Agreement for the provision of audio mastering services
TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES
The following conditions, provisions and terms (“Terms and Conditions”) govern the relationship between the Contractor and Customer in connection with the supply of the Services.
1. DEFINITIONS AND INTERPRETATION
1.1. “Additional Services” means any services performed of a type and nature not specifically referred to in the Details;
1.2. “Agreement” means the documents comprising the Details and Terms and Conditions;
1.3. “Business Day” means a day on which the banks are open for general banking business in South Australia except Saturday, Sundays and public or statutory holidays;
1.4. ”Commencement Date” means the date the Deposit is paid by the Customer to the Contractor.
1.5. “Contract Sum” means the amount titled ‘You will pay’ specified in the Details.
1.6. “Contractor” means Mic Nix Productions Pty Ltd (ACN 604 802 744);
1.7. “Copyright” includes:
1.7.1. all of the exclusive rights comprised within copyright as defined by the Copyright Act 1968 (Cth) in relation to a literary or musical work; and
1.7.2. all rights in the nature of copyright whether by law, convention or otherwise and such new and additional rights that may become vested in the Contractor in any country forming part of the Territory; and
1.7.3. in this Agreement, relates to all works performed by the Contractor comprising the Services;
1.8. “Customer” means You;
1.9. “Details” means the document preceding the Terms and Conditions having the title Mixing Online Order Form.
1.10. “person” includes companies;
1.11. “Services” means the activities, work and services described in the Details;
1.12. “Territory” means the entire World;
1.13. Headings are for convenience only and do not form part of these Terms and Conditions.
2. PLACING AN ORDER FOR SERVICES
2.1. By engaging the Contractor and paying the deposit, the Customer confirms they have read and accepted the Terms and Conditions.
3. QUOTATIONS AND PRICES
3.1. The Contractor shall specify in the Details the Services required to be done in order to fulfill the Customer’s instructions and outline an estimate of the Contractor’s charge for performance of such work.
3.2. The Contractor is not obliged to provide the Services until these Terms and Conditions have been accepted by the Customer and the deposit has been paid by the Customer to the Contractor.
4. VARIATIONS IN PRICES
4.1. Subject to the below provisions, all prices in the Details shall remain current for thirty days from the date on which the Customer accepts these Terms and Conditions.
4.2. The Contractor shall be entitled to vary any quotation previously provided to the Customer if:-
4.2.1. the Customer provides incomplete or inaccurate information to the Contractor preventing the Contractor from providing an accurate quote;
4.2.2. the Contractor experiences delays in providing the Services by virtue of any action or inaction on the part of the Customer where such delay is in excess of thirty days from the agreed commencement date or if no such date exists, then thirty days from the date of this Agreement;
4.2.3. at the Customer’s request, the Contractor agrees to provide Additional Services at any time after the commencement of this Agreement;
4.2.4. the Contractor experiences price increases after the date of this Agreement in acquiring or hiring any equipment necessary to perform the Services required;
4.2.5. the Customer is in breach of its obligations as set out in this Agreement causing the Contractor to incur loss for any reason directly or indirectly; and
4.2.6. any cause beyond the Contractor’s control causing the necessary variation.
4.3. If any supply by the Contractor is subject to Goods and Services Tax (“GST”), the Customer must, unless the price in the Details expressly states that GST is included, pay the relevant GST amount in addition to the amount appearing in the Details.
5. ADDITIONAL SERVICES
5.1. If the Customer requests that the Contractor supply or carry out Additional Services and the Contractor agrees to such a request, the Additional Services will be deemed to form part of the Services and the Customer must pay:
5.1.1. if the Contractor has given a written quotation prior to performing or providing the Additional Services, the amount quoted; or
5.1.2. in the absence of a written quotation, an amount calculated using the Contractor’s standard hourly rate charge of $88.00 per hour or part thereof.
5.2. The Customer acknowledges and agrees that any and all Services that are not specifically referred to in the Details shall constitute Additional Services.
6. TERMS OF PAYMENT
6.1. The Customer is required to pay a non-refundable deposit to the Contractor equal to one half of the GST inclusive price as quoted to the Customer within two (2) business days following the Customer’s acceptance of these Terms and Conditions. In the event of default as to payment owing to the Contractor at any time, the Contractor shall be entitled to retain the deposit absolutely and claim for the balance owing in the Details and for any other loss suffered by the Contractor by way of any remedy available to it as provided in this Agreement or at law or in equity generally.
6.2. The Customer must pay the Contractor, within five (5) business days of the date of the Contractor issuing a tax invoice for such payment to the Customer, the total amount set out in the invoice/s issued by the Contractor to the Customer whether for the whole or part of the Contract Sum and/or the value of any Additional Services.
6.3. If the Customer fails to make such payment within the time frame required by the Contractor, the Contractor shall be at liberty to withhold the provision of Services or any Additional Services until such time as the Customer makes full payment and such action shall not constitute a breach of the Contractor’s obligations under this Agreement.
6.4. The Contractor may, in its absolute discretion, seek and recover from the Customer and the Customer agrees to pay:
6.4.1. interest on all overdue invoices (or any portion of any unpaid amount in respect of any invoice) at the rate of 4% per month from the date of an unpaid invoice or part thereof;
6.4.2. any costs and expenses incurred in collecting or attempting to collect any amounts that are not paid by the Customer when due including debt collector’s expenses, and solicitor’s fees on a solicitor/client basis.
6.5. The Customer agrees to pay:
6.5.1. any and all amounts by PAYPAL or cash deposit or electronic funds transfer into any account nominated by the Contractor; and
6.5.2. a fee of 3% of the value of the payment for any and all payments made by any type of credit card.
7. INTELLECTUAL PROPERTY
7.1.1. The Customer warrants that it owns or has lawfully acquired the right to make use of the audio material supplied to the Contractor for mastering purposes and the Customer hereby indemnifies the Contractor against any and all losses, claims, actions proceedings that may be commenced or claimed against the Contractor by the rightful owner of the audio material or any other third party with standing;
7.1.2. In the event of the reproduction, packaging or distribution of any materials, or part/parts thereof, in any audio format whether analogue or digital, mastered by the Contractor and whether for the purposes of sale or for promotional activities, then – The words, “Mastered by Mic Nix Productions” must appear as a credit on the printed material accompanying the recording or as part of the text accompanying credits delivered in an electronic format, or in the case of a physical storage medium such as CD – on the storage medium itself.
7.2. In the event of the audio material which, having been mastered by the Contractor, is distributed for sale, promotion or any other commercial purpose, whether forming the entire content of the distributed collection of audio recordings (as in the case of a compilation) or part thereof, then, all such tracks must be the final product or identical copies of the final mastered materials as mastered by the Contractor and may not undergo further editing or audio alteration before duplication or distribution. The parties to this Agreement acknowledge and agree that:
7.2.1. all right, title, and interest in the audio material provided by the Customer is owned or licensed by and controlled by the Customer or any person having authorised the Customer to seek the Services from the Contractor (“the Rights Holder”);
7.2.2. if relevant, the Services have been commissioned by the Customer on behalf of the Rights Holder;
7.2.3. the Contractor agrees that all work product produced by the Contractor while performing the Services, including any unfinished audio recording (“the “Works”) is a “work made for hire” to the full extent permitted by law, with all copyrights in the Works owned by Rights Holder;
7.2.4. all right, title, and interest in and to such Works will be owned, immediately upon creation, exclusively by the Customer or the Rights Holder as the case may be;
7.2.5. to the extent that any Works of the Contractor would not qualify as a work made for hire under applicable law, the Contractor hereby assigns to the Rights Holder all right, title and interest the Contractor may have in and to such Works, including all copyright, rights of authorship or rights of publicity in the Works;
7.2.6. the Contractor will execute any additional documents required by the Customer or Rights Holder to establish such ownership or assignment to the Rights Holder. In the event of any termination of this Agreement prior to the Contractor’s completion of the Services, the provisions of this Agreement regarding ownership will apply with respect to any portion of the Services that might have been completed prior to such termination.
8. FORMAT AND DIGITAL MEDIA
8.1. All Final Master(s) will be provided to the Customer in either digital download format or on CD/DVD/USB at the Contractor’s discretion;
8.2. DDP/CD master for duplication will only be provided by prior arrangement; and
8.3. The Customer must reimburse the Contractor any cost of and incidental to the provision of additional media in excess of one copy;
8.4. The Contractor shall test all final master storage media (CDR/DVDR/USB) for errors before delivery but does not provide any warranty as to the supplied storage media being error-free and shall not accept responsibility for losses incurred due to failures of storage media or the media writing tools used to produce them.
8.5. The Customer must ensure that the received storage media is complete, functional and without errors prior to duplication or reproduction of the media or the material contained therein. The Customer warrants that upon receipt of the digital media provided by the Contractor, the Customer shall listen to the master copy before delivering it for duplication / reproduction/ distribution/ cutting.
8.6. The Customer acknowledges and agrees that the Contractor shall not be obliged to create and maintain archival records and copies of the Services at any time.
8.7. The Customer may not assert any right of set off, counterclaim or abatement in respect of alleged defects concerning the Services and must pay all amounts due under this Agreement in full to the Contractor before pursuing any remedial or rectification claims.
8.8. The Customer acknowledges and agrees that:
8.8.1. if the Customer fails to give the Contractor notice of any non-complying aspect of, or defects in the Services within three (3) business days of the Contractor notifying the Customer that it has fully discharged its obligations under this Agreement, the Contractor will be deemed to have fully discharged its obligations under this Agreement;
8.8.2. the Contractor will, upon being deemed to have fully discharged its obligations under this Agreement, be released from any and all liability in respect of the Services supplied save for the continuing operation of any warranty expressly given under this Agreement;
8.8.3. the Contractor shall not be liable to compensate the Customer for any delay in either replacing or repairing the Services or in properly assessing the Customer’s claim.
9. LIMITATION OF LIABILITY
9.1. The Contractor shall not be liable for loss or damage to audio materials, whether mastered or un-mastered, or their respective storage mediums, which are lost or damaged while in transit or otherwise in the possession of a third party such as a postal services or a courier company and whether in transit to or from the Customer.
9.2. All liability and obligations imposed under statute are expressly excluded but only to the extent that this exclusion does not contravene the statute or cause any part of the Agreement to be void.
9.3. In the event of defects in the Services supplied being identified within the period specified in clause 8.8.1 above, the Contractor’s liability is limited to supplying the Services again, or the cost of having the Services supplied again, whichever the Contractor elects to do in its absolute discretion;
9.4. To the maximum extent permitted by law:
9.4.1. the Contractor will not be liable to the Customer or any other person or third party in respect of any consequential or other loss or damage (including loss of profit, loss of income or loss to reputation) arising directly or indirectly from the provision of Services under this Agreement;
9.4.2. the Contractor’s liability arising out of a connection with this Agreement whether under the law of contract, in tort, in equity under statute or otherwise shall be limited in aggregate to an amount equal to the Contract Sum;
9.4.3. the Contractor shall not be liable to the Customer for any statements, representations, guarantees, conditions or warranties not expressly contained in the Details;
10.1. The Contractor’s obligation to carrying out the Services is subject always to the availability of labour, materials, plant, equipment and services making up, or necessary for, the supply of the Services.
10.2. Any dates specified for provision of the Services are estimates only. The Contractor will use all reasonable endeavours to provide the Services by the dates specified but does not warrant that such provision will be met.
10.3. The Customer may not reject the provision of the Services on account of the Contractor’s inability to comply with any dates specified.
10.4. When it becomes evident to any party that anything (including an act or omission of the Customer or an employee, other consultant, contractor or agent of the Customer) may delay the Contractor in carrying out completing the provision of the Services, that party must promptly notify the other party in writing with details of the possible delay and the cause.
10.5. If the Contractor is or will be delayed in the provision of the Services by any cause beyond the reasonable control of the Contractor, the dates for supply specified in the Details shall be extended to address the extent of the delay. Alternatively, the Contractor may (in its absolute discretion) elect to reschedule the supply of the Services to new dates that are to be agreed with the Customer.
11. SUSPENSION AND/OR TERMINATION BY THE CONTRACTOR
11.1. The Contractor shall be entitled to suspend and/or terminate the provison of the Services forthwith by written notice to the Customer upon the happening of any one of the following events:
11.1.1. where full payment of any tax invoice issued by the Contractor to the Customer whether for the whole or part of the Contract Sum and/or the value of any Additional Items has not been received by the Contractor in accordance with clause 6.1 and 6.2 above;
11.1.2. where the Customer, being an individual, commits an act of bankruptcy or, being a corporation goes into liquidation or has a receiver or administrator appointed to control its affairs, is deemed unable to pay its debt or has a petition presented for its winding up or for an administrative order; or
11.1.3. where the Customer is in material breach of any of the Terms and Conditions and:-
(a) the Contractor has given the Customer a written notice demanding the breach be remedied within fourteen (14) days and the Customer fails to comply with such notice; or
(b) such breach cannot be remedied; or
(c) such breach evinces an intention on the part of the Customer that it does not wish to be bound by the terms of this Agreement.
11.2. Any suspension and/or termination shall be without prejudice to and shall not affect any rights of the Contractor against the Customer that have accrued up to the time of suspension or termination (as the case may be).
12. VARIATION AND/OR TERMINATION BY THE CUSTOMER
12.1. This Agreement may only be cancelled and/or varied by the Customer with the written consent of the Contractor.
12.2. To the extent permitted by law, the Contractor may require, as a condition of such consent, that the Customer pay reasonable charges for such cancellation/variation, which takes into account expenses incurred by the Contractor to the date of cancellation and/or variation.
13. FORCE MAJEURE
13.1. The Contractor will have no liability to the Customer in relation to any loss, damage or expense caused by the Contractor’s failure to supply the Services as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, vandalism, crime, strike, lockout, breakdown, war, the inability of the Contractor’s normal suppliers to supply the necessary material or any other matter beyond the Contractor’s control.
14.1. The Customer hereby authorises the Contractor to collect, retain, record, use and disclose consumer and/or commercial information about the Customer, in accordance with the Privacy Act 1988 (Cth), to persons and/or legal entities who are a solicitor or any other professional consultant engaged by the Contractor, a Debt Collector, Credit Reference Organisation and/or any other individual or organisation which maintains credit references and/or default listings.
14.2. The Customer also authorises the Contractor to make enquiries with respect to the Customer’s consumer and commercial credit worthiness, to exchange information with other Credit Providers in respect of previous consumer and commercial defaults of the Customer and to notify other Credit Providers of a consumer and/or commercial default by the Customer.
15. RELATIONSHIP OF THE PARTIES
15.1. The relationship between the parties hereto is intended to be, and is to be construed as, that of independent contracting parties only and not that of employment, partnership, joint venture, agency or any other association whatsoever. Nothing whatsoever contained herein shall constitute either party as having authority to bind the other in any manner whatsoever, and nothing whatsoever contained herein shall give or is intended to give any rights of any kind to any third party.
16. DISPUTE RESOLUTION
16.1. Without prejudice to either party’s rights both parties agree that:
16.1.1. the Customer and the Contractor will initially use all reasonable endeavors to resolve any dispute arising under this Agreement within 10 Business Days of a party being advised by written notice of such a dispute;
16.1.2. in the event that the parties are unable to resolve the dispute within the timeframe specified at clause 16.1.1 above, the parties may either agree to refer the matter to mediation or some other form of alternative dispute resolution or commence legal proceedings.
16.1.3. To the extent possible, both parties shall continue to comply with their respective obligations under this Agreement whilst the dispute is being addressed by the procedure as set out in this clause 16.1;
16.1.4. Nothing in this Agreement shall prevent the Contractor from seeking injunctive relief at any time if it is deemed necessary by the Contractor.
17. APPLICABLE LAW
17.1. The Agreement is governed by the laws of South Australia and the parties submit to the non-exclusive jurisdiction of the Courts of South Australia.
18.1. The Customer shall, at all times and under all circumstances takes full responsibility for the political, sexual, violent or otherwise immoral words, concepts or gestures contained in audio materials supplied to the Contractor and the Contractor shall be at liberty to refuse to provide the Services if, in so doing, the Contractor will be forcibly committing a criminal act. The Contractor shall not be held responsible for the consequences of the deliberate or accidental broadcast of or dissemination of through other means of any material it receives for mastering, is mastering or has previously mastered.
19. The Customer hereby agrees to provide the Contractor upon request with cover artwork and a copy of the mastered version of material mastered by the Contractor. In case of artwork/songs being supplied, the Contractor is hereby granted the right by the Customer to use such artwork/songs for promotion on it’s website(s) and other promotional advertising sources used by the Contractor.
19.1. The Contractor’s credits shall be visibly displayed on the final product and/or promotion of the Customer’s musical work, completed within the terms of this Agreement. Credits must be displayed on any physical packaging/liner notes and/or online instances of the said musical works. Credits must be displayed as “Mastered by Mic Nix Productions”
20.1. If any part of this Agreement is found to be void, voidable or not enforceable, that part shall be struck out without affecting or eroding the enforceability or validity of the remaining parts and such severance shall not detract from the obligations each party has under this Agreement.
21.1. The Customer hereby authorises the Contractor to assign its rights and interest in this Agreement to any third party if it so desires without any further consent being required from the Customer.
21.2. The Customer is not entitled to transfer its rights and interest under this Agreement without first seeking the written consent of the Contractor.
21.3. Any consent that may be given by the Contractor may be granted or withheld in the Contractor’s absolute discretion and shall not at any time constitute a waiver of the Contractor’s rights and interests under this Agreement.
22. ENTIRE AGREEMENT
22.1. This Agreement contains the entire agreement between the Contractor and the Customer. The parties agree that any negotiations that lead to the formation of this Agreement have been accurately incorporated in this Agreement.
22.2. In entering into this Agreement, the parties hereby acknowledge that they have not made any warranties or representations to each other except as incorporated in this Agreement.
23.1. The person signing this Agreement on behalf of the Customer hereby guarantees the payment of all monies that become due and payable under this Agreement. This guarantee will continue following the termination of this Agreement until all monies owing to the Contractor are paid in full.
24. INSTRUCTIONS AND COMMUNICATIONS
24.1. The Contractor shall receive instructions from the person signing this Agreement only. If the Customer authorises any other employee or agent to give the Contractor instructions in lieu of or in addition to the person signing this Agreement, the Customer must inform the Contractor of that person’s details in writing.
24.2. The Contractor shall not be liable in any way for any losses incurred by the Customer in accepting instructions from the persons contemplated by this clause 24.
24.3. The Contractor may elect to communicate by electronic mail or such other form as is convenient and does not warrant that any such communication will be free from defect, virus or shall be otherwise secure. The Customer hereby acknowledges and agrees to accept such communications and releases the Contractor from all liability in respect of any losses that may be incurred by the Customer by virtue of such communications.
25.1. A notice from one party to another shall be deemed to have been served upon the receiving party if:-
25.1.1. the notice is delivered personally to the other party;
25.1.2. the notice is delivered by email transmission from one party to the other to nominated email addresses as contained in the Details;
25.1.3. the notice is delivered by facsimile to the other party and the sending party receives a delivery confirmation upon transmission of the facsimile; or
25.1.4. the notice is posted to the other party to the address provided in the Details, whereby delivery will be deemed to have occurred on the third business day following the posting of the notice.
26. INDEPENDENT LEGAL ADVICE
26.1. The parties acknowledge that this agreement is a legally binding document and that the Contractor strongly recommends that the Customer obtains independent advice from a legally qualified practitioner experienced in agreements of this nature prior to the signing of this Agreement. The Customer acknowledges that, in signing this Agreement, they have obtained such independent legal advice or alternatively, despite the recommendation from the Contractor, have chosen not to seek or obtain such advice.