MOVIANS Terms & Conditions
These Terms. These Terms govern your relationship with Movians, whose registered office is at House 12, Road 1, Block F, Banani, Dhaka, Bangladesh, (we, our, us, Movians) when you use the Platform. Please refer carefully to the relevant sections of these Terms before you start to use the Platform. By using the Platform, you (including, where applicable, the organisation you represent) will be deemed to have understood and accepted these Terms, which form a binding agreement between you and us and/or may form a binding agreement between Creators, Clients and us.
Changes to These Terms. We may revise these Terms (including by way of Additional Terms or policies) at any time by written notice to you (including via email). If you continue to use the Platform following receipt of such notice, you will be deemed to have accepted our revision of these Terms.
- You may use elements of the Platform by simply visiting our website, but access to most of the Platform is available only to registered users.
- In order to register to use the Platform you must be at least 18 years of age. By registering to use the Platform, you represent and warrant that this is the case. Without prejudice to the foregoing, if reasonably requested by us or if required by Client in relation to use of a particular aspect of the Platform, you agree to promptly provide us and/or the relevant Client with a certified copy of government issued ID verifying your identity including but not limited to your age, photo and address.
- You agree that you will provide truthful and accurate information when registering to use the Platform. The decision to accept a registration is in our discretion and we may revoke a registration at any time.
- You may not register to use the Platform if you are already registered or if you were previously a registered user and we cancelled your account as a result of you being in breach of these Terms.
- You are responsible for maintaining the confidentiality of your password and account information, and you are solely responsible for all activities that occur under your password or account and for any access to or use of the Platform by you or any person or entity using your password, whether or not such access or use has been authorised by you.
- You must immediately notify us of any unauthorised use of your password or account or any other breach of security. We will not be liable for any loss or damage whatsoever resulting from the disclosure of your username and/or password contrary to these Terms.
- You are responsible for ensuring that the information we hold about you is up to date. Please amend your details via the Platform as appropriate from time to time or contact us if you require assistance.
- Please refer to our Privacy & Cookies Policy for further explanation as to how we use the personal information we collect from you.
- Posting Briefs and Exclusivity
- By creating and posting a Brief, a Client
- it intends in good faith to select a Response;
- the Brief describes its requirements as accurately as possible and in sufficient detail for the Creator to determine whether the Budget will be adequate remuneration;
- it has the authority and funds to pay the Budget and any Taxes; and
- where it posts materials as part of a Brief that would ordinarily be classified as a Client’s trade secrets/know how, product specifications or anything else a Client would seek to classify as its confidential information, the Client has reviewed all such materials and is satisfied that posting the materials to a Brief may make them publicly available to Creators.
- If a Client posts a Brief using the Platform
the Client agrees that up to and including the Response Deadline that:
- the Brief shall be exclusive to the Platform and the Client will only solicit responses to the Brief via the Platform.
- without limiting the sub-paragraph 2.2.1 above, the Brief shall not appear on or be communicated via any other websites, platforms or third party services save on a solely promotional basis;
- any promotion referred to in the sub-paragraph 2.2.2 above will include a link to the Platform as the exclusive point of contact for responses to the Brief.
- By creating and posting a Brief, a Client warrants that:
- Responding to Briefs
- Some Briefs may be limited in their availability to certain Creators only (eg. based on location, quality, or due to confidentiality).
- A Creator must post its Response prior to the Response Deadline. However, we reserve the right, at our sole discretion, to accept or refuse to accept late Responses. All dates and times are Greenwich Mean Time (GMT) unless otherwise stated. It is the Creator’s responsibility to convert the time and date to its local time zone.
- By posting a Response, a Creator offers to contract with the relevant Client and us (to the extent applicable) for the production and delivery of the Production on the terms and conditions set out in the Brief and the terms and conditions set out herein.
- Creator must not disclose its Response to any third party unless they are directly involved in the Creator’s production.
- Creator must not include any materials in a Response which incorporates work from any previously commissioned Movians Briefs that are yet to be public domain.
- Selection of Briefs and Contracting
- Except as set out in the Brief, the Client will notify the Creator via the Platform within 30 days of the Response Deadline if Creator’s Response was successful or not. If a Client has not notified a Creator within 30 days of the Response Deadline, Creator may request in writing that its Response be removed from consideration.
- If we and/or the Client are unable to communicate with the Creator (eg. to select or commission them) within 24 hours of such notification, the Client reserves the right to withdraw its selection of the Creator’s Response and commission another Creator without liability of us or the Client to the Creator.
- Neither we or the Client will have any liability to a Creator in respect of a failure for any reason to select a Response.
- By notifying a Creator that Client has selected the Creator’s Response, a Client accepts the Creators offer to contract referred to in clause 3.3 above with the effect that a binding contract arises between the Creator, the Client and us (to the extent applicable) on the terms and conditions set out herein.
- Clients must keep all Responses confidential and shall not use or disclose any Responses for any purpose other than to select a Response, other than to parties associated with the Brief and the Client’s professional advisors and related entities, servants, agents and personnel and professional representatives (on a need-to-know and confidential basis only).
- Once a Response has been accepted, Client and Creator consent to us providing each of Client and Creator’s contact details to each other.
- Notwithstanding paragraph 4.6 above, Client and Creator must ensure that all ongoing communication related to any Production is completed on the Platform via the messaging and other production management tools provided, so we have a record of this communication for Client and Creator’s protection.
- Contract formation
- Upon the notification by a Client that it has selected a Response in accordance with these Terms, the Client, Creator and us (where applicable) will automatically enter into a contract on the terms of the Brief and the terms herein (Contract).
- 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 the Contract. Otherwise, the terms of the Contract will override the Brief.
- Subject to confirmation by us that we have received the Budgeted Amount in accordance with clause 7, the Creator must produce and deliver the Production in accordance with the Brief (including, the Budget and production schedule).
- Without limiting paragraph 6.1 above, the
Creator agrees to produce/edit and deliver each Production with reasonable
skill and care and in accordance with:
- good industry practice;
- all applicable laws;
- the relevant Brief;
- the Creator’s Response including any examples of the Creator’s work provided; and
- the Client’s reasonable instructions and specifications.
- The Creator must provide all facilities, assets, personnel and other resources necessary to produce/edit and deliver each Production unless otherwise agreed with the Client.
- The Creator agrees 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 edits, as requested by the Client in respect of each Production, unless otherwise agreed in writing or stated in the Brief.
- The Creator will supply digitally uploaded files of the Production in accordance with the deliverables set out in the Brief, within the timeframe specified in the Brief.
- The Creator must enter into all relevant Production Contracts in relation to the Production.
- Without limiting
paragraph 6.6 above, the Creator undertakes 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:
- 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);
- contain express waivers of and/or consents to not enforce so called moral or similar rights in connection with the Production; and
- be free of any third party limitations or residual fees unless otherwise agreed in writing.
- We provide digital release form templates to
assist in the process of concluding Production Contracts. However, Creator and
Client acknowledge that either of our digital release forms or a release form
provided by the Client must be used. .As between us, the Client and Creator,
Client is solely responsible for:
- ensuring that the Creator has obtained all necessary Production Contracts and/or release forms;
- ascertaining that the rights obtained pursuant to these documents are sufficient for Client’s proposed exploitation of the Production; and
- requesting any necessary copies and/or other
evidence from the Creator for these purposes.
Without limiting the foregoing, Client may request in a Brief that Creator use Client’s preferred form of Production Contracts. If Client makes such a request, Creator must use Client’s preferred form of Production Contracts. The Creator must not use its own Production Contracts without the express consent of the Client.
- Creator 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 the Creator via the Platform.
- Creator will maintain in force, with a reputable insurance company, errors and omission insurance, professional indemnity insurance (which will include cover pertaining to a Creator breach of any third party Intellectual Property and Client trade secrets/know how or confidential information) and public liability insurance to cover the liabilities that may arise under or in connection with any Brief and shall, 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. Creator warrants that it holds all such insurance policies and that such insurance policies fully cover its participation in any Brief. Creator acknowledges that it alone will bear 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 Creator incurs. Client warrants that it has checked and satisfied itself of the Creator’s insurance status, and we have no liability whatsoever to Client in relation to such insurance.
- Creator warrants that neither it or any contributor to any Production are subject to the requirements or obligations of any union, guild or similar association (Union) or, if Creator or any such party is subject to any Union, Creator warrants and agrees to fully comply with such Union’s rules and policies and Creator indemnifies and hold us and the Client harmless for any Union related claims whatsoever and howsoever caused.
- Creator agrees:
- 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 Creator; and
- that we and/or the Client shall have the right to use Creator or Creator’s key personnel’s name, likeness and biography to promote the Platform and/or any Production produced by the Creator.
- Creator undertakes to notify a Client where it proposes to work with a celebrity or well-known talent or social influencers in relation to any Production and further undertakes 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.
- The Creator understands and acknowledges that where a production involves domestic or international travel, that this must be factored into the Budget (for both crew and equipment) and that the Creator is responsible for obtaining any required visas and local filming permits.
- Fees and Payment
- Client must pay the Budget, any Overages and any other amounts payable by Client directly to us in accordance with the Contract.
- Client must pay to us:
- the Budget amount by the due date as specified via the Platform. Movians reserves the right to determine (on a case by case basis) whether new Clients are required to pay a percentage of or the full Budget prior to the publication of any Brief;
- any Overages and the applicable Movians Fee, on agreement of such Overages; and
- any costs and expenses set out in the Brief
(including, without limitation, costs of hard drive and courier in relation to
Rushes where specified in the Brief),
by the payment method and currency stipulated via the Platform or applicable invoice (which may be updated from time to time).
- Client and Creator acknowledge that we will
retain the Movians Fee and Client will release (via the Platform) the
applicable Creator Payment (which comprises the Budget less the Movians Fee) to
the relevant Creator:
- on final delivery of the Production; or
- if the Client is eligible, via progress payments, in accordance with the Brief and the prescribed payment schedule using the Platform.
- In relation to payments referred to in sub-paragraph 7.3.2 above, the Client and Creator acknowledge that the Client will be responsible for the release of payments, including progress payments, based on the Creator’s achievement of the agreed milestones and signifying final delivery by marking the Brief as complete on the Platform (or delivery being deemed to have occurred – see paragraph 7.5 below). Any costs incurred by the Creator prior to release of payments are solely at the Creator’s own risk.
- Client warrants that it will acknowledge final delivery of the Production (acting reasonably and in good faith) by marking the relevant Brief as complete via the Platform. In the absence of such acknowledgement, Client agrees that final delivery shall have been deemed to occur if Client does not reject delivery within 21 days of receipt of the final online edit of Production or on any use by Client of the Production. Client acknowledges that it will only be entitled to reject the Production in the event of breach of the Contract by the Creator or if the Client acting reasonably is of the opinion that the Production does not substantially accord with the Brief and subsequent directions given in respect of the Production in accordance with the Contract.
- Client is solely responsible for conducting appropriate due diligence and ensuring the suitability of the Creator prior to their engagement, and a lack of experience or skill on behalf of the relevant Creator will not (by itself) entitle Client to reject delivery.
- If Client rejects a Production in accordance with paragraph 7.6 above, Client is not required to pay the Creator any amounts that were contingent on delivery. Client will be entitled to a repayment from us of the amount of the Creator Payment not yet released to the Creator. We acknowledge that we must refund that part of the Creator Payment to Client within 30 days after receiving written notice from Client that Client has rejected a Production in accordance with paragraph 7.5 above.
- If Client fails to make any payment due under the Contract by the due date for payment, then, without limiting our remedies, Client agrees to pay interest on the overdue amount at the rate of 2% per annum above our primary bank’s standard overdraft rate. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Client agrees to pay the interest together with the overdue amount.
- Client agrees to make all payments under the Contract without withholding or deduction of, or in respect of, any Taxes unless required by law. If any such withholding or deduction is required by law, Client agrees to, when making the payment to which the withholding or deduction relates, pay to us such additional amount as will ensure that we receive the same total amount that we would have received if no such withholding or deduction had been required. In addition, where required to be paid by law, the Client must provide to us a copy of the certificate of withholding (or analogous document).
- Client and Creator acknowledge that:
- The payments under the Contract payable to Movians are exclusive of Taxes which, if applicable, shall be payable by Client;
- the Creator Payment shall be paid to Creator in the currency stated on the Brief (or as otherwise advised by us) by such method as stated on the Platform (which may be updated from time to time);
- we have no responsibility to Creator whatsoever in relation to the impact of exchange rate variations or payment gateway fees and charges, on the amounts that Creator actually receives;
- Notwithstanding clause 7.10.1, in the event a Client determines that it is required to withhold any Taxes from any sums payable to us, the Client is obligated to notify us in advance, setting out the legal basis for the withholding of these sums.
- Client further acknowledges that, once the Creator Payment (or any portion of it) is released to the Creator, the Creator Payment is non-refundable other than as expressly set out in the Contract and we shall have no liability to Client in respect of the same. Client is solely responsible for undertaking due diligence in respect of the relevant Creator and/or Production to ensure its compliance with the Contract prior to triggering progress payments and/or acknowledging final delivery.
- Creator warrants that it is entitled to be the sole recipient of the Creator Payment or any other payment in respect of a Production, and neither us nor any Client shall have additional liability to Creator or any other person in respect of any Production following payment in full of the Creator Payment.
- GST Obligations for Australian Creators
- This clause 7.13 applies solely to Creators
that 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, Movians will, on the Creator’s behalf make the supplies
to Clients, the details of which are as follows:
- For the purposes of GST Law, Movians will be treated as making the supplies to Clients, and the Creator will be treated as making corresponding supplies to Movians.
- In the case of supplies to Clients, Movians will issue to Clients, in Movians’s own name, all the tax invoices and adjustment notes that are required by the GST Law relating to those supplies and the Creator will not issue to Clients any such tax invoices and adjustment notes relating to those supplies.
- The Creator will issue Movians all the tax invoices and adjustment notes that are required by the GST Law in respect of the corresponding supplies.
- The arrangement ceases to have effect if the Creator or Movians, or both of them, cease to be registered for GST.
- Where GST applies to a Creator under this clause 7.13, the Creator must provide to us an invoice that accords with the GST Law prior to any payment made by us to the Creator.
- Where the Creators make a supply to Movians which attracts GST, the Creator is entitled to recover the GST from Movians.
- Cancelling Briefs
If the Creator is in material breach of its obligations pursuant to the Contract and, if capable of remedy, such breach has not been remedied within 72 hours of written notice requiring such remedy, Client may cancel a Brief after commissioning a Creator at any time on provision of written notice to the Creator and us.
- Fees payable by Client in relation to Cancelling Briefs
- If Client cancels a Brief 72 hours or more before the Response Deadline, Client will not incur cancellation fees.
- If Client cancels a Brief 72 hours or less before the Response Deadline or after the Response Deadline, but before Selection, Client will be liable for 50% of the Movians Fee. We may, in our absolute discretion, agree to waive some or all of the Movians Fee if we deem the response was not satisfactory to Client’s Brief.
- If Client cancels a Brief 7 days or more prior
to the first scheduled production day for the Production, Client will be liable
for 100% of the Movians Fee, and:
- Client must pay the greater of 100% of the Creator’s actual expenses incurred prior to cancellation and 15% of the Creator Payment.
- If Client cancels a Brief 7 days or less prior
to the first scheduled production day for the Production, Client will be liable
for 100% of the Movians Fee, and:
- Client must pay the greater of 100% of the Creator’s actual expenses incurred prior to cancellation and 30% of the Creator Payment.
- If Client cancels a Brief after the first
scheduled production day for the Production, Client will be liable for 100% of
the Movians Fee, and:
- Client must pay the greater of 100% of the Creator’s actual expenses incurred prior to cancellation and 60% of the Creator Payment.
- Creator’s actual expenses referred to in the above clauses, must be evidenced by receipts provided by the Creator.
- If the amount of the Creator Payment released to the Creator as at the date of cancellation is more than the amount referred to in any of the scenarios outlined at clauses 9.3 to 9.5 above, the Creator will refund to Client within 7 days of cancellation an amount equal to the Creator Payment released less the relevant amount referred to at clauses 9.3 to 9.5 above and, if the amount of the Creator Payment released to the Creator as at the date of cancellation is less than the amount referred to at clauses 9.3 to 9.5 above (as the case may be for each scenario), Client must pay to the Creator within 7 days of cancellation such amounts as is necessary to give effect to this paragraph 9.
- Client Assets
- If Client uploads Client Assets to the
Platform, or otherwise provides Client Assets to us or any Creator, Client
- us, a non-exclusive, revocable, royalty-free, worldwide licence to host and store the Client Assets and to make them available to Creators strictly for the purposes of the operation of the Platform and performance of the Contract; and
- each Creator the right
to use, edit and modify the Client Assets as reasonably required (or directed
by the Client) to produce and submit Responses and perform the Contract,
- Creator agrees to use the Client Assets in accordance with the Licence solely for the purposes of creating and submitting their relevant Response to a Brief and/or completing the Production.
- Upon final delivery of the Production, cancellation of any Brief or notification that Creator’s Response has been unsuccessful, Creator agrees to make no further use of the Client Assets and delete all copies of such Client Assets in Creator’s possession. If a Production is sold via the Video Store, the Creator further agrees to remove all such Client Assets from the Production.
- Notwithstanding anything in clause 10.3, where a Creator has been commissioned by a Client and for 3 years from the date of final delivery of the Production, the Creator 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. Within 24 hours and if requested by Movians or a Client, the Creator must (without claiming any additional fees) provide a downloadable link to all master files, super-less master files and separate audio splits. If the transfer can only be carried out physically, the Client will reimburse the Creator’s reasonable costs for the purchase and couriering of a portable hard drive.
- Other than in relation to the grant of the Licence, nothing in the Contract 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 to us or Creator.
- Client warrants that:
- Client has all necessary rights, licences, permissions and consents to grant the Licence;
- the Client Assets and the Licence, and our and/or any Creator’s exercise of the Licence, shall not infringe the rights, including (without limitation) the intellectual property rights, of any third party; and
- the Client Assets shall not include anything which is or may reasonably be regarded as offensive, blasphemous, obscene, defamatory or otherwise unlawful.
- If Client uploads Client Assets to the Platform, or otherwise provides Client Assets to us or any Creator, Client grants:
- Intellectual Property
In respect of the relevant Production, in consideration of the payment of the Creator Payment in full, Creator:
- subject to the provisions of paragraphs 11.5,
11.6, 11.7 and 11.8 below and this clause 11 generally and subject to 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 assigns to the Client all rights
including without limitation the entire worldwide copyright and all other
rights of whatever nature (whether vested or contingent) in and to the Production
for exploitation at that Client’s 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;
- irrevocably and unconditionally waives and/or provides 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 Creator or any individual engaged by Creator may have now and in the future in any part of the world; and
- warrants and undertakes that:
- Creator has the sole right and authority to assign the rights to the Client expressed to be assigned above;
- the Production is wholly original to Creator and does not infringe the copyright or any other rights of any third party;
- subject to this clause 11, no consents or permissions are required from Creator or any third party in respect of the applicable Client’s use of any of the Production;
- 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
- 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.
- Upon request of the relevant Client, Creator agrees 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 the Client. The Creator also agrees to execute such documents and perform such acts as may be required by a Client for the registration and protection of any Intellectual Property rights which subsist in the Production.
- If any applicable law does not permit the assignment referred to in clause 11.1 above, subject to clauses 11.6, 11.7 and 11.8 below and clause 12, the Creator hereby grants to Client the exclusive, irrevocable, perpetual right to exploit the Production in all media throughout the world.
- Notwithstanding the above, the Creator will not be responsible for, unless agreed in writing between Client and the Creator, public performance rights in respect of musical compositions in the Production.
- Client and Creator hereby grant us a non-exclusive, royalty-free, worldwide, perpetual licence to host and store all Productions submitted by Creator under the Contract and to make them available to the relevant Client and, in respect of Productions that are not acquired by a Client pursuant to a Brief, to make such Productions available via the Video Store in accordance with these Terms. We undertake to maintain accurate and up to date records of all materials retained by us by way of this licence.
- For the avoidance of doubt, if Client rejects a Production there will be no assignment or grant of rights by the Creator to Client in relation to that Production and, except as otherwise agreed by Client and the Creator, Client must not exploit the Production in any manner.
- Client Usage Rights and Additional Clearance Fees
- 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.
- 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.
- For clarity, with respect to this clause 12, any usage restrictions (which may require additional clearance fees) that may be applicable to third parties (including talent, voice-over artists and music rights holders) are enforceable solely by those third parties and not by Creators.
- Dealings between us, the Client and the Creator
- Each of Creator and Client:
- agree to act reasonably and in good faith in their respective dealings with us and each other and to respond promptly to all communications.
- acknowledge that we are not responsible for any element of the production or liable for the acts or non-performance by Client or Creator.
- Client and Creator agree not to attempt to circumvent the Platform or send or receive consideration for any Brief or related work other than via the Platform.
- Client agrees to indemnify us and the Creator against all liabilities, costs, expenses, damages and losses suffered or incurred by us arising out of or in connection with any claim made against us arising out of or in connection with any breach of the Contract or other act or omission by Client.
- Creator agrees to indemnify us and the Client against all liabilities, costs, expenses, damages and losses suffered or incurred by us arising out of or in connection with any claim made against us arising out of or in connection with any breach of the Contract or other act or omission by Creator and/or any claim that the Production or the Client’s exploitation of the Production infringes the intellectual property or other rights of any person or entity.
- Neither Creator nor Client, while registered
on the Platform and for a period of 3 months after ceasing to be registered,
- in the case of the Client, knowingly seek or accept the services of any Creator independently from the Platform; or
- in the case of the Creator, knowingly seek or accept the custom of any Client independently from the Platform; or
- induce, or attempt to induce, any user of the Platform to: (i) cease or refrain from using the Platform; or (ii) reduce its use of the Platform, or do any other thing which is reasonably likely to have such an effect.
- Each of Creator and Client:
- Responsible Contracting
- Client and Creator must comply with all applicable anti-bribery laws and regulations.
- Client and Creator and any person or entity
working on Client or Creator’s behalf, in connection with the Contract, 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:
- any governmental official or employee (including employees of government-owned and government-controlled corporations and public international organizations);
- any political party, official of a political party, or candidate for public office;
- any intermediary, including, but not limited to, agents or family members of government officials, for payment to any government official;
- any other person or entity in a corrupt or improper effort to obtain or retain business or any advantage, in connection with Client or Creator’s affairs;
- 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
- any other person or entity.
- Client and Creator warrant and represents that, should it learn of or have reason to suspect any breach of the obligations in clauses 14.1 and 14.2 above, it will take appropriate remedial steps and promptly notify the other party and us.
- Without limiting any other provision of the
Contract, Client and Creator’s represent and warrant that:
- except as disclosed in writing, neither Client nor Creator has any conflict of interest with respect to its business dealings in accordance with the Contract;
- their performance of their respective obligations under the Contract will not breach any applicable law (including, without limitation, any laws relating to export controls, sanctions, data protection, anti-trust prohibitions and minimum employment standards);
- they 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);
- they recognise and respect any legal rights of workers to freedom of association and collective bargaining.
- Creator must disclose to Client any ownership
of or beneficial interest in Creator by any:
- any political party, official of a political party, or candidate for public office;
- any intermediary, including, but not limited to, agents or family members of government officials, for payment to any government official; or
- any employees of Client or family members of employees of Client.
- Client will not at any time use or disclose to any person any confidential information relating to us or any Creator (including, without limitation, any Response) save to all of Client’s professional advisors and Client’s related entities, servants, agents and personnel and professional representatives (on a need-to-know and confidential basis only) or as otherwise required by law.
- Creator will not at any time use or disclose to any person any confidential information relating to us or any Client save to Creator’s personnel associated with the Brief and of all of Creator’s professional advisors and Creator’s related entities, servants, agents and personnel and professional representatives (on a need-to-know and confidential basis only) or as otherwise required by law. Without limiting this clause 15.2, if the Creator briefs any third party with respect to a Brief, Response or the Contract, the Creator 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 15.1.
- The relationship between Client, Creator and us is and will be that of independent contractors and nothing in the Contract shall create a employment, trustee, partnership or agency relationship and no party will make any representation as such.
- Subject to clause 15.5 below, failure by the
Client, the Creator or us to perform any of their respective obligations under
the Contract (or a delay in such performance) due to a Force Majeure Event,
will not constitute a breach of the Contract. The party affected by the Force
Majeure Event will:
- promptly give the other parties notice of the Force Majeure Event and an estimate of the non-performance and delay;
- take all reasonable steps to overcome the effects of the Force Majeure Event; and
- 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, the Client may terminate a Brief or the Contract with immediate effect by providing notice to us and the Creator. 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, the Client and Creator mutually agree to negotiate in good faith for the settlement of any reasonable out of pocket expenses incurred by the Creator prior to the Force Majeure Event (including a severe weather event).
- Creator must ensure that its production schedule for a Production that involves outdoor filming includes a back-up plan for inclement weather. If the Creator fails to have such a plan or to implement such a plan, then clause 15.3 above will not apply to any resulting failure by Creator to meet its obligations under the Contract.
- Movians Intellectual Property
You acknowledge that the Platform and all material published on the Platform including but not limited to text, graphics, photos, logos, button icons, images, trademarks, audio and audio visual clips, databases, data compilations, data and software (but excluding any content uploaded by users of the Platform) (together the Movians Content) are (as between you and us) owned and controlled by or licensed exclusively to us. You may not copy, adapt, display, communicate to the public or otherwise use any Movians Content except as enabled and permitted by the Platform from time to time.
- Your Use of the Platform and Content Standards
- You are responsible for making all technical arrangements necessary to access the Platform. You are also responsible for ensuring that all persons who access the Platform through your internet connection are aware of these Terms and that they comply with them.
- Without limitation, you may not use the
- in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
- to send, or procure the sending of, any unsolicited or unauthorised electronic communication, advertising or promotional material or any other form of similar solicitation (spam); or
- to knowingly transmit any data or send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of the Platform or any computer software or hardware.
- You also agree not to:
- reproduce, duplicate, copy or re-sell any part of the Platform (or any content within it) in contravention of these Terms; and
- access without authority, interfere with, damage or disrupt: (A) any part of the Platform; (B) any equipment or network on which the Platform is stored; (C) any software used in the provision of the Platform; or (D) any equipment or network or software owned or used by any third party.
- The Platform may include information and materials uploaded by other users, including (without limitation) to comment boards and discussion forums. This information and these materials have not been verified or approved by us. The views expressed by other users on the Platform do not represent our views or values. You acknowledge that you may be exposed to content that you may find offensive, indecent or objectionable and that, in this respect, you use the Platform at your own risk.
- Whenever you make use of Platform to allow you to upload content or make contact with other users of the Platform (each a Communication) you grant us a non-exclusive, royalty-free, worldwide, perpetual licence to host, copy, store and make available such Communication and agree to comply with the Content Standards.
- You must comply with the spirit and the letter of the Content Standards. The Content Standards apply to each part of any Communication as well as to its whole.
- Communications must be accurate (where they state facts), be genuinely held (where they state opinions), and comply with applicable law.
- Communications must not: contain any material which is defamatory of any person; contain any material which is obscene, offensive, hateful or inflammatory; promote or contain sexually explicit material; promote or contain violence; include gang signs or symbols; promote or contain discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; infringe any copyright, trade secret/know how, database right or trademark of any other person; be likely to deceive any person; be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence; promote any illegal activity; be threatening, abuse or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety; be likely to harass, vilify, upset, embarrass, alarm or annoy any other person; be used to impersonate any person, or to misrepresent your identity or affiliation with any person; give the impression that they emanate from us, if this is not the case; or advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse.
- You warrant that any such Communication complies with the Content Standards, and you will be liable to us and indemnify us for any breach of that warranty. This means you will be responsible for any loss or damage we suffer as a result of your breach of such warranty. We will not be responsible, or liable to any third party, in respect of the content of any Communication.
- You acknowledge that your Communications (including but not limited to any Productions) may be subject to criticism and/or review by the public and as such may receive positive or negative comments and reactions, and we are not responsible for any such review or comment or any consequences relating to the same.
- You acknowledge that:
- you are responsible for your interactions with other users;
- we make no representations or warranties as to the conduct of other users; and
- we shall not be in any way liable for the conduct of any other users.
- You agree to take reasonable precautions in
all interactions with other users. Notwithstanding any other provision of these
Terms the parties acknowledge and agree that:
- any information published on the Platform (including, without limitation, Briefs) (the “Platform Information”) will be available to users of the Platform;
- the publication of Platform Information by Movians will not amount to a breach of any of Movians’s obligations under these Terms; and
- if you disclose your confidential information to another party on or via the Platform/Movians and you wish to impose obligations of confidence on the other party in relation to such information, you should enter into a separate confidentiality agreement with the other party.
- If you wish to register a complaint concerning a user of the Platform, please contact us (or, in respect of copyright infringement, pursuant to the section below).
- Copyright Infringement – Takedown Procedures
If you believe that any materials on the Platform infringe your copyright, you may request that such materials be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an authorised representative, and must:
- identify the allegedly infringing materials;
- indicate where on the Platform the infringing materials are located;
- provide your name and contact information;
- state that you have a good faith belief that the materials are infringing;
- state that the information in your claim is accurate; and
- indicate that you are the lawful copyright owner or are authorised to act on the owner’s behalf. If you believe that someone has wrongly filed a notice of copyright infringement against you, you may send us a counter-notice in accordance with equivalent requirements. Our contact for copyright issues relating to the Platform (including, but not limited to, the notices and counter-notices) is dmca@Movians.com. Please note that in many jurisdictions it is an offence to issue a false or misleading request or notice to take down allegedly infringing materials. Penalties and/or civil remedies may apply.
- Availability of the Platform
- To the maximum extent permitted by law, the Platform is provided on an “as is” basis without any warranties of any kind. We make no representations, warranties or guarantees of any kind regarding the availability or operation of the Platform or that the Platform will be secure, uninterrupted or free of defects.
- Your access to the Platform may be suspended or restricted occasionally to allow for maintenance, repairs, upgrades, or the introduction of new facilities or services. We will always try to limit the frequency and duration of any planned disruption but we will not be liable to you if for any reason the Platform is unavailable at any time or for any period.
- No Reliance on Information
Although we make reasonable efforts to update the information on the Platform, we make no representations, warranties or guarantees, whether express or implied, that the content on the Platform is accurate, complete or up-to-date.
- Links to Other Platforms or the Platform
- The Platform may offer links to other websites from which third party services can be obtained and which we reasonably believe to be reputable sources of such services. However, you acknowledge that these other websites are independent from us and we make no representations or warranties as to the legitimacy, accuracy or quality of such third party services, and we do not accept any responsibility for their content, safety, practices or privacy policies.
- You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link to the Platform in any website or application that is not owned by you (save where expressly authorised under these Terms). The Platform must not be framed on any other website or application, nor may you create a link to any part of the Platform other than the home page (save where expressly authorised under these Terms).
- The website in which you are linking must comply in all respects with the Content Standards.
- We reserve the right to withdraw linking permission without notice.
- Computer Viruses
- We will use reasonable endeavours to ensure that no part of the Platform will contain or spread any viruses or other malicious code. However, we recommend that you ensure that computers and other devices used to access the Platform run up-to-date anti-virus software as a precaution, and you are advised to virus-check any materials downloaded from the Platform and regularly check for the presence of viruses and other malicious code.
- We will not be liable for any loss or damage caused by a virus or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Platform or to your downloading of any content from it, or from any website linked to it.
- Limitation of Liability – PLEASE READ THIS SECTION CAREFULLY
- Nothing in these Terms excludes or limits our liability for liability that cannot be excluded or limited under applicable law.
- It is a condition of accessing the Platform that you accept and agree we shall not be liable for any harmful effect that accessing the Platform may have on you, and you agree that you access and use the Platform entirely at your own risk.
- Without limitation to the generality of the
foregoing, whether in contract, tort (including, without limitation,
negligence), breach of statutory duty, or otherwise:
- we will not be liable to you for any loss or
damage arising under or in connection with:
- use of, or inability to use, the Platform;
- use of or reliance on any content displayed on or produced via the Platform; or
- the acts or omissions of any other user of the Platform;
- we will have no liability to you for any indirect or consequential losses of any kind or for any loss of revenue, profit, business opportunity, contracts, data or goodwill (whether direct or indirect) arising out of or in connection with these Terms and/or the Platform; and
- our total liability to you in respect of any and all loss and/or damage arising out of or in connection with these Terms and/or the Platform shall in no circumstances exceed the greater of: (1) the Movians Fee received by us which is directly related to your use of the Platform giving rise to your claim; and (2) AUD $500.
- we will not be liable to you for any loss or damage arising under or in connection with:
- Except as expressly set out in these Terms and to the maximum extent permitted by law, we make no representations, warranties or guarantees of any kind in respect of the Platform or any content available through the Platform and all conditions, warranties and representations express or implied are hereby excluded to the full extent permitted by law.
- If you are a Consumer under the Australian Consumer Law, nothing in these Terms is intended to remove your rights under the Australian Consumer Law, including to statutory guarantees that may apply to your use of the Platform. If we are entitled to limit the remedies available to you for breach of such guarantees, we expressly limit our liability as set out in this section to the maximum extent permitted by law. If you are a Consumer (as defined under the Australian Consumer Law) and any of the services supplied by us are not services of a kind ordinarily acquired for personal, domestic or household use or consumption, our liability for a failure to comply with a guarantee under the Australian Consumer Law in relation to those services is limited to, at our option: (i) the supply of the services again; or (ii) the payment of the cost of having the services supplied again. In other jurisdictions, warranties, guarantees and conditions may apply that we cannot legally exclude. If that is true in your jurisdiction, then to the extent permitted by law, we limit our liability for any claims under those warranties, guarantees or conditions to either supplying you the services again or paying the cost of having the services supplied again.
- Termination or Suspension
We may, in our sole discretion, terminate or temporarily suspend your password, account (or any part thereof) or use of the Platform without notice if you are in breach of these Terms or if we believe in our reasonable discretion that your use of the Platform is unsuitable in any way.
- We may at any time assign, mortgage, charge, subcontract, sublicense or otherwise transfer any or all of our rights and obligations under these Terms.
- You may not assign, mortgage, charge, subcontract, sublicense or otherwise transfer any of your rights or obligations under these Terms without our prior written consent.
- If any provision or part of a provision of these Terms 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 these Terms and the remainder of these Terms will remain in full force and effect.
- These Terms, and the documents referred to in them, constitute the entire agreement between you and us in relation to the subject matter of these Terms and supersede and extinguish any prior agreement in respect of the same.
- Subject to clause 26.4 below, you agree that these Terms are 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 these Terms and your use of the Platform.
- Nothing in clause 26.3 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.
Definitions. In these Terms, unless the context clearly indicates otherwise, the following terms have the following meanings:
Additional Terms means any additional requirements that a Client includes in a Brief, clearly expressed under the single heading of “Additional Terms” which are intended to bind a Creator to a series of supplementary and overarching obligations.
Brief means a creative brief setting out a Client’s Production requirements posted on or via the Platform.
Broadcast Media means all broadcast media including television advertising, sponsorship indents, cinema, news programmes and new media (including any other broadcast media not now known or to be created in the future).
Budget means the total budget for a Production and includes the Movians Fee and the Creator Payment.
Client means a party registered through the Platform that wishes to commission a Creator to complete a Production using the Platform.
Client Assets means images, audio/audio-visual content, scripts, screenplay, advertising or campaign materials, publications, music, documents, software, information, literary material, any logo, trademark or indicia, and/or other materials provided by the Client, (including materials ordinarily subject to copyright, patent and is classified by the Client as a trade secret or form of know how and any information that the Client regards as confidential information) ,for inclusion in Responses and/or use in the fulfilment of Briefs.
Communication has the meaning given to it at clause 17.5 of these Terms.
Content Standards means the content standards set out at clauses 17.7 and 17.8 of these Terms.
Contract means the contract formed between a Client, a Creator and us in accordance with the terms and conditions set out in these Terms.
Creator means, but not limited to, filmmakers, directors, editors, animators or producers registered through the Platform who wish to submit Responses and produce Productions.
Creator Payment means the amount specified in a Brief payable to a Creator (being the total Budget minus the Movians Fee).
Digital Media means all forms of digital files delivered on or via the global computer network known as the Internet or any other digital delivery system (including but not limited to mobile device telecommunications networks), whether streamed or downloaded, including without limitation websites, email, banner ads, online content and Client’s own and third party Internet and/or social media websites and digital websites and communication channels, including streaming services and any other digital media not now known or to be created in the future, but excludes Broadcast Media and Print Media as defined in these Terms.
Force Majeure Event means any strike, lockout or other industrial action, act of God (including severe weather events), act of terrorism, war, act of government or political or civil disturbance which is beyond the reasonable control of the affected party.
Movians Content has the meaning given to it at clause 16 of these Terms.
Movians Fee means the amount payable by the Client to us as specified via the Platform and/or our invoice (being the total Budget minus the Creator Payment).
Licence has the meaning given to it in clause 10.1 of these Terms.
Overages means any additional costs and fees incurred by a Creator on top of the original Budget, for work performed with the Client’s prior written approval. Overages that are an increase in the original scope of the production, (eg. additional deliverables, additional edits), will attract Movians fees at the same rate and service level as the original Brief and Budget. Overages which are not an increase in original scope of the production (eg. incidentals, usage extensions) will attract Movians fees at 10% for processing and payment.
Platform means our platform located at Movians.com, including our mobile application and similar.
Print Media means all printed PR, press, magazines, newspapers, textbooks, out of home (OOH), digital out of home (DOOH), below the line (BTL), point of sale (POS), packaging, direct mail, trade shows and kiosks.
Privacy & Cookies Policy means our privacy and cookies policy located at Movians.com/privacy.
Production means, but not limited to, the graphic, audio or audio-visual production to be produced in accordance with a Brief.
Production Contracts has the meaning given to it in clause 6.7.
Raw Files means rushes or raw, unedited video footage or images captured during a Production.
Response means a Creator’s creative response submitted via the Platform to a Brief.
Response Deadline means the deadline for the receipt of Responses specified in the relevant Brief.
Taxes means any value-added tax, sales tax, goods and services tax, withholding tax, or other tax, levy, duty, impost, charge or fee imposed on any transaction entered into through or in connection with the Platform that by applicable law must be added to any amounts charged for any participation, use or purchase related to the foregoing and must be collected by you, us or the relevant Creator.
Union has the meaning given to it in clause 6.11 of these Terms.
Video Store means our library of Productions located at Movians.com/store.
Last Updated: 01 December 2018 Movians, all rights reserved.