the event that the Fees are to be paid in two instalments, the first instalment will be payable prior to the Shoot and the balance of the Fees will be payable upon the Client’s approval of the Final Product, or if the project is not finished within 30 days after the completion of the Shoot, a further ¼ of the total budget will be payable with the final ¼ payable upon approval of the finished edit, whichever is the earlier. In the event that the Fees is to be paid in three instalments, the first instalment will be payable prior to the Shoot; the second instalment will be payable upon completion of the Shoot and before Post Production commences, and the balance of the Fees will be payable upon the Client’s approval of the Final Product, or if the project is not finished within 30 days after the completion of the Shoot, ½ of the remaining 1/3 of the total budget will be payable with the final ½ of the final 1/3 upon approval of the finished edit, whichever is the earlier. In any case BALLOON TREE will not proceed to the next stage of production until a payment due has been made and will not, in any cases, make the Final Product available to the Client until the full Fees has been paid.
Upon approval of the quotation provided to the client, Balloon Tree will invoice the Client an amount equal to 50% of the quotation, upon completion of the work by Balloon Tree, Balloon Tree will invoice the client the remaining amount plus any additional expenses. Balloon Tree payment terms are strictly 14 days.
During Pre-Production, BALLOON TREE shall not incur expenses including but not limited to; travel expenses, hire of Filming Equipment or Filming Location(s), unless it has been reimbursed for such costs in advance by the Client and/or its representatives.
Expenses that can be claimed as part of the Fees shall include costs incurred for any meals taken by the Crew during the Shoot or during travel to and from the Shoot, where such travel is taking place at such a time as would reasonably be expected to cover a mealtime.
Should the amount of agreed expenses be insufficient, BALLOON TREE reserves the right to be reimbursed for any additional expenses incurred in relation to completion of the Project, and be paid these prior to the delivery of the Finished Product.
Should the Project be terminated at any stage, any costs or expenses incurred by BALLOON TREE up to the point of termination are not refundable to the Client.
BALLOON TREE is not liable to commence the Shoot until initial cleared funds have been received from the Client, unless a written agreement between both parties exists to the contrary. As such, BALLOON TREE reserves the right to cancel the Shoot without financial penalty to itself, and the Client is liable to bear any costs associated with this cancellation, where such cancellation is a direct result of the Client’s failure to make Fees by the deadline specified in this Contract or the Client’s invoice.
Upon final approval of the Project, the Client is liable to settle the final invoice in a payment timeframe as declared on the invoice. Failure to pay in a timely manner may result in late payment charges being levied by BALLOON TREE, such charges not to exceed the original Fees.
BALLOON TREE is not liable to supply a definitive final version of the Finished Project until all cleared funds have been received from the Client, unless a written agreement between both parties exists to the contrary.
BALLOON TREE will only commence Post Production upon receipt of the appropriate pre-agreed part of the Fees;
The Client is not entitled to display or distribute any copies of the Project, whether it be the Finished Product or other versions or segments of the Project, until full Fees has been received by BALLOON TREE, unless explicitly agreed otherwise in writing between the parties.
BALLOON TREE reserves the right to not provide copies of the project on Hard Drive, or the original recorded media, until all necessary Fees has been received from the Client.
Delays & Cancellations
In the event that the Shoot is delayed after signature of this Contract due to reasons directly attributable to the Client, BALLOON TREE reserves the right to levy additional charges, the total of which shall not exceed the original Fees, in recompense for any costs or losses incurred.
If the Client or its nominated Main Client Contact is unavailable for consultation during the Project, or alters the terms of the Project to the extent that BALLOON TREE is unnecessarily inconvenienced, BALLOON TREE reserves the right to levy additional administrational charges, such charges not to exceed the original Fees. Such actions on the part of the Client may be but not be limited to; cancellation or repeated postponement of meetings at the Client’s request, failures or excessive delays (ie: 1 week or more) to respond to written, electronic or telephone communication necessitating excessive expense on the part of BALLOON TREE, postponement of the agreed Filming Day(s), or delay in providing agreed deliverables required by BALLOON TREE as stated elsewhere in this Contract.
In the event that Post-Production or the completion of the Finished Product is stalled for more than 30 days due to reasons directly attributable to the Client, BALLOON TREE reserves the right to levy additional administrational charges, the total of which shall not exceed the original Fees.
Project cancellation
If the Client wishes to terminate the Project early, due to exceptional circumstances or breaches of this Contract, this must be agreed in writing with BALLOON TREE.
In the event that the Project is cancelled after signature of this Contract and prior to the commencement of the Shoot at the request of the Client, BALLOON TREE reserves the right to retain (or be paid, if not already paid) up to 30% of the agreed original Fees (the total including any expenses and subcontract costs). Such charges are in recompense for any costs or losses incurred by such actions as, but not limited to; work conducted prior to cancellation, any supplemental administrational work incurred by BALLOON TREE, loss of revenue due to rejected business opportunities.
In the event that the Project is cancelled after signature of this Contract, after commencement of the Shoot and prior to the commencement of Post-Production at the request of the Client, BALLOON TREE reserves the right to retain (or be paid, if not already paid) up to 60% of the agreed original Fees (the total including any expenses and subcontract costs). Such charges are in recompense for any costs or losses incurred by BALLOON TREE including for that of work conducted prior to cancellation including that of time spent on the shoot itself.
In the event that the Project is cancelled at any stage during Post-Production at the request of the Client, BALLOON TREE reserves the right to retain (or be paid, if not already paid) up to 80% of the agreed original Fees (the total including any expenses and subcontract costs). Such charges are in recompense for any costs or losses incurred by such actions as, but not limited to; work conducted prior to cancellation, expenses and hire costs incurred, fees due to subcontract parties, any supplemental administrational work incurred by BALLOON TREE.
Project delay
In the event that the Project is delayed due to reasons directly attributable to the Client, BALLOON TREE, having set aside time to complete the Project under the original timescales, (ie: 30 days after the shoot) is not obligated to meet any original deadline, nor will BALLOON TREE inconvenience other Projects and Clients by attempting to make good any time lost due to actions on the part of the Client. Any deadline requested by the Client which BALLOON TREE is unable to meet due to delays and reasons attributable to the Client, will be endeavoured to be kept to but no guarantee can be made when other work is being carried out.
Default & Consequences of Default
Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
Further failures by the Client to pay invoices or be available for consultation regarding payment difficulties may result in further action being taken by BALLOON TREE. Such action may include but not be limited to; disposal of all original footage, removal of all web-based material related to the Project, withholding of further deliverables, or legal proceedings. Such action overrides all related clauses within this Contract.
If the Client defaults in payment of any invoice when due, the Client shall indemnify BALLOON TREE from and against all costs and disbursements incurred by BALLOON TREE in pursuing the debt including legal costs on a solicitor and own client basis and BALLOON TREE’s collection agency costs.
Without prejudice to any other remedies BALLOON TREE may have, if at any time the Client is in breach of any obligation (including those relating to payment) BALLOON TREE may suspend or terminate the supply of Works to the Client. The Client agrees BALLOON TREE will not be liable to the Client for any loss or damage the Client suffers because BALLOON TREE exercised its rights under this clause.
Without prejudice to BALLOON TREE’s other remedies at law BALLOON TREE shall be entitled to cancel all or any part of any purchase order of the Client which remains unperformed and all amounts owing to BALLOON TREE shall, whether or not due for payment, become immediately payable in the event that:
any money payable to BALLOON TREE becomes overdue, or in BALLOON TREE’s opinion the Client will be unable to meet its payments as they fall due; or
the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Safety & Conduct
BALLOON TREE has the right to take any measures it sees fit in order to safeguard the Crew and Filming Equipment at all times. BALLOON TREE is not obliged to undertake any shooting not previously agreed during the Pre-Production stage.
BALLOON TREE has the right to suspend and/or cancel any Shoot should it reasonably believe that any parties associated with the Client are under the influence of drink or drugs of any kind. Furthermore, any abusive or threatening behaviour – both physical and verbal – towards any person or persons involved in the Shoot and the Project will not be tolerated and may result in suspension and/or cancellation of the Shoot. This also applies both before and after the Shoot and includes but is not limited to phone calls, emails or text message conversations and content.
Rights / Consents
All song credits must be submitted to BALLOON TREE prior to Post Production for inclusion in the Finished Product. If covers are performed, BALLOON TREE reserves the right not to include any such material in the Finished Product, so as to prevent potential copyright issues arising which could lead to the involvement of lawyers for the record label and Clients to whom the covered song belongs.
The Client’s rights and those of any third parties only apply in the case that the Client has concluded full and any and all additions to payment of Fees and only where agreements in writing for the application and use of such rights applies. All and any other versions or segments of the Project, including the Draft Product, are excluded from these rights.
BALLOON TREE shall have the right to use footage and Photographs at any time, place or event of their choosing. BALLOON TREE may use clips and Photography from the Project on their website to promote their work and that of the Client, unless this has been expressly forbidden in writing by the Client.
All rights relating to the Copyright, Designs and Patents and any other moral rights are shared between BALLOON TREE and the Client and cover any legislation now existing or in the future enacted in any part of the world.
The Client may agree to purchase sole rights to the material – such an agreement to be separately drawn.
BALLOON TREE shall own all rights to photographs taken by BALLOON TREE or its Crew during the Project unless photography is a specified, paid additional service for the Client. The use of such photographs by the Client or its affiliates without the permission of BALLOON TREE, and without due credit or Fees being given, is forbidden.
Liability
BALLOON TREE shall not be liable for any loss of or damage whatsoever to any personal property of anyone involved in the Project.
Notices
All notices served upon either party by the other shall be delivered by hand at or sent by post or by facsimile or email addressed to the respective addressed referred to in Schedule 1.3 and Schedule 1.4 before contained or any subsequent address duly notified and if delivered by hand shall be deemed to have been served five days after posting and if sent by facsimile shall be deemed served 24 hours after receipt of the facsimile (and facsimile notice shall be confirmed by post).
Headings
Headings used in this document are for information only and do not form part of any contract.
Miscellaneous
This Agreement contains the full and complete understanding between the parties and supersedes all prior agreements and understandings whether written or oral pertaining thereto and cannot be modified except by a written addendum signed by a duly authorised member of BALLOON TREE and of the Client.
Nothing contained in this Agreement shall or shall be deemed to constitute a partnership or a contract of employment between the parties. It is an agreement to hire the services of BALLOON TREE.
Events Out of Control Of The Parties (Force Majeure)
BALLOON TREE shall not be held liable by the Client where the Project is delayed, cancelled or materially affected due to the occurrence of an unforeseen event which is not within the control of either party. Such Force Majeure events shall include but not be limited to; Acts of God, unsuitable weather conditions, unsuitable location previously chosen by the Client, unforeseen technical difficulties, loss of material or equipment due to fire, theft or similar Force Majeure event.
In the event of an occurrence of Force Majeure, the party affected shall inform the other party within a reasonable timeframe in order that every effort may be made to reschedule the Project. It is understood and agreed that any such unforeseen event shall not relieve the Client of their obligation to pay BALLOON TREE the Fees for work completed up until the event occurred.
BALLOON TREE shall be allowed to re-schedule any part of the Shoot where foreseeable adverse weather conditions could impact either the filming schedule or the Finished Product.
BALLOON TREE will not liable to bear the cost of any re-shooting where the need for such re-shooting has been caused by adverse weather conditions or such items beyond its control as, but not limited to; failure of the artist or any other performers to attend the shoot in a timely manner or to attend at all, cancellation or postponement by the Filming Location(s).
Variations
In the event that the Client requests any variation to the Works it shall be made in writing.
In the event that BALLOON TREE requests a variation, BALLOON TREE will, in writing;
state the reason for the variation.
provide a full description of the variation.
state any effect the variation will have on the Fees or the completion date.
Other than the aforesaid events discussed herein, BALLOON TREE shall obtain written acceptance by the Client of any variation submitted by BALLOON TREE before it undertakes to perform the variation works.
Termination
BALLOON TREE may Terminate any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are delivered by giving written notice to the Client. On giving such notice BALLOON TREE shall repay to the Client any sums paid in respect of the Fees. BALLOON TREE shall not be liable for any loss or damage whatever arising from such cancellation.
In the event that the Client cancels delivery of Works the Client shall be liable for any loss incurred by BALLOON TREE (including, but not limited to, any loss of profits) up to the time of cancellation.
Privacy Act 1988
The Client agrees for BALLOON TREE to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by BALLOON TREE.
The Client agrees that BALLOON TREE may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
to assess an application by Client; and/or
to notify other credit providers of a default by the Client; and/or
to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
to assess the credit worthiness of Client.
The Client consents to BALLOON TREE being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
The Client agrees that personal credit information provided may be used and retained by BALLOON TREE for the following purposes and for other purposes as shall be agreed between the Client and BALLOON TREE or required by law from time to time:
provision of Works; and/or
analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Works; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Works.
BALLOON TREE may give information about the Client to a credit reporting agency for the following purposes:
to obtain a consumer credit report about the Client; and/or
allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
General
If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
This agreement shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts of Victoria.
BALLOON TREE shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by BALLOON TREE of these terms and conditions.
The Client shall not be entitled to set off against or deduct from the Fees any sums owed or claimed to be owed to the Client by BALLOON TREE.
BALLOON TREE may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
BALLOON TREE reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which BALLOON TREE notifies the Client of such change.
Acceptance
Signing of this agreement shall constitute acceptance of the terms and conditions contained herein and will continue to apply to all Purchase Orders provided by the Client and for the duration of the relationship between BALLOON TREE and the Client.
Where more than one Client has entered into this agreement, each Client shall be jointly and severally liable for the Fees and for all other obligations under this agreement.
These terms and conditions may only be varied in writing by the parties.
None of BALLOON TREE’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of BALLOON TREE in writing, and BALLOON TREE is not bound by any such unauthorised statements or representations.
By signing this agreement you warrant to BALLOON TREE that you are authorised to enter into this agreement for and on behalf of the Client.
If the Client is a company, by signing this agreement you personally guarantee to BALLOON TREE to be liable to pay the Fees for the Works in the event that the company does not pay BALLOON TREE for any reason.