“Agreement” means this Services Agreement including all schedules thereto and/or any Anomaly proposal and/or quotation as agreed and/or accepted by the Client;
“Agreement Date” means the date of commencement of the Agreement;
“Anomaly” means Anomaly Group Pty Ltd ACN 613 326 195;
“Business Day” means any day except a Saturday, Sunday or a public holiday within South Australia;
“Client” means the Client named on the front page of the Services Agreement and/or the entity that has contracted with Anomaly in respect of the supply of Services.
“GST” means Goods and Services Tax imposed on a supply of goods or services in Australia, pursuant to the GST Law;
“GST Law” means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth);
“Services” means the services supplied (or to be supplied) by Anomaly to the Client including those set out in:
Schedule 1;
Schedule 2;
any written proposal supplied by Anomaly to the Client;
any written quotation supplied by Anomaly to the Client; and
any Revised Detail approved by Client.
ACCEPTANCE
Any instructions received by Anomaly from the Client for the supply of Services shall constitute a binding contract and acceptance of the terms and conditions contained herein.
PRECEDENCE
The Client acknowledges that these terms and conditions take precedence over any terms and conditions contained in any document provided by the Client.
PRIVACY ACT 1988 (Cth) (AS AMENDED)
Anomaly collects personal information about the Client (if a sole trader, individual trustee, or partnership of individuals) for the purposes set out in its Privacy Policy and its Credit Reporting Policy. Both of these policies may be located at https://anomaly.com.au/. A hardcopy of these policies can also be provided to the Client free of charge, upon request.
The Privacy Policy sets out: the personal information Anomaly collects; how Anomaly collects and uses this information; how the Client may access or correct it; and how the Client may make a complaint in respect of Anomaly’s management of the information;
The Credit Reporting Policy sets out: the types of credit related personal information Anomaly collects; how it is collected, why it is collected; how Anomaly may use and disclose the credit related personal information, including the credit reporting bodies to which Anomaly is likely to disclose the Client’s credit related personal information to; and how a complaint may be made in respect of Anomaly’s management of the credit related personal information.
By the Client providing instructions to Anomaly for the supply of Services, the Client is consenting to Anomaly collecting, handling, using, disclosing and otherwise dealing with the Client’s personal information (including credit related personal information) in accordance with the terms of Anomaly’s Privacy Policy, its Credit Reporting Policy and in accordance with Australia’s privacy laws.
PERFORMANCE OF SERVICES
The Services may be performed at a location as reasonably agreed between the parties.
Anomaly shall use reasonable endeavours to provide the Services by the scheduled delivery date as set out in Schedule 1 of the Agreement;
Any date quotes for scheduled delivery is an estimate only.
Anomaly shall not be liable for:
late delivery or non-delivery of Services; and
any loss, damage or delay suffered by the Customer arising from the late or non-delivery of Services.
The Services may be performed by Anomaly personally, or by any officers, employees, agents or subcontractors as chosen by Anomaly, in Anomaly’s sole discretion (Specified Personnel).
Anomaly is solely responsible for any payments to the Specified Personnel in relation to the provision of the Services under this Agreement.
In the event any Specified Personnel become unavailable before completion of the Services, Anomaly will use reasonable endeavours to make available suitable replacements (Replacement Personnel).
CHANGE IN SCOPE
Where the Client or Anomaly seeks to vary the services to be provided, Anomaly shall either:
provide a revised scope of services (schedule 2), fee and scheduled delivery date and any other relevant detail (schedule 1) for the Client’s approval (which shall not be unreasonably withheld); and/or
set out the relevant variations in writing to the Client. (hereafter referred to as the “Revised Detail”)
In the event the Client approves the Revised Detail (orally or in writing), this Agreement shall be read as if the Revised Detail was included in the Agreement at the date on which the Agreement was signed, and the rights and obligations pursuant to this Agreement shall apply to the Revised Detail.
PAYMENT
All Anomaly invoices must be paid in full in accordance with the terms as agreed by the parties which are either:
fourteen (14) days from the date of invoice;
50% paid on the execution of this Agreement and 50% upon the Services being supplied; or
as agreed in writing by the parties
Payments of all invoices and other amounts owing to Anomaly by the Client must be paid without set-off (whether arising at law or in equity) or counterclaim (whether arising at law or in equity) and free and clear of any withholding or deduction whatsoever.
ACCELERATION
Payment for any amount outstanding shall be deemed immediately due and payable in any of the following circumstances:
there is non-payment of any sum by the due date;
Anomaly forms the view that the Client will not pay any sum by its due date;
the Client is bankrupted or enters administration, liquidation, or receivership;
a Court judgment is entered against the Client and remains unsatisfied for seven (7) days;
any material adverse change in the financial position of the Client.
DEFAULT
Interest accrues on any amount owing after the due date at the rate of 10% per annum, calculated daily from the first day overdue until payment.
The Client shall pay (on a full indemnity basis) any and all expenses, disbursements, collection costs and legal costs which Anomaly has incurred or is liable to pay, in connection with the enforcement of any rights and/or preservation of any rights contained in this Agreement.
For the purposes of clause 9.2, the Client acknowledges that collection costs may be calculated on a commission basis at a percentage rate of up to 20% of the amount due and expressly agrees to pay for those expenses as liquidated damages on demand, irrespective of whether (a) Anomaly is not liable to pay the collection agent the commission, until the Client has made payment of the Client’s overdue debt (or any portion thereof) and/or (b) the amount of work actually performed by the collection agent before the Client makes a payment for an overdue debt.
Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until it results in Anomaly receiving cleared funds for the entire amount of the negotiable instrument.
Without prejudice to any other remedies Anomaly may have, if at any time the Client is in breach of any obligation (including those relating to payment), Anomaly may suspend or terminate the supply of Services and any of its other obligations to the Client. Anomaly will not be liable to the Client for any loss or damages the Client suffers because Anomaly exercised its rights under this clause.
A certificate signed by an authorised person of Anomaly, stating the amount due and owing by the Client at the date specified on the certificate shall be evidence that the amount stated is the sum due and owing to Anomaly at the time.
QUOTATION
Where a quotation is given by Anomaly for the supply of Services:
unless otherwise agreed by Anomaly, the quotation shall be valid for 30 days from date of issue;
Anomaly will not be bound by any order given unless accepted in writing;
Anomaly reserves the right to alter the quotation because of circumstances beyond its control including and, in no way limited to, increases in the price charged by its suppliers or contractors.
Where services are required in addition to the quotation, the Client agrees to pay for the additional cost of such services.
TERMS OF CREDIT
The Client acknowledges that it has no right to credit or a credit facility from Anomaly and the granting of any credit or credit facility by Anomaly in respect to the supply of the Services will be at Anomaly’s absolute discretion.
CLIENT OBLIGATIONS
The Client:
must, at the Client’s own cost, take all reasonable steps to cooperate in good faith with Anomaly during the period while Anomaly is providing the Services to the Client, including, but not limited to, by providing to Anomaly any information or documentation that Anomaly reasonably requires in order to provide the Services, and making available to Anomaly any facilities, resources or personnel (including but not limited to maintaining an appropriate advertisement spend where applicable for advertising services) that Anomaly reasonably requires in order to provide the Services;
must ensure that the Client’s officers, employees, agents and other contractors take all reasonable steps to cooperate in good faith with Anomaly during the period while Anomaly is providing the Services to the Client, including, but not limited to, by making available any information, documentation, facilities, resources or personnel as reasonably required by Anomaly, in accordance with this clause;
will, in the event that the Client does not provide the information, documentation, facilities, resources or personnel or does not take any other steps to cooperate with Anomaly as Anomaly reasonably requires, within the time period that Anomaly reasonably requires, be liable for any additional costs and expenses which are reasonably incurred by Anomaly;
acknowledges it is committed to providing a workplace to its employees, agents, subcontractors, affiliates or other visitors which is healthy, safe and clean;
acknowledges it is committed to creating, motivating and maintaining a positive workplace culture, particularly in relation to workplace health, safety, welfare and wellbeing;
acknowledges its commitment to workplace health and safety may be reflected and implemented through various standards, procedures, guidelines and/or policies.
ANOMALY OBLIGATIONS
Anomaly must perform the Services using reasonable care and skill for a service provider in its field.
Anomaly shall use reasonable endeavours to ensure that any end products or materials given by Anomaly to the Client under the terms and conditions of this Agreement will not infringe on or violate the intellectual property rights or any other right of any third party.
Anomaly must, at its own cost, comply with all relevant WHS Policies or any other standards and regulations in relation to workplace health, safety, welfare and wellbeing as required by law.
Anomaly must obtain all relevant insurance policies which in its reasonable opinion are necessary for the conduct of the Services, including but not limited to any insurance policies required by law.
Anomaly must, at its own cost, comply with all laws which relate to or affect the Services, the Agreement or Anomaly, including but not limited to regulations, legislation, delegated legislation, ordinances, rules, codes and any other requirements of any Federal, State or Local authorities, bodies or government departments (the Laws).
CLIENT SUPPLIED FEEDBACK AND MATERIALS
The Client may be required to provide feedback, information, materials and services for the provision of the Services, such as, but not in any way limited to, feedback at the request of Anomaly, talent, props, locations, video content, logos, images, written content or other items as necessary.
If any of these are not provided, or are not provided within the required timeframes as outlined in the agreed production schedule or as agreed orally or in writing by Anomaly:
Anomaly may be required to source these materials or services from third party sources, for which it reserves the right to pass on the cost of providing the materials and services, including additional management and coordination time as incurred;
Anomaly may in its sole discretion charge the Client a reasonable fee (to be determined by Anomaly) for any work done to date;
Anomaly may in its sole discretion and on demand, charge the Client liquidated damages; and
Anomaly may again, in its sole discretion, unilaterality alter the scheduled delivery date.
APPROVALS
The Client is responsible for approving all proofs and ensuring accuracy and suitability. This includes, but is not limited to, design, spelling, grammar, illustrations, images and quantity. It is the responsibility of the Client to request another copy if the proof is difficult to read or changes are required.
If the Client does not provide the approval pursuant to clause 15.1 within 7 days of receiving any in-progress Services, whether in the form of a draft or any other format where approval or notes have been requested, Anomaly may issue an invoice for any Services completed.
By providing approval, the Client accepts the completed Services and acknowledges that any and all Services are considered complete and that no further changes will be made.
For the avoidance of doubt, in the event the Client requires any amendments, the Client is taken to have varied the scope of services and the procedure in clause 6 shall apply.
CONFIDENTIAL INFORMATION
Each party (the Receiving Party) shall keep the Confidential Information of the other party (the Supplying Party) confidential and secret, whether disclosed to or received by the Receiving Party.
The Receiving Party shall only use the Confidential Information of the Supplying Party for the purpose of performing the Receiving Party’s obligations under this Agreement. The Receiving Party shall inform its employees, officers, agents or subcontractors of the Receiving Party’s obligations under the provisions of this clause, and must ensure that the Receiving Party’s officers, employees and agents meet those obligations.
For the purpose of this Agreement, “Confidential Information” means all information relating to the Supplying Party which by its nature is confidential, is designated by a party as confidential, or the recipient knows or ought to know is confidential and includes, but is not limited to:
information of whatever nature, without limitation, which is obtained in any form by the Receiving Party from the Supplying Party or its advisers, or by observations during visits, or by demonstrations;
information of whatever nature relating to the business activities, practices and finances of the Supplying Party;
any evaluation material, design work, technologies, technological ideas or strategies, strategic plans and ideas, innovations, intellectual property, creative plans, concepts and any other plans or ideas developed by the Supplying Party or on its behalf or used by the Supplying Party, whether relating specifically to the Services or otherwise;
any information derived from any other information which falls within this definition of Confidential Information;
any copy of any Confidential Information; and the fact that discussions are taking place between the parties,
But does not include information which:
was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party, other than by breach of this Agreement;
is, or becomes, publicly available, through no fault of the Receiving Party;
is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
is provided to the Receiving Party by the Supplying Party and is marked “Non Confidential”; or
is required by law or regulation to be disclosed, but in the event that this exception applies, it applies only to the absolute minimum necessary and provided that the Supplying Party is first consulted to establish whether and if so how far it is possible to prevent or restrict such enforced disclosure.
If there is any doubt as to whether any particular information constitutes Confidential Information, written confirmation is to be obtained from the Supplying Party.
INTELLECTUAL PROPERTY
Each party retains the rights to Intellectual Property contributed by it to enable the Services to be carried out.
In connection with the provision of the Services, Anomaly may generate, create, write or produce intellectual property (Created IP), including but not limited to plans, reports, drawings, specifications, advice, analyses, designs, methodologies, code, artwork, or any other intellectual property as required in order to provide the Services to the Client.
In respect of the Created IP:
only completed works and end products become the property of the client upon payment of all outstanding invoices; and
all working files, works in progress, unused logos, raw footage and drafts of products remain at all times the property of Anomaly.
The Client consents unconditionally and irrevocably that Anomaly is able to retain copy of any materials produced for the Client, as well as copies of the final product, to be used for any self-promotion, publicity purposes, folio work, in print formats and online, including on Anomaly’s website and in any other form of marketing or advertising undertaken by Anomaly. This includes the Client allowing Anomaly to add a credit on any websites designed and/or developed by Anomaly. This will be in the form of a line of text placed in the footer of the website, with a link back to Anomaly’s website.
LIABILITY
All implied conditions, warranties and undertakings other are expressly excluded to the extent permitted by law.
Where the Services are of a kind other than Services ordinarily provided for personal, domestic or household use, then Anomaly’s liability is limited, at its option, to any one or more of the following:
the provision of the equivalent Services;
the provision of the Services;
the payment of the costs of providing the Services or providing their equivalent; or
the payment of the costs of having the Services provided.
Subject to the Client’s rights under Schedule 2 of the Competition and Consumer Act 2010 (“CCA”), Anomaly shall not be liable for:
any loss or damage of any kind whatsoever, arising from the Services, including consequential loss whether suffered or incurred by the Client or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from the Services; and
the Client shall indemnify Anomaly against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Anomaly or otherwise, brought by any person in connection with any matter, act, omission, or error by Anomaly, its agents or employees in connection with the Services.
WARRANTY/NO REPRESENTATIONS
To the maximum extent permitted by law, Anomaly makes no warranty in respect of the Services.
The Client understands and acknowledges that:
Anomaly makes no representations or warranties in respect of the Services, express or implied, including, without limitation, any express or implied warranty of fitness or adequacy for a particular purpose or use, quality, productiveness or capacity;
the Client is not entitled to a refund where the Services have been provided, even if the Client is unsatisfied with the Services and/or the end product;
Anomaly makes no representation, express or implied, including, without limitation, in respect of any increased revenue, website traffic and/or engagement as a result of the provision of the Services; and
the Client warrants to Anomaly that it is exercising its own commercial judgment in deciding whether the Services are right and appropriate for its business.
INDEMNITY
Except for any payment in settlement from any applicable insurance policy or policies, and to the extent permitted by law, the Client hereby indemnifies, keeps indemnified, and holds harmless Anomaly, as well as any of Anomaly’s employees, agents, officers, representatives, affiliates, and permitted successors and assigns, against any and all demands, claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal costs, and any other costs whatsoever which may arise out of:
any act or omission of the Client in connection with this Agreement; or
any act or omission of any of the Client’s employees, agents, officers, representatives, affiliates, or permitted successors and assigns in connection with this Agreement; or
the Services or anything provided under this Agreement; or
the relationship between Anomaly and the Client.
The Client shall not be liable under the indemnity given under this clause where a court of competent jurisdiction, giving a final judgment, holds that any loss, damage or liability is the result of the gross negligence, wilful misconduct or bad faith of Anomaly or of any of Anomaly’s employees, agents, officers, representatives, affiliates, or permitted successors or assigns.
The Client indemnifies Anomaly and keeps Anomaly indemnified against any and all losses and legal costs (on a full indemnity basis) that Anomaly directly or indirectly incurs as a result of taking any action to preserve and/or enforce Anomaly’s rights under this Agreement.
CANCELLATION
Orders placed with Anomaly cannot be cancelled without the written approval of Anomaly. In the event that Anomaly accepts the cancellation of any order placed:
the Client shall not be entitled to a refund for any deposit paid (including, without limitation, any deposit made in accordance with clause 7.1.2); and
Anomaly shall be entitled to charge a reasonable fee for any work done to the date of the cancellation including a fee for the processing and acceptance of the Client’s order and request for cancellation.
TERMINATION
This Agreement may be terminated by Anomaly if the Client fails to pay any invoice by its respective due date. In those circumstances, Anomaly may terminate the Agreement immediately, with no notice period, in writing.
Subject to clause 22.1, this Agreement may be terminated by either party, upon 7 days’ notice in writing:
if the other party commits a material breach of any term of this Agreement that is not capable of being remedied within thirty (30) days or that should have been remedied within thirty (30) days after a written request and was not;
if the other party or its employees or agents engages in any conduct prejudicial to the business of the other, or in the event that either party considers that a conflict or potential conflict of interest has arisen between the parties.
If this Agreement is terminated for any reason before the expiration of its natural term, the Client hereby agrees to pay for all Services rendered up to the date of the termination, and for any and all expenditure due for payment after the date of termination for commitments reasonably made and incurred by Anomaly related to the rendering of Services prior to the date of termination, as reasonably determined by Anomaly.
Where the Services involve a shoot, if the Client cancels or postpones a shoot, or the shoot is cancelled for any other reason (i.e. weather, government restrictions etc) more than 48 hours before the crew call time, the Client may be eligible for a refund minus a $250.00 service fee and any applicable bank or credit card charges. On the cancellation of a shoot, the following cancellation fees may apply:
More than 48 hours before the shoot date – 25% of production crew cost;
More than 24 hours before the shoot date – 50% of production crew and equipment;
Less than 24 hours before the shoot, or after business hours (5:00pm ACDT) the day prior to the shoot, 100% of production crew and equipment.
The fee for production management & coordination may be increased to cover any additional work required due to the cancellation and rescheduling of shoot days. Any expenses incurred due to cancellation will also be passed onto the Client, such as location permit fees and talent cancellation fees. On the complete cancellation of a job at any point following the acceptance of the quote and commencement of work, Anomaly may issue an Invoice covering any expenses incurred for work completed up to that point.
During post-production, if the Client cancels, postpones or does not provide feedback within the required timeframes outlined in the agreed production/post-production schedule, Anomaly reserves the right to charge a cancellation/rescheduling fee.
If this Agreement is terminated by the Client after this Agreement has been signed, but prior to commencement of the work, the Client will forfeit any monies already paid, including any initial payments.
Where the Client has terminated this Agreement and all outstanding fees have been paid, Anomaly may provide all documentation relating to the Services that have been completed prior to termination to the Client.
Any termination of the Agreement under this clause shall not affect the accrued rights and liabilities of either party under this Agreement or at law and shall be without prejudice to any rights or remedies that either party may be entitled to.
Any part of this Agreement which is meant to continue after termination or which is meant to come into force at or after termination shall not be affected by this clause.
RETURN OF PROPERTY
Upon the termination, expiration or completion of this Agreement, each party will promptly return to the other party respectively any property, documentation, records or Confidential Information.
In the event the Client terminates this Agreement prior to completion of the Services:
Anomaly will be entitled to attend the location or locations where the Services were undertaken strictly in order to recover any materials and/or equipment which are the property of Anomaly; or
if agreed between the parties, the Client may retain Anomaly’s materials and/or equipment but must compensate Anomaly for the said materials and/or equipment in an amount as agreed between the parties
CHARGE
The Client hereby charges in favour of Anomaly all of the Client’s estate and interest in any land, freehold or leasehold, in which the Client now has or which it may later acquire any such interest in, with payment of all monies owing by the Client to Anomaly from time to time and hereby consents to Anomaly lodging a caveat or caveats which note Anomaly’s interest.
JURISDICTION
These terms and conditions and all matters concerning the business relationship between Anomaly and the Client shall be governed by the law of the State of South Australia and the parties submit to the non-exclusive jurisdiction of the Courts of South Australia for the conduct of any litigation.
ASSIGNMENT
The Client cannot assign these terms and conditions without the prior written consent of Anomaly.
Anomaly can assign these terms and conditions to a third party without the consent of the Client.
SURVIVAL OF OBLIGATIONS
Clauses 16, 17, 18, 19, 20, 24, 25, 26, 27, and 28 survive termination, expiration or completion of this Agreement.
MISCELLANEOUS
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of Anomaly, Anomaly is unable to perform in whole or in part any obligation under these terms and conditions, including delay in the provision of Services, Anomaly shall be relieved of that obligation under these terms and conditions to the extent and for that period that it is so unable to perform and shall not be liable to the Client in respect of such inability.
Failure by Anomaly to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of its rights or obligations under this contract.
If any provision of this contract shall be invalid, void or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected.
Any variation of the terms and conditions contained in this contract or any contract must be agreed to in writing by Anomaly for it to have any legal effect.
The Client will notify Anomaly in writing of any change of ownership of the Client or its business, or of directorships in the case of a corporate Client, or of any other change whatsoever affecting these terms and conditions within seven (7) days from the date of such a change.