1. Customer Contract Terms
1. My Promo Video shall provide the Services to the Customer in accordance with the Customer Contract.
1.2. Delivery of the Services
1. Start Date: The term of the Customer Contract shall commence when it is signed off and accepted by the Customer and My Promo Video in the Purchase Page.
- Completion: Subject to clause 12 of the General Terms, My Promo Video shall complete the Services by the Video Project completion date as defined on the Purchase Page of the Video Project, or as otherwise agreed in writing between the parties.
- Key Dates/ Milestones: Subject to clause 12 of the General Terms, My Promo Video will use its best commercial endeavours to meet the Key Dates/ Milestones as defined in the Video Project.
1. The Customer agrees to pay My Promo Video for the Services and payment terms specified in the Purchase Page of the Video Project, or as varied under clause 12 of the General Terms, in accordance with the payment terms specified in clause 12 of the General Terms.
- Unless the Customer Contract states that the Price is a fixed quote, the Price specified shall be an estimate only, and the actual Price charged shall be the actual time and costs incurred by My Promo Video and its Freelancers and Suppliers contracted to the Video Project in question.
1.4. Term and Termination
1. The term of the Customer Contract commences on the start date specified in clause 1.2.1 of these Terms and expires on the actual completion of the Services provided under the Customer Contract.
- Either Party may terminate the Customer Contract only if the requirements are met under clause 5 of the General Terms.
- If the Customer terminates a Customer Contract without meeting the requirements of clause 5 of the General Terms, :
- the Customer must pay:
- 50% of the total Price of the Customer Contract; and
- any third party or out of pocket costs incurred by My Promo Video or its Freelancers and Suppliers up to the point of cancellation; and
- the Customer will not be refunded any payments it had paid in deposits or instalments/payment schedules.
1. Terms and Conditions
These Terms, including the Customer Contract Terms, shall be effective from the start date specified in clause 1.2.1 and shall continue, unless terminated sooner in accordance with clause 7 of the General Terms, until the Completion Date of the Customer or if another agreement is signed between both parties covering the same services provided in the same Customer or Membership Contract.
2. Video Credits
- Video Credits have a 1:1 exchange rate with the Customers local currency
- Video Credits may be used to purchase any of the Services My Promo Video offers to its customers
- Video Credits are Valid for 12 months. After 12 Months Video Credits are voided and subtracted from the Customers Video Credit Balance.
- The Customer will be notified two weeks before the expiry date of any Video Credits.
- All unused Video Credits remain on the customers Video Credit balance until the Video Credits expire
- All Video Credits are non-refundable.
3. Payment Methods & Terms
1. An invoice of the amount payable will be sent to the Customer’s nominated accounts contact as and when the payment falls due under this clause.
- The Customer agrees to pay My Promo Video in accordance with the payment terms specified in the Customer Contract, which shall be one of the following methods:
- In two equal payments as follows:
- 50% deposit payable and due from the signing date of the Customer Contract;
- 50% remaining payable and due after the completion date of the Video Project; or
- Via instalments with amounts and dates agreed in writing between the parties; or
- In full on signing the Customer Contract.
If the parties have not specified payments terms in writing then 2 a. and 2 b. apply.
- The Customer shall pay the invoice in cleared funds without set-off or deduction within 7 days of the date of the invoice unless agreed otherwise by the Parties in writing.
- The method of payment for any Customer Contract by the Customer to My Promo Video shall be via:
- Direct credit transfer to My Promo Video as per the payment details on the invoice;
- Credit Card payment to My Promo Video as per the payment details on the invoice;
- By Video Credit Payment in accordance with clause 4.2 below;
- As otherwise agreed to by the Parties; or
- A combination of any of the above.
- Video Credit Payment
1. The Customer may use Video Credit to purchase in full or partially purchase any of My Promo Video Services
- The Customer will be asked at the signing of Customer Contract if they wish to use Video Credits towards their purchase.
- If a Customer Contract is partially paid for using Video Credits the remaining amount is required to be paid as per the Payment Terms of the Customer Contract Terms and the Payment Method & Terms in clause 4.1 above of the General Terms.
- Non-payment of an invoice
1. My Promo Video reserves the right to charge interest on any amount outstanding after the due date for payment, at the rate of 20% per annum, accruing on a daily basis from the due date for payment until the date when payment is actually made.
- Non payment of an invoice 90 days after the due date will result in the debt (including accrued default interest) being passed to debt collection services.
- Any fees or costs incurred by My Promo Video to obtain payment of any sums due (including legal costs on an indemnity basis and using debt collections services) will be charged to the Customer on top of the total invoice and default interest amount.
- Deposits & Out of Pocket Expenses
1. All deposits are non-refundable.
- The Customer shall pay for My Promo Video out-of-pocket expenses as agreed to in the Video Project brief or as otherwise agreed by the parties.
1. If a retainer is agreed in the Customer Contract, the Customer shall pay that retainer at the Commencement of the Video Project. My Promo Video may apply the retainer to Video Projects as and when required to meet its ongoing costs and if the Customer requests new Video Projects, My Promo Video may require that the retainer be topped up.
4. Term and Termination
- Either Party may terminate the Customer Contract upon notice in writing if:
- The other is in breach of any material obligation contained in these Terms, which is not remedied (if the same is capable of being remedied) within 30 days of written notice from the other Party so to do; or
- A voluntary arrangement is approved, a bankruptcy or an administration order is made or a receiver or administrative receiver is appointed over any of the other Party’s assets or an undertaking or a resolution or petition to wind up the other Party is passed or presented (other than for the purposes of amalgamation or reconstruction) or any analogous procedure in the country of incorporation of either party or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order in respect of the other Party.
- My Promo Video may terminate the Customer Contract if:
- The Customer fails to pay any amount due under these Terms by the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment (notwithstanding any other remedies My Promo Video may have pursuant to these Terms or law).
- The Customer fails to provide My Promo Video with adequate instructions, information and/or material to complete a Video Project or Job and remains in default not less than 14 days after being notified in writing to provide such instruction, information or material.
- For European Customers Only:
If the Customer is a consumer and the Distance Selling Directive (97/7/EC) (the “Directive”) applies to these Terms and Conditions, the Customer may terminate these Terms and Conditions within the relevant timescales prescribed by the regulations or laws in the relevant Member State which implement the requirements of the Directive in respect of a right for the Customer to withdraw from a contract. In the event of termination in accordance with this Clause 2.4(c), the liability of the Customer to My Promo Video shall be as prescribed in the Directive or in any regulations or laws implementing its requirements in the relevant Member States.
- Consequences of termination:
- If the Customer Contract is terminated it shall not affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
- All sums payable to the Supplier under these terms shall become due immediately on its termination, despite any other provision.
5. Intellectual Property Rights
- Upon payment in full of all invoices rendered and to be rendered for a Customer Contract, My Promo Video agrees to assign the full legal title to the Customer in all copyright and other intellectual property rights subsisting in the Digital Assets whether finished or unfinished created for the Customer during the Services.
- My Promo Video 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.
- My Promo Video warrants that it has the right to assign the rights identified in clause 6.2.
- If any third party intellectual property rights are used by My Promo Video in the Digital Assets My Promo Video warrants that it has secured all necessary consents and approvals to use such third party intellectual property rights for My Promo Video and the Customer.
- The Customer warrants that any material it supplies to My Promo Video will not breach any third party’s intellectual property rights.
- If the Customer Contract is terminated it shall not affect any accrued rights of either Party.
- My Promo Video shall indemnify the Customer against any claim by any other person that the provision of the Services to the Customer in accordance with these Terms (other than any material provided by the Customer) infringes any intellectual property rights of that other person.
- The Customer shall indemnify My Promo Video against any claim by any other person (in relation to any material provided by the Customer to My Promo Video in accordance with these Terms) that the material infringe any intellectual property rights of that other person.
- My Promo Video represents and warrants that:
- It will perform the Services with reasonable care and skill, in accordance with:
- generally recognised commercial practices and standards in the applicable industry; and
- all laws and regulations applicable to the Services.
- The Services and the Digital Assets provided by My Promo Video to the Customer under these Terms will not infringe or violate any intellectual property rights or other right of any third party.
- The Customer represents and warrants that:
- It will pay the Supplier promptly in accordance with these Terms and the Customer Contract.
- It will provide full and timely instructions to My Promo Video, and will render decisions and instructions expeditiously as necessary for the orderly progress of the Video Project;
- It will co-operate with and assist My Promo Video in all matters relating to the Services and Video Project.
- It will provide, in a timely manner and at no charge, any equipment, material and any information as My Promo Video may reasonably require, and will 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.
- It will ensure that material and information provided to My Promo Video is accurate and complete in all material respects.
- It will obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services before the date on which the Services are to start.
- It will use the services for lawful purposes only, and will not generate obscene, offensive or inappropriate content, or content which violates a person’s privacy or infringes a person’s intellectual property, whether in the content of the Digital Assets, in Video Production Comments, or otherwise.
- It will not breach My Promo Video’ intellectual property rights in My Promo Video’ software, including by copying, or seeking to make derivative works based on such software.
- It will provide to My Promo Video, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the premises and other facilities as reasonably required by My Promo Video to conduct the Services.
- It will ensure that its password for access to the My Promo Video Platform is strong, and will report any unauthorised use or potential breach of security to My Promo Video.
8. Limitation of liability
- Subject to the Customer’s obligation to pay the Price to My Promo Video, either party’s liability in contract, tort or otherwise (including negligence) arising directly out of or in connection with these Terms and Conditions or the performance or observance of its obligations under these Terms and Conditions and every applicable part of it shall be limited in aggregate to the Price.
- To the extent it is lawful to exclude the following heads of loss and subject to the Customer’s obligation to pay the Price, in no event shall either party be liable for any loss of profits, goodwill, loss of business, loss of data or any other indirect or consequential loss or damage whatsoever.
- Nothing in these Terms and Conditions will serve to limit or exclude either Party’s liability for death or personal injury arising from its own negligence.
The Customer will have no liability for any additional costs incurred by My Promo Video resulting from any change in any Freelancer or Supplier, change in personnel within My Promo Video, or any delay in production arising from by My Promo Video or Freelancers or Suppliers.
9. Relationship of the Parties
- The Parties acknowledge and agree that the Services performed by My Promo Video, its employees, agents or subcontractors shall be as an independent contractor and that nothing in these Terms and Conditions shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between the parties.
10. Freelancers and Suppliers
- Freelancers and Suppliers used by My Promo Video are independent contractors and are subject to the My Promo Video Freelancer and Supplier Terms and Conditions.
- My Promo Video is responsible for the performance and quality of the My Promo Video Freelancers and Suppliers who act within the My Promo Video Freelancer and Supplier Terms and Conditions; Freelancers acting outside of the My Promo Video Supplier Terms and Conditions are subject to discipline set out in the My Promo Video Freelancer and Supplier Terms and Conditions but My Promo Video is not responsible for said actions.
- Freelancers and Suppliers under contract with My Promo Video in respect of the Services cannot be approached by the Customer outside of My Promo Video without prior approval from My Promo Video.
- Neither Party will use, copy, adapt, disclose to third parties, alter or part with possession of any information of the other which is disclosed or otherwise comes into its possession via, including but not limited to, these Terms, the Customer Contract, Video Project or My Promo Video Platform and which is of a confidential nature.
- This obligation will not apply to information which the recipient can prove was in its possession at the date it was received or obtained or which the recipient obtains from some other person with good legal title to it or which is in or comes into the public domain otherwise than through the default or negligence of the recipient or which is independently developed by or for the recipient.
- My Promo Video shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, provided that My Promo Video gives the Customer reasonable notice of such changes and that such changes do not materially affect the nature/scope of the Services or the Service Charges.
- The Customer may at any time during the term of a Customer Contract request a change to the Video Project, or other job specifications, or the addition of new Services (“Change Request”) by notifying My Promo Video in writing of its requirements.
- My Promo Video shall give due consideration to any Change Request from the Customer and shall, within 7 days of receiving a Change Request from the Customer:
- confirm its acceptance of the Change Request, without any further variation to the terms of the Customer Contract, in which case the parties shall execute a variation to the Customer Contract as soon as reasonably practicable and My Promo Video shall implement the Change Request accordingly; or
- provide a written proposal for accepting the Change Request, subject to any variation that My Promo Video reasonably considers necessary to the Services, the Price, the Video Project, deadline or any other specification (“Change Proposal”); or
- if My Promo Video believes it is not reasonably practicable to accept the Change Request, with or without any such variation, provide the Customer with a written statement of its reasons for doing so.
- The Customer shall within 7 days after receipt of the Change Proposal either give My Promo Video a written notice accepting the Change Proposal (subject to or without further negotiation) or rejecting the Change Proposal. If the Customer accepts the Change Proposal, the parties shall as soon as reasonably practicable execute a variation to the Customer Contract and My Promo Video shall implement the agreed variation.
- My Promo Video may charge for the time it spent assessing a Change Request and/or Change Proposal, in addition to the Price, whether or not it is accepted, in accordance with its standard hourly rates from time to time.
- Any notice which may be given by a Party under these Terms and Conditions 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 these Terms and Conditions or the Customer Contract or Membership Contract or any other address 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 Video Project Comments and Email, two working days after it has been sent, without any notice of incomplete transmission;
- In the case of post, 5 working days from the date of posting; and
- In the case of Hand delivery, at the time of such delivery.
- The failure of either party to enforce its rights under these Terms at any time for any period shall not be construed as a waiver of such rights.
- If any part, term or provision of these Terms is held to be illegal or unenforceable, neither the validity or enforceability of the remainder of these Terms shall be affected.
- The Customer shall not assign or transfer all or any part of its rights under these Terms without the consent of My Promo Video.
- These Terms, the Customer Contract and the Video Project constitute the entire understanding between the Parties relating to the subject matter hereof unless any representation or warranty made about these Terms was made fraudulently and, save as may be expressly referred to or referenced herein, supersedes all prior representations, writings, negotiations or understandings with respect hereto.
- Neither Party shall be liable for failure to perform or delay in performing any obligation under these Terms if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, civil commotion or industrial dispute. If such delay or failure continues for at least 7 days, the Party not affected by such delay or failure shall be entitled to terminate these Terms by notice in writing to the other.
- This Clause 15.7 and clauses 5.4, 6, 8, 11 and 13 of these Terms shall survive any termination or expiration of the Customer Contract.
- These Terms shall be construed, enforced and governed in accordance with the laws of New Zealand, and the parties submit to the exclusive of the New Zealand courts.