TERMS AND CONDITIONS

Welcome to the Documentary Australia Website. This Website is owned and operated by Documentary Australia Pty Ltd (ABN 12 119 563 941) as trustee for the Documentary Australia Trust (ABN 11 227 328 793) (Documentary Australia).

Documentary Australia administers the public fund known as the Documentary Australia 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 Documentary Australia 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:
(a) your use of the website;
(b) the making of Donations; and
(c) certain obligations of Filmmakers, which may be set out in a separately executed Documentary Grant Undertaking.

1. DEFINITIONS

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 Documentary Australia:

(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 Documentary Australia as set out in the Documentary Australia 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.

Documentary Australia Grant means the amount determined by Documentary Australia and granted by it from the Public Fund to a Filmmaker in respect of an Approved Documentary.

Documentary Australia 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 (and includes monies property or benefits provided by a public or private ancillary fund referred to in the definition of Donor) 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 Documentary Australia.

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 Documentary Australia 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 Documentary Australia of its functions and roles in accordance with clause 3.

Website means the website of Documentary Australia with the universal resource locator at https://documentaryaustralia.com.au.

You or Your means a user of the Website, and as applicable:

(a) a Filmmaker; or
(b) a Donor.

2. ACCEPTANCE

(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. DOCUMENTARY AUSTRALIA’S FUNCTIONS AND ROLES

(a) In furtherance of its Charitable Purposes, Documentary Australia supports the sustainable production of documentary films by Filmmakers. Documentary Australia aims to inspire and nurture partnerships between Donors and Filmmakers subject to Law. Documentary Australia provides information, guides and resources to enable Donors and Filmmakers to work together to achieve their goals.  Documentary Australia also seeks to amplify the reach of documentary films by supporting their impact strategies and guiding Filmmakers and Donors and communities on how to use documentary film to further their advocacy and impact goals.
(b) Documentary Australia assesses and approves documentary films for listing on the Website for the purpose of the Filmmaker securing potential philanthropic support by means of Documentary Australia Grants.
(c) Documentary Australia 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 Documentary Australia as Documentary Australia Grants.
(d) As part of its Charitable Purposes, Documentary Australia 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 Documentary Australia developed evaluation framework that can be used to analyse and articulate the outcomes that are delivered through a documentary film.

(e) Use of the company name (Documentary Australia) or branding including the logo for endorsement outside of the standard agreement is not permissible without prior authorisation or written consent.

4. PROVISIONS FOR FILMMAKERS

This clause 4 applies to You if You are a Filmmaker.
(a) If You wish to apply for a Documentary Australia Grant, You must create an account through the Website, complete and submit a new documentary film project application and pay the Application Fee.
(b) Documentary Australia will assess documentary film projects to determine whether a documentary film is suitable for philanthropic support by Donations through Documentary Australia. The documentary film must be made in Australia or otherwise have an Australian connection, for example, the Filmmaker and crew are Australian and have an ABN. If a determination is made by Documentary Australia in favour of that support, an eligible documentary film project (an Approved Documentary) will be listed on the Website.
(c) You acknowledge that in determining that a project is an Approved Documentary, Documentary Australia is neither the maker nor publisher of that documentary, and Documentary Australia takes no responsibility for and does not necessarily endorse the content of that documentary, including where Documentary Australia provides executive producer services in relation to an Approved Documentary. As Filmmaker You are solely responsible for content, licensing and publication of an Approved Documentary and you acknowledge the Intellectual Property Rights licence that You grant to Documentary Australia and the representation and warranty you give Documentary Australia in clause 10.3(b) below.
(d) You acknowledge that the Application Fee is not refundable.
(e) If Documentary Australia has determined to make a Documentary Australia Grant to You in accordance with these Terms and Conditions, we may request that You enter into a Documentary Australia Grant Undertaking. If for any reason, You fail to execute a Documentary Australia Grant Undertaking, You acknowledge that by paying the Application Fee, You are deemed to be bound by the Documentary Australia Grant Undertaking and that it may be enforceable against You. We will use reasonable endeavours to bring the terms of the Documentary Australia Grant Undertaking to Your specific attention, but we are not bound to do so.
(f) You acknowledge that the continued listing of the your film as an Approved Documentary on the Website is not guaranteed by Documentary Australia.  We may, at any time and in our absolute discretion, review whether an Approved Documentary remains suitable for philanthropic support by Donations through Documentary Australia.  As a result of that review, and without being under any obligation to give reasons to a Filmmaker, Documentary Australia may either make your film on our Website private (so that it may only be accessed by you and by potential Donors by use of a password) or remove the Approved Documentary from the Website.  Without limiting our discretion, we intend to use this power of making private or removal from the Website to manage limited or unusual circumstances where, for example, you are in breach of these Terms and Conditions or the Documentary Australia Grant Undertaking or the continued availability of the Approved Documentary on our Website or the continued association between the Filmmaker and Documentary Australia through our Website could damage the reputation of Documentary Australia or place the continued DGR status of Documentary Australia at risk.

5. MAKING A DONATION

(a) This clause 5 provides information on making Donations to the Public Fund.
(b) 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. When You click on the DONATE button, You accept these Terms and Conditions, in particular the conditions at paragraph (e) below. 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.
(c) Each Donation must be approved by Documentary Australia 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 Documentary Australia will use reasonable endeavours to approve each Donation within 24 hours, Documentary Australia cannot guarantee a specific timeframe within which a Donation is approved.
(d) Once a Donation is received by the Public Fund, You will be issued a receipt evidencing Your tax deductible Donation.
(e) 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 Documentary Australia takes its wishes into consideration and approves a Documentary Australia Grant to its preferred recipient(s) with the proceeds of the Donor’s Donation;
(iii) any preferred recipient Filmmaker of an Approved Documentary that has been nominated by the Donor is not a family member, partner or spouse of the Donor;
(iv) the Donor represents that it does not stand to gain any material benefit as a result of its preferred recipient Approved Documentary 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 Documentary Australia will contact the Donor regarding other options should the Donor’s preferred recipient not be approved.

(f) 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. Documentary Australia 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 Documentary Australia 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 Documentary Australia of administering the Public Fund and furthering its objects. The amount or timing of any such retention payment will be determined by Documentary Australia from time to time.
(b) As at the date of these Terms and Conditions, the following percentages will apply as a retention to fund operational expenses: 

(i) Subject to paragraphs (ii) and (iii) below, for a Donation up to $250,000, a 5% retention will apply;
(ii) For a Donation greater than $250,001, a 2.5% retention will apply; and
(iii) For a Donation less than $250,001, but where the board of Documentary Australia is satisfied, in its absolute discretion, that the Donor is likely to donate more than $250,001 in the same financial year as the initial Donation, a 2.5% retention will also apply.

(c) In certain circumstances where Documentary Australia has sourced a Donation, the percentage amount of the Donation that may be deducted from the Public Fund by Documentary Australia for its operational expenses may be an amount of 15% or a flat fee as agreed.
(d) The percentages specified in this clause 7 may be amended (or repealed entirely) by Documentary Australia by amendment to these Terms and Conditions without further notice.

8. GST

(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 Documentary Australia, 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 Documentary Australia to infringe, the Intellectual Property Rights of any person.

10. INTELLECTUAL PROPERTY

10.1 Website
The Intellectual Property Rights in the Website are owned by Documentary Australia. 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 Documentary Australia.
10.2 Films
The Intellectual Property Rights in the documentary films and any other material in connection with such films remain vested in their respective authors.
10.3 Licence
(a) Documentary Australia 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 Documentary Australia to perform its functions and roles in accordance with clause 3.
(b) To the extent that You are a Filmmaker, You grant to Documentary Australia 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 Documentary Australia 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 Documentary Australia 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 any still photography associated with the film or an excerpt of the script on the Website, in Documentary Australia’s annual report or to otherwise publicise Documentary Australia’s association with the film. You also represent and warrant to Documentary Australia that You have the valid licenses/rights to use Intellectual Property Rights in all materials provided to Documentary Australia (including in any still photography) for the purpose of enabling Documentary Australia to exercise its rights under this clause 10.3(b) and to list the Approved Documentary on the Website.
(c) If you are in breach of this clause 10.3(b), then You must immediately and on demand reimburse Documentary Australia for any expense incurred to clear any Intellectual Property Rights in any materials you have provided to us, including any necessary copyright licence or any fine that Documentary Australia is required to pay in respect of that breach.

11. PRIVACY

Documentary Australia’s privacy policy (available here) contains information about how:
(a) Documentary Australia collects, uses and discloses your personal information;
(b) you can access and seek correction of any personal information that Documentary Australia holds about you; and
(c) you can complain about Documentary Australia’s handling of your personal information.

12. DISCLAIMER

12.1 Website
Documentary Australia 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), Documentary Australia 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

(a) Subject to clause 12.2(a), Documentary Australia 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, Documentary Australia 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.

14. GENERAL

(a) These Terms and Conditions are governed by the laws of New South Wales. You and Documentary Australia 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 (and, for Filmmakers, any Documentary Australia Grant Undertaking and these Terms and Conditions) set out the entire agreement between Documentary Australia 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.

SCHEDULE 1

Documentary Australia Grant Undertaking Parties
1 Documentary Australia Pty Ltd (ABN 12 119 563 941) as trustee for the Documentary Australia Trust (ABN 11 227 328 793) (Documentary Australia).
2 [*] of [address] (Filmmaker).
Recitals
A. The Filmmaker has applied to Documentary Australia for philanthropic funding in relation to a documentary film entitled [*].
B. Documentary Australia 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 Documentary Australia Grant, and subject to the Terms and Conditions, the Filmmaker undertakes to Documentary Australia certain obligations in relation to the Documentary Australia Grant.

1. INTERPRETATION

Terms which are defined in the terms and conditions on Documentary Australia’s website (Terms and Conditions) and which are used in this Documentary Australia Grant Undertaking have the same meaning in this Documentary Australia Grant Undertaking as in the Terms and Conditions, unless the context requires otherwise.

2. UNDERTAKING

The Filmmaker undertakes to Documentary Australia that it will:
(a) expend the Documentary Australia 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 Documentary Australia; and
(iii) not for any other purpose without the prior written consent of Documentary Australia;

(b) maintain clear and up-to-date financial records for the purpose of enabling Documentary Australia to audit compliance with this Documentary Australia Grant Undertaking, and if requested by Documentary Australia, provide such financial records to Documentary Australia as soon as reasonably possible;
(c) regularly notify Documentary Australia of the progress of the production of the Approved Documentary including, on completion of production, provide Documentary Australia 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 Documentary Australia as a provider of the Documentary Australia Grant by displaying the Documentary Australia logo (as shown in Annexure A) in the Approved Documentary’s credits and in any related marketing collateral;
(e) if the Documentary Australia Grant is equal to or greater than government (including screen agency) funding, in addition to clause (d) above, provide  a presentation credit of “In association with Documentary Australia…” with equal prominence with those other government or screen funding agencies;
(f) if a Donor expresses a preference to Documentary Australia that, to the extent that their Donation comprises a Documentary Australia Grant, they be attributed as a provider of philanthropic funding and Documentary Australia 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 Documentary Australia;

(g) if requested by Documentary Australia, provide to Documentary Australia (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;

(h) comply with any terms and conditions which have been agreed with Documentary Australia; and
(i) immediately refund any unexpended Documentary Australia Grant to Documentary Australia if: 

(i) production of the Approved Documentary ceases for any reason; and/or
(ii) any unexpended Documentary Australia Grant is unable to be expended in accordance with clause 2(a) of this Documentary Australia Grant Undertaking.

3. ACKNOWLEDGEMENT

The Filmmaker acknowledges that by entering into this Documentary Australia Grant Undertaking, it agrees to be bound by the Terms and Conditions to the extent applicable to this Documentary Australia Grant Undertaking and to comply with these undertakings.

Executed in accordance with section 127 of the Corporations Act 2001 by Documentary Australia Pty Ltd.

Executed in accordance with section 127 of the Corporations Act 2001 by Filmmaker.

Annexure A

Documentary Australia logo: