Terms & Conditions – Contractor

1. APPOINTMENT 

1.1 Appointment:  YourFilm appoints the Contractor to provide the Services on the basis of these terms and conditions, and the Contractor accepts the appointment as a Contractor to YourFilm. 

1.2 Non-Exclusive:  The Contractor is not required to provide its services exclusively to YourFilm.  However, the Contractor must: 

1. ensure that it is able to provide the Services required of it the Term; and 
2. complete the Services in accordance with this Agreement, and without any actual or perceived conflict of interest; and  
3. give YourFilm priority in the use of its Services. 

1.3 Status of Contractor: The Contractor is in all respects an independent contractor and nothing in this Agreement is or will be deemed to make the Contractor an employee of YourFilm.  The Contractor agrees that at no stage either during or after the termination of this Agreement will it claim that the Contractor is or was (during the term of this Agreement) an employee of YourFilm.  Nothing in this Agreement constitutes a relationship of partnership or joint venture between the parties.  The Contractor will be solely liable for all its debts, losses, expenses and taxation on its income.

1.4 Authority of Contractor:  The Contractor has no authority to, and must not, incur any obligation on behalf of YourFilm, and must not give any warranty or make any representation on behalf of YourFilm or any related entity of YourFilm, unless expressly authorised to do so by YourFilm.

 

2. SERVICES

2.1 General Requirements:   The Contractor must at all times exercise all due care, skill, prudence and foresight.  In addition to any express provision of this Agreement, the Contractor must comply (without limitation) with the following: 

1. all relevant legislative and other legal requirements;
2. all policies of YourFilm (which YourFilm may amend from time to time on reasonable notice to the Contractor); 
3. all reasonable directions given by or on behalf of YourFilm to the Contractor or its personnel.

If the Contractor has any concerns about which of these requirements apply, they are required to make themselves aware as to their obligations. 

2.2 Further Requirements:  The Contractor must at all times deal with YourFilm and all Clients in good faith.

2.3 Equipment:  The Contractor must supply the equipment set out in project Schedules. 

 

3. YOURFILM’S OBLIGATIONS

3.1 Assistance by YourFilm:  YourFilm will provide all information, instructions and assistance as reasonably required by the Contractor in order to provide the Services.

 

4. INVOICING & PAYMENT

4.1 Fee and Expenses:  YourFilm will pay the Contractor a fee (Fee) in respect of the Services.   The Fee includes all expenses and disbursements the Contractor incurs in providing the Services, except for any expenses or disbursements incurred by the Contractor which YourFilm has agreed in advance to separately reimburse.  Expenses can only be claimed within 3 months of being incurred, and must be supported with appropriate documentation.

4.2 Invoices:  The Contractor must issue an invoice in proper form, being on the Contractor’s letterhead specifying the nature of the Services, the number of hours worked, the date and time the Services were performed and the job number for the project which will be provided by YourFilm at time of job confirmation. 

4.3 Payment Terms: YourFilm’s standard payment terms are 30 days from receipt of invoice.

4.4 Disputed Amounts:  If a party disputes any portion of any amount appearing on an invoice or claimed by the Contractor:

1. it will notify the other of the dispute at the earliest reasonable opportunity;
2. the undisputed portion of the invoice will remain payable on the due date for payment under clause 4.2;
3. YourFilm will not be obliged to pay the disputed portion of the invoice until the dispute has been resolved by Agreement between the parties or, if the parties cannot agree, in accordance with clause 13 of this Agreement.

4.5 Right of Set-Off:  YourFilm may set-off and deduct from any amounts otherwise payable to the Contractor under this Agreement any amount due and payable by the Contractor to YourFilm whether under this Agreement or otherwise (including amounts the subject of any dispute notified in accordance with clause 4.3).

5. WARRANITES

5.1 General Warranties:  Each party warrants to the other (continually during the term of this Agreement) that:

1. it has done everything necessary to lawfully enter into and perform its obligations under this Agreement, and is not aware of anything which might prevent it from doing so;
2. all information disclosed by it to the other party for the purposes of or in connection with the Services is, or will be when disclosed, complete and accurate in all material respects and the use of that information by either party will not breach the intellectual property rights of any third party.

5.2 Contractor’s Warranties:  The Contractor warrants (continually during the term of this Agreement) that it

1. has the knowledge, skills, experience, expertise, resources and capacity to perform, and will perform, its obligations under this Agreement promptly, diligently and professionally; 
2. will pay all applicable taxes, duties and other levies, including (without limitation) any income tax, pay-roll tax and workers’ compensation payments in respect of the Contractor;
3. is suitably qualified and appropriately skilled to carry out those obligations, and will comply with all relevant laws in performing work for YourFilm under this Agreement;
4. is legally entitled to work in each country in which the Contractor is required to provide Services under this Agreement

6. CONFIDENTIALITY

6.1 Obligation to Keep Confidential:  The Contractor will as confidential at all times, and will not at any time, directly or indirectly disclose or permit to be disclosed to any person or entity or use any Confidential Information, except:

1. as required by law;
2. if that information is or becomes public knowledge, other than as a result of a breach by that party of any provision of this Agreement; 
3. as authorised in writing by the other party or the Client; or 
4. to the extent reasonably required for the performance by the parties of their obligations under this Agreement.

6.2 Access to Records:  As soon as reasonably possible after receiving a written request to do so from YourFilm, the Contractor must: 

1. provide YourFilm with access to and/or copies of all records (of whatever type) containing any Confidential Information or any other information relating to YourFilm, or any of its Clients, Suppliers or employees, which are then in the Contractor’s possession or control (including granting YourFilm immediate access to any computers used by the Contractor so that YourFilm can verify the Contractor’s compliance with this Agreement); and 
2. provide to YourFilm (or if requested by YourFilm, destroy) such records immediately on termination of this Agreement.

7. INTELLECTUAL PROPERTY

7.1 Pre-Existing IP:  Nothing expressed or implied in this Agreement gives either party any proprietary rights in respect of any of the other party’s Pre-Existing Intellectual Property.  The Contractor must identify in writing to YourFilm, prior to its provision to YourFilm or a Client, any Pre-Existing Intellectual Property belonging to the Contractor.  Each party (First Party) grants to the other a non-exclusive licence to use the First Party’s Pre-Existing Intellectual Property, as reasonably necessary to give effect to this Agreement.

7.2 New IP:  If, during the course of providing the Services, the Contractor or its personnel engaged or involved in the provision of the Services, develop any new Intellectual Property Rights (of any type), including developments, modifications or adaptations to Pre-Existing Intellectual Property (New IP) which relates directly to the Services, then:

1. all Intellectual Property Rights in the New IP will be vested in YourFilm and will be YourFilm’s property as and when created, and the Contractor will (and must ensure that its personnel will) do such things and execute such documents as may be required to enable the Contractor to comply with this clause;
2. YourFilm is the absolute owner of all New IP, and the Contractor waives all moral rights and must not assert any proprietary or other rights to the New IP; and
3. YourFilm grants the Contractor a non-exclusive licence to use the New IP as is reasonably required for the provision of the Services.

7.3 Use of Intellectual Property:  The Contractor (and its personnel) may only use YourFilm’s intellectual property, including the New IP, during the term of this Agreement and for the purposes of performing the Services.  

7.4 Acknowledgement of Damage:  The Contractor acknowledges damages will not be an adequate remedy for a breach of this clause 7 and YourFilm may seek an injunction or a similar remedy, for any breach or threatened breach.

8. RESTRAINT

8.1 Restraint:  In consideration for the opportunity to contract with YourFilm and the Fees paid under this Agreement, the Contractor agrees that they will not directly or indirectly: 

1. solicit or perform work in any capacity from or for any Client, nor induce a person who was a YourFilm employee or contractor during the term of the Contractor’s engagement by YourFilm to do so;
2. attempt to encourage or persuade any of YourFilm’s Clients or Suppliers with whom the Contractor has dealt during the term of the Contractor’s engagement by YourFilm to terminate or restrict trade relations with YourFilm; or
3. attempt to encourage or persuade any employee, contractor or consultant of YourFilm to terminate their contract or Agreement with YourFilm.

8.2 Term of Restraint:  The restraints set out in clause 8.1 apply throughout the term of this Agreement and for 12 months or, if that is held invalid, 6 months or, if that is held invalid, 3 months, following the termination of this Agreement, unless YourFilm gives prior written approval for the restraints (or applicable part of them) to cease from an earlier point in time.

8.3 Area of Restraint:  The restraints set out in clause 8.1 apply within Australia, or if that is held invalid, New South Wales, or if that is held invalid, within 50km of Sydney GP

8.4 Acknowledgements:  The Contractor acknowledges that: 

1. it will have access to, and the benefit of, information and relationships vital to YourFilm’s ongoing success;
2. protecting YourFilm from competitors (including former employees) exploiting YourFilm’s methodologies is a legitimate business interest; 
3. this clause 8 is reasonable and necessary to protect YourFilm; 
4. the Contractor has received adequate consideration for accepting the terms of this clause; and
5. damages may be inadequate compensation for breach of this clause 8 and YourFilm may restrain, by an injunction or similar remedy, any breach or threatened breach.

9. LIABILITY, INDEMNITY, INSURANCE

9.1 Exclusion:  Nothing expressed or implied in this Agreement confers any liability on either party in respect of any loss, damage, cost or expense suffered or incurred by the other party, to the extent to which this results from any act or omission by that other party.

9.2 General Indemnity:  Subject to clause 9.1 and any express limitation of liability in this Agreement, each party (First Party) must at all times indemnify the other party in respect of any loss, damage, cost or expense (including reasonable enforcement costs, whether incurred on a solicitor and Client basis or otherwise) suffered or incurred by the other party as a result of a breach by the First Party of any of its obligations under this Agreement.  

9.3 Contractor’s Indemnity:  The Contractor is responsible for and must indemnify YourFilm against liability for all claims, demands, losses, damages or injury to persons or property and costs (including third party claims) that YourFilm incurs or may incur as a result of or arising out of: 

1. any claim made against YourFilm by any taxation authority in respect of the Fees; any failure to have the insurances required under clause 9.4; a breach by the Contractor of any of the Contractor’s obligations or warranties under or in connection with this Agreement or any, act,  omission, misconduct or negligence by them; or
2. any defect in any of the Services or outcomes of the Services except to the extent that the defect is a direct consequence of following an instruction given by YourFilm, 

and the amount of all claims, damages, costs and expenses which may be paid, suffered or incurred by YourFilm in respect of any loss, damage or injury will be made good at the Contractor’s expense. 

9.4 Insurances:  At the Contractor’s cost, it must effect and maintain:

1. all insurance required to be effected and maintained by the Contractor by law;  
2. Liability Insurance to the value of $20,000,000, if required by YourFilm, produce a valid Certificate of Currency.
3. any other insurances specified in Schedules, and the Contractor must, if required by YourFilm, produce evidence of these insurances at any time requested by YourFilm. 

10. DISPUTES

10.1 Discussions:  A party may, at any time while there is a genuine dispute involving that party relating in any way to this Agreement (Dispute), give written notice (Notice) to the other parties involved specifying the subject matter of the Dispute and requiring that those parties meet within 10 Business Days after delivery of the notice, to attempt to resolve the Dispute (Dispute Resolution Meeting).

10.2 Mediation:  If the parties fail to resolve the Dispute at the Dispute Resolution Meeting, or if a party to the Dispute fails or refuses to attend the Dispute Resolution Meeting within the 10 Business Day period referred to in clause 10.1, or at the time and venue agreed in writing between the parties, either party may (by written notice to the other party) require the Dispute be submitted for mediation by a single mediator nominated by the President for the time being of the New South Wales Law Society.  If that occurs:

1. the mediator will mediate the Dispute and will not act as an expert or as an arbitrator.
2. the mediator will determine the procedure and timetable for the mediation.
3. the cost of the mediation will be shared equally between the parties.

10.3 Legal Proceedings:  Neither party may issue any legal proceedings in respect of a Dispute unless it has first taken all reasonable steps to comply with clauses 10.1 and 10.2.

11. BREACH OF AGREEMENT

11.1 If either party breaches this Agreement then, without limiting the rights of the other party, if the other party considers the breach to be able to be remedied it may issue a notice requiring remedy of that breach within 20 Business Days, or a shorter period as is reasonable.

 

12. SUSPENSION/TERMINATION

12.1 Suspension:  YourFilm may, at its discretion, suspend performance by the Contractor of all or any of its obligations under this Agreement. This may occur in a situation where, including but not limited to, YourFilm is required to investigate acts or omissions involving the Contractor which, if proven, would amount to a breach of this Agreement. In that situation, the suspension may remain in place for the duration of the investigation.

12.2 Effect of Suspension:  If YourFilm has suspended any or all of the Contractor’s obligations:

1. the suspension is without prejudice to any of YourFilm’s other rights under this Agreement, including the right to terminate this Agreement;
2. YourFilm is not required to pay the Contractor for any obligations which are the subject of the suspension, for the duration of the suspension; and
3. this Agreement will otherwise remain in full force and effect.

12.3 Termination for Cause:  This Agreement may be terminated immediately by written notice given by either party (referred to in this clause as the “First Party”) to the other party (referred to in this clause as the “Second Party”) if:

1. the Second Party has failed to remedy a breach notified to it under clause 11 of this Agreement;
2. Other than for a solvent restructuring which has been previously approved in writing by the First Party (which approval may not be unreasonably withheld), the Second Party:
   1. goes into liquidation or becomes bankrupt;
   2. is removed from the United Kingdom Companies Register or similar register in respect of which it is incorporated;
   3. has a receiver, administrator, or statutory manager appointed in respect of it, or any material part of its assets; 
   4. makes any assignment to, or enters into an arrangement for the benefit of, its creditors; or
   5. if any event similar to those set out above has occurred in respect of the Second Party under the laws of any relevant jurisdiction; or
3. the Second Party has committed a material breach of this Agreement, which breach     is not in the reasonable opinion of the First Party, capable of remedy 

12.4 Termination Without Cause:  This Agreement may be terminated at any time by:

1. YourFilm, by giving 1 weeks written notice of its intention to do so to the Contractor; 
2. the Contractor, by giving 1 weeks written notice of its intention to do so to YourFilm; or
3. YourFilm, immediately if the other party has committed a material breach of this Agreement.

12.5 Consequences of Termination:  Upon the termination of this Agreement for whatever reason:

1. the termination will be without prejudice to the rights and remedies of either party in respect of any breach of this Agreement by the other party, where that breach occurred before the termination of this Agreement; and
2. the provisions of clauses 4.3, 4.4, 7, 8 and 9, together with those other provisions of this Agreement which are incidental to, or required in order to give effect to, those clauses will remain in full force and effect.

13. GENERAL

13.1 Entire Agreement:  This Agreement, records the entire arrangement between the parties relating to all matters dealt with in this Agreement and supersedes all previous arrangements, whether written, oral or both, relating to such matters.

13.2 Waiver:  No waiver of any breach, or failure to enforce any provision, of this Agreement by either party will limit or waive its right to subsequently enforce this Agreement. 

13.3 Governing Law:  This Agreement is governed by the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales in respect of all matters relating to this Agreement. 

13.4 Amendments:  No amendment to this Agreement will be valid unless in writing and signed by each party.

13.5 Events Beyond Control:  Neither party will be liable for any act, omission or failure under this Agreement if that act, omission or failure arises directly from a cause beyond the reasonable control of that party including extreme weather conditions, civil disruption, or industrial action (other than on the part of the party claiming the benefit of this clause), provided that:

1. the party claiming the protection of this clause must, as soon as possible after becoming aware of that cause or the likelihood of that cause, give the other party written notice accordingly;
2. despite that cause, each party must continue to perform its obligations under this Agreement to the best of their abilities; and 
3. neither party will be deemed to have accepted any extra costs which may be incurred or sustained by the other party through a delay resulting from that cause.

13.6 Partial Invalidity:  If any part of this Agreement is held to be invalid or is unenforceable, but would have been valid if part of the Agreement had been deleted or modified, that part will apply with such modifications as may be necessary to make the Agreement valid and enforceable.  The invalidity or unenforceability of that part will not affect the other parts of this Agreement, which will remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion or modification of the invalid or unenforceable part.

13.7 Tax and Laws:  Generally, the Contractor is responsible and liable for maintaining its tax status and paying all applicable taxes, duties and other levies, including (without limitation) any income tax, pay-roll tax and workers’ compensation payments in respect of the Contractor. YourFilm will make no deductions on account of tax and any other imposition except where YourFilm is required by law to make.

14. DEFINITIONS & INTERPRETATION

14.1 Definitions:  In this Agreement, unless the context requires otherwise:

Agreement means this document together with the Schedules.

Business Day means a day on which banks are open for business in New South Wales, excluding Saturdays, Sundays and public holidays.

Client includes any Person who:

(a) is or was a Person to whom YourFilm provides or provided Deliverables at any time during the twelve (12) months prior to the Termination date; or

(b) has entered into discussions or negotiations with YourFilm at either the Person’s own initiative or at the initiative of YourFilm at any time during the twelve (12) months prior to the Termination Date with a view to receiving Deliverables.

Commencement Date means the date specified in clause 1.1, or if no date is specified, the date on which this Agreement was signed by the parties.

Confidential Information means any information (in any form, whether written, electronic or otherwise):

1. relating to the terms of this Agreement or YourFilm’s Clients; or
2. contained on YourFilm’s Intellectual Property database; or
3. which YourFilm reasonably regards as confidential, including but not limited to its trade secrets, Client lists, details of the services provided by YourFilm or any of its related entities to its Clients and the status of the relationships, contracts or arrangements between YourFilm or any of its related entities and its Clients or Suppliers, YourFilm’s methodologies, training manuals, techniques, models and systems, intellectual property, financial information, pricing templates and budgetary data, sales documents and plans, YourFilm standard contracts, and business information including future plans; or
4. relating directly or indirectly to research or development by, accounting for or the marketing of the business of, either party or its Suppliers or customers, or the Client or its Suppliers or customers; or
5. disclosed by either party to the other party on the express basis that such information is confidential; or
6. which might reasonably be expected by either party to be confidential in nature, 

provided that where information relates exclusively to one party, nothing in this Agreement will require that party to maintain confidentiality in respect of that information.

Deliverables means any goods, products or services, manufactured, provided or supplied to or by YourFilm including, but not limited to, those products and services supplied in relation to the Services.

Intellectual Property Rights includes all intellectual property rights created, generated, conceived, authored or acquired by the Contractor in the course of providing Services to YourFilm whether alone or in conjunction with others and whether during regular office hours or otherwise which:

1. relate to the business or prospective business of YourFilm; or
2. were generated or created using any equipment or facilities of YourFilm, including: 
3. any inventions, innovations, developments, discoveries, ideas, improvements, software, coding, databases, models, designs, drawings, plans, reports, proposals and other materials (including training materials and courses) (in each case whether registered or unregistered);
4. any patents, petty patents, utility models, plant variety rights, domain names, copyright, registered designs, trademarks (including logos and trade dress) Confidential Information (in each case whether registered or unregistered); 
5. any application or right to apply for registration of any of those rights; and
6. all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world, and all rights of action, powers and benefits of the same.

Person includes any natural person, company, partnership, association, trust, business, or other organisation or entity of any description and a Person’s legal personal representative(s), successors, assigns or substitutes.

Pre-Existing IP means:

(a) in relation to YourFilm, the Intellectual Property Rights of YourFilm which existed prior to the date of this Agreement which YourFilm or any of its officers, employees, agents or contractors makes available to the Contractor;

(b) in relation to the Contractor, the Intellectual Property Rights of the Contractor which existed prior to the date of this Agreement which the Contractor makes available to YourFilm.

Services means the services to be provided by the Contractor under this Agreement, including as described in schedule 2.

Supplier means any Person:

(a) who supplied any Deliverables to YourFilm at any time in the 12 months immediately preceding the Termination Date; or

(b) who has entered into discussions or negotiations with YourFilm or the Contractor at any time during the 12 months prior to the Termination Date, with a view to supplying Deliverables to YourFilm.

• Interpretation:  In this Agreement, unless the context indicates otherwise:

1. Clauses/Schedules:  references to clauses and schedules are references to clauses in, and schedules to, this Agreement, unless stated otherwise. All such schedules form part of this Agreement;
2. Plural and Singular:  references to the singular include the plural and vice versa;
3. Statutory Provisions:  references to any statutory provision are to statutory provisions in force in Australia and include any statutory provision which amends or replaces it, and any by law, regulation, order, statutory instrument, determination or subordinate legislation made under it;
4. Parties:  references to any party include that party’s successors and permitted assignees;
5. Documents:  references to any document (however described) are references to that document as modified, novated, supplemented, varied or replaced from time to time and in any form, whether on paper or in an electronic form;
6. Inclusive Expressions:  the term include or including (or any similar expression) is deemed to be followed by the words without limitation; and
7. Headings:  clause and other headings are for ease of reference only and will not affect the interpretation of this Agreement.