TERMS + CONDITIONS
Welcome to the Documentary Australia Website. This Website is owned and operated by Documentary Australia Foundation Pty Ltd (ABN 12 119 563 941) as trustee for the Documentary Australia Foundation Trust (ABN 11 227 328 793) (DAF).
The Documentary Australia Foundation (DAF) administers the public fund known as the Documentary Australia Foundation Donations Fund (Public Fund). The Public Fund has been endorsed as a Deductible Gift Recipient under Subdivision 30-BA of the Income Tax Assessment Act 1997 and DAF and the Public Fund are listed on the Register of Cultural Organisations maintained under Subdivision 30-F of the Income Tax Assessment Act 1997.
These Terms and Conditions govern:
– your use of the website;
– the making of donations; and
– certain obligations of filmmakers.
The following definitions apply unless the context requires otherwise.
Application Fee has the meaning given to that term in clause 6.
Approved Documentary has the meaning given to that term in clause 4(b).
Charitable Purposes includes the following charitable objects of DAF:
(a) supporting the production of documentary films;
(b) performing evaluations of documentary films
(c) distributing documentary films to audiences;
(d) the functions and roles set out in clause 3; and/or
(e) the objects of DAF as set out in the DAF trust deed dated 10 May 2007.
Consequential Loss means any loss not arising naturally and not arising according to the usual course of things, from the relevant breach or acts or omissions.
DAF Grant means the amount determined by DAF and granted by it from the Public Fund to a Filmmaker in respect of an Approved Documentary.
DAF Grant Undertaking means the undertaking by a Filmmaker in the form of Schedule 1 to these Terms and Conditions.
Deductible Gift Recipient has the meaning given to that term in the Income Tax Assessment Act 1997.
Donation includes a tax deductible gift as that term is commonly used by the Australian Taxation Office which is given, or is to be given, by a Donor, and which is received by the Public Fund through the donation functionality on the Website or otherwise.
Donor means any individual, foundation, charity, organisation or corporation which makes, or wishes to make, a Donation. A Donor includes public or private ancillary fund whose objectives, powers or purposes enable the provision of monies, property or benefits to the Public Fund.
Filmmaker means any person who is, or intends to be, a maker of an Approved Documentary. For the avoidance of doubt a maker of an Approved Documentary can include an executive producer, director or any person or legal entity associated with the maker of the film, at the discretion of DAF.
GST has the meaning given in section 195-1 of the GST Act.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Input Tax Credit has the meaning given to that term in the GST Act.
Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semiconductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in confidential information, know how or other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.
Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time, whether made by a State, Territory, Commonwealth, or a local government, and includes common law and the principles of equity as applicable from time to time, and any applicable legally binding industry codes of conduct. Law includes conditions relating to DAF and the Public Fund being listed on the Register of Cultural Organisations maintained under Subdivision 30-F of the Income Tax Assessment Act 1997.
Liability has the meaning given to that term in clause 8(b).
Loss means all losses, Consequential Loss, liabilities, fines, penalties, damages, claims, and all related costs and expenses (including any and all legal fees on a solicitor and client basis, and costs of investigation, litigation, settlement, judgment, appeal, interest and penalties).
Taxable Supply has the meaning given to that term in the GST Act.
Terms and Conditions means these terms and conditions which govern Your use of the Website and/or the performance by DAF of its functions and roles in accordance with clause 3.
Website means the website of DAF with the universal resource locator at www.documentaryaustralia.com.au.
You or Your means a user of the Website, and as applicable:
(a) a Filmmaker; or
(b) a Donor.
(a) If You are a user of the Website, You are deemed to have accepted and agree to be bound by these Terms and Conditions (including any amendment to these Terms and Conditions) when You access or use the Website.
(b) If You are a Filmmaker, You are deemed to have accepted and agree to be bound by these Terms and Conditions when You pay the Application Fee.
(c) If you are a Donor, You are deemed to have accepted and agree to be bound by these Terms and Conditions when you make a Donation.
3. DAF’s functions and roles
(a) In furtherance of its Charitable Purposes, DAF supports the sustainable production of documentary films by Filmmakers. DAF aims to inspire and nurture partnerships between Donors and Filmmakers subject to Law. DAF provides information, guides and resources to enable Donors and Filmmakers to work together to achieve their goals.
(b) DAF assesses and approves documentary films for listing on the Website for the purpose of the Filmmaker securing potential philanthropic support by means of DAF Grants.
(c) DAF procures, receives, receipts and manages Donations from Donors. All Donations are paid into the Public Fund, and subject only to clause 7, all Donations are passed on to Filmmakers by DAF as DAF Grants.
(d) As part of its Charitable Purposes, DAF also performs project and relationship management functions including:
(i) mentoring and assisting Filmmakers through the creative and production process for a documentary film;
(ii) consulting with and advising Donors on suitable documentary film projects that align with their particular campaign or fundraising objectives or other specific goals or philanthropic funding criteria;
(iii) consulting with and advising Donors on best practice in documentary filmmaking;
(iv) consulting and advising Filmmakers on potential sources of funding from Donors and sourcing those Donor for a particular documentary project; and
(v) consulting and advising on education or other outreach campaigns, and on the impact assessment of documentary film projects, including the implementation of a DAF developed evaluation framework that can be used to analyse and articulate the outcomes that are delivered through a documentary film.
4. Provisions for Filmmakers
This clause 4 applies to You if You are a Filmmaker.
(a) If You wish to apply for a DAF Grant, You must create an account through the Website, complete and submit a new documentary film project application and pay the Application Fee.
(b) DAF will assess documentary film projects to determine whether a documentary film is suitable for philanthropic support by Donations through DAF. The documentary film must be made in Australia or otherwise have an Australian connection. If a determination is made by DAF in favour of that support, eligible documentary film projects (Approved Documentary) are listed on the Website.
(c) You acknowledge that the Application Fee is not refundable.
(d) If DAF has determined to make a DAF Grant to You in accordance with these Terms and Conditions, we may request that You enter into a DAF Grant Undertaking. If for any reason, You fail to execute a DAF Grant Undertaking, You acknowledge that by paying the Application Fee You are deemed to be bound by the DAF Grant Undertaking and that it may be enforceable against You.
5. Making a Donation
This clause 5 provides information on making Donations to the Public Fund.
(a) If You wish to make a Donation to the Public Fund for the first time, you can make a Donation by clicking on the DONATE button on the Website. Terms and conditions apply that you must accept. You can also Donate via credit card online or via direct deposit or cheque. Subject to Law and the particular requirements of Donors, all Donations are tax deductible.
(b) Each Donation must be approved by DAF in order to comply with its obligations as the operator of the Public Fund which is a Deductible Gift Recipient endorsed by the Australian Taxation Office. While DAF will use reasonable endeavours to approve each Donation within 24 hours, DAF cannot guarantee a specific timeframe within which a Donation is approved.
(c) Once a Donation is received by the Public Fund, You will be issued a receipt evidencing your tax deductible Donation.
(d) All Donors accept the following terms and conditions in relation to a Donation:
(i) the Donation must be unconditional and the Donor acknowledges that it cannot receive any benefit, advantage, right or privilege in return for the Donation;
(ii) the Donor acknowledges that whilst there is no guarantee, it is its preference that the board of DAF takes its wishes into consideration and approves a DAF Grant to its preferred recipient(s) with the proceeds of the Donor’s Donation;
(iii) any preferred recipient that has been nominated by the Donor is not a family member, partner or spouse;
(iv) the Donor represents that it does not stand to gain any material benefit as a result of its preferred recipient film being made, nor does it have any editorial influence or control over the preferred Approved Documentary or preferred Filmmaker;
(v) the Donor acknowledges that refunds cannot be issued for a Donation, and that DAF will contact the Donor regarding other options should the Donor’s preferred recipient not be approved.
(e) Any Donor that wishes to do more than express a preference, for example to attach conditions to a grant of funds to a Filmmaker, accepts that it may not be able to claim a tax deduction and that the monies granted may not be credited to the Public Fund. DAF will enter into a separate agreement with that Donor to ensure that the wishes of the Donor will be met in those circumstances.
6. Fees payable by Filmmakers
The fee payable by a Filmmaker for each new documentary film application for listing on the Website is $165.00 including GST (Application Fee). The amount of the Application Fee may be amended by DAF by amendment to these Terms and Conditions without further notice. Any amendment to the fee will not affect Application Fees already paid.
7. Operational expenses
(a) A small percentage of any Donation may be paid out of the Public Fund from time to time to fund the operational expenses of DAF of administering the Public Fund and furthering its objects. The amount or timing of any such payment will be determined by DAF from time to time. As at the date of these Terms and Conditions, the board of DAF anticipates that the following percentages may apply to fund its operational expenses: DAF retains 5% of all donations
(b) In certain circumstances where DAF has sourced a Donation, the percentage amount of the Donation that may be deducted from the Public Fund by DAF for its
operational expenses may be an amount of 15% or a flat fee as agreed.
(c) The percentages specified in this clause 7 may be amended (or repealed entirely) by DAF by amendment to these Terms and Conditions without further notice.
(a) Unless otherwise expressly stated, all amounts payable under this Agreement are expressed to be exclusive of GST. If GST is payable on a Taxable Supply, the amount payable for that Taxable Supply will be the amount expressed in this Agreement plus GST.
(b) If an amount payable under this Agreement is calculated by reference to or relates to a cost, expense, liability or similar amount (Liability) incurred by a party, then the Liability must be reduced by the amount of any Input Tax Credit to which that party is entitled in respect of that Liability. A party will be assumed to be entitled to a full Input Tax Credit unless it demonstrates that its entitlement is otherwise prior to the date on which the payment must be made.
9. Use of the Website
9.1 Registration and password
You may only register for an account with DAF, and use the login credentials assigned to You, for the purposes of making Donations. You must keep secure, not disclose, not permit any person to use, and regularly change, such login credentials.
9.2 No unlawful use
You must not use the Website for any unlawful or fraudulent purpose, including without limitation, transmitting any material which is illegal, defamatory, abusive, threatening, obscene, profane, invasive or otherwise inappropriate according to the reasonable standards of acceptable conduct.
9.3 No infringement
You must not transmit through the Website any material which infringes, or is capable of causing DAF to infringe, the Intellectual Property Rights of any person.
10. Intellectual property
The Intellectual Property Rights in the Website are owned by DAF. Nothing in these Terms and Conditions operate to transfer or assign any Intellectual Property Rights in the Website to You or any other person. Unless otherwise expressly provided in these Terms and Conditions, You must not use, reproduce, adapt, distribute and communicate any content of the Website without the prior written consent of DAF.
The Intellectual Property Rights in the documentary films and any other material in connection with such films remain vested in their respective authors.
(a) DAF grants to You a non-exclusive, non-transferrable, worldwide, royalty free and revocable licence to use the Website solely to the extent required to enable DAF to perform its functions and roles in accordance with clause 3.
(b) To the extent that You are a Filmmaker, You grant to DAF a non-exclusive, transferable, worldwide, royalty free, irrevocable licence to use, reproduce, adapt, distribute and communicate (and do all such other things as are necessary or convenient in order for DAF to exercise its rights under these Terms and Conditions) the Intellectual Property Rights in Your film and any other material in connection with that film (including any still photography and including the right to sub-license), but only to the extent necessary for DAF to exercise its rights and obligations under these Terms and Conditions, including (without limitation) to display the title, or an excerpt or screenshot of the film or still from the film or an excerpt of the script on the Website, in DAF’s annual report or to otherwise publicise DAF’s association with the film.
DAF does not represent, warrant or guarantee the accuracy, availability, security, reliability, suitability, timeliness or completeness of the Website.
12.2 No warranties
(a) Nothing in these terms and conditions purports to modify or exclude any guarantees relating to the supply of any services under the Competition and Consumer Act 2010 (CCA).
(b) Subject to clause 12.2(a), DAF disclaims all conditions, representations, warranties or guarantees (whether express, implied, statutory or otherwise) with respect to the fitness for purpose of the Website or in respect of the performance of its functions and roles in accordance with clause 3.
13. Liability and indemnity
Subject to clause 12.2(a):
(a) DAF disclaims all Loss that You suffer or incur arising out of, or in connection with, your use of the Website and the performance of its functions and roles in accordance with clause 3. In respect of any claim under a guarantee under the CCA, we reserve the right to resupply that service to You.
(b)You agree that our maximum liability to You for breach of these Terms and Conditions will be limited to $1,000.
(c) You agree to indemnify, defend and hold harmless, DAF and its respective officers, directors, employees, agents, successors and assigns from and against all Loss suffered or incurred with respect to Your:
(i) wilful, unlawful or fraudulent acts or omissions;
(ii) infringement of the Intellectual Property Rights of any person;
(iii) breach of these Terms and Conditions; and
(iv) use of the Website.
(a) These Terms and Conditions are governed by the laws of New South Wales. You and DAF submit to the non-exclusive jurisdiction of courts exercising jurisdictions there in connection with matters concerning these Terms and Conditions.
(b) The covenants, conditions and provisions of these Terms and Conditions which are intended or capable of having effect after termination (including provisions related to warranties, indemnities, liability, licences and intellectual property) must remain in full force and effect following any termination of these Terms and Conditions.
(c) These Terms and Conditions set out the entire agreement between DAF and You with respect to its subject matter and supersedes all prior agreements and understandings in connection with it.
(d) If any provision of these Terms and Conditions is held to be invalid, then such provision (to the extent that it is invalid) is severed from these Terms and Conditions and the remainder will not be affected.
(e) The following rules of interpretation apply unless the context requires otherwise.
(i) The singular includes the plural, and the converse also applies.
(ii) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(iii) A reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity.
(iv) A reference to a clause or Schedule is a reference to a clause of, or Schedule to, these Terms and Conditions.
(v) A reference to legislation or to a provision of legislation includes a modification or re enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
(vi) A reference to conduct includes an omission, statement or undertaking, whether or not in writing.
(vii) A reference to dollars and $ is to Australian currency.
(viii) A reference to a right or obligation of any two or more people comprising a single party confers that right, or imposes that obligation, as the case may be, on each of them severally and each two or more of them jointly. A reference to that party is a reference to each of those people separately (so that, for example, a representation or warranty by that party is given by each of them separately).
(ix) A reference to an amount for which a person is contingently liable includes an amount that that person may become actually or contingently liable to pay if a contingency occurs, whether or not that liability actually arises.
(x) A month means a calendar month.
(xi) A reference to year is a reference to each successive period of 12 months, commencing on the Commencement Date.
DAF Grant Undertaking Parties
1 Documentary Australia Foundation Pty Ltd (ABN 12 119 563 941) as trustee for the Documentary Australia Foundation Trust (ABN 11 227 328 793) (DAF).
2 [*] of [address] (Filmmaker).
A The Filmmaker has applied to DAF for philanthropic funding in relation to a documentary film entitled [*].
B DAF has approved the application and the documentary film is an Approved Documentary for the purpose of listing on the Website.
C As a condition to philanthropic funding in the form of a DAF Grant, and subject to the Terms and Conditions, the Filmmaker undertakes to DAF certain obligations in relation to the DAF Grant.
Terms which are defined in the terms and conditions on DAF’s website (Terms and Conditions) and which are used in this DAF Grant Undertaking have the same meaning in this DAF Grant Undertaking as in the Terms and Conditions, unless the context requires otherwise.
The Filmmaker undertakes to DAF that it will:
(a) expend the DAF Grant:
(i) for purposes in connection with the production of the Approved Documentary;
(ii) in accordance with the budget details submitted with the application for philanthropic funding to DAF; and
(iii) not for any other purpose without the prior written consent of DAF;
(b) maintain clear and up-to-date financial records for the purpose of enabling DAF to audit compliance with this DAF Grant Undertaking, and if requested by DAF, provide such financial records to DAF as soon as reasonably possible;
(c) regularly notify DAF of the progress of the production of the Approved Documentary including, on completion of production, provide DAF a digital versatile disc (DVD) of the completed Approved Documentary (or other digital copy of the Approved Documentary in another format agreed by the parties);
(d) attribute DAF as a provider of the DAF Grant by displaying the DAF logo (as shown in Annexure A) in the Approved Documentary’s credits and in any related marketing collateral;
(e) if a Donor expresses a preference to DAF that, to the extent that their Donation comprises a DAF Grant, they be attributed as a provider of philanthropic funding and DAF agrees, the Filmmaker shall:
(i) credit the Donor in the Approved Documentary’s credits and in any related marketing collateral including any websites; and
(ii) comply with any other requests by DAF;
(f) if requested by DAF, provide to DAF (who may then provide such information to a Donor):
(i) regular updates on the progress of the production of the Approved Documentary; and
(ii) a final report with a subject matter to be determined by the parties;
(g) comply with any terms and conditions which have been agreed with DAF; and
(h) immediately refund any unexpended DAF Grant to DAF if:
(i) production of the Approved Documentary ceases for any reason; and/or
(ii) any unexpended DAF Grant is unable to be expended in accordance with clause 2(a) of this DAF Grant Undertaking.
The Filmmaker acknowledges that by entering into this DAF Grant Undertaking, it agrees to be bound by the Terms and Conditions to the extent applicable to this DAF Grant Undertaking and to comply with these undertakings.
Executed in accordance with section 127 of the Corporations Act 2001 by Documentary Australia Foundation Pty Ltd.