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Terms and Conditions

DESIGNSMITH ANIMATION STUDIO GENERAL TERMS AND CONDITIONS

These general terms and conditions (“General Terms”) shall apply to the Services provided to the Customer by DesignSmith Animation Studio in addition to the Specific Terms and Project Brief (“Agreement”). By using the DesignSmith Animation Studio VMS Platform, the Customer agrees to the General Terms, Specific Terms and Project Brief. In the event of any conflict or inconsistency between the General Terms, the Specific Terms and Project Brief, the Specific Terms shall prevail. If there are no Specific Terms, the General Terms shall prevail.

  1. Services

In consideration of the price payable by the Customer under this Agreement, DesignSmith Animation Studio shall provide the Services to the Customer in accordance with the terms and conditions of this Agreement.

  1. Pay Upfront or after filming (not applicable to Customers on Pre-Purchase and Subscription Packages)
    • The Customer shall pay DesignSmith Animation Studio the Price for the Services as follows:
      1. For a Video Project equal to or above $5,000 (in the currency expressed in the Project Brief):
        1. an upfront payment 50% of the Price may be payable prior to commencement of Services by Visual Domain; and
        2. the remaining 50% of the Price shall be payable upon Completion of Services;
  • For a Video Project below $5,000 (in the currency expressed in the Project Brief), an upfront payment of 100% of the price shall be payable prior to the commencement of Services by DesignSmith Animation Studio or after filming dependent on what has been agreed prior.
  1. Payment Terms
    • The Customer shall pay the sum(s) payable under this Agreement within fourteen (14) days of the date of invoice issued by DesignSmith Animation Studio unless otherwise agreed in writing.
    • All sums payable under this Agreement are exclusive of goods and services tax, value-added tax or its equivalent and withholding taxes which shall be borne by the Customer.
  2. Default in Payment
    • The Customer shall not be permitted to download the final Digital Assets deliverable under the Video Project until any and all outstanding sums and fees are paid to Visual Domain.
    • Notwithstanding any other provision in this Agreement, in the event that the Customer defaults in payment of the sums and fees payable under this Agreement, DesignSmith Animation Studio may instruct a debt collection agency and/or commence legal proceedings against the Customer.
    • The Customer shall be liable for any fees and/or costs (including legal fees and/or costs of debt collection services) incurred by DesignSmith Animation Studio to collect payment of any outstanding sums and fees due and payable under this Agreement.
  3. Refunds
    • The Customer is not entitled to any cash refunds under this Agreement.
  4. Cancellation
    • The Customer is not entitled to any cash refunds upon cancellation of this Agreement.
  5. Quality Guarantee
    • DesignSmith Animation Studio shall perform the Services with reasonable care and skill in accordance with:
      • . generally recognized commercial practices and standards in the applicable industry; and
  1. all laws, rules and regulations applicable to the performance of the Services.
  1. Changes
    • The Customer may request changes to the Project Brief. Depending on the change(s) and the stage of the Video Project, some charges or fees may apply.
    • Add-ons and Upgrades
      • . Where a Customer requests any of the add-ons or upgrades below, the Customer will be charged at the applicable normal rates:
        • . Adding an additional resource;
  1. Upgrading Service Level Quality; or
  2. Upgrading Video Project or Job size or scope.
  • Changes to Project Brief
    • . Changing the Project Brief after the Project Brief is agreed between the Parties but a Timeline has not been locked:
      • . No charges will apply
  1. Changes to Project Brief after the Project Brief is agreed between the Parties and a Timeline has been locked in:
    • . Complete or material changes to Project Brief:
      • DesignSmith Animation Studio will provide the Customer with a re-quote based on new Project Brief.
  1. Minor changes to Project Brief:
    • Charges will be charged according to the changes made and rescheduling fees may apply.
  2. Changes to the Project Brief after work has been completed:
    • Customer will be required to purchase additional resources in accordance to the changes made.
  • Changes to Video
    • . Changes to video within scheduled hours:
      • . No charges will apply.
  1. Changes to the video beyond scheduled hours:
    • . Customer will be required to purchase additional resources in accordance with changes made.
  2. Additional video edits from existing footage:
    • . Customer will be required to purchase additional resources.
  • Changes to Shoot
    • . Changing the scheduled time of the shoot more than one (1) week before scheduled time:
      • . No charges will apply.
  1. Changing the scheduled time of the shoot within one (1) week of the scheduled time:
    • . Rescheduling fees may apply (See Clause 9. Rescheduling) of the General Terms.
  • Changes to Location
    • . Changing the location more than one (1) week before the scheduled date:
      • . No charges will apply.
  1. Changing the location within one (1) week of the scheduled date:
    • . Customer will be charged for the full cost of the rescheduled location.
  2. Rescheduling
    • The Customer may request changes to the agreed Timeline. Depending on the change(s) and the stage of the Video Project, some charges or fees may apply.
    • Changes to agreed Timeline
      • . Scheduled Jobs may be rescheduled at any time provided that the rescheduling does not affect the ability to complete the Video Project by the agreed Due Date and changes are made at least one (1) week prior to the scheduled date of the Job.
  1. Customer will be charged 50% of the value of the Job scheduled, if rescheduled within one (1) week of scheduled date, without affecting the agreed Due Date of the Video Project;
  2. Customer will be charged 75% of the value of the Job scheduled, if rescheduled within forty-eight (48) hours of the scheduled date, without affecting the agreed Due Date of the Video Project;
  • Customer will be charged 100% of the value of the Job rescheduled, if rescheduled within twenty-four (24) hours of the scheduled date, without affecting the agreed Due Date of the Video Project;
  1. Customer will be charged 50% of the value of the Job scheduled if a change in resource type, Service Quality Level or a reduction in hours allocated is requested within one (1) week of the Job scheduled.
  • Cancellation of Services
    • The Customer may request changes to the agreed Timeline. Depending on the change(s) and the stage of the Video Project, some charges or fees may apply.
    • Cancellation of a Video Project
      • . If the Customer cancels the Video Project within two (2) weeks of purchasing the Video Project, no charges will apply;
  1. If the Customer cancels the Video Project less than two (2) weeks but prior to one (1) week of Jobs commencing as per the agreed Timeline, Customer will be charged 10% of the value of the Video Project;
  2. If the Customer cancels the Video Project less than one (1) week of the scheduled Jobs commencing, Customer will be charged 50% of the value of the Video Project.
  • Cancellation of a Job
    • . No charges will apply if the Job is cancelled prior to one (1) week of the scheduled date of Job;
  1. Customer will be charged a penalty fee of 50% of the value of the Job, if the Job is cancelled within one (1) week of the scheduled date;
  • Customer’s Representations and Warranties

The Customer represents and warrants that it:

  • shall pay DesignSmith Animation Studio promptly in accordance with the terms and conditions of this Agreement;
  • shall provide full and timely instructions to DesignSmith Animation Studio and will render decisions and instructions as expeditiously as necessary in order for DesignSmith Animation Studio to perform the Services in accordance with the terms and conditions of this Agreement;
  • shall provide, in a timely manner and at no charge, any equipment, material and any information as DesignSmith Animation Studio may reasonably require, and ensure that such information is accurate in all material respects, and such equipment is in good working order and suitable for the purposes for which it is to be used;
  • shall ensure that all material and information provided to DesignSmith Animation Studio is accurate and complete in all material respects;
  • shall obtain and maintain all necessary licenses and consents and comply with all relevant applicable laws in relation to the Services;
  • shall use the Services for lawful purposes only and will not (whether in the content of the Digital Assets or video production comments or otherwise):
    • . be libelous or maliciously false;
  1. be obscene or indecent;
  2. infringe on copyright, moral right, database right, trademark right, design right, right in passing off or any other intellectual property right;
  • infringe on any rights of confidence, rights of privacy or any other rights under applicable data protection legislation;
  1. provide or make negligent advice or negligent statements;
  2. incite commitment of a crime, instruct the commission of a crime or promote criminal activities;
  3. be in contempt of any court or in breach of any court order;
  • be in breach of racial or religious hatred or discrimination legislation;
  • be in breach of any contractual obligation owed to any person;
  1. depict violence in (explicit, graphic or gratuitous) manner;
  2. be pornographic (lewd or suggestive) or sexually explicit;
  3. be untrue, false or misleading or inaccurate; or
  • be offensive, deceptive, fraudulent, threatening, abusive, harassing, anti-social, menacing, hateful, discriminatory or inflammatory;
  • shall not breach Visual Domain’ intellectual property rights in Visual Domain’ software, including by copying, or seeking to make a derivative based on such software;
  • shall provide to Visual Domain, its employees, agents, subcontractors and consultants, in a timely manner and at no charge, access to the premises and other facilities as reasonably required by DesignSmith Animation Studio to perform the Services;
  • shall ensure that its password for access to the DesignSmith Animation Studio VMS Platform is strong and will promptly report any unauthorized use or potential breach of security to Visual Domain; and
  • it is entering into this Agreement and purchasing the Services for the purposes of business and that, to the extent permitted by law, any consumer protection laws, legislation, rules and regulations that may be relevant and/or applicable shall not apply to this Agreement.
  • Customer Acknowledgment
    • The Customer acknowledges and agrees that the content, views and opinions expressed in the Digital Assets produced by DesignSmith Animation Studio for the Customer are solely those of the Customer.
    • The Digital Assets are intended to represent the opinion of the Customer and in no way reflect the views and opinions of Visual Domain, its employees, agents, subcontractors or consultants.
  • Limitation of Liability
    • The maximum aggregate liability of DesignSmith Animation Studio arising out of or in connection with this Agreement, whether in contract, tort (including negligence or breach of statutory duty) or otherwise, shall be limited to the sums and fees paid by the Customer under this Agreement.
    • DesignSmith Animation Studio shall not be liable to the Customer for any loss of profits, business or anticipated savings, data, Customer’s reputation and/or goodwill or any other indirect, consequential, special, punitive or incidental loss or damage arising out of or in connection with this Agreement.
    • For the avoidance of doubt, nothing in this Agreement is intended to limit or exclude either Party’s liability under this Agreement for death or personal injury arising from its own negligence.
    • This clause shall survive the expiry or termination of this Agreement.
  • Insurance
    • The Customer shall maintain or cause to be maintained in effect during the term of this Agreement with a reputable insurer, the following insurance policies:
      • . a comprehensive general liability insurance against injury to persons and damage to property taking into consideration the location and requirements of the Video Project; and
  1. any other insurance that may be applicable to the performance of the Services under this Agreement.
  • A copy of the certificate of insurance issued in respect of each of the insurance policy under this clause shall be furnished to DesignSmith Animation Studio upon request.
  • Viruses and Malware
    • DesignSmith Animation Studio does not guarantee that the DesignSmith Animation Studio VMS Platform is secure or free from bugs, viruses or other malware. The Customer is responsible for configuring its information technology, computer programs and VMS Platform in order to access DesignSmith Animation Studio VMS Platform (if applicable). The Customer shall use its own virus and malware protection software.
    • DesignSmith Animation Studio shall not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, malware or other technologically harmful material that may infect the Customer’s computer equipment, computer programs, data or other proprietary material due to the Customer’s use of the DesignSmith Animation Studio VMS Platform or Digital Assets or on any website linked to the DesignSmith Animation Studio VMS Platform.
    • The Customer shall not misuse the DesignSmith Animation Studio VMS Platform by knowingly introducing viruses, trojans, worms, logic bombs, malware or other material which is malicious or technologically harmful.
    • The Customer shall not attempt to gain unauthorized access to the DesignSmith Animation Studio VMS Platform, the server on which the DesignSmith Animation Studio VMS Platform is stored or any server, computer or database connected to the DesignSmith Animation Studio VMS Platform.
    • The Customer shall not attack the DesignSmith Animation Studio VMS Platform via a denial-of-service attack or a distributed denial-of service attack.
  • Confidentiality
    • The Parties acknowledge that any oral or written information exchanged between the Parties arising out of or in connection with this Agreement is confidential information. A Party shall keep such confidential information confidential and shall not, without the prior written consent of the other Party (which consent shall not be unreasonably withheld), disclose confidential information except in the following circumstances: (a) such confidential information is in the public domain which is not due to a breach of the Party intending to disclose confidential information; (b) such confidential information has to be disclosed as required by applicable laws or rules or regulations of any stock exchange; and (c) such confidential information may be disclosed to a Party’s employees, advisors, agents and contractors who have a need to know and are bound by equivalent confidentiality obligations.
    • Notwithstanding any other provision in this Agreement, the Customer consents to DesignSmith Animation Studio disclosing or publishing the Customer’s Digital Assets on Visual Domain’ or third parties’ websites, sales, promotional and marketing materials or at public events and locations as necessary for the purposes of promoting, advertising and marketing Visual Domain’ products and services. The Customer may withdraw such consent at any time by notifying DesignSmith Animation Studio in writing.
  • Intellectual Property Rights
    • DesignSmith Animation Studio is the owner or the licensee of all intellectual property rights in the DesignSmith Animation Studio VMS Platform. Those works are protected by trademark, copyright and other intellectual property laws worldwide.
    • DesignSmith Animation Studio agrees to grant to the Customer a non-exclusive, irrevocable, royalty free licence to use, copy and modify any elements of the Digital Assets not created for the Customer as part of the Services but which are necessary for the Customer to use the Services.
    • If any third party’s intellectual property rights are used by DesignSmith Animation Studio in the Digital Assets, DesignSmith Animation Studio warrants that it has secured all necessary consents and approvals to use such third party’s intellectual property rights for DesignSmith Animation Studio and the Customer.
    • The Customer represents and warrants that any material it supplies to DesignSmith Animation Studio or places on the DesignSmith Animation Studio VMS Platform will not breach any third party’s intellectual property rights.
    • Subject to Clause 13 (Limitation of Liability), DesignSmith Animation Studio shall indemnify the Customer against any claims or proceedings brought against the Customer to the extent that such claims or proceedings allege that the Customer’s use of the Digital Assets constitutes an infringement of a third party’s intellectual property rights.
    • The Customer shall indemnify DesignSmith Animation Studio against any claims or proceedings brought against DesignSmith Animation Studio to the extent that such claims or proceedings allege that Visual Domain’s use of any material provided by the Customer to DesignSmith Animation Studio in accordance with this Agreement constitutes an infringement of a third party’s intellectual property rights. This indemnity shall not extend to indirect or consequential losses or to any loss of profit, opportunity or resource.
  • Relationship between the parties

The Parties acknowledge and agree that the Services performed by Visual Domain, its employees, agents or subcontractors shall only be that of independent contractors. Nothing in this Agreement shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between the Parties.

  • Modifications or Variations

DesignSmith Animation Studio shall have the right to make any changes to the Services or to withdraw or suspend any or all the Services which are necessary to comply with any applicable laws or safety requirements, in which event, DesignSmith Animation Studio shall endeavour to provide reasonable notice of such changes to the Customer.

  • Notices
    • Any notice which may be given by a party under this Agreement shall be deemed to have been duly delivered if delivered by hand, post, Video Project Comments or email to the address of the other party as specified in this Agreement or any other address as may be notified in writing to the other Party.
    • Subject to any overriding law to the contrary, any such communication shall be deemed to have been received by the other Party:
      • . in the case of delivery by Video Project Comments and email, two (2) business days from date sent and no notice of incomplete transmission was received;
  1. in the case of delivery by post, five (5) business days from the date of posting; and
  2. in the case of delivery by hand, at the time of such delivery.
  • Privacy and Data Protection

The Customer consents and shall procure the consent of its employees, agents and sub-consultants to the collection, use and disclosure of personal data by DesignSmith Animation Studio for the purposes set out in the abovementioned policy.

  • Governing Law

This Agreement shall be governed by and construed in accordance with the laws of incorporation of the DesignSmith Animation Studio company that is the contracting party to this Agreement.

  • Miscellaneous
    • The failure of either Party to enforce any of its rights under this Agreement at any time shall not be construed as a waiver of such rights.
    • If any part, term or provision of this Agreement is held to be illegal or unenforceable, neither the validity or enforceability of the remainder of this Agreement shall be affected.
    • DesignSmith Animation Studio may assign or transfer all or any part of its rights under this Agreement at its sole discretion. The Customer shall not assign or transfer all or any part of its rights under this Agreement without the prior written consent of DesignSmith Animation Studio (which consent shall not be unreasonably withheld).
    • This Agreement (including the Specific Terms and the Project Brief) constitutes the entire understanding between the Parties relating to the subject matter hereof and supersedes all prior representations, agreements, negotiations or understandings, whether written or oral with respect hereto.
    • Neither Party shall be liable for a failure or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, natural disasters, war, civil commotion or industrial disputes.
    • Save for the DesignSmith Animation Studio Group Company, no person who is not a party to this Agreement shall have or acquire any right to enforce any term of this Agreement.

Definitions

The following words and phrases have specific meanings wherever used in this Agreement:

DesignSmith Animation Studio Account: the Customer’s online account on the DesignSmith Animation Studio VMS Platform;

DesignSmith Animation Studio VMS Platform: DesignSmith Animation Studio cloud video production VMS Platform located at https://vms.visualdomain.com.au;

Completion: the date following seven (10) days from the date that DesignSmith Animation Studio completed the Video Project and delivers the final Digital Assets to the Customer and there has been no material complaints by the Customer;

Customer: the brand or customer that is the contracting party to this Agreement;

Digital Assets: All digital assets including but not limited to video or photographic content captured at Visual Domain’ film shoots, all graphics, animation, illustrations, concept art including source files, storyboarding, draft and final outputs including video, static graphics or animations, creative concepts and scripts created for a Customer under this Agreement;

Due Date: the projected date for completion of a Video Project;

Job(s): one or more tasks that needs to be completed for a Video Project;

Key Date(s): the key date(s) as agreed between the Parties to complete a Video Project by the Due Date;

Price: price or fees agreed between the Parties in the Project Brief;

Project Brief: The Project Brief contains the scope of work including details of a Video Project and Due Date as agreed between the Parties prior to the commencement of work by Visual Domain;

Services: Services comprise the services and products to be provided by DesignSmith Animation Studio to the Customer in connection with the Video Project;

Timeline: the Timeline refers to the agreed schedule of all Key Dates for all Job(s) relating to a Video Project and includes the Due Date;

Video Credit(s): Video Credits are credits which may be utilized for purchase of Services;

Video Project: A Video Project is a project contracted to DesignSmith Animation Studio to deliver Digital Assets to the Customer.