Forbes Street Studios General Terms and Conditions for Studio Hire and Post-Production Hire
Definitions:
“Agreement” means the agreement comprised in the Booking Form and these Conditions.
“Booking” means the hire of the Studio for the Period of Booking and subject to the other terms and conditions specified in the Booking Form.
”Booking Fee” means the fee payable by the Client to Universal for the Booking as specified in the Booking Form or if not specified then calculated in accordance with Universal’s published or usual scale of charges.
“Booking Form” means any written quotation given by Universal and accepted by the Client (to be deemed accepted when work begins if no prior acceptance is received by Universal) or the description of supply (but not any “terms and conditions”) contained in any written order of the Client accepted by Universal (to be deemed accepted when work begins if no prior acceptance is received by the Client).
“Client” means the person or company referred to in the Booking Form.
“Client’s Equipment” means equipment brought onto Universal premises by the Client, or the Client’s Personnel or any servant agent or contractor for and on behalf of the Client.
“Client’s Own Part Recorded Media” means the Client’s own recording media incorporating pre-recorded material including without limitation multi-track recording tape and computer software.
“Client’s Personnel” means persons invited by the Client to enter the Studio during the Booking.
“Client’s Recording” means a recording made before the period of Booking which is delivered to Universal by the Client in connection with this Agreement.
“Fees” means the Booking Fee and the Post Production Work Fee.
“Forbes Street Studios” means the recording studio owned by Universal Music Australia located at 150 William St, Woolloomooloo, NSW 2011.
“Mastering” means the processing by Universal of Recordings in accordance with the description in the Booking Form.
“Master Recording” means the original recording produced for the Client in the course of the Booking on the media and in the format described in the Booking Form.
“Maximum Liability” means the maximum liability on the part of Universal to the Client arising under or in connection with this Agreement being $10,000.
“Operators” means the staff of Universal named as such in the Booking Form.
“Period of Booking” means the period described as such in the Booking Form.
“Post Production Work” means the processing by Universal of Recordings in accordance with the description in the Booking Form.
“Post Production Work Fee” means the fee payable by the Client to Universal for the Post Production Work as specified in the Booking Form or if not specified then calculate in accordance with Universal’s published or usual scale or charges.
“Pre-Production Master” means a recording in form intended for mass production without further material change.
“Recording” means any single of multi-track audio and/or visual recording or data programming or derivative thereof or any one or more pieces of recorded sound or visual image recorded or used during the Booking o which is the subject of Post Production Work including a Master Recording and a Pre-Production Master or any Client’s Recording.
“Representatives” means the persons named in the Booking Form being authorised by the Client to instruct Universal on behalf of the Client in respect of Universal’s provision of the Post Production Work.
“Session Footage” means all audio and/or audio visual material documenting the progress and making of the Recording in the Studio during the Booking Period.
“Studio” means the recording studio and the equipment specified in the Booking Form.
“Studio Breakdown” means a failure or breakdown or unavailability for any reason of the Studio which prevents the Client’s use thereof in accordance with the terms hereof.
“Studio Building” means all part of the Forbes Street Studio building and premises including the Studio.
“Terms and Conditions” means these terms and conditions
“Trade Marks” means all Universal owned and/or controlled trade marks, logos and associated rights.
“Universal” means Universal Music Australia Pty Limited trading as Forbes Street Studios.
“Work Product” means the Master Recording, Pre-Production Master or Client Recording delivered to the Client by Universal which has been the subject of Recording, Mastering, Post-Production Work.
1. AGREEMENT
These Terms and Conditions alone are to apply to all facilities hired and work done by Universal for the Client and shall prevail over any terms and conditions put forward by the Client unless otherwise expressly agreed in writing by Universal. The Client may only book the Studio(s) for the purpose of instructing Universal to make and deliver the Work Product in accordance with the Agreement and not for any other purpose unless otherwise expressly agreed in writing by Universal.
2. STUDIO FACILITIES
2.1 Universal shall make the Studio and the Operators available to the Client for the Period of Booking and shall produce the Master Recording at the direction and subject to the monitoring and approval of the Client or the Representatives. The Client shall only permit people directly involved in the Recordings to enter the Studio Building and only during the Booking Period. Universal reserves the right to require any person not so involved to leave the Studio Building.
2.2 The Client hereby acknowledges that it shall be responsible for:
(a) ensuring the suitability of the Studio for the Client’s purpose;
(b) ensuring that the Client’s Equipment shall be compatible with the Studio;
(c) the technical quality of any recording engineered by personnel provided by the Client;
(d) any problem or damage caused by use of Client’s Own Part Recording Media (including any virus damage);
(e) any acts and omissions of the Representatives as if those acts and omissions were its own, and that accordingly Universal gives no warranty as to the foregoing.
3. POST PRODUCTION WORK
3.1 Universal shall carry out the Post Production Work described in the Booking Form with all due care and diligence using suitable equipment and competent engineers.
3.2 The Client and the Representatives shall be entitled at all reasonable times to monitor Universal’s performance of the Post Production Work and Universal shall carry out the Post Production Work at the direction of and subject to the monitoring and approval of the Client or the Representatives.
3.3 The Client, at its request, shall be entitled and shall be given all reasonable opportunity to evaluate by any reasonable means the content and quality of the Recording.
3.4 For the avoidance of doubt the Client acknowledges and accepts that it is incumbent upon the Client to ensure that the Pre-Production Master meets with its full satisfaction as aforesaid before proceeding to mass production commercial exploitation of the recording thereon.
4. THE FEES
4.1 The Client shall pay the whole of the Fees and any other sums payable by the terms of this Agreement immediately upon receipt of Universal’s invoice.
4.2 The Client shall be liable to pay interest on any sums over due and payable to Universal from time to time at the rate of four percent (4%) per annum above the Westpac Bank base rate.
4.3 (a) In the event of a booking cancellation by the Client within fifteen (15) Days of the scheduled start date, the Client must pay 20% of the Fees upon receipt of Universal’s invoice.
(b) In the event of a booking cancellation by the Client within five (5) Days of the scheduled start date, the Client must pay 100% of the Fees upon receipt of Universal’s invoice.
4.4 Notwithstanding any other provisions in this Agreement, if a party is or becomes liable to pay GST in connection with any taxable supply made pursuant to this Agreement, then the following clauses will have affect:
(a) To the extent there is a taxable supply between the parties under this Agreement, within the meaning of the GST Act then the amount payable to the party providing the supply shall be increased by an amount equal to the amount of GST payable to the Commissioner of Taxation by the party providing the supply.
(b) To the extent that any taxable supply is made by a party under this Agreement within the meaning of the GST Act, that party agrees to provide the other party with a tax invoice that complies in all respects with the requirements of the GST Act. Further, each party agrees to do all things that may be necessary or desirable to enable or assist the other party to claim any credit, set-off, rebate or refund in relation to any amount of GST paid or payable in respect of any supply under this Agreement.
(c) For the purposes of this clause:
(i) ‘GST’ means goods and services tax within the meaning of the ‘A New Tax System (Goods and Services Tax) Act 1999’.
(ii) ‘GST Act’, means ‘A New Tax System (Goods and Services Tax) Act 1999’, including any related amendments or ruling issued in relation to this legislation.
(iii) ‘taxable supply’ has the meaning given to that term by section 195 of the GST Act.
5. THE CLIENT’S OWN MEDIA, PERSONNEL AND EQUIPMENT
5.1 Universal will supply all blank media for recording.
5.2 The Client will be responsible for the integrity of the Client’s Own Part Recorded Media and Universal shall not be liable for any deficiency in or caused by such Media.
5.3 The Client hereby warrants undertakes and agrees that it shall procure that each of the Client’s Personnel shall abide by the Studio’s rules, regulations and health and safety policy and that it shall be responsible:
(a) for the actions of the Client’s Personnel upon Universal’s premises;
(b) for any and all injury, loss or damage to any person’s equipment or premises caused by any act of omission of the Client’s Personnel, or as a result of any defect in or inappropriate specification of the Client’s Equipment or the Client’s Own Media;
(c) for the cost of the hire of any Client’s Equipment;
(d) for any costs and expenses incurred by Universal on behalf of the Client at the Client’s request;
(e) for any and all loss or damage to the Client’s Equipment which shall be at the sole risk of the Client.
5.4 The Client shall vacate the Studio and remove all Client’s Equipment forthwith at the end of the Period of Booking. Universal shall be entitled by three (3) months’ notice to the Client to require the Client to collect the Client’s Equipment and in default of collection of the Client’s Equipment on or before the expiration of the said period of notice, Universal shall be entitled to destroy or otherwise dispose of the Client’s Equipment.
6. SOUND LEVELS
The Client hereby acknowledges that the Noise at Work Regulations 1989 have established that prolonged exposure to high noise levels above 85 dB(A) may cause damage to hearing and that both studios and studio users are required by law to keep exposures as low as reasonably practicable and that accordingly:
6.1 The Client shall be responsible for noise levels within the Studio.
6.2 High noise levels shall not be sustained for long periods.
6.3 Universal hereby reserves the right to take such action as it may deem appropriate to maintain tolerable noise levels and that no claim shall lie against Universal in respect of inconvenience or time lost in the event of such action.
7. RECORDINGS AND MATERIALS
7.1 The Client shall procure the collection of the Recordings and ancillary materials (if any) (“the Materials”) immediately upon payment in full of Universal’s invoice applicable thereto (“the Collection Date”).
7.2 After the Collection Date:
(a) notwithstanding any other provision contained within the Conditions the Materials shall be held by Universal solely at the risk of the Client;
(b) the Client shall be liable to Universal for such reasonable charges as Universal may raise against the Client for the continued storage of the Materials;
(c) Universal shall be entitled to serve notice on the Client requiring the Client to collect the Materials within three (3) months of the date of such notice failing which Universal shall be entitled to destroy or otherwise dispose of the Materials.
7.3 Notwithstanding the foregoing until such time as Universal shall be in receipt of cleared payment of all the Fees Universal shall be entitled to retain possession of all of the Materials.
7.4 Notwithstanding any other provision contained within the Conditions the Client hereby acknowledges and agrees that all risk in the Materials when in transit or otherwise off Universal’s premises shall vest in the Client.
7.5 Universal retains a general lien on any property of the Client Master Recordings and/or Materials in its possession for any unpaid balance the Client may owe to Universal.
8. INDEMNITY
The Client hereby covenants and undertakes to Universal that it shall indemnify Universal against any injury loss damage costs and/or expenses suffered by Universal arising from:
8.1 the Clients cancellation of the Booking including without limitation any reasonable costs or expenses incurred by Universal in connection with the Booking;
8.2 the Client’s making, use of exploitation of the Recordings;
8.3 the Client’s breach of any of the warranties undertakings or agreements on its part to be observed or performed by the terms of this Agreement;
8.4 any loss or damage caused to Universal by the Clients use of Client’s Personal or Client’s Own Part Recorded Material.
9. CONTENT OF RECORDING AND RESTRICTIONS
9.1 The Client warrants that nothing whatever shall be included in the Recording (or any software introduced by the Client) which constitutes a breach or infringement of any copyright or which shall be in any way illegal, scandalous, obscene or libellous and the Client will indemnify Universal against any liability in respect thereof and shall pay all costs and expenses which may be incurred by Universal in reference to any such claim. The indemnity shall extend to any amount paid on a lawyer’s advice in respect of any such claim.
9.2 The Client is permitted to acknowledge that the Recording, Mastering or Post-Production Work took place at Forbes Street Studios. Notwithstanding the foregoing, the fact that the Recording is recorded, mastered or subject to Post-Production Work in the Studio does not imply an “endorsement” as between Universal and the Recording or the Client. Should it come to Universal’s attention that the Client is implying such an endorsement Universal shall notify the Client and the Client shall cease the relevant activity that is implying the endorsement in relation itself and/or the relevant Recording.
9.3 Universal shall not be required to reproduce any matter which in its opinion is or may be of an illegal, scandalous, obscene or libellous nature.
9.4 The Clients warrants that the Recording shall not be used to create software or hardware audio products including, but not limited to, plug-ins or sample instruments. Further the Client warrants that it will not use Universal’s name, logo or Trade Mark to promote, endorse or otherwise advertise non-Universal audio products with the express written permission of Universal.
9.5 The Client warrants that it shall not carry out impulse responses in the Studios, through the plate reverbs, in the echo chambers or through outboard equipment including, but not limited, to EQs.
10. STUDIO BREAKDOWN WARRANTY
In the event of Studio Breakdown, Universal shall at its option either replace (as soon as can reasonably be arranged) the Studio facilities to which the Client was entitled by the terms hereof and which have been lost as a result of such Studio Breakdown or credit or refund to the Client the Booking Fee in respect of the Booking and shall have no liability or obligation to the Client beyond these remedies.
11. MASTER RECORDING AND POST-PRODUCTION WORK WARRANTY
11.1 The Client shall promptly notify Universal in writing of any defect in or loss of or damage to the Master Recording or the Post-Production Work of which it is made aware whether as a result of any test carried out by the Client pursuant to clause 3 or otherwise.
11.2 Universal shall use its reasonable endeavours to correct any such defect and to effect replacement of such lost or damaged materials so notified to it or of which it is aware and which are attributable to faulty materials or workmanship or the negligence of Universal.
11.3 In the event that Universal is unable reasonably to effect such rectification or replacement its liability in respect of any Master Recording or Post-Production Work shall be limited to the Maximum Liability.
12. CLIENT’S RECORDINGS
It is a condition of this Agreement that all Client’s Recordings shall have been copied by the Client before delivery to Universal, and that Universal’s liability for loss of or damage to a Client’s Recording shall be limited to the value of the media on which it is recorded.
13. TRADE MARKS
The Trade Marks are the property of Universal and/or the Universal Music Group and the Client shall not use the Trade marks unless expressly authorised in writing by Universal to do so.
14. FILMING AND PHOTOGRAPHY RESTRICTIONS
14.1 The Client shall not and it shall procure that Client’s Representatives shall not photograph of film any part of the Studio Buildings save as expressly provided in this Agreement.
14.2 The Client shall be permitted to photograph and/or record Session Footage within the Studio solely for non-commercial, personal purposes PROVIDED THAT:
(a) the copyright and all related rights in and to the Session Footage shall vest in Universal and to the extent any such rights vest in the Client, the Client assigns all rights in the Session Footage to Universal, whether vested, contingent or future;
(b) Client hereby waives, and shall procure the waiver from Client’s Representative any and all moral and/or so-called “performer’s Rights” in the Session Footage; and
(c) the Client shall provide Universal with a copy of the Session Footage.
14.3 In the event that Client or Client’s Representative either:
(a) wish to use the Session Footage for purposes not expressly permitted hereunder; and/or
(b) wish to photograph and/or film the whole or part of the Studio Building;
then the Client shall put such request in writing to Universal.
15. UNIVERSAL’S OVERALL LIABILITY
15.1 In the event that the Client shall actually suffer any loss or damage arising directly from the negligence or breach of contract or of statutory duty of Universal then other than in cases of death or personal injury Universal’s liability therefore shall be limited in any event to the Maximum Liability in respect of the aggregate of all instances of such negligence and/or breach arising out of Universal’s performance of its obligation under this Agreement.
15.2 Notwithstanding any other provision contained within this Agreement Universal shall not be liable to the Client or the Client’s personnel for any:
(a) indirect or consequential loss or damage;
(b) economic loss including without limitation any loss of profits or goodwill or anticipated savings
arising from any fault in the Studio or any act or omission of Universal its servants or agents in respect of this Agreement.
15.3 Universal’s liability under this Agreement shall be to the exclusion of all other liability to the Client whether contractual, tortious or otherwise. All other conditions, warranties, stipulations or other statements whatsoever concerning the Agreement, whether express or implied, by statute, at common law or otherwise howsoever, are hereby excluded.
15.4 The Client accepts as reasonable that Universal’s total liability in respect of the Booking and/or the Post-Production Work shall be as set out in this Agreement: in fixing those limits the Client and Universal have had regard to the price and nature of the Booking and the Post-Production Work and the terms hereof, and the level of expenses expected to be incurred by the Client in respect thereof and the resources available to each party including insurance cover, to meet any liability.
15.5 Consumer guarantees under the Australian Consumer Law may apply. Universal makes no representation or warranty additional to those consumer guarantees. The liability of Universal (including any of their directors, officers, employees, consultants, or shareholders) in connection with goods or services supplied under this Agreement may be subject to the Australian Consumer Law. Except in the case of a major failure to comply with a consumer guarantee, liability will be at the election of Universal be limited to:
(a) in relation to goods, the replacement or repair of the goods, the supply of equivalent goods, the payment of the cost of replacing or repairing the goods or the payment of the cost of obtaining equivalent goods; and
(b) in relation to services, the supplying of the services again or the payment of the cost of having the services supplied again.
16. FORCE MAJEURE
Notwithstanding any other term of this Agreement Universal shall not be under any liability for any failure to perform any of its obligations under this Agreement due to Force Majeure. Following notification by Universal to the Client of such cause, Universal shall be allowed a reasonable extension of time for the performance of its obligations. For the purpose of this Condition, ‘Force Majeure’ means:
• war or threat of war, sabotage, insurrection, civil disturbance or requisition;
• acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
• import or export regulations or embargoes;
• strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Universal or of a third party);
• difficulties in obtaining raw materials, labour, fuel, parts or machinery;
• power failure or breakdown in machinery.
17. MISCELLANEOUS
17.1 The Client shall procure that neither the Client nor any of the Client’s Personnel shall be held out as an agent of or pledge the credit of Universal.
17.2 This Agreement constitutes the entire agreement between the parties and neither party shall be bound by any other statement or representation made to the other.
17.3 No variation or amendment to this Agreement shall be effective unless made in writing and signed by the parties hereto.
17.4 In the event that any part of this Agreement shall be held to be void, voidable or otherwise unenforceable by a court of competent jurisdiction then the balance thereof shall remain in full force and effect.
17.5 All notices required to be given hereunder shall be in writing and deemed properly served if delivered by hand or sent by fax (PROVIDED that proof of transmission can be produced) to the address or fax number respectively of the applicable party specified on the Booking Form on the date of delivery or transmission or if sent by recorded delivery post to such address within two (2) working days of posting.
17.6 This Agreement shall be construed in accordance with the laws of New South Wales, Australia and subject to the exclusive jurisdiction of the Courts of New South Wales, Austalia.