MOHOBO
Terms & Conditions
1. Application of Terms
1.1 Mohobo agrees to provide the services described in the relevant proposal, quotation, scope of work, order form or other written project document issued by Mohobo to the Client (Client Proposal).
1.2 Once the Client accepts the Client Proposal in writing, including by email, the Client Proposal together with these Terms & Conditions forms the agreement between Mohobo and the Client (Agreement).
1.3 If there is any inconsistency between these Terms & Conditions and the Client Proposal, the Client Proposal will prevail to the extent of the inconsistency.
2. Services
2.1 Mohobo will provide the services described in the Client Proposal (Services) in a professional, skilful and legally compliant manner.
2.2 The scope, deliverables, production methodology, production schedule and costs will be as described in the Client Proposal or subsequently agreed in writing between the parties.
2.3 Any material change to the agreed scope may constitute a variation and may result in additional costs and/or changes to the production schedule.
2.4 Mohobo will advise the Client of any material variation and, wherever reasonably practicable, obtain the Client’s written approval, including by email, before incurring additional costs.
3. Client Responsibilities
3.1 The Client agrees to provide Mohobo with timely and accurate instructions, information, approvals and materials reasonably required to complete the Project.
3.2 Client Materials include logos, brand assets, technical information, documentation, data, vessel access, personnel access and other materials supplied or made available by the Client for the Project.
3.3 The Client warrants that it has the necessary rights and permissions for Mohobo to use Client Materials for the purposes of completing the Project.
3.4 Where the Client is responsible for providing access to vessels, locations, personnel, facilities or operational activities, the Client will use reasonable endeavours to make these available as agreed.
3.5 Delays caused by the Client’s failure to provide required information, access, approvals or materials may result in changes to the production schedule and reasonable additional costs.
4. Subcontractors and Production Partners
4.1 Mohobo may engage appropriately qualified production companies, independent contractors, freelancers and specialist suppliers (Production Partners) to perform some or all of the Services.
4.2 Mohobo remains responsible to the Client for the overall delivery and management of the Project in accordance with this Agreement.
4.3 Where a Production Partner is engaged to undertake physical production, that Production Partner may directly engage and manage production crew and provide production equipment, production management, workplace health and safety systems and relevant production insurances appropriate to the services it performs.
4.4 Mohobo will use reasonable care in selecting appropriately experienced and insured Production Partners.
4.5 Nothing in this Agreement creates an employment relationship between the Client and any employee, contractor or Production Partner engaged by Mohobo.
5. Project Costs and Payment
5.1 The Client agrees to pay the fees, expenses and other costs specified in the Client Proposal (Project Costs).
5.2 Unless expressly stated otherwise, all Project Costs are exclusive of GST.
5.3 Mohobo will invoice the Client in accordance with the payment schedule contained in the Client Proposal.
5.4 Unless otherwise stated in the Client Proposal or invoice, invoices are payable within 14 days of the invoice date.
5.5 Mohobo may require payment of an agreed deposit or production instalment before committing crew, equipment, Production Partners or other third-party costs.
5.6 Mohobo may suspend work or postpone production where an invoice is overdue.
5.7 Where additional costs arise from an approved change in scope, additional production requirements, additional shoot days, additional post-production or other Client-requested variations, these costs will be quoted or otherwise agreed before being incurred wherever reasonably practicable.
5.8 Where Mohobo engages lawyers, debt recovery services or collection agencies to recover overdue amounts, the Client will be responsible for reasonable recovery costs to the extent permitted by law.
5.9 If an invoice remains unpaid for more than 30 days after its due date, Mohobo may charge interest on the outstanding amount at the Reserve Bank of Australia Cash Rate Target plus 2% per annum.
6. Production, Approvals and Revisions
6.1 The Client acknowledges that video production generally involves a series of stages including development, pre-production, production, editing, graphics, sound, colour grading, review and final delivery.
6.2 Mohobo may seek Client approval at key stages of the Project. Approval of a production stage allows Mohobo to proceed on the basis of that approval.
6.3 Unless otherwise specified in the Client Proposal, two rounds of reasonable, consolidated Client revisions to the initial edit are included in the Project Costs.
6.4 Revisions must remain reasonably consistent with the approved scope, creative direction and Client Proposal.
6.5 Changes to previously approved creative direction, substantial restructuring of an approved edit, new content, additional deliverables or work resulting from information supplied after the relevant production stage may constitute a variation and incur additional costs.
6.6 Mohobo will advise the Client where requested changes are likely to result in additional costs before undertaking those changes wherever reasonably practicable.
7. Production Dates, Weather and Rescheduling
7.1 Production dates may be subject to weather, sea conditions, vessel availability, personnel availability, aviation restrictions applicable to drone operations and other operational considerations.
7.2 Safety and the suitability of conditions for the intended production activities will take priority over the agreed production schedule.
7.3 Where production cannot safely or reasonably proceed because of adverse weather, unsuitable sea conditions, vessel unavailability outside Mohobo’s reasonable control or another event outside the reasonable control of the parties, the parties will work in good faith to reschedule the affected production.
7.4 Reasonable and unavoidable third-party costs arising from postponement or rescheduling, including committed crew, equipment, travel and supplier costs, may be charged to the Client where those costs cannot reasonably be recovered or avoided.
7.5 Mohobo will use reasonable efforts to minimise any such costs.
7.6 If the Client cancels or postpones a confirmed production date for reasons other than an event contemplated by clause 7.3:
(a) where cancellation occurs more than 7 days before the scheduled production date, the Client may be responsible for up to 50% of committed production costs that cannot reasonably be recovered or avoided; and
(b) where cancellation occurs within 48 hours of the scheduled production date, the Client may be responsible for up to 100% of committed production costs that cannot reasonably be recovered or avoided.
8. Marine Operations, Safety and Insurance
8.1 All vessel movements and marine operations remain under the authority and control of the appropriately authorised vessel master, operator or other person legally responsible for the operation of the vessel.
8.2 Nothing in the production requirements, creative direction or filming schedule requires a vessel master, operator, crew member, Production Partner or other person to undertake an activity they reasonably consider unsafe.
8.3 Mohobo and its Production Partners may suspend, modify or discontinue a production activity where reasonably necessary for safety, legal compliance, weather, sea conditions or operational requirements.
8.4 Where Mohobo engages a Production Partner to undertake physical production, Mohobo will require that Production Partner to maintain appropriate insurance relevant to the services and production activities it undertakes, which may include public liability, workers compensation, equipment and other applicable production insurances.
8.5 Each party remains responsible for insurances ordinarily associated with its own business, personnel, property, vessels and operations.
8.6 The Client is responsible for ensuring that any vessel supplied by or on behalf of the Client for the Project is appropriately registered, maintained, operated and insured for the activities for which it is being used.
9. Client Materials and Confidentiality
9.1 Each party agrees to keep confidential information received from the other party confidential and not disclose it except:
(a) where reasonably necessary to perform its obligations under this Agreement;
(b) to professional advisers, insurers or Production Partners who reasonably require access to it and are subject to appropriate confidentiality obligations;
(c) with the other party’s consent; or
(d) where disclosure is required by law.
9.2 Confidential Information includes commercially sensitive, technical, operational, financial and proprietary information that is by its nature confidential or is identified as confidential.
9.3 These confidentiality obligations continue after completion or termination of the Project.
9.4 Mohobo will take reasonable steps to protect Client Materials and Project materials while they are in Mohobo’s possession or control.
10. Intellectual Property and Project Materials
10.1 Subject to payment in full of all Project Costs, Mohobo assigns to the Client all copyright and other transferable intellectual property rights owned or controlled by Mohobo in materials created specifically for the Project (Project Materials).
10.2 Project Materials include, to the extent created specifically for the Project and owned or controlled by Mohobo:
(a) final completed video deliverables;
(b) original video and audio footage captured specifically for the Project;
(c) still images captured specifically for the Project;
(d) graphics and animation created specifically for the Project; and
(e) other original creative materials specifically commissioned and created for the Project.
10.3 Ownership of Project Materials does not include:
(a) music, stock footage, fonts, software or other materials licensed from third parties;
(b) intellectual property owned by Mohobo, a Production Partner or another third party before commencement of the Project;
(c) production techniques, methodologies, know-how, templates, systems, workflows or general creative processes; or
(d) third-party materials incorporated into the Project Materials.
10.4 Third-party materials remain subject to the licence terms imposed by their respective owners.
10.5 To the extent that any pre-existing Mohobo intellectual property is incorporated into the Project Materials and is necessary for the Client to use them, Mohobo grants the Client a perpetual, worldwide, royalty-free, non-exclusive licence to use that intellectual property as part of the Project Materials.
10.6 Where Project Materials created by a Production Partner are intended to be transferred to the Client, Mohobo will use reasonable endeavours to ensure that the necessary rights are obtained from the Production Partner to enable the transfer contemplated by this clause.
10.7 Unless otherwise agreed, editable project files, production software files, working documents and proprietary production templates are not included as deliverables.
10.8 Mohobo may retain archival copies of Project Materials for record-keeping and backup purposes.
11. Portfolio and Promotional Use
11.1 The Client is not required to publicly credit Mohobo or any Production Partner when using the Final Deliverables unless otherwise agreed.
11.2 Following the Client’s first public release of the relevant material, Mohobo may request permission to use reasonable excerpts or examples of the Final Deliverables for Mohobo’s portfolio, showreel, website or credentials.
11.3 Mohobo will not publicly use confidential, unreleased or commercially sensitive Project Materials without the Client’s prior written consent.
12. Liability and Indemnity
12.1 Each party is responsible for loss or damage arising from its own negligent acts or omissions, breach of this Agreement or unlawful conduct.
12.2 The Client indemnifies Mohobo against claims, loss or reasonable expenses arising from:
(a) the Client’s material breach of this Agreement;
(b) Client Materials that infringe the intellectual property or other rights of a third party; or
(c) damage caused by the Client or its personnel to property owned by Mohobo or its Production Partners.
12.3 To the extent permitted by law, neither party will be liable to the other for indirect or consequential loss arising from this Agreement.
12.4 Nothing in this Agreement excludes, restricts or modifies any right, guarantee or remedy that cannot lawfully be excluded under the Australian Consumer Law or other applicable legislation.
12.5 To the extent permitted by law, where Mohobo is entitled to limit its liability for a failure to comply with an applicable consumer guarantee, Mohobo’s liability will be limited, at Mohobo’s option, to supplying the relevant Services again or paying the reasonable cost of having those Services supplied again.
13. Termination
13.1 Either party may terminate the Project where the other party commits a material breach of this Agreement and fails to remedy that breach within a reasonable period after receiving written notice requiring it to do so.
13.2 The Client may instruct Mohobo to cease work on the Project at any time.
13.3 On termination or cancellation, the Client will be responsible for:
(a) Services properly performed up to the date of termination;
(b) approved expenses already incurred;
(c) unavoidable third-party commitments entered into for the Project; and
(d) applicable cancellation costs under clause 7,
less amounts already paid by the Client in respect of those costs.
13.4 Intellectual property rights that are conditional upon payment in full will not transfer until all amounts properly owing under this Agreement have been paid.
14. Unforeseen Events
14.1 Neither party will be liable for delay or failure to perform an obligation where that delay or failure results from circumstances outside its reasonable control.
14.2 Such circumstances may include severe weather, unsafe sea conditions, natural disasters, emergency events, government restrictions, serious illness or unavailability of essential personnel, vessel unavailability outside the reasonable control of the parties, aviation restrictions affecting drone operations or other events that could not reasonably have been anticipated or avoided.
14.3 The affected party will notify the other party as soon as reasonably practicable and use reasonable efforts to minimise the effect of the event and resume performance.
15. General
15.1 This Agreement constitutes the entire agreement between the parties concerning the Project and supersedes previous discussions or representations concerning its subject matter, except to the extent incorporated into the Client Proposal.
15.2 Any amendment to this Agreement must be agreed in writing by both parties. Email is sufficient where the parties clearly agree to the relevant amendment or variation.
15.3 Nothing in this Agreement creates an employment, partnership, agency or joint venture relationship between the parties.
15.4 If any provision of this Agreement is found to be invalid or unenforceable, that provision may be severed without affecting the remaining provisions.
15.5 Provisions concerning payment, intellectual property, confidentiality, liability and any other provisions which by their nature are intended to continue will survive completion or termination of the Agreement.
15.6 This Agreement is governed by the laws of Victoria, Australia and the parties submit to the jurisdiction of the courts of Victoria.