Legal

1. Contract Formation

   1. Upon confirmation by us that we accept your Response, you will automatically be bound by the terms and conditions of this Agreement.

   2. To the extent of any inconsistency, any provisions of the Brief identified as Additional Terms (provided such terms are located under the designated heading of “Additional Terms”) will override the terms of this Agreement. Otherwise, the terms of this Agreement will override the Brief.

2. Production

   1. You must produce and deliver the Production in accordance with the Brief (including, the Creator Budget and production schedule).

   2. Without limiting clause 2.1 above, you agree to produce/edit and deliver each Production with reasonable skill and care and in accordance with:

      1. good industry practice taking into account the Creator Budget;

      2. all applicable laws;

      3. the relevant Brief;

      4. your Response including any examples of your work provided; and

      5. the Client's reasonable instructions and specifications taking into account the Creator Budget.

   3. You must provide all facilities, assets, personnel and other resources necessary to produce/edit and deliver each Production unless otherwise agreed with, or stated by, the Client.

   4. You agree to provide up to 3 rounds of changes for offline video edits, up to 3 rounds of changes for online video edits, and up to 2 rounds of changes for photography or design edits, as requested by the Client in respect of each Production, unless otherwise agreed in writing or stated in the Brief.

   5. You will supply digitally uploaded files to the Platform of the Production in accordance with the deliverables set out in the Brief, within the timeframe specified in the Brief.

   6. You must enter into all relevant Production Contracts in relation to the Production.

   7. Without limiting clause 2.6 above, you undertake that all personnel involved in, and all contributors to (including talent and music), any Production will sign release forms and other written agreements (together Production Contracts) if required which will:

      1. enable the Client, its successors, assignees and licensees to exploit the Production (or any part of it) in all media, globally and in perpetuity, subject to the usage limitations specified in the Brief which only apply to the rights of talent and relevant 3rd party contributors (eg. music composers) for an unlimited number of transmissions and/or exhibitions and for the full period of copyright, without any requirement to pay any further costs (other than those contemplated in the Brief);

      2. contain express waivers of and/or consents to not enforce so called moral or similar rights in connection with the Production; and

      3. be free of any third party limitations or residual fees unless otherwise agreed in writing.

   8. We provide digital release form templates to assist in the process of concluding Production Contracts. You acknowledge that either of our digital release forms or a release form provided by the Client must be used. You must not use your own Production Contracts without our prior written consent.

   9. You must provide copies of the Production Contracts to us and/or the relevant Client upon request, including completing any workflow (eg. digital release forms) that is required of you via the Platform.

   10. Subject to any specific requirements in Additional Terms within a Brief, you will maintain in force, with a reputable insurance company insurance that is reasonably suitable for the production of the Brief and at levels that are reasonable taking into account the Brief and the Creator Budget. Such insurance may include: i) errors and omission / professional indemnity insurance (which will include cover pertaining to your breach of any third party Intellectual Property Rights and Client trade secrets/know how or confidential information); ii) public and product liability insurance to cover the liabilities that may arise under or in connection with any Brief; and iii) production insurance. You must, on our or the Client's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance. You warrant that you will take out all such insurance policies and that such insurance policies will cover its participation in any Brief taking into account the nature of the Brief and the Creator Budget. You acknowledge that it alone will bear the costs of any insurance excesses or deductibles and any and all liability arising from any failure to hold such insurance and it shall have no claim against us or the Client in respect of any losses you incur.

   11. You warrant that neither you or any contributor to any Production are subject to the requirements or obligations of any union, guild or similar association (Union) or, if you or any such party is subject to any Union, you warrant and agrees to fully comply with such Union's rules and policies and you indemnify and hold us and the Client harmless for any Union related claims whatsoever and howsoever caused.

   12. You agree:

       1. if reasonably requested by us or the Client, to participate in press photography/filming, media interviews and/or other promotional/publicity activity in respect of the Platform, and/or any Production produced by you; and

       2. that we and/or the Client shall have the right to use you or your key personnel's name, likeness and biography to promote the Platform and/or any Production produced by you.

   13. You undertake to notify us and the Client where you propose to work with a celebrity or well-known talent or social influencers in relation to any Production and further undertake to not depict or refer to any person in any Production without having first obtained written consent for the depiction or reference and to the manner in which it is made.

   14. You understand and acknowledge that where a production involves domestic or international travel, that this must be factored into the Creator Budget (including for crew, equipment and talent) and that you are responsible for obtaining any required visas and local filming permits.

3. Fees and Payment

   1. We will pay you the Creator Payment (being the Creator Budget minus any applicable Genero Creator Fee) as set out in the Brief in accordance with the payment terms set out in the Brief.

   2. Except as set out in clause 3.3 below, you will be responsible for ensuring all applicable Taxes are paid and applicable reporting obligations met in relation to all payments made under this Agreement, and shall indemnify us against any claim or liability arising out of or in connection with the same.

   GST Obligations for Creators

   3. This clause 3.3 will apply to you if you are registered or required to be registered for the purposes of A New Tax System (Goods and Services Tax) Act 1999 (GST Law). In accordance with section 153-50 of the GST Law, we will, on your behalf be treated as making the supplies to Clients, the details of which are as follows:

      1. For the purposes of GST Law, we will be treated as making the supplies to Clients, and you will be treated as making corresponding supplies to us.

      2. In the case of supplies to Clients, we will issue to Clients, in our own name, all the tax invoices and adjustment notes that are required by the GST Law relating to those supplies and you will not issue to Clients any such tax invoices and adjustment notes relating to those supplies.

      3. You will issue us all the tax invoices and adjustment notes that are required by the GST Law in respect of the corresponding supplies.

      4. The arrangement ceases to have effect if you or us, or both of us, cease to be registered for GST.

      5. Where GST applies to you under this clause 3.3, you must provide us an invoice that accords with the GST Law prior to any payment made by us to you.

      6. Where you make a supply to us which attracts GST, you are entitled to recover the GST from Genero.

4. Client Assets

   1. If we provide you with Client Assets, we grant you the right to use, edit and modify the Client Assets as reasonably required (or directed by the Client) to perform your obligations under this Agreement (the Licence).

   2. You agree to use the Client Assets in accordance with the Licence solely for the purposes of completing the Production.

   3. Upon final delivery of the Production or termination of this Agreement for any reason, You agree to make no further use of the Client Assets and delete all copies of such Client Assets in your possession.

   4. You must retain (in a secure location) a safe and secure copy of the final Production files and any key project files pertaining to the Production for a period 3 years from the date of final delivery of the Production. Within 24 hours and if requested by Genero or a Client, you must (without claiming any additional fees) provide a downloadable link to all master files, superless master files and separate audio splits. If the transfer can only be carried out physically, we will reimburse your reasonable costs for the purchase and delivery of a portable hard drive.

   5. Other than in relation to the grant of the Licence, nothing in this Agreement will be taken to constitute a transfer, assignment or grant of any ownership or other rights in any Intellectual Property Rights in the Client Assets you.

5. Intellectual Property

   1. In respect of the Production you:

      1. subject to the provisions of this clause 5 and the usage rights or limitations defined in the Brief of third parties (such as talent and music rights holders), with full title guarantee and by way of an exclusive assignment of present and future copyright, assign to us all Intellectual Property Rights and all other rights of whatever nature (whether vested or contingent) in and to the Production for exploitation at our sole discretion in all media whether now or hereafter known throughout the universe for the full period of copyright therein and all renewals and extensions thereof and thereafter (in so far as is permissible by law) in perpetuity;

      2. irrevocably and unconditionally waive and/or provide all relevant consents to not enforce or shall procure the irrevocable and unconditional waiver of and/or consent to not enforce all so-called moral rights in the Production that you or any individual engaged by you may have now and in the future in any part of the world; and

      3. warrant and undertake that

         1. you have the sole right and authority to assign the rights to us expressed to be assigned above;

         2. the Production is wholly original to you and does not infringe the Intellectual Property Rights or any other rights of any third party;

         3. subject to this clause 5, no consents or permissions are required from you or any third party in respect of the exploitation of any of the Production;

         4. we or the Client may exercise any and all rights in respect of the Production without identifying any person or persons as the individual/s responsible for creating the Production; and

         5. we or the Client may modify, alter, adapt, distort or otherwise change the Production regardless of whether such modification, alteration, adaptation, distortion or change is prejudicial to an individual's reputation or honour.

   2. Upon our request you agree to execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to the assignment of rights above, including executing or procuring the execution of any moral rights consent that may be required by us or the Client and/or any confirmation that your work in relation to a Brief is on a “work for hire” basis. You also agree to execute such documents and perform such acts as may be required by us or the Client for the registration and protection of any Intellectual Property Rights which subsist in the Production.

   3. If any applicable law does not permit the assignment referred to in clause 5.1 above, subject to this clause 5 and clause 6, you hereby grant us the exclusive, irrevocable, perpetual right to exploit the Production in all media throughout the world.

   4. Notwithstanding the above, except as specifically set out in the Brief, you will not be responsible for clearing and public performance rights in respect of musical compositions in the Production.

   5. You acknowledge that we may assign or licence any of the rights assigned or licensed by you to us to the Client.

6. Client Usage Rights and Additional Clearance Fees

   1. Subject to any requirements set out in the Brief, the Client's exploitation of a Production via Digital Media will be unlimited and not subject to any usage restraints and/or additional clearance fees.

   2. The Client's exploitation of a Production via Broadcast Media or Print Media may be subject to usage restrictions and/or payment of additional clearance fees to third parties (including talent, voice-over artists and music rights holders) set out in the relevant Brief. Any term or territorial restrictions relating to such usage will commence on first broadcast or print of the Production.

   3. For clarity, with respect to this clause 6, any fees due as a result of usage restrictions (eg. additional clearance fees payable to third parties, including talent, voice-over artists and music rights holders) are enforceable solely by those third parties and not by you.

7. Dealings Between You and Us

   1. You agree to act reasonably and in good faith in your dealings with us and Client to respond promptly to all communications;

   2. You indemnify us and the Client against all liabilities, costs, expenses, damages and losses suffered or incurred by us and/or Client arising out of or in connection with any claim made against us and/or Client arising out of or in connection with any breach of this Agreement or other act or omission by you and/or any claim that the Production or the Client's exploitation of the Production infringes the Intellectual Property Rights or other rights of any person or entity.

8. Responsible Contracting

   1. You must comply with all applicable anti-bribery, child labour and money laundering laws and regulations.

   2. You and any person or entity working on your behalf, in connection with this Agreement, shall not make any payment or transfer anything of value, directly or indirectly to any of the following if such payment or transfer would violate the laws of the country in which the transaction is made:

      1. any governmental official or employee (including employees of government-owned and government-controlled corporations and public international organizations);

      2. any political party, official of a political party, or candidate for public office;

      3. any intermediary, including, but not limited to, agents or family members of government officials, for payment to any government official;

      4. any other person or entity in a corrupt or improper effort to obtain or retain business or any advantage, in connection with your affairs;

      5. any business entity selling a competing product in order to eliminate or restrict competition, including, but not limited to, agreements to divide the market; or

      6. any other person or entity.

   3. You warrant and represent that, should you learn of or have reason to suspect any breach of the obligations in clauses 8.1 and 8.2 above, you will take appropriate remedial steps and promptly notify us.

   4. Without limiting any other provision of this Agreement, you represent and warrant that:

      1. except as disclosed in writing, you have any conflict of interest with respect to its business dealings in accordance with this Agreement;

      2. your performance of your obligations under the Agreement will not breach any applicable law (including, without limitation, any laws relating to export controls, sanctions, data protection, antitrust prohibitions and minimum employment standards);

      3. you will not engage in any activity that involves the exploitation of child labour or labour generally and will implement and comply with policies to protect the rights of workers in compliance with applicable laws (including, without limitation, ensuring that wages are paid to all applicable workers that meet or exceed legal minimum standards or applicable industry standards (whichever is higher) and workers are not required to work for more hours than applicable under the relevant legal standards and all overtime is voluntary);

      4. you recognise and respect any legal rights of workers to freedom of association and collective bargaining.

   5. You must disclose to us any ownership of or beneficial interest in you by any:

      1. any governmental official or employee (including employees of government-owned and government-controlled corporations and public international organizations);

      2. any political party, official of a political party, or candidate for public office;

      3. any intermediary, including, but not limited to, agents or family members of government officials, for payment to any government official.

9. Confidentiality

   1. You must:

      1. keep the Confidential Information confidential;

      2. establish and maintain effective security measures to safeguard the Confidential Information from access or use by third parties;

      3. keep the Confidential Information under your control;

      4. only use the Confidential Information for the purposes of this Agreement;

      5. not copy or disclose the Confidential Information (including to your officers, employees, contractors or advisors) other than to your personnel associated with the Brief and of all of your professional advisors and your related entities, servants, agents and personnel and professional representatives (on a need-to-know and confidential basis only).

   2. The obligation not to disclose Confidential Information under this clause 9 does not apply in relation to information that is:

      1. rightfully known to you, or in its possession or control and is not subject to an obligation of confidentiality;

      2. public knowledge (except because of a breach of the obligations of confidentiality under this Agreement);

      3. required by law or the rules of a stock exchange to be disclosed.

   3. Without limiting clause 9.1, if you brief any third party with respect to a Brief or this Agreement you must enter into an agreement with the third party under which the third party commits to confidentiality obligations not less onerous than those set out in clause 9.1.

10. General

    1. The relationship between you and us is and will be that of independent contractors and nothing in the Contract shall create an employment, trustee, partnership or agency relationship and no party will make any representation as such.

    2. Subject to clause 10.3 below, failure by you or us to perform any of our respective obligations under this Agreement (or a delay in such performance) due to a Force Majeure Event, will not constitute a breach of this Agreement. The party affected by the Force Majeure Event will:

       1. promptly give the other parties notice of the Force Majeure Event and an estimate of the non-performance and delay;

       2. take all reasonable steps to overcome the effects of the Force Majeure Event; and

       3. resume performance as soon as practicable after the Force Majeure Event no longer affects any party,

          provided that if a Force Majeure Event continues for a period of 30 days or more, we may terminate this Agreement with immediate effect by providing notice to you. Where a Force Majeure Event is an act of God (including a severe weather event) which prevents production or filming which cannot be rescheduled despite the parties’ best efforts, you mutually agree to negotiate with us in good faith for the settlement of any reasonable out of pocket expenses incurred by you prior to the Force Majeure Event (including a severe weather event).

    3. You must ensure that the production schedule for a Production that involves outdoor filming includes a back-up plan for inclement weather, as well as appropriate weather insurance, adequate for the size and Creator Budget of the Production. If you fail to have such a plan or to implement such a plan, then clause 10.2 above will not apply to any resulting failure by you to meet your obligations under this Agreement.

11. Cancelling the Brief

    1. We may at any time cancel the Brief by written notice to you. Such cancellation automatically terminates this Agreement.

    2. Upon termination of this Agreement, we will pay you any amounts you are due in accordance with the Client’s then current cancellation policies.

12. Assignment

    1. We may at any time assign, mortgage, charge, subcontract, sublicense or otherwise transfer any or all of our rights and obligations under this Agreement.

    2. You may not assign, mortgage, charge, subcontract, sublicense or otherwise transfer any of your rights or obligations under this Agreement without our prior written consent.

13. Miscellaneous

    1. You agree that the Client shall be deemed a third-party beneficiary to this Agreement to the same extent as if it were a party, and shall have the right to enforce the provisions of this Agreement.

    2. If any provision or part of a provision of this Agreement is held to be illegal, invalid, unenforceable or against public policy pursuant to a final adjudication by a court of competent jurisdiction, such provision will be deemed severed from this Agreement and the remainder of this Agreement will remain in full force and effect.

    3. Except as expressly stated in a Brief, the Terms, this Agreement, and the documents referred to in them, constitute the entire agreement between you and us in relation to the provision of the Services by you and supersede and extinguish any prior agreement in respect of the same.

    4. Subject to clause 13.5 below, you agree that this Agreement is governed by the law of the State of Victoria, Australia and you consent to the courts of Victoria, Australia having exclusive jurisdiction over any disputes arising in respect of or in relation to this Agreement.

    5. Nothing in clause 13.4 above shall (or shall be construed so as to) limit our right to bring a suit, action or proceeding (Proceeding) against you in the courts of any country in which you have assets or in any other court of competent jurisdiction nor shall Proceedings we institute in any one or more jurisdictions preclude us from instituting Proceedings in any other jurisdiction (whether concurrently or not) if and to the extent permitted by applicable law.

Last Updated: 8 April 2022. Genero Media Pty Ltd, all rights reserved.