(together “ the Parties ”)
Definitions
In this Agreement, unless the context otherwise requires:
Agency Services means advertising, marketing, representing and promoting the interests of the Voice to Clients and/or potential Clients for the purpose of securing paid Voicework for the Voice. Agency Services may be provided directly by BigMouth Voices’ staff or facilitated through or by the Platform.
Agency Fee means the administration fee BigMouth Voices may (at its discretion) charge the Client to procure the services of the Voice, including the Client’s use of the Platform and/or any other booking methods or services provided by BigMouth Voices. It is separate and additional to any Voice Fee or Commission Fee.
Agreement means this BigMouth Voices Ltd Voiceover Agency Agreement, and shall also include any variation to this Agreement made in accordance with clause 16.10.
Booking means an agreement between BigMouth Voices and a Client, specifying a time and place where BigMouth Voices provides a Voice to complete Voicework. In addition:
Commencement Date has the meaning in clause 2.
Commission Fee has the meaning in clause 4.
Confidential Information means all non-public information that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential.
For the avoidance of doubt, Confidential Information includes all non-public information provided by BigMouth Voices to the Voice (regardless of whether or not it is marked confidential) including information relating to:
Contract Fee means the total sum paid by a Client to BigMouth Voices (inclusive of any Voice Fee, and any Agency Fee, and any applicable taxes).
Client means any person or entity that agrees to pay BigMouth Voices a fee in consideration for the supply of a Voice by BigMouth Voices to complete Voicework.
GST means tax paid or payable under the Goods and Services Tax Act 1985 and Goods and Services Tax shall have the same meaning.
Platform means BigMouth Voices' website located at http://www.bigmouthvoices.com/ | .
Sample Recording means any promotional materials, including but not limited to MP3s or other video or sound recordings in any format, featuring the Voice, and which may be marketed and promoted together with other voices in any manner at BigMouth Voices’ discretion.
Term has the meaning in clause 2.
Voicework means the process, method, and product of recording spoken words and vocal sounds by any manner now or hereafter devised.
Voice Fee means the total fee payable to the Voice for the Voice’s Voicework, and is subject to deduction of any taxes and any Commission Fee in accordance with clauses 4 and 7. It is separate and additional to any Agency Fee.
Voice Profile means audio, video, and/or written material of, or in relation to, the Voice marketed and promoted by BigMouth Voices.
2.1 This Agreement shall commence on the date on which the Voice’s application to join BigMouth Voices via the Platform has been approved by BigMouth Voices (the “ Commencement Date ”).
2.2 Unless otherwise agreed, this Agreement only terminates or expires in accordance with the express terms of this Agreement.
2.3 “Term” means the number of days between Commencement Date and the termination of this Agreement inclusive.
3.1 BigMouth Voices shall act as the Voice’s sole and exclusive Voicework agent in New Zealand, and act as a non-exclusive international Voicework agent, providing Agency Services to the Voice.
3.2 The Voice shall not engage or retain any other NZ Voicework agent or manager unless BigMouth Voices has given written authority.
3.3 BigMouth Voices has the authority to act as the Voice’s agent in relation to Voicework, and to negotiate terms and sign any contract on the Voice’s behalf for the Voice’s services which fall within the scope of this Agreement.
3.4 In consideration of BigMouth Voices providing the Agency Services, the Voice shall pay BigMouth Voices the Commission Fee.
3.5 Platform & agency priority: Unless otherwise agreed in writing, where you are represented on both the Platform and other authorised platforms, then provided the Platform is used at all by You, a Client, or BigMouth Voices in respect of a request for your Voicework (such as, for instance, BigMouth Voices submitting You for the Voicework, or a Client reviewing Your work or profile, or posting the request for the Voicework, or checking availability of Voices, and so forth) then you agree to complete the Booking and Voicework exclusively via the Platform (in priority and exclusion to any other competing platform or booking service) and subject to the terms of this Agreement.
4.1 The Parties agree that BigMouth Voices may charge a Commission Fee on Bookings of the Voice made during the Term, and in addition any Bookings or engagements covered by clause 9.4.
4.2 The Commission Fee shall be calculated as follows (excl. GST):
4.3 For the avoidance of doubt, BigMouth Voices retains the right in any/all Bookings to elect (in its discretion) to charge the Client an Agency Fee (separate and additional to any Voice Fee or Commission Fee).
5.1 The Voice shall:
5.2 The Voice shall not under any circumstances discuss any fees with any Client of BigMouth Voices or any other person other than BigMouth Voices.
5.3 The Voice warrants that they have full authority to enter into this Agreement and that they are not bound by any previous agreement which adversely affects this.
5.4 The Voice warrants that they are not under any disability, restriction, or prohibition which might prevent them from providing the Voicework or observing any of their obligations under this Agreement. The Voice agrees to immediately notify BigMouth Voices should any change affect their ability to provide Voicework or comply with any of their obligations.
5.5 Each of the Voice’s representations and warranties will be deemed to be repeated continuously for the Term of this Agreement.
6.1 BigMouth Voices shall:
6.2 You acknowledge and agree that:
7.1 BigMouth Voices shall negotiate the Contract Fee with the Client, and shall render an invoice to the Client within 15 business days following completion of a Booking.
7.2 BigMouth Voices endeavours to pay the Voice their Voice Fee within ten (10) working days of confirmed receipt of the Contract Fee by BigMouth Voices. Payment of the Voice Fee to the Voice is subject to BigMouth Voices deducting any Commission Fee in accordance with clause 4. Where applicable, withholding tax will be deducted, and GST added, prior to payment to the Voice.
7.3 The Voice acknowledges that BigMouth Voices may charge the Client an Agency Fee (at BigMouth Voices’ discretion) separate and in addition to the Voice Fee and that right, title and interest in the Agency Fee shall remain with BigMouth Voices alone.
7.4 The Voice agrees that in addition to deducting the Commission Fee, BigMouth Voices may also deduct from the Voice Fee, by way of set-off, any other moneys that the Voice may from time to time owe to BigMouth Voices.
8.1 This Agreement will remain in force until terminated in any of the following ways:
9.1 The expiry or termination of this Agreement by either Party shall not release either Party from any obligations under the Agreement unfulfilled as at the date of termination, nor prejudice any rights existing immediately before termination.
9.2 The Voice’s obligations under these Terms survive termination or expiry, to the fullest extent permissible by law. Without limiting the former, the Parties acknowledge and agree that following clauses survive termination: 7 (payment), 10 (conduct following termination), 11 (indemnity), 12 (property), 13 (confidentiality), 15 (dispute resolution), 16 (general).
9.3 For the avoidance of doubt, any grants, waivers, consents, or indemnities granted in favour of BigMouth Voices, shall be retained and shall continue in effect.
9.4 Right to Commission Fee: Upon termination of this Agreement for whatever reason, the Voice acknowledges that BigMouth Voices shall still be entitled to: negotiate the Contract Fee for the following engagements, and/or charge and deduct a Commission Fee and/or Agency Fee from any monies the Voice derives from the following engagements, so long as BigMouth Voices continues to be available to render Agency Services with respect to such engagements:
In relation to any of the above engagements, the Voice agrees to direct the Client to negotiate these through BigMouth Voices, and to pay BigMouth Voices in accordance with this Agreement.
10.1 Following termination or expiry, the Voice shall deliver up without retaining copies, all Confidential Information, and any advertising, marketing, promotional and representative material which is the property of BigMouth Voices, and the Voice shall cease to use the name BigMouth Voices or BigMouth Voices Limited in any way.
10.2 Upon the request of BigMouth Voices, the Voice shall immediately provide BigMouth Voices with full particulars that the Voice may possess of Bookings and information about Clients. This extends to engagements made in any of the scenarios in subparagraphs 9.4 (a) to (d) with Clients or potential Clients.
10.3 On termination or expiry of the Term, BigMouth Voices shall deliver up without retaining copies, all Confidential Information, any Voice Profile and any advertising, marketing, promotional and representative material which is the sole property of the Voice. This excludes copies of all correspondences, legal documents or material BigMouth Voices had or has involvement (whole or part) in creating or is legally required to retain. BigMouth Voices shall cease to trade on the reputation of the Voice, subject to the following:
10.4 BigMouth Voices is not responsible or liable for returning any information, audio material, Voice Profile and any advertising, marketing, promotional and representative material that passed into the public domain prior to the date of termination.
11.1 The Voice agrees to, at all times during or after the Term, uphold and not damage BigMouth Voices’ goodwill and reputation.
11.2 The Voice shall keep BigMouth Voices indemnified from and against any and all losses, debts, or liability, whether criminal or civil, suffered by BigMouth Voices resulting directly or indirectly from:
12.1 BigMouth Voices agrees that the name of the Voice and any business name or logo with respect to the Voice’s name shall remain the sole and exclusive property of the Voice.
12.2 The Voice acknowledges that all property right, title and interest in the following shall remain exclusively with BigMouth Voices: (a) the Platform; (b) BigMouth Voices’ Confidential Information; and (c) any advertising, marketing, and/or promotional material (subject only to any pre-existing copyright owned by You or Third Parties that may be incorporated into the same).
12.3 Unless otherwise agreed in writing, all Voicework performed by the Voice remains the exclusive property of the Voice until such time and only to the extent that it is licenced or sold to a Client by BigMouth Voices acting on the Voice’s behalf and in exchange for a Contract Fee.
12.4 Notwithstanding clause 12.3, in order for BigMouth Voices to properly perform Agency Services for the Voice and satisfy clause 3, the Voice grants to BigMouth Voices for the Term of this Agreement any consent, power, licence, and authority necessary to:
13.1 Non-disclosure: The Voice covenants that it will not at any time whether during the Term of the Agreement or thereafter, use, copy, exploit or disclose to any person (nor cause or permit to be used, copied, exploited, or disclosed to any person) any Confidential Information supplied by BigMouth Voices or otherwise acquired by the Voice without the prior written consent of BigMouth Voices, unless:
13.2 Other Permitted uses: The Parties may use all or part of the Confidential Information, strictly in a confidential manner, only to: a) privately pursue their business relationship with one another; b) obtain professional advice from their legal or financial advisors; or c) for any other limited purposes agreed by the Parties in writing.
13.3 Public Statements Generally: In relation to publicity or any public statements permitted under these Terms, both Parties agree to refrain from making any public derogatory statements or references concerning each other (including their related parties and affiliates), the Voicework, Clients, or the Voices.
13.4 Privacy: During the Term of this Agreement BigMouth Voices may collect personal information about the Voice directly from the Voice, or the Voice’s use of the Platform, or in other professional interactions. The Voice acknowledges and agrees that: BigMouth Voices’ Privacy Policy (available on the Platform) applies to all personal information collected; and for the avoidance of doubt, the Voice authorises BigMouth Voices to reasonably use and disclose the Voice’s name, photograph, likeness, CV, biography, and Voice Profile or other personal information where necessary for the limited purpose of assisting BigMouth Voices to provide Agency Services to the Voice.
14.1 Unless otherwise agreed and executed in writing, this Agreement shall be executed digitally by the Voice clicking "I agree" online on the Platform. By clicking "I agree" and submitting an application to join BigMouth Voices via the Platform the Voice indicates acceptance of the terms of this Agreement. Processing and approving the application indicates acceptance of these terms by BigMouth Voices.
14.2 The Voice warrants, acknowledges, and agrees that they have had sufficient chance to read and understand this Agreement and to seek legal advice prior to execution, and that they fully understand and unconditionally agree be bound by all the terms of this Agreement.
15.1 If any dispute, issue, disagreement, or claim arises out of or in relation to the Terms (including in relation to their application, operation, or interpretation) (“the Dispute”), the Parties agree to the following dispute resolution process. Neither Party shall commence any Court or arbitration proceedings relating to a Dispute unless that Party has first complied with this clause.
15.2 Notice: The Party raising the Dispute will give written notice to the other Party of the nature of the Dispute, and (if applicable) of any specific resolution or outcome desired.
15.3 Good Faith Negotiations: Within 3 working days from receipt of the above notice (or within 24 hours if delay would unreasonably or materially prejudice a Party) the Parties will convene for an initial meeting to discuss the Dispute (“the Initial Meeting”), either in person, or by telephone / video conference. At the Initial Meeting, the Parties agree to discuss the Dispute in good faith and to seek a fair resolution. The Parties may each have a support person or representative present. The Parties may mutually agree to permit any other third party to be present. Any agreed resolution must be in writing and signed by both Parties.
15.4 Mediation: If the Parties have not reached agreement on the Dispute within 10 working days of first convening the Initial Meeting (or within 48 hours if delay would materially prejudice either Party) then unless the Parties mutually agree in writing to extend the time for good faith negotiations the Dispute will be submitted to mediation.
15.5 Arbitration: If mediation expires and the Parties have not reached an agreed resolution to the Dispute, then unless the Parties mutually agree in writing to extend the time for mediation or good faith negotiations, or to use and agree a process for expert determination, either Party may submit the Dispute to arbitration only.
15.6 Appointment: Any such mediation and/or arbitration shall be conducted by a sole-mediator or arbitrator chosen, and at a fee agreed, mutually by the Parties in writing. Failing agreement, either Party may request AMINZ to appoint an independent mediator or arbitrator (as applicable). The mediator or arbitrator shall set a timetable (having regard to any urgency or industry or business exigencies), including a date for expiry of the mediation process. Any arbitration shall proceed in accordance with and subject to the Arbitration Act 1996, and the decision shall be final and binding.
15.7 Location: Unless otherwise agreed, any such mediation or arbitration shall take place in Auckland, New Zealand or may take place via teleconference or videoconference. Failing agreement by the Parties as to a specific location, time, or venue, these shall be determined by the mediator or arbitrator so appointed.
15.8 Costs: Unless stipulated otherwise by the arbitrator, or agreed otherwise by the Parties, the Parties shall share the costs of the mediator and/or arbitrator equally, but shall each bear their own costs incurred in the mediation/arbitration.
15.9 Without prejudice: All discussions during good faith negotiations and/or mediations are without prejudice and may not be referred to in any subsequent arbitration or legal proceedings.
15.10 Interlocutory relief: nothing in this clause will prevent a Party from taking appropriate timely steps to seek urgent interim relief before an appropriate Court.
16.1 Governing Law: This Agreement shall be governed by and constructed in accordance with the laws of New Zealand. Subject to clause 15, the Parties submit to the exclusive jurisdiction of the Courts of New Zealand and agree that in the event that any matter in relation to this Agreement is referred to a Court, the proper Court will be in the District or High Court at Auckland.
16.2 Severability: If any clause or provision of this Agreement shall be held illegal or unenforceable by any judgement of any Court or Tribunal having competent jurisdiction, such judgement shall not affect the remaining provisions of this Agreement which shall remain in full force and effect as if such clause or provision held to be illegal or unenforceable had not been included in this Agreement.
16.3 No Partnership or Employment: Nothing in this Agreement shall mean that either Party is an employee or partner of the other. The Parties acknowledge that the real nature of their relationship is that of agent and principal and that the Voice is in business on their own account.
16.4 Health and Safety: The Voice acknowledges that as a person conducting their own business or undertaking they are responsible for their own health and safety, and may have obligations under the Health and Safety at Work Act 2015 to ensure that the health and safety of others is not put at risk by the Voice’s work. The Voice must comply with the Health and Safety at Work Act 2015, any regulations made under that Act, and any health and safety policies, directives or procedures of BigMouth Voices or of third Parties such as Clients where Voicework involves use of third Parties premises (such as studios).
16.5 No assignment: the Parties agree that neither Party shall assign their rights under this agreement without the prior written agreement of the other Party.
16.6 No implied waiver: Any failure, delay, neglect, forbearance, exercise or partial-exercise by either Party to enforce any of the rights or require performance of any provision under this Agreement, shall not be deemed to waive, prevent, or otherwise prejudice that Party’s rights, nor affect that Party’s ability to enforce any provision of the Agreement at a subsequent time. Each right and/or remedy is cumulative and shall not be construed as exclusive of any other right or remedy existing in this Agreement or otherwise available at law or equity. No waiver constitutes a continuing waiver unless otherwise expressly provided.
16.7 Further assurances: Each of the Parties to this Agreement shall, at the request of the other Party, execute and deliver any further documents or assurances and do all acts and things that the other Party may reasonably require to give full force and effect to this Agreement.
16.8 Notices: All notices required under these Terms shall be in writing, and shall be deemed to have been served:
16.9 Entire Agreement: This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the Parties with respect to that subject matter, such that, other than this Agreement there are no warranties representations or other agreements among the Parties in connection with the subject matter of this Agreement.
16.10 Amendments: Any amendment, variation, or alteration to this the rights or obligations contained in this Agreement must be in writing and signed by both Parties. No modification or waiver of this Agreement shall be binding unless executed in writing by both Parties.