Snarzberry is a registered business owned by Carnival Pictures PTY LTD

ABN 80083332978

SNARZBERRY OPERATES THESE TERMS & CONDITIONS FOR CONTENT PRODUCTION

     1. Definitions and Nature of Agreement

These terms and conditions are included in your agreement with Snarzberry, which delivered that agreement. Snarzberry will produce and deliver to you a cinematograph film, together with any other agreed deliverables. That film will constitute part or all of a commercial television or cinema advertisement for the goods or services of your client, or part or all of any other agreed audiovisual program. In these terms and conditions, a reference to the ‘Production’ is a reference to the particular film in question. Unless expressly agreed to the contrary in writing, Snarzberry will be deemed to have delivered the Production to you if a completed and reasonably acceptable videotape master is made available to you at a post-production facility nominated by Snarzberry . The expression ‘Special Production Elements’ includes, without limitation, substantial animation, computer graphics or post-production.

These terms and conditions are intended to apply to all productions undertaken for you by Snarzberry. You are deemed to have accepted these terms and conditions if you deal with Snarzberry after receiving notice of these terms and conditions. These terms and conditions may only be amended by a document executed by a duly authorised representative of Snarzberry. These terms and conditions prevail to the extent of any inconsistency with any other terms of your agreement with Snarzberry and with the terms of any document issued by you at any time.

2. Fixed Cost Basis

Unless expressly agreed to the contrary in writing, all productions are made on a fixed cost basis and not on a cost plus basis. Cost breakdowns and budgets are estimates and not quotations. They are supplied merely to illustrate assumptions by which the agreed or estimated total is calculated. Snarzberry does not warrant or represent that particular costs will be incurred or that costs will be incurred at particular levels. A failure by Snarzberry to incur a particular cost does not prevent Snarzberry from allowing for that cost when charging the agreed or estimated total. Snarzberry is entitled to adjust and reallocate the costs which make up the agreed or estimated total. Wherever applicable, estimates provided by Snarzberry will include, as separate items, estimates of GST and any other charges or levies.

3. Extra Costs

You acknowledge and agree that Snarzberry is entitled to charge extra production costs if you change your specifications or requirements for the Production. The changes which may attract extra production costs include, but are not limited to, changes to approved production schedules, treatments, scripts, artwork or storyboards. Certain previously available goods and services may cease to be available if production schedules change. Whenever reasonably practicable, Snarzberry will provide you with an estimate of extra production costs. Any such estimate does not have the force of a quotation.

4. Payment

You must issue a purchase order to Snarzberry before Snarzberry is required to commence work on the production. Your purchase order should state the entire Production cost as estimated by or agreed with Snarzberry. If you issue a purchase order for less than the entire Production cost you will nevertheless be deemed to have accepted the entire Production cost as estimated by Snarzberry. Whenever a supply is made by Snarzberry for GST purposes the applicable fees payable to Snarzberry will be increased by the amount of the GST payable on that supply, as long as Snarzberry renders a tax invoice in compliance with applicable regulations.

Depending on your Australian residency status, and the type of production, you must pay the following proportions of estimated or agreed production costs (including any extra costs as applicable) before the following corresponding events occur:

(a)       If you are not an Australian resident: 25% before pre-production; 50% before shooting commences; and 25% before delivery.

(b)       If you are an Australian resident and the Production involves Special Production Elements: 50% not later than five clear working days prior to the first            scheduled shooting day; 25% not later than the date on which you provide approval of the pencil/motion test or other key approval indicator; and 25%     upon   delivery.

(c)        If you are an Australian resident and the Production does not involve Special Production Elements: 50% not later than five clear working days prior to  the first            scheduled shooting day; and 50% not later than 30 days from date of final invoice. You must pay interest on all amounts outstanding for more than 30 days at      the rate of 2% per annum above the annual overdraft interest rate charged by Snarzberry’ bank compounded on a daily basis.

5. Cancellation and Postponement

If you cancel production of the Production, in circumstances where Snarzberry has committed no material breach of the agreement, you must in all cases:

(a)       reimburse Snarzberry for direct costs incurred prior to cancellation;

(b)       pay Snarzberry the total agreed or estimated fees of all directors and producers; and

(c)        pay Snarzberry all, or a proportion of, the production markup and, where applicable, creative fees specified by Snarzberry in advance. The proportion of production markup and creative fees payable depends on the notice period and the type of production but is always additional to the direct costs. Where:

            i) you give 15 or more days notice of cancellation of a production, which does not involve Special Production Elements, you must pay 25% of the production markup.

            ii) you give less than 15 but more than 10 days notice of cancellation of such a production you must pay 50% of the production markup.

            iii) you give 10 or less days notice of  cancellation of such a production you must pay 100% of the markup.

            iv) the production involves Special Production Elements, and you cancel during the first quarter of the scheduled production period, you must pay 50%          of the creative fees and 50% of the production markup.

            v) the production involves Special Production Elements, and you cancel during or after the second quarter of that period, you must pay 100% of the creative fees and 100% of the production markup.

6. Contingency and Weather Days

You must pay Snarzberry further fees if a production is frustrated or delayed by bad weather, a contingency beyond the control of Snarzberry, or some other force majeure event. Such contingencies or events include, but are not limited to, earthquakes, wars, floods, injury, illness or non-appearance of key talent and delay or failure of delivery of goods or services to be supplied by you, whether on-camera product, vehicles or otherwise. In such circumstances, you must, in addition to all other agreed or stipulated payments, pay Snarzberry:

(a)       in the case of weather, the daily weather cost specified by Snarzberry in advance or supplied to you on request; or

(b)       in all other cases, the direct costs incurred by Snarzberry in respect of the delay in question.

In either case, the costs may include mark-ups and other fees under clause 5. A delay or postponement for more than 30 days, which is not caused by a force majeure event, is deemed to be a cancellation.

7. Title and Usage

Ownership of copyright in the Production, and other intellectual property rights and chattels created in the course of production, remains with Snarzberry until full payment has been received. The operation of S.98(3) of the Copyright Act 1986 is excluded from the agreement between you and Snarzberry. Upon full payment, ownership is transferred to you, subject to all bona fide third party rights attaching to the Production and to the various materials and copyright subject matter comprising or depicted in the Production (the ‘Components’). The Components may include, but are not limited to, computer software, models, armature, characters, artistic works and sound recordings. You are not entitled to deal with the Components or the relevant chattels separately from the Production as a whole. You must not edit, manipulate, re-sequence or otherwise alter the Production after delivery unless required by applicable laws governing the broadcast or exhibition of the Production.

Despite any ownership of copyright in the Production, you are only entitled to use the Production for the purpose, in the media and in the territory agreed before production commenced. Without limiting Snarzberrys’ rights, if your use of the Production is contrary to that agreed you must pay such further fees as Snarzberry may reasonably charge in the circumstances. Chattels not collected by you within 60 days of delivery of the Production will be deemed abandoned and will become, or remain, the property of Snarzberry. You licence Snarzberry to do all of the acts comprising the copyright in the Production, throughout the world, for the purposes of:

(a)       entering the Production in competitions and industry awards;

(b)       promoting Snarzberry, its contractors and employees to potential clients, including by making the Production available on the website of Snarzberry or the director concerned.

8. Miscellaneous

You must arrange for the provision of the services of all actors and other talent who are to appear in the commercial. You must obtain all necessary licences and clearances in respect of the production and broadcast of the Production, including without limitation, all music synchronisation licences, master use licences, and moral rights consents. Your agreement with Snarzberry is made in the Australian State in which Snarzberry has its principal place of business. You submit to the non-exclusive jurisdiction of the courts of that State.